DID HINDU SUCCESSION ACT INDEED

OUTCAST MITAKSHARA COPARCENARY

MANORANJAN*

ABSTRACT

Through this paper an attempt has been made to understand and review the true nature of the
changes brought in by the legislature through the Hindu Succession Act, 1956 and later by
the Amendment Act of 2005. It is an attempt to answer to the question whether it was the
intention of the legislature to abandon completely the Mitakshara Coparcenary concept and
replace it by intestate succession. The paper argues that the despite the abrogation of the
principle of survivorship the Act has retained the institution of the coparcenary within itself
in a manner slightly different from the Mitakshara concept of coparcenary protecting the
interest of the daughters of the coparcener in particular.

I. GENERAL NATURE OF HINDU UNDIVIDED FAMILY UNDER

MITAKSHARA SCHOOL

A Hindu Undivided Family (HUF) is a group of persons united by the tie of sapindaship
arising by birth, marriage or adoption and is not a statutory or contractual incorporation. It
consists of persons lineally descended from a common ancestor and includes their wives and
daughters. An undivided Hindu Family is joint not only in estate, but also in food and
worship.1The fundamental principle of the Hindu joint family is the sapindaship without
which it is impossible to form a joint Hindu family and with it, as long as a family is living
together, it is almost impossible not to form a joint Hindu family. It is the, the sapinda
relation, which distinguishes the joint family, and is of its very essence2. Despite the
differences existing between the Mitakshara and Dayabhaga Schools of Hindu Law, they bear
similar import as regards to the constitution and functioning of joint or undivided family is
concerned.

The HUF thus originates from one common male ancestor3 and branches itself wide
limitlessly to sons, grandsons, great grandsons and so on. The interest of the member of an
undivided Hindu family is a fluctuating one, which is diminished by births and increased by

* The author is an independent researcher. E mail: manuayilyath@gmail.com

1
Sri Raghunanda v Brozoa Kishore (1876) 1 Mad 69, p 89
2
Surjit Lal Chhabda v The Commissioner of Income Tax, Bombay, AIR 1976 SC 109
3
The existence of atleast one male member is essential for constituting a joint family with other members,
Mulla, Hindu Law Vol I, , Lexis Nexis Butterworths, New Delhi (2007) (Ed. 12) at p 359 §210

Electronic copy available at: http://ssrn.com/abstract=2465531

deaths in the family. In every undivided family, its members share a community of interest
and common enjoyment of possession of the common ancestral estate, till death of such
members.4 No member of a HUF, whilst the same remains undivided can raise a claim that he
has a certain definite share in the joint and undivided property of the HUF.5 After the death of
the common ancestor, a joint family does not come to an end. It is only that for bringing a
joint family into existence that a common ancestor is required but for its continuation his
presence is not required. The HUF property devolves down amongst its members by law of
survivorship, i.e., upon the death of any one of the members of the HUF, the others shall take
by survivorship that which the deceased had during his life time, in common possession. The
rights of the members over the HUF properties, which they acquire by virtue of their birth,
shall be ascertained only by way of partition.

So long as the members of a family remains undivided, the father of the family and in his
absence, the senior member of the family is entitled and presumed to manage the joint family
properties as the Karta of the family. He is vested with the power to contract debts, to make
contracts and to compromise or discharge claims with respect to the joint family purpose and
family business. However Karta is not entitled to alienate the undivided properties except for
meeting legal necessities or for the benefit of the estate.6

HUF and the Hindu Coparcenary

A Hindu Coparcenary is a much narrower body than the undivided Hindu Family. A single
HUF may have more than one coparcenary within it. A coparcenary is constituted by persons
who acquire by birth, an interest in the joint or coparcenary property and shall include the
three generations next to the holder in unbroken male descent.7 A property to be considered
as part of the Coparcenary it ought to be ancestral i.e., such property which has been inherited
by a person from his direct male ancestor, not exceeding three degrees higher than himself.
For instance if A has inherited a property from his father, then that property shall be the
coparcenary property of the A’s son/s, grandson/s and great grandson/s and they will acquire
an undivided coparcenary right in such property by virtue of their birth.8

4
See Mayne , Hindu Law & Usage, Bharath Law House, New Delhi,(1998) (Ed 14) at p 611 ¶ 280
5
Appovier v Rama Subbayyan, (1866)11 MIA, 75
6
See Mulla, supra note 3 p. 422
7
Id p. 359
8
By virtue of the Hindu Succession Amendment Act, 2005, daughters are also given the same rights as that of
the sons and hence they shall also have right by virtue of their birth in the coparcenary property.

