Inheritance in India has been a widely debated concept.  A simple idea that all who are born in a particular family have equal rights to the tangible and intangible property has been complicated by the socially constructed dyadic notion of men vs women. The complex evolution of the social norms under the shadow of the varied interpretations of the Hinduism in different parts of India has given birth to different kinds of inheritance laws, which makes for an interesting comprehensive reading. There are basically two schools of codified Hindu law dealing with inheritance- the Mitakshara school and the Dayabhaga school.

To be historically precise, it began with a twelfth century jurist in the court of Western Chalukyan king Vikramaditya VI. The jurist was known as Vijnaneshwara who wrote the treatise(on inheritance) the Mitakshara– based on the Yajnavalkya Smriti- an earlier text on Dharma, law and jurisprudence. Another author of the twelfth century India was Jimutavahana who wrote the Dayabhaga, which was another treatise on inheritance law like Mitakshara.  Dayabahaga and Mitakshara give the right of the inheritance to the sons almost exclusively. But, there is a fine difference between the two. While the Mitakshara gives the right of inheritance to the sons upon their birth, the reformed Dayabhaga places the right of inheritance to the sons and in special conditions to the daughters after the death of the father.

The notion of the coparcenary originated in the concept of daya.  It was Vijnaneshwara who explained the idea of daya while writing a commentary on the Yajnavalkya Smriti in the treatise Daya Vibhaga prakranam vyavahara adhyay. Here, it is stated that the daya is the only property that is given to other based only on the reason of relation. Thus, the distinctive concept of coparcenary is a result of early Hindu jurisprudence which subsequently became one of the central features of Hindu law in general and especially the Mitakshara School of Hindu law.

The Mitakshara School is based on the law of inheritance based on the Principle of Propinquity i.e. on the closeness of blood relations. In post 1947 India, the Hindu Succession Act 1956 passed by parliament has given full effect to the same principle of propinquity

This school subsumes within itself the doctrine of survivorship, which means that after the death of the common ancestor the property devolves to the survivor. In other words, the sons of the family have a birth right in the property based on the following two rules under this doctrine:

1: Females will not inherit, and

2: Agnates to be preferred over cognates. (It means that the paternal line is preferred in inheritance over the maternal line.)

This school is composed of four sub schools: Dravidian, Maharashtra, Mithila and Banaras sub schools.

The Dayabhaga school is famously known as the unorthodox reforming school of the Benaras sub-school under the Mitakshara category. Benaras has been the centre of the Brahmanical learning and the citadel of Brahmanical orthodoxy and conservatism in India since ages. As a reformatory measure, the Bengal school of Hindu law of Inheritance propagated a series of enlightened theories, ideas and doctrines. The Bengal school had its genesis in the Jimutavahana’s summary on leading Smritis by the name of Dayabhaga. Bengal School following the Dayabhaga idea is prevalent in Assam and Bengal. The Dayabhaga school, on an overall basis is established on the elevated idea or principle of spiritual benefit or religious efficacy. One who bestows more spiritual benefit is entitled to inherit the property in comparison to the one who bestows less spiritual benefit. This is known as the Doctrine of Oblations. As a result the females in the family may also inherit the property. According to this School, the sons do not have a birth right to the property as enunciated in the Mitakshara treatise. In the case when the male coparcener dies issueless (without any biological heir), his widow has a right to succeed to his share. She can then enforce a partition on her own account.

In the Hindu social system, Dharmasastras do not have a separation of the spiritual from the secular. Thus, in the Grasthasrama, a core unit in Hindu sociology, a person is given the training to lead a complete and meaningful life for the benefit and welfare of three generations. These include those who are left from the older generation, those who are present in the current generation and those who will be born. It is one of the distinctive phenomena of Hindu philosophy in which the Hindu family has been thought of as one of the most important institutions in the four defined institutions. It is because all the other three institutions like Brahmacharya, Vanaprastha and Sanyasha depend on it. Hence, the importance of the family is stressed upon in the Dharmasastras.

After the introduction of the Constitution in independent India, the first important law made at the central level with regards to inheritance and property relating to Hindus was the Hindu Succession Act of 1956.  It brought forth the changes in the law of succession and gave rights to women, which were unknown till that time, in relation to her rights to inheritance and property. The definitions and meanings of the rights and coparcenors become important in the context of the Hindu undivided family, based on which the latest judgement of the Supreme Court was passed. Hindu joint family or a Hindu undivided family is an arrangement of extended family where every member is a lineal descendant of a common ancestor. This structure of the Hindu undivided family is governed by the Hindu succession act 1956.

The section 6 of the act of 1956 (which was amended in 2005) did not interfere with the special rights of members of a Mitakshara coparcenary, with certain riders. The original act provided for the structure of the inheritance laws under both the Mitakshara  and Dayabhaga schools along with the schools in certain parts of southern India who were previously governed by the Aliyasantana, Murumakkattayam and Nambudri Systems. The Hindu Succession act is applicable to any person who is a Hindu as defined under section 2 of Hindu Succession Act, 1956.

With the act of 1956, the question still remained as to whether the equal right to property and inheritance was properly given to the women or was it just a hollow announcement. Retention of the Mitakshara coparcenary without involving the women in it meant that women couldn’t inherit ancestral property as men could. This gets reflected prominently when a joint family gets divided. In this situation just the male coparcenors get their share not the females. Only when one of the male coparceners dies, a female gets his share as a heir. Hence, the act of 1956 by preventing the daughters from participating in coparcenary ownership (just because of their sex) not only continued a pervasive inequality against females but also has led to the violation of their right to equality enshrined in the Constitution. It necessitated amendments in the act which were carried out in 2005.

The subsection (2) of section 4 was removed and the section 6 of the Hindu Succession Act, 1956 was amended was in 2005. The amendment of 2005 made the women equally responsible coparcenor of property, liable to family debt and eligible to be made the karta of the house. But, there had been lingering doubts with respect to the express provision of retrospective effect to the amended parts. This was due to two contradictory judgments given in two cases. In the Prakash vs Phulavati Case (2015), the judgement stated that the amendments were only applicable to the living daughters of living coparcenors as on Sept 9^th 2005, when the amendment was notified.   But, in the Danamma & Suman Suppur vs Amar Case (2018), the share of property of father who had died in 2001 was given to his two daughters. Hence, the doubt over the retrospective effect had remained ever since. On August 11^th 2020, a three judge bench of the Supreme Court, in a clear cut statement asserted that the daughters would still be eligible for inheritance even if the father had died before the enforcement of the Hindu succession amendment act 2005. This judgement brings a further needed clarity in the inheritance law. As a measure of reassertion the Supreme Court bench stated in its judgement –daughters must be given equal rights as a daughter remains loving daughter throughout the life.