Demystifying Notional Partition under Hindu Succession Act, 1956

By Ashish Kumar Singh

Abstract

This paper examines how the legal fiction of notional or deemed partition under section 6 of the Hindu Succession Act, 1956 (prior to the 2005 amendment) has metamorphosed into a real partition, by analyzing how judicial pronouncements have obliterated the difference between the notional partition and the real partition by sidelining the classical concept of the coparcenary and joint family property. The paper examines the significance of notional partition and its incorporation in section 6 of the Hindu Succession Act, 1956. Ultimately, the paper shows that such metamorphosis will lead to absurd results when applied in real-life situations and that judicial pronouncements that have led to the near abolition of the Mitakshara Coparcenary Property require some reconsideration.

Introduction

It can be said with no doubt that Section 6 is the most controversial section in the Hindu Succession Act, 1956 (hereinafter “the Act”). Much ink has been spilt on this section, both by the academicians and the bench. It is true that in a provision like section 6 some anomalies are bound to occur as the Proviso to it grafts a new rule on an old system which may repel the graft if left to itself. The problems which have persisted are — What is the effect of the notional partition on the joint coparcenary property? Whether the notional partition can be treated at par with real or actual partition? What is the status of class-I heirs under Schedule I of section 8 of the Act including the coparceners, and whether they are to be considered as separated from their joint Hindu family?

This paper deals with these questions in light of whether the classical Mitakshara coparcenary property has been abrogated by the Act. Firstly, an exposition of some of the fundamental principles of the Hindu law will be made, following which the diverging views of the Supreme Court and the High Courts regarding notional partition will be analysed. Lastly, this paper will attempt to trace the true intent, purpose, and object of notional partition.

Basic principles of Hindu law

Mitakshara coparcenary is a much narrower body than the joint family. Coparceners are those persons who acquire by birth an interest in the joint or coparcenary property. These are sons, grandsons and great-grandsons of the holder of the joint property. In other words, the three generations next to the holder in unbroken male descent. No female can be a coparcener although she can be a member of a joint family. Mitakshara law recognises two modes of devolution of property, namely survivorship, and succession. The rules of survivorship apply to joint family property and the rules of succession apply to the property held in absolute severalty by the last owner.

Property inherited by a Hindu male from his father, father’s father or father’s father’s father, is ancestral property. The essential feature of the ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons then they become joint owner’s coparceners with him. They become entitled to it by birth. Such devolution of the property is called apratibandha daya or unobstructed heritage. Unobstructed heritage devolves by survivorship.

Property inherited by a Hindu male from any other relation is his separate property. Property inherited by a person from collaterals, such as brother, uncle, nephew, etc. or property inherited by him from a female, e.g. his mother is his separate property. Separate property also includes self-acquired property. Such devolution of property is called sapratibandha daya or obstructed heritage. The right of property accrues not by birth but on the death of the last owner without leaving a male issue. It is called obstructed because the accrual of the right to it is obstructed by the existence of the last owner. Obstructed heritage devolves by succession. The separate or self-acquired property, once it descends to the male issue of the owner, becomes ancestral in the hands of the inheritor and his male issues i.e. his son, son’s son, and son’s son’s son.

The essence of the coparcenary under Mitakshara law is the community of interest and the unity of possession. The ownership of the coparcenary property is vested in the whole of the coparcenary. No coparceners can claim that he has a definite share for e.g. 1/4th or 1/5th in the joint property. His interest is a fluctuating one which depends upon the birth and the demise of other coparceners. None can claim rights to a particular part. He has a right over every part and parcel of any joint property of the coparcenary. Till there is a partition all the coparceners hold the joint property as joint tenants as they have no definite share in the joint property. It is only on the partition that a coparcener becomes entitled to a definite share. After partition, heirs hold their property as tenants-in-common as they have specified shares in it which no longer changes with the birth and the death of other coparceners.

Partition, according to law, is the severance of the joint status. It is the numerical determination of the share of the coparceners in the joint family property. There doesn’t need to be an actual division by metes and bounds. After the shares are defined, the parties may divide the property by metes and bounds — the property ceases to be joint and parties hold the property as tenants-in-common. The family may continue to jointly possess property despite separation unless there is a partition by metes and bounds. For a partition to be effected, all that is necessary is the unequivocal and definite indication of a coparcener’s intention to separate himself from the family and enjoy his share in severalty. The severance of status takes place when the communication is sent to and not when it is received by the karta or other coparceners.

