Overview: DAUGHTER’S RIGHT TO COPARCENARY AMID DECLINING COPARCENARY PROPERTY
April 23, 2021, 8:43 p.m.
Pens of Law students
Profile of Author-Jai Dogra is a 4th-year law student pursuing B.A.L.L.B. (Hons.) from Amity Law School, Delhi (affiliated to GGSIPU).
A Joint Hindu family comprises all lineally descended persons having a common ancestor and wives and unmarried daughters. Joint Family is a naturally occurring phenomenon in the Indian cultural society set-up. The family is joint only in the estate but also in the kitchen and place of worship. However, the existence of an estate is not an essential condition for a joint family. A joint family can exist even without a joint family estate. If the estate is separately divided among the members of the family, then the family ceases to be joint. But the mere division in place of worship and kitchen does not amount to a severance of status of joint family. A Hindu family is presumed to be joint unless the contrary is proved. Therefore, the burden of proving the severance is on the person who alleges separation.
Coparcenary is a narrower concept than a joint family. Coparcener is a term coined for the people in a joint family setup who have a birthright in the joint family property. The pith of coparcenary lies in the unity of ownership. It extends up to three generations next to the holder that is sons, grandsons, great-grandsons for a particular time being. It extends up to three generations because only these male descendants are proficient to offer spiritual offerings to their ancestors. The coparcenary was confined to male descendants only under Mitakshara law. However, the marriage expenses of an unmarried daughter were deducted from a joint family property at the onset of partition. The right to seek partition is limited to major coparceners. The coparcenary right in the estate is fluctuating in nature. The share of each coparcener scales down with the birth and scales up with the death of the coparcener. Partition crystalizes the fluctuating interest in the joint family property into definite individual shares.
The power of managing the joint family property is vested in the hands of Karta in the Hindu joint family. Ordinarily, Karta is the senior-most coparcener in a joint family. He has the responsibility of managing the affairs and property of the family. The members of HUF live in the protection of Karta.
DAUGHTER AS A COPARCENER
The coparceners have various rights in the Joint family property. It includes: right to common possession and enjoyment; right to enforce partition; right to restrain unauthorized act by other coparceners; right of alienation of undivided interest with permission of other coparceners; right to set aside unauthorized alienation. However, the right of coparcenary was limited to male descendants up to three generations before 2005.
The dynamics have considerably changed after the Hindu Succession (Amendment) Act of 2005. Now, the daughter is a coparcener in a Hindu joint family. Also, she is entitled to an equal share at par with the son. Recently, the Supreme Court of India in Vineeta Sharma v. Rakesh Sharma has clarified the rights of the daughter. The Court said that the daughter is entitled to equivalent coparcenary rights even if the father has died before the Hindu Succession (Amendment) Act of 2005 and regardless that she was born before the amendment. It is a right that a daughter acquires by birth. The right is restricted to daughters only and does not extend to wives of the coparceners.
Although daughters are on the same pedestal as that of a son in coparcenary, are they really benefitting from the present law? The concept of Hindu joint family property is plummeting in society. The article seeks to highlight the plight of diminishing joint family property that has rendered coparcenary right of daughter into nugatory. The various reasons that have appended the decline of joint family property are henceforth stated.
CONCEPT OF NUCLEAR FAMILY
A nuclear family is a family where husband and wife live together with or without their unmarried children. The family structure in India has seen a shift towards the nuclearization of families due to industrialization, urbanization, education, and upliftment in the status of Indian women. During recent decades, there has been a radical decline in joint family set-ups in India. The social fabric of the country is changing due to the emergence of nuclear families. As per census reports, nuclear households have seen a rise of 52.1% in 2011 from 51.7% in the year 2001. The upsurge is exponential as it is coupled with a drastic rise of the population as well.
The dwindling of joint families has shattered the concept of ancestral property. How good is a right of coparcenary when in actuality there exists hardly any ancestral property?
