Coparcenary In Modern India - A Legacy To Preserve Or A Barrier To Uniform Inheritance
Author: LawSphereX
Category: Family & Personal Law
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COPARCENARY IN MODERN INDIA: A LEGACY TO
PRESERVE OR A BARRIER TO UNIFORM INHERITANCE?
Kamna, Integrated Law Course, Faculty of Law, Delhi University
ABSTRACT
The concept of coparcenary that has been established in Hindu personal law since ancient times has always governed the inheritance system among joint Hindu families thus conferring birth-based rights to male descendants. The Hindu Succession (Amendment) Act of 2005 was a watershed moment as it acknowledged daughters as equal coparceners, a step closer to gender justice in inheritance rights. However, the presence of the coparcenary system—a concept strictly limited to Hindus—continues to spark debate on its conflicts with India’s constitutional principles of equality, secularism, and uniformity in personal laws in the country. This paper also charts the early history of coparcenary from Vedic texts and British translation to the present day.
It studies critically how the system conforms to or diverges from the expectations of the Uniform Civil Code and the Harvard Law Review where two consistent guidelines, namely tradition, legal pluralism, and modern constitutional mandates, are in conflict. The research study examines the impact of landmark court rulings, gender justice, and the current practical issues that come with the application of coparcenary in contemporary Indian society to assess whether it is still a necessary legacy or it now represents a major flaw in the goal of an inheritance frame that is truly uniform and egalitarian. Keywords: Coparcenary, Inheritance, Uniformity i. Introduction Coparcenary is a distinct feature of Hindu personal law which is characterized by the gradual transition of joint family property rights from a patriarchal society to a more democratic and gender-sensitive society.
According to the Mitakshara school of Hindu law, coparcenary was one of the recognised institutions in which a male lineal joint family, i. e. , the undivided sons with the adopted and acquired male descendants, are united and who by birth get the decent property rights1 without the need of an instrument and the female members are excluded from the access of their rights, hence the patriarchal system is more likely to be preserved. Additionally, based on the position that they had acquired after incorporation into the coparcenary, the male members have the authority to mythically place their female cousins, wives, daughters, etc. outside the purview of the category.
Gender justice found a new landmark in the amendment of the Hindu Succession Act, 2005, wherein the daughters were at par with the sons and were given equal rights as a coparceners2, thus their rights to the ancestral property by birth and to demand the partition like the sons were fully recognized. The Act was considered a major step towards the promotion of gender equality and legal justice within Hindu families of India. At the same time, it should be noted that the very roots of the coparcenary system, such as the bond of religious and lineage identities, involve the fundamental contradiction of the nature of a modern state that is considered secular and egalitarian if base on the Constitution. It is clear that though the Indian legal system has adopted the uniform civil code and at the same time spoke of gender neutrality these provisions are not carried out.
The birth-based inheritance model permanently based on the birth of both co-mothers and co-fathers of the same child also extends to the form of a particular religion, to the continuation of the birth itself of a particular religion, and is specific to the gender of a child, a child of a particular caste, and of a particular lineage. The reformed coparcenary system is indeed established on the principles of equal rights, though, is it a happily-modernized essentially-exclusionary tradition or the instrument of modernity as a whole?
1 Mulla, Principles of Hindu Law 27 (22nd ed. LexisNexis, 2024).
2 Hindu Succession (Amendment) Act, 2005, No. 39 of 2005, § 6 (India).
The purposes of a subsequent research are thus to evaluate whether coparcenary, albeit through the unveiling of its new form, is to be treated as a legacy or as an actual obstacle resulting in a harmonious and universal inheritance system in the new India. ii. Historical Evolution Coparcenary was originally a feature of the Hindu legal system that can be found in the Manusmriti and the subsequent commentary like the Mitakshara and Dayabhaga, in which this proprietary system was developed3. The Mitakshara school of thought, which was prevalent in most parts of India except for some parts of Eastern India, had the view that the right to property by the birth of a son was the last that the father had and that the son afterwards was the sole owner of the property, and that he must share with other male members only also, by that system4.
