Changes Introduced In The Classical Concept Of Coparcenary

By The Hindu Succession Act, 1956

A final research proposal submitted in partial fulfilment of the course

Family law II, Semester — III during the Academic Year 2017 — 18.

Submitted by
Yash agrawal, 1663
BBA.LLB

Submitted to Dr. Pooja Srivastava

September , 2017

Chanakya National Law

University Nyaya Nagar,
 Mithapur
800001, Patna

1. ACKNOWLEDGEMENT
I am very thankful to everyone who has supported me, for I have completed my project
effectively and moreover on time. I am equally grateful to Dr. Pooja Srivastava. He gave me
moral support and guided me in different matters regarding this topic. He has been very kind
and patient while suggesting me the outlines of this project and correcting my doubts I thank
him for his overall support.
Last but not the least, I would like to thank everyone who helped me in gathering different
information, collecting data and guiding me. I also thank my friends who were there with their
suggestions and comments for my project.

Yash Agrawal

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 2. Table of Contents
1. Acknowledgement ............................................................................................................. 2
3. Research mehodology ........................................................................................................ 4
1.1 Objective of study ....................................................................................................... 4
1. Introduction ........................................................................................................................ 6
2. The two school of laws: ..................................................................................................... 7
2.1 Hindu Coparcenary and Hindu Joint Family: ............................................................. 9
3. The Past of coparcenary: before the commencement of the act ...................................... 10
4. The present of coparcenary in india : ............................................................................... 13
3.1 Anomalies in the act: ................................................................................................. 16
4. Conclusion ....................................................................................................................... 17
5. Bibliography .................................................................................................................... 18
● www.vakilno1.com ......................................................................................................... 18

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 3. RESEARCH MEHODOLOGY
Method of Research

The researcher has adopted doctrinal method of research. The researcher has made extensive
use of the library at the Chanakya National Law University and also the internet sources.

1.1OBJECTIVE OF STUDY
1. To understand the basic concepts of Coparcenary.
2. To trace development of in Coparcenary under Hindu succession act 1956 and
amendment of 2005.
3. To analyze the applicability of “Coparcenary” under Hindu succession act, 1956.

Scope of Studies:

The project deals with Coparcenary under Hindu succession act 1956 and amendment of 2005.
It informs the readers about feature, essential and procedure of Coparcenary under Hindu
succession act 1956 and amendment of 2005. It also deals about the challenges which
administration of justice faces.

Source of data
The following are primary source of data:-
1. Legislative provision
2. Cases
The following are secondary source of data:-
1. Books
2. Website
3. Newspapers

Method of Writing:-

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:-

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The researcher has followed a uniform mode of citation throughout the course of this research
paper.

Hypothesis
The researcher assumes that the provision of Coparcenary under Hindu succession act 1956
and amendment of 2005 was the need of the hour. And it has provided proper rights to the
women.

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 1. INTRODUCTION
Coparcenary owes its origin to the concept of Daya i.e. property which has been explained by
Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga prakranam
vayavahara adhaya. Here, it was discussed by the Vijnaneshwara 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.

Narada also approves the meaning of the Daya which is a coparcenary property because
according to him, sons can divide only father’s property which has been approved by the
learned.

Therefore, the unique concept of coparcenary is the product of ancient Hindu jurisprudence
which later on became the essential feature of Hindu law in general and Mitakshara School of
Hindu law in particular.

The essence of coparcenary is unity of ownership with the necessary appendage of unity of
possession. No coparcenary can commence without a common male ancestor, though after his
death it may consist of collaterals such as brothers, uncles, cousins nephews etc. It is a purely
a feature of law and cannot be created by a contract. However, an adopted son may be
introduced as a member of the coparcenary. Once the common ancestor dies, the coparcenary
of the brothers can be created.1

1
Hindu Law, AN Sen, Sri Sai Law Publications, 2008 ed.

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 2. THE TWO SCHOOL OF LAWS:

The codified Hindu law lays down uniform laws for all the Hindus in the society. It leaves no
scope for the existence of two schools of Hindu Law in the codified laws. Their relevance lies
only in those areas in which there is no defined and codified law. It was in the era of digests
and commentaries that these schools originated in.

