Devolution of Interest in Mitakshara Coparcenary Property

Question: How does the Hindu Succession Act, 1956, address the devolution of interest in Mitakshara coparcenary property, and what historical and legislative contexts influenced these provisions?

Answer:

Introduction

The Hindu Succession Act, 1956, governs the inheritance of property for Hindus and includes rules for both separate property of an intestate and coparcenary property devolution. The Act retains the joint family system and recognizes both separate and coparcenary property.

Historical Context and Arguments

The Hindu Code Bill of 1948 aimed to abolish the Hindu Joint family system and the pious obligations of the son, proposing a uniform inheritance scheme for Hindu males. However, traditionalists resisted, arguing that the joint family system offered benefits such as unemployment insurance and old age security, and its abolition could lead to family disintegration and litigation. The Hindu Law Committee’s 1944 report favored retaining the Mitakshara doctrine, stating that sons should have a share in ancestral property equal to their father’s upon birth, and the doctrine of survivorship in coparcenary property should remain unchanged.

Legislative Changes and Gender Parity

By the time the first Hindu Succession Bill was introduced in 1954, no provisions recommended retaining the Mitakshara coparcenary. British Indian legislations had already modified the devolution of undivided shares in a coparcenary, promoting women’s rights. The Hindu Succession Act, 1956, was expected to enhance gender parity, moving away from son-preference and patriarchal ideologies.

Notional Partition and Compromise

The concept of notional partition emerged as a compromise between abolishing the joint family and coparcenary system and retaining it unchanged. This allowed the continuation of the Mitakshara coparcenary while enabling female and cognate relations to share in the ownership of coparcenary property under certain conditions. The 2005 amendment further modified the devolution of coparcenary property.

Conclusion

The Hindu Succession Act, 1956, and subsequent amendments reflect a balance between traditional values and modern gender equality aspirations. The notional partition and the 2005 changes illustrate the dynamic evolution of property inheritance laws, accommodating both continuity and reform.

Question: How did the Hindu Succession Act, 1956 address the devolution of interest in Mitakshara coparcenary property prior to the Hindu Succession (Amendment) Act, 2005, and what changes did the 2005 amendment introduce?

Answer:

Devolution of Interest in Coparcenary Property

Law as it Stood Prior to the Hindu Succession (Amendment) Act, 2005

The Hindu Succession Act, 1956, preserved the concept of the Mitakshara coparcenary system, which included a right by birth in favor of male descendants (son, grandson, and great-grandson). This traditional concept and the preferential rights for sons were explicitly retained, with statutory recognition for their continued application. Section 6 of the Act stated:

“When a male Hindu dies after the commencement of this Act, having at the time of his death, an interest in a Mitakshara coparcenary, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.”

This provision affirmed the doctrine of survivorship, meaning that the undivided interest of a deceased coparcener would pass to the surviving coparceners rather than through testamentary or intestate succession.

Survivorship Replaced by Testamentary and Intestate Succession

However, the proviso to this section introduced a significant change by allowing the undivided interest of a deceased coparcener to devolve by testamentary or intestate succession instead of survivorship under certain conditions. The proviso reads:

“Provided that, if the deceased had left him surviving a female relative specified in class-I of the schedule or a male relative specified in that class, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship.”

This proviso has four key parts:

1. A Hindu male dies as an undivided member of a Mitakshara coparcenary.
2. He had an interest in the undivided coparcenary property.
3. The deceased leaves behind a Class-I female heir or a Class-I male heir claiming through a female.
4. His undivided interest in the Mitakshara coparcenary will devolve by testamentary or intestate succession, not by the doctrine of survivorship.

Impact of the Proviso

This proviso fundamentally altered the application of the doctrine of survivorship by allowing female relatives (and male relatives claiming through them) to inherit the coparcenary interest of a deceased member. Before this amendment, coparcenary property devolution was predominantly male-centric, excluding females from inheritance.

Changes Introduced by the Hindu Succession (Amendment) Act, 2005

The 2005 amendment to the Hindu Succession Act brought further changes to the devolution of coparcenary property by including daughters as coparceners. This amendment aimed to ensure gender equality by granting daughters the same rights as sons in coparcenary property. Specifically, it:

1. Gave daughters equal rights in coparcenary property as sons, by birth.
2. Allowed daughters to claim partition and dispose of their share through testamentary disposition.
3. Made daughters liable for the coparcenary property in the same manner as sons.

Conclusion

The Hindu Succession Act, 1956, initially preserved the traditional Mitakshara coparcenary system and the doctrine of survivorship. However, it introduced provisions to allow testamentary and intestate succession in the presence of certain heirs.

The 2005 amendment further advanced gender equality by recognizing daughters as coparceners, thereby allowing them equal inheritance rights in the joint family property.

Question: What is the concept of notional partition under the Hindu Succession Act, 1956, and how does it affect the devolution of undivided interest in Mitakshara coparcenary property?

Answer:

Notional Partition

Introduction

The Hindu Succession Act, 1956, introduced the concept of notional partition to alter the traditional devolution of undivided coparcenary interest by survivorship. Instead, it allowed for testamentary devolution or succession according to inheritance laws under certain conditions.

Explanation I: Concept of Notional Partition

To address the question of what interest a deceased coparcener’s share would be available for succession, Explanation I appended to the proviso of Section 6 provides:

“For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

Legal or Fictional Partition

The proviso incorporates the idea of a legal or fictional partition. This means that the undivided interest left by the deceased will be divided as though a partition had occurred before his death. The deceased is legally presumed to have died after demanding partition, effectively creating a severance of status within the joint family as far as the deceased is concerned.

1. Presumption of Partition: The law presumes that before the coparcener’s death, he had demanded a partition. This presumption applies even if the coparcener did not have the right to claim partition.
2. Competence to Demand Partition: Generally, every major coparcener who is of sound mind can demand partition at his pleasure. A minor coparcener, who cannot directly demand partition from the Karta (head of the family), must rely on a next friend to file a suit for partition in a court of law.
3. Application to All Coparceners: The presumption of notional partition before death applies to all coparceners, whether they had the legal right to demand partition or not. This includes minor coparceners who typically do not have the standing to demand partition independently.