According to the Mitakshara law, a wife cannot herself demand a partition, but if a partition takes place between her husband and sons, she is entitled to a share equal to that of a son and to hold and enjoy her share separately even from her husband. Here, the term ‘wife’ would also include a step-mother. Similarly, a widow-mother cannot compel a partition, the right for which remains with the sons, but if a partition takes place between her sons, she is entitled to a share equal to that of a son. Akin to the wife, the term ‘mother’ also includes a step-mother.

Temporary reduction of the coparcenary unit to a single individual does not alter the character of the property, it remains joint. When a person receives a share upon the partition of ancestral property and was at such time, issueless, he can treat such share as his separate property till a son is born to him, but this does not mean that the character of the ancestral property has changed. Even though he can treat such property as his own property, the character of the property remains joint. Unlike interpretations offered in several pronouncements, there is no vesting, divesting, and then revesting of the joint or ancestral character in the property, which always remains joint.

Case Laws

In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others[1], a three-judge bench of the Apex Court held that notional partition had to be carried to its logical conclusion by assuming that actual partition had taken place. The Court translated the deemed or notional partition into an actual partition, thereby destroying the joint Hindu family and crystallizing the shares of the members of the joint family. Chief Justice Y.V.Chandrachud held that:

“In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that 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 that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased bad in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.” (Emphasis supplied is mine)

It is humbly submitted that this case requires reconsideration as it is inconsistent with the notional partition that was envisaged by the parliament in passing this Act. Notional partition was never meant to be an actual partition; Its idea was taken from the Estate Duty Act, 1953 only to determine the share of the deceased coparcener. It is to be employed only to carve out a share from the deceased coparcener which will be notionally allotted to the Class-I heirs. But in this case, the Apex court actually allotted these shares to the Class-I heirs.

It is submitted that following the line of the aforementioned case would lead to an absurd result — that is the shares of the female heirs, having been separated from the joint family, would get crystallized, and they would be bereft of any subsequent enlargement of their shares on the demise of another coparcener. It is further submitted that the judgment of the Apex Court cannot enforce a partition in a joint Hindu family without their volition, that is of getting separated from each other.

In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Others[2], the question for consideration before a three judge bench of the Apex Court was whether females who inherited a share in a joint family property by reason of the death of a family member ceased to be a member of the family. The Court, after referring to the judgment of Gurupad (supra) held that the ratio of Gurupad (supra) applies to those cases wherein a female member had inherited an interest in the coparcenary property and she was expressing her will to go out of the family by filing a suit for partition. The Court, speaking through Justice E.S.Venkataramiah (as he then was, later CJ) opined as under —

“We have carefully considered the above decision and we feel that this case [Gurupad (supra)] has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family. That might also be the case of families of persons who are not Hindus.” (Emphasis supplied is mine)

It is submitted that this case laid down the correct exposition of the law, but unfortunately, this case has not been followed by the subsequent benches of the Apex Court that have considered this question. The court held that the demise of the coparcener would not lead to the automatic destruction of the joint Hindu family. The Court rightly held that the purpose of section 6 of the Act was to only determine the share of the deceased coparcener and nothing more than that was required to be done. The Court correctly held that the intention of the parliament was not for the Act to envisage the disruption of the common enjoyment of the joint family property unless a member of the joint Hindu family showed his/her intention to get separated from the joint Hindu family. The Court held that the Class-I female heirs get an indefeasible interest in the share of the deceased coparcener without being subjected to the subsequent alteration in the composition of the joint Hindu family.