Electronic copy available at: http://ssrn.com/abstract=2465531

In Arunachala Mudaliar v Muruganantha Mudaliar9 the Lordships had observed that

.....the foundation of the doctrine of equal ownership of father and son in ancestral
property is the well-known text on Yagnavalkya: vide Yagnavalkya book 2, 129, which
says : The ownership of father and son is co-equal in the acquisitions of the
grandfather, whether land, corody or chattel. It is to be noted that Vijnaneswar
invokes this passage in Chap. I, sec. 5 of his work, where he deals with the division of
grandfather’s wealth amongst his grandsons. The grandsons, it is said, have a right
by birth in the grandfather’s estate equally with the sons and consequently are
entitled to shares on partition, though their shares would be determined per stirpes
and not per capita.
However in the case of a self acquired property, things are a shade different. For instance, if
A is having a self acquired property then B, who is a son of A will not acquire a right in that
property by birth neither will he have any vested rights in that property during A’s life time.
But if B is inheriting that self acquired property of A on the event of death of A, then that
property shall become the ancestral property of B and his son/s, grandson/s and great
grandson/s shall acquire a coparcenary right in that property on their birth.

Such property inherited from paternal ancestors is, of course, ancestral property as regards
the male issue of the propositus, but it is his absolute property and not ancestral property as
regards other relations.

If A inherits property, whether movable or immovable, from his father or fathers

father, or fathers father’s father, it is ancestral property as regards his male issue. If
A has no son, sons son, or son’s, son’s son in existence at the time when he inherits
the property, he holds the property as absolute owner thereof, and he can deal with it
as he pleases10.
In Mitakshra Law the property may be divided into two classes, unobstructed heritage or
(apratibandh daya) and obstructed heritage (sapratibandh daya).11 The property in which the
son, grandson and great grandson have a birth right is called unobstructed heritage which
means that without any obstruction the male issue has a right by birth. Therefore, by way of
a necessary corollary, the son (which expression includes a grandson and great grandson) can
restrain the father from alienating the property for any purpose not recognized by Hindu Law.
The right of the son to the property arises from the mere fact of his birth in the family, and he
becomes coparcener with his father in ancestral property by birth. But property, the right to
which accrues not by birth but on the death of the last owner without leaving male issue is

9
AIR 1953 SC 495
10
See Mulla supra note 3, p. 372.
11
See Mayne, supra n.4 at ¶ .285 p 617
called obstructed heritage. It is called obstructed heritage, because the accrual of the right to
it is obstructed by the existence of the owner.12 The unobstructed heritage devolves by the
rule of survivorship and the obstructed heritage by succession.

Even though we always talk about four generations whenever we come to the topic of Hindu
Coparcenary, it does not necessarily mean that the Hindu coparcenary shall not extent beyond
the orbit of the fourth generation. As West, J pointed out, “The Hindu law does not
contemplate a partition as absolutely necessary at any stage of the descent from a common
ancestor”. A member of a joint family may be removed more than four degrees from the
common ancestor (original holder of coparcenary property) and yet he may be a coparcener.
Whether he is so or not depends on whether he can demand partition of the coparcenary
property. If he can, he is a coparcener but not otherwise. Partition may be demanded by any
member of a joint family who is not removed more than four degrees from the last holder,
however remote he may be from the common ancestor or original holder of the property.

