Devolution of Interest in a Mitakshara Coparcenary

In one line

When a coparcener dies, you pretend the family divided the day before, take the share that would have fallen to him, and distribute that share among his heirs like any other property.

Why a special rule is needed at all

Sections 8 to 13 tell you how a Hindu male's property devolves. They cannot operate on a coparcenary interest without help, for a simple reason: a coparcener does not own a share. His interest is undivided, unascertained and fluctuating, as [Mitakshara Coparcenary: Formation and Incidents] explains. There is nothing definite for the heirs to take.

Section 6 solves that by inventing a partition. Assume the family divided immediately before the death; the share that would have fallen to the deceased is his "interest"; and that interest then devolves under the ordinary rules.

The three regimes, in date order

An answer must be able to say which rule applies to a death, and there have been three.

Before 1956: survivorship. The interest passed to the surviving coparceners and the widow and daughters took nothing from it.

From 1956 to 8 September 2005: survivorship, with a proviso. The original section 6 kept survivorship as the rule, but provided that if the deceased left a female relative specified in Class I, or a male relative claiming through such a female, his interest devolved by testamentary or intestate succession instead. The Explanation supplied the notional partition to measure it.

From 9 September 2005: succession. The substituted section 6(3) abolishes survivorship for this purpose altogether. Where a Hindu dies after the commencement of the 2005 Act, his interest devolves by testamentary or intestate succession under the Act and not by survivorship, in every case, whether or not any female relative survives him.

Section 6(3): the rule and the notional partition

Section 6(3) provides that where a Hindu dies after the commencement of the 2005 Act, his interest in the property of a joint Hindu family governed by Mitakshara law shall devolve by testamentary or intestate succession 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, and:

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of a pre-deceased son or pre-deceased daughter, as they would have got had they been alive at the time of the partition, is allotted to their surviving child; and

(c) the share of a pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as that child would have got, is allotted to that child's child.

The Explanation provides that the interest of a Hindu Mitakshara coparcener is 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.