In Uttam v. Saubhag Singh[3], a two judge bench of the Supreme Court held that once there is a notional partition upon the death of a coparcener, the status of the coparcenary comes to an end and the entire joint coparcenary property gets converted into separate property. The court held that after the demise of the coparcener, the entire property held jointly by the family would devolve by intestate succession and not by survivorship, and consequently the grandsons would have no right to succeed to the joint family property. The family in the said case, consisted of the senior most male Jagannath Singh, his wife Mainabai and his four sons S1 S2 S3 and S4. Jagannath died in 1973 and the family continued without affecting any formal partition. Plaintiff was born in 1977 to son S1 and in 1988 he filed a suit for the partition thereby claiming for 1/8th share in the joint family property. The trial court held that the suit property was ancestral in nature, which was reaffirmed by the first appellate court. The court in Para 15 observed that had the plaintiff been alive in 1973 he would have been entitled to a share in the partition. Moreover, the apex court held that in order to determine the share of deceased Hindu male, a partition has to be effected before his death and all the coparceners would then get a share in the joint family property. After summing up the position of law the court in Para 25 held:

“(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.” (Emphasis supplied is mine)

Thereafter the Apex Court held that on the death of Jagannath Singh in 1973, the ancestral joint family property owned by Jagannath Singh and other coparceners would devolve by succession under Section 8 of the Act. The ancestral property would cease to be joint family property and would be held by coparceners as tenants-in-common and not as joint tenants. The Apex Court, after referring to Commissioner of Wealth-Tax v. Chander Sen[4] held that the share so inherited under notional partition by the Plaintiff’s father would be his separate property and the plaintiff would have no right in the said property.

In Ramesh Verma (Dead) through Legal representatives v. Lajesh Saxena (Dead) by Legal representatives and another[5], a two judge bench of the apex court held that the share which was allotted to the respondent’s father in notional partition under section 82 of the Madhya Bharat Land Code would be his separate property and not a Mitakshara property. It was also observed that after the Hindu Succession Act, 1956 the devolution of the respondent’s property would be only by succession and not by survivorship.

In Arshnoor Singh v. Harpal Kaur and others[6], a two judge bench of the apex court at Para 7.5 held that if a person inherits a self-acquired property from his ancestors, the said property ceases to be coparcenary property. Again in Radha Bai v. Ram Narayan and others[7], a two judge bench at Para 20 held that the share of the son, which was allotted to him on the demise of his father, would be his separate property and he could dispose of it in any manner he desired.

With utmost respect, it is humbly submitted that the Uttam (supra), Ramesh Verma (supra) and Arshnoor Singh (supra) showcase some ignorance of Hindu laws and how the classical concepts of the coparcenary and joint family property has been sidelined despite their modified retention in the present legislation. This judgment is in the teeth of the various Supreme Court judgments. The court has affected a real partition of the whole property in the name of notional partition. It is submitted that the character of the whole property does not change from joint property to separate property on the demise of a Hindu male coparcener; it is only the share of the deceased under Section 6 proviso read with Explanation-I that is susceptible to separation subject to the volition of the Class-I heirs. The remaining share in the property remains joint. As I have explained in my previous article [8]on section 6 that the nature of the ancestral property devolved under notional partition does not for the son and his issues. The courts have sidelined the concept of Hindu Law that a son can inherit his father’s separate property and such property will be ancestral property qua his male issues. There is no such provision that deals with the character of the said property inherited by a son under this Act.

In C.Krishna Prasad v. C.I.T. Bangalore[9], a two judge bench, after referring to Mulla’s Commentary on Hindu Law, observed that in case of partition of coparcenary property, the share a son gets in such partition, can be treated by him as his separate property if he has no male issue, but the moment a son is conceived, such share will become ancestral property wherein the newborn would have a right in it by birth. This position was reiterated in Rohit Chauhan v. Surinder Singh and others[10]. Similarly, a two-judge bench of the Apex Court in Shyam Narayan Prasad v. Krishna Prasad and Others[11], at paragraphs 12 and 16 held:

“12. It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

16. Therefore, the properties acquired by defendant №2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned.” (Emphasis supplied is mine)

In Anar Devi and others v. Parmeshwari Devi and others[12], a two judge bench of the Apex Court, after referring to Mulla’s Commentary on Hindu Law and Gurupad (supra), at paragraph 11 held as under —

“Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., that 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. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.” (Emphasis supplied is mine)

