Evolution of the Concept of Coparcenary Post 2005 Amendment 

This Article is written by Swati Sharma  a student at the Faculty of Law (Delhi University). If you also want to publish your article or case interpretations/summaries, send your work to niyamskanoon09@gmail.com.

Introduction 

A Coparcener, under Hindu law, refers to an individual who acquires an interest in ancestral property by birth and possesses the right to demand partition. This concept is a key element within the Mitakshara School of Hindu law, which not only serves as a commentary on the Yajnavalkya Smriti but also addresses various aspects of Hindu law.

The concept of Coparcenary under Mitakshara law encompasses the following features:

1. A male coparcener, up to four generations from a common ancestor, acquires an equal right to the Hindu Undivided Family (HUF) property by birth. This means that women cannot become coparceners.
2. As a general rule, females do not possess the right to succession in the family’s property.
3. The right to property passes by survivorship, meaning that when a coparcener dies, his share in the joint family property automatically passes to the surviving male coparceners rather than to his heirs.
4. The death of coparcener results in the entry of further generations into the coparcenary to uphold the four-generation rule.

Before the Amendment of 2005

As per Section 6 of the Hindu Succession Act, 1956, when a Hindu male dies having an undivided coparcenary interest in the coparcenary property, his interest shall devolve upon the male members of the coparcenary through survivorship. However, according to the proviso to Section 6, if the deceased Hindu leaves behind a Class I female relative, such as a mother, widow, daughter, the daughter of a pre-deceased son, the widow of a pre-deceased son, the widow of a pre-deceased son's daughter, or a male relative claiming through any of these Class I female relatives (e.g., the son of a pre-deceased daughter), the principle of survivorship will not apply. Instead, the property will devolve through intestate and testamentary succession.

This provision clarifies that before the 2005 amendment when a partition of the joint Hindu family property took place, daughters were excluded as they were not considered coparceners by birth. Consequently, they did not have the right to demand a partition. However, daughters were still entitled to a share in the interest of their father's property after his death.

Legal position after 2005 Amendment 

In 2005, Section 6 of the Hindu Succession Act, 1956, was amended. According to the amended Section 6(1), in a joint Hindu family governed by Mitakshara law, a daughter of a coparcener became a coparcener by birth, in the same manner as a son. As a result, daughters were granted the same rights and were subject to the same liabilities concerning the coparcenary property as sons. However, the proviso clarifies that this provision does not apply to any disposition or alienation, including partition or testamentary disposition, of property that occurred before December 20, 2004.

Section 6(3) completely abolished the devolution of property by survivorship. Therefore, if a male Hindu dies after September 9, 2005, his interest in the coparcenary property will no longer devolve by survivorship. Instead, it will devolve by succession in all cases. To effect this, a notional (imaginary) partition is deemed to have occurred, and the daughters will be allotted a share equal to that of the sons.

The explanation of Section 6(3) clarifies that if a Hindu coparcener dies and his representatives—such as his wife, daughter, or son—are alive, the partition will be treated as if it took place immediately before his death, with each representative entitled to a share in the property.

Landmark judgments

1. Prakash v. Phulavati, 2015: The honorable Supreme Court held that Section 6 of the Hindu Succession Act 2005 is not retrospective in operation and the benefit of the 2005 amendment could be granted only to “living daughter of living Coparcener” as on September 9th, 2005 (the date when the amendment came into force).
2. Danamma@ Suman Surpur v. Amar, 2018: the Supreme Court observed that the principle laid down in Prakash v. Phulavati, 2015 is not correct because the act (2005 Amendment) is retrospective as the coparcener is related by birth, when the son becomes coparcener by birth in a similar manner the daughter will also become Coparcener by birth.
3. Vineeta Sharma v. Rakesh Sharma, 2020: This judgment not only overruled the previous judgments but also interpreted the law in a wide aspect. The court said the right is given by birth to the daughter which may be an antecedent event and the provision operates on and from 9-9-2005, the amendment is retroactive. Thus the right can be claimed by effect of 9-9-2005. But the daughter will be deemed to be the coparcener by birth. 

Conclusion 

The Hindu Succession (Amendment) Act, 2005 marked a significant step towards gender equality in Hindu law by granting daughters the same coparcenary rights as sons. However, judicial interpretations were necessary to clarify its retroactive application and inheritance rights. The landmark judgement Vineeta Sharma v. Rakesh Sharma (2020) settled the legal ambiguity by affirming that daughters have coparcenary rights by birth, irrespective of whether their father was alive on the amendment’s commencement date.

Recent rulings reinforce the progressive intent of the amendment, ensuring daughters’ equal property rights and eliminating patriarchal biases in succession laws. This evolution reflects India's commitment to gender justice, aligning traditional Hindu law with constitutional principles of equality and non-discrimination.