Coparcenaries such pre-deceased child of the pre-deceased



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Coparcenaries property was earlier confined to the male members of the family. With a view to overcome the oppression of women, the Hindu Succession (Amendment) Bill, 2004 was passed by the Rajya Sabha on August 16, 2005.

Later, the Hindu Succession (Amendment) Act, 2005 was enacted and came into force on September 9, 2005. This Act is the product of the 174th Report of the Law Commission of India on “Property Rights of Women: Proposed Reform under the Hindu Law” and has abolished the old concept of discrimination between sons and daughters as contained in section 6 of the Hindu Succession Act of 1956 by giving equal rights to women and daughters in the Hindu Mitakshara coparcenaries property as the sons have. The exclusive prerogative of males to be coparceners have changed altogether and now daughter of a coparcener by birth becomes a coparcener with same share in the same manner as if a son and shall be subject to the liability as if a son. The share of a pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter. The share of a pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter. After the commencement of the Act of 2005, no court shall recognize any right to precede against a son, grandson or great-grand son for the recovery of any debt due from his father, grandfather or great-grand father solely on the ground of pious obligation under the Hindu Law, of such son, grandson or great-grand son to discharge any such debt.

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However, this amendment does not apply to a self acquired property and thus female members of the family continue to be excluded by a valid Will in this regard. Also Section 23 of the old Act disentitled a female heir to ask for partition in respect of dwelling house wholly occupied by a joint family until male heirs choose to divide their respective shares therein. The new Act of 2005 omits the special provisions relating to rights in respect of dwelling houses and disentitlement rights of widow’s remarrying as contained in section 23 and 24 respectively.

Thus, the traditional concept that only males could be members of the coparcenaries and ‘no female could ever be a coparcener nor could own coparcenaries property’ is no longer the law. However, attempts need to be made to achieve more power for the women and sensitize the judiciary and the legislators about execution of laws to eradicate traditions that perpetuate discrimination.