Coparcener meaning in HUF and legal context explained


We look at the individuals who qualify to be coparceners under the Hindu succession laws and the rights of such coparceners

Coparcener meaning

According to the Merriam-Webster Dictionary, the term ‘coparcener’, which has been in use since the 15th century, stands for ‘a joint heir’. The Collins Dictionary also defines coparcener as a noun, to denote a person who inherits an estate as a co-heir with others.

 

Coparceners meaning in Hindi

The term has its equivalent in Hindi as समान उत्तराधिकारी. On the other hand, हमवारिस is the Urdu meaning of coparcener. When applied in the context of Hindu laws, coparcener has a more specific meaning than just a joint heir.

 

Who is a coparcener under the Hindu law?

Under the Hindu succession law, the term coparcener is used to denote a person, who assumes a legal right in his ancestral property, by birth in a Hindu Undivided Family (HUF). As per the Hindu Succession Act, 1956, any individual who is born in an HUF, becomes a coparcener by birth. Before we proceed, it would be crucial to understand what an HUF is.

 

Who is a coparcener?

 

See also: Types of land ownership

 

What is an HUF?

An HUF is a group of people, who are the lineal descendants of a common ancestor. This group would include the eldest member and three generations of a family and all these members are recognised as coparceners. According to the law, all coparceners acquire a right over the coparcenery property by birth, while their share in the property keeps on changing with new additions in the family.

Under the Mitakshara system, joint family property devolves by survivorship within the coparcenery. This means that the proportionate share of a coparcener decreases with every birth in the family and increases with every death in the family. Thus, a coparcener’s interest in the HUF property fluctuates by births and deaths in the family.

Under the existing laws, the coparcenery rights of the fifth lineal descendant (the great-great-grandson) comes into effect only when the common ancestor dies.

This way, a coparcenary consists of a person at the top of a line of descent, also known as propositus and his three lineal descendants – the son/s, the grandson/s and the great-grandson/s. Simply stated, a coparcenary has succession of up to four degrees of lineal descent. Suppose Ram is the karta of an HUF, with his son Mohan, Mohan’s son Rohan and Rohan’s son Sohan as coparceners. Upon his birth, Sohan’s son Kaylan will not have the coparcenary rights in the property till the demise of Ram.

See also: How to become co-owner of property?

 

Can women become coparceners?

Before an amendment was made in the Hindu Succession Act, 1956, by the apex court in India, women did not enjoy a right on their ancestral property after their marriage as they were not considered as coparceners. The old laws basically denied coparcenary status to women.

After the amendment in the succession law, through the Hindu Succession (Amendment) Act, 2005, women have been accepted as coparceners. Now, both, sons and daughters, are coparceners in the family and share equal rights and liabilities over the property. A daughter remains a coparcener in the property even after marriage and in case of her demise her children become coparceners in her share.

See also: Property rights of a Hindu daughter under the Hindu Succession Act 2005

 

Property rights of a daughter before 2005

Before the 2005 amendment, only men were the coparceners in an HUF, while all the women were only considered ‘members’. Owing to this variation, their rights were also different. While a coparcener can seek partition of the property, members like daughters and mothers, only had the right of maintenance from the HUF property. They would get their share as and when a partition took place. However, they did not have the right to seek a partition.

Once married, a daughter also lost her membership from the HUF, thus, losing the right to maintenance, as well as to get a share in the property of the HUF, if the partition took place after her marriage. Also, only coparceners were entitled to become the Karta of an HUF, not the women.

See also: How to remove illegal possession from your property?

 

How the Hindu Succession Amendment Act 2005 affects women

With the amendment of Section 6 of the Hindu Succession Act (the amendment in the law came into effect on September 9, 2005) the daughters’ rights regarding ancestral property were made the same as that of sons, with them being covered under the term coparcener.

The amended Section 6 of the Hindu Succession Act, 1956, which deals with devolution of interest in coparcenary property, states that: “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; have the same rights in the coparcenery property as she would have had if she had been a son; be subject to the same liabilities in respect of the said coparcenery property as that of a son and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.” Nothing contained in the sub-section affects or invalidates any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before December 20, 2004, it added.

Consequently, daughters now have all the coparcenary rights – they can ask for the partition of property among family members and become the karta of an HUF. However, this change, from being only a member to a coparcener, is applicable only on daughters. This means only daughters born in the family have the coparcenary rights. Women who join an HUF through matrimonial alliance will be treated as members only. Note here that a daughter, who gets married will discontinue to be a member of her parental HUF. However, she will continue to be a coparcener in the HUF. In case of her demise, her children will have the legal right to receive the share in an HUF property at the time of its partition. In case her children are not alive either, her share in the property could be claimed by her grandchildren.

 

Supreme Court verdict on coparcenery rights of daughters

Owing to various ambiguities on the prospective or retrospective nature of Section 6 and its applicability on women born after 2005, conflicting interpretations of the 2005 amendment were made by various high courts and the Supreme Court itself over the past 15 years.

Offering clarity on these matters, on August 11, 2020, the Supreme Court, in the Vineeta Sharma versus Rakesh Sharma and others case, has said that daughters will have coparcenery rights on their father’s property even if he died before the Hindu Succession (Amendment) Act, 2005, came into effect that year.

“The provisions contained in substituted Section 6 of the Hindu Succession Act, confer status of coparcener (equal shareholders while inheriting properties) on the daughter born before or after the amendment, in the same manner as sons, with same rights and liabilities. Since the right in coparcenery is by birth, it is not necessary that the father of the coparcener should be living as on September 9, 2005 (the date when the law came into force),” the SC said in its ruling, in effect making the 2005 amendment retrospective. It, however, said that a registered settlement or partition suit decreed prior to December 20, 2004, will not be reopened.

 

Can coparcenery property be sold?

While a coparcener has the right to ask for a partition to get their share, he or she is not legally entitled to sell the property unless a division takes place with the consent of all coparceners and members. Once the property is inherited by way of partition, the owner is within his legal rights to sell his share.

See also: Who is an heir and what is inheritance?

 

Hindu succession law: Key points to remember

  •  Apart from Hindus, people from other religions, such as Jainism, Sikhism and Buddhism, are also governed under HUF.
  •  Coparcenery applies on both, ancestral and self-acquired properties. However, unlike ancestral property where all the coparceners have equal rights over the property, a person is free to manage his self-acquired property through a will.

See also: Important points to consider, while making a will

  • A coparcener is not the same as a member of the HUF. Even though all coparceners are members of an HUF, not all members may be coparceners. The wife or the husband of a coparcener, for instance, is a member but not a coparcener in the HUF.

See also: Role of Karta in a Hindu Undivided family

 

FAQs

What is coparcenary under the Hindu law?

Coparceners are members of a HUF who assume a legal right in their ancestral property by birth.

Is a married daughter a coparcener?

Yes, married daughters are also coparceners in an HUF after the amendment of the succession law in India in 2005. Married daughters, however, cease to be members in their parental HUFs.

Can a married daughter ask for partition of property at her natal home?

Yes, married daughters can ask for partition of their natal homes and can also act as a karta of an HUF.

 

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