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Published: Fri, 02 Feb 2018
Co parcenary – The system of copartionary
Formation of Mitakshara coparcenary – A single person cannot form a coparcenary. There should be at least two male members to constitute it. Like a hindu joint family, the presence of a seniormost male member is a must to start a coparcenary. A minimum of two members are required to start and to continue a coparcenary. Moreover, the relation of father and son is essential for starting a coparcenary. For example, a hindu male obtains a share at a time of partition from his father and then gets married. Till the son is born, he is the sole male in this family, but he alone will not form a coparcenary. On the birth of his son, a coparcenary comprising of him and his son, will come into existence. When this son gets married, and a son is born to him, the coparcenary will comprise the father F, his son S, and his grandson SS.
When a coparcenary is started, the seniormost male member, with his son, that is, lineal male descendant, till four generations (inclusive of him) of male line will form a coparcenary. If there is a lineal male descendant in the fifth generation, he will be the member of the joint family, but will not be a coparcenar as he is removed from the seniormost male member by more than four generations.
When all the coparcenars die, leaving behind only one of them, the surviving coparcenar is called the sole surviving coparcenar. As a minimum of two male members are required to form a coparcenary, a sole surviving coparcenar cannot form a coparcenary all by himself.
Why is coparcenary limited? The coparcenary is limited to three generations of lineal male descedance of the last holder of the property owner. According to the tenets of hinduism, only descendants up to three generations can offer spiritual ministrations to the common ancestor. Besides, only males can be coparcenars because the females invariably leave the father’s house and assume domestic duties as they enter in the husband’s home.
Unmarried women, until 1956 only had the right of maintenance from the joint property, which included only the marriage expenses.
The 1937 legislation allowed a widow to move into the shoes of her deceased husband and inherit his share. However, she does NOT become a coparcenary to this joint property.
Doctrine of revertioners |
Hindu Succession Act, 1956: -> for the first time, the widow got full rights in her husband’s property. =>S. 14 of the Act.
2005 Act ->daughters, by birth, got coparcenary rights.
Women as coparcenary: Under Mitakshara coparcenary, women cannot be coparcenars. A wife, under hindu law, has a right of maintenance out of her husband’s property. Yet she is not a coparcenar with him. Even a widow succeeding to her deceased husband’s share in the joint family, under the Hindu Womens (right to property) Act, 1937, is not a coparcenary.
Unity of possession, and community of interest – One of the basic features of coparcenary is unity of possession, and community of interest. All the coparcenars jointly own the coparcenary property and till a partition takes place, and their shares are specifically demarcated, no one can claim ownership over any specific item of the coparcenary property. The proceeds of undivided family are enjoyed by its members as till a partition takes place, they hold everything jointly. Coparcenary property suggests ownership by one group collectively, and enjoyment and possession of it by not only this group exclusively, but by the joint family members who are outside this group.
Doctrine of survivorship – The shares of the coparcenars are not specific and are subject to change with the births and deaths of the coparcenars, in the family. Under the traditional or the classical law, on the death of the coparcenar in a joint family, his interest in the family property is immediately taken by those coparcenars who survive him, and thus, he leaves nothing behind out of his interest in the coparcenary property for his female dependants. This phenomenon is called the doctrine of survivorship. On birth, he takes an interest, enjoys it during his life time, but leaves nothing for his female dependants on his death.
In Dayabhaga system, one is entitled to succeed the property after the death of the male holder. Till then, he is just an heir.
Notional Partition – The 1956 Act brought some changes in the coparcener system. Notional partition was taken into consideration to compute and demarcate the shares. i.e. Father and 2 sons => 1/3rd each, though not specified as to what the specific exact division is.
Commencement of coparcenary – One of the primary differences between Mitakshara and Dayabhaga Law is the commencement or the starting of coparcenary itself. Under the Mitakshara law, the starting point of the coparcenary is the birth of the son in the family of a person, who after inheriting the property from his father, or paternal grandfather, or paternal great-grandfather or obtaining property on partition hold it as a sole surviving coparcener. For example, in a coparcenary consisting of a father F, and his two sons A and B, A demands a partition, takes his share and then gets married, when a son is born to him, he will form a coparcenary with his son. Thus, the birth of a son is the starting point or reviving point of Mitakshara coparcenary.
