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a female intestate here, are similar to the ones provided under the general scheme, but the order of preference
isdifferent.

The property of a female is categorised into two, instead of three categories and the classification is as follows:

(i) general property of a woman; and

(ii) property inherited from her husband and father-in-law.

For succession to the general property, the heirs are grouped into the following classes:

(i) sons and daughters (including the children of any predeceased son or daughter); and the mother
(ii) father and husband;
(iii) heirs of mother;
(iv) heirs of father; and
(v) heirs of husband.

Here, in keeping with the principles of the matrilineal systems, the mother is preferred to both the father, as well as
the husband. Similarly, the heirs of the mother are preferred to both, the heirs of the father and the heirs of the
husband.

V.DEVOLUTION OF INTEREST IN MITAKSHARA COPARCENARY PROPERTY

INTRODUCTION

The Hindu Succession Act, 1956, besides containing rules of inheritance for the separate property of an intestate,
also contains provisions affecting the devolution of coparcenary property by survivorship and testamentary
succession.

The Act has retained the concept of the joint family system and recognises both separate and coparcenary
property. It is pertinent to note that the Hindu Code Bill, 1948, had abolished the Hindu Joint family and the pious
obligations of the son, and had provided for a uniform scheme of inheritance of the property held by a Hindu male,
but stiff resistance from traditionalists enabled its revival. Besides others, the two main arguments in favour of its
abolition were that it has outlived its usefulness in the modern, changing times and its continuation would only
perpetuate gender inequalities, but those in favour of its retention described it as beneficial to each and every
member of the family, as it accorded an insurance against unemployment and provided old age security. Viewed as
an integral part of Hindu religion, its protagonists feared that its abolition would lead to disintegration of the family
and would give rise to unpleasantness and endless litigations. The members of the Report of the Hindu Law
Committee, 1944 had observed: 86 80

My conclusion on the evidence on this point is that the Mitakshara doctrine of the sons taking a share in ancestral property
on the birth, equal to their father, should be retained in Mitakshara jurisdictions and that the doctrine of the survivorship in
coparcenary property should remain as it is. The evidence on this head, both oral and documentary, is almost one-sided
and is in favour of no change in the existing rule.

Even at the time of the introduction of the first Hindu Succession Bill, 1954,87 81 there was no provision
recommending the retention of Mitakshara coparcenary. Another aspect in its application by this time was that the
devolution of the undivided share in a Mitakshara coparcenary had already been modified by a spate of legislations.
All these legislations passed by the British Indian Parliament, were women friendly, and as a natural corollary to
that, the Hindu Succession Act, 1956, was anticipated to usher in gender parity, rather than reverting to a system of
son-preference and perpetuation of patriarchal ideologies.

The concept of notional partition was therefore coined and adopted as a compromise between two extreme
positions, i.e., a total abolition of the joint family and coparcenary system and its retention in the form as was
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CHAPTER 12 HINDU SUCCESSION ACT, 1956

applicable at that time. It enabled the legislature to allow the continuation of the Mitakshara coparcenary and at the
same time, it enabled the near female and cognate relations to participate in the ownership of the coparcenary
property, in certain contingencies. The amendment of 2005 has made further changes into the devolution of
coparcenary property.

DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY

Law as it stood prior to the Hindu Succession (Amendment) Act, 2005

The Hindu Succession Act, 1956, expressly retained the concept of Mitakshara coparcenary and a right by birth in
favour of the son, son of a son and son of a son of a son. The traditional concept of the joint family, and preferential
rights to the son, remained intact, rather they got a statutory stamp for continued application. The first part of s. 6,
reads as under: 88 82

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.

The Act expressly recognised application of the doctrine of survivorship in case a Hindu male dies as an undivided
member of a Mitakshara coparcenary and it was this statutory recognition of coparcenary that made the study of the
whole of the classical Hindu law of joint family, joint family property, its alienation, partition and of the theory of
pious obligation, relevant.

