mitakshara&dayabahaga

Introduction In Hindu social social system, system,  Dharmasastras do not separate the spiritual from the secular, therefore, therefore, in the grasthasrama the  grasthasrama a person is given the training to lead a complete complete and meaningful meaningful life for the benefit and welfare of those who left and those who are present and those who will be  born. It is a unique phenomenon of Hindu philosophy that the Hindu family has been thought of  as one of the most most import important ant institut institution ionss because because all other other instit instituti utions ons like brahmacharya, brahmacharya, vanaprastha and sanyasha and sanyasha depend on it. Hence, the importance of the family is advocated in the  Dharmasastras.  Dharmasastras. The coparcenary as understood in Hindu law has its origin in the concept of Daya of  Daya as explai explained ned by Vina Vinanes neshwar hwaraa while while comment commenting ing on !anaval navalkya kyasmr smriti iti in the  Daya vibhaga  prakranam vayavahara adhaya. adhaya. Here, Vinaneshwara discussed that Daya that Daya is only that property which becomes the property of another person, solely by reason of relation to the owner. The words solely by reason of relation exclude any other cause, such as purchase or the like."arada also approves the meaning of the Daya the  Daya which is a coparcenary property because according to him, him, sons sons can can divi divide de only only fath father er#s #s prop proper erty ty whic which h has has been been appr approv oved ed by the the lear learne ned d $Svatvanimitasambandhopalashanam Svatvanimitasambandhopalashanam%. %. Theref Therefore ore,, the unique unique concept concept of coparce coparcenary nary is the product product of ancien ancientt Hindu Hindu  urisprudence which later on became the essential feature of Hindu law in general and &itakshara 'chool of Hindu law in particular. The concept of coparcenary as understood in the general sense under (nglish law has different meaning in India or Hindu legal system. In (nglish law, law, coparcenary is the creation creation of act of parties parties or creation of law. law. In Hindu law, coparcenary coparcenary cannot be created by acts of parties, however, it can be terminated by acts of parties. The coparcenary coparcenary in Hindu law was limited limited only to male members members who descended from from the same male ancestors within three degrees. These coparceners have important rights as regards to  property of the coparcenary but so long the coparcenary remains intact no member can claim any an y specific specific interest in any part of the property of the coparcenary coparcenary because of the specific nature of  coparcenary in the &itakshara 'chool of Hindu law. However, However, under Hindu law, law, the coparcenary coparcenary in the &itakshara &itakshara and the )ayabhaga )ayabhaga 'chools of Hindu law have different meanings with the result that this difference in the concepts of coparcenary coparcenary of the mitakshara mitakshara and the )ayabhaga )ayabhaga 'chools of Hindu Hindu *aw resulted resulted in the difference of definition of partition and the duty of the son to pay the debt of his father. Therefore, the deviation in the original concept of coparcenary is the result of social and  proprietary influence. Hence, when females are made entitled to become beco me coparceners it does not militate against the nature and concept of coparcenary because it is the social and proprietary aspect which prominently make it necessary that females should be included in the concept of  coparcenary. However, the term Apatya term  Apatya $child% is a coparcener because according to "irukta, Apatya "irukta, Apatya means means chil child d whic which h incl include udess both both son son and and daugh daughte terr. Ther Theref efor ore, e, when when a fema female le is made made a coparcener, it is only the recognition of the meaning of child in its true sense without making any distinction between a son and a daughter. "ow, a question which may arise in the case of a daughter is how the coparcenary coparcenar y interest will be determined at the time of her marriage. In fact, it woul would d pose pose no prob proble lem m becau because se the the male male memb member erss of a copar coparcen cenary ary can can dete determ rmin inee the the coparcenary interest any time at their will so why should there be any difficulty in the case of  daughters. In fact, the main emphasis is on granting the proprietary rights to female children equal to the proprietary rights of male children. Therefore, the marriage of a daughter may or  may not have any impact on the proprietary interest rather it will depend upon the will of the

