By Deepali Kumar, Guru Gobind Singh Indraprastha University, Delhi
“Editor’s Note: India has been a patriarchal society where women have been unfairly discriminated against. This was reflected in laws like the Hindu Succession Act, 1956, which did not give women a birth right in the joint family property under Mitakshara coparcenary. The Hindu Succession Act was amended in 2005 with a view to re-affirm the equality granted to women under Article 14 of the Constitution. The amendment provided daughters equal rights in coparcenary property on birth, at par with sons. After the amendment, daughters have the same rights and liabilities as sons. In case of a notional partition, daughters have been given equal rights. Giving women rights in coparcenary property has made them secure economically and has provided them stability. Symbolically also, women have been treated equal to the men.”
Coparcenary refers to equal inheritance that was restricted only to male members of the Hindu Undivided Family. It is a narrow body of persons within a joint family. Coparceners jointly inherit property and have unity of possession. Coparcenary means ‘A species of estate, or tenancy, which exists where, land of inheritance descent from the common ancestor to two or person.’ [i] According to Merriam Webster Dictionary coparcenary means ‘Joint Heirship’ or ‘Joint Ownership.’ [ii]
Coparcenary is purely a creation of law that 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. [iii]
The Hindu Succession Act 1956 is one of the living examples of the fact that laws are patriarchal in nature. It gave women equal inheritance rights, at par with men. But the daughters were not given a birth right in the ancestral property under Mitakshara coparcenary.
Incidents of Coparcenary Property under Hindu Law
- Four generation rule – The lineal male descendants of a person, up to third generation (excluding him), acquire on birth, an interest in the coparcenary property.
- Creation of law- Coparcenary is also a creation of law and cannot be formed by an agreement between the parties.
- Only males – No stranger can be introduced in the coparcenary. Only a male child, born in the family or validly adopted, can become a coparcener.
- Collective enjoyment – The proceeds of undivided family must be brought to the common chest or purse and then dealt with according to the modes of enjoyment by the members as an undivided family till a partition takes place because they hold everything jointly. [iv]
- Acquisition of interest by birth – A coparcener in a joint family is born with an interest in the coparcenary property which means that the moment he is born in the family he gets a right by birth in the ownership of the coparcenary property.
- Fluctuating and not a specific interest – A coparcener on birth gets an interest in the coparcenary property. His interest in the property is not a specific share and is subject to fluctuation with the deaths and births of other coparceners in the family. For example, a joint family comprises a father and two sons. Each of these is a coparcener and entitled to one- third share in the coparcenary property but on the death of any one coparcener, it will fluctuate and will increase.
- Doctrine of Survivorship – Under the traditional law, on the death of a coparcener, his interest in the family property is immediately taken by those coparceners who survive him and thus he leaves nothing behind out of his interest in the coparcenary property for his female dependents.[v] This phenomenon is called doctrine of survivorship.
- Alienation of undivided interests – Generally, a coparcener is individually not entitled to alienate his undivided interest in the coparcenary property. Only in certain situations the father or senior most male member or the karta can alienate the undivided interest or even the whole property.
Coparcenary under Schools of Hindu Law
In a patrilineal system like the Mitakshara School and Dayabhaga School of Hindu law, a woman was not given a birth right in the family property like a son. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. A son, grandson and a great-grandson form a class of coparceners-based on birth in the family No female is a member of the coparcenary in Mitakshara law. Under this system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. [vi]
According to the Dayabhaga School, the son does not acquire an interest by birth in ancestral property. His right arises only on the death of his father. On the death of the father he takes such property as is left by him whether separate or ancestral, as heir and not by survivorship.
Equality under the Constitution of India
The framers of the Indian Constitution took note of the adverse and hidebound place of women in society and displayed unique concern to make sure that the State took positive steps to give them equal status. Articles 14, 15 and 16 of the Constitution not only deter discrimination against women, but also in appropriate circumstances provide a free hand to the State to deliver protective discrimination in favour of women.
Hindu Succession (Amendment) Act, 2005
The Hindu Succession Amendment Act, 2005 was enacted to enlarge the rights of a daughter- both married and unmarried and to bring her at par with a male member of a joint Hindu family governed by the Mitakshara law. It also sought to bring the female line of descent at an equal level with the male line of descent, including children of pre-deceased daughter of pre-deceased daughter.
