Does the Hindu Law of Succession Permit One to Constitute Two Coparcenaries ?

The 2005 Amendment to HSA, however came up with an amendment to section 6, which placed the daughters at an equal footing with the sons as coparceners in their fathers’ coparcenary. It was provided that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights and liabilities as she would have, had she been a son. The effect of this provision was that now the daughters, daughters of the sons, and daughters of sons’ sons of a Hindu male became coparceners and had a birthright in the father’s joint family property. The provision provided equality among sons and daughters in the paternal line of descent with regard to joint family property. 

In Rakesh Sharma v. Vineeta Sharma, the Hon’ble SC held that the daughters’ coparcenary membership is their birth right and the living status of their father on the date of enforcement of the 2005 amendment doesn’t influence the right that a daughter has accrued by birth. The court therefore held that daughters can demand partition of coparcenary property even if death of their father preceded the 2005 amendment. The court overruled its previous decision, which held the contrary, for the reason of its unconstitutionality as it violated the right to equality.

Can a Hindu constitute their mother’s Coparcenary?

In the case of a married Hindu couple, a wife cannot be a member of her husband’s coparcenary and vice versa. Therefore, for their children, maternal coparcenary would be the one which the wife constitutes while the paternal one would be the one which the husband constitutes. We now proceed to discuss whether the children could constitute the maternal coparcenary.

Prior to 2005, the son of a coparcener was a coparcener within the generational limits of a coparcenary and after the 2005 amendment to HSA the daughter of a coparcener also became a coparcener. However, there arises a very interesting anomaly associated with this expansion in the membership of coparcenary to “daughters of coparceners”. Joint family property has traditionally been observed from the point of reference of a ‘Father’ and all the relationships within the coparcenary are traced through the father.

Considering the fact that women were not considered coparceners before 2005, they could not have been the point of reference as ‘mother’ to trace coparcenary relationships. Therefore, at the moment the 2005 amendment was enforced (9th September 2005), Section 6(1) of the HSA extended coparcenary rights to “daughters” from the point of reference of a “coparcener” who, in all probability, would have been a male because of the aforementioned reasoning (and hence, their father). This article, however, proposes that after the enforcement of the 2005 amendment, “mothers” also became a point of reference to trace relationships constituting a coparcenary, making every Hindu a part of both of their parents’ coparcenaries.

A (male) has a daughter B who has two children with C (male) – a son B1 and a daughter B2. 

Let us analyse the above illustration assuming B1 and B2 fall within the degrees of generational separation from the last holder of B and C’s coparcenary property. The phraseology of section 6(1) of HSA, “daughter of a coparcener is a coparcener in the same manner as a son” makes B, the daughter of a Hindu male – A, coparcener in the latter’s joint family. Similarly, B2 being daughter of a coparcener – C, would constitute a coparcenary with C. Therefore, B1 and B2 constitute a paternal coparcenary with their father C. B2 being daughter of a coparcener – B, would again, by the virtue of section 6(1), HSA, be a member of the coparcenary B constitutes (maternal coparcenary). 

Since the rights and liabilities of daughters who become coparceners are same as that of coparcener sons, the effect of coparcener daughters having a son shall also be the same as coparcener sons having a son. There have been instances of daughters assuming the position of Karta in their father’s Hindu Joint Family by the reason of this equivalent right being conferred on the daughters. This article therefore, argues for tracing of coparcener relationships from the point of reference of a coparcener ‘mother’. Now, since B is a coparcener and B1 is her son, by the way of an amalgamated interpretation of classical and codified Hindu Law, B1 would be a coparcener in the coparcenary that B constitutes. This would be possible by application of doctrine of son’s birthright over joint family property. Since B1 is the son of a coparcener, he has the birthright over the joint family property of his coparcener parent, this doctrine shall apply and he would be entitled to constitute coparcenary for his maternal joint family property.

This interpretation entitles B1 and B2 to unobstructed heritage of the coparcenary their mother constitutes. Such an interpretation also favours crystallization of coparcenary rights of children adopted by unmarried Hindu Females or Hindu Females after their divorce.

With the 2005 amendment, the position that membership of the coparcenary is restricted within the paternal line of descent seems to have changed as the amended provision could be interpreted to imply that an individual may trace his membership of coparcenaries in two ways – one being the unobstructed heritage to their paternal joint-family property and other being that of their maternal joint-family property. 

In absence of legislative clarity on coparcenary rights to the joint family property of maternal lineage, it would mean that a coparcenary comprises of the last holder (notwithstanding their gender) and from their point of reference his/her – 

Such an interpretation allows for each member of a Hindu Joint Family to be a part of two coparcenaries. The only determinant of one’s membership in a coparcenary becomes one’s degree of separation from the last holder of the property and is no more concerned with the gender or sex of either the ascendants or the descendants.

Application on LGBTQIA+ Marriages

Such interpretation is favourable to the cause of same-sex marriages as it would bypass the gender roles debate associated with them. While in case of a male marrying a male, the children of such a couple would become the members of both the parents’ coparcenary, the children of a female marrying a female would not be eligible to become a member of either parent’s coparcenary but for the above interpretation. This would be violative of articles 14 and 15 because it discriminates between the children of gay couples and children of heterosexual and lesbian couples without having any reasonable nexus with any object sought to be achieved. The  explanation provided in this article harmoniously interprets the provisions guiding coparcenary membership in a way consistent with fundamental rights, allowing the extension of coparcenary rights to the children of same-sex couples. It makes it unnecessary to genderize the roles among the couple to determine to whose coparcenary do the children belong because they would trace their coparcenary membership through both the parents irrespective of the latter’s gender, subject to their degree of separation from its last holder. 

This would also extend to the Transgender community as by following the concept of gender self-identification, they would be considered to be the sex they identify as, thereby making this interpretation operative on them. This therefore, will make the repository of coparcenary rights available to children of both same-sex, transgender and heterosexual marriages equally. 

It has to be noted that such interpretation, because it presupposes that parties to a marriage could only be male or female, would not favour the individuals who do not identify with the concept of binary gender. Yet, this interpretation, in absence of express legislative instruments, would make available marriage related rights to a lot of communities which are currently bereft of the same.

Conclusion

The 2005 amendment is in itself a testimony of the fact that the Hindu Succession Act does not simply reinforce the tenets of Ancient Hindu Law but, being a piece of social legislation, is a means to bring about social change. Therefore, deviation from the classical tenets restricting memberships of a coparcenary within the paternal line of descent would not be unmaintainable, especially in the presence of explicit provisions enabling such deviation.