NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL VI TRIMESTER FAMILY LAW – II HINDU WOMEN AND THEIR COPARCENARY RIGHTS SUBMITTED TO – SUBMITTED BY – Ms. Kavita Singh Archana 2011 B. A. ,LL. B 79 VI Trimester INDEX SERIAL NUMBER |HEADINGS |PAGE NUMBER | |(1) |INTRODUCTION |3 | |(2) |TRADITIONAL POSITION |4 | |(3) |DAYABHAGA COPARCENARY SYSTEM |4 | |(4) |MITAKSHARA COPARCENARY SYSTEM |4 | |(5) |MARUMAKKATTYAM LAW |5 | |(6) |POSITION OF WOMEN UNDER CONSTITUTION |6 | |(7) |CONCEPT OF COPARCENARY AND JOINT PROPERTY |7 | |(8) |PARLIAMENTARY DEBATE |7 | |(9) |SECTION 6 OF HINDU SUCCESSION ACT |8 | |(10) |NEW COPARCENARY UNDER STATE ACTS 10 | |(11) |WOMAN AS KARTA |12 | |(12) |JUDICIAL INTERPRETATION |13 | |(13) |PROBLEMS OF COPARCENARY RIGHTS OF WOMEN |14 | |(14) |RECOMMENDATIONS |15 | |(15) |CONCLUSION |16 | |(16) |BIBLIOGRAPHY |17 | INTRODUCTION The Constitution of India provides that every person is entitled for equality before law and equal protection of the laws and thereby prohibits discrimination on the basis of caste, sex and creed.
The discrimination on the basis of sex is permissible only as protective measures to the female citizens as there is need to empower women who have suffered gender discrimination for centuries. 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 Hindu Succession Act, 1956 shastric and customary laws that varied from region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting in diversity in the law. Consequently in matters of succession also, there were different schools.
The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. The ultimate sufferers of these complexities are women as their position regarding property rights is vulnerable in a coparcenary system. In our project we are trying to analyze the discrimination against women under Hindu Succession Act, 1956. The paper begins with a study of devolution of property in various traditional schools. It then proceeds to analyze the position of women in the Constitution of India. The focus of this paper is on the concept of coparcenary and the inherent discrimination meted on the women by depriving them proprietary rights in the Hindu Succession Act, 1956.
Finally, we have analyzed the new notion of coparcenary under various State amendments and the pros and cons of these amendments in the light of right to equality guaranteed under the Constitution of India. TRADITIONAL POSITION The entire concept of coparcenary originates in the Classical Hindu law, so it becomes imperative to understand the position under these traditional schools before we proceed further – THE DAYABHAGA COPARCENARY SYSTEM The Dayabhaga School is followed in primarily in West Bengal, Bihar, Assam and parts of Orissa. According to this school neither son nor daughter gets by birth or by survivorship a right in the family property, though joint family and joint property is recognized in this school.
It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or self-acquired. In this school neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s lifetime. However, on his death, they inherit as tenants-in-common. It is a remarkable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. But, since this ownership arises only on the extinction of the father’s ownership none can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent.
Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him and manage the property on behalf of the other members in the Dayabhaga School. MITAKSHARA COPARCENARY SYSTEM The Mitakshara law is followed extensively in India. According to this school, a son by birth acquires a right and interest in the joint family property. But, the interest in the property is restricted to three generations of male lineal descendants, which includes son, grandson and the great grandson.
These three constitute a class of coparceners, based on birth in the family. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. For example, if a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. But, no female is recognized as a member of the coparcenary in Mitakshara law. We find many variations of this school in different parts of India.
According to the Bengal, Banaras and Mithila sub- schools of Mitakshara recognise five female relations— widow, daughter, mother, paternal grandmother, and paternal great-grand mother as being entitled to inherit.  The Madras sub-school recognized the heritable capacity of a larger number of females including the son’s daughter, daughter’s daughter and the sister’s heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) 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, recognizes 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. THE MARUMAKATYAM SYSTEM
This system prevailed in Kerela wherein the family was joint and a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line i. e. matrilineal. The joint family so formed is known as Tarwad. In this system both male and females are equally the members of joint family. Son be the member of mother’s coparcenary but son’s son would not be the member of this system. He will be member of his mother’s Tarwad. Here both male and female accrues interest in property. This system explains how traits moved towards matriarch cal from patriarch cal. However, joint family system in Kerela are abolished by Kerela Joint Family Abolition Act.
But even today at some places customary law governs. THE POSITION OF WOMEN UNDER THE CONSTITUTION OF INDIA The framers of the Indian Constitution have taken special care to ensure that the State should take positive steps to give women equal status with men. Articles 14, 15(2), (3) and Article 16 of the Constitution of India, attempt not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. Also Part IV of the Constitution which contains the Directive Principles of State Policy interalia provides that the State shall endeavor to ensure equality among individuals.
