Family Law Final.docx

Page |1

1. 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

1

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

Page |2

2. COPARCENERY UNDER 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 3. 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 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. There are four Sub-Schools under the Mitakshara School: 1. Dravidian School of thought (Madras school): It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. (‘Sapindas’ – blood relation)

2

Rohan v. Lachuman, 1976 Pat, 286

Page |3

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case)3: The zaminder of Ramnad died any without sons and usually, such state would have escheated to the Government, his widow however adopted a son, with the consent of the sapindas of her husband. But on the death of the widow, the Collector of Madhura notified that the Zamindari would escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption. The question was that whether a widow can make a valid adoption without her husband’s consent but his sapinda’s consent. The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of authority from the husband, a widow may adopt a son with the assent of his kindred. 1. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL OF THOUGHT): It exists in Bombay, from the above four bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws. 

BANARAS SCHOOL OF THOUGHT: It exists in Orissa and Bihar.

1. MITHILA SCHOOL OF THOUGHT: It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are four more schools which are now existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools. 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

3

(1940) 1 MLJ 400

Page |4

Assam and Bengal.4 Kane places the date of composition of Jimutvahana’s literary career from 1090-1130 A.D.5 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 benefit6 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.7 The difference between the Mitakshara School and the Dayabhage School is: 

In respect of law of succession.



In respect of joint family.

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. Coparecenary: 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

4

Supra note 2 Kane, (2nd ed.) at 609 and 709 6 Lexis nexis student series, family law lectures, second ed. 2007, lexis nexis butterworth wadhwa, poonam pradhan saxena, pg.49 7 Ram Dulari v. Batul Bibi AIR 1976 All 135 5

Page |5

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.”8 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 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.9 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. 8 9

Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p. 335 P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro v. Ganesh, 10 Bm. HCR, p. 444

Page |6

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.

Page |7

3. COPARCENARY – THE PAST, PRESENT AND FUTURE THE PAST OF COPARCENARY: In Hindu social system, Dharmasastras do not separate the spiritual from the secular, therefore, in the grasthasrama a person is given the training to lead a complete and meaningful life for the benefit and welfare of those who left and those who are present and those who will be born. It is a unique phenomenon of Hindu philosophy that the Hindu family has been thought of as one of the most important institutions because all other institutions like brahmacharya, vanaprastha and sanyasha depend on it. Hence, the importance of the family is advocated in the Dharmasastras. Origin of coparcenary: The coparcenary as understood in Hindu law has its origin in the concept of Daya as explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga prakranam vayavahara adhaya. Here, Vijnaneshwara discussed 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 or the like. 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 (Svatvanimitasambandhopalashanam). 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.10 Position Of Women (In Regards To Property Rights) Prior To Enactment Of Hindu Succession Act, 1956Since 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 Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus

10

4 NLR 2008-2009; Pg 124

Page |8

and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and arumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. Issue of gender discrimination: But, however the social reform movement during the pre-independence period raised the issue of gender discrimination and a number of ameliorative steps were initiated. The principal reform that was called for, and one which became a pressing necessity in view of changed social and economic conditions, was that in succession there should be equitable distribution between male and female heirs and the Hindu women’s limited estate should be enlarged into full ownership (however that actually never happened). Prior to Hindu Law of Inheritance Act, 1929Prior to this Act, the Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely – widow, daughter, mother paternal grandmother, and paternal great-grand mother . The Madras sub-school recognized the heritable capacity of a larger number of female’s heirs that is of the son’s daughter, daughter’s daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance 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, recognized 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. Hindu Law of Inheritance Act, 1929-

Page |9

This was the earliest piece of legislation, bringing woman into the scheme of inheritance. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister. Hindu Women’s Right to Property Act (XVIII of), 1937This was the landmark legislation conferring ownership rights on women. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. Despite these enactments having brought important changes in the law of succession by conferring new rights of succession on certain females, these were still found to be incoherent and defective in many respects and gave rise to a number of anomalies and left untouched the basic features of discrimination against women. These enactments now stand repealed. Constitutional Provisions ensuring Gender EqualityThe framers of the Indian Constitution took note of the adverse condition of women in society and a number of provisions and safeguards were included in the Constitution to ward off gender inequality. In this context, Articles 1411, 15(3)12 and 1613 of the Constitution can

11

Article 14 in The Constitution of India: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 12

Article 15(3) in The Constitution Of India 1949

(3) Nothing in this article shall prevent the State from making any special provision for women and children

13

Article 16 in The Constitution Of India: Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

P a g e | 10

be mentioned. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the constitution containing Directive Principles of State Policy, which are no less fundamental in the governance of the State to ensure equality between man and woman such as equal pay for equal work. Despite these provisions for ensuring equal status, unfortunately a woman is still not only neglected in her own natal family but also the family she marries into because of certain laws and attitudes. THE PRESENT OF COPARCENARY: “Change is the law of life. And those who look only to the past or present are certain to miss the future.” -John F. Kennedy 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.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

P a g e | 11

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 6 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 Hindu Succession Act, 1956. 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.

