Devolution of Interest in a Mitakshara Coparcenary

The four steps

Step one. Identify the coparcenary immediately before the death. List every coparcener: the deceased, his sons, his daughters, and any grandsons or granddaughters in the line who are within four degrees. Remember that since 2005 daughters are coparceners.

Step two. Assume a partition and allot shares. Divide the coparcenary property equally among those coparceners. Clauses (a), (b) and (c) tell you what to do with pre-deceased children's branches. The share that falls to the deceased is his interest.

Step three. Distribute that interest among his heirs. If he left a will, according to the will; if not, under sections 8 to 13, which means Class I first. His widow, mother, sons and daughters are all Class I heirs.

Step four. Leave everybody else's notional share alone. The other coparceners keep the shares the notional partition gave them, and those shares are theirs.

The notional partition is a measuring device and nothing more. It does not actually break up the family. Vineeta Sharma says so of the corresponding fiction in the old section 6: the fiction did not bring about an actual partition or disruption of the coparcenary, and was only for the purpose of ascertaining the share.

A worked example

Example 1: the standard case

A coparcenary consists of F, his son S and his daughter D. F dies intestate leaving his widow W, S and D.

Step one. Three coparceners: F, S, D.

Step two. Each takes one third on the notional partition. F's interest is one third.

Step three. That one third goes to W, S and D as Class I heirs, equally: one ninth each.

Step four. S keeps his own one third, D keeps hers.

Final: S has one third plus one ninth, which is four ninths. D has four ninths. W has one ninth.

Notice how much difference the 2005 amendment makes to that answer. Before it, D was not a coparcener at all, so the notional partition would have been between F and S alone, F's interest would have been one half, and D would have taken only a Class I share of that half.

Example 2: a pre-deceased son

A coparcenary of F, son S1, and son S2 who has pre-deceased F leaving a son GS. F dies leaving widow W and S1.

Step one. On the notional partition the branches are F, S1, and the branch of the pre-deceased S2.

Step two. Three shares of one third. F's interest is one third; S1 takes one third; GS takes S2's one third under clause (b).

Step three. F's one third goes to his Class I heirs. W and S1 take it, and GS is also a Class I heir as the son of a pre-deceased son. Their branch shares are worked out under section 10.

Example 3: the sole surviving coparcener

Where the deceased was the only coparcener, there is no coparcenary property to divide notionally: the property is his separate property, and sections 8 to 13 apply directly, with no section 6 question at all.

The children of a void marriage

Revanasiddappa v. Mallikarjun, 2023 INSC 783, decided on 1 September 2023, joins this chapter to [Void and Voidable Marriages, and the Legitimacy of Their Children].

Facts. A reference to a three-judge Bench on what section 16 of the Hindu Marriage Act gives a child of a void or annulled marriage, and in particular whether such a child can claim in the coparcenary property of a Mitakshara joint family of which the parent was a member.

Held. A child conferred with legitimacy by section 16(1) or (2) is entitled to a share in the property of the parents, and by section 16(3) to no rights in the property of any person other than the parents. Where the parent was a coparcener, the parent's share is ascertained by the notional partition the Hindu Succession Act mandates, that is, by assuming a partition of the coparcenary property immediately before the coparcener's death; once that share is ascertained, the heirs, including the children legitimated by section 16, take their share in it. The provisions of the Hindu Succession Act must be harmonised with section 16(3). The Court expressly confined the reference to joint families governed by Mitakshara law.

Why it matters here. It fixes exactly where such a child enters the calculation: at step three, not at step one. The child does not become a coparcener and takes nothing on the notional partition itself. He or she shares in the parent's interest, along with the other heirs.

Section 7: the matrilineal families

Section 7 does the same job for the matrilineal systems, and its differences are set out in [The Matrilineal Joint Family]. In outline:

Section 7(1) applies to a Hindu governed by the marumakkattayam or nambudri law dying with an interest in the property of a tarwad, tavazhi or illom; the interest devolves by testamentary or intestate succession under this Act and not by that law, and is measured by a notional partition per capita among all the members then living.

Section 7(2) does the same for the aliyasantana law and the kutumba or kavaru.

Section 7(3) deals with the sthanamdar, dividing the sthanam property per capita among himself and all the members of his family, the shares being held as their separate property.

The difference to name is that section 6's notional partition is among coparceners and section 7's is per capita among all members.

What it does NOT mean

Section 6(3) does not abolish survivorship for every death. It applies to a coparcener dying after 9 September 2005; deaths before that date are governed by the earlier regimes.

The notional partition is not a real partition. It measures a share, and the family is not disrupted by it.

It does not depend on the deceased being able to claim a partition. The words are "whether he was entitled to claim partition or not".

The other coparceners are not divested. They keep their notional shares; only the deceased's measured interest passes to his heirs.

A daughter's share at the notional partition is not a concession. After the 2005 amendment she takes as a coparcener, the same share as a son.

A child legitimated by section 16 of the Hindu Marriage Act does not become a coparcener. On Revanasiddappa the child enters at the distribution of the parent's notional-partition share.

Section 7 does not work like section 6. For the tarwad, kutumba and illom the interest is measured by a per capita partition among all the members.

Quick revision

• Why a special rule: a coparcener's interest fluctuates and, under the classical law, passed by survivorship rather than by inheritance.
• The three regimes: the classical rule; the proviso to the old section 6, which let the interest devolve by succession where the deceased left a female Class I heir or a claimant through one; and, for deaths after 9 September 2005, section 6(3).
• s.6(3): on the death of a coparcener his interest devolves by testamentary or intestate succession and not by survivorship, the coparcenary property being deemed to have been divided as if a partition had taken place.
• The four steps: assume a partition immediately before the death, whether or not he could have claimed one; give the daughter a son's share and each pre-deceased child's branch its share; that measured interest is his estate; and it passes under ss.8 to 13 or by his will.
• Children of a void marriage: Revanasiddappa holds that a child legitimated by s.16 of the Hindu Marriage Act shares in the parent's property, entering at the distribution of the notional-partition share, never as a coparcener; the Court confined the reference to Mitakshara joint families.
• s.7: the same idea for the marumakkattayam tarwad or tavazhi, the aliyasantana kutumba or kavaru, and the nambudri illom, but by a per capita partition among all the members.

Test yourself

1. What does section 6(3) do, and from what date? For a Hindu dying after 9 September 2005 who had an interest in Mitakshara coparcenary property, the interest devolves by testamentary or intestate succession and not by survivorship, and the coparcenary property is deemed to have been divided as if a partition had taken place.

2. How is the deceased's interest measured? By a notional partition assumed to have taken place immediately before his death, whether or not he was entitled to claim partition. At that partition a daughter is allotted the same share as a son, and the share a pre-deceased son or daughter would have received goes to his or her surviving children.

3. Does the notional partition break up the joint family? No. It is a fiction used only to measure the share that devolves; the other coparceners retain their positions and the family continues.

4. Can a child of a void marriage become a coparcener? No. On Revanasiddappa, a child legitimated by section 16 of the Hindu Marriage Act is entitled to a share in the property of the parents, and where the parent was a coparcener the route is through the parent's notional-partition share; section 16(3) confines the child to the property of the parents.