Impact of Notional Partition

The concept of notional partition significantly impacts the devolution of property:

• It shifts the undivided coparcenary interest from automatic devolution by survivorship to a method where the deceased’s share is determined and distributed through testamentary or intestate succession.
• It allows female heirs, included in Class-I of the Schedule, to inherit the deceased’s coparcenary interest, promoting gender equality in inheritance rights.

Conclusion

The introduction of the notional partition under the Hindu Succession Act, 1956, provides a mechanism to ensure that the undivided interest of a deceased coparcener is fairly distributed among heirs, including female relatives. This concept balances the traditional coparcenary system with modern inheritance laws, promoting more equitable distribution of property.

Question: Who are the heirs whose presence alters the devolution of undivided interest in Mitakshara coparcenary property?

Answer:

Heirs Whose Presence Alters Devolution

Introduction

The devolution of undivided interest in Mitakshara coparcenary property can shift from the doctrine of survivorship to succession preceded by notional partition if certain heirs are present at the time of the coparcener’s death. This mechanism is designed to ensure the participation of female heirs in the inheritance process, promoting gender equality.

Conditions for Notional Partition

For notional partition to apply and for the doctrine of survivorship to be defeated, the deceased must have left behind either a Class-I female heir or a male Class-I heir claiming through a female heir.

Class-I Heirs Before 2005

Prior to the 2005 amendment, the Class-I heirs included twelve heirs, of which eight were females. The presence of any of these eight female heirs, or a male heir claiming through a female, would alter the devolution of the coparcenary interest.

Heirs Affecting Devolution

The nine heirs whose presence changes the mode of devolution from survivorship to succession, preceded by a notional partition, are:

1. Mother
2. Widow
3. Daughter
4. Son of a predeceased daughter
5. Daughter of a predeceased daughter
6. Daughter of a predeceased son
7. Widow of a predeceased son
8. Widow of a predeceased son of a predeceased son
9. Daughter of a predeceased son of a predeceased son

Excluded Class-I Heirs

Three Class-I heirs who do not affect the devolution of the coparcenary interest from survivorship to succession are:

1. Son
2. Son of a predeceased son
3. Son of a predeceased son of a predeceased son

These heirs are themselves coparceners and will take the interest by survivorship.

Examples of Devolution

Example 1:

• A, an undivided member of a Mitakshara coparcenary, is survived by two brothers (Br1 and Br2), one son (S1), and the widow of a predeceased son (S2W) who remarried before A’s death.
• Since S2W is disqualified (no longer a Class-I heir), A’s interest will devolve by survivorship to the surviving coparceners.

Example 2:

• A is survived by two brothers (Br1 and Br2), two sons (S1 and S2), and the son of a predeceased daughter (DS). The daughter had converted to Christianity, and DS was born after her conversion.
• DS, being disqualified, does not affect the devolution, and the property will pass to the surviving coparceners.

Example 3:

• A son separated from his father (A) by partition and took his share. The son later died, leaving behind a widow and a daughter.
• At the father’s death, the presence of the son’s widow and daughter does not alter the devolution, which will go by survivorship to the remaining coparceners.

Conclusion

The presence of specific Class-I heirs alters the traditional devolution of undivided interest in Mitakshara coparcenary property, ensuring a more equitable distribution among heirs, particularly female relatives. This shift from survivorship to succession, preceded by notional partition, is a significant step toward gender parity in inheritance laws.

Question: What is the scope and effect of notional partition under the Hindu Succession Act, 1956?

Answer:

Scope of Notional Partition

Introduction

Notional partition, also known as legal or fictional partition, was introduced as a compromise by the legislature to balance between the traditional joint family and coparcenary system and modern demands for gender equality. Its primary aim is to provide a better deal to female heirs and cognates, preventing the coparcenary interest from passing exclusively to surviving coparceners.

Purpose of Notional Partition

The concept of notional partition ensures that upon the death of a coparcener, his share in the coparcenary property is calculated as if a partition had occurred just before his death. This share then devolves to his heirs through intestate or testamentary succession, rather than by survivorship, which would exclude female and cognate heirs.

Stages of Notional Partition

To determine the share of the deceased coparcener, the process involves two stages:

1. Calculating the Deceased’s Interest: A partition is effected according to Hindu law to ascertain the coparcener’s share.
2. Succession of the Interest: The share calculated becomes the deceased’s separate property, which then devolves to class-I heirs in the absence of a will.

Example of Notional Partition

Consider a scenario illustrated in Figure 12.41:

• Stage (i): A Hindu male, A, an undivided member of a Mitakshara coparcenary with his father F and brother Br, dies leaving behind a daughter D. Before his death, a partition is presumed, giving A one-third of the total property.
• Stage (ii): This one-third share now devolves by intestate succession. Since D is a class-I heir, she inherits the entire one-third share. The father and brother are class-II heirs and do not inherit in this scenario.

Comparison with Pre-1956 Position

Before the introduction of the Hindu Succession Act, 1956, under the doctrine of survivorship, the undivided interest would have passed to the surviving coparceners (father and brother), leaving the daughter without a share in the property. Her rights would have been limited to maintenance. The concept of notional partition thus ensures that the daughter receives a fair share of her father’s property.

Conclusion

Notional partition under the Hindu Succession Act, 1956, plays a crucial role in modernizing inheritance laws while maintaining certain traditional elements. By ensuring the calculation and distribution of a deceased coparcener’s share to his heirs, particularly female heirs, it promotes fairness and gender equality in the devolution of property.

Question: What is the extent and effect of notional partition under the Hindu Succession Act, 1956, and what are the different approaches to its application?

Answer:

Extent of Notional Partition

Introduction

The concept of notional partition is introduced by the legislature to determine the share of a deceased coparcener in the Mitakshara coparcenary property for the purpose of devolution by testamentary or intestate succession. Although the Hindu Succession Act, 1956, does not explicitly use the term “notional partition,” this concept is essential to understanding how the property interest of a deceased coparcener is ascertained.