 Mitakshara School
 Dayabhaga School

1. Mithakshara School: This school owes its name to Vijnanaeshwara’s commentary on he

Yajnavalkya smriti by the name of ‘Mitakshara.’ This school prevails in the whole of India
except Assam and Bengal.2 This inspite of being a running commentary is also a digest of
practically all the leading Smritis and the deals with all the titles of Hindu law. The date of
composition is placed by Kane from A.D. 1100-1200. The word Mitakshara literally means a
‘brief compendium’.

The mitakshara School follows the law of inheritance based on the Principle of Propinquity i.e.
on the nearness of blood relationship. However, full effect to this was not given. The Hindu
Succession Act 1956 has given full effect to the same principle.

Doctrine of survivorship: the property after the death of the common ancestor devolves by the
survivor. The sons of the family have a birth right in the property by virtue of the following
two rules:

 Females will not inherit.

 Agnates to be preferred over cognates.

There are four Sub-Schools under the Mitakshara School:

Dravidian School of thought (Madras school): It exists in South India. In the case of
adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary
for a valid adoption. (‘Sapindas’ – blood relation)

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case)3: The zaminder of
Ramnad died any without sons and usually, such state would have escheated to the
Government, his widow however adopted a son, with the consent of the sapindas of her
husband.

2
Rohan v. Lachuman, 1976 Pat, 286
3
(1940) 1 MLJ 400

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But on the death of the widow, the Collector of Madhura notified that the Zamindari would
escheat to the State. The adopted son brought a suit for declaration of the validity of the
adoption. The question was that whether a widow can make a valid adoption without her
husband’s consent but his sapinda’s consent.

The Privy Council, after tracing the evolution of the various Schools of Hindu law, 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 absense of authority from the husband, a widow may adopt
a son with the assent of his kindred.

Maharastra school (bombay school of thought): It exists in Bombay, from the above four
bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The
Bombay school has got an entire work of religious and Civil laws.

Banaras school of thought: It exists in Orissa and Bihar.

Mithila school of thought: It exists in Uttar Pradesh near the Jamuna river areas. Apart from
the above schools, there are four more schools which are now existent today. They are
Vyavakara, Mayukha Nimaya and Sindhu Schools.

2. Dayabhaga School: this school is considered to be the dissident school of the Benaras
School. Benaras- has been the seal of the Brahmana learning and the citadel of Brahmin
orthodoxy and conservatism. The Bengal school propagated a number of enlightened theories
and doctrines. This school owes its origin to Jimutavahana’s digest on leading Smritis by the
name of Dayabhaga. This School is prevalent in Assam and Bengal.4 Kane places the date of
composition of Jimutvahana’s literary career from 1090-1130 A.D.5

This school is based on the principle of religious efficacy or spiritual benefit. The ones who
confer more spiritual benefit is entitled to inherit the property in comparison to those who
confer less spiritual benefit6 based on the Doctrine of Oblations. The females in the family may
also inherit the property. According to this School, the sons do not have a birth right to the
property. In the event of the coparcener dying issuless, his widow has a right to succeed to his
share and to enforce a partition on her own account.7

4
Supra note 2
5
Kane, (2nd ed.) at 609 and 709
6
Lexis nexis student series, family law lectures, second ed. 2007, lexis nexis butterworth wadhwa, poonam
pradhan saxena, pg.49
7
Ram Dulari v. Batul Bibi AIR 1976 All 135

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The difference between the Mitakshara School and the Dayabhage School is:

 In respect of law of succession.

 In respect of joint family.
 Concept of Coparcenary:

2.1HINDU COPARCENARY AND HINDU JOINT FAMILY:

Coparcenary is “unity of title, possession and interest”. Hindu Coparcenary is a much narrower
body than a Hindu joint 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.