female herself. The division of property of a coparcenary will depend on the nature of the  property whether the property which is in the hands h ands of the coparceners is ancestral property p roperty or it is the self acquired property of the coparceners. This problem has already been in existence both in the &itakshara and the )ayabhaga schools of Hindu law and the solution of the problem of  division or partition of coparcenary property may follow either the pattern followed in Hindu law or statutory provisions may be made in this behalf. +ut, in any case inclusion of a female child in coparcenary is not against the letter and spirit of Hindu law. Concept of Coparcenary: Historical Perspective oparcenary is -unity of title, possession and interest. To clarify the term further, a Hindu oparcenary is a much narrower body than a Hindu oint family, it includes only those persons who acquire by birth an interest in the coparcenary property, they being the sons, grandsons, and great/grandsons of the holders of the property for the time being. The +lack#s law dictionary gives a more comprehensive explanation of the term coparcenary. It says, such estate arises where several take by descent from same ancestor as one heir, all all coparceners constituting but one heir and having but one estate and being connected by unity of interest and of title. 0 species of estate, or tenancy, which exists where lands of  inheritance descend from the ancestor to two or more persons. It arose in (ngland either by common law or particular custom. +y common law, as where a person, seised in feesimple or  fee/tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or  thei theirr repr repres esen enta tati tive ves1 s1 in this this case case they they all all inher inherit it,, and and thes thesee cohei coheirs rs,, are are then then call called ed -coparceners, or, for brevity -parceners only. +y particular custom, as where lands descend, as in gavelkind, to all the mates in equal degree, as sons, brothers, uncles etc20n estate which several persons hold as one heir, whether male or female. This estate has the three unities of  time, title and possession1 but the interests of the coparceners may be unequal. In Dharmasastra In  Dharmasastra coparceners are referred to as Sahadaee. Sahadaee. The term coparceners came to be used as a result of influence of 3estern 3estern 4urisprudence. Therefore, the present concept is not very difficult from the earlier one. The ustification of coparcenary according to the &itakshara 'chool is that those who can offer funeral oblations $ Pindh-daan%  Pindh-daan% are entitled to the property. The concept of Pindh-daan of Pindh-daan is that the person who offers funeral oblations share the same blood with the person to whom he is offering a Pindh a Pindh.. 0 coparcenary is purely a creation of law1 it cannot be created by act of parties, except  by adoption. In order to be able to claim a partition, it does not matter how remote from the common ancestor a person may be, provided he is not more than four degrees removed from the last male owner who has himself taken an interest by birth. In Hindu law of succession the coparcenary is still not codified. There are two 'chools, viz ., ., the &itakshara and the )ayabhaga. 0ccording to the &itakshara 'chool, there is unity of  ownership / the whole body of coparceners is the owner and no individual can say, while the family is undivided that he has a definite share as his interest is always fluctuating being liable to  be enlarged by deaths and diminished by birth in the family. family. There is also unity of possession possession and enoyment. 5urther, while the family is oint and some cop arceners have children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and and expen expendi ditu ture re.. 6aty 6atyay ayana ana expre express ssly ly stat states es that that the the oin ointt fami family ly prop proper erty ty devol devolves ves by survivorship that is on the death of a coparcener his interest lapses and goes to the other  coparceners. The conception of coparcenary under the )ayabhaga 'chool is entirely different from that of the &itakshara 'chool. 7nder the )ayabhaga 'chool, sons do not acquire any

interest by birth in ancestral property, but the son#s right arises only on the father#s death and the sons take property as heirs and not as survivors. However, the coparcenary in Hindu law is not identical to the coparcenary as understood in (nglish law. Thus, in the case of death of a member of coparcenary under the &itakshara law, his interest devolves on the other members by survivorship while under (nglish law, if one of the co/heirs ointly inheriting properties dies, his or her right goes to his or her legal heirs. Mitakshara School of Hindu Law It is important to note the distinction between ancestral property and separate property. 8roperty inherited by a Hindu from his father, father#s father, or father#s father#s father, is ancestral property. 8roperty inherited by him from other relations is his separate property. The essential feature of ancestral propertyis that if the person inheriting it has sons, grandsons, or  great grandsons, they become coparceners with him and become entitled to it by reason of their   birth. Thus, if 0, who has a son +, inherits property from his father, it becomes ancestral in his hands, and though 0, the head of the family, is entitled to hold and manage the property, + is entitled to an equal interest in the property with his father, 0 and to enoy it in common with him, + can, therefore, restrain restrain his father from from alienating it except in the exceptional circumstances, viz ., ., apatkale, kutumbharte, dharmarte or legal necessity. 