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Report No. 174

2.3 Devolution of interest in coparcenary property - Section 6 of the HSA dealing with devolution of interest to coparcenary property states-

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

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 devlove by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.- 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.

Explanation 2,-- Nothing contained in the proviso to his section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

2.3.1 Before the commencement of the HSA, codifying the rules of succession, the concept of a Hindu family under Mitakshara school of law was that it was ordinarily joint not only in estate but in religious matters as well. Coparcenary property, in contradistinction with the absolute or separate property of an individual coparcenar, devolved upon surviving coparceners in the family, according to the rule of devolution by survivorship.

2.3.2 Section 6 dealing with the devolution of the interest of a male Hindu in coparcenary property and while recognising the rule of devolution by survivorship among the members of the coparcenary, makes an exception to the rule in the proviso. According to the proviso, if the deceased has left him surviving a female relative specified in Class I of Schedule I, 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 under this Act and not by survivorship. Further, under section 30 a coparcener may make a testamentary disposition of his undivided interest in the Joint family property.

2.3.3 The rule of survivorship comes into operation only:- (1) where the deceased does not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative and , (ii) when the deceased has not made a testamentary disposition of his undivided share in the coparcenary property. The Schedule to the Act read with Section 8 provides the following twelve relations as Class I heirs son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of pre-deceased daughter; daughter of a pre-deceased daughter, widow of a pre-deceased son; son of pre-deceased son of a pre-deceased son; daughter of pre-deceased son of a pre-deceased son; widow of pre-deceased son of a pre-deceased son.

2.3.4 Section 6 contemplates the existence of coparcenary property and more than one coparcener for the application of the rule of devolution by survivorship. The head note of the section reads "Devolution of interest in coparcenary property". The language of the main provision to the effect that "his interest in the property shall devolve by survivorship upon the surviving members" indicates that the devolution by survivorship is with reference to the deceased coparcener's interest alone; this coupled with the notional partition contemplated in Explanation 1 in this section for the ascertainment of the interest of the deceased coparcener in a Mitakshara coparcenary property indicates that there is no disruption of the entire coparcenary. It follows that the other coparceners, would continue to be joint in respect of the other coparcenary property till a partition is effected.

2.3.5 It has already been pointed out above that the main provision of this section deals with the devolution of the interest of a coparcener dying intestate by the rule of survivorship and the proviso speaks of the interest of the deceased in the Mitakshara Coparcenary Property. Now, in order to ascertain what is the interest of the deceased coparcener, one necessarily needs to keep in mind the two Explanations under the proviso. These two Explanations give the necessary assistance for ascertaining the interest of the deceased coparcener in the Mitakshara Coparcenary Property.

Explanation I provides for ascertaining the interest on the basis of a notional partition by applying a fiction as if the partition had taken place immediately before the death of the deceased coparcener. Explanation II lays down that a person who has separated himself from the coparcenary before the death of the deceased or any of the heirs of such divided coparcener is not entitled to claim on intestacy a share in the interest referred to in the section.

2.3.6 Under the proviso if a female relative in class I of the schedule or a male relative in that class claiming through such female relative survives the deceased, then only would the question of claiming his interest by succession arise. Explanation I to section 6 was interpreted differently by the High Courts of Bombay, Delhi, Orissa and Gujarat in the cases1 where the female relative happened to be a wife or the mother living at the time of the death of the coparcener.

It is now not necessary to discuss this matter as the controversy has been finally set at rest by the decision of the Supreme Court in 1978 in Gurupad v. Heerabai, (1978) 3 SSC, p.383: AIR 1978 SC, 1239. and reiterated later in 1994 in Shyama Devi v. Manju Shukla, (1994) 6 SCC, Pp. 342-343 wherein it has been held that the proviso to section 6 gives the formula for fixing the share of the claimant and the share is to be determined in accordance with Explanation I by deeming that a partition had taken place a little before his death which gives the clue for arriving at the share of the deceased.

1. See Shiramabai v Kolgonda, 1964 Bom.263; Kanahaya Lal v Jamna, 1973 Delhi 160; Rangubai Lalji v Lakshman Lal Ji, 1966 Bom. 169; See also Ananda v Haribandhu, 1967 orissa 90; Vidyaben v Jadgish Chandra, 1974 Guj 23; Susheelabai v Narayanarao 1975, Bom.257

2.3.7 The Supreme Court in Gurupad's case observed:

"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 one can determine the extent of the claimant's share.

Explanation I to Section 6 resorts to the simple, expedient, undoubtedly a fictional partition, 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 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 i. All the consequences which flow from real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime 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 had 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."1

1. 1978 3 SCC 389.

2.3.8 Again in State of Maharashtra V. Narayan Rao, AIR 1985 SC 716 (721) , para. 9. the Supreme Court carefully considered the decision in Gurupad's case and pointed out that "Gurupad's case has to be treated as an authority (only) for the position that when a female member who inherits an interest in 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 both the interest she has inherited and the share which would 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 the 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 date of 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 females."



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