In Smt. Swaran Lata and Others v. Shri Kulbhushan Lal and others[13], a Division Bench of the High Court of Delhi, without making any reference to Gurupad (supra), held that under the Act, on the demise of the coparcener, neither the coparcenary nor the Hindu Undivided Family (HUF) is broken and the coparcenary property remained vested in the remaining coparceners by survivorship and they hold it jointly. It was also held that the mere demise of a family member did not lead to a division of the coparcenary property, but rather a revision of it among the remaining coparceners. Furthermore, it held that the deemed partition under Explanation-I of section 6, neither translates into an actual or real partition nor does it affect the continuity of the coparcenary amongst the remaining male members. It held that the limited purpose of the deemed partition is to ascertain the share of the deceased which is then claimed by his Class-I heirs. The court at paragraph 26 held as under —

“…….. First, as discussed above, the notion that a partition occurs as on the date of the death of a male member, and shares crystallize into vested rights at that point in time, as held by the learned Single Judge, is not the correct approach. That event (i.e. the death) only determines how that person’s share will be divided amongst the family members (either by survivorship or by succession), rather than effecting any broad-based changes in the family holdings or effecting a partition inter se that would hold against subsequent changes in the family composition or changes in the law.” (Emphasis supplied is mine)

Thus, it is submitted that there is a contradiction between Uttam (supra), Ramesh Verma (supra) and Arshnoor Singh (supra) on one hand and C. Krishna Prasad (supra), Anar Devi (supra), Rohit Chauhan (supra) and Shyam Narayan Prasad (supra) on the other hand. With utmost respect, it is submitted that Uttam (supra), Ramesh Verma (supra) and Arshnoor Singh (supra) do not lay down the correct law for the aforementioned reasons.

The correct position of law

It is a well settled law that speech of the mover of the bill can be resorted to ascertain the purpose and object of the legislation. In Kalpana Mehta v. Union of India[14], the constitution bench of the Apex Court at paragraph 109 held as under —

“In K.P. Varghese v. Income Tax Officer, Ernakulam and another[15], the Court, while referring to the budget speech of the Minister, ruled that speeches made by members of legislatures on the floor of the House where a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision. But the Court made it clear that the speech made by the mover of the Bill explaining the reasons for introducing the Bill can certainly be referred to for ascertaining the mischief sought to be remedied and the object and the purpose of the legislation in question. Such a view, as per the Court, was in consonance with the juristic thought not only in the western countries but also in India as in the exercise of interpretation of a statute, everything which is logically relevant should be admitted. Thereafter, the Court acknowledged a few decisions of this Court where speeches made by the Finance Minister were relied upon by the Court for the purpose of ascertaining the reason for introducing a particular clause. Similar references have also been made in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others (1996 1 SCC 130). That apart, parliamentary debates have also been referred to appreciate the context relating to the construction of a statute in Novartis AG v. Union of India and others (2013 6 SCC 1), State of Madhya Pradesh and another v. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd. (1972 1 SCC 298), Union of India v. Steel Stock Holders Syndicate, Poona (1976 3 SCC 108), K.P. Varghese (supra), and Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income Tax and others (1999 4 SCC 306).” (Emphasis supplied is mine)

It is therefore humbly submitted that the introductory speech of Shri H.V.Pataskar, the then Minister of Law and the Lok Sabha debates that transpired during the clause by clause discussion, can be referred to ascertain the object and intention of the Hindu Succession Act, 1956.

Lok Sabha debate on Hindu Succession Bill, 1955

The Intention behind the Bill

The intention of the government of the day, for coming up with this bill can be inferred from the introductory speech of the then law minister:

Shri H.V.Pataskar: For example, the daughter is now made an heir along with the son in the property of the father, but, by this Bill, she gets no immediate interest in the property of the father unlike the son in the joint Mitakshara family and will be entitled to share along with the son only after the death of the father and that too only in respect of the property, whether separate or joint which he may have left at the time of his death[16].

Abolition of Mitakshara Coparcenary

There is a misconception which manifests itself through various pronouncements that the Act has abolished the Mitakshara law and is inapplicable in case of devolution of property under the proviso of section 6 of the Act. This is clear from the following clarification:

Shri H.V.Pataskar: As already pointed out, so far as the Hindu mitakshara joint family is concerned, the male members are in a position of advantage. The difficulty is that females are excluded from such a family in the matter of inheritance and they cannot be members of a coparcenary in the very basic nature of that system of joint family. It was, therefore, thought desirable to provide that in the case of a mitakshara family, even after the passing of this Act, so far as the male members are concerned, their rights in the coparcenary should be allowed to be governed by the right of survivorship and at the same time provision should be made that female heirs, if any, of a coparcener should also be enabled to get a due share by way of inheritance in respect of the properties of such a coparcenary.

