“The Concept of Coparcener : Its Past, Present and Future in the Hindu Joint Family”
Introduction:
“Coparcenary is a term that is used in Hindu Succession Law. It refers to a person who is born with the capacity to assume a legal claim in his ancestral property. Coparceners refer to the distribution of property between co-owners or joint owners or parties of inheritance in a Hindu Joint Family. They are the individuals who have a birth right to parental property as well as the right to partition. A coparcenary with a common ancestor has up to four degrees of lineal descent.”
It is based on the Hindu Undivided Family philosophy and practice (HUF). The provisions of the Hindu Succession Act, 1956, address the concept of coparcenary. This concept arose from ancient Hindu jurisprudence and has since become a key part of Hindu law.
Schools Of Law: “
There were previously two schools of thought for administering and regulating Hindu laws:
Mitakshara School:
This school was named after Vijnanaeshwara's commentary on the Yajnavalkya smriti, 'Mitakshara.'
It is a community interest in which everyone has an equal interest in the property. And, in the event of a person's death, property can be shared among all sons, even grandsons. It is not required that property be distributed following the death of a person; this is decided by the community. When the successor dies, the property is not shared between the wife and unmarried daughter in this school. The family's Karta must give a comprehensive report. Mitakshara school inherits just Apratibandhaya or uncluttered property.”
Dayabhaga School: “
It is one of the Hindu Law schools in which sons get an absolute share after the father. However, the other lineal sons are not eligible for a share. They will inherit the property at the death of their father. If a member of the successor dies, his wife and unmarried daughter can inherit the property known as succession per stripe, according to this school of thought. Karta only presents full account when the property is partitioned. Dayabhaga school can inherit both Apratibandhaya and Sapratibandhaya property.”
Past, Present and Future Analysis: “
In Hindu law, the concept of coparcenary arose from the concept of Daya, as articulated by Vijnaneshwara in his remarks on Yajnavalkyasmriti. Vijnaneshwara explained that Daya is merely that property that becomes the property of another person solely because of the owner's relationship. The terms exclude any other factor, such as buying, merely because of their relationship.”
Only the sons, according to Narada, divide the father's possessions. As a result, the concept of coparcenary is a product of ancient Hindu jurisprudence, and it later became the most important characteristic of Hindu law. “
Prior to the enactment of the Hindu Succession Act (1956), all property rules favoured men, while women were virtually neglected, and women were considered as if they were reliant on men for support. The right to property is extremely crucial for human growth.
Prior to the Act of 1956, Customary laws persisted, which differed from region to region and occasionally within the same religion on the basis of caste. We live in a huge and diverse country with people of all castes and religions, making the legal approach incredibly complicated. However, throughout the pre-independence period, a number of attempts were taken to modify the social and economic conditions and whether property succession should be equally split between male and females, but this never happened.”
Hindu Law of Inheritance Act, 1929: “?
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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 that granted women ownership rights. This Act had a significant impact on women not only in the notion of coparcenary but also in the law of partition, inheritance, and adoption. This Act allowed widows to succeed alongside their sons and receive an equal share of the estate. The widow was only entitled to a small estate in the deceased's property, with the ability to partition. A daughter was not entitled to inherit anything.” “
The modification brought about a change in Section 6 of the Hindu Succession Act, granting the deceased's daughter equal rights with the sons. The amendment fundamentally advances equal rights for men and women in the judicial 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 mother's standing remained unchanged when it came to the coparcenary because she is not a member of the coparcenary. It stipulates that the 2005 amendment will not apply in circumstances where partition occurred prior to December 20, 2004.
The 2005 Act altered Section 23 of the Act, which stated that women did not have the right to apply for partition unless a male heir chose to do so. As a result, all of the disadvantages and injustices that women used to endure have been eliminated.
Prior to the 2005 legislation, Hindu women had virtually no rights to inherit the coparcener property.
The Constitution guarantees equality between men and women in all aspects of society under Articles 144 and 15(3).” “
The question in Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case) was whether a widow could make a lawful adoption without her husband's approval but with the consent of her sapinda. The Privy Council investigated numerous Hindu schools and concluded that Hindu law should be administered based on clear evidence of usage that outweighs the written language of law. Based on Smriti Chandrika and Prasara Madhviya, the Privy Council determined that in the Dravida School, a widow may adopt a son with the consent of his kindred in the lack of authority from the husband. However, with the 2005 amendment, the daughter, including married children, is the coparcener in the joint family.” “
Women can become property kartas, demonstrating that daughters and sons are equal members of the family. It disproves the concept that a daughter belongs entirely to her husband's family after marriage. If her marriage fails, she can now return to her natal home on her own terms, rather than at the expense of family. This will boost her self-esteem and social worth, as well as provide her more bargaining power for herself and her children in both parental and married homes.”
Conclusion: “
Coparcenary in the Joint Hindu family has come a long way and undergone numerous adjustments. There were various legislations prior to our independence governing property succession, and prior to the 2005 amendment, women did not have commendable rights when it came to succession; nevertheless, the major shift was brought in when the Hindu Succession Act was revised in 2005. This amendment significantly altered the Act by granting equal rights to men and women. Women can now serve as coparceners. We must recognise that equality is more than a passing trend, and that discrimination cannot be accepted for the sake of centuries-old customs.”
There is an urgent need to educate people about gender equality, and we are working hard to pass a consistent law that promotes equality. The Act has been revised, but its implementation is still uncertain. Large-scale legal campaigns are needed to raise public awareness about women's rights and to provide free legal and social services to those whose rights have been infringed.
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