INTROUDCTION
Every individual in this country or in the world has several personal rights as defined by the constitution. We have the liberty to buy & own a certain property which also gives us the right to sell it or has to be passed it on to the next generation by the operation of law. An individual may own a certain number of properties which the family enjoys initially. But after the death of that individual, it gives rise to a major complexity of ownership of that deceased individual. If the deceased has made & probated a will in advance before his death, then the next ownership rights of the property are already well defined & shall go through with that respect. The question of ownership arises with the ascendants when there is an absence of will.
COPARCENARY
A coparcener is the one who has legal right since birth in his ancestral property followed in Hindi undivided families. The eldest memories & all the 3 generations therefore are considered to have coparcenary in the ancestral property. Initially, only males were considered as coparceners & the share of the members keeps on changing depending upon the additions of new male members in the family. The main difference between the coparceners & members of Hindi joint family is that coparceners can enforce partition whereas members cannot. Buddhist, Jain, Sikh are also governed under coparcenary. It is to be noted that coparcenary is applied not only to the ancestral property but also applied to the self-acquired property. A female were not eligible as a coparcener in the ancestral property of her descendants. This was followed until the year 2005 according to the law. Post 2005, even the females of the family got the rights to be a coparcener & there was an end to this unjust discrimination as the laws keep on getting amended according to the evolving society.
RIGHTS OF A COPARCENER –
- Community of interest & possession – A coparcener is not entitled to any special interest in the property nor can have an exclusive possession.
- Share of income – Any income obtained by some property shall be shared within all the coparceners provided that the property is partitioned. It is not necessary that all the coparceners will have an equal share because the share shall vary each time there is an addition or deduction of a coparcener.
- Joint possession & enjoyment – There is a right vested in each coparcener where he can possess & enjoy the ancestral property. Denial by any means to do so can allow the excluded coparcener to file a suit & then can be legally order to have a share in the possession & enjoyment.
- Right against exclusion – Coparcener being excluded from the rights of the ancestral property by the other coparceners can allow that respective coparcener to file a suit against exclusion & the court can thus order restraining the other coparceners from restraining of property.
- Right of maintenance & other necessary expenses – Coparcener has the right to obtain maintenance & other expenses which should deem necessary for survival from the ancestral property & also entitled to obtain expenses for the ceremonies of his children’s which can include marriage or other spiritual ceremonies.
- Right to restrain improper acts – If the acts of a coparcener cause damage to other coparceners, then such acts can be arrested curbing further damages to the coparceners & the property.
- Right to enforce partition – A coparcener can demand for partition from other coparceners & can exclude him later on after getting his required share according to the law procedure.
- Right to account – Coparcener has no authority to demand details of the accounts from the ancestral property until & unless he is demanding partition.
- Right of alienation – Divided interest of a coparcener can be alienated by the coparcener himself.
- Right to impeach unauthorized alienation – Alienation can only be impeached by a coparcener or the transferee who may have acquired the interests of the joint family in the property.
- Right to renounce – Any coparcener has the right to renounce his interests from the coparcenary property any moment he wishes to provided he informs his intentions to other coparceners. No formalities are necessary to renounce.
- Right of survivorship – If a coparcener in the family dies; the interest of that deceased coparcener is naturally transferred to remaining coparceners.
- Right to make self-acquisition – Coparcener can acquire property on his own & that property can be individually owned by the coparcener where the other coparceners won’t have any right or authority over that property.
- Right to manage – The senior most member of the coparcener has the right to manage the business & the coparcenary property including the interests provided that he is not incapacitated by doing so.
KARTA
The amendment in Hindu Succession Act, 2005 made the female as a coparcener as well aforementioned. Preceding the amendment, Karta was supposedly only the senior most male member of the family. The junior member could also become the Karta provided the senior male gave up his rights of being a Karta & there were no possibilities of a female counterpart as a Karta. The amendment broke the inequalities in the law by amending section 6 & also gave right for a female to be a coparcener. If the female member is married, she does become a part of the joint family of her husband & cease to be a member of her father’s joint family but her right as a coparcener are not surrendered by the law. Widow cannot be a coparcener in the joint property & hence widow can never be a Karta in the coparcenary rights.
HINDU DAUGHTER COPARCENARY
Recently, there has been a judgement passed by Supreme Court which brings about the extension of the existing amendment. It came into notice that there were several aggrieved women under this law where the female members couldn’t claim their rights in their ancestral property. Since August, 2020, women can also claim rights in ancestral property as a coparcener but under certain conditions. Even if the married daughter dies, whatever the married daughter was about to obtain from her ancestors, her children are entitled to obtain what she was about to get in her existence. But interestingly, the daughter cannot gift her share in the Hindu undivided family but has the capability of giving away her share in the coparcenary joint family through a way of will. If there is an absence of creation of will by the daughter, the share in the joint family shall not devolve to the others but shall instead pass on to her respective legal heirs. Even in the case of an adopted daughter, she shall have the share the same rights of a coparcener as the daughter which has been born within the family. Earlier, the coparcenary right was depending up on whether the father was alive during the amendment in 2005. Now, it doesn’t take that into consideration anymore. The daughters of the deceased woman who holds a coparcenary right in her ancestral property can also represent the woman, & can take their share accordingly.
MEMORANDUM OF UNDERSTANDING
It is a possibility within the coparceners that a MoU has been made trying to elaborate the rights belonging to the coparceners with addition to exclusive clauses. The clauses can mention that the coparcenary daughter is leaving her right where the reasons could vary from case to case. This MoU can be overturned in the current developments in the law as there can’t be any satisfactory justification for the chosen act by the coparceners. However, if the MoU is ratified during its time of drafting, it can become difficult for it to be overturned as the title of the draft itself clarifies the meaning of the document. But it is legally acceptable if there is a voluntary action of surrendering the coparcenary share which could be of the male or the female coparcener.
CONCLUSION
If there is non-existence of will in ancestral properties of Hindu male & the male coparceners have a joint right over it, then it is no more considered into validation now since the 2005 amendment in Hindu Succession Act, 1956. The recent judgement of 2020 has also given scope for the female members of the family to be coparceners as it has been ordered that the properties compatible for coparcenary shall also include female members. This has been a twist for all the old ancestral properties & this decision of the Supreme Court shall also aid multiple female members of the family as even they are human beings & shall have equal rights as of the male because there was no explanation present in the law as why the females can’t be coparceners. From now on, the female coparceners shall enjoy all the rights & duties which the male coparceners have been having till now which thus arrest the discrimination between both the sexes.
Article by Mr. Saurabh Pawar in April, 2021 while interning at the Chambers of Advocate Shankarlal Raheja.
Disclaimer: The views herein are personal and while careful attention has been given to ensure that the information is accurate the author assumes no liability or responsibility for any reliance thereon. This article is merely an information-sharing activity and is not a substitute for legal advice. It must be noted that we shall not be liable for any loss or damage caused due to any reliance thereof.