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In order, however, that the females mentioned in class I of the schedule attached to the Bill should be entitled to a share in the property of such a deceased person, the Bill proceeds to do it by the addition of the proviso to clause 6; and this is done on the basis that the interest of the deceased had been allotted to him on a partition made immediately before his death. The underlying idea is that, while trying not to disrupt the joint family of the mitakshara type by this Bill, a daughter or a female heir in class I would also get a proper share in the property of the deceased coparcener[17]. (Emphasis supplied is mine)

The Act does not intend to abolish Mitakshara law which has been deliberately intended to be saved. The same was clarified by the then Law Minister, as under —

Shri H.V.Pataskar: If we suddenly change this law and abolish immediately the system that has come to be known as Mitakshara law, it will immediately affect the status of all such joint families and upset suddenly the existing state of things. I have deliberately tried to avoid doing this in this Bill[18]. (Emphasis supplied is mine)

The then Law Minister reiterated that passing of this bill would not abolish the Mitakshara law. He said:

“Under the former Hindu Code, all such Mitakshara joint families would have been immediately converted into joint Hindu families of the Dayabhaga type, with no right by birth and no right by survivorship, the members of such a joint family being merely tenants in common. Therefore, it must be noted that by the passing of this Bill, the Hindu joint family of the Mitakshara type is not going to immediately abolished. This is the most important feature of this Bill, which distinguishes it from the former Bill, and I would like all hon. Members of this House to take this into account[19].”

The Law Minister summed up the special features of the bill:

(i) By this Bill, the joint family of the mitakshara type is not abolished, and that is the main difference between this Bill and the provisions of the lapsed Hindu Code regarding the same.

(ii) At the same time, a daughter is given a share in the property of her father even if he was a coparcener in a joint Hindu family to the same extent as an undivided son[20].

From the above, it is quite clear that the intention of the Act is to give a share in the property of the deceased coparcener to the female member, without disrupting the joint Hindu family. It is also quite clear from the above that Mitakshara coparcenary has not been abolished.

Notional Partition

Introducing the Hindu Succession Bill, 1955 in the Lok Sabha, the then Law Minister Shri H.V.Pataskar spoke on the genesis and effect of notional partition. He said that the idea of notional partition was borrowed from the Estate Duty Act, 1953 and categorically stated that notional partition did not bring any disruption to the joint Hindu family. He spoke as under —

“As hon. Members are aware, when the Estate Duty Act was passed, a similar question had arisen. Estate duty is a measure of taxation of property which comes to a person by inheritance. In India, in the case of a large number of people who are governed by mitakshara system of Hindu Law, there is no inheritance with respect, at any rate, to the joint family properties which are held by the families concerned. If all such properties or any interest in such properties were to be excluded from estate duty because they devolve by survivorship and not by inheritance, it would have defeated the very purpose for which the estate duty was proposed to be levied. It was, therefore, then decided that, for the purpose of this taxation, the interest of a deceased coparcener should be treated as if his interest in the coparcenary property has been separated from rest of the coparcenary property just prior to his death. Following up this precedent, a similar method has been evolved for the purpose of giving a female heir a share in the property of the deceased member of a joint Hindu coparcenary; and just as the purpose of the estate duty could be achieved without actually disrupting the joint Hindu family governed by the mitakshara school of law, this Bill has proceeded to give a share to a female heir on the same basis without necessarily disrupting the joint Hindu family. This, in short, is the genesis of the scheme underlying clause 6 of the Bill, which is the most important clause so far as this Bill is concerned[21].” (Emphasis supplied is mine)

There is a popular misconception that on the death of the coparcener, the joint family is automatically disrupted. But that was not the intention of Parliament in passing the said Act. A specific question was also asked regarding the automatic disruption of joint Hindu family on the death of the father. The then law minister answered the question in the negative —

Shri Pandit Thakur Das Bhargava: May I know whether automatically after the death of the father the joint status of the sons would be severed?

