Coparcenary and Coparceners

Concept of Coparcenary

The concept of Coparcenary is a unique feature of Hindu Law, particularly under the Mitakshara school, relating to the joint ownership of ancestral property within a Hindu Joint Family (HUF). A coparcenary is a smaller body within the Joint Hindu Family consisting of those members who have a right or interest in the coparcenary property by birth.

The term "coparcenary property" generally refers to ancestral property, property acquired with the aid of ancestral property, or property thrown into the common stock with the intention of making it joint family property.

The concept of coparcenary and the rights of coparceners vary significantly between the two major schools of Hindu Law: Mitakshara and Dayabhaga.

Mitakshara Law: Coparcenary by Birth

Under the Mitakshara School, the concept of coparcenary is strongly linked to ancestral property and the principle of right by birth (jus in re proprium). A coparcenary traditionally consists of a Hindu male, his sons, grandsons, and great-grandsons (i.e., male lineal descendants up to four degrees inclusive of the holder of the property) who jointly own the ancestral property.

Key features of Mitakshara Coparcenary:

Creation by Birth: A male descendant in the male line (up to four degrees) becomes a coparcener by the mere fact of his birth into the family. He acquires an immediate interest in the ancestral property along with the existing coparceners.
Joint Ownership: Coparcenary property is held jointly by all the coparceners. No individual coparcener has a fixed, defined share while the property remains joint. Their interest is undivided and fluctuating.
Fluctuating Interest: The share of each coparcener in the coparcenary property is not static. It increases upon the death of a coparcener (by survivorship) and decreases upon the birth of a new male descendant (who becomes a coparcener by birth).
Right to Demand Partition: Any adult coparcener has the right to demand partition of the coparcenary property. Partition converts the joint, undivided interest into a defined, separate share.
Devolution by Survivorship: Traditionally, upon the death of a coparcener, his undivided interest in the coparcenary property passed by survivorship to the remaining coparceners, not by inheritance to his personal heirs (like his widow or daughters). This rule has been significantly modified by the Hindu Succession Act, 1956.

The Mitakshara coparcenary is a dynamic body that comes into existence with the birth of a son to a holder of ancestral property and continues through generations, adding new members by birth and losing them by death or partition.

Dayabhaga Law: Coparcenary by Succession

The concept of coparcenary under the Dayabhaga School, prevalent in Bengal and Assam, is fundamentally different. It is not based on birth but on succession (inheritance).

Key features of Dayabhaga Coparcenary:

No Right by Birth: A son does not acquire any right in his father's property (ancestral or self-acquired) during the father's lifetime. The father is the absolute owner.
Creation by Succession: A coparcenary comes into existence only after the death of a male Hindu among those of his male heirs who inherit his property jointly.
Defined Shares: Unlike Mitakshara, Dayabhaga coparceners hold the property as tenants-in-common. Each coparcener has a definite, ascertained share from the moment of inheritance. This share does not fluctuate with births or deaths of other coparceners.
Devolution by Succession: Upon the death of a Dayabhaga coparcener, his defined share in the joint property passes by succession to his own heirs, not by survivorship to the other coparceners.
Right to Alienate Share: Since each coparcener has a defined share, they have the right to alienate (sell, gift, mortgage, or bequeath by will) their share during their lifetime.

Thus, the Dayabhaga coparcenary is essentially a group of co-owners who inherited property jointly, each holding a distinct, alienable share. It lacks the core Mitakshara features of right by birth, undivided and fluctuating interest, and survivorship.

Who are Coparceners?

The identity of who can be a coparcener has evolved, particularly with legal reforms in India. The traditional position depended heavily on the school of Hindu Law.

Historical restrictions on women

Traditionally, under the strict Mitakshara Law, only male members of the family could be coparceners. This included the father, his sons, grandsons, and great-grandsons in the male line. Females, although members of the Joint Hindu Family (like wives, mothers, and unmarried daughters), were not considered coparceners by birth. They did not acquire an interest in the ancestral property by birth and could not demand partition.

Their rights in the joint family property were primarily rights to maintenance, residence, and marriage expenses from the joint family funds. A widow might inherit a share of her husband's separate property upon his death, but she did not become a coparcener in the ancestral property through survivorship.

Under Dayabhaga Law, the concept of coparcenary arising only upon succession meant that female heirs who inherited property along with male heirs could become co-owners, but the strict Mitakshara concept of coparcenary based on birth and survivorship was absent. Even under Dayabhaga, the primary line of inheritance based on spiritual benefit often favoured males.

