Succession in Ancestral Property and Daughter’s right in Coparcenary

[2022] 134 taxmann.com 341 (Article)

A. Succession prior to the Hindu Succession Act, 1956

A.(a). Right of son in Hindu Law.

1. Ancient Hindu Law :- Originally right to property as per the ancient Hindu Law was based on customs and religious beliefs. The concept of coparcenary is the product of ancient Hindu customs and long-standing practices, which later on became the essential feature of Hindu law in general and Mitakshara School of Hindu law in particular. As per Hindu custom, every Hindu used to pray for a son, who can give pind dan. The Sanskrit word for son is ‘Puthra’. Those who die without a son were believed to go to hell and he who saves one from this hell is called ‘Puthra’.

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‘Puth’ is the name of a particular hell and ‘thra’ means ‘to protect’. Thus the word ‘Puthra’ means ‘a person, who saves one from the hell named ‘Puth’. Although a father’s share in the Coparcenary property will diminish after a son is born, he still prays for a son. It is axiomatic under Hindu law, that membership with the family should be considered as commencing from the time of conception. The moment a son is conceived, he gets a share in the father’s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. A son begotten but not born is equal in all respects to a son actually in existence except for adoption. He is entitled to even sue or reopen a partition decree passed after his conception though it was before his birth. The after-born son is entitled to the protection of his property rights which he is held to have acquired from the moment he was conceived by his mother by the application of the fiction that he should be deemed to have been in existence from that time.

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