When a member of a joint family is removed more than four degrees from the last holder he
cannot demand partition, and therefore, he is not a coparcener. On the death, however, of the
last holder, he would be entitled to a share on partition, unless his father, grandfather and
great grandfather had all predeceased last holder since, whenever a break of more than three
degree occurs between the holders of property the coparcenary shall come to an end.13

II. IMPACT OF HSA 1956 ON HINDU COPARCENARY

Hindu Succession Act, 1956 (hereinafter called THE ACT) brought about changes in the law
of succession and gave rights which were till then not known, in relation to a woman's
property. It gave a woman greater property rights, allowing her full ownership rights instead
of limited rights in the property she inherits.14 The daughters were also granted property
rights in their father's estate. To comprehend the impact of the Act on the Mitakshara
coparcenary rights, it is necessary to understand the scope and ambit of Sections 6 and 8 of
the Act. Section 6 of the Act deals with the devolution of an "interest" in a Mitakshara
coparcenary property and section 8 of the Act deals with the devolution of "property" itself of
a male Hindu.

12
See Mulla supra n. 3, at p. 323.
13
Id p. 363
14
See Law Commission of India,174th Report on, “Property Rights of Women: Proposed Reforms under Hindu
Law”, May, 2000, p. 5
The provision regarding succession under 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
had met with a storm of conservative opposition from the majority of the Constituent
Assembly and Mitakshara coparcenary was forced to be retained in the Act with males as
coparceners15. However Section 6 of the Act recognises the devolution of interest in a
coparcenary property by rule of survivorship amongst its members with an exception that if
the deceased has left him surviving a female relative specified in Class I of Schedule I, or a
male relative specified in that Class who claims through such female relative, the interest of
the deceased in the Mitakshara coparcenary property shall devolve by testamentary or
intestate succession under this Act and not by survivorship. 16

For determining the share of heirs in the property of a deceased coparcener the Explanation to
Section 6 requires the assumption of a fictional partition taken place between the deceased
and coparceners immediately before his death and the share of the deceased coparcener shall
be deemed to be the share in the property that would have been allotted to him in such a
partition. The inevitable corollary of this position is that the heir of the deceased will get his
or her share in the interest which the deceased had in the coparcenary property at the time of
his death, in addition to the share which he or she received or must be deemed to have
received in the notional partition.17

The language of the main provision is to the effect that "... interest in the coparcenary
property shall devolve by survivorship upon the surviving members". This indicates that the
devolution by survivorship is with reference to the deceased coparcener's interest alone and
this coupled with the notional partition contemplated in Explanation 1 under the section for
the ascertainment of the interest of the deceased coparcener in a Mitakshara coparcenary
property indicates that there is no disruption of the entire coparcenary. It follows that the
other coparceners would continue to be joint in respect of the other coparcenary property till
a partition is effected.

Section 8 of the Act deals with the general rules of Succession in the case of Hindu Males
dying intestate. The Section is applicable with respect to the succession to the separate

15
See The Constituent Assembly of India, (Legislative) Debates Vol. VI 1949 Part II
16
Proviso to Section 6 of the 1956 Act (Before 2005 Amendment)
17
See Gurupad v Heerabai, AIR 1978 SC (India 2000) 1239
property of a Hindu Male dying intestate and to the interest of a coparcener in the undivided
coparcenary property who leaves behind female relative specified in Class I of Schedule I, or
a male relative specified in that Class who claims through such female relative.

Separate Property of Hindu Male

The properties over which a Hindu Male is having an absolute right can be considered as his
separate property. The self acquired properties of a person shall definitely fall under the
ambit of separate property.

If a paternal ancestor is partitioning his coparcenary properties amongst his lineal

descendants, the share allotted to such ancestor shall be considered as his separate property
and shall devolve upon further by law of Succession laid down under Section 8.

A, his sons B and C constituted an undivided family. There was a partition in this family
under which A was allotted certain properties as and for his share and got separated. The
properties which were thus allotted to A will be the separate properties of A. On the event of
A dying intestate, the properties shall be devolved by way of intestate succession and not by
survivorship.

Further any property or interest in a property, vested upon a person by virtue of an intestate
succession under Section 8, such properties shall be the separate property of that person, over
which he will be having absolute rights.