'uch alienation is allowed by law and he can enforce partition of it against his father. 9n his father#s death, he takes the property by survivorship and not by succession.: However, as to separate property, a man is the absolute owner of the property inherited by him from his brother, uncle, etc. His son does not acquire an inte intere rest st in it by birt birth h and and on his his death death,, it pass passes es to the the son son not by surv surviv ivor orsh ship ip but but by succession.Thus, if 0 inherits from his brother, it is his separate property and it is absolutely at his disposal. His son + acquires no interest in it by birth and he cannot claim partition of it nor  can he restrain 0 from alienating it. The same rule applies to the self acquired property of a male Hindu. +ut it is of the utmost importance to remember that separate or self/acquired property, once it descends to the male issue of the owner becomes ancestral property in the hands of the male issue who inherits it. Thus, if 0 owns separate or self/acquired property it will pass on his death to his son + as his heir. +ut in the hands of + it is ancestral property as regards his sons. The result is that if + has a son ,  takes an interest in it by reason of his birth and he can restrain + from alienating it, and can enforce a partition of it as against +. 0ncestral 0ncestral property property is species species of coparcenary coparcenary property property.. 0s stated stated before, before, if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with his father as regards the property so inherited and the coparcenary consists of the father and the son. +ut this does not mean that a coparcenary can consist only of a father and his sons. It is not only the sons but also the grandsons and great grandsons who acquire an interest by birth in the coparcenary property. Thus, if 0 inherits property from his father and he has two sons + and , they both become coparceners with him as regards the ancestral property. 0, as the head of the family, is entitled to hold the property and to manage it and hence is called the manager of the property. If + has a son ) and  has a son (, the coparcenary will consist of the father, sons and grandsons, namely, 0,+,,), and (. 5urther, if ) has a son 5, and ( has a son ;, the coparcenary will consist of the father, sons, grandsons, and great grandsons, in all, it will consist of seven members. +ut if 5 has a son H, H does not become a coparcener, for a coparcenary which is limited to the head of each stock and his sons, grandsons, and great grandsons. H being the great great/grandson of 0 cannot  be a member of the coparcenary so long 0 is alive.

Genesis of Coparcenary 0 coparcenary coparcenary is created created when, for example, example, a Hindu male 0, who has inherited inherited no  property at all from his father, grandfather or great grandfather, acquires property by his own exertion. 0 has a son +, + does not take any vested interest in self/acquired property of 0 during 0#s life time, but on 0#s death he inherits the self/acquired property of 0. If + has a son ,  takes a vested interest in the the property by reason of his birth and the property property inherited by + from his father 0 becomes ancestral property in +#s hands, and + and  are coparceners as regards this  property. If + and  continue oint and a son ) is born to , he enters into the coparcenary by the mere fact of his birth. 0nd if a son ( is subsequently born to ), he too becomes a coparcener  with his fatherand grandfather. Though a coparcenary must have a common ancestor to start with, it is not to be supposed that at every extent coparcenary is limited to four degrees from the common ancestor. 0 member  of a oint family may be removed more than four degrees from the common ancestor $original holder of coparcenary property% and yet he may be a coparcener. 3hether he is so or not depends on the answer to the question whether he can demand partition of the coparcenary property. If he can, he is a coparcener but not otherwise. The rule is that partition can be demanded by any member of a oint family who is not removed more than four degrees from the last holder, however, remote he may be from the common ancestor or original holder of the property. 3hen a member of a oint family is removed more than four degres from the last holder  he cannot demand partition, and therefore, he is not a coparcener. 9n the death, however, of the last holder, holder, he would be entitled entitled to a share on partition, partition, unless his father, grandfather grandfather and great grandfather had all predeceased last holder. The reason is that whenever a break of more than three degree occurs between the holders of property the coparcenary comes to an end. 0nother 0nother important important element element of a coparcenary coparcenary under the &itakshara &itakshara law is unity of  ownership. The ownership of the coparcenary property is in the whole body of coparceners. 