“CO PARCENERY UNDER DAYABHAGA”

FINAL DRAFT SUBMITTED IN THE PARTIL FULFILMENT OF THE COURSE TITLED

FAMILY LAW- 2

SUBMITTED TO:

Mrs. Pooja Srivastava

(Faculty of Family law)

SUBMITTED BY:

NAME: ANUGRAH AARON THOMAS

COURSE: BA.LLB (HONS)

ROLL NO: 1716

SEMESTER: 4TH

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR,

PATNA-800001
 CHAPTERIZATION
1. INTRODUCTION…………………………………………………………………

2. CO-PARCNER IN DAYABHAGA………………………………………………

3. CASE LAWS………………………………………………………………………

4. CONCLUSION…………………………………………………………………….
 RESEARCH QUESTION
1. How did Dayabhaga School evolve
2. Difference between Mritrakshara and Dayabhaga School of law

HYPOTHESIS
The researcher presumes that Dayabhaga School of law contributed the fundamental
principles of equality as enshrined under modern inheritance laws

RESEARCH METHODOLOGY
The researcher will be relying on doctrinal method of research to complete the project

SOURCES OF DATA
The researcher will depend on secondary data to complete the project
SECONDARY SOURCES
1. BOOKS
2. JOURNALS
3. MAGZINES
4. NEWSPAPERS

LIMITATION
In pursuance of the project the researcher face time and monetary paucity

TENTATIVE CHAPTERIZATION
1. Introduction
2. Difference between Dayabhaga And Mritrakshara School
3. Coparcenary in Dayabhaga
4. Contemporary analysis of Dayabhaga School fir coparcenary
5. Case laws
6. Conclusion

BIBLIOGRAPHY
BOOKS:
1. Principles hindu law- Saket Tripathi
2. Dayabhaga- Jīmūtavāhana
 1. INTRODUCTION
The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on
inheritance procedure. The Dāyabhāga was the strongest authority in Modern British Indian
courts in the Bengal region of India, although this has changed due to the passage of the Hindu
Succession Act of 1956 and subsequent revisions to the act. 1 Based on Jīmūtavāhana's criticisms
of the Mitākṣarā, it is thought that his work is precluded by the Mitākṣarā. This has led many
scholars to conclude that the Mitākṣarā represents the orthodox doctrine of Hindu law, while
the Dāyabhāga represents the reformed version.2
The central difference between the texts is based upon when one becomes the owner of property.
The Dāyabhāga does not give the sons a right to their father's ancestral property until after his
death, unlike Mitākṣarā, which gives the sons the right to ancestral property upon their birth. The
digest has been commented on more than a dozen times.3
The law of inheritance and successions in India finds its statutory roots in the Hindu Succession
Act, 1956. The pattern of succession as provided under it is for in testate inheritance i.e. when a
death occurs without any will then the property has to be distributed as per the guidelines of the
law. In India this pattern is not uniform and differs from one religion to another and from one
region to another as per the customs and guidelines set by the respective religious scriptures and
teachings. However, this research paper shall, as suggested by the title itself, restrict itself to the
region of Bengal (including Orissa and parts of Assam) and shall cover the Hindus residing
therein. It shall cover only the Dayabhaga system, glancing at the Mitakshara system only to
draw a comparison and better the reader’s understanding.
Since time immemorial the framing of all property laws have been exclusively for the benefit of
man, and woman has been treated as subservient, and dependent on male support. The right to
property is important for the freedom and development of a human being. Prior to the Act of
1956, Hindus were governed by Shastric and Customary laws. As the country is vast and
communications and social interactions in the past were difficult, it led to diversity in the law.
Consequently, in matters of succession also, there were different schools, like Dayabhaga in
Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and
Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight
variations.

