CRITICAL ANALYSIS OF SEC.

6 OF HINDU SUCCESSION ACT, 1956 AS

AMENDED BY ACT 39 OF 2005.

“The joint and undivided family is the normal condition of a Hindu society.
An undivided Hindu family is ordinarily joint not only in estate but in food
and worship but it is not necessary that a joint family should own joint
family property. There can be a joint family without a joint family property.”

Mayne on Hindu Law

Before examining the implications of Section 6 of the Hindu Succession Act

[HSA] it is necessary to recapitulate the basic principles governing the two

schools of Hindu Law viz., the Mitakshara and Dayabhaga.

S No Mitakshara Dayabhaga

1. Right of partition is available to every co- Right of partition accrues

parcener only after the death of the
owner
2. Share of each co-parcener fluctuates, Share of each co-parcener
decreasing with births and increasing is fixed and does not
with deaths fluctuate.
3. Upon division in status, the share Partition can only be in the
becomes fixed. Physical division is not form of division by metes
essential. and bounds.
4. Recognition of unobstructed heritage
(aparathibanda Daya).
5. Other relations not directly connected to
the common ancestor have an
obstructed heritage (saparathibanda
daya)
6 The descendants can at any time
demand for division/partition
7 There is community of interest and unity
of possession in a coparcenary
8 The rights of the Karta to alienate the
property is limited to necessity. Under
other circumstances, the consent of the
coparceners is essential
9 The interest of the deceased member
lapses to the surviving coparceners.

It is also necessary to notice the import of various terms such as “joint hindu

family”, “Hindu joint family” and co-parcenary are a recurring theme in this

branch of the law.

i. A HINDU JOINT FAMILY :

(Composition): A joint family may consist of female members. It may

consist of a male member, his wife, his mother and his unmarried

daughters. A joint family may consist of a single male member and his wife

and daughters. It is not necessary that there should be two male members

to constitute a joint family.

 (Proprietary Rights): The property of a joint family does not cease to

belong to the family merely because there is only a single male member in

the family. While under the Mitakshara Hindu law there is community of

ownership and unity of possession of joint family property with all the

members of the coparcenary, in a coparcenary governed by the Dayabhaga

law, as stated supra, there is no unity of ownership of coparcenary

property with the members thereof. Every coparcener takes a defined

share in the property and the property and he is the owner of that share.

But there is, however, unity of possession. The share does not fluctuate

by births and deaths. Thus it is seen that the recognition of the right to a

definite share does not militate against the owners of the property being

treated as belonging to a family in the Dayabhaga law.

ii. CO-PARCENARY:

In a Joint Hindu Family, the male members are called co-parceners or co-

sharers in the property of the Joint Hindu Family. The property of the Joint

Hindu Family belongs, to the co-parceners as owners and the female

members of the family only have a right to maintenance during their

lifetime and in case of unmarried daughters-also a claim for their marriage

expenses. Co-parcenary is, in other words, an inner cabinet of the Hindu

Joint family capable of holding the joint family property for themselves and

for the benefit of the other members of the joint family 1

The interest of each coparcener is a fluctuating interest, the deaths may

augment it, births may diminish it. Thus there is a community of interest

and unity of possession between all the members of the family and upon

the death of any one of them the others will take by survivorship that in

which they had during the deceased's lifetime a common interest and

common possession2. The true theory of Sapinda relationship is based on

the community of blood Ramachandra vinayak 42 Cal 384( PC).

Coparcenary is not the creation of the statute nor an agreement between

1
Nandkishor v. Sakti Dibya, AIR 1953 Orissa 240; Moro Vishwanath v. GenesliVithal, (1873) 10
Bom. H.C. 444.
2KatamaNachiar v Rajah of Shivganga, 1863 9 MIA 539
 the parties (vide Bhagawan Dayal AIR 1962 SC 287). It is a status acquired

by birth (See AIR 1967 SC 272, AIR 1976 SC 109).

(Composition) A Hindu coparcenary is a narrower body than the joint

family. Only males who acquire by birth an interest in the joint or

coparcenary property can be members of the coparcenary or coparceners.

A male member of a joint family and his sons, grandsons and great

grandsons constitute a coparcenary.[Three generations of unbroken male

descent]

(Proprietary Rights) A coparcener acquires right in the coparcenary

property by birth but his right can be definitely ascertained only when a

partition takes place. When the family is joint, the extent of the share of a

coparcener cannot be definitely predicated since it is always capable of

fluctuating. It increases by the death of a coparcener and decreases on the

birth of a coparcener

iii. ANCESTRAL PROPERTY UNDER THE MITAKSHARA SCHOOL

No proposition of Hindu law is so well settled than the one which lays down

that when a Mitakshara Hindu male succeeds to the property of his father,

father's father or father's father's father [three degrees up], he takes it as

ancestral property and his son, son's son and son's son's son [three

degrees down] acquire an interest in it by birth. Aprathibanda daya, or

unobstructed heritage is the technical meaning of ancestral property

under the Mitakshara school. Property inherited from any ancestor or

ancestress other than father, father's father and father's father's father is

not ancestral property. ( Obstructed heritage)

HINDU LAW OF INHERITANCE ACT 1929 AND

WOMENS RIGHT TO PROPERTY ACT 1937

i. The Hindu Law of Inheritance (Amendment) Act (II of 1929) came into force

on 21.02.1929, and created an important change in the order of

succession when a Hindu male died intestate.

 ii. According to the amended Act son's daughter, daughter's daughter, sister,

and sister's son who are not Sapindas at all are entitled to succeed in the

order given above immediately after the father's father and before the

father's brother. The necessity for making such a change is stated in the

Objects and Reasons to be that the Act is intended to rectify a glaring

injustice to one's nearest relations in matters of inheritance. The glaring

omission in this Act was that the widow of the deceased Hindu was given

nothing. This lacuna was fixed with the enactment of the Women’s Right

to Property Act, 1937. Shortly stated, the Act applied to three classes of

widows : intestate’s widow, pre-deceased son’s widow and widow of the

pre-deceased son of a pre-deceased son. The intended object of the Act

was pithily captured by Varadachariar, J RM. AR. AR. RM. AR. AR. Umayal

Achi v. Lakshmi Achi3in the following words:

“It is true, as the preamble enacts that the measure was intended “to give
better rights to women.” But it must be remembered that the Act was not a
codifying Act or even a general amendment of the Hindu Law of Inheritance.
It will help us to ascertain the precise scope of the Act, if we can ascertain
the defects which it set out to remedy. Even under the ordinary Hindu Law,
a widow would in certain circumstances have succeeded to the property
held by her husband as the last surviving coparcener or as the holder of a
share obtained on partition. By themselves, these cases did not call for
the interference of the legislature. It is only if the owner had sons
(including in that term, grandsons and great grandsons) that the
widow would be excluded by the sons. Legislative interference was
therefore required to obviate hardship when the owner left a widow
as well as sons.”

iii. Under Section 3, widows of a deceased Hindu were given the same right

as that of a son in the separate property of the deceased Hindu. Same

rights were given to the widow of a pre-deceased son. The aforesaid section

was to prevail over any rule of Hindu law or custom to the contrary (vide

Section 2).

iv. In the case of a widow of a member of a Mitakshara coparcenary she

virtually steps into the shoes of her husband and is entitled to claim a

separation and delivery to her of his share both as against his sons and as

against his other coparceners, whether they be ascendants, descendants

or collaterals of her husband. Her existence suspends the rule of

survivorship as to the deceased's interest but the rule continues to operate

3(1945) 7 FCR 1 : AIR 1945 FC 25

 qua the other coparceners and their interest as also the interest of the

widow is liable to fluctuate by births and deaths in the coparcenary as

before subject only to her statutory right. (Section 3(2)).