In complete contrast to it, under the Dayabhaga Law, the father so long as he is alive, holds the property as a sole or exclusive owner of it. On his death, if he is survived by two or more sons, they inherit the property, and form a coparcenary. It is the death of the father that becomes the starting point of the formation of coparcenary, under the Dayabhaga Law.
Notional Partition –
It was generally felt that radical reform was required in Mitakshara Law of coparcenary and that where one of the coparceners died, it was necessary that in respect of his undivided interest in the coparcenary property, there should be equal distribution of that share between his male and female heirs, and particularly between his son and daughter. The Hindu Women’s (Right to Property) Act, 1937 conferred new rights on the widows of coparceners.
The initial part of section 6 of the 1956 Act does not interfere with the special rights of those who are members of Mitakshara coparcenary, except to the extent that it seems to ensure the female heirs and daughter’s son, specified in Class I of the schedule, a share in the interest of a coparcener in the event of his death by introducing the concept of a notional partition immediately before his death, and carving out his share in the coparcenary property, as of that date. The section proceeds first by making provision for the retention of the right of survivorship and then engrafts on that rule the important qualification enacted by the provision. The proviso operates only where the deceased has left surviving him a daughter’s son, or any female heir specified in Class I of the schedule.
A and his son B are members of a Mitakshara coparcenary. A dies intestate. Surviving him is his only son B. His undivided interest in the coparcenary property will devolve upon B by survivorship as clearly envisaged in the initial part of the section and not by succession.
A and his sons B and C are members of a Mitakshara coparcenary. A dies intestate in 1958. Surviving him is his widow A1 and his two sons. B and C continue to be members of the joint family. A’s undivided interest in the coparcenery property will not devolve by survivorship upon B and C, but will devolve by succession upon A1, B, and C.
Ref to –
Gurupat v. …..(module)
Shyama Devi v. Manju Shukla (1994) 6 SCC 342.
The amending act of 2005 is an attempt to remove the discrimination as contained in the amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the hindu mitakshara coparcenery property as the sons have. Simultaneously, section 23 of the Act, as disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a joint family, until a male heir chooses to divide their respective shares therein, has been amended by the amending Act of 2005. As a result, the disabilities of female heirs were removed. This a great step and is the product of 174th report of the Law Commission of India.
If P dies, leaving behind a m’other M, and two sons A and B, and three daughters, E,F,G, how would the property devolve?? – 1/6th each.
If P dies, leaving behind a mother M, and a son S, and two daughters B and D, how would the property devolve. – 1/4th each.
P dies, leaving behind a widow W, and his mother M, and his two sons, A and B. – 1/4th each.
P dies, leaving behind his mother M, and his two widows A and B, and a son S.- 1/3rd, 1/6th, 1/6th, and 1/3rd resp.
P dies, leaving behind a son A and a daughter B of a pre-deceased SS, and two sons C, E and a daughter F of a predeceased daughter D. Triple succession.
P dies, leaving behind his two widows A and B, his mother M, two widows C and D and a son S of a pre-deceased son and two daughters E and F and a son G of a predeceased daughter.
Under the old hindu law, conversion by a Hindu to another religion was a disqualification, which was removed by the Caste Disabilities Removal Act, 1850. Under the Act, conversion does not disqualify an heir from inheriting the property of the intestate, but descendants of a convert are disqualified from inheriting the intestate.
Thus, the children of the convert and descendants of the children are disqualified, but if at the time of death of the intestate, any one of them is a Hindu, he is not disqualified. Succession to the property of a convert is regulated by the personal law applicable to the convert after his conversion. The provision of S. 26 may be explained by some illustrations:
An intestate dies leaving behind two sons A and B, and a grandson SS, from a pre-deceased son, who had converted to Islam before SS was born to him. SS is disqualified, and the entire property is inherited by A and B.
