AMITY UNIVERSITY CHHATTISGARH

CHHATTISGARH

Devolution of Interest In Mitakshara Coparcenaries

A project submitted for the partial fulfilment for internal

assessment in the subject

FAMILY LAW-II

SUPERVISED BY- SUBMITTED BY-

Ms. APOORVA SINGH RACHITA,

Assistant professor, [BBA LLB (H)],

Amity law school Semester – VI

(MAY, 2018)
INTRODUCTION

The main object of the repealing & Amending Act 2005 sought by Justice N. Kumar &
Justice G. Narendar try to strike out the unnecessary Acts & exercise dead matter from the
statute book in order to lighten the burden of ever increasing spate of legislation & to remove
confusion from the public mind.1 The Hindu succession Act 1956 is an Act of the Parliament
of India enacted to amend & codify the law relating to intestate or unwilled succession,
among Hindu, Buddhist, Jains & Sikhs. The Act lays down a uniform & Comprehensive
system of inheritance & Succession into one Act. The Hindu Women’s limited estate is
abolished by the Act. Any Property possessed by a Hindu Female is to be held by her
absolute property & she is given full power to deal with it & dispose if of by will as she likes.
This Act is applicable to all Hindus also any person who is Buddhist, Jaina or Sikh by
religion this Act is not applicable to Muslim, Christian, Parsi & Jew also this Act is
applicable to any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhist, Jainas or Sikha by religion. This Act is not applicable to the members of any
scheduled, tribe within the meaning of Clause (25) of article 366 of the constitution of India
unless the Central Government by notification in the official Gazette otherwise directs.

11
Krishnaprasad, “equal rights of daughters to ancestral property remains :HC”, Dt 1st Oct (2015)
 RESEARCH QUESTION

1. To analyse the status of women in this act?

In a ruling that will restrict the right of women seeking equal share in ancestral property, the
Supreme Court has said that the 2005 amendment in Hindu law will not give property rights
to a daughter if the father died before the amendment came into force.
The court held that the amended provisions of the Hindu Succession (Amendment) Act,
2005, could not have retrospective effect despite it being a social legislation. The court said
the father would have had to be alive on September 9, 2005, if the daughter were to become a
co-sharer with her male sibling.

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The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in
ancestral property. They could only ask for a right to sustenance from a joint Hindu family.
But this disparity was removed by an amendment to the Act on September 9, 2005.
The apex court judgment has now added another disqualification for women regarding their
right of inheritance. Until now, they could not ask for a share if the property had been
alienated or partitioned before December 20, 2004, the date the Bill was introduced. This
judgment makes it imperative for the father to have been alive when the amendment came
into force.
Settling the law in the wake of a clutch of appeals arising out of high court judgments, a
bench of Justices Anil R Dave and Adarsh K Goel recently held that the date of a daughter
becoming coparcener (having equal right in an ancestral property) is “on and from the
commencement of the Act”.
The bench overruled the view taken by some high courts that the amendment being a gender
legislation that aimed at according equal rights to the daughter in ancestral property by
removing discrimination, should be applied retrospectively.
Interpreting statutory provisions, the top court shot down the argument that a daughter
acquires right by birth, and even if her father had died prior to the amendment, the shares of
the parties were required to be redefined.
“The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a
coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain
language of the statute, there is no scope for a different interpretation than the one suggested
by the text,” it said.
Further, there is neither any express provision for giving retrospective effect to the amended
provision nor necessary intent, noted the court, adding “even a social legislation cannot be
given retrospective effect unless so provided for or so intended by the legislature”.
About applicability of the amendment to the daughters born before it was brought, the bench
held that the new law would apply irrespective of the date of birth.
“All that is required is that the daughter should be alive and her father should also be alive on
the date of the amendment,” it said.
The court also held that alienation of ancestral property, including its partition, which may
have taken place before December 20, 2004, in accordance with the law applicable at that
time, would remain unaffected by the 2005 amendment, and those partitions can no longer be
reopened by daughters.
 2. To analyse the necessity of this Act?

3. To understand and find the purpose of development after amendment Act?

COMPOSITION OF JOINT FAMILY:

Common ancestor + lineal male descendant + his wife or wives (or widow) + unmarried
daughter.

 Common ancestor is necessary for bringing of joint family. But Common ancestor is
not necessary for continuation.

 The death of the common ancestor does not mean that the joint family will come to an
end.

 Common ancestor is also called as last holder, head of the family and elders male
member of the family.

Mitakshara recognised two modes of devolution of property, namely-

(a) devolution by survivorship, and

(b) devolution by succession.

In determining the modes in which the property of a male Hindu devolved on his death the
foremost consideration was as to whether the property of the deceased male Hindu was at the
time of his death constituted his undivided interest in the coparcenary property and whether
he was a member of coparcenary.

If he was a member of Mitakshara coparcenary and he had an undivided interest in the

coparcenary property it devolved on other coparceners by survivorship, subject to the
provisions of the Hindu Women’s Right to Property Act, 1937. Coparcenary property is
synonymous with ancestral property, i.e., property inherited by a male Hindu from his father,
father’s father and father’s father’s father.
It also consisted of (a) separate property of the coparceners thrown into the common
coparcenary stock, (b) property jointly acquired by the members of a joint family, and (c)
property acquired by the members of joint family with the aid of ancestral property.

The main incidents of coparcenary property were:

(i) It devolved by survivorship not by succession,

(ii) It is a property in which the male issues of the coparcener’s upto three degrees acquire an
interest by birth.