The exclusion of women from coparcenary rights under the Mitakshara school was a significant feature of traditional Hindu Law and was seen as a major area needing reform to achieve gender equality in property rights.

Impact of Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 (which came into effect on September 9, 2005) brought about a revolutionary change to the Mitakshara coparcenary by removing the discrimination against daughters. Section 6 of the Hindu Succession Act, 1956, as amended in 2005, provides:

"In a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 [the date on which the Bill was introduced in the Rajya Sabha]."

This amendment effectively makes a daughter a coparcener by birth in her father's Hindu Undivided Family (HUF) property, just like a son. She has the same rights, shares, and liabilities as a son in the coparcenary property.

Therefore, under the Mitakshara school as modified by the 2005 amendment, a coparcenary can now consist of:

The father
His sons
His daughters
His grandsons (sons of sons or daughters)
His granddaughters (daughters of sons or daughters)
His great-grandsons (sons of grandsons or granddaughters)
His great-granddaughters (daughters of grandsons or granddaughters)

...provided they are within the limit of four degrees from the common male ancestor holding the property. The amendment applies to daughters born before or after the amendment, provided the father (coparcener) was alive on September 9, 2005 (or December 20, 2004, as per the proviso). The Supreme Court has clarified the retrospective application of this amendment in cases like Prakash & Ors. v. Phulavati & Ors. (2015) 11 SCC 494 and later in Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1, confirming that a daughter has coparcenary rights by birth regardless of whether her father was alive on the date of the amendment, provided she was alive on that date.

This amendment significantly expanded the pool of potential coparceners under Mitakshara law and fulfilled the constitutional mandate of gender equality in property rights. The Dayabhaga school's concept of coparcenary based on succession was not directly altered by the 2005 amendment, as the amendment specifically addressed the Mitakshara coparcenary.

School / Period	Who can be Coparceners?	Notes
Mitakshara (Traditional, Pre-2005)	Male members (father and male lineal descendants up to 4 degrees).	Right by birth. Females (wives, daughters) were not coparceners.
Mitakshara (Modern, Post-2005 Amendment)	Male and female members (father, sons, daughters, grandsons, granddaughters, etc., up to 4 degrees).	Daughters become coparceners by birth, same rights/liabilities as sons. Right by birth for both sexes.
Dayabhaga (Traditional & Modern)	Those male heirs (and potentially female heirs inheriting jointly) who succeed to the property after the owner's death.	Coparcenary formed by inheritance, not birth. Shares are defined. Concept is different from Mitakshara.

Succession under Mitakshara Law

Rules of Succession to Ancestral Property

Traditional Mitakshara Law had distinct rules for the devolution of property depending on whether it was ancestral property (coparcenary property) or separate property. The rules governing succession to ancestral property were based on the concept of coparcenary and survivorship, which differed significantly from the rules of inheritance applicable to separate property.

Order of Succession (Traditional)

Under traditional Mitakshara law (before the Hindu Succession Act, 1956):

1. Devolution of Coparcenary Interest: The most significant rule was that upon the death of a coparcener, his undivided interest in the coparcenary property did not pass by inheritance to his heirs (including his widow or daughters). Instead, it devolved by the rule of Survivorship to the remaining coparceners.

Example: If a father and his two sons were coparceners in ancestral property, and one son died, his interest would pass equally to the father and the other son by survivorship. His widow or children (daughters, or sons if they were not coparceners) would not inherit that interest in the coparcenary property.

2. Devolution of Separate Property: Succession applied only to the separate property of a Hindu male. The order of succession was based on the principle of propinquity, generally preferring male relations over females, and Agnates (relations through males) over Cognates (relations through females).

Impact of the Hindu Succession Act, 1956: The Act brought about fundamental changes. Section 6 of the 1956 Act (as amended in 2005) significantly altered the rule of survivorship. Now, if a male Hindu dies having at the time of his death an interest in a Mitakshara coparcenary property, that interest shall devolve by testamentary or intestate succession under the Act, and not by survivorship, if he leaves behind any Class I heirs (which include widow, daughter, mother, etc.) or male relatives specified in that class who claim through such female relatives. The concept of a defined share for the deceased in the coparcenary property is introduced for the purpose of succession in these cases. Survivorship is now limited to cases where the deceased coparcener does not leave behind such heirs.

The Act also unified the rules of intestate succession for both males and females, establishing a detailed list of heirs and their order of preference (Class I, Class II, Agnates, Cognates), largely replacing the diverse rules of the schools regarding inheritance to separate property.