v. It is also important to take note of the fact that the 1937 Act did not

elevate the widow to the status of a co-parcener. The widow, however, did

not have an absolute interest. She had a limited life interest which was

alluded to as the Hindu Women’s Estate. The true effect was again

summarised by Varadachariar, J in RM. AR. AR. RM. AR. AR. Umayal Achi

v. Lakshmi Achi4wherein it was held under :

“The widow was certainly not intended to become a coparcener with her
husband even during his lifetime. The Act of course intended to redress the
widow's disabilities even in such a case; but that redress is provided by
sub-s. (2) and not by sub-s. (1) of s. 3. When the sons become coparceners
with their father in property which was originally held by him as sole
surviving coparcener or as his share obtained on partition, the father and
the sons become a joint family within the meaning of sub-s. (2) and when
the father dies his widow will under sub-s. (2) get his share.”

vi. The Hindu Succession Bill was moved before the Lok Sabha on 13.12.1955

after it had been passed by the Rajya Sabha. Prior to that the Bill had been

referred to a Joint Standing Committee for consideration. Moving the Bill,

Shri H.V Pataskar illuminates the real purpose of Section 6 of the Hindu

Succession Act. Had this speech been carefully studied and appreciated

many of the unfortunate errors that Courts have unwittingly fallen into

would have been avoided. Speaking on the scope of Section 6, Shri.

Pataskar observes

“For example, the daughter is now made an heir along with the s6n in the
property of the father, but, by this Bill, she gets no immediate interest in
the property of the father unlike the son in the joint Mitakshara
family and will be entitled to share along with the son only after the
death of the father and that too only in respect of the property,
whether separate or joint which he may have left at the time of his
death. I am saying this only with a view to remove a mis-conception either
due to want of proper information regarding this technical matter or fostered
by some who want to do so on political or other grounds.”

4(1945) 7 FCR 1 : AIR 1945 FC 25

Referring to the fictional notional partition to determine the share of the

deceased, Shri Pataskar states that the idea was borrowed from the Estate

Duty Act, 1953

“As hon. Members are aware, when the Estate Duty Act was passed, a
similar question had arisen. Estate duty is a measure of taxation of property
which comes to a person by inheritance. In India, in the case of a large
number of people who are governed by mitakshara system of Hindu
Law, there is no inheritance with respect, at any rate, to the joint
family properties which are held by the families concerned. If all such
properties or any interest in such properties were to be excluded from estate
duty because they devolve by survivorship and not by inheritance, it would
have defeated the very purpose for which the estate duty was proposed to
be levied. It was, therefore, then decided that, for the purpose of this
taxation, the interest of a deceased coparcener should be treated as if his
interest in the coparcenary property has been separated from rest of the
coparcenary property just prior to his death.Following up this precedent, a
similar method has been evolved for the purpose of giving a female heir a
share in the property of the deceased member of a joint Hindu coparcenary;
and just as the purpose of the estate duty could be achieved without
actually disrupting the joint Hindu family governed by the mitakshara
school of law, this Bill has proceeded to give a share to a female heir
on the same basis without necessarily disrupting the joint Hindu
family. This, in short, is the genesis of the scheme underlying clause 6 of
the Bill, which is the most important clause so far as this Bill is concerned”

There is a popular misconception that the on the death of the father the

joint family is automatically severed. This is not even the intended effect

of the Act. This is clear from the following clarification

“Shri V. G. Deshpande: May I know whether automatically after the

death of the father the joint status of the sons would be severed?

Shri Pataskar: No, it will not be.”

Shri Pataskar summarised the effect of the Bill in the following terms:

“(1) By this Bill, the joint family of the mitakshara type is not abolished,
and that is the main difference between this Bill and the provisions of the
lapsed Hindu Code regarding the same.

(2) At the same time, a daughter is given a share in the property of her father
even if he was a coparcener in a joint Hindu family to the same extent as an
undivided son.
 (3) This Bill does not in any way take away the right of any member of a
Hindu coparcenary to get himself separated from the coparcenary.”

vii. It is, therefore, necessary to emphasize that the Act did not intend to end

a co-parcenary. Far from it, the Lok Sabha debates show that the very

basis of the law is the continuation of the joint family and not its

disruption. The only intended effect was to give the female a share from

and out of the share of the deceased co-parcener. This was done by

resorting to a fictional partition ie., a notional partition and then

statutorily directing that the share of the deceased so derived from the

fictional partition was to devolve through Section 8. At the cost of

repetition, it must be emphasized that the character of property in the

hands of the remaining co-parceners are not altered by the implementation

of the Act. It continues to remain a co-parcenary property.

viii. The above discussion leads to the following;

o By enacting the 1956 Act Parliament did not intend to abolish the

concept of coparcenery or a Joint family (Sapinda –related by blood)

and ancestral – Head of the stock and 3 generations (Sapinda =

Pinda offering of a ball of rice. Pinda refers to fetus and a Sapinda is

one who has particles of the same body).

o Joint family is sui generis. It is something exclusive to Hindu society.

It is patriarchal in character. On the other hand, Coparcenary, is a

specie of Joint family. The coparceners have the right of Vibaga (

partition) in the property. The property is called Daya ( heritage).

When we relate Joint family or Coparcenary property, it means the

property belongs to a group with the incidents of ownership. (AIR

1972 All 424).

o Prior to 2005, in the absence of a son there cannot be a coparcenary,

(See Narendranath v wealth tax commissioner, AIR 1970 SC 14.)

THE FIRST ERROR : GURUPAD KHANDAPPA MAGDUM V HARIBAI

KHANAPPA MAGDUM (1978) 3 SCC 383

ix. For the sake of convenience, the unamended Section 6 is broken down by

way of the following chart:

SECTION 6 (PRIOR TO THE 2005 AMENDMENT)

 Death of a Hindu post 17.06.1956

Did the deceased leave behind any

No female relative specified in Class I

No Yes

Will devolve either by intestate

“The Normal Rule” or testamentary succession
Will devolve upon the either under Sections 8 -10 or 30
surviving members of the co- of the Act. Females falling in
parcenary in accordance with the Class I category will get a
Section 6(1) of the Act. Females share in the share allotted to
cannot be coparceners in these the deceased under
cases (AIR 1966 SC 24) Explanation 1

Salient features

a) Applies to “Mitakshara coparcenary” property alone.

b) A separated co-parcener cannot claim the benefit of this Section

(Explanation 2)

c) Explanation 1 imports a legal fiction to determine the share of the

deceased co-parcener. The share of the deceased is computed under this

explanation by importing a legal fiction as though a partition had taken

place just before the death of the deceased.

d) If the property devolves through the proviso to Section 6(1) and

Explanation 1, two questions need to be ascertained: first share of the

wife/or other female specified in Class I in the share of the deceased male

and secondly,the share of the deceased male in the coparcenary

property. The proviso contains the formula for the first question and

Explanation 1 contains the formula for the second question.

e) Applying the formula in the proviso the share of the female in the share of

the deceased male must be worked out in a manner laid down in Sections

8-10 of the Act.

f) The next step is to determine the share of the deceased: which is done by

importing a legal fiction as though a partition had taken place between the

deceased and the other co-parceners just before his demise. The Supreme

Court in GurupadKhandappaMagdum v. HirabaiKhandappaMagdum,

 (1978) 3 SCC 383, terms this exercise as a “notional partition”. In that

case, the claimant was the wife of the deceased. The deceased left behind

his wife, two sons and three daughters. The Court applied the formula and

opined that the share of the wife as per the proviso was 1/6 thie., one share

to each of the surviving Class I heirs (See Sec 10(1) and (2)).

