Section 6: Devolution of Interest in Coparcenary Property

Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, decided on 11 August 2020.

Facts. A reference to a three-judge Bench of the Supreme Court to settle those conflicting decisions.

Held. Answering the reference at paragraph 129:

(i) the substituted section 6 confers the status of coparcener on the daughter born before or after the amendment in the same manner as a son, with the same rights and liabilities;

(ii) the rights can be claimed by the daughter born earlier with effect from 9 September 2005, with the savings in section 6(1) as to dispositions, alienations, partitions or testamentary dispositions which had taken place before 20 December 2004;

(iii) since the right in coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9 September 2005;

(iv) the statutory fiction of partition created by the proviso to the unamended section 6 did not bring about an actual partition or disruption of the coparcenary; the fiction was only for ascertaining the share of a deceased coparcener survived by a Class I female heir, and the substituted section must be given full effect, so that notwithstanding a preliminary decree the daughters are to be given a share equal to a son's in pending final-decree proceedings or on appeal; and

(v) because of the Explanation to section 6(5), a plea of oral partition cannot be accepted, the recognised modes being a registered deed of partition or a decree of court, though in exceptional cases an oral partition supported by public documents and finally evinced as if effected by a decree may be accepted; a plea based on oral evidence alone is to be rejected outright.

The Court overruled Prakash v. Phulavati and Mangammal v. T. B. Raju, and partly overruled Danamma alias Suman Surpur v. Amar to the extent it was contrary.

Why it matters here. Point (iii) is the holding, and it is the one to write first. Points (iv) and (v) are the two that decide pending litigation: an old preliminary decree does not shut a daughter out, and a claimed oral partition will not either.

Sub-section (3): the end of survivorship, 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 daughter, as that child would have got had he or she been alive, is allotted to that child's child.

The Explanation provides 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 had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

The notional partition, worked

This is the single most useful piece of arithmetic in the subject, and it should be practised.

Step one: identify the coparcenary on the day before the death. Everyone who was a coparcener, sons and daughters alike.

Step two: assume a partition immediately before the death. Divide the coparcenary property among them equally, and give the deceased his share. That share is his "interest".

Step three: distribute that share by succession, under sections 8 to 13 of the Act if he died intestate, or under his will if he made one. His widow, mother, sons and daughters take as Class I heirs.

Step four: the other coparceners keep their own notional shares, which are theirs outright.

A worked example. A coparcenary consists of a father F, his son S and his daughter D. F dies intestate leaving a widow W, S and D. On the notional partition there are three coparceners, so each takes one third; F's interest is one third. That one third then devolves on W, S and D as Class I heirs, one ninth each. S therefore ends with one third plus one ninth, and D with the same, and W with one ninth.

Notice what the notional partition does not do. It does not actually break up the family, and it does not give anybody a right to possession of a defined piece of land. Vineeta Sharma point (iv) says so about the old fiction, and the same is true here: it is a device for measuring a share.

Sub-section (5): partitions before 20 December 2004

Section 6(5) provides that nothing in the section applies to a partition effected before 20 December 2004.

The Explanation defines partition for the purposes of the section as any partition made by execution of a deed of partition duly registered under the Registration Act 1908, or a partition effected by a decree of a court.

Two dates appear in section 6 and they are not the same. 9 September 2005 is when the Act commenced and when a daughter's rights may be claimed. 20 December 2004 is the cut-off for a saved partition or disposition, and it is the date the Bill was introduced, chosen so that families could not defeat the reform by partitioning while it was in Parliament.

The Explanation is what Vineeta Sharma point (v) enforces: an oral partition is not a partition for this section, because it is neither a registered deed nor a decree.

Sub-section (4): the pious obligation

Dealt with in [Debts: the Doctrine of Pious Obligation and Antecedent Debt]. In outline, no court may recognise a claim against a son, grandson or great-grandson founded solely on the pious obligation, for any debt contracted on or after 9 September 2005, while debts contracted before that date and alienations made for them are wholly preserved.

What section 6 leaves of the classical coparcenary

Worth a closing paragraph, because MU may ask what remains.

What survives. The right by birth. The four degrees. Community of interest and unity of possession. The fluctuating share. The karta. The right to demand partition. The rules on alienation.

What has gone. Survivorship as the mode of devolution. The exclusion of daughters. The pious obligation for new debts. And, in practice, the oral partition.

