Impact of Section 6(2) and Section 6(3) of the Hindu Succession Act on

the Coparcenery

D) The impact of Section 6(2) and 6 (3) on the coparcenary

With obsession about the right of the daughter the impact of Section 6(2)

and 6(3) have not been deliberated upon by the Courts. Section 6(2) consists of

two parts. The 1st part speaks about how the right conferred by the daughter

operates and the 2nd part consists of the right that the daughter is entitled to

dispose of the property which is entitled to under Section 6(1) by testamentary

disposition. Simultaneously Section 30 was also amended. However, Section

6(2) indicates that a daughter has got a right of disposes of the property she got

under Section 6(1) whereas the son is not entitled to do so at a 1 st blush it may

assure that the daughter has got a better right than a son but in reality no so.

Section 6(3) consists of two parts namely that if the Hindu dies

commencement of the amended is interest in the property shall devolve by

testamentary or intestate succession and not by survivorship. The 2 nd part

shows that the coparcenary property and not the interest of the deceased shall

be deemed to have been divided as is partition taken place. Obviously, the 1 st

part abolishes survivorship hitherto available under original Section 6 albeit a

limited estate. Regardless the 2nd part shows that the coparcenary property

shall be deemed to have been divided rather than the interest of the deceased

coparcener. Section 6 speaks about the creation of right on a daughter its

operation and under 1st part of Section 6(2) and the termination of the

coparcenary under 2nd part of Section 6(2) and Section 6(3). Section 6 therefore

create, operate and distract coparcenary hitherto unknown to law. It is truthful

to refer to the recommendation made by the law commission 174 with a report

on property rights of women – proposed reform under the Hindu Law “5.7

Recommendation- As a first reaction, the law commission was inclined to

recommend the adoption of Kerala Model in toto as it had abolished the right

by the birth of males in the Mitakshara coparcenary and brought an end to the

Joint Hindu Family. This appeared to be fair to women as they did not have

any right by birth; but on further examination, it became clear that if the joint

Hindu Family is abolished as on date and there are only male coparceners,

than only they would hold as tenants in common and women would not get

anything more than what they are already entitled to by inheritances under

Section 6 of HAS. So the commission is of the view that it would be better to

first make daughters coparceners …………………..

The law commission inclined to abolish the Joint Hindu Family system

but was not inclined to recommend the same as abolishing as on the date may

benefit only the male coparceners. The object of the act as it can be traced to

the law commission report is to confer the right of daughter 1 st and then to put

into coparceners at the time of a partition or at the time of the death of

coparcener. Section 6(3) speaks about its interest in the property and whereas

the 2nd part denotes the entire coparcenary column. It is not due to a mistake

of the draftsmen but a deliberate attempt to abolish the coparcenary property

altogether as calibrated by the law commission report. If a daughter is given

a ------- right by way of a testamentary disposition and the coparcenary shall

continue thereafter may not make the sign at all. Obviously, it cannot be any

distention between male and female coparcener. Secondly the conferment of

the right to a daughter as coparcener and continuing coparcenary after where a

Hindu dies after commencement of the amendment act. The children of a

daughter coparcener may become a coparcener in two Hindu Joint family

mother and father. If the idea behind the amendment is to abolish the

coparcenary property as evidenced by the law commission report then

interpretation which could confer such a right has to be avoided.

F) The coparcenary shall come to end if the Hindu dies after the

commencement of the amendment act and coparceners thereafter shall enjoy

the property as tenants in common.