g) Coming to Explanation 1 – Assuming a notional partition had taken place

between the deceased and his two sons- there would have been 4 sharers

ie., one share for the deceased and one share each for the sons and one

share for the wife (as per Hindu Law). The Court concluded that the wife

would be entitled her 1/6th share in the 1/4th share of the deceased’s

property as well as her independent 1/4th share which she would get under

the notional partition. Chandrachud, CJ concluded as under :

“What is therefore required to be assumed is that a partition had in fact

taken place between the deceased and his coparceners immediately before
his death. That assumption, once made, is irrevocable. In other words, the
assumption having been made once for the purpose of ascertaining the
share of the deceased in the coparcenary property, one cannot go back on
that assumption and ascertain the share of the heirs without reference to it.
The assumption which the statute requires to be made that a partition had
in fact taken place must permeate the entire process of ascertainment of the
ultimate share of the heirs, through all its stages. To make the assumption
at the initial stage for the limited purpose of ascertaining the share of the
deceased and then to ignore it for calculating the quantum of the share of
the heirs is truly to permit one's imagination to boggle. All the consequences
which flow from a real partition have to be logically worked out, which
means that the share of the heirs must be ascertained on the basis that they
had separated from one another and had received a share in the partition
which had taken place during the lifetime of the deceased. The allotment of
this share is not a processual step devised merely for the purpose of working
out some other conclusion. It has to be treated and accepted as a concrete
reality, something that cannot be recalled just as a share allotted to a
coparcener in an actual partition cannot generally be recalled. The
inevitable corollary of this position is that the heir will get his or her
share in the interest which the deceased had in the coparcenary
property at the time of his death, in addition to the share which he
or she received or must be deemed to have received in the notional
partition.”

h) It is important to notice that the Supreme Court has granted ¼ share to

the widow on the assumption that the fictional partition must be treated

as an actual partition which would result in granting the widow a

separate share as per shastric Hindu Law, in addition, to the share she

would get from the share of the deceased co-parcener. In Gurupad,

Chandrachud, CJ affirmed the decision of a Full Bench of the Bombay

 High Court in Kulkarni v Deshpande5. The Full Bench affirmed the

decision of an earlier Division Bench in Rangubai Lalji 6 which

incidentally was a case that arose on a reference made by Chandrachud,

J (as he then was) sitting single in the Bombay High Court. The view in

Gurupadis best illustrated by the observations of Kantawala, CJ in

Kulkarni’s case which reads as under :

“The coparcenary consisted of two members viz. father Narayanrao and son
Shridhar. Shridhar died after the coming into force of the Act leaving him
surviving his heirs under the Act his mother Laxmibai and his widow
Shantabai. Then undoubtedly in view of the provisions of s. 6 Shridhar's
share has to be separated and it devolved by intestate succession as he did
not leave any will. Such severance is effected by the language of the proviso
to s. 6 itself and it is unnecessary for that purpose even to refer to the
provisions of Explanation 1 thereto. If Shridhar's share is severed, then,
automatically having regard to the provisions prevailing under
Shastric Hindu law upon a partition taking place between father
and son the mother's right to claim a share equal to that of a son
automatically springs up. That being the position, immediately before
Shridhar's death as notional partition takes place in view of the provisions
of s. 6, Laxmibai, as a result of that partition, will be entitled to ⅓rd share
in the joint family property. The remaining ⅔rd share will be divided as
under: ⅓rd will go to Narayanrao and ⅓rd coming to the share of Shridhar
will devolve by intestate succession as provided under the Act. Thus
Laxmibai as a result of this partition gets ⅓ rd share. She is also an heir of
Shridhar and as an heir of Shridhar she is entitled to half the interest in the
share of Shridhar. So in addition to ⅓rd share obtained by her on a partition
she will be entitled to 1/6th share as such heir of Shridhar. The total interest
thus obtained by Laxmibai in view of the provisions of s. 6 and the
provisions prevailing under pure Hindu law will be ½. Upon the death of
Laxmibai in 1957 half the interest in the share left by Laxmibai will go to
her husband Narayanrao and the remaining half will go to her daughter
Shushilabai, the plaintiff. Thus, Laxmibai's half share in the joint family
property will be divided as under: ½ of it will go to Narayanrao, her husband
and the remaining ½ will go to her daughter Sushilabai, the plaintiff. Thus,
in our view, having regard to the facts and circumstances of the present case
Shushilabai, the plaintiff, is entitled to ¼th share in the property and she is
entitled to have a partition and separate possession thereof secured to her.”

i) The decisions in Kulkarni and Gurupadare problematic because it

overlooks the fact that the fiction deployed by Explanation 1 was intended

solely for the ascertaining the share that would have fallen to the share of

the deceased. It was not intended to extend to carve out a separate share

in favor of the widow which would have only happened if there was a real,

as opposed to a fictional, partition. The speech of the Law Minister Shri

Pataskar, who moved the Bill, was extracted supra, to show that the fiction

was deployed by Parliament for a very limited purpose ie., to determine the

5
AIR 1975 Bom 257
6
1965 Bom LR 74
 share of the deceased alone. In Gurupad,Chandrachud, CJ erroneously

extends the fiction and deploys it for ascertaining the shares of other heirs

as well. This is clear from the following paragraph :

“The assumption which the statute requires to be made that a partition had
in fact taken place must permeate the entire process of ascertainment of the
ultimate share of the heirs, through all its stages. To make the assumption
at the initial stage for the limited purpose of ascertaining the share of the
deceased and then to ignore it for calculating the quantum of the share of
the heirs is truly to permit one's imagination to boggle.”

Further evidence is available from the speech of Smt. Jayashree in the Lok

Sabha Debates dated 4th May, 1955 when she observes:

“Shrimati Jayashri: After passing clause 6, I had expected that

hon. Members here will not grudge even the small share that
we are providing to the daughters in their father’s property
and not in the joint family property. It is not correct to say that
the sons will get a lesser portion than the daughters. They will get
both in the joint family property as well as in the father’s property.”

Quite evidently, Parliament never intended the fiction to extend to

ascertainment of shares for others as well, which was the error in

Gurupad. It is clear that the attention of the learned Chief Justice was not

drawn to the Debates which would show that the extravagant stretch made

by him in interpreting Explanation 1 was clearly opposed to the very

intention of Parliament itself. In Prabhakaran v Jayarajan7a

Constitution Bench held that legal fiction cannot be extended beyond the

purposes for which it was intended. Gurupad has done precisely this, and

may, therefore, require reconsideration.

j) It is also important to notice the three judge bench decision in State of

Maharashtra v Narayan Rao (1985 2 SCC 321) wherein it was clarified

that the decision in Gurupad, cannot be treated as an authority for the

proposition that in the event of the death of a male Hindu, the female

automatically ceases to be a member of the joint family. Venkataramiah,

J (as he then was) points this out in the following passage

“…..it cannot be an authority for the proposition that she ceases to

be a member of the family on the death of a male member of the
family whose interest in the family property devolves on her without
her volition to separate herself from the family.A legal fiction should
no doubt ordinarily be carried to its logical end to carry out the purposes for
which it is enacted but it cannot be carried beyond that. It is no doubt true

7
2005 1 SCC 754
 that the right of a female heir to the interest inherited by her in the family
property gets fixed on the death of a male member under section 6 of the Act
but she cannot be treated as having ceased to be a member of the family
without her volition as otherwise it will lead to strange results which could
not have been in the contemplation of Parliament when it enacted that
provision and which might also not be in the interest of such female heirs.

k) In case there is a partition of co-parcenary property, the share allotted to

the son will remain his separate property so long as no son is born to him.

