This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi.
This article focuses on the formation and incident under the coparcenary property under Mitakshara and Dayabhaga School of Hindu Law.
Before discussing this concept, firstly it is necessary to discuss with the concept of “Origin of term Hindu” and “Schools of Hindu Law”.
The term ‘Hindu’ is of ‘foreign origin’ as it was used to designate people living east of Hindu river also known as Indus river. Etymologically, the term Hindu was applicable to all the inhabitants of India irrespective of caste and creed. In course of time, the term Hindu associated with religion.
Let’s discuss the Schools of Hindu law:
Schools of Hindu Law widened the scope of Hindu Law and explicitly contributed to its development.
There are mainly two schools of Hindu Law:
- Mitakshara School
- Dayabhaga School
Mitakshara School is considered as one of the most important school. It owes its name from ‘Vijaneshwar Commentary’ on the ‘Yajanvalkya Smriti’ by name of Mitakshara. This school is applicable throughout the territory of India except for Assam and Bengal. This school has wide jurisdiction as where Dayabhaga School is silent, then it will prevail.
This school divided into:
- Banaras Hindu Law School
- Mithila Hindu Law School
- Maharashtra Hindu Law School
- Punjab Hindu Law School
- Madras Hindu Law School
Dayabhaga School is also considered as an important school of Hindu Law. It owes its name from ‘Jemutavahan Digest’ on leading Smriti by name of Dayabhaga. This school prevailed in Assam and West Bengal. It has limited jurisdiction as it deals with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 AD.
Dayabhaga school is sub-divided into:
- Dattaka Chandrika
Coparcenary is a narrower body of persons within a joint family. It includes only those who acquire an interest by birth in the joint or coparcenary property. Coparcenary begins with a common male ancestor with his lineal descendant in the male line within four degrees inclusive of such ancestor.
Formation and Incident under Coparcenary Property
Can, anyone become a coparcener, whether son or daughter?
No, anyone cannot become a coparcener.
According to the Hindu Succession Act, 1956, the only son had a right to became a coparcener. The daughter had no right to enjoyed the status as a coparcener.
Under Mitakshara School of Hindu Law, the concept of coparcenary based on the notion of birthright. It consists of four-generation: great grandfather, grandfather, father and son.
Suppose, Ram is the father and B, C, D, E, F, G, H are his seven lineal male descendants.
Now, Ram is the last holder and he dies, then coparcenary consists of B, C, D, E. on the death of Ram, B becomes the last holder and E comes within the limit of four-generation, and if B dies then C become the last holder and C, D, E, F become the coparcener shows that F comes within the scope of four generations. So, from this example, it is clear that as the last holder dies then the next generation added, it means the removal of ancestor added the descendants.
A major breakthrough towards eradicating the gender inequality and discrimination and to prevent the gender biases that have been prevalent in Indian families, to improve the adverse condition of women in the society has been ensured with the enactment of Hindu Succession Amendment Act,2005.
In Shreya Vidyarthi v. Ashok Vidyarthi and Ors. , AIR 2016 SC
In this case, Apex Court held that of Hindu Succession Amendment Act,2005 was done keeping in mind and respecting the position of a female member, the daughter shall by birth become the coparcener in the same way as a son.
Daughter as a coparcener under Mitakshara School: Yes, the daughter also enjoys the status of Coparcener after the ‘Hindu Succession Amendment Act, 2005’. According to Sec 6(1), the ‘Hindu Succession Amendment Act, 2005’ daughter become the coparcener by birth.
Section 6 in The Hindu Succession Amendment Act, 2005
Devolution of interest in coparcenary property. —
- On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall-
- by birth become a coparcener in her own right in the same manner as the son;
- have the same rights in the coparcenary property as she would have had if she had been a son;
- be subject to the same liabilities in respect of the said coparcenary property as that of a son,
Danamma @ Suman Surpur & Anr. v Amar & Ors. 2018
The Apex Court held that the Amendment Act, 2005 is applicable to all living daughters of living coparceners on the date on which the Act came into force. Secondly, the Supreme Court also stated that the daughter becomes coparcener by birth in the same manner as the son.
Now, one question arises that what is a condition of a married daughter, is after her marriage she ceases to be a coparcener in the Hindu Joint Family of her father?
Yes, this is true that after her marriage she becomes a part of her husband’s joint family but she does not cease to be a coparcener in the Hindu Joint Family of her father.
So, it is clear from an above discussion that both son and daughter enjoy the status as a coparcener irrespective of their gender.
In Dayabhaga School the concept of coparcenary comes into the existence for the first time on the death of the father when the son inherits their father property. It cannot consist of four generations. The concept of coparcenary based on the notion of death right. It means that only after the death of the last holder i.e. father, the son inherits their father’s property.
Let’s discuss the concept through illustration:
Shaam is the father of A, then A does not have the right in the property by birth but only after his father died. He enjoys the status as a coparcener.
Now, again same question arises whether can daughter become a coparcener?
Yes, a daughter can become a coparcener. She also enjoys the status as a coparcener but with a limitation: she becomes the coparcener but the line of coparcenary cannot initiate with the daughters.