On the other hand, the Dayabhaga school, residing in the Bengal and Assam regions, was not in agreement with the rights of the deceased family member but instead offered the right of inheritance to the subsequent death of the father5. It is observed that there was no provision in any of the schools allowing daughters an equal share in ancestral property, which reflects the patriarchal nature of the ancient Hindu society. In the course of the British colonial period, these personal laws underwent codification and were transformed into a system of various legislations, of which the Hindu Succession Act,
1956 was the key piece. Despite the fact that the Act was an attempt that significantly aimed at
simplifying and modernizing Hindu law of inheritance, it still retained the old Mitakshara coparcenary model, which promoted male supremacy by conferring no coparcenary rights on daughters. Although with certain exceptions, the daughters were given inheritance rights but they were outside the coparcenary system which consequently underscored a gendered hierarchy in property rights6. The Hindu Succession (Amendment) Act, 2005, was a complete shift in the previous inheritance laws, and the major objective of this reform was to bridge the gap between men and women. This modification involved a very appealing and effective restructuring by which the provision of coparcenary rights to the daughter was concomitant to the birth of the child to 3 Ludo Rocher & J. Duncan M. Derrett, A Critique of Modern Hindu Law, 94 J. Am. Orient. Soc'y 488 (1974).
4 Paras Diwan, Modern Hindu Law 359–366 (Allahabad Law Agency, 2008).
5 Ibid.
6 Hindu Succession Act, 1956, No. 30 of 1956, § 6 (India).
such a woman alongside a man and thus she got the power of inheritance, part, and joint family property management. When the discrimination that was there in the male members of the family about the coparcenary was removed, the personal law was made consistent with the constitution. It was also the clear definition of the law through the tool of the judiciary that ensured this legal change, as in the case of Vineeta Sharma v. Rakesh Sharma7, which was very ground-breaking. Now, the fact that women have been given the rights of the coparceners looks good on paper, but in practice, things are a bit different.
The system's history of transition in the light of centuries teaches us to be more persistent on one hand amid the predominance of the system of male domination, but also we see how the law can be giving a fresh and new interpretation of the old ordinance in a better way, which is a radical change. This same information serves the purpose of discussing today's issue of whether the coparcenary system in its current form, though PAH, is in line with the general idea of a secular, egalitarian legal system or it is still a burden for the uniform inheritance reform. iii. Coparcenary vs. Uniform Inheritance Norms Hindu's law about the coparcenary system is unique to it and differs from other major religious laws which follow a different pattern of inheritance.
There have always been two schools of thought in the Hindu law system that recognize joint family ownership and birthbased rights to property; they are the Mitakshara and Dayabhaga systems. On the other hand, the Muslim, Christian, and Parsi inheritance laws are totally distinct as they are based on their respective religious teachings. Thus the similarity in this regard is that the Islamic law of inheritance, which is mainly based on the uncodified Sharia law, follows the fixed-share system that divides the property among the legal heirs in an unchangeable manner after the property owner's death8. Moreover, the idea of a joint family or coparcenary is non-existent among Muslims, and in addition to the male members, the female siblings are also considered as the heirs.
Nonetheless, the property is inherited by the Christians and Parsis in India, first, through a will or second, through the Indian Succession Act, 1925, which clear the way for individual ownership and testamentary freedom, and lastly, without any notion of ancestral property or coparcenary lineage. This varying scenario among the religious communities creates a big
7 Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 (India).
8 Muslim Personal Law (Shariat) Application Act, 1937, No. 26 of 1937 (India).
problem as it makes the issue of common civil laws like inheritance far from a resolved matter. Such a society as India, where the laws depend on religious identities, is seen as a very complex effort to create a law that can be the same for all. The reservation of coparcenary laws, which exist only among Hindus, creates a very hostile situation where the people practice different laws of their own religion, and as a result, the concept of equality under the rule of law Article
149 has been challenged. This situation has raised a debate of whether there is a need to have a
government Uniform Civil Code (UCC)10. The Uniform Civil Code named under Article 44 of the Indian Constitution as the directive principle of the state that is the policy aimed to have one unified set of laws for marriage, divorce, adoption, and inheritance of all Indian citizens than the existing personal laws which are fragmented. The UCC supporters propose that it will achieve equality if it is in force, it will ensure a secular state and will remove those practices that are discriminatory such as gender biased inheritance laws. However, the UCC adversaries argue that the proposed uniformity is a kind of infringement on religious and cultural identity.