However, the moment son is conceived, the property will once again be

impressed with the character of co-parcenary property(See Krishna

Prasad v CIT, 1975 1 SCC 160). The position remains the same even if

the son is born after the 1956 amendment. Thus in Rohit Chauhan v.

Surinder Singh, (2013) 9 SCC 419 , the plaintiff was born in 1982. The

plaintiff’s father had acquired the property through a partition decree in

1969. It was contended that the share that fell to the plaintiff’s father must

be treated as his exclusive property. Rejecting the contention, the Supreme

Court held

“11. We have bestowed our consideration to the rival submissions and we

find substance in the submission of Mr Rao. In our opinion coparcenary
property means the property which consists of ancestral property and a
coparcener would mean a person who shares equally with others in
inheritance in the estate of common ancestor. Coparcenary is a narrower
body than the joint Hindu family and before the commencement of the Hindu
Succession (Amendment) Act, 2005, only male members of the family used
to acquire by birth an interest in the coparcenary property. A coparcener has
no definite share in the coparcenary property but he has an undivided
interest in it and one has to bear in mind that it enlarges by deaths and
diminishes by births in the family. It is not static. We are further of the
opinion that so long, on partition an ancestral property remains in the hand
of a single person, it has to be treated as a separate property and such a
person shall be entitled to dispose of the coparcenary property treating it to
be his separate property but if a son is subsequently born, the alienation
made before the birth cannot be questioned. But, the moment a son is
born, the property becomes a coparcenary property and the son
would acquire interest in that and become a coparcener.”

This position has been very recently reiterated in Shyam Narayan Prasad

v Krishna Prasad (2018 7 SCC 646).

l) Here again, the Supreme Court has remained inconsistent. In Uttam v

Saubhag Singh (2016 4 SCC 68) one Uttam had filed a suit against his

father Saubhag Singh and his uncles for partition and separate possession

of his 1/8th share on the footing that the property originally owned by his

grand-father Jagannath Singh was ancestral in nature. Jagannath Singh

 had died in 1972 and the appellant was born only in 1977. The trial court,

the first and second appellate courts returned a finding that the property

held by Jagannath Singh was ancestral in nature. However, the Supreme

Court held that since Jagannath Singh died in 1972 leaving behind a

widow and 4 sons, the property would devolve under Section 8 read with

Section 6(1) proviso. The Supreme Court, however, dismissed the suit

holding that as the property had devolved under Section 8 there was

nothing to be partitioned as the share held by the appellant’s father was

his self acquired property. This finding is plainly erroneous. The share

allotted to Subhag Singh would remain his separate property vis-à-vis his

other sharers. However, the moment a son was born, the would acquire a

share in it and the property would become co-parcenary once again.

m) Saubhag is faulty because it has not noticed Krishna Prasad v CIT. It has

applied the decision in C.W.T v Chander Sen which was a case where the

father and son had already partitioned the property and the question was

whether the partitioned share of the deceased father would devolve on the

son by survivorship or by intestate succession. In Saubhag Singh, all

Courts had unanimously held that there had been no partition between

Jagannath and his sons. On this short score, the decision in Saubhag

Singh is seriously flawed.

THE PROBLEMATIC DUO : KARUPPAN CHETTIAR& CHANDER SEN

i. To recapitulate, underMitakshara law when a Hindu male inherits

property from his father, father's father or father's father's father, the

property in his hands is ancestral or joint family property in the sense that

in it his son, son's son and son's son's son acquire an interest by birth. As

pointed out by the noted jurist Dr. Paras Diwan “the fact of the matter is

that where an HUF or Hindu joint family does not exist, it comes into

existence for the first time on the death of the father, when sons inherit his
 separate property and constitute an HUF, and their son, son's son and son's

son's son acquire in that property an interest by birth.8”

ii. In Karuppan Chettiar, the facts were that a HUF consisted of Palaniappa,

his wife Anandavalli, son Karuppan and daughter-in-law. The HUF was

partitioned in 1954. Palaniappa and Karuppan separated. The share

allotted to Karuppanconstituted a separate HUF consisting of himself, his

wife and their subsequently born sons and daughter. This HUF was

assessed to income-tax. On 9 September 1963, Palaniappa died leaving

behind his widow Anandavalli and son Karuppan. Anandavalli and

Karuppan succeeded to the property of Palaniappa as his heirs under

section 8 of the Act taking equal shares. The question before the Full

Bench of the Madras High Court was whether the income derived from the

property of Palaniappa inherited by Karuppan would be assessed as the

income of the HUF or as the income of his separate property. Chief Justice

P. Govindan Nair observes :

Not only was Karuppan alive at the time of the death of Palaniappa, but at
the time of his death, Karuppan's son was also alive. In such circumstances,
under the Hindu Law, the property will, devolve on the son and the grand-
son will also have an interest in the property; and the two together will form
a Hindu undivided family (we are of course assuming that there were no
females)”

The learned Chief Justice held [presumably because Palaniappan left

behind his wife thereby attracting the proviso to Section 6(1)] that Section

8 would apply and concluded as under :

“When we search for the relatives mentioned in Class I of the Schedule,

which is attracted by virtue of S. 8, we find no son's sons are mentioned at
all though the grandson of a deceased son is mentioned. What would be the
effect when such a grandson comes into the picture need not be dealt with
in this case. But where the son as well as his son are the persons concerned,
by applying S. 8, we have to come to the conclusion that the father alone,
namely, Karuppan in this case will inherit the property to the exclusion of
the grandson. This being the effect of the statutory provision, no interest will
accrue to the grandson in the property which belonged to Palaniappa. Even,
assuming Palaniappa's property is ancestral property in the hands of
Karuppan, still because of the effect of the statute, Karuppan's son will not
have an interest in the property.”

8
Ancestral Property After Hindu Succession Act, 1956-Joint Family Property or Separate
Property? A Muddle Under Tax Cases, 25 JILI (1983) 1 at page 3
 The logic of Karuppan Chettiar is quite hard to fathom. The question

largely turns on whether the intention of Parliament was, by introducing

the proviso to Section 6, to abrogate the concept of co-parcenary all

together. A straight answer to this question is provided by Shri Pataskar,

the Law Minister, when he observed as under :

“The Bill, therefore, proceeds first by making a positive provision in clause

6 that, whenever a male Hindu, having an interest in a mitakshara
coparcenary property, dies after the commencement of this Act, his interest
in the property shall devolve, by survivorship, upon the surviving members
of the coparcenary and not in accordance with the provisions of this Act.

In order, however, that the females mentioned in class I of the

schedule attached to the Bill should be entitled to a share in the
property of such a deceased person, the Bill proceeds to do it by the
addition of the proviso to clause 6; and this is done on the basis that
the interest of the deceased had been allotted to him on a partition
made immediately before his death.The underlying idea is that,
while trying not to disrupt the joint family of the mitakshara type
by this Bill, a daughter or a female heir in class I would also get a
proper share in the property of the deceased coparcener.”

The effect of the proviso, as explained by the Law Minister, was to ensure

a proper share in the property of the deceased by “not disrupting the

joint family”. Unfortunately and most regrettably, the interpretation put

upon the proviso by the Courts has done precisely the opposite. However,

this view in Karuppan Chettiar was upheld by the Supreme Court in

C.W.T v Chander Sen9. In Chander Sen, the discussion largely turned

on Section 8 and 19. Section 6 was not discussed. Section 19 reads as

follows:

“19. Mode of succession of two or more heirs.—If two or more heirs succeed together
to the property of an intestate, they shall take the property,—
(a) save as otherwise expressly provided in this Act, per capita and not per stirpes;
and
(b) as tenants-in-common and not as joint tenants.”