Narrow Approach

The narrow approach to notional partition is focused solely on identifying the deceased coparcener’s share for succession purposes. This approach does not extend the consequences of a real partition to other family members, whether male or female. It operates under the principle that the partition is presumed only to calculate the deceased’s interest, and once this share is determined, there is no need to allocate shares to other family members.

Example of Narrow Approach:

• A Hindu family consists of father F, his wife W, and their son S. If S dies, his interest in the coparcenary property must be calculated. Under the narrow approach, the partition is presumed only to ascertain S’s share, which would be one-third of the total property. This share would then devolve to his mother W by inheritance. The final distribution would be:
• F = 2/3rd
• W = 1/3rd (from S’s share)

Wider Approach

The wider approach emphasizes the intention of the legislature to provide a fair deal to female heirs. According to this approach, once the share of the deceased coparcener is ascertained, the consequences of a real partition should follow. This means that female members who would be entitled to a share in a real partition must also receive their due share. The wider approach aligns with the legislative intent to ensure equitable treatment for women.

Example of Wider Approach:

• In the same family scenario (F, W, and S), if S dies, and a partition is presumed, the wider approach would distribute the property as follows:
• The property is divided into three equal parts: one-third to F, one-third to W, and one-third to S.
• S’s one-third share would then devolve to W by inheritance.
• The final distribution would be:
• F = 1/3
• W = 1/3 (from the partition) + 1/3 (from S’s share) = 2/3

Legislative Intent and Explanation I

Explanation I to Section 6 provides guidance on the intention behind notional partition. It states that the interest of a Hindu Mitakshara coparcener is deemed to be the share he would have received if a partition had taken place immediately before his death, irrespective of his entitlement to claim partition. This suggests that the legislature intended to ensure that the share of the deceased coparcener is accurately determined and that the consequences of a real partition should follow.

Conclusion

The extent and effect of notional partition under the Hindu Succession Act, 1956, can be understood through both narrow and wider approaches. The narrow approach limits the partition’s impact to ascertaining the deceased’s share, while the wider approach ensures equitable distribution to all entitled heirs, including females. The legislative intent, as indicated by Explanation I, supports the wider approach to ensure fair treatment for female heirs and to reflect the consequences of a real partition.

Question: How did the court’s decision in Kanna Gounder’s case interpret the concept of notional partition and its impact on the widow’s rights over the coparcenary property?

Answer:

Analysis of Kanna Gounder’s Case

Introduction

The concept of notional partition under the Hindu Succession Act, 1956, plays a crucial role in determining the share of a deceased coparcener and its devolution among heirs. The case of C. Kanna Gounder and Sagadeva Gounder v. Arjuna Gounder addresses the application of this concept and its implications on the rights of a widow over the coparcenary property.

Facts of the Case

• A coparcenary consisted of three brothers.
• One of the brothers died issueless, leaving behind his widow.
• The widow executed a gift deed transferring a one-third share of the property in favor of her husband’s nephews.
• The validity of the gift was challenged on the grounds that coparcenary property could not be gifted.

Court’s Decision

The Madras High Court held that the gift was invalid because coparcenary property could not be gifted. The court’s reasoning was based on the understanding that coparcenary property retains its character and cannot be transferred by way of a gift.

Analysis

The court’s decision appears to be inconsistent with the principles of notional partition and the rights of the widow under the Hindu Succession Act, 1956. Here’s a detailed analysis:

1. Notional Partition and Coparcenary Continuation

• Upon the death of a coparcener, a notional partition is presumed if the deceased is survived by a class-I female heir or the son of a predeceased daughter.
• The notional partition serves to ascertain the share of the deceased, which then devolves by intestate succession.
• The continuation of the coparcenary does not disrupt the entire family structure, but the share allotted to the widow transforms into her separate property.

2. Widow’s Rights and Separate Property

• Once the notional partition is effected, the widow receives the deceased coparcener’s share as her separate property.
• She has full ownership rights over this share, including the power of disposal, and it no longer retains the character of coparcenary property.

3. Invalidation of the Gift

• The court’s decision to invalidate the gift based on the premise that coparcenary property cannot be gifted is flawed.
• The moment the coparcener died, his one-third share should have been considered his separate property, which devolved to the widow by intestate succession.
• As the absolute owner of this share, the widow had the legal right to execute the gift deed, making the transfer valid.

Conclusion

The decision in Kanna Gounder’s case overlooks the implications of notional partition and the transformation of the widow’s share into separate property. According to the principles of notional partition, the widow’s share should have been regarded as her separate property, over which she had full disposal rights. Therefore, the gift executed by the widow should have been considered valid.

The case highlights the importance of correctly interpreting the concept of notional partition to ensure the rightful inheritance and property rights of female heirs.

Question: What is the position of females in South India concerning their entitlement to a share at the time of notional partition under the Hindu Succession Act, 1956?

Answer:

Position in South India

Introduction

The Hindu Succession Act, 1956, brings forth the concept of notional partition, especially when a coparcener dies leaving behind class-I female heirs or the son of a predeceased daughter. However, the entitlement of females to receive a share at the time of this notional partition varies across different regions in India. This analysis focuses on the position in South India.

Position in South India

1. Entitlement of Females

• In South India, particularly in states like Andhra Pradesh, Karnataka, Tamil Nadu, and Kerala, traditional laws initially did not provide females with a share at the time of partition.
• Section 6 of the Hindu Succession Act does not expand their entitlement to get a share but changes the mode of devolution of the deceased’s interest in their presence.

2. Legal Reforms

• Significant changes have been made in the law relating to joint family and coparcenary property in the Dravida zone:
• Andhra Pradesh, Karnataka, and Tamil Nadu: Daughters have been made coparceners, giving them equal rights in the coparcenary property.
• Kerala: The concept of the joint family has been abolished.