HINDU GAINS OF LEARNING ACT
Separate property is the exclusive property of an individual to which the owner has an absolute right. It is not liable to be partitioned unless the owner himself treats it as a joint family estate. Even the descendants of the owner do not enjoy birthright in it. Self-acquired property is a separate property of the member of the coparcenary. It is a property that is acquired by a Hindu which is not ancestral in nature. The onus of proving the property as separate is on the person who alleges it to be self-acquired and not joint. There is a presumption of jointness in respect of the property as well. However, it does not mean that every property would be joint family property.
The income earned by a member of the joint family through a profession that requires special training was considered as an income of the joint family. Provided that the expense of training is imparted/aided wholly or partly through the funds of the joint family. However, the abovementioned rule has dramatically changed by the provisions of the Hindu Gains of Learning Act of 1930. Now, the gains of the learning of a member in a joint family are the separate property of that member. Where the ‘gains of learning’ refers to all acquisitions of property made through such learning. And ‘learning’ is referred to as education (technical, elementary, special, or general) that aids a person to pursue any profession or trade. The Supreme Court of India in K.S. Subbiah Pillai v. Commissioner of Income-tax has said that the income of the person would be his separate property if it is earned by his own exertions and without the aid of joint family funds.
The legislation has indeed contributed towards the formation of separate property out of the joint family property. Even though the joint family property is diminishing, there are other factors too that deprive the daughter to exercise to right over the property.
RELINQUISHMENT DEED AND NOC SIGNED BY THE DAUGHTER
A deed of relinquishment needs to be registered under section 17 of The Registration Act. It must be in writing with or without consideration. It is a legal document through which a person gives away his/her right to ancestral property for the other legal heirs. It is a tool used by the male coparceners to procure the share of the daughter in the joint family property. The signing of the No Objection Certificate (NOC) is also a medium through which daughters give away the right to ancestral property. NOC certifies that the person signing it has no objection if the concerned property is transferred to some other person.
A daughter in a family is bought up with such value & ethics that she is made to believe that the property belongs to the son and that one day she has to cater to the needs of in-laws after her marriage. The elite class and the people of higher strata are an exception to this typical Indian family setup. However, the majority of the population lives in rural India, and a homogeneous legal system governs society. Many daughters relinquish their rights in the joint family property out of love and values embedded in them.
SUCCESSION OF PROPERTY OF HINDU FEMALE
The general rules of female succession who dies intestate are laid down in section 15 of the Hindu Succession Act, 1956. The female property would devolve first upon sons, daughters (including children of predeceased son or daughter), and husband. Secondly, it would devolve upon the heirs of the husband; thirdly, upon heirs of the father; fourthly, upon heirs of the mother.
It is pertinent to note that the parents of a woman are having right over the property of their daughter after the heirs of her husband. Also, the heirs of the father are given priority over the heirs of the mother. The preferential order of female succession seems misogynistic per se. Lastly, it would devolve to the heirs of the mother who is a woman which means the same patriarchal cycle would follow.
Also, if a property has evolved in the hands of a woman from her parents or in-laws and she dies issueless, the property shall devolve upon the heirs of the father or the husband as the case may be and not to her heirs. It is like taking back the right over the property from a woman that she might have legally succeeded. This provision gives an inference that the woman has limited ownership of the property. Which goes against the right of ‘absolute ownership of property possessed by a woman’ under section 14(1) of the Hindu Succession Act, 1956. The order of succession seems to be purloining the vested right of the property from Hindu females.
The amendment in 2005 and the recent judgment of Vineeta Sharma v. Rakesh Sharma are some of the celebrated footsteps taken by our legal system in the path of the welfare of Hindu females. However, there is still a stairway to surpass.
Although daughters are at par with sons in terms of rights in coparcenary property, however, what social good would it do without a coparcenary property? It is indeed a pertinent question to be answered by the framers of the law. The property is ancestral only when there is an existence of a three-generational coparcenary. It is indeed an uncommon phenomenon during the prevalence of the nuclear family concept in India. Also, there still exists a tinge of patriarchy in the prevalent legal system that needs to be looked upon.
What is ‘absolute ownership of property possessed by a woman’?
Ans. Section 14 of the Hindu Succession Act of 1956 states that a Hindu female can possess property as an absolute owner and not merely as a limited owner. A woman could only hold property as a limited owner before the enactment of the 1956 act.
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