Notwithstanding these Constitutional mandates and directives, a woman is still neglected and the rights of the women is blatantly disregarded by some of the provisions of personal laws like the inherent discrimination and inequality in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, 1956. But, to say that coparcenary rights under Mitakshara system violates Article 14 raises an important question- Does “laws in force” in Article 13(1) of the Constitution include personal laws? The Apex Court has yet to give a definitive view on this point. But in State of Bombay v Narsu Appa Mali the Bombay High Court took the view that the term “laws in force” includes only laws passed or made by legislature or other competent authority and does not include personal laws.
But in the Supreme Court in Sant Ram v Labh Singh and in Shri Krishna Singh v Mathura Ahir has accepted the contrary. But, Seervai is of the opinion that- “We have seen that there is no difference between the expression ‘existing law’ and the ‘law in force’ and consequently, personal law would be ‘existing law’ and ‘law in force’. This consideration is strengthened by the consideration that custom, usage, and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them” THE CONCEPT OF COPARCENARY AND JOINT PROPERTY In the Hindu system, ancestral property has traditionally been held by a joint Hindu family consisting of male coparceners.
Coparcenary can be defined as a narrower body of persons within a joint family and consisting of father, son, son’s son and son’s son’s son. Ancestral property continues to be governed by a wholly partrilineal regime like the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. Since a woman cannot be a coparcener, she is not entitled to a share in the ancestral property by birth. But a son’s share in the property would increase in case the father dies interstate would be in addition to the share he has on birth.
This is a clear discrimination against women. PARLIAMENTARY DEBATE ON THE ADOPTION OF MITAKSHARA COPARCENARY SYSTEM The provisions regarding succession in the Hindu Code Bill, as originally framed by the B. N. Rau Committee and piloted by Dr. Ambedkar, was for abolishing the Mitakshara coparcenary with its concept of survivorship and the son’s right by birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition. The extent of opposition within the government itself can be gauged from the fact that the then Law Minister Mr.
Biswas, on the floor of the house, expressed himself against daughters inheriting property from their natal families. Sita Ram S Jajoo from Madhya Bharat, identified the reason for the opposition accurately, when he stated: “Here we feel the pinch because it touches our pockets. We male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this house. “ However, the majority prevailed when the Bill was finally passed in 1956. When Dr. Ambedkar was questioned as to how the provisions relating to coparcenary was retained in spite of strong opposition he said: “It was not a compromise.
My enemies combined with my enthusiastic supporters thought that they might damn the Bill by making it appear worse than it was.  By the retention of the Mitakshara coparcenary without including females it meant that females cannot inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Thus the law by excluding the daughters from participating in coparcenary ownership 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.  SECTION 6 OF THE HINDU SUCCESSION ACT, 1956.
Section 6 deals with the devolution of interest of a Hindu male in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The provision relating to co-parcenary property in the Hindu succession Act 1956 is Section 6 which provides that if a male Hindu dies leaving behind his share in Mithakshara Co-parcenary property, such property will pass on to his sons, son’s son’s, son’s son’s son by survivorship, on surviving members. In case there are female relatives like daughter, widow, mother, daughter of predeceased son daughter of predeceased daughter widow of predeceased son, widow of predeceased son of a predeceased son, then the interest of the deceased co-parcenary will pass on to his heirs by succession and not by survivorship.
Example: If “c” dies leaving behind his two sons only, and no female heirs of class I then property of “C” passes to his sons by survivorship since there are no female relatives like daughter or any other member specified in the class I of first schedule. In case “C” dies leaving behind two sons and three daughters, then property of “C” will pass on to his sons and daughters by succession in the following manner. Firstly property of “C” is divided among “C” and his two sons. The shares of “C” and his two sons are C gets one-third and each son one-third. The sons are entitled to the equal share of the property along with the father. But the daughters are entitled to the share in the share of the deceased “C” along with other sons.
So the sons will get one-third of the property and a share, which is one-fifth in the share of deceased “C”. Even under the Hindu Succession Act, 1956 the daughter does not take equal share with the son. The law by excluding daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed in the Constitution having regard to the need to render social justice to women. HINDU SUCCESSION (AMENDMENT) ACT, 2005 W. R. T SECTION 6 Considering the Principle of Equality under The Constitution, Hindu Succession (Amendment) Act, 2005 came up.
According to amendment, the daughter of a coparcener shall- 1) By birth become a coparcenary in her own right in the same manner as the son; 2) Have same rights in the coparcenary as she would have had if she had been a son; 3) Be subject to same liabilities in respect of the said coparcenary property as that of a son, 4) She is allotted the same share in property as that to son. And any reference to Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. Now the mode of devolution is no more survivorship but has become succession. This is a drastic amendment, which has changed the whole scenario. Now women are not anyway unequal to men. This is a step taken to bring them at par with men in this society. NEW COPARCENARY UNDER STATE ACTS
The concept of the Mitakshara coparcenary property retained under Section 6 of the Hindu Succession Act has not been amended ever since its enactment. But, five states in India namely, Kerela, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka have taken cognizance of the situation an have made necessary amendments. As per the law of four of these states, (Kerela excluded), in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. Kerela, however, has gone one step further and abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family.