Coparecenary: The Black’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 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” only. By particular custom, as where lands descend,
as in gavelkind, to all the mates in equal degree, as sons, brothers, uncles etc…An estate which
several persons hold as one heir, whether male or female. This estate has the three unities of
time, title and possession; but the interests of the coparceners may be unequal.”8

The Dharamasastra and coparcenary: In Dharmasastra coparceners are referred to as Sahadaee.

The term coparceners came to be used as a result of influence of Western Jurisprudence.
Therefore, the present concept is not very difficult from the earlier one. The justification of
coparcenary according to the Dayabhaga School is that those who can offer funeral oblations
(Pindh-daan) are entitled to the property. The concept 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 coparcenary is purely a creation of law; 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

8
Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p. 335

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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.9

Hindu Law of Succession: any part of the Hindu law which is yet uncodified is governed by
the two Schools i.e. the Mitakshara and the Dayabhaga. According to the Mitakshara School,
there is unity of ownership – no person has a definite share as his interest is always fluctuating
with the births and deaths in the family. The whole body of coparceners is the owner. There is
unity of possession and enjoyment. Further, while the family is joint and some coparceners
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 expenditure. Katyayana expressly states that the joint family
property devolves by survivorship that is on the death of a coparcener his interest lapses and
goes to the other coparceners.

The difference between Mitakshara and Dayabhaga School’s conception of coparcenary: The
conception of coparcenary under the Dayabhaga School is entirely different from that of the
Mitakshara School. Under the Dayabhaga School, 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
English law. Thus, in the case of death of a member of coparcenary under the Mitakshara law,
his interest devolves on the other members by survivorship while under English law, if one of
the co-heirs jointly inheriting properties dies, his or her right goes to his or her legal heirs.

3. THE PAST OF COPARCENARY: BEFORE THE COMMENCEMENT OF THE ACT

In Hindu social system, Dharmasastras do not separate the spiritual from the secular, therefore,
in the grasthasrama a person is given the training to lead a complete and 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 important institutions because all other institutions like brahmacharya,

9
P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro v. Ganesh, 10 Bm. HCR, p. 444
where Mr. Justice Nanbhai Haridas very lucidly explains by several diagrams the limits of a coparcenary and

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vanaprastha and sanyasha depend on it. Hence, the importance of the family is advocated in
the Dharmasastras.

Origin of coparcenary: The coparcenary as understood in Hindu law has its origin in the
concept of Daya as explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in
the Daya vibhaga prakranam vayavahara adhaya. Here, 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
or the like.

Narada also approves the meaning of the Daya which is a coparcenary property because
according to him, sons can divide only father’s property which has been approved by the
learned (Svatvanimitasambandhopalashanam).

Therefore, the unique concept of coparcenary is the product of ancient Hindu jurisprudence
which later on became the essential feature of Hindu law in general and Mitakshara School of
Hindu law in particular.10

Position Of Women (In Regards To Property Rights) Prior To Enactment Of Hindu

Succession Act, 1956-
Since time immemorial the framing of all property laws have been exclusively for the benefit
of man and woman has been treated as subservient, and dependent on male support. The right
to property is important for the freedom and development of a human being. Prior to the Act
of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus
and sometimes it varied in the same region on a caste basis. As the country is vast and
communications and social interactions in the past were difficult, it led to diversity in the law.
Consequently in matters of succession also, there were different schools, like Dayabhaga in
Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and
arumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight
variations. The multiplicity of succession laws in India, diverse in their nature, owing to their
varied origin made the property laws even mere complex.

Issue of gender discrimination:

But, however the social reform movement during the pre-independence period raised the issue
of gender discrimination and a number of ameliorative steps were initiated. The principal
reform that was called for, and one which became a pressing necessity in view of changed
social and economic conditions, was that in succession there should be equitable distribution
between male and female heirs and the Hindu women’s limited estate should be enlarged into
full ownership (however that actually never happened).