The Evolution of the Dayabhaga School

Both schools of medieval Hindu law – the Dayabhaga and the Mitakshara are based on the texts
of the learned sage Manu. They are merely different interpretations of the same treatise. But it
must be noted that the approach adopted by both schools is radically different.
The difference really stems from the interpretation of who is a sapinda. Both schools concur on
the principle that property should be inherited by the sapindas, but the definition of the word
itself given by the schools is different. According to the Mitakshara system it means ‘one that
1
Kane, P. V., History of Dharmaśāstra, (Poona: Bhandarkar Oriental Research Institute, 1975), Volume I, Part II, 703.
2
Rocher,Jimutavahana's Dāyabhāga: The Hindu Law of Inheritance in Bengal, (Oxford University Press, 2002), 23
3
Kane, P. V., History of Dharmaśāstra, (Poona: Bhandarkar Oriental Research Institute, 1975), Volume I, Part II, 70
has the same body’ which can be construed as a close relative who is a descendent of a common
ancestor. But such descendence should always be from the male line. Thus, in this system only
agnates have the right to inherit. There distance in relationship is not a factor determining
inheritance but their sex does play an important role. In this system, for example, property of the
deceased may devolve upon a distant male cousin but not to his own daughter’s son.
Such a system was not agreeable with Jimutvahana, the founder of the Bengal school – the
Dayabhaga sytem. According to him, sapinda is any relative who can offer ‘pindas’, the balls of
rice offered during the funeral of the deceased. This would include cognates, the women in the
family as well, allowing them to freely inherit property.
The Mitakshara system founded by Vijaneswara, following a rigid patriarchal system based such
a theory on the principle established by the school of the “Black Yajurveda” which quoted
“Nirindriya hyadayadah strio nritam” as the reason backing it. This can be translated as “women
are generally incompetent and do not have the power to inherit” Jimutvahana did not agree with
such reasoning and later Jaimini, the great scholar on Hindu jurisprudence too backed him
stating that certain Vedic texts explicitly provide for women owning and possessing wealth.
Vijaneswara in his later treaties propounds a theory of female ownership (but this is quite
different from that propounded by the Bengal school). He remarks that women do have a title
over property but only through their husband or their son, not otherwise. Women under
Mitakshara law have no direct right to ownership of property or inheritance.

Basic Differences – Dayabhaga & Mitakshara Schools

As stated earlier, Classified, under the classification contained in Shastric laws all Hindus can be
identified as being members of a particular school of legal philosophy. The chief ones being the
Dayabhaga school of law in and around Bengal, the Mitakshara school located mainly in
northern India, the Bombay school dominant in Maharashtra, and the Nambudri and
Marumakkattayam schools which govern southern India. However, the scope of this paper is
restricted to the Dayabhaga school and for the sake of better understanding, the paper shall also
delve upon certain provisions of the Mitakshara school in order to compare the two.
Under the Mitakshara law, on birth, the son acquires a right and interest in the family property.
According to this school, a son, grandson and a great grandson constitute a class of coparceners,
based on birth in the family. No female is a member of the coparcener in Mitakshara law. Under
the Mitakshara system, joint family property devolves by survivorship within the coparcenary.
This means that with every birth or death of a male in the family, the share of every other
surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his
two sons, each would own one third of the property. If another son is born in the family,
automatically the share of each male is reduced to one fourth.
The Mitakshara law also recognizes inheritance by succession but only to the property separately
owned by an individual, male or female. Females are included as heirs to this kind of property by
Mitakshara law. Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal,
Benares and Mithila sub schools of Mitakshara recognized only five female relations as being
entitled to inherit namely – widow, daughter, mother paternal grandmother, and paternal great-
grand mother. (a) The Madras sub-school recognized the heritable capacity of a larger number of
females heirs that is of the son’s daughter, daughter’s daughter and the sister, as heirs who are
expressly named as heirs in Hindu Law of Inheritance (Amendment) Act,1929.(b) The son’s
daughter and the daughter’s daughter ranked as bandhus in Bombay and Madras. The Bombay
school which is most liberal to women, recognized a number of other female heirs, including a
half sister, father’s sister and women married into the family such as stepmother, son’s widow,
brother’s widow and also many other females classified as bandhus.
The Dayabhaga School neither accords a right by birth nor by survivorship though a joint family
and joint property is recognized. It lays down only one mode of succession and the same rules of
inheritance apply whether the family is divided or undivided and whether the property is
ancestral or self-acquired. Neither sons nor daughters become coparceners at birth nor do they
have rights in the family property during their father’s lifetime. However, on his death, they
inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters
also get equal shares along with their brothers. Since this ownership arises only on the extinction
of the father’s ownership none of them can compel the father to partition the property in his
lifetime and the latter is free to give or sell the property without their consent. Therefore, under
the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies,
his heirs, including females such as his wife and daughter would become members of the joint
property, not in their own right, but representing him. Since females could be coparceners, they
could also act as kartas, and manage the property on behalf of the other members in the
Dayabhaga School.
One of the important differences between the two schools is that under the Dayabhaga, the father
is regarded as the absolute owner of his property whether it is self-acquired or inherited from his
ancestors. Mitakshara law draws a distinction between ancestral property (referred to as joint
family property or coparcenary property) and separate (e.g. property inherited from mother) and
self-acquired properties. In the case of ancestral properties, a son has a right to that property
equal to that of his father by the very fact of his birth. The term son includes paternal grandsons
and paternal great-grandsons who are referred to as coparceners. An important category of
ancestral property is property inherited from one’s father, paternal grandfather and paternal
great-grand father. The other categories are: i) Share obtained at a partition (ii) accretions to joint
properties and self-acquisitions thrown into common stock. The point that deserves attention is
that under traditional Hindu law, a daughter is not entitled to property rights by birth in such
ancestral properties. In the case of separate or self-acquired property, the father is an absolute
owner under the Mitakshara law4.
Features of the Dayabhaga System
1. Widow’s Right to Inherit
Jimutvahana, combats the theory propounded by the Mitakshara school and criticizes it over the
exclusion of the deceased brother who was either joint or reunited with his other brothers. He
maintains that such a theory, would be in conflict with the texts of Vrihaspati . Jimutvahana,
whilst protecting the right of the widow to hold property, states that whether the deceased be
divided or undivided, his next heir is his widow in the case of him not being succeeded by a male
issue.5
4
4 NLR 2008-2009; Pg 124
5
P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro v. Ganesh, 10 Bm. HCR, p.
444 where Mr. Justice Nanbhai Haridas very lucidly explains by several diagrams the limits of a
coparcenary
Jimutvahana bases his theory on Vrihaspati who states, “Among brothers, who become
reunited…there is no right of seniority, if partition be again made. Should any one of them die,
or in any manner depart, his portion is not lost but devolves upon his uterine brother. His sister
too entitled to take a share of it.” He thus supports the right of the sister to inherent from
coparcenary as well.
The Dayabhaga school also contests the fundamental principle of the Mitakshara system that
several undivided brothers are like joint tenants, each having an unascertained interest in the
whole of the joint property, so that when on the death of one of the brothers, the joint property
belongs exclusively to the survivors, since the ownership of the other brothers is not divested.
Jimutvahana holds that several coparcenars are like tenants in common, each having a right to
the undivided portion, so that on the death of one, there is no right of survivorship to intercept his
widow’s right of succession under the text of Yajnavalkya.
To sum on this issue, in the Mitakshara system, the widow is entitled to inherit her deceased
husband’s property only when he dies leaving behind no male issue and he dies separated from
his brothers. Under the Dayabhaga system, the widow’s inheritance is not determined by whether
he died separated or united.
Thus, by granting the widow the right to inherit her deceased husband’s property when he leaves
behind no male issue, the Dayabhaga school dilutes the heavily patriarchal system prevalent in
India at the time.

