Thereafter, male dominance in this field received the second fatal blow in the shape of the Hindu Succession (Amendment) Act, 2005, which declares that the daughter of a coparcener shall, by birth, become a coparcener in her own right in a joint Hindu family governed by the Mitakshara law.
This topic is, therefore, discussed under the following two heads:
I. Position before the 2005 Amendment
II. Position after the 2005 Amendment
I. Position before the 2005 Amendment:
Before the 2005 Amendment, a Hindu coparcenary was a much narrower body than a Hindu joint family. It included only those persons who acquired, by birth, an interest in the joint or coparcenary property. Such persons were the sons, grandsons and great-grandsons of the holder of the property for the time being. In other words, it included three generations of males (in unbroken descent) next to the holder of the property. Thus, no female could be a coparcener, although she would be a member of the joint family.
A Hindu joint family was a wider expression than a coparcenary, and the following three important features of a Hindu joint family distinguished it from a coparcenary, viz.-
(i) The indefinite number of members in a Hindu joint family;
(ii) The inequality of the rights of such members, some having an interest in the joint family property, and other having only a right to be maintained; and
(iii) The inclusion of females in the joint family.
It is also to be remembered that although every coparcenary must have a common ancestor to start with, it is not necessary that every coparcenary is limited to four degrees from the common ancestor. A member of a joint family may be a coparcener, even if he is more than four degrees away from the common ancestor, i. e., the original holder of coparcenary property.
Such a person would be a coparcener if he can demand a partition of coparcenary property. If he cannot, he cannot be reckoned as a coparcener. The general rule of Hindu Law is that a partition can be demanded by any member of a joint family who is not removed more than four degrees from the last holder of the property, however remote he may be from the original holder of the property, i.e. the common ancestor.
Thus, only sons, grandsons and great-grandsons of the holder of the property took an interest therein by birth, and not any other descendant who was further than three degrees from him. In other words, so long as the common ancestor was alive, the sons of his great-grandson out of the coparcenary. They would form part of the coparcenary only on the death of the ancestor, provided their father, grandfather or great-grandfather was alive at the time of death of such an ancestor. If no such person was alive at that time, the undivided interest of the common ancestor would pass by survivorship to his brothers, nephews, etc.
II. Position after the 2005 Amendment:
What is stated above is now to be read in the light of radical changes brought about by the Hindu Succession (Amendment) Act, 2005, which came into force on 9th September, 2005. This amendment provides that –
(a) The daughter of a coparcener also becomes, by birth a coparcener in her own right in the same manner as a son;
(b) The daughter of a coparcener shall have the same rights in the coparcenary property as she would have had if she had been a son;
(c) The daughter of a coparcener shall be subject to the same liabilities in respect of the coparcenary property as that of a son; and
(d) Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
The said Amendment also provides that any property to which a female Hindu becomes entitled to as above shall be held by her with all the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by testamentary disposition.
Formation of a Hindu Coparcenary:
Before the 2005 Amendment, the concept of a joint Hindu family constituting a coparcenary was that of a common male ancestor, with his lineal descendants in the male line within four degrees, counting from and inclusive of such ancestor (or three degrees, exclusive of such ancestor). Thus, it is clear that no coparcenary can commence without a common male ancestor, although after his death, it may consist of collaterals, such as brothers, cousins, uncles and nephews, and so on.
Consider the following example:
The above diagram shows a coparcenary consisting of several families. A is the common ancestor, and A, along with his three sons Â, Ñ and D, and their sons and grandsons, constitute the “main” family. B, with his two sons, E, and F, Ñ with his son G, D with his sons H and I and his grandsons J and K, and I with his sons J and K, constitute “branch” families. It will be noticed that all the families can trace back to the same common ancestor, viz., A, who is the head of the main family.
Now, each branch family has also its own head, viz., Â, C, D and I. On the death of A, the coparcenary will consist of the three brothers Â, Ñ and D and their male issues. If later on, Â and Ñ die, the coparcenary will consist of D, his nephews E, F and G, his sons H and I, and his grandsons, J and K.