0ccording to the rule, the notion of an undivided family governed by the &itakshara law, no individual member of that family whilst it remains undivided can predicate of the oint and undivided property that he, that particular member has a definite share, one third or one fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary  property is -undivided coparcenary interest. The rights of each coparcener until a partition takes  place consist in a common possession and common enoyment of the coparcenaryproperty. 0s obse observ rved ed by the the 8riv 8rivy y oun ounci cill in  Katama Natchiar v. The Rajah of Shivaganga, there is community of interest and unity of possession between all the members of coparcenary, and upon the death of any one of them, the others will take by survivorship survivorship in which they had during the deceased#s lifetime a common interest and acommon possession. The 'upreme ourt has summarised the position and has observed that the coparcenary  property is held in collective ownership by all the coparceners in a quasi corporate capacity. capac ity. The The incidents of coparcenary are< first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person1 secondly, that such descendants can at any time work out their rights by asking for partition1 thirdly, till  partition each member has ownership extending over the entire property ointly with the rest1 fourthly, as a result of such co/ownership, the possession and enoyment of the properties is common1 fifthly, no alienation of the property is possible unless it is for necessity, without the

concurrence of the coparceners1 and lastly, the interest of a deceased member passes on his death to the surviving coparceners. HIN! !NI"I# $%MIL& Hindu 7ndivided 5amily $H75% or a 4oint Hindu 5amily onsists of all males lineally descended from common ancestor their wives and daughter. 0ny married Hindu, married Hindu, Sikh, Jain or Buddhist man can form form H75. H75. H75 is automa automatic tically ally consti constitut tuted ed on marria marriage. ge. 5ew simple simple formal formaliti ities es to complete for H75 to function as legal entity 5ormed from blending of individual property with H75 character, ;ifts, 4oint *abour, 3ill, 8artition or =eunion. There are two schools of Hindu *aw i.e. )ayabhaga 'chool of Hindu *aw and &itakshara 'chool of Hindu *aw. C'(P%)C#N#)S:( >. 'ome of the members of H75 are designated as coparceners. ?. 0ll coparceners are members of H75, all all members are "9T coparceners. cop arceners. @. Husband A 3ife 3ife form H751 wife can only be member, "9T coparcener. :. oparcener is different from the other members of H75, coparceners are those members who acquires by  birth an interest in the oint property of the family. family. B. oparcenary is restricted to four levels of living order. C. )aughters also coparcener w.e.f. D.D.?EEB in the Hindu 'u ccession $0mendment% 0ct, 0ct, ?EEB. F. 0fter 0fter Hindu Hindu 'uccess 'uccession ion 0ct 0ct amendm amendment entss equal equal rights rights to daught daughters ers even even after after marria marriage. ge. &arried women have rights in two H75s/their fatherGs as coparcener and their husbandGs as member. ThereGs no need to fill an application form or submit 6! documents for oining an H75. . &embers if the family who are not coparceners/ "o right to claim partition. D. >st 'tep 5orm a corpus for H75 can be any 08IT0* 0''(T $like property, gold, ewellery, securities,deposits% or 0'H. >E. )aughter of a coparcener shall by birth become coparcener in her own right in the same manner as son. >>. )aughter has the same rights in the coparcener property as she would have had if she had  been a son. >?. )aughter is allotted the same share as to the son. *ho can +e a ,%)-% of H!$ The 50TH(= of the family in absence, senior male member of the family. 7nmarried daughter, in the unfortunate event of her father passing away, will become 6arta I5 0ll male members are minors A natural guardian is mother then she is the 6arta. 3here a couple has only one daughter  and the husband pass away, the mother/daughter duo can continue the H75 $although a problem may arise after she gets married and becomes beco mes a member of her husbandGs H75%. The 6arta Have Various )uties that are Mana/in/ the affairs of H!$0 Maintainin/ the +ooks of accounts0 filin/ ta1 returns for H!$0 -o enter in to contracts0 for2 partnership fir20 or representation on +ehalf of H!$. Gift of H!$ Property >. (lementary proposition that 6arta of H75 cannot gift or alienate property except to the extent recognied under the Hindu *aw, namely necessity etc J CG- v. P.Hanu2anthappa 34 I-)  5350 ,.P. Gupta v. CI-655 I-) 783 ?. =easonable limits depends upon facts / CG- v. 9.". Narasi2harau ; Sons v. I-' 657 I-) ?4 :. ;ift on &arriage 9ccasion is valid J S. Laksh2a22a v. ,otayya %I) ;?53 Mad. 468 .

