The Authors, Mr. Ashim Vachher is an Advocate practicing High Court of Delhi. He is also Standing Counsel, Delhi Development Authority (DDA).
Under the old Hindu Law, even before it was codified by Hindu Succession Act, 1956 or its earlier enactments, a Joint Hindu Family was always considered to be a larger body than a Hindu Coparcenary. A Joint Hindu Family would consist of persons lineally descending from a common ancestor and would include their wives as well as unmarried daughters. However, Coparcenary was a much narrower body consisting of a common male ancestor and his three lineal male descendants i.e., the common male ancestor, his son, his grand-son and his great-grand-son.
A joint Hindu family property, under the old Hindu Law, could only be held by the male descendants of a Coparcenary. Such Coparcenary, as already mentioned, would consist of male descendants upto three generations i.e., upto the great-grand-sons.
All male descendants would get a right to be a coparcener by virtue of birth or by way of adoption. A woman in a joint Hindu family had no right to become part of the Coparcenary. Also, it was well recognized under the old Hindu law that only a coparcener had a right to demand partition of the joint Hindu family property. The basic rationale behind formation of a Coparcenary was that all the coparceners would have a joint ownership of joint Hindu family property.
It was duly recognised under the Hindu law that the share of a coparcener, in a coparcenary property, on his demise, would devolve on the other coparceners by ‘survivorship’. Thus, the share of a coparcener can never be determined at a given point in time until a partition happens. The share of a coparcener in a coparcenary property is always fluctuating. On birth of another son, the share of all the coparceners would diminish and by death of a coparcener, the share of other coparceners would increase automatically. Thus, the share of a coparcener can only be determined if the joint Hindu family property is partitioned. Only on the date of partition that the share of a coparcener can finally be determined.
Way back in the year 1969 the Hon’ble Supreme Court of India in the case of “State Bank of India versus Ghamandi Ram (dead) through Gurbax Rai” reported in 1969 (2) SCC page 53 held, qua the Mitakshara coparcenary property, as under
“Para-5 - According to Mitakshara School of Hindu Law all the property of a Hindu joint family is held in a collective ownership by all the coparceners in a quasi-corporate capacity.”
It was further held that a joint Hindu family property is held in trust for the joint family members who are living at a particular point of time or who would be born in future.
By the introduction of Hindu Succession Act, 1956 the law of succession was codified. Section 6, as incorporated under the Hindu Succession Act, 1956, dealt with devolution of interest of a coparcener in a Mitakshara coparcenary property. The concept of ‘survivorship’ which was the sole basis of succession, under the old Hindu Law, amongst the Hindus governed by Mitakshara School, was duly recognised by Section-6 of the Hindu Succession Act, 1956.
However, for the first time, in a departure to the existing Hindu Law, a proviso was added to Section 6 of the Hindu Succession Act, 1956 wherein it was incorporated that if the deceased coparcener had left behind a surviving female relative as specified in Class-I of the Schedule to the Hindu Succession Act i.e. either a widow or an unmarried daughter or a male relative who claims through such female relative, the interest of the deceased coparcener, in the Mitakshara coparcenary property, shall devolve by testamentary or intestate succession and not by survivorship.
Also, Explanation-1 was added to Section 6 of the Hindu Succession Act, 1956 wherein it was incorporated that the interest of the deceased 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.
Section 6 of the Hindu Succession Act, 1956 came up for interpretation before the Hon’ble Supreme Court in the case of “Gurupad Khandappa Magdum versus Hirabai Khandappa Magdum and others” reported in (1978) Vol. 3 SCC page 383. The full bench of the Hon’ble Supreme Court discussed the law in detail and held that if a widow or a daughter is amongst the female relatives surviving a deceased coparcener, the proviso to Section 6 of the Hindu Succession Act, 1956 would be attracted and the normal rule of devolution by survivorship has to be excluded. If there is a ‘Will’ executed by the deceased coparcener, his interest would devolve in terms of the ‘Will’. However, in case of an interstate succession, the interest of the deceased coparcener in the Mitakshara coparcenary property would devolve in terms of the proviso to Section 6 of the Hindu Succession Act, 1956. It was held that not only the Class-I female legal heirs or a male relative claiming through such female relatives but also the sons, if any, would obtain an interest in the share of the deceased coparcener in the Mitakshara coparcenary property.
Explanation-1 to Section 6 of the Hindu Succession Act, 1956 provides a formula for fixing the share of the deceased coparcener in the Mitakshara coparcenary property. It creates a fiction and provides that the interest of the deceased coparcener shall be deemed to be his share in the Mitakshara coparcenary property which he would have been allotted if a notional partition would have taken place immediately before his death. The fiction which had been created by Explanation-1 to Section 6 has to be given full effect to and based on such notional partition, the share which the deceased coparcener would have got, on the happening of partition, would be divided amongst his Class-I legal heirs, including the female relatives as mentioned in Class-I of the Schedule.