3. Illustration

• Consider a Hindu male, A, who dies as an undivided member of a Mitakshara coparcenary, leaving behind his father (F), widow (W), son (S), and daughter (D).
• To determine how A’s interest in the coparcenary will devolve:
• Step 1: Check if A left behind a class-I female heir or a class-I male heir claiming through a female (in this case, W and D are class-I heirs).
• Step 2: Presume a partition before A’s death, which will be effected in two stages:

Stage 1: Partition Between F and A

• Property is divided equally between F and A (each gets one-half).

Stage 2: Partition Between A and His Son (S)

If following the Dravida School (where females do not receive a share):

• Property is divided between A and S (each gets one-fourth).
• This one-fourth is A’s separate property and will be inherited by W, S, and D equally (each getting one-twelfth).

Final Shares:

• F = 1/2
• S = 1/4 + 1/12
• W = 1/12
• D = 1/12

If following a school where females get a share:

• Partition between A, W, and S (each gets one-sixth).
• This one-sixth is A’s separate property and will be inherited by W, S, and D equally (each getting one-eighteenth).
• Final Shares:
• F = 1/2
• W = 1/6 + 1/18
• S = 1/6 + 1/18
• D = 1/18

Conclusion

The position in South India regarding the entitlement of females at the time of notional partition is influenced by the specific school of law followed. In states where females were traditionally not given a share, recent legal reforms have recognized daughters as coparceners, ensuring their rights in the coparcenary property.

The Hindu Succession Act, while not explicitly enlarging their entitlements, ensures that the share of the deceased coparcener is ascertained and devolves accordingly, preserving the rights of female heirs where applicable.

Question: What are the state amendments to Section 6 of the Hindu Succession Act, 1956, concerning the rights of daughters in coparcenary property?

Answer:

Introduction

Section 6 of the Hindu Succession Act, 1956, which deals with the devolution of coparcenary property, has undergone amendments in several states to enhance the rights of daughters. These amendments aimed at providing daughters with the same coparcenary rights as sons, thereby promoting gender equality in inheritance laws.

State Amendments

1. Andhra Pradesh (1985)

• In 1985, Andhra Pradesh amended Section 6 to make unmarried daughters coparceners in a joint family, entitling them to the same rights and shares as sons during the partition of the coparcenary property.

2. Tamil Nadu (1989)

• Tamil Nadu followed suit in 1989, granting unmarried daughters coparcenary status and equal rights to shares in the coparcenary property upon partition, similar to the rights of sons.

3. Maharashtra (1994)

• Maharashtra amended the law in 1994 to include unmarried daughters as coparceners with equal rights to partition shares, aligning their entitlements with those of sons in a joint family.

4. Karnataka (1994)

• Karnataka also made amendments in 1994, ensuring that unmarried daughters in a joint family were granted coparcenary rights, enabling them to receive shares on par with sons during the partition of coparcenary property.

Provisions for Descendants

• The amendments in these states also address the scenario where an eligible daughter is deceased at the time of partition:
• Child of Deceased Daughter: If the daughter is dead but has left behind a child, the share that would have been allotted to her is given to her child.
• Grandchild of Predeceased Daughter: If the daughter has no living children but has a grandchild from a predeceased daughter, the share that would have been allotted to the daughter is given to the grandchild.

Conclusion

The state amendments to Section 6 of the Hindu Succession Act, 1956, in Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka have significantly advanced the rights of daughters in coparcenary property. By granting daughters the same coparcenary status and inheritance rights as sons, these amendments promote gender equality and ensure that the shares of deceased daughters are appropriately allocated to their descendants.

Question: What are the rules for calculating shares in Mitakshara coparcenary property after effecting a notional partition when a coparcener dies leaving behind an undivided interest in the Mitakshara coparcenary?

Answer:

Rules for Calculation of Shares in Mitakshara Coparcenary Property after Effecting a Notional Partition

Introduction

When a coparcener dies, leaving behind an undivided interest in the Mitakshara coparcenary property, a notional partition is effected to ascertain the share of the deceased. This process involves several factors and rules that must be followed to ensure fair distribution according to the Hindu Succession Act, 1956.

Factors to Consider

1. Undivided Membership:

• The deceased coparcener was an undivided member of a Mitakshara coparcenary.

2. Post-1956 Death:

• The coparcener’s death occurred after the enactment of the Hindu Succession Act, 1956.

3. Class-I Female Heir or Son of Predeceased Daughter:

• The deceased is survived by a class-I female heir or the son of a predeceased daughter.

4. Calculation After Partition:

• The share of the deceased must be calculated after presuming a partition had taken place immediately before his death.

5. Intestate Succession:

• The share of the deceased, once ascertained, is to be distributed according to the rules of intestate succession under the Hindu Succession Act, 1956.

6. Daughters as Coparceners:

• In states where daughters have been introduced as coparceners (Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka), they must be allotted a share at the time of effecting a notional partition.

Steps for Calculation

1. Effecting Notional Partition:

• Assume a partition occurred immediately before the coparcener’s death.
• Determine the shares of all coparceners, including the deceased, as if an actual partition had taken place.

2. Ascertainment of the Deceased’s Share:

• The deceased’s share is separated from the rest of the coparcenary property.

3. Distribution of Deceased’s Share:

• Distribute the deceased’s share according to the rules of intestate succession.
• Class-I heirs (e.g., widow, daughters, mother, son of a predeceased daughter) are entitled to equal shares.

4. Inclusion of Daughters as Coparceners (if applicable):

• In states with amendments recognizing daughters as coparceners, daughters must be included in the initial notional partition.
• Allocate shares to daughters as equal coparceners along with sons.

Example Calculation

Illustration: A Hindu male (A) dies as an undivided member of a Mitakshara coparcenary, leaving behind his father (F), widow (W), son (S), and daughter (D).

Step-by-Step Calculation:

1. Notional Partition:

• Assume a partition between F and A, with each taking half of the property.
• A’s half share is further partitioned between A, W, and S (if following a school where females get a share).

2. Separate Share of A:

• A’s share is divided among his wife (W), son (S), and daughter (D).

