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The Hindu Explains | Coparcenary property, Naga peace process, and UAE-Israel pact

The Hindu Explains | What is coparcenary property in Hindu law?

Does the Supreme Court of India ruling settle the issue of inheritance?

August 16, 2020 12:02 am | Updated 02:46 pm IST

The story so far: On August 11, the Supreme Court of India held that daughters, like sons, have an equal right to inherit ancestral property . The legislation that conferred coparcenary status on women dates back to 2005, when the Hindu Succession Act, 1956 was amended . The verdict answers the question whether the coparcenary right of daughters comes into effect only if the father — through whom the right is claimed — was alive on the day the amendment came into force. The top court ruled that a daughter’s right flows from her birth and not by any other factor.

What is coparcenary property in Hindu law?

A Hindu joint family consists of lineal descendants of a common ancestor. In other words, a male head and his descendants, including their wives and unmarried daughters. A coparcenary is a smaller unit of the family that jointly owns 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”.

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The English term itself is borrowed from common law, but the concept is found in Hindu law. In the Mitakshara school, which prevails in most parts of India, a male’s right to be a coparcener is by birth. But if a newborn male is the fifth lineal descendant — that is a great-great-grandson, while the common ancestor, his son, grandson and great-grandson are alive — the right to be included in the coparcenary will ripen only when the common ancestor dies. In other words, a coparcenary has succession up to four degrees of lineal descent. It is believed that this is based on the Hindu tenet that only males up to three degrees can offer spiritual ministration to ancestors. And only males can be coparceners.

What was the traditional position and how was it changed by codified law?

In Mitakshara law, on the death of a coparcener, his interest became merged with that of the surviving coparceners. Sons inherited property only by virtue of being or becoming coparceners. When the Hindu Succession Act, 1956, was enacted, this position was largely preserved by Section 6. It said 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. However, a proviso 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.

This meant that even the codified law did not address the conventional discrimination against women. Although 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.

What changes did the 2005 Amendment bring?

In its statement of objects and reasons for the amendment, the Union government said the recognition given in the 1956 Act to the rule of devolution by survivorship and its retention of the Mitakshara coparcenary property without including women in it meant that women could not inherit ancestral property in the same way as men. 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....”

Therefore, 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. The amendment came into force on September 9, 2005, 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.

What is the verdict’s significance?

As laws are generally deemed prospective, 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 — the coparcener through whom they will inherit the status — was also alive on that day.

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Many courts took the view that only a living coparcener’s daughter would get the benefit of the new law. It was argued that if a man had died before 2005, his interest would not have passed on to his daughter, as the amendment was yet to come into force. Allowing coparcenary status to such women would imply that the amendment had retrospective effect.

The Supreme Court in Prakash and Others vs. Phulavati (2015) ruled on these lines, holding 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. As another judgment took a different view, this was posted before a three-judge Bench headed by Justice Arun Mishra.

Tuesday’s 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 — a daughter has the same status as a son as soon as she is born. The significance of this verdict is that it has put an end to all doubts about when the amendment comes into force, and whether some women could be left out of it on the ground that it can only have prospective application.

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