Propinquity Rule (Traditional)

The Propinquity Rule (nearness of blood relationship) was the governing principle for determining the order of succession to the separate property of a Hindu male under traditional Mitakshara law. The closer the relationship to the deceased through blood, the higher the priority in inheriting the property. This rule was often interpreted to give preference to relations traced exclusively through males (Agnates) over relations traced through females (Cognates) of the same degree of closeness.

Example: Among relations of the same degree, an Agnate (like a paternal uncle) would generally be preferred over a Cognate (like a maternal uncle) under the strict application of the propinquity rule in succession to separate property.

The Mitakshara system of heirs was complex, classifying relatives into various categories like Sapindas, Samanodakas, and Bandhus, with rules to determine priority based on propinquity. Sapindas (related through blood) were preferred over Samanodakas (remote relations), and Bandhus (Cognates) were generally lower in the order of preference.

Impact of Hindu Succession Act, 1956: The Act completely replaced the traditional Mitakshara and Dayabhaga schemes of inheritance for separate property with a new, uniform scheme based on a detailed list of heirs in Class I, Class II, Agnates, and Cognates (Sections 8-13, 15-17). The order of preference and shares are now strictly governed by the statutory list. While propinquity is still implicitly a factor in the structuring of the Class I and Class II heirs and the rules for Agnates and Cognates, the traditional interpretation and rules of preference of the Mitakshara school for inheritance have been superseded by the statutory provisions.

Concept of Unobstructed (Immediate) and Obstructed (Future) Heritage

Under traditional Mitakshara law, property was classified into two categories based on how the right to inherit or obtain a share arose: Unobstructed Heritage (Apratibandha Daya) and Obstructed Heritage (Sapratibandha Daya).

Unobstructed Heritage (Apratibandha Daya)

Unobstructed Heritage refers to the property in which a person acquires a right by birth. This is essentially Coparcenary Property (Ancestral Property). The right is "unobstructed" because it arises immediately upon birth and is not dependent on the death of the last owner or any other intervening event. The sons, grandsons, and great-grandsons traditionally acquired a right in ancestral property by birth.

Example: In ancestral property held by a father and son, the son's right to his share is unobstructed; it arises by his birth into the coparcenary, independent of whether the father is alive or dead.

Since the 2005 amendment to the Hindu Succession Act, daughters also acquire a right by birth in ancestral property, making their interest in such property also unobstructed heritage.

Unobstructed heritage devolves by survivorship within the coparcenary (though now significantly modified by the Hindu Succession Act, 1956).

Obstructed Heritage (Sapratibandha Daya)

Obstructed Heritage refers to property in which a person acquires a right by inheritance only upon the death of the last owner. The right is "obstructed" because it is dependent on the death of the person currently holding the property. This is typically the separate property of an individual.

Example: A son inherits his father's self-acquired property. His right to inherit arises only upon the father's death. During the father's lifetime, the son has no right in this property, and the father can deal with it as he pleases. The son's right to this property is thus obstructed until the father's death.

Obstructed heritage devolves by succession (inheritance) according to the rules applicable to separate property.

Relevance Today

The concepts of Unobstructed and Obstructed Heritage are traditional classifications under Mitakshara law. While the Hindu Succession Act, 1956 has significantly modified the rules of devolution (diluting survivorship and introducing simultaneous succession to coparcenary interest in certain cases), the underlying distinction between property in which a right is acquired by birth (ancestral property) and property in which a right is acquired only by death (separate property) remains relevant for understanding the nature of property holding within a Hindu family and the scheme of the codified law.

For instance, the calculation of the share of a deceased coparcener in ancestral property for the purpose of statutory succession often requires determining the extent of their interest as if a partition had taken place immediately before their death, reflecting the traditional concept of an interest acquired by birth.

Succession under Dayabhaga Law

Rules of Succession to Ancestral Property

Under the Dayabhaga School of Hindu Law, prevalent historically in Bengal and Assam, the rules of succession differ significantly from the Mitakshara school. The fundamental difference lies in the absence of the concept of right by birth in ancestral property during the father's lifetime. Consequently, the rules of devolution for all types of property owned by a Hindu male under Dayabhaga are based on succession (inheritance) upon his death, not survivorship.

For the purpose of succession under Dayabhaga law, the distinction between ancestral property and self-acquired property is less crucial compared to Mitakshara law. Both types of property devolve according to the same rules of inheritance upon the death of the male owner.