The question, therefore, is whether Section 19 (corresponding to Clause

21 in the 1955 Bill) has the effect of impressing the property which

devolves on a male through the operation of the proviso to Section 6(1)

with the character of a separate property. Here again, the error committed

9
1986 3 SCC 567
by the Supreme Court and the High Court is on account of a palpable

ignorance of the legislative history of Section 19.

Moving Clause 21 (corresponding to present Section 19) Shri Pataskar, the

Law Minister, said :

Shri Pataskar:

“It was pointed out, when we were considering clause 6, by Pandit Thakur
Das Bhargava that clause 21, in spite of what we have done in clause 6, is
going to disrupt the joint family. I will avoid going into a discussion as to
what the ultimate result of this will be. That I will deal with when a future
occasion arises during the consideration of this Bill. But, I may tell you that,
as promised, I sincerely felt that if it were possible I might find out a way.
The point is that, so far as clause 21 is concerned, as was pointed out by
Shri Shah, and probably, as Pandit Thakur Das Bhargava knows, this
applies not only to coparcenary properties but to all manner of properties
and to properties inherited both from males and females. Therefore, the
question arises as to what can be done to avoid some result which was
contemplated by the passing of clause 6.

There is only one thing which 1 would like to point out at this stage.
Supposing there was a person who had two sons and one daughter. Clause
6, as we have passed it, says that so far as the interest of the sons in the
joint family property is concerned, it is retained for them and with respect to
that there will be no question of their holding it as tenants-in-common. But,
naturally, when the father dies and thesuccession opens, both the sons and
the daughters will inherit to his share or his interest in the joint family
property. Supposing that property was worth Rs. 3000, the interest of each
son would be to the extent of Rs. 1000. In that property, an interest of Rs.
2000will be held as joint tenants and they will continue to hold it so. But,
with respect to the other interest of Rs. 1,000 which they share with the
daughternaturally, they will hold it as tenants-in-common. But, I want to
suggest here that whatever interest they get out of this property
along with the daughter will an accretion to the original joint family
property and in that sense it will be joint family property that
belongs to them. Of course, it may be capable of some other significance.
1 would, therefore, suggest that so far as clause 21 is concerned, it should
be' as it is, because, as my critics themselves admit, it is not possible for me
to maintain a thing which cannot probably be maintained by any addition
of this nature. ,I promised at that time that I would consider this important
matter and I have given my utmost consideration to that. But, now, I think
the only safeguard would be what is in the present Bill. When these sons
inherit a part of the ancestral property which they share with the
daughterthat will be regarded as an accretion, to their joint family
property and will cause no inconvenience. But, I am not asserting
anything.”

It is, therefore, clear that the intention of Parliament whilst enacting

Section 19 was not to abrogate the concept of co-parcenary at all. As stated

above, the share inherited from the father was to be treated as an accretion

to the joint family property already held by the son. The decision in

Chander Sen is, therefore, clearly faulty and may require re-consideration

in an appropriate case.
iii. The speech of the Law Minister, Shri Pataskar, is illuminating and worthy

of careful study. As was pointed out by the Constitution Bench in Kalpana

Mehta v. Union of India, (2018) 7 SCC 1,

“125. ……… that the speech made by the mover of the Bill explaining the
reasons for introducing the Bill can certainly be referred to for ascertaining
the mischief sought to be remedied and the object and the purpose of the
legislation in question. Such a view, as per the Court, was in consonance
with the juristic thought not only in the western countries but also in India
as in the exercise of interpretation of a statute, everything which is logically
relevant should be admitted. “

To recapitulate:

a. Sastric Hindu law or concept of Mitakshara had not been abolished by

Hindu succession Act. A grandson or great grandson is also entitled to a

right in the absence of the grandfather or father. This is attributable to

his representative capacity.

b. Notional partition, does not mean actual partition. It is a fiction. (Unlike

the Kerala Abolition of Hindu Joint family Act 1975, the Central Act makes

no such claim of doing away with the Mitakshara school). Therefore the

character of the property in the hands of the surviving coparcener

undergoes no change. Except the fact, the female members mentioned in

class 1 have an assured share in the property, they do not disrupt the

coparcenary.

c. It should also be appreciated that in the absence of the female members

specified in class 1, the coparcenary continues with the surviving male

members. The intention is to benefit the female members and not to

change the character of the property

d. The term “notional” partition had been misread by the Court and the

legislative intent was completely overlooked. The share alone is determined

and not allotted by metes and bounds. No specific item is given. Neither

the female members could claim that any specific property is theirs. (It

may also be a case wherein they would have made no claim for a share.

e. In Karuppan Chettiar the court by an abstract construction of Sec. 6 and

8, presumed a division in the family and a break down of the coparcenary).

f. The division / partition is a conscious effort on the part of the coparcener.

A demand for division should be made. The date is crucial for

 determining the shares. In the absence of demand the concept of notional

partition cannot be interpolated to deny the continuance of the

coparcenary. As stated earlier, the female in class 1 have been assured of

a share and that alone, is crystallized.

Impact of Karuppan Chettiar, post amendment to Sec. 6

g. Under amended Sec. 6(1) the daughters are deemed coparceners and

under 6(2) the incidents of coparcenary is extended to them. If a complete

division under Sec. 6(3) in pursuance of a notional partition is assumed,

then the need for the daughters to form part of the coparcenary does not

arise and it loses all relevance.

h. Sec. 6(3) speaks of a Hindu dying intestate post the amendment and

devises his interest shall devolve by testamentary and intestate succession

under the Act, and not by survivorship. The coparcenary is deemed to have

been divided as if a partition had taken place. The problem starts here.

The wife and mother are not shown as an heir. The heirs to the

coparcenary are identified as the son and daughter in Sec. 6(3) (a),

children of the predeceased son and daughter (sec. 6(3)(b) and the child of

the predeceased son / daughter of the predeceased son/ daughter under

6(3)(c).

i. If section 8 automatically applies as soon as the Hindu male coparcener

dies, as forecasting death to co-parcenary so far as his branch is

concerned, then it is difficult to reconcile with latter part of Sec. 6(3). For

instance, the A has a wife and 2 daughters and 2 sons. On his death in

2007, his 1/5th share in the coparcenary shall be divided into 5 and the

wife takes 1/25. The balance of 24/25 has to be treated as the

coparcenary property to which the sons and daughters are entitled. The

daughters will have 12/25 equal to that of a son.

j. In the same example, let us assume that the male Hindu coparcener has

no daughters and his wife had predeceased him. In such a case, the

coparcenary continues with the son. The law cannot be understood as if

the legislature has sounded a deathknell to Mitakshara coparcenary

depending upon the existence or otherwise of a female member. The best

 possible solution is to apply the principle of imposition of ESTATE DUTY on the

demise of a coparcener and arrive at a just conclusion. Therein it charges the

value of the property of the deceased (coparcener) in the hands of the surviving

coparcener. The coparcenary is left intact.

k. Let us also consider a case of a father and his son dividing the ancestral property.

Thereafter he begets another son. What is the position of the son born post the

partition, is he entitled to the property as a coparcener as of right or should he

await the benevolence of the father (by applying sec. 8). The law is different than

what was understood in Karuppan. On the division between the father and his

first son, the property that comes to the hands of the father could be dealt with

by him till such time another son is born. As soon as a son arrives his right is

restricted, since the “right by birth” automatically assumes its role.

l. Section 4 which provides an overriding effect over ancient Hindu law is

not unqualified. It starts with “save as otherwise expressly provided”.

