Trace the development of law on Mitakshara coparcenary and the state as to how has the Hindu Succession Act effected the Mitakshara Coparcenary in 2005.

Question: Trace the development of law on Mitakshara coparcenary and the state as to how has the Hindu Succession Act effected the Mitakshara Coparcenary in 2005. [HJS 2019]

Find the question and answer of Hindu Law only on Legal Bites. [Trace the development of law on Mitakshara coparcenary and the state as to how has the Hindu Succession Act effected the Mitakshara Coparcenary in 2005.]

Answer

Coparcenary is a narrower body than a joint Hindu family. It consists of only male members up to three generations from the last male common ancestor inclusive of him. The special characteristics of a Mitakshara coparcenary are a community of interest and unity of possession between all members of the coparcenary. The essence of a being unity of ownership, no individual member of the family, while it remains undivided, can predicate the joint and undivided property that he has a certain definite share.

In the case of Ram Avadh v. Kedar Nath, AIR 1976 All. 283, it was held that those male persons who are not by birth or by adoption members of the joint family could not, in absence of an enforceable custom, constitute a coparcenary by agreement. The Supreme Court has rightly observed that the Mitakshara coparcenary is created by the operation of law, not by the agreement of the parties. But where some son is taken in adoption, the assimilation of such an adopted son, no doubt, is by the acts of the parties.

Characteristic features of Mitakshara Coparcenary 

In State Bank of India v. Ghamandi Ram, AIR 1964 S.C. 1330, the Supreme Court observed:

"A coparcenary under the Mitakshara school is a creation of law and cannot arise by an act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral properties of the latter. The incidents of coparceners under Mitakshara law are:
First, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person;
Secondly, such descendants can at any time work out their rights by asking for partition;
Thirdly, till partition, each member has got ownership extending over the entire property conjointly with the rest;
Fourthly, as a result of such co-ownership the possession and enjoyment of properties are common;
Fifthly, no alienation of the property is possible unless it is a necessity, without the concurrence of the coparceners;
Sixthly, the interest of the deceased member lapses on his death to the survivors."

Rights of Coparceners before the Hindu Succession (Amendment) Act of 2005

The followings are the rights of coparceners in the coparcenary before the Hindu Succession (Amendment) Act of 2005:

• Rights of common possession and common enjoyment - There was a unity of possession and the right of common enjoyment in the joint family property available to all the coparceners.
• The community of interest - No coparcener has got any defined share in the coparcenary property or the income of the property.
• Right to joint possession - Each coparcener is entitled to joint possession and enjoyment of the family property.
• Right to enforce partition - Every coparcener including the minor is entitled to demand partition of his share. This right can be claimed against his father or brother or the father and grandfather.
• Right to restrain unauthorized act - A coparcener may restrain any unauthorized act e.g. erection of a wall or construction of a building etc. of another coparcener in respect of coparcenary property if such act interferes in any way with the joint enjoyment thereof.
• The right to ask for an account - A coparcener may demand an account of the management of the joint property to have correct knowledge of the actual position of family funds.
• Right of alienation - A coparcener may alienate his undivided share in the coparcenary property by gift or mortgage or sale with the consent of other coparceners.
• Right to Set aside the alienation - Every coparcener has the right to set aside alienations made by the father, or the Karta, or any other coparcener beyond his authority.
• Right to maintenance - A coparcener's wife and children are entitled to be maintained out of coparcenary funds and a member of a joint Hindu family is under a corresponding legal obligation to maintain all the male members, their wives, and unmarried daughters in the joint family.
• Right to renounce interest in coparcenary property - A coparcener can renounce his share in the coparcenary property in favor of all or any of the coparceners. When renunciation of one's share in coparcenary property is made by a coparcener, it would devolve on all the other coparceners.
• Right to Survivorship -The undivided share of a coparcener in coparcenary property after his death devolves by survivorship upon the surviving coparceners not by succession upon his heirs.

Effect of the Hindu Succession Act, 1956 

It is true that Section 6 of the Hindu Succession Act, 1956 has intensively affected the entire concept of Mitakshara coparcenary and the rule of survivorship, but they have not been abolished. They have been modified to the extent of the proviso. Given a large number of female heirs in class I of the Schedule, it is generally not possible to find a family which does not have female relatives of class I, and thus gives room to the rule of survivorship. This situation will scarcely arise and hence it can be said that Mitakshara's rule of survivorship has been given a mortal blow in the scheme of the present Hindu Succession Act.