Prior to Hindu Law of Inheritance Act, 1929-

Prior to this Act, the Mitakshara law also recognizes inheritance by succession but only to the
property separately owned by an individual, male or female. Females are included as heirs to

10
4 NLR 2008-2009; Pg 124

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this kind of property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the
Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations
as being entitled to inherit namely – widow, daughter, mother paternal grandmother, and
paternal great-grand mother . The Madras sub-school recognized the heritable capacity of a
larger number of female’s heirs that is of the son’s daughter, daughter’s daughter and the sister,
as heirs who are expressly named as heirs in Hindu Law of Inheritance Act, 1929.The son’s
daughter and the daughter’s daughter ranked as bandhus in Bombay and Madras. The Bombay
school which is most liberal to women, recognized a number of other female heirs including a
half sister, father’s sister and women married into the family such as stepmother, son’s widow,
brother’s widow and also many other females classified as bandhus

Hindu Law of Inheritance Act, 1929-

This was the earliest piece of legislation, bringing woman into the scheme 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 (XVIII of), 1937-

This was the landmark legislation conferring ownership rights on women. This Act brought
about revolutionary changes in the Hindu Law of all schools, and brought changes not only in
the law of coparcenary but also in the law of partition, alienation of property, inheritance and
adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share
equal to that of the son. But, the widow did not become a coparcener even though she possessed
a right akin to a coparcenary interest in the property and was a member of the joint family. The
widow was entitled only to a limited estate in the property of the deceased with a right to claim
partition. A daughter had virtually no inheritance rights.

Despite these enactments having brought important changes in the law of succession by
conferring new rights of succession on certain females, these were still found to be incoherent
and defective in many respects and gave rise to a number of anomalies and left untouched the
basic features of discrimination against women. These enactments now stand repealed.

Constitutional Provisions ensuring Gender Equality-

The framers of the Indian Constitution took note of the adverse condition of women in society
and a number of provisions and safeguards were included in the Constitution to ward off gender
inequality. In this context, Articles 14, 15(3) and 16 of the Constitution can be mentioned.
These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV
of the constitution containing Directive Principles of State Policy, which are no less
fundamental in the governance of the State to ensure equality between man and woman such
as equal pay for equal work.

Despite these provisions for ensuring equal status, unfortunately a woman is still not only
neglected in her own natal family but also the family she marries into because of certain laws
and attitudes.

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 4. THE PRESENT OF COPARCENARY IN INDIA :

“Change is the law of life. And those who look only to the past or present are certain to miss
the future.”-John F. Kennedy

The concept of coparcenary was introduced in the ancient India. Over the period of years the
circumstances changed, and with the need of the hour Hindu Succession Act, 1956 which was
again amended in 2005. The Hindu Succession (Amendment) Act, 2005, amended Section 6
of the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons.
In the case of coparcenary property, or a case in which two people inherit property equally
between them, the daughter and son are subject to the same liabilities and disabilities. The
amendment essentially furthers equal rights between males and females in the legal system.

Position of Women after Enactment Of Hindu Succession Act, 1956-

After the advent of the Constitution, the first law made at the central level pertaining to property
and inheritance concerning Hindus was the Hindu Succession Act, 1956. This Act dealing with
intestate succession among Hindus came into force on 17th June 1956. It brought about changes
in the law of succession and gave rights, which were hitherto unknown, in relation to a woman’s
property. The section 6 of Hindu Succession Act, 1956 was amended in 2005.

However, section 6 did not interfere with the special rights of those who are members of a
Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased in
certain cases. The Act lays down a uniform and comprehensive system of inheritance and
applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those
in certain parts of southern India who were previously governed by the Murumakkattayam,
Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defined
in section 2 of Hindu Succession Act, 1956. But now the question the question is whether, the
Hindu Succession Act actually gave women an equal right to property or did it only profess to
do so.

The retention of the Mitakshara coparcenary without including females in it meant that females
couldn’t inherit ancestral property as males do. If a joint family gets divided, each male
coparcener takes his share and females get nothing. Only when one of the coparceners dies, a
female gets a share of his share as an heir to the deceased. Thus the law by excluding the
daughters from participating in coparcenary ownership (merely by reason of their sex) not only
contributed to an inequity against females but has led to oppression and negation of their right
to equality and appears to be a mockery of the fundamental rights guaranteed by the
Constitution.

