Can a daughter make a will of coparcenary property?

Question: Can a daughter make a will of coparcenary property? [DJS 2011]

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Answer

Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others inheritance in the estate of the common ancestor. Coparcenary is a narrower body property and a than the joint family property.

Before the commencement of the Hindu Succession (Amendment) Act, 2005 only male members of the family used to acquire by birth an interest in the coparcenary, a coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has the bear in mind that it enlarges by deaths and diminishes by births in the family. If an ancestral property remains in the hand of a single person, it has to be treated as separate property, and such a person shall be entitled to dispose of the coparcenary property, treating it to be his separate.

But if a son is subsequently born, that moment a son is born the property becomes a coparcenary property and the son would acquire interest and become a coparcener. According to Section 30 of the Hindu Succession (Amendment) Act, 2005, any Hindu may dispose of any property which is capable of being disposed of by will or other testamentary disposition. Under this section, there is no disability for a female Hindu from making a will or other testamentary disposition. This section uses the term "any Hindu", which includes daughters as well, Thus, a Hindu daughter can make a will of coparcenary property.

Section 6 of the Hindu Succession (Amendment) Act, 2005 recognizes the rule of devolution of interest in coparcenary property among the members of coparcenary without any gender distinction. It confers equal rights and liabilities on male and female Hindus with respect to the devolution of interest.

Post Amendment Act, 2005 the dynamics of share in coparcenary property have conferred equal rights to women and daughters in the Hindu Mitakshara coparcenary property. The judicial opinion through various case laws also helped in contouring the rights.

In the case of Shreya Vidyarthi v. Ashok Vidyarthi and Ors., AIR 2016 SC,  Apex Court held that of Hindu Succession Amendment Act of 2005 was done keeping in mind and respecting the position of a female member, the daughter shall by birth become the coparcener in the same way as a son. 

In nut-shell the changes which are brought by the Amending Act of 2005 are the following:

• The daughter is coparcener by birth in the same manner as the son
• She has the same right in the coparcenary as a son.
• Her liabilities in the Mitakshara coparcenary are like the liabilities of "son" under the new Amendment Act, the Mitakshara coparcenary includes the daughter also.
• The daughter and other females are now not only coparceners but they are also entitled to bequeath their share in the coparcenary like their male counterparts for this reason under Section 30 a change has been made.
• Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, the daughter is allotted the same share as is allotted to a son.

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