3. Final Shares:

If the family follows the Dravida School:

• F: 1/2
• S: 1/4 + 1/12
• W: 1/12
• D: 1/12

If the family follows a school where females receive a share:

• F: 1/2
• W: 1/6 + 1/18
• S: 1/6 + 1/18
• D: 1/18

Conclusion

The rules for calculating shares in Mitakshara coparcenary property after effecting a notional partition ensure that the interests of all eligible heirs, including class-I female heirs and sons of predeceased daughters, are safeguarded. By following these steps, the deceased’s share can be fairly distributed in accordance with the provisions of the Hindu Succession Act, 1956, and relevant state amendments.

Question: How are shares in Mitakshara coparcenary property calculated after effecting a notional partition when a coparcener dies leaving behind an undivided interest?

Answer:

Introduction

To understand how shares in Mitakshara coparcenary property are calculated after a notional partition, we will consider the example of a coparcener, A, who died in 1960, leaving behind undivided interest in the property. He is survived by his parents (F and M) and his two children (son S and daughter D).

Dravida School Approach

First Partition:

• Effect a partition between F and A, each receiving half of the property.
• F = 1/2, A = 1/2

Second Partition:

• Since A’s share includes the share of his male issue, divide A’s half share into two parts.
• S will take one-fourth (1/4) and A’s share will also be one-fourth (1/4).
• F = 1/2, A = 1/4, S = 1/4

Inheritance Distribution:

• A’s share (1/4) will be divided among his class-I heirs (M, S, and D), each taking one-twelfth (1/12).
• F = 1/2, M = 1/12, S = 1/4 + 1/12 = 1/3, D = 1/12

Final Shares under Dravida School:

• F = 1/2
• M = 1/12
• S = 1/3
• D = 1/12

General Rule (Other Sub-schools):

First Partition:

• Effect a partition among F, M, and A, each receiving one-third of the property.
• F = 1/3, M = 1/3, A = 1/3

Second Partition:

• Partition between A and S, each taking half of A’s one-third share.
• A = 1/3 * 1/2 = 1/6, S = 1/6

Inheritance Distribution:

• A’s share (1/6) will be divided among his class-I heirs (M, S, and D), each taking one-eighteenth (1/18).
• F = 1/3, M = 1/3 + 1/18, S = 1/6 + 1/18, D = 1/18

Final Shares under General Rule:

• F = 1/3
• M = 1/3 + 1/18
• S = 1/6 + 1/18
• D = 1/18

When Daughter is also a Coparcener:

In states where the Act has been amended to include daughters as coparceners (e.g., Maharashtra), the calculation is slightly different.

Assumption:

Deceased died in 1995, and the family is from Maharashtra.

First Partition:

• Partition among F, M, and A, each receiving one-third.
• F = 1/3, M = 1/3, A = 1/3

Second Partition:

• Partition among A, S, and D, each taking one-third of A’s one-third share.
• A = 1/3 * 1/3 = 1/9, S = 1/9, D = 1/9

Inheritance Distribution:

• A’s share (1/9) will be divided among his class-I heirs (M, S, and D), each taking one-twenty-seventh (1/27).
• F = 1/3, M = 1/3 + 1/27, S = 1/9 + 1/27, D = 1/9 + 1/27

Final Shares when Daughter is also a Coparcener:

• F = 1/3
• M = 1/3 + 1/27 = 10/27
• S = 1/9 + 1/27 = 4/27
• D = 1/9 + 1/27 = 4/27

Question: How are shares in Mitakshara coparcenary property calculated after a notional partition when a coparcener dies leaving behind parents, two widows, a son, and a daughter?

Answer:

Illustration: A dies as an undivided coparcener in a Mitakshara coparcenary leaving behind his parents (M and F), two widows (W1 and W2), a son (S), and a daughter (D).

General Rule

First Partition:

• Partition among F, M, and A, each receiving one-third of the property.
• F = 1/3, M = 1/3, A = 1/3

Second Partition:

• Partition among A, W1, W2, and S, each taking one-fourth of A’s one-third share.
• A = 1/3 * 1/4 = 1/12, W1 = 1/12, W2 = 1/12, S = 1/12

Inheritance Distribution:

• A’s share (1/12) will be divided among his class-I heirs (W1, W2, S, and D), each taking one-fourth of A’s 1/12 share.
• W1 and W2 = 1/48 each, S = 1/48, D = 1/48

Final Shares under General Rule:

• F = 1/3
• M = 1/3 + 1/48 = 17/48
• W1 = 1/12 + 1/48 = 3/32
• W2 = 1/12 + 1/48 = 3/32
• S = 1/12 + 1/48 = 5/48
• D = 1/12 + 1/48 = 5/48

Maharashtra:

First Partition:

• Partition among F, M, and A, each receiving one-third of the property.
• F = 1/3, M = 1/3, A = 1/3

Second Partition:

• Partition among A, W1, W2, S, and D, each taking one-fifth of A’s one-third share.
• A = 1/3 * 1/5 = 1/15, W1 = 1/15, W2 = 1/15, S = 1/15, D = 1/15

Inheritance Distribution:

• A’s share (1/15) will be divided among his class-I heirs (W1, W2, M, S, and D), each taking one-fifth of A’s 1/15 share.
• W1 and W2 = 1/60 each, M = 1/60, S = 1/60, D = 1/60

Final Shares in Maharashtra:

• F = 1/3
• M = 1/3 + 1/60
• W1 = 1/5 + 1/120
• W2 = 1/5 + 1/120
• S = 1/5 + 1/60
• D = 1/5 + 1/60

Tamil Nadu:

First Partition:

• Partition between F and A, each receiving half of the property.
• F = 1/2, A = 1/2

Second Partition:

• Partition among A, S, and D, each taking one-third of A’s half share.
• A = 1/2 * 1/3 = 1/6, S = 1/6, D = 1/6

Inheritance Distribution:

• A’s share (1/6) will be divided among his class-I heirs (W1, W2, M, S, and D), each taking one-fifth of A’s 1/6 share.
• W1 = 1/24, W2 = 1/24, M = 1/24, S = 1/24, D = 1/24

Final Shares in Tamil Nadu:

• F = 1/2
• M = 1/24
• W1 = 1/24
• W2 = 1/24
• S = 1/6 + 1/24 = 5/24
• D = 1/6 + 1/24 = 5/24

Question: How are shares in Mitakshara coparcenary property calculated after a notional partition when a coparcener dies leaving behind his widow, mother, two brothers, and a daughter?

