School Of Legal Studies Department Of Law

COURSE TITLE: FAMILY LAW IInd (HINDU LAW)

COURSE CODE: IL-C402

ASSIGNMENT ON: RULES RELATING TO THE DEVOLUTION OF THE

MITAKSHARA COPARCENARY

SUBMITTED BY:

NAME : MOHD FAIZ AHMED

ENROLL NO.: 2007CUKMR16

SEMESETER: 4th
COURSE : BALLB (5YEARS)

EMAIL ID : FAIZGTA1@GMAIL.COM

SUBMITTED WITH REGARDS ,

TO,

PROF. SUNDER SINGH

ASSISTANT PROFESSOR

DEPARTMENT OF LAW SCHOOL OF LEGAL STUDIES, CENTRAL UNIVERSITY OF

KASHMIR.
 Table of Contents

INTRODUCTION ...................................................................................................................................... 1

DEVOLUTION OF INTEREST IN MITAKSHARA FAMILY .......................................................................... 1-2

CASE DISCUSS ......................................................................................................................................... 2

CONCLUSION .......................................................................................................................................... 2

REFRENCES ........................................................................................................................................ 3
Introduction
Coparcenary is a term used in matters related to Hindu Succession Law. It refers to a person who
has the capacity to assume a legal right in his ancestral property by birth. It means ‘unity of title,
possession and interest’. It is purely a creation of law; it cannot be created by the act of parties,
except by adoption. It is directly derived from the concept and practice of Hindu undivided family.
Coparcenary is dealt within the Hindu Succession Act 1956 but has undergone major amendments
which will be discussed further in detail.
COPARCENARY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY
Coparcenary idea under Hindu Law was mainly by the male member of the family where just
children, grandsons and great-grandsons son who have a right by birth, who has an interest in the
coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but she will
always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son’s son can a
coparcenary i.e. father and his three lineal male descendants can be a coparcener.
For Example: Suppose in a Joint Family a Coparcenary will be consisting of four members
including father and his three male lineal descendants.

The Devolution of Interest in Mitakshara Family

The presumption is that there is a devolution of interest in Mitakshara Family because the joint
family system (Hindu Undivided Family) is getting weaker and weaker from descendant to
descendant and this can be rebutted to the evidence of separate possession of the property. Also, this
so because its continuance has been greatly curtailed down by Hindu Succession Act 1956. Some
of the reasons which could be given are the bill for the succession law which was specifically made
to exclude Mitakshara joint families to come under the ambit of the new law. Like, the undivided
share of a deceased coparcener is to be governed by the Act and was to be ascertained on the basis
of a presumed claim of partition on the part of the deceased on his death. Coparceners who are
separated from the coparcenary before its commencement are to be kept outside the scope of this
part. Then the heirs who would attract the application of this part included mother, wife, daughter
and others as specified in the 1956 Act. The act of 1956 also declared that the shares of coparceners
which are undivided in a Mitakshara joint family would be their bequeathable property. And because
of the provisions of the 1956 Act which had led joint families to the law of inheritance in certain
cases had led to the law of wills in all of them and had eventually narrowed down the scope for the
continuation of Mitakshara joint families to a large extent. But till now it is in existence because
Mitakshara joint families are a great attraction for tax savers and taxation laws call them as Hindu
Undivided Family. So, the HUFs enjoy all the deductions and exemptions while paying tax under
the Income Tax Act

Section 6 as per Hindu Succession Act,1956:

Section 6 of the Hindu Succession Act, 1956 provides for devolution of property of intestate
succession. It provided that the property shall be devolved on male coparceners who have interest
in the coparcenary property, such interest in the male coparceners was only limited till three degrees
i.e male son, grand son and great grand-son. The interest is devolved by way of survivorship. The

1|P ag e
Hindu Succession Act, 1956 specifically excluded females from acquiring any share on interest in
the property, the wife was not considered as a direct blood line of the deceased.

Section 6 of the Hindu Succession Act, 1956 after 2005 Amendment:

The 1956 Act was amended in 2005 and a major change bought in the amendment was in Section 6
which aimed to remove the gender bias. Section 6 of 2005 Amendment Act provided for equal rights
of both sons and daughters as they both are coparceners. The Mitakshara coparcener liabilities would
be equally applicable on daughter. The Act was made applicable to three degrees of female
coparceners as well – daughters, grand-daughters, great grand-daughters. Thus, Section 6 aimed at
giving equal rights to daughters as coparceners as sons have.

Case Discuss- Vineeta Sharma v Rakesh Sharma (11th August 2020) The question with respect
to ambiguous interpretations of Section 6 is addressed to a larger bench as it involved similar issues
with conflicting previous judgments. The three judge-bench of the Supreme Court stated the
following: 1. The Hon’ble Supreme Court stated that it is not necessary for the daughter and the
coparcener to be alive as on the date of amendment i.e 9-9-2005. By fixing a cut-off date it will
defeat the purpose of amendment as the main objective behind amendment was to grant equal rights
to daughters as granted to sons. Irrespective of whether the original coparcener is alive as on 9-9-
2005 or not the daughter is entitled to claim an equal share in the property 2. With respect to
prospective and retrospective application, the Court stated that the prospective statute operates from
the date of its enactment conferring/granting new rights while the retrospective statute operates
backwards taking away vested rights. It stated that Section 6 would be a retroactive statute, the one
that operates in futuro, its operation is based upon an event which happened in the past, the
antecedent event as per Section 6 is the right being given by birth hence, it confers rights to daughters
at the time of their birth even if the birth takes place prior to the Hindu Succession Amendment Act,
2005. Thus, the recent judgment by Supreme Court takes a laudable step thereby ending the gender
injustice and implements Section 6 amendment of 2005 in its true spirit. It further puts an end to
various divergent opinions by different Courts.

Conclusion
The following are the points because of which there has been devolution of interest relating to
mitakshara law which is descendant after descendant because of the evidence of separate possession
of the property. When a coparcener dies, his undivided interest in the joint family property devolves
by the members who are surviving. But it does not devolve by succession to his heirs said in one of
the cases. And when there is a separate property of an intestate coparcener and on his death, He it
passes by succession to his heirs but not by survivorship to the surviving coparcener. As it is seen
today, that the principles of Hindu regulation constitute an anomaly unheard of inside the history of
the sector. Law, no much less than lifestyles, should obey the ideas of alternate to be able to be
important and to conform itself to altered social situations. It is a truism that vintage dogmas melt
in new currents of notion. Law ought to always be dynamic, no longer static, if it’s miles to be
assimilated to the force of milieu.

2|P ag e
References
Paras Diwan, Modern Hindu Law. Faridabad (Haryana): Allahabad Law Agency(ALA). (21st Edn.,Reprinted 2012)

Class Lecture Notes

SCC ONLINE

Unacademy, Youtube

3|P ag e