P a g e | 12 

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 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 birth rights 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.

P a g e | 13

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.”



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. THE FUTURE OF COPARCENARY: We have indeed come far away from where we started and yet, there is a lot that needs to be done. Despite the enactment of the Hindu Succession (Amendment) Act, 2005 the law still has some anomalies. The future of coparcenary lies in the moving further ahead and improving the position of women by giving effect to the solutions to the following anomalies in the Hindu Succession Act, 1956. Some Anomalies That Still Persist: 

Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased’s widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow’s potential share will now equal the son’s and daughter’s. But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow’s potential share will fall below the daughter’s.

P a g e | 14 

Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal division of the male co-parcener’s share on his death between all heirs, male and female; still, the law puts the male heirs on a higher footing by providing that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs; the very concept of co-parcenary is that of an exclusive male membership club.



Partially restricting the right to will. Such restrictions are common in several European countries. Otherwise women may inherit little, as wills often disinherit them. However, since the 2005 Act does not touch testamentary freedom, retaining the Mitaksara system and making daughters coparceners, while not the ideal solution, at least provides women assured shares in joint family property.



If a Hindu female dies intestate, her property devolves first to husband’s heirs, then to husband’s father’s heirs and finally only to mother’s heirs; thus the intestate Hindu female property is kept within the husband’s lien.

P a g e | 15

4. INSANE COPARCENER An insane male member of the family is not a coparcener and his rights are temporarily suspended till he recovers, but if a partition takes place he has to be allotted a share.14 There can be a coparcenary, under Mitakshara law, with a lunatic member. A coparcener gets his right in the coparcenary property by birth and there appears nothing in the texts irrevocably to extinguish that right on the supervising insanity. On the other hand, texts show that although such a person may not have a right to share or claim a partition, when another coparcener disrupts the joint family status, such right is given to him on the malady being cured. Further, the sons of such disqualified persons are not excluded from taking a share in the coparcenary property. The texts providing for the reopening of the partition on the insane being cured clearly show that his rights remain in abeyance and are not irrevocably lost in the case of supervening insanity. When an insane member himself may not have the volition to declare a separation, there is no reason to hold that insanity takes away the right of another sane member of the coparcenary to declare his intention to sever the status with the result that the two brothers can partition the property for the time being among themselves. If such right exists in favour of the two sane brothers, there appears no reason why it cannot exist when the coparcenary consists of only a sane and an insane person.15

14 15

Gur narain das v gur tahal das, AIR 1952 SC 225 Bharatha Matha v R. Vijaya Ranganathan, AIR 1942 Mad. 693

P a g e | 16

5. RIGHTS OF A COPARCENER

1. Community of interest and unity of possession: No coparcener is entitled to exclusive possession of any part of the coparcenary property; nor is any coparcener entitled to any special interest in such property. As observed by the Privy Council in Katama Natchairv. Rajah of Shivagunga (1893 9 M.I.A. 539), “there is community of interest and unity of possession between all the members of the family”. 2. Share of Income: A member of a joint family cannot, at any given moment, predicate what his share in the joint family property is. Such a share becomes defined only when a partition takes place. The reason is that his share is a fluctuating one, which is liable to be increased by deaths, and diminished by births, in the family. It follows from this that no member is also entitled to any definite share of the income of the property. According to the principles governing a Hindu undivided family, the whole income of the joint family property must be brought to the common purse of the family, and then dealt with as per the rights of the members to enjoy such property. 3. Joint possession and enjoyment: Each coparcener is entitled to joint possession and enjoyment of the family property. If he is excluded from doing so, he can enforce this right by way of a suit. He is not, however, bound to sue for partition. In a suit for joint possession, the Court would declare his right to joint possession, and further direct that he should be put into such joint possession. 4. Right against exclusion from joint family property: If a coparcener is excluded by other coparceners from the use or enjoyment of the joint property, the Court may, by an injunction, restrain such coparceners from obstructing him in the enjoyment of the property. In one case, A and В were members of a joint family. A prevented В from using a door which was the only means of access to the rooms which were in B’s occupation. It was held that, in