SURVIVORSHIP REPLACED BY TESTAMENTARY AND INTESTATE SUCCESSION

The abovementioned rule is general in application. While recognising the application of the doctrine of survivorship,
the Act simply mentions that the undivided interest of the coparcener in a Mitakshara coparcenary, shall devolve by
survivorship, upon the surviving members of the coparcenary. It does not refer to the presence or absence of other
members in the joint family. ‘Members of coparcenary’, in relation to the deceased, will be only the male relations,
under the traditional concept, and no female can be included in that category. However, the proviso to this section
makes a fundamental departure in the application of this doctrine of survivorship. It says: 89 83

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.

The above proviso has four parts:

(i) A Hindu male dies as an undivided member of a Mitakshara coparcenary.

(ii) He had an interest in the undivided coparcenary property.
(iii) The deceased leaves behind him, a class-I female heir, or a class-I male heir claiming through a female.
(iv) His undivided interest in the Mitakshara coparcenary will devolve by testamentary or intestate succession
and not by the doctrine of survivorship.90 84

NOTIONAL PARTITION

The provision alters the devolution of the undivided interest by an automatic devolution by survivorship, to a
conscious testamentary devolution or by inheritance law. However, the question arises, that if a person dies as an
undivided member of a coparcenary, what will be his interest which would be available for succession? Explanation
I, appended to the proviso, provides an answer to that. It says:

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.
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CHAPTER 12 HINDU SUCCESSION ACT, 1956

The proviso incorporates the concept of a legal or fictional partition. The undivided interest that the deceased has
left behind will be divided by effecting a partition. This partition had not actually taken place. He had died as an
undivided member, but the legal presumption is that he died after asking for partition, viz. , a partition had taken
place in the joint family, at his instance. Law will presume that before his death, he had demanded it and therefore,
a severance of status, as far as the deceased was concerned, had taken place. The fact that this coparcener might
not be competent to claim partition is irrelevant. It must be remembered that every major coparcener, who is of
sound mind, is competent to demand a partition at his pleasure. It is a minor coparcener who cannot demand a
partition from the Karta himself, but has to take the help of a next friend and file a suit for partition in a court of law.
Section 6 clearly says that the presumption, that before the death of a coparcener, a partition had taken place, will
be applicable in the case of all coparceners, irrespective of whether they were entitled to ask for a partition or not.
This presumption will also be applicable in the case of minor coparceners.

Heirs, Presence of whom will Alter the Devolution

For the application of notional partition and for defeating the doctrine of survivorship, the first and the foremost
condition is that the deceased has left behind him, either a class-I female heir or a male class-I heir claiming
through a female heir. In the class-I category, there were a total of twelve heirs of which eight were females before
2005. The presence of any of these eight female heirs will defeat the application of the doctrine of survivorship. The
ninth heir, whose presence will also have the effect of application of a fictional partition, is a male claiming through a
female. This heir is the son of a predeceased daughter. The nine heirs, the presence of whom will change the mode
of devolution of the undivided interest in the Mitakshara coparcenary, from survivorship to succession preceded by
a notional partition, are: the mother, widow, daughter, son of a predeceased daughter, daughter of a predeceased
daughter, daughter of a predeceased son, widow of a predeceased son, widow of a predeceased son of a
predeceased son and daughter of a predeceased son of a predeceased son. It must be noted here that the only
three heirs in the class-I category, who have been left out, are the coparceners themselves, viz. , the son, son of a
predeceased son and the son of a predeceased son of a pre deceased son. The reason why their presence will not
change the devolution of the undivided coparcenary interest of the deceased from survivorship to succession is that
they themselves are coparceners and will take the interest by survivorship. Their interest is well protected.

The presence of disqualified class-I heirs will not result in the presumption of a notional partition.