Shri H.V.Pataskar: No, it will not be[22].

From the above, it is patent that notional or deemed partition was introduced to only determine the share of the deceased coparcener, without disrupting the joint Hindu family. It is rather unfortunate that the Courts have upheld the interpretation of the limited purpose of notional partition to the contrary — that notional partition translates into an actual partition.

Section 19

There was apprehension among the members of the Lok Sabha that clause 21 (corresponding to the present section 19 of the Act) read with clause 6 (corresponding to the present section 6 of the Act) would lead to the disruption of the joint Hindu family. There was some disquiet among the members regarding clause 21 giving effect to the devolution of interest of the deceased by succession rather than by survivorship and every property succeeded to the son(s) would be their separate property qua his male issues and undivided members of the joint Hindu family, which would lead to the negation, to the extent of the saving of Mitakshara law in clause 6. This apprehension was put down by the then law minister, by clarifying the effect of clause 21 on the property succeeded by the son(s). The then Law Minister stated that the interest of the deceased, which succeeded to the male members, which they shared along with their sister, would be an accretion to the original joint family property and it would not be treated as their separate property. This is clear from the following clarification:

Shri H.V.Pataskar: There is one point which arises here, if we use this phraseology. Suppose there is a daughter and there is a son also. What happens? The interest of the deceased shall devolve by testamentary or intestate succession, because he may also get something whether by will or by an interest in the property. Supposing there are two sons, and one of them had one-third share. He retains that share. Then he will get the share of the father. He will get something in addition, along with his sister. That will be an addition. Normally, as the law, the property which he acquires from his ancestors — father, etc. — will naturally be a joint family property, so far as he is concerned. But there might be some difficulty on account of the wording in clause 21. I concede that point, because that clause was drafted at a time when the form of clause 6 was a little different. I am prepared to say that this matter will be certainly considered, and I shall try to carry out what I intend at the time when clause 21 comes up[23]. (Emphasis supplied is mine)

Shri Pandit Thakur Das Bhargava: I feel that the wording of clause 6 read with clause 21, will be tantamount to the disruption of every Hindu joint family, as long as clause 6 remains as it is[24].

Shri Pandit Thakur Das Bhargava: Taking this view, to the extent that the joint Hindu family goes away as a natural effect of clause 6, as it is, what is the effect? The effect will be that those who will succeed as sons will also succeed by the rule of succession given in this Bill. They will succeed as sons and not by survivorship, which means that they also will succeed almost like daughters, widows etc. That is, they will also become fresh stocks of descent and no survivorship will remain, which may perhaps mean that they will all acquire separate property in their hands. With separate property acquired and with succession brought about in this manner. I think all those limitations of Hindu law which pertain to ancestral property will disappear, with the result that the estate of those persons also might be approximated to that of the female heir[25].

Shri H.V.Pataskar: It was pointed out, when we were considering clause 6, by Pandit Thakur Das Bhargava that clause 21, in spite of what we have done in clause 6, is going to disrupt the joint family. I will avoid going into a discussion as to what the ultimate result of this will be. That I will deal with when a future occasion arises during the consideration of this Bill. But, I may tell you that, as promised, I sincerely felt that if it were possible I might find out a way. The point is that, so far as clause 21 is concerned, as was pointed out by Shri Shah, and probably, as Pandit Thakur Das Bhargava knows, this applies not only to coparcenary properties but to all manner of properties and to properties inherited both from males and females. Therefore, the question arises as to what can be done to avoid some result which was contemplated by the passing of clause 6.