Hence this very fact necessitated a further change in regards to the property rights of women,
and which was done by the Hindu Succession (Amendment) Act, 2005.

Rights conferred upon women by the Hindu Succession Act, 2005:

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Out of many significant benefits brought in for women, one of the significant benefit has been
to make women coparcenary (right by birth) in Mitakshara joint family property.

Earlier the female heir only had a deceased man’s notional portion. With this amendment, both
male and female will get equal rights. In a major blow to patriarchy, centuries-old customary
Hindu law in the shape of the exclusive male mitakshara coparcenary has been breached
throughout the country. The preferential right by birth of sons in joint family property, with the
offering of “shradha” for the spiritual benefit and solace of ancestors, has for centuries been
considered sacred and inviolate. It has also played a major role in the blatant preference for
sons in Indian society. This amendment, in one fell swoop, has made the daughter a member
of the coparcenary and is a significant advancement towards gender equality.

The significant change of making all daughters (including married ones) coparceners in joint
family property has been 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-biased society where wills often disinherit women,
this is a substantial gain.

Women can become kartas of the property. Symbolically, all this signals that daughters and
sons are equally important members of the parental family. It undermines 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.

Now under the amendment, daughters will now get a share equal to that of sons at the time of
the notional partition, just before the death of the father, and an equal share of the father’s
separate share. Equal distribution of undivided interests in co-parcenery property. However,
the position of the mother regarding the coparcenary stays the same. She, not being a member
of the coparcenary, will not get a share at the time of the notional partition. The mother will be
entitled to an equal share from the separate share of the father computed at the time of the
notional partition. In effect, the actual share of the mother will go down, as the separate share
of the father will be less as the property will now be equally divided between father, sons and
daughters in the notional partition.

The extent of the amendment Act, 2005: it extends the equal coparcenary right to a daughter
born into a family right from her birth, it will have a retrospective effect. However, the
amendment act 2005 is not retrospective in nature for the following reasons:

 The opening the section 6 of the Act states “On and from the commencement of
the Hindu Succession (amendment) Act, 2005.”
 It has the condition that it will have no application in case where any disposition
or alienation including any partition or testamentary disposition of property had
taken place before 20.12.2004.

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  Thus to get the benefit as per the amended Act, the following conditions need to
be satisfied:
1. She should have been born into the family.
2. The undivided coparcenary property must exist on 20.12.2004.
3. Partition of the property ought not to have taken place prior to 20.12.2004.
If any of the above three conditions are not satisfied then the benefit under the amended act
will not be available.

The Changes brought about by Hindu Succession (Amendment) Act 13 of 2005 (39 of 2005)
are mentioned below:

1. Section 4 clause (2) of the principal Act was omitted, where it was declared that the Act shall
not affect the provision of any law providing for prevention of fragmentation of agricultural
holdings or the fixation of ceilings or for the devolution of tenancy rights in spite of such
holdings.

2. Section 6 of the principal Act which deals with devolution the interest of the female
coparcener and rule of survivor-ship, is re-casted and modified. From the commencement of
the Hindu Succession (Amendment) Act 2005, with reference to joint family governed by
Mitakshara Law, the daughter becomes coparcener by birth and has all rights in the same
manner as the son. She has the same rights and liabilities in the said coparcener’s property as
that of a son.

Now, any reference to Hindu Mitakshara coparcener will be deemed to include references to a
daughter of a coparcener. However, this section will not affect any disposition or alienation
including any partition or testamentary disposition of property that took place before 20th
December, 2004.

The incidence of coparcenary ownership shall automatically follow. It was also provided that
after the commencement of amendment Act, if a Hindu dies having interest in the joint family
pro-perty governed by Mitakshara Law. It shall devolve by testamentary or intestate succession
under this Act and not by survivorship and coparcenary property shall be deemed to have been
divided as if the partition had taken place; and the daughter is allotted, the same share as allotted
to a son.
The share of pre-deceased son or a pre-deceased daughter as they would have got, had they
been alive at the time of partition, shall be allotted to the surviving child or such pre-deceased
son or as such of pre-deceased daughter, as case may be.