Answer:

Illustration: A dies as an undivided member of a Mitakshara coparcenary, leaving behind his widow (W), mother (M), two brothers (Br1 and Br2), and a daughter (D).

General Rule:

First Partition:

• A notional partition is effected among all three brothers, with the mother also getting a share. The property is divided into four parts: M, Br1, Br2, and A, each receiving a one-fourth share.
• Final shares after the first partition: M = 1/4, Br1 = 1/4, Br2 = 1/4, A = 1/4.

Inheritance Distribution:

• A’s one-fourth share will be divided equally among M, W, and D, his class-I heirs.
• Final shares of A’s portion: M = 1/4 + 1/12, W = 1/12, D = 1/12.

Final Shares under General Rule:

• Br1 = 1/4
• Br2 = 1/4
• M = 1/4 + 1/12 = 1/3
• D = 1/12
• W = 1/12

Maharashtra:

First Partition:

• Partition among Br1, Br2, and A, each receiving a one-fourth share.
• Final shares after the first partition: Br1 = 1/4, Br2 = 1/4, A = 1/4.

Second Partition:

• Since the daughter (D) is also a coparcener, A’s one-fourth share includes her undivided share. This one-fourth share is divided into three parts: A, D, and W, each receiving a one-twelfth share.
• Final shares after the second partition: A = 1/12, D = 1/12, W = 1/12.

Inheritance Distribution:

• A’s one-twelfth share will be divided among his class-I heirs (M, W, and D), each taking one-third of A’s one-twelfth share.
• Final shares of A’s portion: M = 1/4 + 1/36, W = 1/12 + 1/36, D = 1/12 + 1/36.

Final Shares in Maharashtra:

• Br1 = 1/4
• Br2 = 1/4
• M = 1/4 + 1/36
• W = 1/12 + 1/36
• D = 1/12 + 1/36

Tamil Nadu (Dravida School):

First Partition:

• Partition among the three brothers only, as the mother does not get a share. Each brother receives one-third of the property.
• Final shares after the first partition: Br1 = 1/3, Br2 = 1/3, A = 1/3.

Second Partition:

• Partition between A and D, as the daughter is a coparcener, though the widow (W) does not get a share. Each receives one-sixth of the total property.
• Final shares after the second partition: A = 1/6, D = 1/6.

Inheritance Distribution:

• A’s one-sixth share will be divided among his class-I heirs (M, W, and D), each taking one-third of A’s one-sixth share.
• Final shares of A’s portion: M = 1/18, W = 1/18, D = 1/6 + 1/18.

Final Shares in Tamil Nadu:

• Br1 = 1/3
• Br2 = 1/3
• M = 1/18
• W = 1/18
• D = 1/6 + 1/18 = 2/9

Separated Son:

Explanation II of Section 6 provides that a separated son or his heirs are not entitled to claim a share at the time of effecting a notional partition, even from the share of the deceased coparcener that goes by intestacy.

For example, in a joint family consisting of a father (F), his wife (W), and two sons (S1 and S2), if S1 demands a partition and separates, he becomes a separated son. If F dies as an undivided coparcener survived by his widow (a class-I heir), it is presumed that just before his death, a partition was effected between F and S2. S1 will not be entitled to a share, and the property will be divided into three parts: F, W, and S2.

Inheritance of Self-Acquired Property:

A separated son or his heirs can inherit the father’s self-acquired property under Section 8. For instance, if A, a Hindu male, dies as an undivided member of a Mitakshara coparcenary leaving joint family assets and self-acquired property, the joint family property will devolve on the undivided son, while the self-acquired property will go to both the separated and undivided sons.

Sole Surviving Coparcener:

If a male Hindu becomes the sole surviving coparcener after a partition, his share, obtained during partition, will go by intestate succession under Section 8 upon his death. The divided sons will inherit the property along with the mother and daughter in equal shares.

Question: How are shares in Mitakshara coparcenary property and separate property calculated when a coparcener dies leaving behind various family members?

Answer:

Illustrations:

A dies as a member of a Mitakshara joint family and is survived by his father (F), mother (M), brothers (B1 and B2), widow (AW), a son (S1), a separated son (S2), and a daughter (D). A leaves behind separate property worth Rs. 10 lakh and joint family assets worth Rs. 30 lakh. Let’s calculate the shares for both the separate property and the undivided coparcenary property separately.

Separate Property

The separate property of A will be distributed by intestate succession among all class-I heirs. Since there is no distinction between a separated son and an undivided son in intestacy, S2 is entitled to inherit. The property is divided into five equal parts:

• M, AW, S1, S2, and D each receive Rs. 2 lakh.
• Class-II heirs (father and brothers) do not inherit in the presence of class-I heirs.

Undivided Interest in Mitakshara Coparcenary

General Rule:

First Partition:

• S2, being separated during the lifetime of the deceased, is not considered.
• Partition occurs among F, A, B1, B2, and M (since the mother also gets a share in a partition between a father and his sons).
• Rs. 30 lakh is divided into five parts: F, A, B1, B2, and M each receive Rs. 6 lakh.

Second Partition:

• A’s one-fifth share (Rs. 6 lakh) is partitioned among A, AW, and S1. S2 is not included.
• Rs. 6 lakh is divided into three equal parts: A, AW, and S1 each receive Rs. 2 lakh (one-fifteenth share).

Intestate Succession:

• A’s one-fifteenth share (Rs. 2 lakh) is distributed among class-I heirs: M, AW, S1, and D.
• Each receives Rs. 50,000 (one-sixtieth share).

