Theory of Notional Partition under Hindu Succession Act 1956

Theory of Notional Partition under Hindu Succession Act 1956

Introduction

Hindu succession act 1956

• Hindu succession act 1956 act deals with the rules and regulations relating to intestate succession among hindus 
• The hindu succession act 1956 came into force on 17 june 1956
• The act has been amended in 2005 as
• Hindu succession(Amendment)act,2005
• The amendment was made with introducing various rights in respect to the female 
• For example introducing the concept of notional partition, daughter rights under succession of property , omission of section 23 again setting away the bar to claim partition in dwelling house and so on .

Theory of notional partition

Notional partition

Notional partition generally said as it is not the actual partition as the word notion suggest that is the structure partition being decided in mind before the death of the coparcener .It is to be employed only to carve out a share from the deceased coparcener which will be notionally allotted to the Class­I heirs.

Section 6 – Devolution of interest in coparcenary property.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

[Mitakshara :-the literal meaning of mitakshara is a “brief compendium” and is commentary on yajnavalkya smriti which was written by vigneshwara in later in 11th century ]

1. b. by birth become a coparcener in her own right in the same manner as the son; Have the same rights in the coparcenary property as she would have had if she had been a son,
2. Be subject to the same liabilities in respect of the said coparcenary property as that of a son,

Before Hindu  succession amendment act 2005

• Section 6 of the Act, with the heading ‘Devolution of interest in coparcenary property’,
• Section 6 deals with devolution of coparcenary interest in the case of a male Hindu dying as per the  under the Mithakshara law which can be defined as unity of ownership.
• A coparcenary is said to be the male members who are related to the head of the family for the time being within four degrees by the death of an ancestor 
• It is only on a partition that he becomes entitled to a definite share.
• No female can be a coparcener under the Mithakshara law although a female can be a member of a joint Hindu Family.
•  It does not deal with the devolution by inheritance of the separate property of a Hindu male
• The act does not deal with devolution by inheritance of the property of a female Hindu
• exception to the general rule of devolution by survivorship in regard to coparcenary property in the Mitakshara school.

 In simple words,

• Ancestral property to be devolved by survivorship rule only.
• Only males were the coparceners up to 3 generations.
• Women were not recognised as coparceners.

After 2005 Amendment Act [Hindu  succession amendment act 2005]

Amendment to Section 6.

• That exception to the devolution of coparcenary property by the Survivorship Rule abrogated.
•  Equal rights will be there to all the heirs irrespective of gender moreover they will be considered coparceners by birth
• As the son is entitled to coparcenary property of the deceased daughter can also have same entitlement 
• In case of liability of coparcenary ,both male female heirs are entitled for the same
• Succession is either “Testamentary” or “Intestate Succession”
• Female heirs also entitled to coparcenary property upto three generation same in the case of male heir that is daughter, grand daughter, great grand daughter
• The female hiers entitled:-

The daughter(s),

The daughter’s-daughter’s son(s),

The daughter’s-daughter’s daughter(s),

The daughter’s son’s daughter(s), and

The son’s daughter’s son(s)

Case laws :-

In Prakash v.  Phulavati 2015case the court stated that Father has to be alive on the date of enforcement of the 2005 amendment.Subsequently, the daughters can claim benefits under the 2005 Act.

InDanamma v. Amar Singh case 2018, it is being stated that Daughters are entitled to his coparceny property since property as the father may have died before 2005, yet daughters will get equal share.

In case of Vineeta Sharma v. Rakesh Sharma2020

Disagree with both the judgements of Danamma v. Amar Singh case and prakash phulavati case ,the supreme court decided as Father need not be alive on the date of enforcement of the 2005 amendment.

Summary

Prior to Hindu Succession Act 1956, women had no right in coparcenary Property. Sec.6 of the Act, conferred a share to daughter a in Coparcenary property by way of notional partition at the time of partition only. Notional partition was never meant to be an actual partition. The theory of notional partition has been introduced to generate the shares from the deceased coparcener which will be notionally allocated to the Class­ I heirs.

Author: Tanveen Kaur,
Chandigarh university/2 year/law student