2005 Amendment Act

The Amendment Act of 200518 has made daughter of a coparcener, a coparcener along with
the son and has given her equal rights in the coparcenary property as that of a son including a
right to demand partition. The Amendment has given away the proviso to the old section as
the same will be having no relevance when the daughter is made a coparcener. The
subsection (3) to the Section presently stipulates that, on the death of a coparcener, there shall
be a deemed division of the property to which such coparcener is entitled, as if a partition has
taken place. Upon such notional partition the share of the deceased coparcener shall be
notionally divided amongst the legal heirs of the deceased coparcener in accordance with the
Section 8 of the Act i.e., when a coparcener dies intestate, his share in the coparcenary shall
18
However, the old Section 6, though substituted by the 2005 Amendment shall continue to be relevant in
certain aspects. The 2005 Act has substituted and not repealed the old provision and to understand fully the
implication of the new section, one has to know the old one. Further, the operation of provisions of new section
6 is prospective and, therefore, the old section shall continue to apply to cases that arose prior to the amending
Act came into force.
automatically devolve upon his class I legal heirs by way of intestate succession and not to
the coparceners by survivorship. They shall take the property per capita and not per stirpes
and as tenants in common and not as joint tenants.19

If we are asking the question whether the universalising of the law of inheritance, as
envisaged under the Hindu Code Bill has been put to effect by the Amendment, the answer
will be definitely negative. It is interesting to note that even when the section is talking about
devolution of the interest of the deceased coparcener by intestate succession, in the same
breath it is saying that the daughter of a coparcener shall by birth become a coparcener and
will have the same rights and liabilities in the coparcenary property, implying that the
coparcenary business shall go on as usual.

CONCLUSION

Be the 1956 Act or the 2005 Amendment, while altering the basic structures of the Hindu
Joint Family concept, both the legislations have retained the concept of coparcenary in the
superstructure. Traditionally the coparcenary and the Hindu undivided family as a whole
were patriarchal, which wholly excluded the women folk of the family. It was always the
sons, grandsons and the great grandsons and never the daughter and her lineal descendants. It
was this picture that was redrawn by the Hindu Code Bill and by the 2005 Amendment. Even
though the Hindu Code Bill of the B N Rau Committee, originally intended to abolish
Mitakshara Coparcenary and to replace it with the concept of Dayabhaga 20, the Hindu
Succession Act came out in 1956 with the Mitakshara Coparcenary accommodated within it,
though in a slightly diluted form. The rule of survivorship was watered down by including a
proviso that the interest of a coparcener in a Mitakshara Coparcenary shall devolve down
upon the other coparceners by rule of survivorship only if he is not survived by a female
relative specified in Class I of Schedule I, or a male relative specified in that Class who
claims through such female relative. Thus unlike the then existed Mitakshara view, which
gave more importance to the Hindu Joint Family system over the coparcener’s blood
relatives, the 1956 Act gave importance to the welfare of the latter. The 2005 Amendment
Act brought in a revolutionary change by making daughter of the coparcener a coparcener,

19
See Section 19 of the HSA, 1956
20
Under the Mitakshara rule the agnates of a deceased are preferred to his cognates; under the Dayabhaga rule
the basis of heirship is blood relationship to the deceased and not the relationship based on cognatic or agnatic
relationship. The Bill intended to universalise the law of inheritance by extending the Dayabhaga rule to the
territory in which the rule of the Mitakshara then operated. See Constituent Assembly (Legislative) Debates,
Vol. IV, 9th April 1948, pp. 3628-33
along with the son. It uprooted the existing norms that a woman cannot be a coparcener and
that she can never become the Karta of the joint family. The Amendment Act has totally
eliminated the concept of devolution of interest in a coparcenary property by survivorship.
The interest of a coparcener shall continue to be diminished by births in the HUF, but the
same will not be further increased by deaths in undivided family. A Hindu undivided family
which was in existence at the time of commencement of the Amendment Act shall wither
away slowly and shall disappear finally either by the inevitable demise all the existing
coparceners or by a partition on the demand of a coparcener.

However, it is worthwhile to note that the Amendment Act also has not abrogated the concept
of Coparcenary as such. A new coparcenary may be formed on the partition of an existing
coparcenary by the partitioned coparceners with their sons and daughters. On the partition of
a coparcenary property, each of the partitioned coparceners shall form their individual
coparcenaries with their sons, daughters, grandsons and great grandsons. A new coparcenary
may be also formed by the deliberate pooling up of separate properties of a person, along
with his son/s and daughter/s, which is enjoyed jointly by the members of the coparcenary.