A case in point is the Hindu Succession Amendment Act, where it is paradoxical that in strengthening the coparcenary system, daughters' rights are recognized but it remains confined to the scope of the religion along with the concept of birth. Therefore, one inevitable question to ask is whether gender equality through reform of personal laws is feasible or, instead, a truly egalitarian and secular legal order necessitates the replacement of the current systems with uniform succession laws which are applicable across all religions11. iv. Gender Justice and the 2005 Amendment The Hindu Succession (Amendment) Act, 2005, is viewed as a significant step in the direction of gender justice in the domain of inheritance law.
Until this amendment, the daughters were completely left out of the Hindu coparcenary system which was nothing but the deprivation of their rights to ancestral property by birth. They were allowed to receive only the property under certain conditions from their loving fathers while still being outsiders to the joint family structure. The 2005 amendment changed everything by conferring the status of equal coparcenary on daughters, who were made coparceners by birth12, right along with the
9 Constitution of India, art. 44 (India).
10 Sarla Mudgal v. Union of India, AIR 1995 SC 1531 (India).
11 Upendra Baxi, Uniform Civil Code and Gender Justice, 28 Econ. & Pol. Wkly 385–392 (1993).
12 Hindu Succession (Amendment) Act, 2005, No. 39 of 2005, § 6 (India).
boys. Hence they could now ask for a partition besides being the managers of the joint family property and sharing both rights and duties with the male members under the law. Therefore, the amendment not only removed the terrible tradition but also established a big change in the real sense of equality. With all of that, the implementation of the amendment and its possible effects on society have remained unresolved issues. One of the most important questions was settled by the Supreme Court in Vineeta Sharma v. Rakesh Sharma13. In particular, the Court made a significant ruling that the daughter's right to become a coparcener does not derive from the father's existence but from the very moment of the 2005 amendment.
And more importantly, the Court's pronouncement was the clarification that daughters have always had the right in law to claim coparcenery, which makes the decision and that right prospective. The verdict showed that gender equality cannot be put off if it is not the right time or all male lineage individuals did not survive this time. One has to be reminded that the amendment has its restrictions, despite the huge steps forward. It is limited in nature as the amendment is only addressed to the Hindus, which also means including the Buddhists, Jains, and Sikhs, but not the Muslims, Christians, or Parsis14. This shows that the legal position of Hindu daughters is far better while the women from the rest of the communities are still deprived of the protection of gender-neutral laws through personal laws which many are still gender-biased.
This peculiar legal setting exposes the very partiality of the reform. The reform may seem to have achieved gender equality within one community, but the process has definitely failed to bring equal treatment and justice to the whole of Indian society at large. Furthermore, social issues that remain unresolved can and do temper the victories won on paper. The majority of women are still not only ignorant of their rights but are also effectively prevented from exercising them by social forces like family and societal disunity, fear, or being in a state of financial reliance15. The disputes related to property rights may be not only time-consuming and expensive, but also emotionally draining and, in this context, particularly difficult in rural and conservative areas. Through the 2005 amendment, the legislative power has given a critical response to the gender inequalities issue.
However, this empowerment of women in gender justice, as far as inheritance is concerned,
13 Vineeta Sharma, supra note 7.
14 Hindu Succession Act, 1956, No. 30 of 1956, § 2(1)(c) (India).
15 Law Commission of India, Consultation Paper on Reform of Family Law (2018) (India).
not only necessitates but also social change, and incipiently, a more unified legal framework of the statute. v. Modern Challenges Even after the 2005 Hindu Succession (Amendment) Act and the developments made by the judiciary in the subsequent period, which led to the formalization of gender equality in inheritance law, the coparcenary rights in the Indian vibrant society of today face many challenges in the practical application. There is a widely discussed issue of the traditional joint family system, ownership becomes irrelevant more than before, especially when we look at the case of the present situation in urban and semi-urban areas. ‘Nuclearization of families’ is now the main concept, and the ‘in-fact’ individual ownership and property division are the primary decisions which, today, significantly limit the influence of co-parcenary structures.
In this day and age, the concept of community property is managed collectively and passed down to the next generations is more or less a concept difficult to denote than one where a practical setting more than usually can be applied. Simultaneously, the management and partition of joint family property often result in conflict and are issues of a technical nature. The stakes in litigation over property claims can lead to costly litigation that is often of a protracted nature, especially when the ancestral properties are not divided over generations. Additionally, with the increase of female heirs asserting their rights only after 2005, many families have encountered internal disharmony, largely due to the resistance to the acknowledgment of women as the legitimate spokeswomen.