Fig. 12.40

For example, as illustrated in Fig. 12.40, A was, at the time of his death, an undivided member of a Mitakshara
coparcenary. He is survived by his two brothers Br 1 and Br 2, one son S1, and a widow of his predeceased son,
S2 W , who remarried a day before A died. It is inappropriate to call her a widow of a predeceased son, as she is
disqualified and no longer a class-I heir. The interest of A will devolve by survivorship, on the surviving coparceners.
Similarly, in another example, A dies and is survived by his two brothers Br 1 and Br 2, two sons S1 and S2, and a
son of a predeceased daughter, DS . The daughter had converted to Christianity and DS was born to her after such
conversion. He is a disqualified heir. His presence therefore, would not have any effect on the devolution of the
property and it will pass to the surviving coparceners. Again, where a son has separated from his father by seeking
a partition and has taken his share during the lifetime of the father, but has subsequently passed away, the
presence of his widow and his daughter at the time of the death of the father will not alter the devolution, and the
property will go by survivorship to the remaining coparceners.

Scope of Notional Partition

This legal presumption of a deemed partition prior to the death of an undivided coparcener, is also called a notional
partition, a legal partition or a fictional partition. As has been earlier explained, introduction of the concept of
notional partition was in the nature of a compromise by the legislature, when faced with two extreme positions, viz. ,
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CHAPTER 12 HINDU SUCCESSION ACT, 1956

coparcener, at the time of his death. It has made the law simple but not necessarily equitable by abolishing the very
concept of doctrine of survivorship in case of male intestate. Section 6(3) provides

Section 6 (3).— where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his
interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or
intestate succession as the case may be under this Act and not by survivorship and the coparcenary property shall
be deemed to have been divided as if a partition had taken place.

It thus retains the concept of notional partition, for calculating the share of the deceased coparcener in the
Mitakshara coparcenary. Once the share has been so ascertained, such share will go as per the intestate or
testamentary succession, as the case may be, and not in accordance with the doctrine of survivorship. Under the
old law, intestate and testamentary succession principles applied only where a class-I female heir or a male class-I
heir claiming through a female was present i.e., son of a predeceased daughter. In their absence and in presence
of a son, son of a predeceased son or son of a predeceased son of a predeceased son, the interest of a Mitakshara
coparcener devolved as per doctrine of survivorship. Presently it is immaterial as to who the survivors are. In all
cases where a male coparcener dies as an undivided member of a Mitakshara coparcenary, his interest calculated
after effecting a notional partition must go by intestate or testamentary succession.

Thus presently the following factors have to be remembered while effecting a distribution of the share of a
coparcener dying as an undivided member of Mitakshara coparcenary

(a) the coparcener dies as a member of Mitakshara coparcenary;

(b) his death occurs after 9th September, 2005;
(c) his share is to be calculated after effecting a notional partition.
(d) If he has made a Will capable of taking effect in law with respect to this share, such share will go as per the
instructions given in the Will;
(e) In absence of a Will capable of taking effect in law, such share is to be distributed in accordance with the
provisions of the intestate succession under this Act;
(f) If there is a daughter in the family, she must be allotted a share as she is now a coparcener in the same
manner as a son.

Illustrations

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. (See Fig. 12.52 below)

Fig. 12.52

To calculate the share we have to effect a notional partition between the father F and A so that each of them gets a
half of the property. The second partition would be among A and S1, S2 and D so that each of them would get 1/4th
of i.e., 1/8th. The separate share of A would be 1/8th. This 1/8th share would go as per the rules of intestate
succession. Out of this share the father will not get anything as he is a class-II heir. This 1/8th share of A would thus
be distributed equally among the three class I heirs present i.e., S1 , S2 and D, each taking 1/3 1/8th i.e., 1/24th.
Thus

After first partition: F , A = each

After second partition: A , S1, S2 and D = 1/4 = 1/8th each.

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CHAPTER 12 HINDU SUCCESSION ACT, 1956

Share of A = 1/8th

After devolution of property by intestate succession

S 1, S2 and D = 1/8 1/3 = 1/24 each.

The final shares would be as follows.

