Old Mitakshara law gave coparcenary rights only to male Hindu members of a joint family till third generation from the last holder of property. All the coparceners acquire interest in ancestral property by birth and also acquire the right to seek partition. Partition means bringing title joint status to an end. Before which ascertaining individual shares in the joint Hindu property is impossible.
Under the Mitakshara school, partition means two things:
(i) Severance of status or interest, and
(ii) Actual division of property in accordance with the shares so specified, known as partition by metes and bounds.
After 2005 Amendment Act, the exclusion of daughters from participating in coparcenary property ownership merely by reason of sex was unjust. Therefore, this Amending Act gives full-fledged property rights to daughters in ancestral property along with sons.
The proviso will not apply if there had been a partition before the death of the coparcener. Under the law, after the death of the deceased the interest devolves upon the surviving coparceners, but what is this interest? This can only be ascertained by the partition. So here comes the concept of Notional Partition, given in Explanation 1 of Section 6 before amendment. Death of a coparcener leaving behind a female does not mean automatic partition among heirs. It is meant for a specific purpose and it should be confined within the framework of the purpose. The notional partition is not a real partition. It neither affects a severance of status nor does it demarcate the interest of the other coparceners or of those who are entitled to a share on partition. It has to be used to demarcate the interest of the deceased coparcener. Shares are to be allotted (though nominally) to all persons who would have been entitled to a share on a real partition. On the basis of this allotment, we get the share of the deceased coparcener. For example, A Mitakshara joint family consists of A, his two sons B and C and a son BS and a daughter BD of B.
Suppose B dies. Since he leaves behind BD, a female in Class I, his interest will devolve by succession. If partition had taken place during B's lifetime, he would have got ⅙ share. A will get ⅓, C will get ⅓ and B's branch will get ⅓. Since the daughter does not take a share, on partition, B and BS will take ½ of ⅓ i.e., ⅙ each. After demarcating B's share, we forget about the partition and note that B is dead and his ⅙ interest as demarcated by the notional partition will go by succession.
To divide ⅙ among B's heir in accordance with the Hindu Succession Act, 1956 BS and BD are his son and daughter who are in class I heir. Thus, ⅙ of B will go to BS and BD who will take one share each, i.e., each will take 1/12.
When a notional partition is made, all rules of the partition are applied as if it is a real partition. When that is done, we would keep the track, and remember that a notional partition is a fictional partition in which no one gets any share. Actually, its purpose is to demarcate the share of the deceased coparcener. Once we demarcate a deceased share, we have to remember what his share is, and we should forget what shares were allotted to others, as others do not in fact get any share. Notional partition does not change the character of ancestral property, after deciding the deceased share remaining survivors hold it as joint Hindu property. Though several recent judgments upheld this notion, the contrary that the property becomes separate property laid down in Uttam v Saubhag Singh (2016) has been criticised but not overruled.
CASES TO BE REFERRED
The notional partition as contemplated in S. 6 does not amount to an automatic statutory partition; nor does severance of status take place on the death of the coparcener.
The fiction of notional partition is used as a mere device to find out the share of the deceased coparcener and it should be confined to that, laid down in Gurupad v. Hirabai.
Rajrani v. Chief Settlement Commr, follows Gurupad Case. P, a Mitakshara coparcener died leaving behind his widow W, three sons. A, B and C and three daughters, X, Y, Z. In notional partition, P would get one-fifth share. This will go in equal shares to W, A, B, C, X, Y and Z each taking one-thirty-fifth. W's share will be one-fifth plus one thirty fifth, i.e., 8/35.
In Neelawa v. Bhimawa, P, a coparcener died leaving behind his mother M and his widow W. Thereafter, W adopted X as her son. X sued for partition and claimed one-half share. The court allowed him only one-fourth. The decision is correct. On the death of P, M and W each will take one-half. When W adopted X, he became a member of the joint family with his adoptive mother W in this one-half share, and therefore in a partition against his mother, he can claim only one-fourth.
In State of Maharashtra vs Narayan Rao, the Supreme Court carefully considered the above decision in Gurupad’s case and pointed out that Gurupad’s case ‘has been treated as authority (only) for the position that when a female member who inherits an interest in the joint family property under s 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation I to s 6 of the Act.”
Partition as a right is available only for ancestral property and not for separate/self-acquired property.
And though real partition does clarify individual share in coparcenary property, notional/deemed partition only specify deceased share in the property for further devolution. When partition happens either by metes and bounds or severance of status, the nature of ancestral property changes to separate property, unlike in notional partition. Notional partition, unlike real partition, happens as an operation of law not by a matter of choice. In all, notional partition is very much real but has a definitive purpose and cannot go beyond that. Every share allotted other than that of the deceased is like a mirage in a desert.
This article is written by Vanshika Gupta of Campus Law Centre, University of Delhi.