Customary law, usage, text, rule or interpretation of Hindu law shall

continue so long it does not conflict with the statute. Coparcenary is not

abolished or abrogated under Sec. 6. On the contrary sec. 6 unequivocally

preserves the concept of Mitakshara coparecnary in its pristine form. The

male dying intestate, leaving no female member specified in class 1 allows

his coparceners to enjoy the property by survivorship. Proviso benefits the

relative set out in class 1, instead of allowing the surviving members taking

the whole of the property.

m. The notional partition envisaged in Explanation 1 enables crystallization

of the share and a deemed partition of the share of the deceased co-

parcener alone. According to class 1 it contains 16 classes of members

who take precedence over the rest. Identifying the share of a coparcener at

a given point of time does not amount to division or partition in status. In

fine, carving out the benefits of daughter and wife will not destroy the

coparcenary. The undivided family and coparcenary would continue as

usual. This is what was intended by Parliament while enacting the 1956

Act as well as the 2005 Amendment.

 n. Another clue lies in Section 10 which is intended for distribution of the

property among class 1 of the schedule. This is the requirement of sec

8. The mode of division is per stripes and not per capita PER STRIPES

is resorted to in division of coparenary properties amongst coparceners. In

contra distinction to per capita amongst the same branch and for class 2

heirs. The very distribution of assets of the deceased coparcener as

envisaged under sec. 10 affirms the continuance of the coparcenary.

o. Coming to sec. 19 in the mode of succession of two or more heirs to the

property of the intestate it shall be

a. “Save as otherwise expressly provided in this act per capita and not

per stripes” and

b. “as tenants in common and not joint tenants”.

A fair interpretation of sec 19 informs 2 modes of devolution of the

property. The dual mode is necessitated on account of the operation of

Sec. 6 and 10 as it then existed. The daughter takes the share absolutely

on her own and the son as Karta of his branch. This principle had been

well considered in 2010 3 RCR 35 (P&H). This case had distinguished

Chandrasen, and rightly so.

1. One must also notice the decision of the Privy Council in Attorney

General of Ceylon v Arunachalam Chettiar10. Arunachalam and his son

constituted a co-parcenary. The son died in 1934, and Arunachalam

followed in 1938. At the time of his death he left behind his widow and

other females. The question before the Privy Council was whether the

property, at the time of Arunachala’s demise, was a co-parcenary property.

Tendering the advice of the Board Viscount Simonds observes

“The nature of the interest of a single surviving coparcener was the

subject of exhaustive evidence by expert witnesses and their
Lordships were referred to and studied numerous authorities in which
in reference to his interest language was used not incompatible with
his being regarded as the “owner” of the family property. But though
it may be correct to speak of him as the “owner,” yet it is still correct
to describe that which he owns as the joint family property. For his
ownership is such that upon the adoption of a son it assumes a
different quality it is such, too, that female members of the family

10
1957 AC 540
 (whose numbers may increase) have a right to maintenance out of it
and in some circumstances to a charge for maintenance upon it. And
these are incidents which arise, notwith-standing his so-called
ownership, just because the property has been and has not ceased to
be joint family property. Once again their Lordships quote from the
judgment of Gratiaen J.3: “To my mind it would make a mockery of
the undivided family system if this temporary reduction of the
coparcenary unit to a single individual were to convert what was
previously joint property belonging to an undivided family into the
separate property of the surviving coparcener.”

This decision was followed and applied by the Supreme Court of India in C.I.T v

Gowli Budanna11

THE 174TH LAW COMMISSION REPORT

i. The unamended Section 6 had come in for some scathing criticism as it

unfairly discriminated against women from participation in the co-

parcenary property merely on account of their gender. Since Section 6(1),

as it stood prior to amendment, protected the existing co-parcenary

comprising exclusively of males, prima facie, it discriminated against

women solely on account of their sex.

ii. In these circumstances, the Law Commission undertook a study in late

1999, and submitted its 174th Report in May 2000. The object of the

Commission’s study was set out thus

“The Law Commission is concerned with the discrimination inherent in the

Mitakshara coparcenary under S. 6 of the Hindu Succession Act, as it only
consists of male members. The Commission in this regard ascertained the
opinion of a cross section of society in order to find out, whether the
Mitakshara coparcenary should be retained as provided in S. 6 of the Hindu
Succession Act, 1956, or in an altered form, or it should be totally abolished.
The Commission's main aim is to end gender discrimination which is
apparent in S. 6 of the Hindu Succession Act, 1956, by suggesting
appropriate amendments to the Act.”

Significantly, the provisions regarding succession in the Hindu Code Bill, as

originally framed by the B.N. Rau Committee and piloted by Dr. Ambedkar,
was for abolishing the Mitakshara coparcenary with its concept of
survivorship and the son's right by birth in a joint family property and
substituting it with the principle of inheritance by succession. These
proposals met with a storm of conservative opposition.

The retention of the Mitakshara coparcenary without including females in it

meant that females can not inherit ancestral property as males do. If a joint
family gets divided, each male coparcener takes his share and females get
nothing. Only when one of the coparceners dies, a female gets a share of his
share as an heir to the deceased. Thus the law by excluding the daughters
from participating in coparcenary ownership (merely by reason of their sex)
not only contributed to an inequity against females but has led to oppression
and negation of their right to equality and appears to be a mockery of the
fundamental rights guaranteed by the Constitution.

11
AIR 1966 SC 1523
iii. Turning to Section 6 of the Hindu Succession Act the Law Commission

opined as under:

The proviso to S. 6 of the HSA also contains another gender bias. It has been
provided therein that the interest of the deceased in the Mitakshara
Coparcenary shall devolve by intestate succession if the deceased had left
surviving a female relative specified in class I of the Schedule or a male
relative” specified in that class, who claims through such female relative. In
order to appreciate the gender bias it is necessary to see the devolution of
interest under S. 8 of the HSA. The property of a male Hindu dying intestate
devolves according to S. 8 of the HSA, firstly, upon the heirs being the
relatives specified in class I of the Schedule. However, there are only four
primary heirs in the Schedule to class I, namely, mother, widow, son and
daughter. The remaining eight represent one or another person who would
have been a primary heir if he or she had not died before the propositus.
The principle of representation goes up to two degrees in the male line of
descent; but in the female line of descent it goes only upto one degree.
Accordingly, the son's son's son and son's son's daughter get a share but a
daughter's daughter's son and daughter's daughter's daughter do not get
anything. A further infirmity is that widows of a pre-deceased son and
grandson are class I heirs, but the husbands of a deceased daughter or
grand-daughter are not heirs

iv. The Law Commission noticed that the State of Kerala had abolished the

joint family system vide a legislation in 1975. The Commission initially

mooted the same proposal pan India but later opted for a middle course.

The following observations of the Commission make interesting reading :

“As a first reaction the Law Commission was inclined to recommend the
adoption of the Kerala Model in toto as it had abolished the right by birth of
males in the Mitakshara coparcenary and brought an end to the Joint Hindu
Family. This appeared to be fair to women as they did not have any right
by birth; but on further examination it became clear that if the joint Hindu
family is abolished as on date and there are only male coparceners, then
only they would hold as tenants in common and women would not get
anything more than what they are already entitled to by inheritance under
S. 6 of the HSA. So the Commission is of the view that it would be
better to first make daughters coparceners like sons so that they
would be entitled to and get their shares on partition or on the death
of the male coparcener and hold thereafter as tenants in common.
We recommend accordingly.”