In fact, the Kerela Act has abolished the Joint Hindu family system altogether including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. In Kerela the joint tenants has been replaced by tenants in common. The approach of the Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka state legislatures is, strikingly different from that of Kerela and these states instead of abolishing the right by birth strengthened it, while broadly removing the gender discrimination inherent in Mitakshara coparcenary. The broad features of the legislations are more or less couched in the same language. The State enactments in these four states provide that— a) the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara law, shall become a coparcener by birth in her own right in the same manner as the son and have similar rights in the coparcenary property and be subject to similar liabilities and disabilities; (b) On partition of a joint Hindu family of the coparcenary property, she will be allotted a share equal to that of a son. The share of the predeceased son or a predeceased daughter on such partition would be allotted to the surviving children of such predeceased son or predeceased daughter, if alive at the time of the partition. (c) This property shall be held by her with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by will or other testamentary disposition. (d) The state enactments are prospective in nature and do not apply to a daughter who is married prior to, or to a partition which has been effected before the commencement of the Act.
In Kerela Section 4 (i)of the Kerela Joint Family System (Abolition) Act, lays down that all the members of a Mitakshara Coparcenary will hold the property as tenants in common on the day the Act comes into force as if a partition had taken place and each holding his or her share separately. But the major criticism against the Kerela model is that if the Joint family was abolished today in the other states then a deemed partition would take place and women not being coparceners would get nothing more. Whereas if they are made coparceners, then they become equal sharers. WOMEN AS KARTA The law commission has rightly observed that although the Hindu Succession (State Amendment) Acts have conferred upon the daughter of a coparcener status but there is still reluctance to making her a Karta.
This is because of the general male view that she is incapable of managing the properties or running the business and is generally susceptible to the influence of her husband and his family, if married. This seems to be patently unfair as women are proving themselves equal to any task and if women are influenced by their husbands and their families, men are no less influenced by their wives and their families. If women can act as coparcenaries then they must also be given the powers of Karta. The shastra is clear that in the absence of senior member a junior member (if he has reached the age of legal competence) may incur debts for the needs of the family, and in the absence of a male member a female member may do so.
The Sanskrit texts empower women to act, as Karta in instances like when the husband is away or missing or the son is yet to attain majority. Various texts go to prove that the ‘women in defacto is independent; as soon as her husband returns or her son attains majority she becomes dependant, but meanwhile the responsibility rests with her, and the powers should be obviously be allowed to her accordingly’.  It is ridiculous to contend that a lady may be fit to be a High Court Judge she is not entitled to exercise within her own family the discretion that a manager can exercise.  JUDICIAL INTERPRETATION There are conflicting opinions of the various High Courts on the question of women coparcenary and thus a Karta.
The matter for the first time came up before a full Judge Bench of the Nagpur High Court in Kesheo v Jagannath where it was held that “any adult member may be the manager of the joint family, and in case of a need a step mother could bind her step son, who was a minor, by alienation of the joint Hindu family property in whatever character she purported to act”. The next case that dealt with this problem was Hanooman Prasad’s Case where the powers of the widow mother as a manager of the property of her minor son was discussed. The Court in this case held that “the test of the lady’s act was not who she was or in what capacity she purported to act? But whether the act was necessary or the minor’s interest as understood by law”.
The same view was followed in Pandurang Dohke v Pandurang Garle, where the widowed mother passed a promissory note for necessity, as a guardian of her two minor sons. She was a defacto manager and was held to have the managerial powers and the sons could not repudiate the debt. The view of female being the manager of the Joint Hindu family was further strengthened when the Woman’s Right to Property Act, 1937 was passed, which made the widow the owner of the coparcenary interest. But the Madras High Court in- Seethabai v Narasimha gave a contrary decision. In this case the widows claimed that they were the undivided members of the coparcenary by virtue of the operation of the Act of 1937, they objected to the appointment of the guardian for the property of the minor sons.
The Court appointed one widow, as the guardian of one minor and a stranger was appointed as the guardian of the other. None of the widows, it was held could be the manager. It was held that to be a manager one must be a pukka coparcener, a male with a birth right and not a mere statutory interest. This decision took a step back and adversely affected the position of women. The similar strand of thought was followed in Mayuri Padhano v Lokananidhi Lingaraj where it was held that a mother, when the husband is alive, couldn’t be a manager. She might indeed act as a guardian of her son, if her husband was dead and perhaps act as a defacto guardian. But as a manager she had no power whatsoever.