Basis of Succession: Spiritual Benefit

The primary principle governing the order of succession under Dayabhaga law is the doctrine of spiritual benefit, specifically the capacity to confer spiritual benefit on the deceased owner through the performance of funeral rites, particularly the offering of funeral oblations (Pindadan).

Sapinda Relationship and Priority

The concept of Sapinda relationship under Dayabhaga law is based on this spiritual benefit. It includes persons who can offer funeral cakes (Pindas) to the deceased, or who can receive Pindas from the same ancestors as the deceased would have offered to, or who participate in the offering of Pindas to a common ancestor.

The order of priority among heirs is determined by the degree of spiritual benefit they confer on the deceased. Those who offer Pindas directly to the deceased have the highest priority. This hierarchy forms the basis for determining the preferential order of succession:

1. Putra (Sons): Sons (legitimate, adopted, etc.), grandsons, and great-grandsons through the male line are the primary heirs. They offer Pindas directly to the deceased. Sons inherit their father's property equally upon his death.

2. Widow: If there is no son, grandson, or great-grandson, the widow succeeds to the entire property of her deceased husband. This was a significant difference from traditional Mitakshara law, where the widow's right to inherit her husband's share in coparcenary property was limited before statutory reforms. The widow's right under Dayabhaga is based on her own capacity to offer spiritual benefit or secure it through her son.

3. Daughter: After the widow, the daughter succeeds. Unmarried daughters are generally preferred over married daughters. The right of the daughter to inherit was recognised, although subject to conditions (like remaining unmarried in some cases). Her right is based on the spiritual benefit conferred by her potential son to the deceased (her father).

4. Parents: Mother and then Father succeed in the absence of closer heirs. Their priority depends on their capacity to receive Pindas from the deceased (as an intermediate step in offering to higher ancestors).

5. Collaterals: After direct descendants and ascendants, the property devolves upon collateral relations like brothers, nephews, uncles, etc. Their priority is determined by their capacity to confer spiritual benefit on the deceased through a common ancestor. Generally, full brothers are preferred over half-brothers, and nephews (sons of brothers) are preferred over other collaterals, based on the efficacy of Pindadan.

The Dayabhaga scheme of inheritance was complex and detailed, outlining specific rules for determining priority based on the degree of spiritual efficacy. The property devolved upon the heirs as co-owners (coparceners in the Dayabhaga sense), each with a defined share they could alienate.

Impact of Hindu Succession Act, 1956: The Hindu Succession Act, 1956 (HSA), applies uniformly to all Hindus, including those governed by Dayabhaga law. The HSA replaced the Dayabhaga scheme of inheritance based on spiritual benefit with a new, uniform scheme based on propinquity and a fixed list of heirs (Class I, Class II, Agnates, Cognates). Therefore, for deaths occurring after the commencement of the HSA (June 17, 1956), succession to the property of a Hindu male (and female) governed by Dayabhaga law is now determined by the rules laid down in Sections 8 to 13 (for males) and Sections 15 to 17 (for females) of the HSA, not the traditional rules based on spiritual benefit. The principles of the Dayabhaga school are now primarily of historical interest for understanding the development of Hindu Law and may still be relevant for certain limited purposes not directly covered by the codified law, or for understanding the nature of property held jointly before 1956.

Example 1. Mr. Das, a Hindu governed by Dayabhaga law, dies intestate in 1950 (before the Hindu Succession Act). He is survived by his wife, a son, and a brother.

Answer:

Under traditional Dayabhaga law (applicable before the HSA, 1956), the primary heir is the son, as he confers the highest spiritual benefit by offering Pindas to the deceased father. The son would inherit all of Mr. Das's property. The wife would be entitled to maintenance from the property inherited by the son, but she would not inherit the property itself if a son is present. The brother, being a collateral, would only inherit if there were no sons, grandsons, great-grandsons, widow, daughter, or parents. So, the son inherits.

Example 2. Mr. Sen, a Hindu governed by Dayabhaga law, dies intestate in 2020 (after the Hindu Succession Act, 1956). He is survived by his wife, a son, and a brother.

Answer:

Succession will be governed by the Hindu Succession Act, 1956, specifically Section 8. Section 8 lists Class I heirs who inherit simultaneously. The son and the widow (wife) are both Class I heirs. The brother is a Class II heir. Class I heirs are preferred over Class II heirs. Therefore, Mr. Sen's property will devolve equally upon his Class I heirs: his wife and his son. Each will get an equal share. The brother (Class II) will not inherit as there are Class I heirs. This demonstrates how the HSA superseded the traditional Dayabhaga rules based on spiritual benefit.