Final Shares under General Rule:

• F: Rs. 6 lakh (1/5)
• B1: Rs. 6 lakh (1/5)
• B2: Rs. 6 lakh (1/5)
• M: Rs. 6 lakh + Rs. 50,000 (1/5 + 1/60)
• AW: Rs. 2 lakh + Rs. 50,000 (1/15 + 1/60)
• S1: Rs. 2 lakh + Rs. 50,000 (1/15 + 1/60)
• D: Rs. 50,000 (1/60)
• S2: Nil

Maharashtra School:

First Partition:

• F, A, B1, B2, and M each receive 1/5th of the property (Rs. 6 lakh).

Second Partition:

• A’s share (1/5th) is divided among A, AW, S1, and D (1/20th each).
• A’s 1/20th share is then divided among class-I heirs (M, AW, S1, and D): 1/80th each.

Final Shares in Maharashtra:

• F: Rs. 6 lakh (1/5)
• B1: Rs. 6 lakh (1/5)
• B2: Rs. 6 lakh (1/5)
• M: Rs. 6 lakh + Rs. 37,500 (1/5 + 1/80)
• AW: Rs. 6 lakh + Rs. 37,500 (1/5 + 1/80)
• S1: Rs. 6 lakh + Rs. 37,500 (1/5 + 1/80)
• D: Rs. 6 lakh + Rs. 37,500 (1/5 + 1/80)
• S2: Nil

Dravida School:

First Partition:

• F, A, B1, and B2 each receive 1/4th of the property (Rs. 7.5 lakh).

Second Partition:

• A’s share (1/4th) is divided among A, S1, and D (1/12th each).
• A’s 1/12th share (Rs. 2.5 lakh) is divided among M, AW, S1, and D: 1/48th each.

Final Shares in Dravida School:

• F: Rs. 7.5 lakh (1/4)
• B1: Rs. 7.5 lakh (1/4)
• B2: Rs. 7.5 lakh (1/4)
• M: Rs. 62,500 (1/48)
• AW: Rs. 62,500 (1/48)
• S1: Rs. 3,12,500 (1/12 + 1/48)
• D: Rs. 3,12,500 (1/12 + 1/48)
• S2: Nil

Position in Case of a Separated Son:

Explanation II of Section 6 states that a separated son or his heirs do not get a share at the time of a notional partition. For example, in Krishna Murari Mangal v. Prakash Narain, the court incorrectly included separated sons in the distribution of the father’s share after a notional partition, which contradicts Explanation II.

Conclusion:

The shares of the family members in both separate and coparcenary property are calculated based on the rules of intestate succession and notional partition under the Mitakshara system. The separated son is excluded from the coparcenary property but can inherit self-acquired property under Section 8.

Question: How does the Hindu Succession (Amendment) Act, 2005 impact the devolution of coparcenary interest in a Mitakshara coparcenary?

Answer:

Introduction

The Hindu Succession (Amendment) Act, 2005 brought significant changes to the devolution of coparcenary interest in a Mitakshara coparcenary. The amendment aimed to simplify the law and make it more equitable, particularly regarding the rights of female heirs. This reform abolished the doctrine of survivorship for male intestates and introduced the concept of notional partition for determining the deceased coparcener’s share.

Relevant Headings

1. Abolition of the Doctrine of Survivorship
2. Devolution by Testamentary or Intestate Succession
3. Concept of Notional Partition
4. Impact on Female Heirs
5. Application of the Amendment Act

1. Abolition of the Doctrine of Survivorship

Before the 2005 amendment, the doctrine of survivorship governed the devolution of a coparcener’s interest in a Mitakshara coparcenary upon his death. This meant that the deceased’s interest automatically passed to the surviving coparceners. However, the amendment has abolished this doctrine for male intestates, ensuring that the interest is now devolved through testamentary or intestate succession instead.

2. Devolution by Testamentary or Intestate Succession

Section 6(3) of the amended Act stipulates that upon the death of a Hindu male coparcener after the commencement of the amendment, his interest in the joint Hindu family property shall devolve by testamentary or intestate succession. This change ensures that the deceased’s interest is distributed as per his will (if any) or according to the rules of intestate succession, rather than automatically passing to the surviving coparceners.

3. Concept of Notional Partition

Although the doctrine of survivorship has been abolished, the concept of notional partition is retained for calculating the deceased coparcener’s share. The notional partition is deemed to have taken place immediately before the coparcener’s death, allowing for the accurate determination of his share in the joint family property. This share is then distributed according to the deceased’s will or the rules of intestate succession.

4. Impact on Female Heirs

One of the most significant changes introduced by the amendment is the recognition of daughters as coparceners in the same manner as sons. This means that daughters now have an equal right to their father’s coparcenary property. This provision ensures gender equality in inheritance and aligns with modern legal principles of fairness and justice.

5. Application of the Amendment Act

The following factors must be considered when distributing the share of a coparcener who dies as an undivided member of a Mitakshara coparcenary:

• Membership in Mitakshara Coparcenary: The deceased coparcener must be a member of the Mitakshara coparcenary.
• Death After 9th September 2005: The death must occur after the commencement of the amendment.
• Calculation of Share: The deceased’s share must be calculated after effecting a notional partition.
• Testamentary Succession: If the deceased has left a valid will, the share is distributed according to the will’s instructions.
• Intestate Succession: In the absence of a will, the share is distributed according to the rules of intestate succession under the Act.
• Inclusion of Daughters: Daughters must be allotted a share as they are now coparceners, similar to sons.

Conclusion

The Hindu Succession (Amendment) Act, 2005 has brought about crucial reforms in the devolution of coparcenary interest within a Mitakshara joint family. By abolishing the doctrine of survivorship and recognizing daughters as coparceners, the amendment promotes gender equality and ensures a more equitable distribution of property. The concept of notional partition continues to play a vital role in determining the deceased coparcener’s share, which is then distributed according to testamentary or intestate succession rules.

Question: How are the shares of coparcenary property distributed under the Hindu Succession (Amendment) Act, 2005 when a coparcener dies as an undivided member of a Mitakshara coparcenary?

