Hindu Succession Act | To Decide Shares Of Heirs, First Step Is To Ascertain Share Of Deceased In Coparcenary Property On Date Of Death : Supreme Court

Tried and tested many times over, the issue of succession to Mitakshara coparcenary property continues to raise its head time and again like an undying Hydra of Lerna, the Supreme Court remarked while disposing a civil appeal(1 September 2023).

In this case, a partition suit was filed in the year 1991 and the same was decreed by the Trial Court in the year 1996. The First Appellate Court dismissed the appeal in 1999. However, the High Court partly allowed the second appeal in 2009.

Before the Apex Court, the issue was about how the said properties were to be divided amongst the legal heirs of  one Phannuram upon his death in 1959, i.e., after the advent of the Hindu Succession Act, 1956.

The court noted that in Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and others [(1978) 3 SCC 383], it was observed that in order to ascertain the shares of the heirs in the property of a deceased coparcener, the first step is to ascertain the share of the deceased himself in the coparcenary property.

"Explanation 1 to Section 6 (of Hindu Succession Act) provides a fictional expedient, namely, that his share is 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. It was pointed out that once that assumption has been made for the purpose of ascertaining the share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs without reference to it, and all the consequences which flow from a real partition have to be logically worked out, which means that the shares 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 life-time of the deceased. In effect, the Bench held that 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.", the court noted.

Applying this principle, the court said that the share of Phannuram would first have to be determined as on the date of his death.

"He seems to have had two brothers and would have been entitled to a 1/3rd share in the coparcenary properties, if a partition had been effected before his death. In fact, such a partition was actually effected in 1964 and Phannuram’s 1/3rd share was allotted to his only son, Vishal. However, Vishal was a coparcener in his own right in a separate coparcenary with his father and would be entitled to a share in that coparcenary property by birth. Therefore, he would be entitled to a half-share by birth in the I/3rd share of the coparcenary properties that was allotted as Phannuram’s share. The other half-share therein belonged to Phannuram and as he died intestate, it would firstly devolve upon his Class I heirs, in terms of Section 8 of the Act of 1956. His Class 1 heirs, as on the date of his death, were Kesar Bai, Vishal and Keja Bai, his three children. His half-share would therefore be divided equally amongst the three of them, i.e., 1/6th each. In consequence, the final division of the 1/3rd share of Phannuram in the coparcenary properties would be as follows: Vishal would be entitled to 6 4/6th share (1/2+1/6) therein, while his sisters, Kesar Bai and Keja Bai, would each get 1/6th share therein, as they would be entitled to lay claim only to the half-share of Phannuram. As this is exactly what the Chhattisgarh High Court did and directed, we see no reason whatsoever to interfere in the matter.", the court said while dismissing the appeal.

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Mitakshara Hindu Property Succession - Tried and tested many times over, the issue of succession to Mitakshara coparcenary property continues to raise its head time and again like an undying Hydra of Lerna. (Para 1)

Hindu Succession Act, 1955 ; Section 6 - In order to ascertain the shares of the heirs in the property of a deceased coparcener, the first step is to ascertain the share of the deceased himself in the coparcenary property and Explanation 1 to Section 6 provides a fictional expedient, namely, that his share is 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- Once that assumption has been made for the purpose of ascertaining the share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs without reference to it, and all the consequences which flow from a real partition have to be logically worked out, which means that the shares 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 life-time of the deceased. In effect, 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. (Para 11-12)

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