Illustrations:
(1) A inherited certain property from his father. A has got two sons В and C, one daughter,
D. В and С acquire an interest by birth in the property inherited by A. So В and С can claim
partition in such property and would be entitled to one third share each along with A. D
would get nothing.

(2) A and В are two brothers. A dies leaving his widow and two daughters. A’s undivided
share in the coparcenary property shall devolve on В as per the rule of survivorship.

All property other than coparcenary will be termed separate property or self-acquired
property of a male Hindu with respect to which rule of succession will apply on his death.
The following propositions are to be noted with respect to separate property of a male
Hindu—

(1) Where the deceased male Hindu is a member of joint Hindu family at the time of his
death, and he has left his separate or self-acquired property. Such property devolved on his
heirs by successions and not by survivorship to other coparceners.

(2) Where the deceased was at the time of his death the sole surviving member of
coparcenary, the whole of his property devolved on his heirs by successions.

(3) Where the deceased was separate at the time of his death from his coparcenary, the whole
of his property, however acquired, passed on his heirs by succession.
Order of succession of heirs:
The heirs of the deceased Hindu can be classified in the following order:—

1) Sapinda

2) Samanodakas

3) Bandhus

4) Spiritual Preceptor

5) Pupil, and Lastly

6) The Government.

The State is the ultimate heir to the estate of a person where he has left no known heirs
according to law by which, he was governed in the matter of succession and inheritance. The
estate thus coming to the State is said to escheat to the Government

Coparcenary:

 Coparcenary is a narrow body of persons within a joint family, and consists of the father,
son, son’s son, son’s son’s son.

 It consists of father and three male lineal descendants;

 In its continuance, the existence of the father-son relationship is not necessary, the
coparcenary may consist of grand-father and grand-children, brothers, uncles and nephew
and so on.

Devolution of Interest In Coparcenary Property:—

(1) 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,- -

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to
a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall
be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in force in,
as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the 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 of such pre-
deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as
such child would have got had he or she been alive at the time of the 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.

Explanation.-- For the purposes of this sub-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.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery of
any debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such
debt: Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect –

(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case
may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted. Explanation.--For the purposes of clause (a), the expression "son",
"grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson,
as the case may be, who was born or adopted prior to the commencement of the Hindu
Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before
the 20th day of December, 2004.

Explanation. --For the purposes of this section "partition" means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court."

14. The new Section 6 provides for parity of rights in the coparcenary property among male
and female members of a joint Hindu family on and from September 9, 2005. The Legislature
has now conferred substantive right in favour of the daughters. According to the new Section
6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities
in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener
shall have same rights and liabilities in the coparcenary property as she would have been a son
is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled
to a share in the ancestral property and is a coparcener as if she had been a son.
15. The right accrued to a daughter in the property of a joint Hindu family governed by the
Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the
circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted
categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where
the disposition or alienation including any partition has taken place before December 20, 2004;
and (ii) where testamentary disposition of property has been made before December 20, 2004.
Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not
apply to the partition which has been effected before December 20, 2004. For the purposes of
new Section 6 it is explained that `partition' means any partition made by execution of a deed
of partition duly registered under the Registration Act 1908 or partition effected by a decree of
a court. In light of a clear provision contained in the Explanation appended to sub-section (5)
of Section 6, for determining the non- applicability of the Section, what is relevant is to find
out whether the partition has been effected before December 20, 2004 by deed of partition duly
registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the
above legal position with reference to Section 6 brought in the 1956 Act by the 2005
Amendment Act, the question that we have to answer is as to whether the preliminary decree
passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the
appellants of the benefits of 2005 Amendment Act although final decree for partition has not
yet been passed.

Rights of coparceners:

 To sum up: every coparcener has,

 Right of joint ownership;
 Right of joint possession;
 Enjoyment and use of joint family property;
 Right of survivorship;
 Right of alienation of undivided interest under certain circumstances;
 Right to seek maintenance;
 Right to challenge improper alienation made by Karta or any coparcener;
 Right to partition.
Case laws on property inherited from maternal grand-father:

• Venkayyamma v. Venkatarayyamma (1902)25 Mad – 2 brothers inherited from maternal

grand father, one of them died without a male issue, his wife claimed on the rule of
succession and the brother on the rule of survivorship (mitakshara Law), Madras provincial
court gave the ruling in favour of the brother to inherit the property as the last sole surviving
heir.

• In Md. Husain v. Kisheva 1937 PC- went against the earlier judgment and held that when a
Hindu inherits property from his maternal grand mother or father, his son does not acquire
any interest by birth in the family.

Property thrown into common stock and blended property:

When a coparcener mixes his separate property with the joint family property, and deals with
his separate property in a manner that he leaves no doubts that he wants to treat it as part of
the joint family property, such property becomes a joint family property. - This is known as
‘throwing in to the common stock’ - If he mixes his property with the joint family property it
is known as blending.

In Mallesappa v. mallappa, 1961 SC 1268 – Gajendragadkar.J , said that ‘the conduct on

which the plea of blending is based must clearly and unequivocally show the intention of the
owner of the separate property to convert his property into an item of joint family property, -
A mere intention to benefit the members of the family by allowing them the use of the
income from the separate property may not necessarily be enough to justify an inference of
blending’.

In Narayanan v. Radhakrishna 1976, SC 1715 – Shah J – said, ‘the separate property or self-
acquired property of a coparcener may be impressed with the character of joint family
property, if it is voluntarily thrown by the owner into the common stock with the intention of
abandoning his separate claim therein, -but to establish such abandonment, a clear intention
by waiver of separate rights must be established.