B. ;ift of immovable property should be for pious purpose J CI- v. )a2 Gopal )a/haria ;65 I-) 3?5 C. ;ift to 'trangers void J Gura22a v. Mallappa %I) ;?37 SC 8;/>?/>DCD would attract lubbing of Income in the hands of the member and as such the income from the converted property shall be deemed to arise to the individual A not to the family. 8artition of the H75 9nly coparceners can demand partition. These are of two types/Total 8artition< 8roperty divided amongst all the family, undivided family ceases to exist , 8artial 8artition< 'ome family members go out of fold and others remain oint or some of the property is divided and other remains oint not recognied for tax purpose, after @>.>?.>DF 0s per section >F>$D% of the Income/tax 0ct, >DC> the 8artial 8artition after @>/>?/>DF is not recognied. (ven after 8artial 8artition the income of the H75 shall be liable to be assessed under the Income/tax 0ct as if no 8artial 8artition had taken place. Procedure to effect partition K 7nder the Hindu law H75 may be ended by portioning the property $or whatever assets% of the H75, but for IT purposes are to be recognied by the 09. K 'hare in assets of H75< 0ll coparceners, mother$in case of death of father%, wife gets a share separate from husband in case of partition between her husband and sons, son in womb of  mother at time of partition K 0t the time of making assessment uLs >:@, >::, it#s claimed by any member that the partition has taken place 09 shall make inquiry after giving notice. K 0fter inquiry 09 shall record finding as to whether there has been T9T0* T9T0* 80= 80=TITI9" TITI9" )0T( )0T( of such partition. K 9rder uLs >F> passed by 09 K 3here partition took place in the previous year is recorded by 09< Income of H75 before  partition shall be assessed as no partition has taken place. (ach member shall be liable separately and ointly for the income tax thereon K 5or this section several liability of any member or group of member shall be computed according to portion of oint family property allotted to him or it at partition. K The provisions are applicable in levy and collection of any penalty, interest fine or any sum for   period up to partition date K Total Total partition in the context of the I. T 0ct means partition by M&etes and +ounds. K The Income Tax law will recognie its demise !or "ant o! a better "ord, since a divided Hindu  !amily can be reunited again#,only again#,only when the H75 each and every layer of the clothing of   property/tangible or intangible, movable or immovable /it had has been removed -here are various advanta/es of H!$ K Helps avoid service tax< If business turnover is split by setting up H75, the service provider can avoid the hassle of charging service tax and become small scale service provider. K 'alary to 6arta< This salary is taxed as his income and will be fully deductible from the H75 income. K 7se H75 income for expenses< The income earned by the H75 can be used for the household expenses of the family. K )istribute income to coparceners< 6arta can gift money to the coparceners from the income earned by the H75. This income is tax/free in the hands of the coparceners. This way, person with a high income will be able to get tax/free income.

K ;ive loan for business< H75 can give loans to the 6arta or coparceners for setting up business A can charge interest on the loan. Interest paid on any business loan is fully dedu ctible. K "o &0T or 0&T< unlike other corporate entities, no minimum alternative tax on H75 owned  businesses. K 'mall/scale industry exemption< or the business community, various exemptions and incentives given to small/scale units are crucial to ensuring healthy margins. H!$s can +e 2ade +etter +y the followin/ ways In &ay ?EEB, the government passed a rule 8=(V("TI"; H75s from opening new accounts in the 8ublic 8rovident 5und. 0ll existing accounts, which had completed >B years since the initial deposit, were also to be closed by @> &arch ?E>>, H75 0""9T invest in other government securities such as the "ational 'avings ertificates, as well. These restrictions should be done away with. 3hy should H75s be treated differently from any other taxpayer, If the 6arta of the H75 is crucial for its smooth functioning, the H75 should be allowed to take a 6ey man life insurance insurance cover for him and should be made the nominee, Hindu 'uccession 'uccession 0ct accords equal rights to female coparceners of an H75, its only applicable to the &itakshara school, it should be applicable to )ayabhaga school $3est +engal and 0ssam% as well, 6erala does not have a H75 system. 5or the sake of uniformity, the same rules should apply across the country, H75s are not eligible for some tax benefits enoyed by individual taxpayers. They should also be able to claim deduction for interest paid on education loans, benefits for pension fund contributions. %&%9H%G% %&%9H%G% SCH''L '$ HIN! L%* The conception of coparcenary and coparcenary property according to the )ayabhaga 'chool is entirely distinct from that of o f the &itakshara 'chool. 