F=

S 1 = 1/8 + 1/24th = 4/24 = 1/6

S 2 = 1/8 + 1/24th = 4/24 = 1/6

D = 1/8 + 1/24th = 4/24 = 1/6

Illustration

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

Fig. 12.53

Here the first partition will be among F, M, A, Si, and Br, each of them will take 1/5th of the property. The second
partition will be among A, W 1 , W 2 , S1 and S2 and each of them will take 1/5 1/5 i.e. , 1/25 each. The third
partition will be between S1 and SS and each of them will take 1/25 = 1/50 each

F, M, A, Si, and Br=1/5th each

A, W1, W2, S1 and S2 = 1/5 1/5 = 1/25

S 1 and SS= 1/25 = 1/50 each

Separate Share of A = 1/25

After devolution of property by intestate succession

M, W1, W2, S1 and S2 = 1/25 = 1/100 each.

The final shares would be as follows

F = 1/5th

M = 1/5th + 1/100

Si = 1/5th
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CHAPTER 12 HINDU SUCCESSION ACT, 1956

Br = 1/5th

W1 = 1/25th+1/200

W2 = 1/25th+1/200

S 1 = 1/50th+ 1/100

S 2 = 1/25th+ 1/100

SS = 1/50

In Dravida School, the mother and the widows of the intestate will not take any share at the time of the partition.

Separated son

The law as it stood prior to 2005, excluded by an express legislative provision a son (as also his representatives)
who had taken his share from Mitakshara coparcenary and had separated from the joint family during the life time of
the father. He was neither entitled to a share at the time of affecting a notional partition, where the father died, nor
at the time of distribution of the property in accordance with the rules of intestate succession. Presently the
disabling provision imposing a double disability on such separated son has been deleted. However, it has only
enabled a separated son to take a share at the time of distribution of the property in accordance with the rules of
intestate succession and not at the time of effecting a notional partition. This interpretation is in accordance with the
rule that a person who has already separated from the joint family after taking his share cannot get a share again if
a partition takes place subsequent to his separation, but since the share of the deceased father goes by intestate
succession, the rules applicable with respect to separate property will govern such share. As for succession to
separate property there is no difference between a separate son and the son who was living with the father, both of
them would inherit the property on an equal basis.

VI. Devolution of Coparcenary Interest held by a Female Coparcener

Introduction

Under traditional Hindu law only males could be coparceners. To being with, four states made changes to the Hindu
Succession Act, 1956 and allowed unmarried daughters to become coparceners. It was then followed by the Hindu
Succession (Amendment) Act, 2005 wherein all daughters were made coparceners. The introduction of females as
coparceners has made certain fundamental changes to the concept of coparcenary and its devolution. Now a
female also gets the benefit of a right by birth in the coparcenary property and incurs the liability to pay the father’s
debts contracted prior to the passing of the Amending Act. On her death, her interest in the Mitakshara coparcenary
goes by survivorship on the surviving coparceners, with the application of the doctrine of survivorship. Similar to the
text of s. 6, here also, where an undivided female coparcener dies and is survived by her children and
grandchildren, her interest in the Mitakshara coparcenary will not devolve by survivorship, but will go by intestate
and testamentary succession, as the case may be.12 105 For calculating her interest in the Mitakshara coparcenary
at the time of her death, we have to presume that a partition had taken place immediately before her death,
irrespective of whether she was entitled to claim a partition or not.13 106 However, this notional partition will not be
presumed in the case of a daughter who had separated from the family after taking her share. For the application of
the concept of notional partition in the case of the death of a female coparcener, the following conditions must be
present:

(a) such female, at the time of her death, was an undivided coparcener, having an interest in the coparcenary
property;
(b) her death occurred after the amending Act had been passed; and
(c) she is survived by her child or a child of a predeceased child.

Illustration (i)
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CHAPTER 12 HINDU SUCCESSION ACT, 1956

A Hindu joint family, consists of the father F , his wife W , his son S and an unmarried daughter D . D dies in 2006.
[See Fig. 12.54]

Fig. 12.54

Her interest in the Mitakshara coparcenary will be taken by the surviving coparceners, in this case, the father and
the brother. No notional partition will be effected as such partition can be effected only when she is survived by a
child or a child of a predeceased child.