2. Self Acquired Property

According to the Dayabhaga, the father is given absolute rights over his self-acquired property
and sons have no inherent interest in it. Therefore, the father possesses the right to dispose of his
self acquired property in a manner he chooses, without involving his sons. He may also decide to
divide it amongst his sons at will in a proportion determined by him. He allows its division by
the father at his will even when his wife in the child-bearing age, and it is therefore possible for
more sons to be born because the sons already born, and those yet to be born have no interest in
the father’s self acquired wealth, atleast during his lifetime.

Running counter to this, the Mitakshara system lays out that the sons do have an interst since
birth in their father’s self acquired property, be it movable or immovable. Jimutvahana on the
other hand does not recognize the son’s vested right in the father’s estate, and hence he cannot
grant to the son the right to separate from the father at will. Whilst interpreting the Yajnavlykas,
Jimutvahana has stated that the sons have an equal right in the ancestral estate along with their
fathers. According to him, this applies to the situation where an undivided brother dies eaving
behind him a son and when the deceased’s brothers divide, his son steps into the father’s shoes
and takes the father’s share. Thus while a son does not possess an equal right with his father
during the latter’s life time he inherits his father’s share when his uncles divide. Until then the
property remains intact.

*Partition During Mother’s Lifetime

The Dayabhaga borrows from the treatise of Maskari in this field of inheritance. Maskari,
commentating on the Gautama dharma sutra ‘urddhvam pituh putra rkhtam vibhajeran’, said that
the expression “pituh” means both parents – father and mother because this word is an “ekasesa
dvandva” and therefore the sutra means that sons can divide ancestral property only after the
death of both – father and mother. This provision has been mentioned in brief earlier in the
previous chapter of this paper in “the evolution of the Dayabhaga school” and more light is shed
on the same in this section.

