The Concept of Coparcenary: The Past, Present and Future

SYMBIOSIS INTERNATIONAL UNIVERSITY, SCHOOL OF LAW, HYDERABAD PROJECT ASSIGNMENT ON TOPIC: The Concept of Coparcenary: Its past, present and Future in the Hindu concept of Joint Family COURSE TEACHER: Prof. Ambrina Khan SUBMITTED BY: NAME: LOKPAL.H ROLL NO: 15010324331 SEMESTER: 4 BBA LLB Section. D

TABLE OF CONTENTS Sl. No

Contents

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ACKNOWLEDGMEN T

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4 ABSTRACT

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RESEARCH METHODOLOGY

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RESEARCH QUESTIONS

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MODE OF CITATION

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HYPOTHESIS

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INTRODUCTION

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ANALYSIS

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CONCLUSION

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BIBLIOGRAPHY

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ACKNOWLEDGEMENT I would like to express my sincere gratitude and indebtedness to Prof. Ambrina Khan for her enlightening lectures on Family Law. I would also like to express my sincere gratitude to our teaching staff for guiding me the path towards gaining knowledge. I would also like to thank Symbiosis Law School, Hyderabad, library for the wealth of information therein. I would like to thank Library Staff as well for their co-operation.

Name – Lokpal. Hangal Roll No: 15010324331 Division- D

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ABSTRACT The concept of Coparcenary has its origin in the concept of Daya explained by Vijnaneshwara. It is discussed that Daya is a kind of property which becomes the property of another person only if he/she is related to the owner. This unique concept is the product of an ancient Hindu school of jurisprudence known as Mitakshara School of Hindu law. The essence of coparcenary is unity of ownership. No coparcenary can commence without a male ancestor,

after the death the coparcenary may consist of brothers, uncles and nephews. The concept of coparcenary is a clear concept of law and cannot be created by a contract. An adopted son can be introduced as a member of the coparcenary. Coparcenary is “unity of title”. The concept of coparcenary is much narrow than the Hindu joint family. It includes those people who have the right and interest over the coparcenary property by birth. The concept of coparcenary was first introduced in ancient India and over the years as the circumstances changed the Hindu Succession Act of 1956 was bought in which was amended in 2005. The important part of this amendment was, allowing daughter of the deceased get equal right over the ancestral property.

SCOPE AND OBJECTIVE OF THE STUDY The object of the study is to analyze the inception and evolution of the concept of coparcenary in the Hindu law. This study will also look into the gender discrimination and condition before the implementation of the Hindu Succession Act of 2005.

RESEARCH METHODOLOGY The methodology adopted is largely analytical and descriptive. Reliance has been placed largely on secondary sources like books and articles. The lectures and classroom discussion have been rich with valuable and gave direction to the research. pointers

RESEARCH QUESTIONS 1. Analysis of past, present and future of the concept of coparcenary. 2. Does the 2005 amendment give the women a fair chance to inherit the coparcenary property.

MODE OF CITATION A uniform system of citation is followed throughout in the contents. 4

HYPOTHESIS This project is an attempt to analyze the concept of coparcenary, from the historical concept to the future. Currently the succession of the property under Hindu law is governed by the Hindu Succession Act, 2005. This project concentrates on the evolution of the concept of coparcenary in Hindu law in relation to the Hindu Succession Act before and after the 2005 amendment.