0ccording to &itakshara 'chool, a son acquires at birth an interest with his father in ancestral property held by the father and on the death of the father the son takes the property, not as his heir, but by survivorship. 0ccording to )ayabhaga 'chool, the son does not acquire an interest by birth in ancestral property. property. 'on#s right arises only on the death of his father. 9n the death of the father he takes such property as is left  by him whether separate or ancestral, as heir and not by survivorship. 0ccording to the &itakshara 'chool, the foundation of coparcenary is first laid on the  birth of a son. The son#s birth is the starting point of a coparcenary according to &itakshara 'chool. 'chool. Thus, if a Hindu governed governed by the &itakshara &itakshara 'chool has a son born to him, the father  and the son at once become coparceners. 0ccording to )ayabhaga 'chool, the foundation of a coparcenary is laid on the death of  the father. 'o long as the father is alive, there is no coparcenary in its strict sense of the word  between him and his male issue. It is only on his death leaving two or more male issues that a coparcenary is first formed. Thus, it would be correct to say that the formation of a coparcenary does not depend upon any act of the parties. It is a creation of the law. It is formed spontaneously on the death of the ancestor. It may be dissolved immediately afterwards by partition but until then the heirs hold the property as coparceners. These observations must obviously be read in the context of a father dying leaving two or more male issues who would constitute a coparcenary, though of course, in their case, there would be only unity of possession and not unity of  ownership. Thus, till a partition partition by metes and bounds, bounds, that is, actual and final distribut distribution ion of   properties takes place, each coparcener can say what his share will be. be . In other words, none of  them can say such and such property will fall to his share. (ach coparcener is in possession of  the entire property, even if he has no actual possession, as possession of one is possession of all.

 "o one can claim any exclusive possession of property unless agreed upon by coparceners. In Sudarsana $aistri v. %arasimhulu v. %arasimhulu,, it was held that a oint family and its coparcenary with all its incidents are purely a creature of Hindu law and cannot be created by act of parties, as the fundamental principle of the oint family is the tie of sapindaship of  sapindaship arising by birth, marriage and adoption. %ndhra Pradesh Module: Step towards Proprietary #@uality The Hindu 'uccession 0ct, >DBC has conferred rights of succession on Hindu females as  provided in 'ection C of the 0ct, relating to succession to an undivided un divided interest in a oint family  property when a coparcener dies intestate. +ut a male was free to dispose of inter vivos or by will, his interest in the oint family property which meant the female could still be deprived of   proprietary right. onsidering it unfair to exclude a daughter from participation in the ownership of coparcenary property, and in order to confer the right to property by birth on a Hindu female and assimilate her to the position of a male member of a coparcenary, a +ill, *.0. +ill >? of >D@ was introduced in the 0ndhra 8radesh *egislative 0ssembly. 0ssembly. The +ill was enacted by the 0ndhra 8radesh 'tate 0ssembly on 'eptember ?B, >DB and received the assent of the 8resident and came into force on 'eptember B, >DB. The Hindu 'uccession 0ct, >DBC was amended by introducing a new hapter, hapter II/0 consisting of 'ections ?D/0, ?D/+ and ?D/. 'ection ?D/ 0 provides that the daughter becomes a coparcener by birth along with other male members and has a right to obtain partition having the equal share with son. 'ection ?D/+ provides that a daughter#s interest in the oint family property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Hindu 'uccession 0ct. The Hindu 'uccession $0ndhra 8radesh 0mendment% 0ct, >DC was extended to the whole of the 'tate of  0ndhra 8radesh. This was a very progressiv progressivee measure measure and removed removed to a large large extent the inequality inequality  between males and females among Hindus with regard to property under Hindu law. The example set by 0ndhra 8radesh has been followed by other 'tates, viz ., ., the Hindu 'uccession $Tamil "adu 0mendment% 0ct, >DD, the Hindu 'uccession $&aharashtra 0mendment% 0ct, >DD:, and the Hindu 'uccession 'uccession $6arnataka amendment% 0ct, 0ct, >DD:. In order to have a uniform law for the whole of India it was hoped that all other 'tates would follow this example or the 7nion *egislature would amend the 8rinciple 0ct of >DBC on the above lines. In Narayan Reddy   where in a suit for partition of oint family properties, a preliminary decree was v.  