P had three sons A, B, and C. C converted to Christianity on 1.1.1979. P died on 1.1.1982. C will get the proerpty (CDRA)
P had three sons, A, B and C. A son R was born to C on 1.1.1976. On 1.1.1978, C converted to Islam. On 1.1.1979, after his conversion, S, a daughter was born to him. C died on 1.1.1980. P dies on 1.3.1982.
Milky Ram v. Milky Ram. AIR 1996 HP 116
Agnates – A person is said to be an agnate of another if the two are related by blood, or adoption only through males. S. 8 of the Hindu Succession Act, 1956 does not give the list of agnates, or state the order in which they are entitled to succeed, but S. 12 of the HSA lays down certain rules of preference, which are determinative of order of succession among agnates, and S. 13 lays down certain rules for determining that order by computation of degrees, both of ascent and descent.
In accordance with the rules laid down in S. 12, agnates and cognates may conveniently be divided into the following subcategories or grades:
Agnates who are descendants – They are related to the intestate by no degree of ascent. Such, for instance, are son’s son’s son’s son, and son’s son’s son’s daughter.
Agnates who are ascendants – They are related to the intestate only by degrees of ascent and no degrees of descent. Such, for instance, are father’s father’s father and father’s father’s mother.
Agnates who are collaterals – They are related to the intestate by degrees, both of ascent and descent, such, for instance, are father’s brother’s son, and father’s brother’s daughter.
Cognates – A person is said to be a cognate of another if the two are related by blood or adoption, but not wholly through males. They may be related through one or more females. Thus, a mother’s brother’s son and brother’s daughter’s daughter are cognates. The three categories of cognates are:
Cognates who are descendants – Such, for instance are son’s daughter’s son’s son, and daughter’s son’s son’s son.
Cognates who are ascendants – Such for instance, are father’s mother’s father, and mother’s father’s father.
Cognates who are collaterals – They are related to the intestate by degrees, both of ascent and descent. Such, for instance, are Father’s sister’s son and Mother’s brother’s son.
Computation of degrees –
Application of the rules of preference governing order of succession laid down in S. 12 involves computation of the degrees of relationship between the intestate and his agnates or cognates.
That relationship is to be reckoned from the intestate to the heir in terms of degrees with the propositus (intestate) as the starting point.
There is no rule of discrimination or preference between male and female heirs, and both, male and female relatives by blood, or adoption are treated equally.
The computation of degrees of ascent or descent is to be so made that it is inclusive of the intestate.
The relationship must be reckoned from the propositus to the heir on terms of degrees with the propositus as the terminus aquo (S. 13(ii)).
The other rule is that every generation constitutes a degree, either ascending or descending (S. 13(iii).
Rules of preference – The order of succession among agnates or cognates is governed by three rules of preference, laid down in S. 12, which are common to both the categories of heirs. In order to determine which of the two or more claimants in the category of agnates or of cognates, recourse must be taken to rule 1 and 2, laid down in S. 12, and initially to rule 1. When one competing heir is not entitled to be preferred to the other under rule 1 or 2, they take simultaneously, under Rule 3.
Rule 1 – This rule is pivotal and enacts that, of two heirs, the one who has fewer or no degrees of ascent is preferred. Illustration – If the two competing heirs are two collateral agnates, that is, brother’s son’s daughter, (father’s son’s son’s daughter), and b) paternal uncle’s son (father’s father’s son’s son). The former, who has only 2 degrees of ascent is to be preferred to the latter, that has three degrees of ascent.
Rule 2 – This rule enacts that where the number of degrees of ascent is the same, the one who has fewer or no degrees of descent is preferred. Illustration – The competing heirs are two collateral agnates, a) brother’s son’s daughter (father’s son’s son’s daughter), and b) brother’s son’s son’s daughter (father’s son’s son’s son’s daughter). Again, the former is to be preferred, because, in spite of having two degrees of ascent, each, the former has only three degrees of descent compared to the latter’s 4.