The Law Commission reported translated into the Hindu Succession

(Amendment) Bill, 2004. Soon after its introduction in the Rajya Sabha,

the Bill was referred to a Standing Committee for scrutiny.

THE PARLIAMENTARY STANDING COMMITTEE REPORT

(MAY 2005)
 i. The Standing Committee observed that the purpose of the Bill was to

remove the discrimination as contained in section 6 of the Hindu

Succession Act, 1956 by giving equal rights to daughters in the

Hindu Mitakshara coparcenary property as the sons have. Section 23 of

the Act disentitled a female heir to ask for partition in respect of a dwelling

house wholly occupied by a joint family until the male heirs choose to

divide their respective shares therein. It was also proposed to omit the said

section so as to remove the disability on female heirs contained in that

section.

ii. The most crucial observation of the Standing Committee on the existence

of the joint family was as under:

“At the same time, the Committee takes note of the fact that the joint family
system is a unique feature of the Indian society. Though not impervious to
various inadequacies and anomalies, the joint family system has been in
existence since time immemorial and is continuing, with many changes in
its structure and ideology, to keep pace with the changing needs of the time.
While noting the concern regarding discrimination against women in the
patrilineal, patriarchal joint family set up, the Committee comprehends that
strong public sentiment is attached with the joint family system. Moreover,
it is beyond the scope of the present Bill to consider any step
regarding abolition of the joint family system in the Hindu
households. As regards the demand to abolish the Mitakshara joint family
system, the Government may initiate a detailed study, to examine the
relevance of such a system in the present context and take steps
accordingly.”

iii. It is, therefore, clear that the intention of Parliament, in introducing the

2005 amendment, was not to abrogate the Mitakshara joint family

property system altogether.

iv. For ease of reference Section 6, so far as it is presently relevant, is broken

down as under:

Hindu Succession
(Amendment) Act, 2005 w.e.f
09.09.2005)

FEMALE MALE (Sec 6(3))

i. Daughter of a co-parcener shall

Hindu male
become a co-parcener by birth dying post
09.09.2005
ii. Have the same rights in co-

parcenary property as a son

iii. Be subject to the same liabilities

as a son qua the said property

 “His share” in co-
parcenary
property shall
devolve under the
Act and not by
survivorship

To facilitate the ascertainment of a share,

the provision envisages a notional
partition. Explanation 1 under the Old
Section 6 has been added as an
Explanation to Section 6(3).

In the aforesaid notional partition the

following categories of persons are allotted
an exclusive share

a) Daughter, b) child of a pre-deceased

son or daughter and c) child of a
pre-deceased child of a pre-
deceased son or daughter

WHETHER THE AMENDMENT IS RETROACTIVE OR PROSPECTIVE

i. In Prakash v. Phulavati, (2016) 2 SCC 36 the two judge bench held that

the 2005 amendment inserting Section 6(3) was prospective in nature.

Another two judge bench had taken the same view in G. Sekar v. Geetha,

(2009) 6 SCC 99. However, in Danamma v Amar [2019 6 SCC 162] another

two judge bench held that the amendment was retroactive in operation.

After Danamma, another two judge bench in Mangammal v T.B Raju

[2018 15 SCC 662] held it to be prospective.

ii. Taking note of this confusion, the High Court of Delhi, while following the

law laid down in T.B Ravi, granted a certificate to appeal under Article

133. Consequently, the appeal was heard [Vineeta Sharma v Rakesh

Sharma 2019 6 SCC 164] and is pending consideration before a three

judge bench. (It is fervently hoped the Supreme Court settles the matter

once and for all. It is pointed out that in some of the references made to a

larger bench of the Supreme Court, the cases are allowed to be withdrawn

or disposed of recording a compromise. The larger questions remain in a

limbo causing further confusion and chaos in the High Courts. This is
 clearly problematic and undesirable. When a reference is made it is always

advisable to have it considered and disposed of answering it positively by

seeking the assistance of able lawyers)

iii. It is submitted that a Full Bench of the Bombay High Court in

Badrinarayan Shankar Bhandari v. Ompraskash Shankar

Bhandari, 2014 SCC OnLine Bom 908 : (2014) 3 MWN (Civil) 225 :

(2014) 5 Mah LJ 434, has correctly concluded as under

“Clause (a) of sub-section (1) of amended Section 6, is prospective in

operation;

Clauses (b) & (c) and other parts of sub-section (1) as well as sub-section (2)
of amended Section 6, are retroactive in operation, as indicated hereinafter.

Amended Section 6, applies to daughters born prior to 17th June, 1956 or

thereafter (between 17th June, 1956 and 8th September, 2005), provided
they are alive on 9th September, 2005 that is on the date when the
Amendment Act of 2005 came into force. Admittedly amended Section 6,
applies to daughters born on or after 9th September, 2005”

The aforesaid view taken by the Bombay High Court was cited and

approved by the Supreme Court in Prakash v Phulavati, supra.

DELETION OF EXPLANATION 2

i. Another puzzle is the deletion of Explanation 2 in the Old Section 6 by the

2005 Amendment. Explanation 2 read as under:

“Nothing contained in the proviso to this section shall be construed as

enabling a person who had separated himself from the coparcenary before

the death of the deceased or any of his heirs to claim on intestacy a share

in the interest referred to therein.”

ii. When the old Section 6 was scrapped it appears that Explanation 2 was

omitted without regard to the consequences that would ensure from such

deletion. This is because neither the Law Commission Report nor the

Parliamentary Standing Committee Reports contain any reference to the

deletion of the Explanation. The Law Commission while recommending the

draft Bill omitted the old Explanation 2 from the text of the new Section 6.

This has resulted in a peculiar situation post the 2005 amendment.

iii. To illustrate this : assume that A, the father, is a co-parcener, along with

two sons and two daughters. B, the elder son of A seeks and obtains a
 partition of his share of the properties in 2007. In 2010, A dies. By virtue

of Section 6(3) of the Hindu Succession Act that share will devolve upon

his Class I heirs, one of whom is the divided B.

iv. Under the old Section 6, Explanation 2 would have prevented B from

staking a claim to a share in the share of his father. However, as

Explanation 2 no longer exists, the mischief that it sought to repress

springs up. On a literal application the divided son will now be entitled to

lay a claim in the share of his father.

v. One way of judicially ironing out this crease is to deploy the principle laid

down by the Madras High Court in Manjanatha v Narayana12where a

Division Bench of Innes O.C.J and Muttuswami Ayyar, J opined as under:

... “ It may be that when some of the coparceners desire to separate,

it is necessary to ascertain the shares of others who desire to continue
in union. Cases may also be conceived in which it may not be
necessary to set out the shares of each and every member of the
joint family. To what extent it would be necessary to ascertain the
shares due to others would depend on the position in the family
pedigree of the coparcener seeking separation. If, for instance, the
representatives of two branches seek separation, it would suffice to
ascertain the shares due to each branch, and there would be no
necessity for going further and setting out the allotment due to each
member of the family in each branch. It seems to me anomalous to
hold that in a case where two brothers, each of whom may have
several sons and grandsons, desire to separate, all the members
should be forced to separate, the sons and grandsons from their
father and grandfather. But if, in such a case, partition is to be
enforced only as between all the parallel branches, I do not see on
what principle or text we are to permit a partial division in the case
of some coparceners and to refuse it in the case of others. Again, it
appears to me that each coparcener is at liberty to elect to separate
from the joint family, but I am aware of no text which recognizes his
power to force a separation among others against their will. If, in
ascertaining the share of the coparcener who seeks to separate, the
shares of others are ascertained, it is done only for the purpose of
determining the allotment to be made to him and in so far as it is
necessary for that purpose. In substance, it is a means of
calculation, and I do not see my way to recognize an arithmetical
computation as a legal partition when those whose shares are
mentally ascertained do not desire to separate from one another, but
desire, on the contrary, to live together. Jagannada makes
separation or non-separation depend on the free consent of the
coparceners, and says that a Hindu family may continue in union
notwithstanding the separation of some of the brothers and the
allocation to them of their shares in the joint estate. [ Jagannada's
Digest (Colebrooke), Book V. Chapter VIII, Section 430.] He then
goes on to notice the argument that, since the law has not indicated
partition among some of the co-heirs and coparcenary of others, and
no special rule of decision has been delivered on the point, no such
partition ought to be made, but says in answer to it that a partial
distribution is not void, for it has been made by the free consent of
all the co-heirs and no special law forbids it. He then concludes with
12
ILR 5 Madras 362
the observation that since a distribution is made at the first partition
by an act of the mind among all the coparceners, there is no
difference in its consequences as to the allotment to be made to the
eldest son at the second partition. Under these circumstances I
hesitate to hold that a partial division is illegal or that the status of
the parties to the suit is that of reunited parceners. However this
may be, it is immaterial for the purpose of this appeal whether we
regard the parties to this suit as coparceners or reunited parceners,
and I would reverse the decree of the Subordinate Judge and restore
that of the District Munsif.”

To summarize :

i. The equality of sharing under the Hindu Law is an equality of

the vested interest of each branch as representing each son of

the same father who had each a capacity to confer an equal

amount of spiritual benefit on him.

ii. Any other principle would, when there has been a partial

severance of the joint family by one or more members taking

his or their shares and going off, result in an inequitable

division unfair to branches which had remained whole in the

joint family.

iii. The assistance of the Smrithi Chandrika was called in aid in

order to draw an analogy between this principle of partition

and what the Smrithi Chandrika lays down as the principle of

second partition among re-united coparceners, namely, that

the shares will be proportionate to what each brought into the

common stock at re-union, a theory evidently based on the

idea that the separation by partition by one member involves

notionally a complete partition of the whole family and a re-

union of the rest.

iv. The aforesaid judgment was doubted and a reference was

made to the full bench. The terms of reference is A.M.

Narayana Sah v. A. Sankar Sah, (1929) 30 LW 751 : AIR

1929 Mad 865, at page 760 :

“When there has been a partition of one or more members in a

joint Hindu family, the other members remaining united, is this
partition to be taken into account in determining the share due
to the various branches in a subsequent partition, as laid down
 in Manjanatha v. Narayana or should subsequent partition be
made rebus sic stantibus as at the time of such subsequent
partition?

While affirming the correctness of Manjunatha’s case the Full bench

affirmed that it would be inequitable for the divided member to demand a

share in the property post his severance from the family. It observed:

“It is not difficult, of course, to conceive of cases in which any kind of

distribution would be inequitable towards some members. From one
point of view, it might be considered inequitable that a separated
member should lose his share in any increase in the general joint
family property. In some cases the value of the fractional share
alienated by the alienating coparcener may by no means be the same
as the value of the share which the Court actually decrees to the
alienee at the time of his suit. But the manifest inequity of rejecting
the principle laid down in the Manjanatha v. Narayana, case was put
before us in a hypothetical case by the learned counsel for the
respondents, and I do not think that the learned counsel on the other
side gave an adequate answer to that by saying that the joint family
can always avoid such results by a suit for complete partition. The
interests of minors in particular would be grossly prejudiced thereby,
while compulsory separation amongst members who do not wish to
divide is not necessarily an advantage to them, and the law, as it at
present stands, does not allow several coparceners of a joint family
to sue jointly in order to expel one delinquent member. It may be that,
under considerations of equity, in future the law may decide that it
should go further towards modifying the strict principles of Hindu Law
than it has so far done, but at present it is not necessary for us to
decide more than the question referred to us namely, whether the
Manjanatha v. Narayana ruling is still good law. Equality amongst
the sons of fathers is of the essential spirit of Hindu Law and
the Manjanatha v. Narayana, case endeavours to secure that
result by preventing any branch from eating part of its cake
and keeping the whole. Pranjivandas Shivlal v. Ichharam which is
relied upon strongly by the other side, endeavours to secure that
equality by ignoring the fact that any of the cake has already been
eaten and by dividing the remainder equally. The Manjanatha v.
Narayana1 case decides that equity demands that at a second
partition regard must be had to the state of the family before the first
partition; the Pranjivandas Shivlal v. Ichharam case decides that
equity does not demand such an in road on Hindu Law. Of the two
principles, I prefer that laid down in Manjanatha v. Narayana
especially as the secondary principle of stare decisis is also in its
favour. The judgment in Manjanatha v. Narayana has stood for over
forty years as the law in this Presidency, and we cannot doubt that
numbers of partitions have been effected, or deliberately abstained
from, on the faith of the decision there given that the rights of members
of the family inter se were thereby legally determined. I cannot
therefore see any justification for upsetting what has been the
recognized law in this Presidency for so long a period. I would
therefore answer the reference by saying that the law laid down in
Manjanatha v. Narayana is still good law.”

v. Chander Sen and Karuppan Chettiar have interpreted the law

so as to alter the character of the property on the death of a

 coparcener. As stated supra, this was never the intention of

the legislature. If the coparcener’s property is treated as

retaining the same character post his death, the divided

member will have no right to any share. The principle would

be whether a divided member could make a claim against the

existing coparceners. The inevitable answer is NO.

vi. It is also necessary to notice the difference in language

employed in Sec. 6 and 8 as regard succession. Sec. 6 speaks

of devolution of coparcenary property. It also identifies and

notionally fixes the daughter as a coparcener and treats her

as having an equal share to that of a son in Sec. 6(1). Under

Sec. 6(1) (b) and (c), it subjects the daughter to the same rights

and liabilities. Clause 3, ironically speaks of devolution by

testamentary or intestate succession as well allotment of

property to a daughter as is allotted to a son.

vii. The sons remaining united exclude the divided son. If a share

is allotted to the son in unison and a share is identified in

each one of them, the share allotted to “a son” is given to the

daughter. Inasmuch as the divided son does not form part of

the coparcenary no share will be allotted and the need to

include him for allotment does not arise.

viii. A perusal of Section 6(3) also reflects the poorly drafted

nature of the law. It is unfortunate that the neither the

drafters in the Law Commission nor the law makers in

Parliament were able to tell the difference between Hindu

Joint Family and a coparcenary. Section 6(3) uses both these

expressions as though it were synonymous. Section 6(3)

speaks of the interest of the deceased in a “Joint Hindu Family

governed by Mitakshara law” but however proceeds to speak

of division of the interest of the deceased in “co-parcenary

property”. It is quite hard to fathom how the “interest” is

identified with respect to one type of property whereas the

 division is identified for another type of property. This is yet

another area where the legislature must step in by way of

clarificatory amendments.

ix. Sec. 8, is the general rule of succession in case of males. It

deals with the individual property of the deceased. The divided

son certainly will be entitled to a share in the separate

property of his father.

On the whole, the wholesale replacement of Section 6 by the 2005

Amendment has had the unfortunate effect of fueling litigation between

family members which was exactly the opposite of what was originally

intended. One hopes that the Supreme Court will resolve the conflict at

the earliest, and lay down the law with clarity and certainty.

V. Raghavachari