Sai Reddi  where  passed ascertaining the share of the parties, it was held that it was open to the unmarried daughter to claim share in those properties under 'ection ?D0 as amended by 0.8. 0.8. 0mendment 0mendment 0ct, >DC before the passing of the final decree. In  Ashok Kumar Ratanchand v. CIT 0 the 0.8. High ourt held that where a coparcener who obtains property on partition and marries subsequently, the status of unit of  assessment assessment after marriage marriage is necessarily necessarily that of a Hindu undivided undivided family family and the income from such property is assessable in that status and not in the status of the individual. 0fter discussing the entire case law on the subect, the ourt observed that the property which a coparcener  obtains on partition does not become for all times his individual and separate property. If he has a wife or a daughter, depending on him the property will be charged by the obligation to maintain them. them. If he marrie marriess later later,, his proper property ty,, ancestr ancestral al or self/a self/acqui cquired red,, will will be burdene burdened d by an obligation to maintain his wife. If he begets a son, that son becomes entitled to a share in the  property which thereby revives the character of oint family property. If he begets only daughters, the obligation to maintain them will be fastened on the property. 0n unmarried Hindu male,

obtaining a share of ancestral property on partition retains the property as his absolute property. +ut after marriage the property becomes encumbered by an obligation to maintain his wife or  other dependents. It sheds the character of separate property and revives its character as oint  property of the smaller unit consisting of o f himself and his wife. In that limited sense, the income therefrom may be the income of the Hindu undivided family consisting of himself and his wife. The main points for consideration and elucidation of the consequences of the result of  statutory inclusion of a daughter in the category of &itakshara oparcenary were that the anomalies and inconsistencies must be eliminated. 0s for the anomaly, it is to be made clear that at the time of marriage, the 'ection C of the Hindu 'uccession $0mendment% 0ct, ?EEB clearly states that the daughter of a coparcener coparcen er shall by birth become a coparcener cop arcener in her own right in the same manner as the son. It also states that she shall have the same rights in the coparcenary  property as she would have had she been a son, and that she would be subect to the same liabilities. The daughter is thus, an acceptable member of the Hindu coparcenary, by virtue of the 'ection C of the Hindu 'uccession $0mendment% 0ct, ?EEB. However, the matter is not so simple. The first first problem problem encountered encountered on examining examining 'ection 'ection C entails entails the lack of an explicit explicit distinction between married and unmarried daughters. This fact must be emphasied as the marrie married d and the unmarr unmarried ied daughte daughterr do differ differ in respe respects cts such as member membershi ship p of family1 family1 something which is crucial to the notion of the coparcenary. However, working under the assumption that the term daughter, as used in the 0ct, is inclusive of both married and unmarried daughters, it is necessary to understand that the attempt to distinguish between a married and unmarried daughter might prove futile, with respect to defining the coparcenary. 0nother interesting problem while defining the coparcenary concern the inclusion or  excl exclus usio ion n of the the adopt adopted ed daug daught hter er is concer concerne ned. d. The The text text of the the 'ecti 'ection on C of the the Hind Hindu u 'uccession $0mendment% 0ct, ?EEB nowhere mentions any reference to an adopted daughter, but maintains the inclusion of only a daughter by birth, as a part of the coparcenary. Thus, for all  practical purposes, it is impossible to include the adopted daughter in the new definition of the coparcenary / a matter which needs to be re/examined. The crux of the problems problems lies in the confusion confusion which surrounds surrounds the phrase, phrase, -the daughter of a coparcener. It is clear from a reading of 'ection C that the daughter of the  propositus is most definitely a coparcener, entitled to a share in the coparcenary co parcenary property, p roperty, equal to that of her brother#s. However, it is necessary to understand that the applicability of this phrase is restricted to this interpretation alone. In other words, it is incorrect to include the daughter#s children as coparceners in their  mother#s family. The text of 'ection C clearly makes no mention of the daughter#s son, and hence, it may be safely assumed that he is to be excluded from his mother#s coparcenary. However, while there is ambiguity surrounding the position of the daughter#s daughter, it is impractical to suggest that the daughter of the daughter may be considered a member of her  mother#s coparcenary. 