Answer:

Introduction

The Hindu Succession (Amendment) Act, 2005 significantly altered the way coparcenary property is distributed when a coparcener dies. The amendment abolished the doctrine of survivorship for male intestates, and now, the distribution of property is governed by testamentary or intestate succession. This illustration explains the distribution process with a practical example.

Relevant Headings

1. Scenario Overview
2. Notional Partition Calculation
3. Intestate Succession Distribution
4. Final Share Allocation

1. Scenario Overview

A coparcener, A, dies in 2006 as an undivided member of a Mitakshara coparcenary. He is survived by his father (F), two sons (S1 and S2), and a daughter (D). The task is to calculate the shares of the coparcenary property following the rules set out by the Hindu Succession (Amendment) Act, 2005.

2. Notional Partition Calculation

First, we need to effect a notional partition to determine the shares:

• The property is initially divided between A and his father, F. Each gets half of the property.
• The next step is to partition A’s share among his sons (S1 and S2) and his daughter (D). Each gets one-fourth of A’s half share.

Therefore:

• F’s share = 1/2 of the total property.
• A’s share = 1/2 of the total property.
• A’s share is further divided among S1, S2, and D:
• S1’s share = 1/4 of A’s share = 1/8 of the total property.
• S2’s share = 1/4 of A’s share = 1/8 of the total property.
• D’s share = 1/4 of A’s share = 1/8 of the total property.

3. Intestate Succession Distribution

According to the amended Act, A’s share must now be distributed according to the rules of intestate succession:

• A’s 1/8th share is divided among his three class-I heirs (S1, S2, and D) since F, a class-II heir, does not inherit in the presence of class-I heirs.

Each class-I heir receives an equal portion of A’s 1/8th share:

• S1’s additional share = 1/3 of A’s 1/8th share = 1/24 of the total property.
• S2’s additional share = 1/3 of A’s 1/8th share = 1/24 of the total property.
• D’s additional share = 1/3 of A’s 1/8th share = 1/24 of the total property.

4. Final Share Allocation

Combining the initial shares and the intestate succession shares:

• F’s final share = 1/2 of the total property.
• S1’s final share = 1/8 (initial) + 1/24 (intestate) = 3/24 + 1/24 = 4/24 = 1/6 of the total property.
• S2’s final share = 1/8 (initial) + 1/24 (intestate) = 3/24 + 1/24 = 4/24 = 1/6 of the total property.
• D’s final share = 1/8 (initial) + 1/24 (intestate) = 3/24 + 1/24 = 4/24 = 1/6 of the total property.

Thus, the final shares are:

• F = 1/2 (or 12/24) of the total property.
• S1 = 1/6 (or 4/24) of the total property.
• S2 = 1/6 (or 4/24) of the total property.
• D = 1/6 (or 4/24) of the total property.

Conclusion

The Hindu Succession (Amendment) Act, 2005 simplifies the distribution of coparcenary property by requiring notional partition and equitable distribution among class-I heirs. This ensures a fair allocation of property, including equal shares for daughters, thereby promoting gender equality in inheritance.

Question: How is the property of a deceased undivided member of a Mitakshara coparcenary divided among his surviving family members?

Answer:

Illustration

Consider the case where A dies as an undivided member of a Mitakshara coparcenary in December 2005. A is survived by his parents F (father) and M (mother), two wives W1 and W2 (he was married prior to 1955, making both marriages valid), two sons S1 and S2, a grandson SS (through S1), a brother Br, and a sister Si.

Initial Partition

The initial partition involves dividing the property among the coparceners: F, M, A, Si, and Br. Each will receive an equal share of the property, calculated as follows:

• Shares of Coparceners: F, M, A, Si, and Br each receive 1/5th of the property.

Second Partition

Next, A’s share is further divided among his immediate heirs, including his wives and sons. The calculation is:

• Shares of A’s Immediate Heirs: A, W1, W2, S1, and S2 each receive 1/5th of A’s 1/5th share, resulting in each receiving 1/25th of the total property.

Third Partition

S1’s share is further divided between him and his son SS:

• Shares of S1 and SS: S1 and SS each receive 1/50th of the total property, as S1’s 1/25th share is divided equally between them.

Separate Share of A

The separate share of A, calculated after the initial partition, is 1/25th of the total property. After intestate succession, the share is distributed among M, W1, W2, S1, and S2:

• Distribution: M, W1, W2, S1, and S2 each receive 1/25th of A’s share, which equals 1/100th of the total property.

Final Shares

The final shares for each family member are calculated by adding their shares from different stages of the partition:

• F: 1/5th (from the initial partition)
• M: 1/5th (from the initial partition) + 1/100th (from A’s share) = 21/100ths
• Si: 1/5th (from the initial partition)
• Br: 1/5th (from the initial partition)
• W1: 1/25th (from A’s share) + 1/200th (from A’s intestate succession share) = 9/200ths
• W2: 1/25th (from A’s share) + 1/200th (from A’s intestate succession share) = 9/200ths
• S1: 1/50th (from S1’s share of A’s partition) + 1/100th (from A’s intestate succession share) = 3/100ths
• S2: 1/25th (from A’s share) + 1/100th (from A’s intestate succession share) = 9/100ths
• SS: 1/50th (from S1’s share of A’s partition)

Special Rules under Dravida School

Under the Dravida School of Hindu law, neither the mother nor the widows of the intestate take any share at the time of partition.

Separated Son

The law prior to 2005 excluded a son who had taken his share from the Mitakshara coparcenary and separated from the joint family during the father’s lifetime. This son was neither entitled to a share at the time of a notional partition upon the father’s death nor at the time of distributing the property according to intestate succession rules. However, post-2005, this provision was deleted, allowing a separated son to inherit according to intestate succession rules, though not at the time of a notional partition.

Conclusion

In a Mitakshara coparcenary, the property division follows specific rules where each member receives an equal share, and further partitions are done based on the immediate heirs of the deceased. Special rules apply under different schools of Hindu law, and legislative changes have enabled separated sons to inherit under intestate succession, ensuring equitable distribution.