There is only one thing which I would like to point out at this stage. Supposing there was a person who had two sons and one daughter. Clause 6, as we have passed it, says that so far as the interest of the sons in the joint family property is concerned, it is retained for them and with respect to that, there will be no question of their holding it as tenants-in-common. But, naturally, when the father dies and the succession opens, both the sons and the daughters will inherit to his share or his interest in the joint family property. Supposing that property was worth Rs. 3000, the interest of each son would be to the extent of Rs. 1000. In that property, an interest of Rs. 2000 will be held as joint tenants and they will continue to hold it so. But, with respect to the other interest of Rs. 1,000 which they share with the daughter, naturally, they will hold it as tenants-in-common. But, I want to suggest here that whatever interest they get out of this property along with the daughter will an accretion to the original joint family property and in that sense it will be joint family property that belongs to them. Of course, it may be capable of some other significance. I would, therefore, suggest that so far as clause 21 is concerned, it should be as it is, because, as my critics themselves admit, it is not possible for me to maintain a thing which cannot probably be maintained by any addition of this nature. I promised at that time that I would consider this important matter and I have given my utmost consideration to that. But, now, I think the only safeguard would be what is in the present Bill. When these sons inherit a part of the ancestral property which they share with the daughter that will be regarded as an accretion, to their joint family property and will cause no inconvenience. But, I am not asserting anything[26]. (Emphasis supplied is mine)

There is also a misconception regarding the nature of the property that devolves on the son on the demise of his father. The Courts have time and again held that the nature of the property that devolves on the son(s) from the notional partition of the interest of the deceased in the Mitakshara coparcenary property would be his separate property qua his male issue. It is now quite clear from the above clarification that the share of the deceased’s coparcener which devolves on the son would be ancestral and joint qua his male issue.

Coda

The above legal reasoning can be summed up as under —

1. Notional partition does not translate into actual partition and does not lead to the automatic disruption of the joint Hindu family.
2. The purpose of notional partition is to only determine the shares arising from death of a member, so as to carve a portion from such share for female members.
3. Under notional partition, a female member gets an indefeasible share in the property of the deceased coparcenary, but it does not mean that she is separated from the family, she can still enjoy the property with other male members, unless and until she shows her volition to get separated from the joint Hindu family by filing a partition suit. By filing a suit for partition she can get her property in metes and bounds which may have been notionally allotted to her, without disrupting the joint Hindu family and coparcenary property, with other members remaining joint.
4. The share of the deceased coparcener, which devolves on the male members of the joint Hindu family under the notional partition, will be an accretion to the remaining coparcenary property and will be treated as ancestral property.

Thus, in conclusion, it is submitted that the Apex Court has erroneously interpreted the effect and purpose of notional partition. Such an interpretation has been highly detrimental to the creation and purpose of the joint Hindu family. Till date, there is a lot of confusion regarding the effect of notional partition and the nature of the property that any member gets under such a partition. It is submitted that an authoritative pronouncement of law on these issues is imperative to clear the air.

About the Author

Ashish Kumar Singh is an Electrical engineer, currently training to be a lawyer at the Faculty of Law, University of Delhi.

Citations

1. 1978 3 SCC 383
2. 1985 SCR (3) 358
3. AIR 2016 SC 1169
4. 1986 3 SCC 567
5. 2017 1 SCC 257
6. Civil Appeal №5124 of 2019, delivered on 01–07–2019
7. Civil Appeal №5889 of 2009, delivered on 02–11–2019
8. https://medium.com/the-agenda-iyea/rewriting-s-6-of-the-hsa-1956-before-2005-70b633535e42
9. AIR 1975 498
10. 2013 9 SCC 419
11. Civil Appeal №5415 of 2011, delivered on 02–07–2018
12. AIR 2006 SC 3332
13. RFA(OS) 11 of 2010, delivered on 31–04–2014
14. 2018 7 SCC 1
15. 1981 4 SCC 173
16. Column 2489 of the Lok Sabha debate on 13–12–1955
17. Column 2493 of the Lok Sabha debate on 13–12–1955
18. Column 6966 of the Lok Sabha debate on 02–05–1956
19. Column 6967 of the Lok Sabha debate on 02–05–1956
20. Column 2505 of the Lok Sabha debate on 13–12–1955
21. Column 2492 of the Lok Sabha debate on 13–12–1955
22. Column 7231 of the Lok Sabha debate on 03–05–1956
23. Column 7229 of the Lok Sabha debate on 03–05–1956
24. Column 7511 of the Lok Sabha debate on 07–05–1956
25. Column 7512 of the Lok Sabha debate on 07–05–1956
26. Columns 7513–7514 of the Lok Sabha debate on 07–05–1956