Effect of Hindu Succession (Amendment) Act, 2005 

The Hindu Succession (Amendment) Act, of 2005 is a landmark, after 50 years, the Act finally addressed some persisting gender inequalities in the Hindu Succession Act, of 1956 which itself was path-breaking.

The 2005 Act covers inequalities on several fronts: agricultural land, Mitakshara joint family property, parental dwelling house, and certain widow's rights. The major achievement lies in including all daughters especially married daughters as coparceners in the joint family property.

The 1956 Hindu Succession Act, distinguished between separate property and joint family property. The separate property of a (non-matrilineal) Hindu male dying intestate devolves, in the first instance, equally on his Class I heirs, namely, son, daughter, widow, and mother (plus specified heirs of predeceased children). If previously governed by Dayabhaga, this rule applied also to joint family property. But, if previously governed by Mitakshara, a different rule applied.

In the deceased man's "notional" share in Mitakshara joint family property, the Class I heirs were entitled to equal shares. But the sons as coparceners in the joint family property additionally had a direct birthright to an independent share: while female heirs (eg, daughter, widow, mother) had claimed only in the deceased's "notional" portion. Also, sons could demand partition daughters could not.

The Hindu Succession (Amendment) Act, 2005 does not touch separate property. But it includes daughters as coparceners in the Mitakshara joint family property, with the same birthrights as sons to share to claim partition, and (by presumption) to become Karta (Manager), while also sharing the liabilities. In addition, the Act makes the heirs of predeceased sons and daughters more equal, by including as Class I heirs two generations of children of predeceased daughters, as was already the case for sons.

In Vaishali Satish Ganorkar v. Satish Keshorao Ganorkar, AIR 2012 Bombay 101, the court held that the amended provision of Section 6, came into effect from 9 Sept. 2005 ipso facto upon the passing of the Amendment Act, 2005. After the passing of the Act, all the daughters of a coparcener in a coparcenary or a joint Hindu family do not become coparceners. The daughter who is born after such dates would certainly be coparceners by the virtue of birth, but those daughters who were born before the coming, of the Amendment Act, would be a coparcener only upon the devolution of interest in coparcenary property taking place. The new rights granted to a daughter which would affect vested rights would be on a wholly different footing and cannot be applied retrospectively.

Under Hindu Joint Family a coparcener shares equal rights in a property or is considered as a joint heir to it. Even the Hindu Succession Act, 1956, established that a Hindu becomes a coparcener by birth. But the view changed with the commission of the 2005 Amendment Act, and a series of case laws supported this view. The Supreme Court in the landmark case of Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, ruled that women are entitled to coparcenary rights from the moment they are born. The court also held that the death of the father would not affect the coparcenary rights of the appellant. This case overruled many previous landmark cases related to coparcenary rights and established a milestone in the development of Coparcenary rights.

In nut-shell the changes which are brought by the Amending Act of 2005 are the following:

The daughter is coparcener by birth in the same manner as the son.

She has the same right in the coparcenary as a son.

Her liabilities in Mitakshara coparcenary are like the liabilities of the "son" under the new Amendment Act, the Mitakshara coparcenary includes the daughter also.

The daughter and other females are now not only coparceners but they are also entitled to bequeath their share in the coparcenary like their male counterparts for this reason under Section 30 a change has been made.

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, the daughter is allotted the same share as is allotted to a son.

By the new Act in the list of heirs of Class I the following heirs have been added:

• Son of the pre-deceased daughter of the pre-deceased daughter (Daughter-Daughter's Son);
• Daughter of the pre-deceased daughter of a pre-deceased daughter (Daughter's Daughter's Daughter);
• Daughter of the pre-deceased son of a pre-deceased daughter (Daughter's Son's Daughter);

The daughter of a pre-deceased daughter of a pre-deceased son shall be added (Son's Daughter's Daughter).

Due to change, the Act 2005 not only affected the pious obligation of a son, son's son, son's son's son, to pay the debt of the father, grandfather's, or great grandfather. The debt contracted before the 20th day of December 2004 shall not be governed by the present law.

As given under the provision of Section 6(4) as substituted by the Amendment Act, 2005 the debts contracted after the commencement of the said Act cannot be recovered merely based on pious obligation as given under Section 6(4) that no Court shall recognize any right to proceed against the son, grandson, and great-grandson for the recovery of any debt.

The separate property of the father, grandfather, and great-grandfather would be liable and the share of the father would be liable, but the coparcenary share would not be liable.

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