INTRODUCTION Hindu coparcenary consists only of those people have acquired the interest in the property by birth, they being the sons, grandsons, and great-grandsons of the holders of the property for the time being. The Black’s law dictionary gives a more comprehensive explanation of the term coparcenary. It says, “such estate arises where several takes by descent from same ancestor as one heir, all coparceners constituting but one heir and having but one estate and being connected by unity of interest and of title. A species of estate, or tenancy, which exists where lands of inheritance descend from the ancestor to two or more persons. It arose in England either by common law or particular custom. By common law, as where a person, seized in fee- simple or fee-tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case, they all inherit, and these coheirs, are then called “coparceners”, or, for brevity “parceners” only1. THE TWO SCHOOLS OF LAW There are uniform laws for all the Hindus in the society and it leaves no scope for the existence of the two schools of Hindu law. The importance of these digests lies only in the areas where there are no defined and codified law. 1. Mitakshara School This school got its name from Vijnanaeshwara’s commentary on the Yajnavalkya smriti by the name of ‘Mitakshara. The Mitakshara school follows the laws of inheritance based on the Principal of Propinquity which means nearness to the blood relationship but this was not given full importance until the Hindu Succession Act of 1956 came into existence. Another such principle from the school of Mitakshara is the Doctrine of Survivorship, according to this doctrine the property of the dead ancestor belongs to the survivor and only the sons of the family have the right over the property by virtue of two rules.  Females will not inherit the property.  Agnates will be preferred over the Cognates. 2. Daybhaga School The Dayabhaga school is considered to an un-orthodox school of law. It originated in Jimutavahana’s digest on leading Smritis by the name of Dayabhaga. This School is prevalent in Assam and Bengal. This school is mainly based on the Doctrine of Oblations which says, the females of the family may also inherit the property. The sons do not have the birth right to inherit the property. In case the coparcener has died without any heir then the widow has the right to inherit his part of the share2. 11 Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p. 335last visited 1/3/2017 22 Ram Dulari v. Batul Bibi (AIR 1976 All 135) 5

ANALYSIS 

Analysis of past, present and future of the concept of coparcenary. The concept of coparcenary in Hindu law originated in the concept of Daya which was explained by Vijnaneshwara in his comments on Yajnavalkyasmriti. Vijnaneshwara discussed 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. According to Narada, only the sons divide father’s property. Therefore, the concept of coparcenary is the product of ancient Hindu jurisprudence which later became the most essential feature of the Hindu law. Prior to Enactment of Hindu Succession Act (1956), all the property laws have been in favor of the men and the women have been ignored completely and women have been treated as they are dependent on the males for support. The right to property is very important for the development of human being. Prior to the Act of 1956, Customary laws prevailed which varied from region to region and sometimes it varied on the bases of caste in the same religion. As we live in a vast and diverse country where people of different caste and religions stay which made the legal approach extremely difficult. But however, the social reform movement during the pre-independence period number of steps were initiated to change the social and economic conditions and weather the succession of property should be equally distributed between male and females, however it never happened. Hindu Law of Inheritance Act, 1929 This was the first piece of legislation which bought women into the concept of inheritance. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister. Hindu Women’s Right to Property Act, 1937 This was the landmark legislation which conferred ownership rights to the women, this Act made a huge impact for the women not only in the concept of coparcenary but also in the law of partition, inheritance and adoption. This Act enabled the widows succeed along with the son and have her equal share. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had no inheritance rights. Despite these important enactments in the law of concession there were still loopholes which discriminated the position of Hindu women. Over the years the circumstances changed and the Hindu Succession of 1956 was amended in 2005. The amendment bought change in Section 6 of Hindu Succession Act allowing daughter of deceased equal rights with the sons. The amendment essentially furthers equal rights between males and females in the legal system. The most significant change was making all daughters coparceners in the joint family was a very important step for women both economically and symbolically. Under the amendment the daughters will now have equal shares during the time of the partition. However, the position of the mother stayed the same when it came to the coparcenary as she is not the member of the coparcenary. It has a condition that the 2005 amendment will have no application in cases where any partition has taken place before 20/12/2004. 6

Hindu Law has come a long way and it has amended to fit in situations but there are still some loopholes which still persist in the Hindu Succession Act. If a Hindu female dies intestate her property goes to her husband’s heirs and then to mother’s heirs, this shows that the Hindu female property is confined within the husband’s family. The law on paper shows equal rights to female and male of the Hindu family but in the end, it puts the male on a higher footing than the female. Making daughter coparceners will decrease the shares of females in Class 1, such as the deceased’s widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In Shyama Devi v. Manju Shukla 3 it was held that the amendment of 2005 is an attempt to eradicate the discrimination from the Hindu Succession Act by giving equal rights to the daughter in the coparcenary property as the sons have. In Section 23 of the Act where the women did not have the right to ask for partition until a male heir choose to do so, has been amended by the 2005 Act. As a result, all the disabilities and the injustice the females used to face has been removed.