Illustration (ii)

A Mitakshara coparcenary consists of two brothers and a sister. The sister gets married in 1996 and dies in 2007
leaving behind a son and a daughter. [See Fig. 12.55]

Fig. 12.55

Since no partition was effected during her lifetime, she died as an undivided member of this coparcenary. On her
death, it will be presumed that just before her death a partition had been effected, as she has died leaving behind
her children. Her share, i.e., one-third of the property, will not go to her brothers under the doctrine of survivorship,
but will go by intestate succession, to her children S and D , who will take a one-sixth share each.

Illustration (iii)

A Hindu joint family consists of the father F , a son S , three daughters D 1, D 2 and D 3. [See Fig. 12.56]

Fig. 12.56

D 1 has a son DS , D 2 has a daughter DD , and D3 is childless. D 1, D 2 and D 3 die one after another.

Heirs presence of Whom will Alter the Devolution Introduction

Unlike in the case of a male coparcener, where a notional partition has to be effected in all cases on his death, in
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CHAPTER 12 HINDU SUCCESSION ACT, 1956

case a female coparcener dies, it is the presence of her son and daughter and son and daughter of such
predeceased son and daughter, a total of six heirs, i.e., son S , daughter D , son and daughter of a predeceased
son, SS 1 and SD 1 and son and daughter of a predeceased daughter, DS 1 and DS 2, which will change the
devolution of the undivided interest [see Fig. 12.57].

Fig. 12.57

The legislature had kept in view the different schemes laid down in the Act, for succession to the property of a
female intestate, which are linked to the source of acquisition of the property by her. If the property was her
separate property, then the primary heirs would include the widower, children and children of predeceased children.
It is apparent that the legislature did not want the widower of the predeceased daughter to inherit her share in her
natal joint family property, in the absence of her children, and therefore, only those heirs who are entitled to
succeed to the property that a female intestate had inherited from her parents, are the ones whose presence will
change the devolution of her interest in the coparcenary property. Under the Act, if during her lifetime, a woman
inherits property from either of her parents, and then dies, her children, or children of predeceased children, inherit
this property. However, if she dies issueless, her widower does not inherit the property and the property reverts to
her father’s heirs. The same analogy has been adopted here as well. A female coparcener acquires an interest by
birth, in the coparcenary property of the joint family of her father. If she dies issueless, but is survived by her
husband, her interest in the coparcenary property is taken by the surviving coparceners, who are members of her
father’s family, and the husband does not get anything. So, in a way, it still goes back to her father’s family, though
it cannot be said that it reverts. However, where the children or grandchildren are present, the property will devolve
on the clause (a) heirs of the female intestate, the category includes the husband since this will be called the
general property which also of the female and not the one inherited from her parents.

VII.GENERAL PRINCIPLES OF INHERITANCE

INTRODUCTION

The general principles of inheritance that are applicable in case of both male and female intestates, are specified in
ss. 18 to 28 of the Act. These principles give statutory form to certain well-established Hindu law norms, which are
deeply entrenched in the society.

FULL-BLOOD PREFERRED TO HALF-BLOOD

As a general rule, heirs of the intestate related to him by full-blood, are preferred to those related by half-blood, if
they stand in the same degree of propinquity. These terms, ‘full-blood’ and ‘half-blood relationships’, are used to
explain how brothers and sisters, to begin with, can be related to each other. When brothers and sisters share both
the parents, i.e., their father and mother are the same, they are called full-blood brothers and sisters. When they are
from the same father, but are from different mothers, they are called half-blood brothers and sisters, and when they
are from the same mother but are from different fathers, they are called uterine brothers and sisters. Relationship
by adoption is called a full-blood relationship. For example, a couple having a daughter, adopts a son. This son will
be related to the daughter by full-blood relationship.

Section 18 expressly provides a preference to relations by full-blood over half-blood. It says:

 PART G

Shivagunga42). The decision of the three judge Bench in Vineeta Sharma (supra)

comprehensively analyses the precedents on the subject.