Rule 3 – This rule enacts that where neither heir is entitled to be preferred, under rule 1 or two, they take simultaneously. Illustration – The competing heirs are two agnates, a) son’s son’s son’s son, and b) son’s son’s son’s daughter. There are no degrees of ascent, and the number of degrees of descent is the same in case of both, and both stand in the same degree of descent. Therefore, neither heir is entitled to be preferred. Illustration 2 – The competing heirs are two cognates, a) daughter’s son’s son, and b) son’s daughter’s son. The position is similar, to that of illustration 1 and they take simultaneously.
Property of a female Hindu to be her absolute property (S. 14 of HSA, 1956)
Prior to the coming into force of this Act, a woman’s ownership of property was hedged in by certain delimitations on her right of disposal and also on her testamentary power in respect of that property. The restrictions imposed by Hindu Law on the proprietary rights of a woman depended on her status as a maiden, as a married woman, and as a widow. The rule laid down in Subsection 1 has very wide and extensive application, and the act overrides the old law on the subject of Stridhana in respect of all property possessed by a female, whether acquired by her before or after the commencement of the Act, and this section declares that all such property shall be held by her as full owner. The Act confers full heritable capacity on the female heir, and this section dispenses with the traditional limitations on the powers of a female hindu to hold and transmit property.
The word acquired in subsection 1 is to be given the widest possible meaning, and the interpretation of the expression ‘possessed’, in the initial part of the section appears to have been deliberately used by the legislature. The supreme court expressed, in the context of property, possessed by a female hindu, “obviously mean that the property must be in possession of the female concerned at the date of the commencement of the Act”. The possession might have the either actual or constructive or in any form recognized by law.
The word ‘possessed’ is used in this section in a broad sense, and as pointed out by the Supreme Court, it means “the state of owing or having in one’s hand all power”. It did not mean actual, physical possession, or personal occupation of the property by the female, but maybe possession in law.
Inheritance, how to be allotted among sharers (Hanafi law)
The sharers receive their respective shares according to the following rules:
Father – When there is a child or child of a son, how low so ever, the father takes 1/6th. But, where there is a child, or child of a son, how low so ever, the father inherits as a residue.
True Grandfather (from the father’s side, i.e. father’s father) – Grandfather can never take any share where there is father , but where there is no father , but there is a child, or child of a son, how low so ever, the true grandfather takes 1/6th.
Husband – takes 1/4th of his wife’s estate, where there are children, or child of a son, how low so ever, and a moiety, that is, half when there are none of the above relations.
Widow– The widow takes 1/8th of her husband’s estate, where there is a child, or child of a son HLS, and a fourth where there are none. In case of two or more wives, the share is not increased. The wives divide the share equally amongst themselves.
Mother – Mother, when co-existing with the child, or the propositus, or a child of a son HLS, or two or more brothers or sisters, whether full, consanguine or uterine, takes 1/6th. Where there are no children, nor sons’ children, and only one brother or sister, the mother will take one third with the widow,
True grandmother – Grandmothers, both maternal and paternal can never take any share of the property, when there is a mother nor can paternal grandmothers inherit when there is a father, or nearer true-grandmother, either paternal or maternal, or an intermediate true-grandfather.
The share of a maternal grandmother is one sixth, and the same share belongs to the paternal grandmother. The share is not increased in case of two or more true grandmothers.
Daughter – When there is no son, and there is only one daughter, she takes a moiety (half of the property as a legal share). Where there is no son, and two or more daughters, they together take 2/3rd of property. If a daughter co-exists with a son, she inherits as a residuary, the son getting twice than that of the daughter.
Son’s daughter – Where only one and no child or son’s son or other lineal male descendant, she gets half. B) When two or more, and no child or son’s sons, or other lineal male descendants, she takes two-third. C) When coexisting with one daughter and no son, or son’s son, or other lineal male descendant, she gets one-sixth.
Uterine brother – When two or more, they take one-third provided there is no child or child of a son, HLS, or father, or true grandfather
Uterine sister – The uterine sister takes, like the uterine brother.
Full sister, where only one and no child, child of a son HLS or father, or true grandfather, or daughter or son’s daughter, or full brother, she takes half, but when two or more, they jointly take two third of the inheritance. With the full brother, she becomes a residuary.