P a g e | 17

the circumstances, the Court could, by injunction, restrain A from disturbing В in the use of the door. (Anani v. Gopal, 1895, 19 Bom. 269) In another case, A and В were members of a joint family, which owned a shop in Poona. A prevented В from entering the shop, inspecting the account books, and taking part in the general management of the shop. В sued A for an injunction, restraining A from excluding В from the joint possession and management of the shop, and the Bombay High Court held that В was entitled to succeed. (Ganpat v. Annaji, 1899 23 Bom. 144) 5. Right of maintenance and other necessary expenses: Every coparcener is entitled to be maintained out of the estate of the family. For this purpose, he is entitled to receive, from the coparcenary property, maintenance for himself, his wife and children, as also for those whom he is bound to maintain. Besides such maintenance, a coparcener is also entitled to get money from the coparcenary property for the purpose of the marriage of his children and for the performance of the sradha and upanayana ceremonies. 6. Right to restrain improper acts: Every coparcener has the right to restrain improper acts on the part of other coparceners, where such acts cause substantial injury to his rights as a member of the family. Thus, if a coparcener erects a building on land belonging to the joint family, so as to materially alter the condition of the property, he may be restrained by an injunction from doing so. 7. Right to enforce partition: Every adult coparcener is entitled to enforce a partition of a coparcenary property. He cannot, however, file a suit for a declaration of the amount of his share, as he has no definite share, until partition. In one leading case (Appaji v. Ramchandra, 16 Bom. 29), the Bombay High Court held that there is one important exception to the above rule, namely, that where the father is joint with his own father or other collateral members, a son cannot enforce a partition against the will of the father. This exception is also recognised in the State of Punjab also, but not in other parts of India.

P a g e | 18

8. Right to account: A coparcener has no right to ask for accounts from the manager as regards his dealing with the coparcenary property and the income thereof, unless of course, such coparcener is suing for a partition, in which case, he would have such a right. 9. Right of alienation: No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he alienate such interest for value, except in the State of Tamil Nadu, Madhya Pradesh, Maharashtra and Gujarat. An unauthorised alienation is not however, absolutely void; it is merely voidable at the option of the other coparceners. However, it is open to a creditor, who has obtained a decree against the coparcener personally, to attach and sell his undivided interest, and if this is done, the purchaser can have his interest separated by a suit for partition. 10. Right to impeach unauthorised alienations: Every coparcener has the right to impeach alienation by the manager, or any other coparcener, in excess of their powers. Such alienation can be impeached only by a coparcener or by a transferee who has acquired the entire interest of a joint family in the property alienated. 11. Right to renounce: A coparcener has the right to renounce his interest in the coparcenary property. He can do so by expressing his intention to that effect, and if he does so, no other formalities would be necessary. Such a renunciation must, however, be in favour of the whole body of coparceners. Even if he renounces in favour of one individual member, the renunciation will operate for the benefit of all the coparceners. 12. Right of survivorship: All the coparceners of a joint Hindu family have a right of survivorship in respect of the joint family property. Thus, if one coparcener dies, his undivided interest in such family passes by survivorship to the remaining coparceners, and not to his heirs by succession. (The circumstances in which this right of a coparcener does not exist have already been considered earlier.)

P a g e | 19

13. Right to make self-acquisition: A coparcener has the right to acquire property of his own, and keep it as his self-acquired property. The other coparceners would have ho claim on such property. 14. Right to manage: A coparcener, who is the senior-most member of the family, is entitled to manage the coparcenary property and business, and to look after the interests of the family on behalf of the other coparceners, unless he is incapacitated from doing so by illness or other like and sufficient cause.

P a g e | 20

6. 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 fulfil the change incorporated in the Act.

P a g e | 21

BIBLIOGRAPHY 1. Hindu Law, AN Sen, Sri Sai Law Publications, 2008 ed. 2. Rohan v. Lachuman, 1976 Pat, 286 3. (1940) 1 MLJ 400 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 7. Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p. 335 8. P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro v. Ganesh, 10 Bm. HCR, p. 444 9. 4 NLR 2008-2009; Pg 124 10. Article 14 in The Constitution of India: Equality before law 11. Article 15(3) in The Constitution Of India 1949 12. Article 16 in The Constitution Of India: Equality of opportunity in matters of public employment 13. Gur narain das v gur tahal das, AIR 1952 SC 225 14. Bharatha Matha v R. Vijaya Ranganathan, AIR 1942 Mad. 693