COPARCENARY

FAMILY LAW SUBMISSION

SUBMITTED BY -
SHASHANK SHEKHAR
SAP – 500054906
ROLL – R154216093
BA., LL. B. (HONS.) WITH SPECIALIZATION IN CRIMINAL LAWS (2016 - 2021)
BATCH - 2
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

 Two Schools of Hindu Law:

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.
1. Mitakshara School
2. Dayabhaga School
1. MITHAKSHARA SCHOOL - This school owes its name to Vijnanaeshwara’s commentary on
the 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

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

2 Rohan v. Lachuman, 1976 Pat, 286

1|Page
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.
These rules have made the Mitakshara School reactionary.

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.3 Kane places the date of composition of
Jimutvahana’s literary career from 1090-1130 A.D.4
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 benefit5 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.6
The difference between the Mitakshara School and the Dayabhage School is:
 In respect of law of succession.
 In respect of joint family.

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

2|Page
CONCEPT OF COPARCENARY:
 HINDU 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.
 Coparcenary: 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.”7

 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 common ancestor

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

3|Page
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.8

 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.

8 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 what persons
are entitled to demand a partition and from whom.

4|Page
PRESENT OF COPARCENARY IN INDIA
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 69 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

9 Section 6 of Hindu Succession Act, 1956: “Devolution of interest in coparcenary property: When a male Hindu
dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary
and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male
relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by
survivorship.”
Explanation 1. For the purpose of this section, 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.
Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.

5|Page
Hindu Succession Act, 1956.10 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: (Specifically
Focusing On Section 6) – 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

10 Section 2 of Hindu Succession Act, 1965: Application of Act

(1) This Act applies-
(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat
or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such
person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of
any of the matters dealt with herein if this Act had not been passed.
Explanation : The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or
Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh
by religion and who is brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members
of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central
Government, by notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a
Hindu by religion is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this
section.

6|Page
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.”

7|Page
 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.
 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.

8|Page
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.

9|Page