Manu Smriti – Manu’s law (not written by him, but an anonymous person).
Narada – (Nepali saint, not the one who said ‘narayana narayana’).
Commentaries on Yagnavalkya written by Vigyaneswara => Mitakshara School
Therefore, mitakshara was a commentary written on Yagnavalkya, which became the law in the whole of India, except Bengal, parts of Bihar, and Orissa.
Dayabhaga – Digest on Hindu Law, written by Saint Jimut Vahan.
Coparcenary property is never inherited, but always goes by doctrine of survivorship.
Survivorship – In a coparcenary, whoever survives, takes the property.
Unity of possession, community of interest => Owned by few, but enjoyed by everybody.
Testamentary disposition of the coparcenary property was not allowed by the classical law.
Logic => It will clash with the doctrine of survivorship. When a man dies, his interest is taken by the other coparceners.
Survivorship cannot be applied to separate property, or property after partition.
Anything acquired with the help of joint family funds takes the character of joint family property.
Illustration – A person uses joint family funds to improve upon his personal property. The latter assumes the character of joint family, if the funds were not taken with the intention of a loan.
Hindu Gains of Learning Act, 1930 => If a person is educated out of joint family property, his salary is separate property (before this Act, there was a lot of confusion over the issue, and the court on one occasion, even held that the salary is joint property).
The first legislative inroad in the classical concept of coparcenary came in 1937.
This enactment was to improve the rights of those who became members of a joint family by marriage.
It was found out that even though women were entitled to maintenance out of the coparcenary property, it was seen that the surviving coparceners were quick in taking the property, but did not provide maintenance.
In order to deal with this problem, the legislature came up with the H W Rt to property Act, saying that the widow would step into the shoes of the deceased coparcener, and hold that property till their death. This was only for those who entered the family by marriage (and not daughters).
This implied that the application of doctrine of survivorship was put on hold and postponed as long as the widows were alive (or remarried).
Hindu Succession Act, 1956 –
Under this Act, several inroads were made into the classical concept of coparcenary
In case the coparcener wanted to make a testamentary disposition of his share, he was allowed to do so. Before this Act, a coparcener had to ask for a partition before he could testamentarily dispose off his share. Therefore, the undivided share could not be disposed off before the partition. S. 30 of the HSA provided for such disposition. 
If any member died as part of Mitakshara undivided coparcenary, his share in the undivided property would go by intestate succession under the act, and not by survivorship, if he left behind any female heirs, specified in Class I of the schedule. Laws of inheritance would apply to such property, and not survivorship.
In Kerala, the entire concept of joint family was abolished in 1975-76.
In Andhra Pradesh, unmarried daughters were introduced as coparceners, in 1985.
In Tamil Nadu, an identical Act was passed in 1989.
Maharashtra and Tamil Nadu followed suit in 1994.
Hindu Succession (Amendment) Act, 2005 –
Daughters made coparceners.
No application of doctrine of survivorship for Hindu Male Coparceners.
Survivorship has expressly been retained for female coparceners. Therefore, if a female coparcener died, it was ensured that the property would not go to her husband, but back to the coparceners in her father’s home.
In classical law, at the time of partition, the women who had entered the family, by marriage were entitled to get an equal share. However, this was the case only in the three sub-schools of Mitakshara, i.e. Benares, Mithila, and Bombay. In the Dravida School, this was not allowed.
Each of them take the property as their separate property. Therefore, if in a family of Father, Mother, and three sons, in case of partition, father and mother  will take 1/5th each as their separate property.
Indian Succession Act, 1925:-
Originally passed in 1865, and consolidated in 1925.
Majority of the Christian Population (except goa, daman & diu etc.)
All those persons who marry under SMA, and the property of the issue of such marriage, except to Hindus after 1976 (after Indira Gandhi v. Maneka Gandhi).
1976 – Two Hindus marrying under SMA, succession to their issues, shall NOT be governed by the ISA.
ISA is based on Roman and English principles.
If a man or a woman dies, the scheme does not change, i.e. the sex of the intestate is irrelevant.