9n marriage the daughter ceases to be a member of her family of birth. Thus, she is a coparcener in her natal family, but no longer a member of it. Her daughter will receive receive a share in her father#s father#s coparcenary. coparcenary. If the daughter#s daughter#s daughter daughter is allowed allowed a share in the mother#s coparcenary, she would be the recipient of a double share that is, a share from each of  her parent#s coparcenary. Thus, Thus, the daughter#s daughter #s children cannot be made coparceners. This emphasises the unfair advantage attributable to the daughter#s children that stems from problems linked to membership of a family. In essence, the married daughter#s share in her  father#s coparcenary will only serve to help her husband#s family. Thus, there is a crucial

 problem surrounding the membership of a family, and the coparcenary itself. It is necessary to note that the system of the &itakshara coparcenary loses its meaning, as membership of oint family is no longer a pre/requisite. The amended 'ection C of the Hindu 'uccession 0ct, >DBC has made a daughter who is not a member of the family, a coparcener. The system of the coparcenary proves itself futile as no matter how the property passed onto the married daughter, it will only benefit the family of her marriage. In essence, it is perhaps time to reconsider the notion notion of the coparc coparcener ener,, and in effect effect re/loo re/look k the constit constituent uentss of the Hindu Hindu oint oint family family.. Howe Howeve ver, r, base based d on the the analy analysi siss of the the sour source cess ment mentio ione ned d above above it is sugg sugges este ted d that that the the &itakshara coparcenary shall now consist of &the common ancestor, the son, son's son, son' son'   son, the daughter o! common ancestor, son's daugh ter and son's son's son's son's daughter(. daughter(. The Hindu 'uccession $0mendment% 0ct presumes the married female#s continuance in the family of her   birth. This presumption is neither logical nor workable. Therefore, the 0ct must provide that a daugh daughte terr on marr marria iage ge ceas ceases es to be the the copar coparce cener ner in the the fami family ly of her her birt birth h 2 that that the the coparcenary interest of a daughter in the family of her birth would be determined at the time of  marriage. Her interest will be ascertained on the date of the marriage presuming that it was the date on which the severance of her status has affected and it must follow actual division of  coparcenary property $partition%2otherwise the 0ct will create more problems than it solves. The net result would be social and family feuds and tensions. Therefore, it is suggested that the aforesaid provision regarding continuance of a daughter as coparcener even after marriage be removed. 5urther, 5urther, it is submitted submitted that the Hindu 'uccession 'uccession $0mendment% $0mendment% 0ct makes discriminat discrimination ion between a daughter daughter born in the family family and a daughter daughter adopted in the family of  her adoption. Therefore, this anomaly must be removed by making an amendment in the existing 0ct to absorb adopted daughter in the family of her adoption as a coparcener as is done in the case of an adopted son. 5inally it is submitted that if there is a real desire to help the female in general and the Hindu female in particular in the light of the Hindu 'uccession $0mendment% 0ct, ?EEB, the provisions to make the wife a sharer in the property at the moment of her entry into the family of her marriage must be made. 'ince her entry in the family of her marriage is not temporary but is permanent for life, the female should be made a sharer in the property of the relations of her husband. 3here the husband is a sharer, she should be an equal sharer with her  husband. If the 8arliament is serious to improve financial position of Hindu female, the wife, who is the other half of her husband, it should make a law that should give her equal economic rights in the property of her husband and equal right of heirship with her husband in the property of relatives of her husband as she is the inseparable half of her husband. It will be in total conformity with the spirit of Hindu view of life as she is Sapinda )otra*a. )otra*a. 9n the analogy and ration rationale ale of  Dattaka, all her rights must cease in the family of her birth after marriage and consequent consequent replacement replacement must take place in the family of her marriage. marriage. 5urther, 5urther, every marriage marriage must be registered. If these provisions are made, divorce will become only an exception, and on divorce a Hindu female should be divested of all her properties which she had got by virtue of  her marriage.