By this amendment, the daughter is a coparcener in her own right and has the same rights and liabilities in the coparcenary property as the son. This means a daughter along with a son is liable for debts of joint family. The daughter is also entitled to dispose of her share of the coparcenary property thereof by way of a will. [vii]
The basic concept of coparcenary is that only male members of a joint Hindu family can constitute a coparcenary, completely excluding the female members of the family, This concept has not been substantially modified with the amendment of Section 6 of the Act. This is because although the daughter has been included as a coparcener by way of this amendment the wife, mother and widow still cannot be admitted to the coparcenary .[viii]
The courts have played a vital role in making this amendment effective by interpreting it liberally and bringing in the concept of notional partition, without it being expressly mentioned in the amended section. In Gurupad vs. Hirbai,[ix] Supreme Court observed that ignoring a woman’s right to get a share at the time of notional partition essentially means that: ‘One unwittingly permits one’s imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff’s husband and his sons. The fiction created by Explanation I[x] has to be given its full and due effect.’
In M. Yogendra and Ors. vs. Leelamma N. and Ors.[xi], the Supreme Court held that ‘The Act indisputably would prevail over the Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005.
Further in G. Sekar vs. Geetha and Ors[xii]., the Supreme Court held that: ‘It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only by Section 6 of the Act but also by conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act.’
Women as absolute owners of property
This finds specific mention under Section 14 of the Hindu Succession Act 1956.
Section 14 reads Property of a female Hindu to be her absolute property:
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: – In this sub-section “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhan immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
A plain reading of the section 14 reveals that female Hindu is conferred the absolute right to her property. In Komalam Amma vs. Kumara Pillai Raghavan Pillai and Ors,[xiii] the Supreme Court has laid down that ‘Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title that is deemed sufficient to attract Section 14(1).
In G. Sekar vs. Geetha and Ors,[xiv] it was held that- ‘The Act brought about revolutionary changes in the old Hindu Law. It was enacted to amend and codify the law relating to intestate succession amongst Hindus. By reason of the Act, all female heirs were conferred equal right in the matter of succession and inheritance with that of the male heir. By way of Section 14, a woman who had limited interest in the property but was possessed of the same was to become absolute owner.’
Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. Section 23 did not allow married daughters (unless separated, deserted or widowed) even residence rights in the parental home. Unmarried daughters had residence rights but could not demand partition. The omission gives all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house.
The Act also deleted Section 24, which barred certain widows, such as those of predeceased sons, from inheriting the deceased’s property if they had remarried. Now they can so inherit.
The significant change- making all daughters (including married ones) coparceners in joint family property- is also of great importance for women, both economically and symbolically. Economically, it can enhance women’s security, by giving them birthrights in property that cannot be willed away by men. In a male-dominated society, where wills often disinherit women, this is a substantial gain. Symbolically, all this signals that daughters and sons are equal members of the family. It undermines the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can return to her birth home by right. This enhances her self-confidence and social worth and gives her greater bargaining power for herself and her children, in both parental and marital families.
Main provisions of the Hindu Succession (Amendment) Act, 2005
- In a Hindu Joint Family governed by Mitakshara law, the daughter by birth shall become a coparcener in her own right in the same manner as a son.
- She would have the same rights in the coparcenary property as that of a son.
- She shall be subject to same liabilities in respect of the said coparcenary property as that of a son.
- Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter as a coparcener.
- Any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 shall not be affected or invalidated by reason of the amendment of Section 6 of the Act.
- Any property to which a female Hindu becomes entitled shall be held by her with the incidents of coparcenary ownership and cannot be disposed of by her by testamentary disposition.
- In case of notional partition:
- The daughter is allotted the same share as is allotted to a son;
- The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
- The share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be.
- The interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
- After the commencement of the Amendment Act, there shall be no obligation on the son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law.
These amendments can empower women- both economically and socially and have far-reaching benefits for the family and society. Independent access to property can reduce a woman and her family’s risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health.
Women owning land or a house also face less risk of spousal violence. Any land in women’s names can increase productivity by improving credit and input access for numerous de facto female household heads. It is clear that amendment to the Hindu Succession Act has made the daughter a member of the coparcenary. These are significant advancements towards gender equality.
Making all daughters coparceners likewise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women – as widows and daughters – and their families.
Edited by Kudrat Agrawal
[iii] P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro vs. Ganesh, 10 Bm. HCR, p. 444, 461-468.
[iv]Appovier alias Seetaramier vs. Rama Subba Aiyan, 1866 11 MIA 75.
[v] State Bank of India v. Ghamandi Ram, AIR1969 SC 1330.
[vi] Dr. Poonam Pradhan Saxena, Lexis Nexis Student Series Family Law II, 3rd ed. 2012, pg. 77.
[vii] Hindu Succession Amendment Act, 2005
[viii] Section 6, Hindu Succession Act, 1956.
[ix] AIR 1978 SC 1239.
[x] The interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
[xi] 2010 (1)ALL MR (SC) 490.
[xii] AIR 2009 SC2 649.
[xiv] SLP (Civil) No. 9221 of 2007.