The Dayabhaga borrowing from this interpretation of Maskari, lays down that after the death of
the father the sons have no independent power to partition father’s estate throughout the lifetime
of the mother, yet the son is given a position of eminence and the widow’s seemingly absolute
right in the husband’s property is circumscribed by the rights of the son, and it is said that though
the sons acquire ownership in father’s property immediately upon his death, the actual position is
postponed until the death of the mother. However, the sons may divide the property with the
mother’s consent. 6

Jimutvahana further lays down that when a person leaves behind more than one widow, each
having an equal number of sons, the widows may partition the property amongst themselves and
though he says that this partition is as per the widows and not their sons, yet it its submitted that
the reference to equal number of sons signifies that the mother’s right to partition is encroached
by the sons, although in a subtle manner, and that each widow is allowed to take an equal share
only to pass-on to her sons upon her death.

*Wife’ Share when the Husband Divides in his Lifetime

In this regard, both schools – the Dayabhaga and the Mitakshara concur and state, on the basis of
the Yajnavalkas, that when a person divides his property whilst he is alive, he must treat both –
his son as well as his wife alike. He must give his wife an equal share as that given to his son.
But if the wife has received her stridhan, she would only be entitled to half the share of the son.
*Share of the Unmarried Sister
Smriti rules dictate that the unmarried sister should get a on-fourth share in the family property.
But Jimutvahana relaxes this rule to such an extent that it does not confer upon her any vested
right to get that share. According to him what the law stipulates is that the brothers are under an
obligation to arrange her wedding and cater to other “necessities”. What is “necessary” is not
easily quantifiable and this may vary from family to family.

2. CO-PARCNER IN DAYABHAGA
The concept of a coparcenary under the Dayabhaga system is entirely different from the one
under the Mitakshara law. Hence, the distinguishing features of a Dayabhaga joint family will
now be considered, whilst considering briefly the points of distinction between the two.
6
Section 6 of Hindu Succession Act, 1956
 1.  Sons do not acquire any right by birth
Under the Mitakshara law as it existed prior to the 2005 Amendment of the
Hindu Succession Act, each son acquired, at his birth, an interest equal with his father, in
all ancestral property held by the father, and on the death of the father, the son got this
property, not as his right, but by survivorship.
However, under the Dayabhaga law, the sons do not acquire any interest in the ancestral
property by birth. Their rights arise, for the first time, on the death of the father. Even on
his death, they take the father’s property, whether separate or ancestral, as heirs, and not
by survivorship.

Since the sons do not take any interest in the ancestral property as long as the father is
alive, there can be no coparcenary, in the strict sense of that term, between the father and
his sons under the Dayabhaga law.

2.  Absolute power of the father to dispose of ancestral property:

Since under the Dayabhaga law, the sons do not acquire any interest by birth in the
ancestral property, the father can dispose of such property (whether movable or
immovable) by sale, gift, will or otherwise, in the same way as he can dispose of his
separate property.

As seen in the last Chapter, under the Mitakshara law, the powers of a father to dispose of
ancestral property are limited. However, Section 30 of the Hindu Succession Act, 1956,
enables a male Hindu in a Mitakshara coparcenary to dispose of his interest in a
coparcenary property by will. This Act also recognises, in effect, the right of a male
Hindu governed by the Dayabhaga law to dispose of his interest in coparcenary property
by will.7

3.  No right of partition or accounts against the father:

Under the Dayabhaga law, the sons cannot demand a partition of ancestral property from
the father (which they can do under the Mitakshara law). Nor can they call for accounts
of the management from the father. Under the Dayabhaga system, the father is the
absolute owner of all the property, and he can manage it in any way he likes.

7
www.lawctopus.com/
4.  Concept of ancestral property under the Dayabhaga law:
Just as under the Mitakshara law, so also under the Dayabhaga law, ancestral property is
that property which is inherited from a father, father’s father, or father’s father’s father.
However, as seen above, under the Dayabhaga law, the children of a Hindu do not acquire
any interest in such property by birth, as they do under the Mitakshara law.

5.  Coparceners according to the Dayabhaga law:

As seen earlier, under the Mitakshara law as it prevailed before the 2005 Amendment, the
foundation of a coparcenary first laid on the birth of a son in the family. Thus, if a Hindu
was governed by the Mitakshara law, and a son was born to him, immediately the father
and son became coparceners.