Once the assumption of partition was made for the purpose of determining the share of the deceased coparcener, in the Mitakshara coparcenary property, such assumption is irrevocable and one cannot go back on such assumption. Thus, once such assumption is made, it will determine the ultimate shares of the surviving heirs of the deceased coparcener. Hence, all the consequences of a real partition will have to be worked out to determine the share of the deceased coparcener in the Mitakshara coparcenary property and his share would accordingly devolve upon his Class-I legal heirs, including the female relatives as mentioned in the proviso.
The next question which arises and which is of paramount significance is as to whether the Mitakshara coparcenary would come to an end on the demise of a coparcener, who is left with a female relative as specified in the proviso to Section-6 and a notional partition, as contemplated in Explanation-1 to Section 6, is given full effect to. And if the Mitakshara coparcenary comes to an end, on the happening of such an event, each coparcener would hold the share in the Mitakshara coparcenary property in his individual capacity and not as member of the Mitakshara Coparcenary.
A related question that would naturally arise is as to what would be the rights of a son, in the Mitakshara coparcenary property, born subsequent to such notional partition having been affected.
Similar issue arose before the Hon’ble Supreme Court in the case of “Uttam versus Saubhag Singh & Others”. reported in (2016) Vol. 4 SCC page 68. The basic facts in the case of Uttam vs. Saubhag Singh were that one Jagannath Singh, who was a coparcener in a Mitakshara coparcenary, died in the year 1973. Jagannath Singh was survived, besides his sons, by his widow who were all Class-1 legal heirs. Thus, proviso to Section 6 of Hindu Succession Act, 1956 would squarely apply and Explanation-I to Section 6 would also equally be attracted. The Hon’ble Supreme Court held that in such a situation, a partition would be affected by operation of law immediately before the death of Jagannath Singh in 1973. In the facts of Uttam versus Saubhag Singh, the Plaintiff who filed the Suit was the grandson of the deceased Jagannath Singh and was born in the year 1977. It was held that since the partition, by operation of law had been affected in the year 1973, on the demise of Jagannath Singh, the Plaintiff, who was born in 1977, would not be entitled to any share in the coparcenary property.
The Hon’ble Supreme Court held that an exception has been engrafted in the proviso to Section 6. When a Hindu male coparcener, governed by Section 6 proviso dies intestate, leaving behind a female relative, as specified in the proviso, partition would be affected by operation of law immediately before his death and his share in the Mitakshara coparcenary property would devolve only by intestacy and not by survivorship.
The Hon’ble Supreme Court further held that on the conjoint reading of Sections-4, 8 and 19 of the Hindu Succession Act, in a case of a Hindu male coparcener who is governed by Section 6 proviso and after the joint Hindu family property has been distributed in accordance with Section 8, on principles of intestacy, the joint Hindu family property ceases to be joint family property in the hands of various coparceners and they hold the property as tenants in common and not as joint tenants as contemplated under Section 19 of the Hindu Succession Act. In view of the law laid down by the Hon’ble Supreme Court in Uttam versus Saubhag Singh it was finally held that since the ancestral property had ceased to be a joint family property on the date of death of Jagannath Singh, the other coparceners and the widow of Jagannath Singh held the property as tenants in common and not as joint tenants as contemplated under Section 19 of the Hindu Succession Act and the Plaintiff, who was born in 1977, was held to be not entitled to claim any share in such property and thus the Suit was dismissed.
In the year 2005 the Hindu Succession Act, 1956 was amended. Consequently Section 6 of the Hindu Succession Act, 1956 was also amended and as per the amended Section-6, daughters were given equal rights by birth as coparceners in the Mitakshara coparcenary existing on the date of amendment. Thus, daughters were treated as coparceners at par with the sons after the amendment to Section 6 was carried out in the year 2005.
A proviso was also added to Section 6 (1) of the amended provision which contemplates that nothing contained in the amended provision shall affect or invalidate any disposition or alienation including any partition or testamentary disposition which has taken placed before 20.12.2004.
Section 6 (3) which was added by the amendment of 2005 contemplates that if a male Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the joint family property shall devolve by testamentary or interstate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition has taken place.
Also, an explanation was added to Section 6 (3) which is similar to Explanation-1 of unamended Section 6 of the Act.
The Hon’ble Supreme Court in the case of “Vineeta Sharma vs. Rakesh Sharma and others” reported in MANU/SC/0582/2020, had the occasion to interpret Section 6 of the un-amended Act as well as Section 6 of the amended Act. The full bench of the Hon’ble Supreme Court firstly held that even if a coparcener had left behind a female Class-1 heir or a male claiming through such female Class-1 legal heir, as contemplated under the proviso to un-amended Section 6, there is no disruption of the coparcenary by statutory notional partition. It was held that the fiction as created by Explanation-1 of the unamended Section-6 is only for settlement of the share of the deceased coparcener which would have been allotted to him if actual partition would have occurred.
The concept of notional partition, as contemplated under Explanation-1 of the un-amended Section 6, was only for a limited purpose to give effect to the said Explanation. Such notional partition would not bring an end to the coparcenary which would continue since the coparcenary continues by birth and cannot be brought to an end by such notional partition or such an event as provided under the proviso to the un-amended Section 6 or Explanation-1 of the un-amended Section 6 of the Hindu Succession Act, 1956.