  Does the 2005 amendment give the women a fair chance to inherit the coparcenary property. Prior to the 2005 amendment, Hindu women had negligible rights in inheriting the coparcener property. The Hindu Succession Act of 1956 did not confer many rights to the daughter to ancestral property of her father. The Hindu Inheritance Act of 1929 conferred the right to inherit only on three female heirs which is son’s daughter, daughter’s daughter and the sister. The framers of the Indian Constitution kept in mind the condition of the women in our society and formulated number of provision which are supposed to safeguard the interest of the women and curd gender inequality. In Article 144 and 15(3)5 the Constitution ensures equality between man and woman in every sphere of the society. In Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case) 6, the question was whether a widow can make a valid adoption without her husband’s consent but her sapinda’s consent. The Privy Council looked into various Hindu schools and held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absence of authority from the husband, a widow may adopt a son with the assent of his kindred. But after the 2005, the daughter including married ones are the coparceners in the joint family. Women can become kartas of the property, this shows that daughters and the sons are equal members of the family. It quashes the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families. The 2005 amendment does not give totally give a fair chance 33 (1994) 6 SCC 342 44 Article 14 in The Constitution of India: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 55 Article 15(3) in The Constitution of India: Nothing in this article shall prevent the State from making any special provision for women and children 66 (1940) 1 MLJ 400 7

for the Hindu women for example, if a Hindu female dies intestate her property goes to her husband’s heirs and then to mother’s heirs, this shows that the Hindu female property is confined within the husband’s family.

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CONCLUSION The concept of coparcenary in the joint Hindu family has come a long way and has gone many changes. There were many legislation before our independence regarding the succession of the property and prior to the 2005 amendment the women did not have commendable right when it came to succession, the real change was bought in when the Hindu Succession Act was amended in 2005. This amendment changed to Act in a great deal by giving equal rights to women and men. The women can now become the coparceners. We need to understand that equality is not just a phenomena and discrimination cannot be tolerated for the sake of age old traditions. There is a dire need to educate the people about gender equality and we have focus on enacting a uniform law which favors equality. We have amended the Act but the implementation remains a question. Large scale legal campaigns must be held to spread social awareness regarding women’s rights and provide free legal and social aid for the people whose rights have been violated.

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BIBLIOGRAPHY WEBSITES

 http://www.mondaq.com/india/x/441252/wills+intestacy+estate+planning/SUPREME+ COURT+CLEARS+THE+AIR+ON+DAUGHTERS+RIGHT+IN last visited 2/3/2017  https://www.lawteacher.net/free-law-essays/equity-law/co-parcenary-the-system-lawessays.php last visited 2/3/2017  https://www.google.co.in/url? sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&uact=8&ved=0ahUKEwiFxN HE_LXSAhUJbrwKHcfPCpkQFghPMAg&url=http%3A%2F %2Fwww.helplinelaw.com%2Frecent-judgments%2FROHW%2Fright-of-hinduwomen-in-undividedproperty.html&usg=AFQjCNHHqsbo4xxM4GkBB0QVNP2xGkcI7Q&sig2=TGJPw5 nAQtc3gf7YImtwlQ last visited 2/3/2017  https://www.google.co.in/url? sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0ahUKEwiFxN HE_LXSAhUJbrwKHcfPCpkQFghUMAk&url=https%3A%2F%2Fblog.ipleaders.in %2Fcan-daughters-become-coparceners-in-a-joint-hindu-family-under-law %2F&usg=AFQjCNG9qdulMwGt_wIEucK1aNeevbJ-Yw&sig2=9jGauoORQGOn3iRADH8SQ last visited 2/3/2017 BOOKS

 Family Law in India, Prof. G.C.V. Subba Rao

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