Section 6: Devolution of Interest in Coparcenary Property

In one line

Since 9 September 2005 a daughter is a coparcener by birth, survivorship no longer decides what happens when a coparcener dies, and the pious obligation is gone.

What section 6 did

The substituted section does four separate things, and an answer that runs them together loses the shape.

Sub-sections (1) and (2) make the daughter a coparcener by birth.

Sub-section (3) abolishes survivorship as the mode of devolution and substitutes succession, worked out through a notional partition.

Sub-section (4) abolishes the pious obligation, prospectively, which is [Debts: the Doctrine of Pious Obligation and Antecedent Debt].

Sub-section (5) protects partitions effected before 20 December 2004, and defines what counts as a partition.

Sub-sections (1) and (2): the daughter as coparcener

Section 6(1) provides that on and from the commencement of the 2005 Act, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall:

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son; and

(c) be subject to the same liabilities in respect of that property as a son;

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.

The proviso saves any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before 20 December 2004.

Section 6(2) provides that any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership, and shall be regarded as property capable of being disposed of by her by testamentary disposition.

Four things to notice

It applies only to Mitakshara. The words are "in a Joint Hindu family governed by the Mitakshara law", for the reason given in [Dayabhaga Coparcenary, and Property under Dayabhaga Law]: there is no right by birth in Dayabhaga to reform.

Same rights and same liabilities. The daughter takes the burdens with the benefits. She may demand partition, and her interest is liable for the family's debts, as a son's is.

She may will it away. Sub-section (2) says so expressly, which matters because a classical coparcener's undivided interest could not be bequeathed.

Marriage is irrelevant. The section says "daughter of a coparcener", not "unmarried daughter". A married daughter remains a coparcener in her father's family. That is a change from the classical position described in [The Mitakshara Joint Family], where a daughter left her father's family on marriage.

Vineeta Sharma: the date question

The section made daughters coparceners from 9 September 2005, and the courts then divided on what that meant for a daughter whose father had died earlier. One view was that both the father and the daughter had to be alive on that date. Another was that the right, being by birth, did not depend on anybody being alive.