FEMALE AS

COPARCENERS
Family Law II
Legislative Interventions by the British

■ The Caste Disabilities Removal Act, 1850

■ The Bengal Regulations of 1832
■ Age of Consent Act, 1891
■ Hindu Women’s Right to Property Act of 1937
Effect of Women’s Right to property Act
of 1937
■ Changed the traditional concept of coparcenary, under which DOS applied
■ Prevented undivided interest to go to the surviving coparceners
■ Right to demand partition given to widow
■ Widow enjoyed LIMITED OWNERSHIP over property
 Effect of HSA, 1956 on JF &
Coparcenary
■ Amended and codified laws of intestate succession :
Introduction of NOTIONAL PARTITION
■ Modified testamentary succession rules (Chapter 3 of the Act):
Hindus were now allowed to make Wills
 Why were coparceners not allowed to
dispose off their undivided interest by a will,
before 1956?
What is Notional Partition?
What other options did the legislature have
to bring in parity on property rights between
son and daughter?
Options available were…

■ ABOLITION THE JOINT FAMILY SYSTEM

■ INCLUDE WOMEN AS COPARCENRS
The Kerala Joint Hindu Family (Abolition) Act, 1975

The Andhra Pradesh Hindu Succession (Amendment)

Act, 1985

The Tamil Nadu Hindu Succession (Amendment) Act of

1989

The Karnataka Hindu Succession (Amendment) Act

1994

The Maharashtra Hindu Succession (Amendment) Act,

1994
 The Andhra Pradesh Hindu Succession
(Amendment) Act, 1985
■ Unlike Kerala, this Amendment Act has not abolished the concept of Hindu joint family.
■ The daughter is made a coparcener like son by birth and subject to same benefits and
liabilities.
■ It also provides that at the partition the daughter will get the same share as that of son.
■ The daughter of predeceased son would get the same share as allotted to her
counterpart
■ The daughter is capable of disposing of her share by will or other testamentary
disposition.
■ The Act is NOT retrospective, so the partition which took place before the
commencement of the Act, will not be effected.
■ The daughter who married before this Amendment would not get the benefit of this Act
Prerequisites to own a property under
State HSA:
■ Girl should have been unmarried on the date of the passing of the Act
■ No partition in the family should have been effected before commencement of the
Act
■ If both conditions are satisfied the under the Land Reforms Act she is capable to
hold a land independently - Nimmagada Sambasiva Rao vs. State of Andhra
Padesh, 1999 Case CRP 1878 of 1995
■ What happens when the preliminary decree for partition has been passed and not
the final decree? Can the woman still claim her share in the coparcenary property?
- S. Narayan Reddy vs. S. Sai Reddy, CRP No. 3205 of 1989
-Vanimisatti Adi Kumb vs. Jayavarappu Krishnamurthi, AIR 1195AP 05
 Nanjamma vs. State of Karnataka,
1999 AIHC 3003 (Kar)
■ The new law created a distinction between the rights of daughters on the. Basis of
marital status.
■ The Karnataka Act was challenged as unconstitutional, on the ground that it did not
treat all daughters equally.
■ Claimed that it created “a class within a class” of daughters.-
■ No rationale or nexus was sought to be achieved by making the such discrimination
against a married woman
■ Court held that: “” The principle of equality guaranteed by Art 14 of the Constitution
does not mean that every law must have universal application for all persons who
are not by nature, attainment or circumstances in the same position as the varying
treatment. Classification is permissible for legitimate purpose
Way Ahead….

■ The Andhra Model inspired their States to. Modify their laws
■ A total of 5 states changed the laws. AP was followed by Tamil Nadu, Karnataka and
Maharashtra.
■ The center took the first step towards changing laws only as late as early 2000s.
■ 15th LC headed by B.P JEEVAN REDDY suggested conferring equal rights to
daughters in coparcenary property.
■ 174th Law Commission Report, dated 4th May 2000
■ Hindu Succession (Amendment) Bill, 2000 was introduced.
 Status after Amendment of 2005
■ On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu
family governed by the Mitakshara law, the daughter of a coparcener shall,—
■ by birth become a coparcener in her own right in the same manner as the son( irrespective of their
marital status)
■ have the same rights in the coparcenary property as she would have had if she had been a son;
■ be subject to the same liabilities in respect of the said coparcenary property as that of a son,
■ any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener
■ Abolished the doctrine of survivorship unconditionally
■ Is entitled to represent the family
■ Can become karta in certain States (e.g. Kerala)
■ Will get the same shares as allotted to a son
■ Rights of children of female coparcerner will be a protected in their father’s coparcenary.
■ Dual membership for woman and her children
Contradiction between the State Laws
and Central Laws
■ While all States introduced unmarried daughters as coparceners and married daughters
were left out, the 2005 Central Amendment, made all daughters irrespective of their
marital status as coparceners.
■ The second contradiction appeared with respect to the capability of female coparceners
to challenge alienation and reopen partitions effected post the conferment of rights in
their favor by the state enactments but later taken by the Central Amendment.
■ Eg: In TN an unmarried daughter was made coparcener in 1989. She could therefore
acquire an interest in the coparcenary property and also challenge alienation without her
consent. After the 2005 Act came into being, it provided that a daughter cannot
challenge alienation effected prior to December 20th 2004. This means that the State
Act’s rights in favour of the daughter was taken away by the Central Amendment
retrospectively.
■ This issue was resolved in- R. Kantha vs. UOI, AIR 2010 Karn 27