At times, this resistance to the feminists is increased by women who are unaware of their rights and, therefore, are afraid of asserting their claims because they may be ostracized. One more inescapable difficulty is the breaking of the coparcenary regime in litigation. The families of the person making the claim ride mainly on the back of litigation loopholes, constantly stretching the dividing line between ancestral property and concocting claims to lead the non-distribution of a property and as a result, justice delivery becomes delayed and the economy is stuck. On the other hand, lack of uniform, up-to-date, and non-identical registration of pieces of land is a stumbling block in the identification of lands that are being held as ancestral properties and the correct share is arrived at easily.
Furthermore, the continuation of individually-defined inheritance that still has a religiously grounded basis is a contributing factor to an asymmetrical legal system that has become the root of the inconsistent defense of the citizens based on their religious ideas. The gender issue that has remerged is quite relevant to the disparities and this has come to the fore where Hindu women are allowed to claim inherited properties by birth while the women from other religious groups are still victims of the unfair heritage laws. The mentioned problem in India decreases the rate of getting the proper property rights regime because the country is undergoing urbanization, economic growth, and legal empowerment. This goes on to emphasize that India will mainly experience growth in the property rights sector only if they resolve these issues.
Finally, these contemporary trials lay bare the defects of shifting to a largely, albeit modified, primarily religiously-based inheritance model. They lead to the question of the appropriateness of such frameworks for the present and emphasize the need to think about a more unified, non-gender-specific approach that reflects the constitutional provisions and contemporary social trends. vi. Arguments For Preservation Many who support coparcenary system have defended it by the cultural, legal and constitutional side, besides the existence of some constructive arguments in its favor. The most important of the arguments is the maintenance of the cultural tradition.
A great number of the Hindu population believed the coparcenary system was not just a legal formality but a mode of life based on ownership shared by the family, responsibility that comes from one generation to the next, and unity and love. The idea of abandoning of the institution would then be like the deletion of the cultural content and a divorce from the social order which has existed over generations in the Hindu society for centuries. Another point in favor of the new coparcenary model is the fact that it is in line with the gender equality principle, and having rectified the long-standing exclusion of daughters. Although this is true, the approach here is not to replace, but to make small changes for the better as well as to maintain a peaceful environment in the society.
The transformation of women to coparceners has certainly advanced their property rights and yet preserved the continuity of the traditional Hindu joint family16. The elimination of the system insomuch
16 Bina Agarwal, Gender and Legal Rights in Agricultural Land in India, 34 Econ. & Pol. Wkly (1999).
would take away the advantage that women have been obtaining in the community especially those who have the most rights to the family property. Furthermore, the question of a constitutionally protected religious right can be added. Article 2517 of the Indian Constitution not only guarantees the freedom to profess, practice, and propagate religion but also the right to be ruled under personal laws. For the majority, inheritance laws are like a religious ritual, and a single code of law would be considered an infringement upon this vital right. According to this point of view, preservation of coparcenary was the only way to uphold pluralism and respect the cultural autonomy of different communities. Currently, in certain circumstances, coparcenary, which has collective ownership as its structure, is still functional.
The most common example of this is the management of agricultural land and ancestral businesses among joint family members that reside in rural areas. Coparcenary in such environments allows for the allocation of joint responsibilities, joint decision-making, and resource pooling. Moreover, the system may play an instrumental role in preventing land fragmentation and ensuring stable local economies18. This twist in the plot, namely, the opposition's reliance on the fact that the coparcenary system has been able to evolve through reform and remains the main source of the fair distribution of the inherited wealth among the Indian families, has been viewed as a very unconventional idea.
Supporters of the central theme of the discussion claimed that the problem does not lie in the abandonment of the system, but in the system’s fair and equitable implementation, especially within the context of Amendment 2005. vii. Arguments for Reform Although the coparcenary system has been amended to include daughters, numerous legal scholars, feminists, and constitutionalists still argue that it is an inherently exclusionary and outdated structure that is not in conformity with the ideals of a modern, secular democracy. One of the main worries is that coparcenary is still a purely Hindu institution and as a result, the legal framework for inheritance on the basis of religion is torn into pieces. This is in direct contravention of the mandates in the Constitution of India for the right to equality under