On the other hand, according to the Dayabhaga law, the foundation of a coparcenary is laid
on the death of the father. As long as the father is alive, there is no coparcenary, in the
strict sense of that term, between the father and his male issues. It is only when he dies,
leaving two or more male issues, that the coparcenary is first formed.

A coparcenary under the Dayabhaga law can, however, consist of males as well as females.
It will be remembered that under the Mitakshara law before the 2005 Amendment, no
female Hindu could be a coparcener, although she can be a coparcener today. However,
even under the Dayabhaga law, a coparcenary cannot start with females. Thus, if a person
dies leaving two or more daughters, such daughters would not constitute a coparcenary8.

The effect of the Hindu Succession Act, 1956, is not to abolish or disrupt the Dayabhaga
joint family. The only result is that the share of a coparcener in the coparcenary property
will devolve by succession according to the provisions of that Act upon the heirs specified
in that Act.

Thus, A dies, leaving three sons, В, C, and D. All of them will form a coparcenary,
succeeding together to their father, A.

However, take a case like this.- A dies leaving a son B, who has two sons, С and D. In this
case, the son, B, will not form a coparcenary along with the grandsons, С and D. В only
succeeds to the separate or ancestral property left by A, in which property С and D do not
get any interest by birth. However, when В dies, С and D will together succeed to such
property, and they will form a coparcenary under the Dayabhaga law.
8
shareyouressays.com
6. Coparcenary property:

Just as under the Mitakshara law, so also under the Dayabhaga law, coparcenary property may
consist of ancestral property, or of joint acquisition or of property thrown into the common stock,
or property which represents accretions to such property.

However, under the Dayabhaga law, every coparcener takes a definite share in the coparcenary
property. Like his separate property, it passes by succession to his heirs and not by survivorship
to the remaining coparceners. Unlike under the Mitakshara law, the children of the coparceners
do not take any interest by birth in the coparcenary property.

7. Each coparcener takes a defined share:

The essence of a coparcenary under the Mitakshara law is unity of ownership. On the other hand,
the essence of a coparcenary under the Dayabhaga law is unity of possession, and there is no
unity of ownership at all.

The ownership of the coparcenary property, under the Dayabhaga system, is not in the whole
body of coparceners. Rather, every coparcener takes a defined share in the property, and he is the
owner of that share. Unlike the Mitakshara system, he does not have a fluctuating share, which
fluctuates with births and deaths in the family. Even before a partition of the property, a
coparcener under the Dayabhaga system can say with certainty that he is entitled to a particular
share (say, for example, 1/3 or 1/4) of the property.

8. No right of survivorship:

As every coparcener under the Dayabhaga law takes a defined share of the coparcenary property,
on his death, his share will pass to the heirs, and not to the other coparceners by survivorship.

9. Absolute power of coparcener to dispose of his share:

Since every coparcener under the Dayabhaga law takes a defined share of the coparcenary
property, it follows that a coparcener can alienate his share by sale or mortgage or dispose it of
by gift or by will, in the same manner as he can dispose of his separate property.

10. Enjoyment power of coparcenary property:

Since every coparcener under the Dayabhaga law takes a definite share in the coparcenary
property, he is entitled to make any use he likes of the portion of the coparcenary property in his
possession. It has been held that he can even lease out his share and put the lessee in possession
thereof.

11. Right to enforce partition:

As under the Mitakshara law, so also under the Dayabhaga law, every adult coparcener has a
right to call for and enforce a partition of the joint family.

12. Powers of Manager:

From the several judicial decisions on the point, it can be concluded that the powers of a
manager under the Dayabhaga law are the same as those of a manager under the Mitakshara law.
He can contract a debt for a joint family purpose, and a decree passed against him for such a debt
will bind the other members, although they are not parties to the suit. He can also mortgage the
family property for the purposes of the family business.

13. Presumption as to coparcenary property:

The presumptions with regard to joint family and joint family property under the Mitakshara law
have been discussed in the last Chapter. These presumptions would also apply to cases under the
Dayabhaga law. However, it may be noted that there is no presumption under the Dayabhaga law
that property purchased by a son in his name in the father’s lifetime, and which has been in the
possession of the son ever since the purchase, is joint family property. The burden of proof in
such a case lies on those who deny the ownership of the son.