G. Hindu Succession Act 1956

26. Section 6 of the HSA 1956 provides for the devolution of interest in

coparcenary property in a joint Hindu family governed by Mitakshara law. Prior to

its substitution by Act 39 of 2005, Section 6 provided as follows:

“6. Devolution of interest in coparcenary property. - 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 devolve by testamentary or
intestate succession, as the case may be, under this Act and
not by survivorship.
Explanation 1. – For the purpose 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 this
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.”

27. Section 6, as it stood prior to the amendment, provided that the coparcenary

interest of a male Hindu who died after the commencement of the Act, would

devolve by survivorship. Section 6, in other words, excluded the devolution of

42 1863 SCC OnLine PC 11

27
 PART G

property by testamentary or intestate succession by expressly incorporating the

principle of survivorship. The proviso to Section 6 however contained an exception

where the deceased had left surviving a female relative specified in Class I of the

Schedule or a male relative of the class who claimed through such a female relative

in which case the interest of the deceased in the Mitakshara coparcenary property

would devolve by testamentary or intestate succession of property under the Act

and not by survivorship. Explanation 1 to Section 6 contained a deeming fiction

according to which for the purpose of the Section, the interest of a Hindu

Mitakshara coparcener was 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.

28. The provisions of Section 6, as they stood prior to the amendment, came up

for consideration before a three-judge Bench of this Court in Gurupad Khandappa

v. Hirabai Khandappa Magdum43. In that case, Khandappa, who had an interest

in Mitakshara coparcenary property, died on 27 June 1960 leaving his wife Hirabai,

his two sons, and three daughters. Hirabai instituted a suit for partition. Since the

widow and daughters were amongst the family relatives specified in Class I of the

Schedule, the proviso to Section 6 came into play and the normal rule of

survivorship was excluded. This Court noted that the plaintiff’s relief was

determined by two things: (i) her share in her husband’s share; and (ii) her

husband’s own share in the coparcenary property. Since the deceased was

survived by two sons, three daughters and his widow, the Court observed that each

43 (1978) 3 SCC 383

28
 PART G

of the six sharers would have an equal share of 1/6th. The next step was to

determine the share which the deceased had in the coparcenary property.

Elaborating on that, the Court held:

“9. The next step, equally important though not equally easy
to work out, is to find out the share which the deceased had
in the coparcenary property because after all, the plaintiff has
a 1/6th interest in that share. Explanation 1 which contains the
formula for determining the share of the deceased creates a
fiction by providing 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. One
must, therefore, imagine a state of affairs in which a little prior
to Khandappa's death, a partition of the coparcenary property
was effected between him and other members of the
coparcenary. Though the plaintiff, not being a coparcener,
was not entitled to demand partition yet if a partition were to
take place between her husband and his two sons she would
be entitled to receive a share equal to that of a son.
(See Mulla's Hindu Law, 14th Edn. p. 403, para 315). In a
partition between Khandappa and his two sons there would
be four sharers in the coparcenary property the fourth being
Khandappa's wife, the plaintiff. Khandappa would have
therefore got a 1/4th share in the coparcenary property on the
hypothesis of a partition between himself and his sons.”

In a notional partition of the coparcenary property between him, his widow and his

2 sons, Khandappa would have obtained a 1/4th share. The share of the plaintiff

in his 1/4th share was 1/6th, i.e. 1/24th. This Court held that there was no justification

to limit the share of the plaintiff to 1/24th by ignoring the 1/4th share which she would

have obtained had there been an actual partition during her husband’s lifetime

between him and his two sons. The Court held that the Explanation to Section 6

“compels the assumption of a fiction” that in fact a partition of the property had

taken place immediately before the death of the person in whose property the heirs

claimed a share. This Court held:

29
 PART G

“13. 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 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.”

29. In its 174th Report titled “Property Rights of Women: Proposed Reforms

Under the Hindu Law” (5 May 2000). The Law Commission of India noted that “the

exclusion of daughters from participating in the ownership of coparcenary property

30