The principle that a woman could be a manager was decisively rejected. The High Court of Patna has asserted the same view in Sheogulam v Kishan Choudhuri, it was denied that a mother of a minor son, during the long absence of her husband might act as a ‘Karta’ and incur debts for family purposes and further that such loans would not be binding up on the family. The matter finally came up before the Hon’ble Supreme Court in Commissioner of I. T. v Seth Govindram Sugar Mills, where it upheld the view taken by the Madras High Court and has overruled the decision of Nagpur High Court as they felt that it was contrary to the established rules in the dharmashashtras. SUCCESSION TO PROPERTY OF FEMALE HINDU
For the first time in the Indian History U/S 14 of the Hindu Succession Act 1956, female Hindu is given absolute ownership over the property acquired by Will, sale or by any other lawful means. So far as succession to property of female Hindu is concerned the daughter, son, and the husband takes equal share by succession, which means while she is living no member can demand partition of the property. She can dispose the property either by will or by sale, if she dies without disposing the property then members gets right to inherit the property by succession. Section 15 of the Hindu Succession Act deals with the devolution of the property owned by Hindu female.
If the Hindu female has inherited any property from her father or mother, such property devolves upon the heirs of her father, if there are no legal heirs, which are specified in Section 15, like son, daughter, children of predeceased son or daughter. Likewise if the Hindu female has inherited any property from her husband or father in law, such property will devolve on the heirs of her husband if there no legal heirs like son, daughter, and children of predeceased son or daughter. DWELLING HOUSE But in case of dwelling house, the daughter U/S 23 of the Hindu Succession Act 1956, cannot claim any share by partition until male members choose to divide the share in the dwelling house. In case the daughter is unmarried, she is entitled to a right of residence there in.
The daughter may loose her right to share in the property in any of the following circumstances: Section (26) – if daughter ceases to be a Hindu by converting to another religion. Section (25) – if daughter commits murder or abets the commission of murder of a person whose property she could have inherited. However she will not be disqualified to inherit the property only by reason of any disease, defect or deformity. PROBLEMS BY GIVING COPARCENARY RIGHTS TO WOMEN 1) Male members of the coparcenary oppose the giving of coparcenary rights to women as they are the one who manage the property. 2) Women after marriage have to change their family relations and they support their husbands in amily matters, which is quite unsatisfactory for the maternal family members. CONCLUSION There will no doubt be opposition in implementation. In fact, the land fragmentation and joint family stability arguments go back to the 1940s when the Hindu Code was being debated. Changing social attitudes takes time. Legal awareness will require a campaign too. But legal reform is also important in and of itself since it reflects our vision of the kind of society we want. BIBLIOGRAPHY 1) Deewan Paras, Family Law, Allahabad Law agency 6 ed. 2) www. google. com 3) www. yahoo. com ———————–  Mulla, Principles of Hindu Law 17th ed by S. A. Desai, p. 168. (1998)  Ibid. 3] Article 38(2) – The State shall strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only among individuals but also amongst groups of people residing in different or engaged in different vocations.  AIR 1952 Bom 84.  AIR 1965 SC 314.  (1981) 3 SCC 689. Seervai, H. M, Constitutional Law of India 4th edn. , p 677 (1991).  The Constituent Assembly of India (Legislative) Debates Vol. VI 1949 Part II.  Ibid  Law Commission of India 174th report on ‘Property Rights of Women: Proposed Reforms under the Hindu Law’, May 2000.  The Kerela Joint Family System (Abolition) Act, 1975; The Hindu Succession (Andhra Pradesh Amendment)Act, 1986; The Hindu Succession (Tamil Nadu Amendment)Act, 1989; The Hindu Succession (Maharashtra Amendment)Act, 1994; The Hindu Succession (Karnataka Amendment) Act, 1994 12] The Kerela Joint Family System (Abolition) Act, 1975- S (4) Joint tenancy to be replaced by tenancy in common — (1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof; Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, if the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, & any such right can be enforced if this Act had not been passed. 2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day of this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as i. e. each one of the members is holding his or her share separately as full owner thereof.  17 Derret, J Duncan, “May a Hindu Women be the Manager of a Joint Family at Mitakshara Law”, Bom. L. R.. , J. , p. 42.  Derret, J Duncan, “May a Hindu Women be the Manager of a Joint Family at Mitakshara Law”, Bom. L. R.. , J. , p. 42.  Derrett, J Duncan, ‘A critique of Modern Hindu Law’, 1st edn. , NM Tripathi Pvt Ltd, Bombay (1970).   AIR Nag. 81 Hanooman Prasad Pandey V. Musumoot Baboee (1856)   AIR Nag. 178  AIR 1945 Mad. 306   AIR Ori. 1.   AIR Pat. 212.  AIR 1966 SC 24.
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