The Hon’ble Supreme Court in the subsequent judgment of Vineeta Sharma did not consider the judgment passed by the Hon’ble Supreme Court in the case of Uttam versus Saubhag Singh. However, Vineeta Sharma being a judgment of the Full Bench of the Hon’ble Supreme Court impliedly over-ruled the dicta laid down in Uttam versus Saubhag.
What is the status of a Mitakshara coparcenary after the amendment of the Hindu Succession Act in the year 2005? Section 6 (3) of the amended Act clearly contemplates that if a Hindu coparcener dies after coming into force of the amended Hindu Succession Act in 2005, his interest in the joint Hindu family property shall devolve by testamentary or interstate succession, as case may be, and not by survivorship. Thus, the amended Act clearly abrogates the concept of ‘survivorship’ as was known to the ancient Hindu Law by amending Section 6 of the Hindu Succession Act in 2005.
This has been held by the Hon’ble Supreme Court in the case of “Vineeta Sharma vs. Rakesh Sharma and others” wherein the Hon’ble Supreme Court has held that “Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 09.09.2005 by Section 6 (3)”.
The next question which poses itself is as to what happens if a coparcener dies after the commencement of the Hindu Succession Amendment Act, 2005. A bare reading of Section 6 (3) of the amended Act, along with Explanation to the said sub-section, it is abundantly clear that after coming into force of the Hindu Succession (Amendment) Act, 2005, partition is deemed to have occurred on the demise of the coparcener and the same is irrevocable.
Thus, in the amended Section-6 of the Hindu Succession Act, the following changes were made:-
- Daughters were given equal coparcenary rights as sons in the HUF.
- In Section 6 (3), the word ‘survivorship’ was replaced by “intestate” or “testamentary”. Thus, the mode of devolution/succession is to be governed by Section 8 and Section 30 of the Hindu Succession Act after the amendment. “Survivorship” as a mode of Succession has been abrogated w.e.f. 09.09.2005.
- If a coparcener dies after amendment of 2005, the coparcenary property is deemed to have been divided as if a partition had taken place. Thus, the joint Hindu family property ceases to be joint family property in the hands of the various coparceners and they hold the property as tenants in common and not as joint tenants as contemplated under Section 19 of the Hindu Succession Act.
Section 19 (b) of the Hindu Succession Act was never amended by the amendment of 2005. Section 19 (b) clearly stipulates that two or more Class-I legal heirs of the deceased Hindu would take the property as “tenants-in-common” and not as a “joint-tenants”. If Section 19 (b) is applied with full force to intestate succession, as contemplated under Section 6 (3) of the Amended Act, the result would be that the deemed partition, as contemplated under Section-6 (3) does not require actual division of the property by metes and bounds. Infact, the shares of “tenants-in-common” is well recognised in Hindu law wherein the share of a deceased male Hindu devolves on his legal heirs in terms of Section 8 of the Hindu Succession Act and the heirs become absolute owners of such share in their individual capacity. Judgements of “Commissioner of Wealth Tax Kanpur Vs. Chander Sen” reported in “(1986) 3 SCC 567” and “Yudhishter vs. Ashok Kumar” reported in “(1987) 1 SCC 204” can be referred to.
In view of the amendment being carried out in Section 6 to the Hindu Succession Act, the concept of ‘survivorship’ as a mode of succession, which was the basis of the Mitakshara coparcenary, has finally been abrogated. It would be relevant to also refer to the Law Commission of India’s 174th report which led to the amendment being carried out in Section 6 of the Hindu Succession Act, 1956. The Law Commission Report first noticed that all property laws had bestowed benefits exclusively in favour of the Hindu males and Hindu females had, under the old Hindu law been discriminated against. This has resulted in treating women as subservient and totally dependent on men for property rights. When a woman is unmarried, she is dependent on her father and when she is married, she is dependent on her husband, for property rights.
The Law Commission while recommending amendments in the Hindu Succession Act, 1956 duly took into consideration the various State Amendments to the Hindu Succession Act, 1956, which had already been carried out. Five States in India viz. Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka had duly carried out the amendments with respect to the rights of the daughters in the Mitakshara coparcenary property. While States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka had given equal rights to daughters in the Mitakshara coparcenary property, the State of Kerala, however, abolished the Joint Hindu Family system altogether, including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. Thus, in the State of Kerala all the coparceners would no longer be joint tenants but would enjoy the Joint Hindu Family property as tenants-in-common.
The Law Commission in its 174th Report, after considering all the aspects, recommended that first the daughters be made coparceners and be given same rights as sons in the Mitakshara coparcenary property. Once, daughters are made coparceners in the Mitakshara coparcenary, they would have same share in the Mitakshara coparcenary property on partition or on the demise of a male coparcener, after which daughters as well as the sons would enjoy the Mitakshara coparcenary property as tenants-in-common with the sons. Thus, Mitakshara coparcenary property thereafter would cease to exist.
Thus, after the 2005 Amendment in the Hindu Succession Act, 1956, it has brought an end and has virtually abolished the system of inheritance by ‘survivorship’ and in turn has abolished the Joint Hindu Family system.
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