17 Constitution of India, art. 25 (India).
18 National Commission on Farmers, Report on Land Fragmentation and Agricultural Reform (2006) (India).
Articles 14 and 15, which deny discrimination on the basis of religion or sex. These systems which are defined solely by religion in a country that is as diverse as India and as democratic, bring imbalance in the law, something which is not fair and not uniform as well. In addition, the idea of birth right to ancestral property is fundamentally contrary to the concepts of individual autonomy and testamentary freedom, which are the heart of modern property law systems. Coparcenary is a law that presupposes the sharing of the inheritance right at birth irrespective of the factors of contribution or context or necessity. This provision makes property divisions more fixed, and it frequently becomes a root of litigation, especially in urban and high-value areas.
As the property continues to be more and more commercialized and nuclear families are increasingly the order of the day, the birth-based claim to ancestral wealth frequently turns out to be the root of disputes, poor management, and social tension. A further claim is that today's coparcenary system is still male-dominated, despite its recent inclusion of daughters. The concept was never supposed to be gender-neutral and it was established to benefit the patriarchy of the joint family system19. The rearrangement of such a structure for the accommodative of women does not change the fact that it has been developed in a completely unequal way.
Opponents who are on the side of the idea that women should not get equal property rights just because they are coparceners, additionally but more importantly as individuals and not along the lines of their religious status or familial background would argue that. Making an inheritance law that does not recognize a person's gender, which is to be applied by all faiths, would be a more coherent and well-grounded alternative. In this regard, the demand for uniform civil code (UCC) is given more emphasis. A UCC will bring a unified secular legal system to the country that will cover issues like inheritance, marriage, divorce, and adoption for every person, regardless of their religious beliefs. Advocates think such a code is of great necessity to wipe off inequities, curtail trial proceedings, and maintain the constitutional principles of fairness and justice.
They suggest that rather than altering those structures which are inherently unequal such as coparcenary, they are in favor of completely replacing them with laws that are fair and applicable to everyone
19 Flavia Agnes, Hindu Women’s Rights to Property
A Critical Analysis, 27 Econ. & Pol. Wkly (1992). despite their religious status in conformity with the characteristics of a democracy that India endorses. Overall, while the 2005 amendment made a great difference, the majority does not consider it complete success that is why they talk about it reformatory. To gain equal rights, the people who are against the coparcenary system and, thus, in support of uniform and inclusive rule of inheritance, argue that all personal laws like the coparcenary one should be out of the way and a universal and inclusive inheritance system that considers all citizens equal, irrespective of their gender or religion, should take their place20. viii.
Conclusion The joint family system, which is a part of the ancient Hindu law, has been transformed from being a male-only structure that was responsible for the promotion of patriarchal rules, to a more inclusive setup following the 2005 Hindu Succession (Amendment) Act. By way of this legal reform, Indian legislators emphasized the importance of the equal property rights of daughters, a matter, which, apart from being the provision of the 2005 amendment, was also supported by the judiciary via numerous judgments like Vineeta Sharma v. Rakesh Sharma (2020). However, with the improvement indicated by these legislative changes, the system not only still exists but still remains bound by religion-specific structures violating legal pluralism and the constitutional promise of equality.
Amidst today’s highly urbanized and secularized society, the idea of the co-parcenary has been seriously called into question. On one hand, the apologists of co-parcenary argue that it endorses our cultural legacy, has a lineage that stands till contemporary times, and its recent inclusive attitude is also reformative. On the other hand, the propagators of the system’s dismantling ground their argument on the fact that the system based on birth and religion does not conform to a unified, gender-neutral legal system. The practical problems such as the nuclear family being a norm, the emergence of property disputes, and the varied laws across religious communities have posed further challenges to the existing system. Amid the consideration of a Uniform Civil Code in India, the issue of coparcenary serves as a symbolic example of the unending confrontation between the traditions and the
20 Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
implementation of the constitution. What we need to ask today is not the possibility of improving the system but the system's necessity and relevance in a society where legal equality and uniformity are pursued. Going forward, one cannot be of the view that only cultural identity, legal consistency, and gender justice must be regarded in the resolution of the issue. Largely a matter of socio-politics, preserving, altering, or abolishing the coparcenary system is not only a question in law, but it is the one that carries cultural, political, and social aspects and which should be handled most delicately in terms of diversity and equal rights of all citizens in a legal society, which is also a secular one.