Similarly, the share of a pre-deceased child or a pre-deceased son or a pre-deceased daughter,

as such child would have got had he or she had been alive at the time of partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased
daughter as the case may be.
Thus, complete justice is sought to be extended in so far as daughter is concerned as an heir.

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3. The Archaic Doctrine of Pious and obligation has been abrogated under section 6 clause (4).
However, this provision is not applicable if the debt is contracted before the commencement
of the Act. As a general rule, this amendment was not applicable in case the partitions effected
before 20th day of December, 2004.

4. Section 23 has been omitted under the Amendment Act. This section disentitled a female
heir to seek partition of a dwelling house until the male heirs choose to divide.

5. Section 24 has been omitted under the Amendment Act. The preexisting section provided
that any heir who is related to an intestate as the widow of pre-deceased son or the widow of a
brother shall not be entitled to succeed to the property of intestate as such widow, if on the date
the succession opens she has remarried.

The above amendment has come so late in the day, Mitakshara Law in the context of
globali-sation is slowly losing its relevance and it is an anachronism.

3.1ANOMALIES IN THE ACT:

Despite the enactment of the Hindu Succession (Amendment) Act, 2005 the law still has some
anomalies. Some Anomalies That Still Persist:

Making daughters coparceners will decrease the shares of other Class I female heirs, such as
the deceased’s widow and mother, since the coparcenary share of the deceased male from
whom they inherit will decline. In States where the wife takes a share on partition, as in
Maharashtra, the widow’s potential share will now equal the son’s and daughters. But where
the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow’s potential
share will fall below the daughter’s.

Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal
division of the male co-parcener’s share on his death between all heirs, male and female; still,
the law puts the male heirs on a higher footing by providing that they shall inherit an additional
independent share in co-parcenary property over and above what they inherit equally with
female heirs; the very concept of co-parcenary is that of an exclusive male membership club.

Partially restricting the right to will. Such restrictions are common in several European
countries. Otherwise women may inherit little, as wills often disinherit them. However, since
the 2005 Act does not touch testamentary freedom, retaining the Mitaksara system and making
daughters coparceners, while not the ideal solution, at least provides women assured shares in
joint family property.

If a Hindu female dies intestate, her property devolves first to husband’s heirs, then to
husband’s father’s heirs and finally only to mother’s heirs; thus the intestate hindu female
property is kept within the husband’s lien.

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 4. CONCLUSION

The law regarding the coparcenary in the joint Hindu family has evolved over time. Before
independence various legislations were passed regarding coparcenary. The main change that
has been brought after the independence was in 2005 when the Hindu Succession (Amendment)
Act, 2005 was enacted. This act changed the face of the Hindu Succession Act by giving equal
rights to women as that of the men. The women too can now be the coparceners.

It is necessary to understand that if equality exists only as a phenomenon outside the awareness
and approval of the majority of the people, it cannot be realized by a section of women
socialized in traditions of inequality. Thus there is need to create social awareness and to
educate people to change their attitude towards the concept of gender equality. The need of the
hour is also to focus attention on changing the social attitudes in favour of equality for all by
enacting a uniform law.

The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy;
efforts to enhance social awareness of the advantages to the whole family if women own
property; and legal and social aid for women seeking to assert their rights, are only a few of
the many steps needed to fulfill the change incorporated in the Act.

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 5. BIBLIOGRAPHY
Books
● Dr.Paras dewan,family law, Allahabad law agency, tenth edition:2013
● Dr.Paras dewan,Hindu succession act, Allahabad law agency, tenth edition:2013
● Dr.Gaur’s, succession laws, Law Publishers Pvt. Ltd, 3rd edition
● Mulla, hindu law, Lexis Nexis, 21st edition
Statutes
● The Hindu Succession Act 1956
Website
● Www.indiankanoon.com
● www.manupatra.com
● www.legalserviceindia.com
● www.linkedin.com
● www.vakilno1.com

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