No recognition of joint family property; only separate property is recognized.
No discrimination b/w agnates and cognates. The following order of preference is followed.
(ii) Mother, Brother, Sister.
(iii)Kindred – grandparents, and their children upto the 2nd level. 
No difference b/w half blood, full-blood and uterine relations. However, illegitimate children are not recognized (S. 100).
General Comment – In case of succession, one has to see from the perspective of the deceased to see which law will apply, and not from the point of view of the heir.
Bhagatram v. Teja Singh AIR 2002 SC 1.
MUSLIM LAW –
Residuaries – Muslim Law Class 2 Agnatic heirs (residuaries or asabat) –
Agnatic heirs in preference is generally used to the misleading term ‘residuaries’. Residue and ‘residuary’ gives an impression that what is left of the property after the share of Class I heirs are satisfied, according to their specification, but it is not true because the bulk of the property remains as residue. This important class belongs to son, father (in few cases), brother, paternal uncle, etc., who are important male relations and expected to get more.
Classification of these heirs are recognitions of Pre-Islamic customs, and Class I is given preference, owing to the respect in Koran. Else, the bulk of the property, devolves to agnatic heirs, the persons whose rights were always recognized by tribal law.
Classes of agnatic heirs –
The male heirs in the list of residuaries, who are heirs in their own rights:
This class of residuaries derive their right from another. They are 4 females:
Daughter in the right of son,
The son’s daughter HLS as a residuary in the right of son’s son, HLS
Full sister in the right of full brother, and
Consanguine sister in the right of consanguine brother.
This class becomes a residuary with others in certain circumstances
Full sister, and consanguine sister, when they succeEd with daughters and son’s daughter, HLS.
Bajya v.. Smt. Gopikabai
Amar Kaur v. Raman Kumari AIR 1985 Punj & Har.
Indian Succession Act, 1865 –
E.V. George v. Thomas.
PARSI LAW OF SUCCESSION–
Division of intestate’s property among widow, widower, children and parents –
Legislative change and its effect –
Section 57 has been substituted in place of S. 51, which was incorporated in the Statute by the Act of 1939, by the amending Act of 1991 wef from December 9, 1991. Accordingly, in case a Parsi dying before 9th Dec, 1991, his property shall be distributed in accordance with the law at the time of his death. But the new law will be applicable when the intestate died on or after 9 dec, 1991. Drastic changes have been made in the matter of distribution of property of a Parsi intestate by the amending Act of 1991.
The right of the widower is recognized for the first time.
The daughter’s share shall now be equal to that of a son and widow or widower as the case may be.
Distribution of shares under Subsec 1 is subject to the rule contained in subsec 2. The rule enacted in clause A of subsection 1, may be conveniently explained in the following way:
Consider a situation in which there are four children and a widow/widower. The widow or the widower as the case may be, and each child shall receive equal shares. Thus, each of them in the above case, shall get 1/5th of the Estate.
Clause (b) deals with the manner of inheritance, where there is no surviving widow or widower. In that event, the distribution shall be made among the children in equal shares.
Subsection (2) – the distribution of shares in accordance with subsec (1), shall be varied when the intestate Parsi dies leaving one or both parents, in addition to children or widow or widower and children. In that event, the estate of the deceased shall be so divided that the parents of each of the parents shall receive a share equal to half of the share of each child.
Division of intestate’s predeceased lineal descendant’s share – the rule enacted in different clauses of S. 53 provides how the intestate’s predeceased lineal descendant’s share shall have to be distributed. The principle in this regard is that if any child had predeceased intestate, the share of the child, which such child would have taken, if he were alive at the time of the intestate’s death shall be in accordance with clauses (a), (b), (c) or (d).
If the predeceased child was a son, and he died leaving widow and children, then his share shall be divided in accordance with S. 51(1A).
This clause deals with a case where the pre-deceased’s lineal descendant was a daughter. Her share shall go to her surviving children only. Her husband shall not inherit from her.
PARSI INTESTATE SUCCESSION –
Relatives specified in Part I, schedule II are
Father and mother,
Brothers and sisters, and Lineal desc
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