Hindu law is one of the most ancient laws in the world. It is about 6000 year old. Hindu law was established by the people for attaining salvation. There are main four sources of Hindu law which are divided into twofold classifications.
- Shruti- Shruti means what has been heard. It contains words of god. This source is one of the most important source. It contains knowledge about salvation and incarnation.
- Smriti- Smriti means to remember. In this it is considered that the word uttered by the god to Rishi’s is written by remembering the words.
- Commentary and digest- Commentary means single interpretation of smriti and digest means different- different interpretations of smriti. It plays a very important role in developing the concept of Hindu law.
Mitakshara and Dayabhaga coparcenary (school of thoughts) are considered as two most important commentaries.
Custom- Custom means the tradition which is followed from a very long period if time without break.
- Judicial Decisions- Judicial decision is considered as one of the most important sources of Hindu law. Under this doctrine of precedent is developed in which the cases were solved according to the previous case decision and the decision is given by the higher court is binding to all the lower courts.
- Justice equity and good conscience- it is a basic rule of law. When an existing law doesn’t apply in a case then this rule is apply.
- Legislation- Legislation is considered as the bases of growth of Hindu law in present time. It is important for new conditions of society to become a necessity to codify the law.
Hindu Undivided Family
- Hindu Undivided Family (HUF) is also known as a Hindu joint family. It consists of a common ancestor and all his lineal male descent up to any generation together with wife and unmarried daughter of common ancestors and of the lineal male descendants.
- The existence of the Hindu Undivided Family is from a common ancestor.
- Members in Hindu Undivided Family added by birth, adoption, marriage.
- A family is presumed to be a joint family by joint in food, worship and estate.
Ketha Perumal v. Rajendra
In this case, there were three bothers owning a joint family property and they all are working at three different places. It was held that they still constitute as a joint family merely because they were not living jointly doesn’t lead to interference that they didn’t constitute a joint family.
- For continuation of Hindu Undivided Family presence of common ancestor is not necessary.
- Hindu Undivided Family is considered as a unit and all its affairs is represented by the head of the family i.e., Karta (oldest member of the joint family).
- Hindu undivided family comes to an end only by partition.
Schools of Thoughts
In Hindu law all the thoughts are divided mainly on the bases of two schools. Two main schools of thoughts are:
Mitakshara School of thought
It is based on Yajnayalkya smriti which is interpreted by Vijneshwara. This school of thought is applicable whole over India except West Bengal and Assam.
Dayabhaga School of thought
It is based on Yajnayalkya smriti which is interpreted by Jimutvahana. This school of thought is applicable only in West Bengal and Assam.
Coparcener is a term which is mainly used for the members who are the legal successor of the ancestral property.
In Mitakshara School only main members are considered as coparceners. After enacted of Hindu Succession Act, 2005 female can also be a coparcener in the ancestral property.
In Dayabhaga School both male and female are coparceners in their father’s property.
Coparcenary is found in Hindu Undivided Family. Coparcenary comes to an end only by the way of partition.
Coparcener has a right only by birth or adoption.
Rights of a Coparcenary
- Right of joint ownership of the property.
- Right to joint possession and enjoyment of the property.
- Right to claim partition.
- Right to seek maintenance.
- Right to challenge improper alienation made by Karta.
Incident of Coparcenary
- Coparcener has a right only by birth or adoption.
- A person suffering from insanity can be a coparcener but he does not have a right to claim partition or to a share if partition takes place.
If he is cured of insanity than both of his rights revive.
Coparcenary of Mitakshara School
Coparcenary is a narrow body of persons within a joint family. It consist of the father and next three male lineal ascendants i.e., son, son’s sons, son’s son’s son.
In this case share of the property is divided between A, B, C and D. All coparcener’s get equal share i.e., one-fourth (1/4) and is not a coparcener.
If A dies than B, C, D and E get the equal share i.e., one-third (1/3).
If B dies than A, C and D get the one-third (1/3) share of the property and E is not considered as a coparcener because from A four-generation comes till D only. So E is not a coparcener.
In this case if all members are alive then each coparcener gets an equal share in property i.e., one-sixth (1/6).
If C dies than A, B, D, E, F and G are coparceners and they get an equal amount of share i.e., one-fifth (1/5).
- Coparcenary is counted till fourth generation from the last owner or the original owner.
- Only male member of the family can be a coparcener, female cannot be a coparcener. After the enactment of the Hindu Succession Act, 2005 has enables daughters to become coparcener like a son.
- A coparcener has an interest in joint family property by birth but the interest is flexible and unpredictable which can be increased by the death of other coparcener and decrease by taking birth of a new coparcener in a joint family.
- An illegitimate son is not considered as a coparcener in the joint family property.
- Interest of coparcener is fixed only by the partition of joint family property.
Coparcenary of Dayabhaga School
- In Dayabhaga School coparcenary share is fixed.
- In this school, both daughters (married or unmarried) and sons have equal right.
In this case, if A is alive B and C do not have the right to property. If A dies then only coparcenary starts between B and C.
In this case, if A and B dies then all property belongs to C.
If B and C dies and A is living then the property would be divided according to the succession act.
In this case if B dies before A the property would be divided into three parts as B is married so wife and children will get his share.
- There is no coparcenary consisting of father, son and so on.
- A coparcenary comes into existence for the first time on the death of the father between his son and daughter when they inherit their father’s property.
- A son has no right by birth in father’s property. It can be self-acquired or ancestral property. A father can dispose of his property as per his own wish or the property will dissolve according to Hindu Succession Act.
- A female can also be a coparcener.
- Each coparcener has a right to claim partition and they also have a right to joint possession of property.
- A coparcener has fixed share in the coparcenary property. In case of death of a coparcener his heir successor gets the property according to the Hindu Succession Act.
If A dies than B, C and D get 1/3rd shares in the property of A. E, F, G and D(W) [D(W) is D’s wife] not have any ancestral right in A’s property.
If A dies after the death of D, then D (W) got the share of D.
Difference between Mitakshara School and Dayabhaga School
|MITAKSHARA SCHOOL||DAYABHAGA SCHOOL|
|Applicable whole over India except West Bengal and Assam.||Applicable only on West Bengal and Assam.|
|Only male members are coparcener. Female become coparcener after enactment of Hindu Succession Act.||Both male and female members are coparcener.|
|Acquires coparcenary by birth or adoption.||Acquires coparcenary only after the death of the father.|
|Property dissolved on the doctrine of survivorship. In case of the death of one coparcener, his share in the property is belongs to other coparcener.||In case of the death of one coparcener his share is given to his legal heir i.e., son, daughter, wife, etc.|
This Article is Authored by Shruti Tripathi, 2nd Year B.A.LLB Student at JEMTEC, School of Law, Greater Noida, GGSIPU.