COPARCENARY PROPERTY IN HINDU LAW

 A coparcenary is a smaller unit of the family that jointly owns property.

Coparcener is a person who has a birthright to parental property

A coparcenary consists of a ‘propositus’, that is, a person at the top of a line of descent, and his three lineal descendants — sons, grandsons and great-grandsons 

Coparcenary property is named thus because the co-ownership is marked by “unity of possession, title and interest”.

the concept is found in the Mitakshara school, which prevails in most parts of India, a male’s right to be a coparcener is by birth

coparcenary has succession up to four degrees of lineal descent. 

When the Hindu Succession Act, 1956, Section 6, says that when a male Hindu died after the Act came into force, his interest in a Mitakshara coparcenary shall go to the surviving members of the coparcenary and not in accordance with the Act

a provision was added to preserve the interest of female children. It said if the deceased left behind a Class I female relative (daughter, widow or mother, etc.) or a male relative claiming through such female kin, his interest would go to them by testamentary (by will) or intestate (without a will) succession, and not by survivorship.

even the codified law did not address the conventional discrimination against women.

by separate colonial-era laws, some limited rights of inheritance were conferred on daughters (in respect of intestate, non-coparcenary property in the Hindu Law of Inheritance (Amendment) Act, 1929) and widows (whose right to succeed to husband’s property was equated to that of the son in the Hindu Women’s Rights to Property Act, 1937), women were denied coparcenary status.

These laws were repealed by the Hindu Succession Act, 1956.

It said: “The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution 

it amended Section 6 to remove the discrimination and confer equal rights on daughters too. It declared that a coparcener’s daughter would become a coparcener in her own right by birth, in the same manner as a son; and would have the same rights that she would have, had she been a son

but it contained a proviso that it would not invalidate any disposition of property by partition or will that had taken place prior to December 20, 2004 — the day the amendment was introduced in the Rajya Sabha.

civil cases relating to coparcenary property threw up questions such as whether it would apply only to daughters born after September 9, 2005, or whether, if they were born before that, it would be limited to those whose father was also alive on that day.

Many courts took the view that only a living coparcener’s daughter would get the benefit of the new law. 

The Supreme Court in Prakash and Others vs. Phulavati (2015) ruled that, it had no retrospective effect, and only living daughters of living coparceners (as on the date of its coming into effect) would get its benefit.

Recent verdict has upheld the stand that coparcenary status of daughters is created by birth, and is not dependent on whether the father was alive or not on the date on which it came into force 

According to recent verdict, a daughter has the same status as a son as soon as she is born. 

Court locates the origin of the coparcenary right in one’s birth. It finds that there is no necessity for a predecessor coparcener to be alive for one to acquire that status, as what is relevant is birth within the degrees of succession to which it extends. In that sense, the legislation, even though it comes into effect on a prescribed date, is retroactive in its application as it is linked to birth, an antecedent event.

Kerala had introduced legislation in 1975, Andhra Pradesh in 1986, Tamil Nadu in 1989 and Maharashtra and Karnataka in 1994. The legislative aim was that a flagrant discrimination between sons and daughters in entitlement to an equal share in coparcenary property 

A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life,” Justice Arun Mishra, heading a three-judge Bench, authored the judgment.

Court clarified that an unregistered oral partition, without any contemporaneous public document, cannot be accepted as the statutory recognised mode of partition. 

in exceptional cases where plea of oral partition is supported by public documents and partition is finally done in the way directed by the decree of the court. 

Most of the family businesses would have figured out how to accommodate daughters in terms of sharing wealth and allowing them to take part in business since the amendment came in 2005

The verdict will have an implication on traditional business families. 

Some of the businesses have not been welcoming daughters in a traditional sense. 

The joint and large family businesses should be open to recognising the rights of daughters. Otherwise, there is a possibility of them facing litigation claiming right in the wealth 

the judgment is progressive , for highlighting the patriarchal practices of the Mitakshra School of Hindu law — the guiding force of the Hindu Succession Act, 1956  

What makes this judgment epochal is the progressive change in the attitude of the courts, which now appear to be upholding principles of substantive justice for women both in theory and practice.

There are cases where the movable property may have been given to a daughter by her father as an intentionally undeclared and informal settlement between his descendants 

If women are seen as double beneficiaries of these laws (through lineage and marriage), can we anticipate that the ruling might impact dowry transactions that continue despite stringent anti-dowry laws?

the right to possession may not be easy for women who are married and do not reside in their ancestral homes 

Property transactions may be more convenient for urban settings. But in the rural context, where most of the property is in the form of agricultural land ,it is difficult. 

Many educated, professional  women who rejected patriarchal controls and fought against practices like dowry, have been denied property rights by their own families

Dowry is equalised as a share in the property. 

Women forgo their property rights in ancestral homes so that they can have comfortable access to their paternal relationships, primarily with male members like their brothers.

in case of a marital dispute, the brothers will become shields of protection and come to the rescue of the sister. But women have don’t have many exit options in their marriages

not many women reach the doors of the court to fight legal battles for property rights. 

The Constituent Assembly debate on the Hindu Code Bill, in general, is an important point of contextual reference here. B R Ambedkar himself advocated equal citizenship rights for men and women in post-independence India. 

The courts have not been prolific in the interpretation of the provision in creating new rights of women when such substantive possibilities could have been explored in the preceding decade itself 

An expanding rights consciousness coupled with the democratisation of the law will enable an inclusive re-imagination of the everyday experience of law

The rules of social transaction can be negotiated by the Court to promote women’s bargaining power to access and control property. ( From our online sessions held recently).