A worked example

A Mitakshara family: father F, sons S1 and S2, daughter D born 1975 and married 1998. F died on 1 January 2004. In 1999 the brothers claimed there had been an oral partition. D now sues for a coparcener's share.

Is D a coparcener? Section 6(1) makes a daughter a coparcener by birth in her own right in the same manner as a son, with the same rights and liabilities.

Does it matter that F died in 2004, before 9 September 2005? No. On Vineeta Sharma the right is by birth, so the father need not have been alive on the date of commencement.

Does her marriage in 1998 matter? No. The section makes her a coparcener without reference to her marriage.

What about the oral partition of 1999? Section 6(5) saves only a partition effected before 20 December 2004, and its Explanation requires a registered deed or a decree of a court. Vineeta Sharma confirms that an oral partition will not be accepted, though a plea of partition may in a very rare case be supported by other public documents.

Is anything else saved? The proviso to section 6(1) saves a disposition or alienation, including a partition or testamentary disposition, made before 20 December 2004.

How is F's interest worked out? F died before 9 September 2005, so section 6(3) does not govern; the old law and the proviso to the old section 6 apply. For a death after that date, section 6(3) replaces survivorship with succession, worked through a notional partition immediately before the death at which a daughter takes a son's share.

Can D will away her share? Yes. Section 6(2): property to which she becomes entitled by section 6(1) is held by her with the incidents of coparcenary ownership and is capable of being disposed of by testamentary disposition.

Could a creditor pursue S1's son for S1's 2010 debt? No. Section 6(4) abolished the pious obligation for debts contracted after commencement.

What it does NOT mean

Section 6(1) does not apply to Dayabhaga families. It reforms the Mitakshara coparcenary.

It does not depend on the father being alive in 2005. Vineeta Sharma settled that, because the right is by birth.

It does not disturb a pre-2004 disposition. The proviso saves any disposition or alienation, including a partition or testamentary disposition, made before 20 December 2004.

Section 6(5) does not save an oral partition. The Explanation requires a registered deed or a decree.

Section 6(3) does not divide the family. The partition it assumes is notional, used to measure the interest that devolves.

Section 6(4) does not release the debtor himself. It bars proceeding against the descendant solely on the pious obligation.

Section 6 does not abolish the coparcenary. Interest by birth, community of interest and unity of possession, the fluctuating share, and the right to demand partition all survive; only survivorship has gone.

Quick revision

• s.6(1): in a Mitakshara family, a daughter is a coparcener by birth in her own right in the same manner as a son, with the same rights and liabilities; the proviso saves any disposition or alienation, including a partition or testamentary disposition, made before 20 December 2004.
• s.6(2): her property is held with the incidents of coparcenary ownership and may be disposed of by will.
• s.6(3): on a death after 9 September 2005 the interest devolves by testamentary or intestate succession and not by survivorship, worked through a notional partition immediately before the death, at which a daughter takes a son's share and a pre-deceased child's children take their parent's share.
• s.6(4): the pious obligation is abolished for debts contracted after commencement, saving debts contracted before and alienations for them.
• s.6(5): nothing in the section applies to a partition effected before 20 December 2004; by the Explanation, "partition" means one by a registered deed or by a decree of a court.
• Vineeta Sharma: the right is by birth; the old statutory fiction did not disrupt the coparcenary; an oral partition is not accepted.

Test yourself

1. What does section 6(1) provide? That in a joint Hindu family governed by Mitakshara law, on and from the commencement of the Amendment Act of 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son, shall have the same rights in the coparcenary property as she would have had if she had been a son, and shall be subject to the same liabilities.

2. Must the father have been alive on 9 September 2005 for a daughter to claim? No. In Vineeta Sharma v. Rakesh Sharma the Supreme Court held that the right is conferred by birth, so it does not matter whether the father coparcener was living on that date.

3. What partitions are saved by section 6(5)? Only a partition effected before 20 December 2004, and by the Explanation "partition" means a partition made by execution of a deed of partition duly registered under the Registration Act 1908, or a partition effected by a decree of a court.

4. How is the interest of a deceased coparcener measured under section 6(3)? By a notional partition assumed to have taken place immediately before his death, whether or not he was entitled to claim partition, at which the daughter is allotted the same share as a son and the share a pre-deceased child would have received goes to that child's surviving children.