2. Incident of coparcener
Mitakshara School: Coparcener has an interest in the joint family property by birth, coparcener enjoy the status as a coparcener by birth though until partition takes place, this shows that there is an existence of unpredictable and fluctuating interest which increases with the death and diminished with the birth in the family. It is based on the ‘principle of ownership by birth’. There is also an existence of community of interest and unity of possession. Coparcener also asks for the partition and demand his share.
Dayabhaga School: Coparcener has an interest in the property given only after the death of the last owner. It means as long as the father is alive, he is the master of his own property, whether ancestor or self-acquired which signifies that during the lifetime of the father, no coparcener can ask for partition and demand his share It is based on the ‘principle of ownership of death.’ There is no community of interest yet there is also existence of unity of possession in this school.
3. Asking for Partition
Mitakshara School: Descendants can at any time, ask for the partition as son attains the right to become the co-owner of the property and demand his share. Members can’t dispose of their share of property while undivided.
Can anyone ask for partition?
No, before Hindu Succession Act, 2005 the position was different. Female had no right to ask for partition. But, the main objective of Amendment Act, 2005 was to eradicate the gender inequality and gender biasness.
Pre- Amendment Act, 2005 female has no right to ask for the partition as she does not enjoy the status of coparcener by birth but Post Amendment Act, 2005 allows the female to ask for the partition against his father.
So, after the Amendment Act,2005 daughter can also ask for the partition as she enjoys the status as a coparcener as same as son by birth which shows that now, both son and daughter can ask for the partition and demand his share.
Dayabhaga School: Son has no right to ask for the partition of ancestral property against his father because the father is sole owner of that property. During, the lifetime of last holder he is sole owner of his property so no coparcener can ask for partition and demand his share. In this school, the member of the family enjoys absolute right to dispose of their property.
4. Unity of Ownership
Mitakshara School: That till partition each member has got ownership extending over the entire property. Unity of ownership is not vested in a single coparcener. It is vested in the whole body of coparcener.
Thammavenkat Subbamma v Thamma Rattamma
In this case, the Supreme Court held that unity of ownership and community of interest is an essential feature of Mitakshara Coparcenary. No, coparcener has any definite share in the coparcenary property although his undivided share is existent there, which increases with the death and decreases with the birth of any coparcener.
Dayabhaga School: As we know, each coparcener has a fixed share. But till a partition by meets and bounds i.e. the distribution of properties takes place, no coparcener gets his share.
5. Community of Interest
Mitakshara School: The person born in the family, he acquires his interest in the property in the sense that he has a right of common enjoyment and common use of all property and if he wants to separate his interest, he can file a suit for partition.
Dayabhaga School: No community of interest found in Dayabhaga School.
6. Share of Coparcener
Mitakshara School: The interest of the coparcener in coparcenary property is a fluctuating and unpredictable interest, which decreases with the birth and increases with the death of the coparcener.
Let’s discuss with an illustration:
Thus, coparcenary consists of a father and his son. Each will take ½ share but if suppose 1 more child born then each will take 1/3 share.
Dayabhaga School: In Dayabhaga school the share of the coparcener is fixed. It is not a fluctuating and uncertain interest.
Let’s take a look on an example:
A, a father dies leaving behind three sons then, each will get 1/3 share. It will not fluctuate with the birth and death of the coparcener.
8. Devolution of the property
Mitakshara School: In Mitakshara School, there is “Doctrine of survivorship.” This states that the property will be devolved upon the death of the coparcener to his next surviving generation, irrespective of considering who his heir is.
Dayabhaga School: In this, the property devolved by the “Doctrine of Succession”. Therefore, if a coparcener dies, his share does not pass by survivorship to other coparcener but devolves by inheritance to his heirs.
Section 3(1)(f), Hindu Succession Act, 1956 defines the term “Heir”. It means any person, male or female, who is entitled to succeed to the property of an intestate under this Act.
Section 3(1)(g), Hindu Succession Act, 1956 defines the term “Intestate”. It means any person who dies intestate in respect of property of which he or she not made testamentary disposition taking effect after his death.
Mitakshara School-based it’s ‘Law of Succession’ on “Principle of Propinquity” means nearer to blood relationship i.e. Class I Heir, then Class II Heir if there is no member in Class I Heir, then agnate if no member exists in Class I Heir or Class II Heir, then cognates if no member found of Class I Heir or Class II Heir or agnate and if all of the class are not exist then Government.
In Dayabhaga School, the ‘Law of Succession’ based on the “Principle of spiritual benefit and religious efficiency” means that one who conferred more religious benefits descendant entitled to inheritance in the preference to other who confers a less spiritual benefit.
So, it is clear from the above discussion that there are two schools of Hindu Law i.e. Mitakshara and Dayabhaga. The concept of Coparcenary is also different in both schools. In Mitakshara School coparcenary consist of four generations of male descendant but after the post Amendment Act, 2005 the daughter also enjoys the status as a coparcener. As the main objective of Amendment Act, 2005 is to remove gender inequality and this amendment took place keeping the position of the female in our society. Whereas, in Dayabhaga School there is no existence of four generations and the notion of interest in the coparcenary property based on the death of the last holder.
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