3. CASE LAWS

1. Kuppuswamy (1977) 108 ITR 439 (SC):

a) The male descendants as well as female descendants after the Succession (Amendment)
Act, 2005, up to the third generation acquire an independent right of ownership by birth and
 not representing their ancestors. After the commencement of Hindu Succession
(Amendment) Act, 2005, a daughter of a coparcener shall have the same right in the
coparcenery as she would have had if she had been a son.

b) The members of the coparcenery have the right to work out their rights by demanding
partition.

c) Until partition, each member has got ownership extending over the entire property co-
jointly with the others and so long as no partition takes place, it is difficult for any coparcener
to predict the share which he might receive.

d) As a result of such co-ownership, the possession and enjoyment of the property is

common.

e) There can be no alienation of the property without the concurrence of the other co-
parceners unless it is to be for legal necessity.

f) The interest of a deceased member lapses on his death and merges in the coparcenery
property.

2. Attorney General of Ceylon v. A.R.A Arunachalam Chettiar & Ors. (1958) 34 ITR

(ED) 42 (PC), that a coparcener can Initiate proceedings against the Karta to ensure
recognition of his future maintenance rights where he is excluded entirely from the benefits
of joint enjoyment of family property and income. He can also claim compensation for his
earlier exclusion.

The coparceners are tied together with unity of interest and unity of possession between
them.

Every coparcener has a right to challenge an improper alienation made by Karta, apart from
those made for legal necessity, benefit of estate or indispensable duties or for legitimate acts
of management.

State Bank of India v. Ghamandi Ram AIR 1969 SC 1330 and N.V.Narendra Nath v. CWT
(1969) 74 ITR 190 (SC), a Mitakshara coparcener has the right of survivorship meaning that
he takes the joint  family property by survivorship. However, w.e.f. 9-9-2005 as a
consequence of commencement of Hindu Succession (Amendment) Act, 2005, the interest
in Joint Hindu Family shall devolve by testamentary or intestate succession and not by
survivorship

4. CONCLUSION

We have indeed come far away from where we started and yet, there is a lot that needs to be
done. Despite the enactment of the Hindu Succession (Amendment) Act, 2005 the law still has
some anomalies. The future of coparcenary lies in the moving further ahead and improving the
position of women by giving effect to the solutions to the following anomalies in the Hindu
Succession Act, 1956.

Some Anomalies That Still Persist:

Making daughters coparceners will decrease the shares of other Class I female heirs, such as the
deceased’s widow and mother, since the coparcenary share of the deceased male from whom
they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra,
the widow’s potential share will now equal the son’s and daughter’s. But where the wife takes no
share on partition, as in Tamil Nadu or Andhra Pradesh, the widow’s potential share will fall
below the daughter’s.

Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal
division of the male co-parcener’s share on his death between all heirs, male and female; still, the
law puts the male heirs on a higher footing by providing that they shall inherit an additional
independent share in co-parcenary property over and above what they inherit equally with female
heirs; the very concept of co-parcenary is that of an exclusive male membership club.

Partially restricting the right to will. Such restrictions are common in several European countries.
Otherwise women may inherit little, as wills often disinherit them. However, since the 2005 Act
does not touch testamentary freedom, retaining the Mitaksara system and making daughters
coparceners, while not the ideal solution, at least provides women assured shares in joint family
property.

If a Hindu female dies intestate, her property devolves first to husband’s heirs, then to husband’s
father’s heirs and finally only to mother’s heirs; thus the intestate Hindu female property is kept
within the husband’s lien.

The law regarding the coparcenary in the joint Hindu family has evolved over time. Before
independence various legislations were passed regarding coparcenary. The main change that has
been brought after the independence was in 2005 when the Hindu Succession (Amendment) Act,
2005 was enacted. This act changed the face of the Hindu Succession Act by giving equal rights
to women as that of the men. The women too can now be the coparceners.

It is necessary to understand that if equality exists only as a phenomenon outside the awareness
and approval of the majority of the people, it cannot be realized by a section of women socialized
in traditions of inequality. Thus there is need to create social awareness and to educate people to
change their attitude towards the concept of gender equality. The need of the hour is also to focus
attention on changing the social attitudes in favour of equality for all by enacting a uniform law.

The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy;
efforts to enhance social awareness of the advantages to the whole family if women own
property; and legal and social aid for women seeking to assert their rights, are only a few of the
many steps needed to fulfill the change incorporated in the Act.

BIBILIOGRAPHY

 Paras diwan 3rd edition Hindu laws of India

 Sanket Prasad 5th edition Dayabhaga- A treatise on law