The position of law on disruption of the Mitakshara coparcenary has assumed significance in recent times. It has been considered by the courts in three contexts: first whether the device of notional partition introduced by Section 61 of the Hindu Succession Act, 19562 (HSA) disrupts the Mitakshara coparcenary, second in cases concerning applicability, to pending proceedings, of the amendment to Section 6, HSA which recognises daughters as coparceners, and third whether share in coparcenary property devolved by partition becomes self-acquired property thereby disrupting the Mitakshara coparcenary. Clarity on whether Mitakshara coparcenary has ceased to exist is crucial since estate belonging to the Mitakshara coparcenary is subject to distinct rules of devolution which affects the manner in which it is dealt. The most recent formulation of the law on this point is found in the decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma[3]. In this article, the authors will set out the position of law on this aspect under Mitakshara/classical Hindu Law, changes brought about by the decision in Vineeta Z4 and its implications.
A. Classical Hindu Law/Mitakshara
A Mitakshara coparcenary, prior to the 2005 Amendment5 to Section 6 HSA, comprised only males up to three generations commencing from the common male ancestor.6 Thus, a son, grandson, and great-grandson constituted a Mitakshara coparcenary. After the 2005 Amendment to HSA daughters are also recognised as coparceners.
Since coparcenary property has not been defined under the HSA, courts have continued to attribute the same understanding as Mitakshara.7
Coparcenary property means and includes:
(i) ancestral property;
(ii) acquisitions by coparceners with the help of ancestral property;
(iii) separate property of coparceners thrown into the common stock; and
(iv) joint acquisition by coparceners.8
Ancestral property means property inherited by a male from his father, father’ s father or father’s father’s father and the inheritor’s son, son’s son, and son’s son’s son get a right in such property by birth.9
It is presumed that a Mitakshara coparcenary is joint until it is proved that its members have separated.10 No coparcener can predicate his share in the coparcenary property so long as the coparcenary remains joint and there is no severance of status.11 The shares of a coparcener fluctuate with births and deaths since it devolves by survivorship.12 The members of a Mitakshara coparcenary can agree to separate and upon such agreement the Mitakshara coparcenary ceases.13 Severance of status or separation is a matter of individual volition of the coparcener to enjoy his share severally14 which has to be communicated to other members of the coparcenary from whom he seeks to separate.15 The date on which the severance is effective is the date of unequivocal manifestation of intention to separate16 and such intention can be expressed in many ways including by issuing a notice or filing of a suit or by conduct of the member in dealing with his property separately.17 If a suit is filed to partition the property, the date of institution of the suit is the date on which the Mitakshara coparcenary has ceased to exist.18
When a member of the Mitakshara coparcenary declares his intention to separate, the consequences which follow immediately are:
(i) Mitakshara coparcenary property is held as tenants in common and ceases to be a joint tenancy;
(ii) the share of each member crystallises on the date of expression of intention to separate;
(iii) each member has a right to enjoy and receive proceeds from the property that has fallen to his share;
(iv) if a coparcener dies, after the expression of interest to separate by any of the coparceners, but without having received his actual share, his share on the date of expression of intention will be inherited by his heirs and will not devolve by survivorship; and
(v) subsequent births and deaths will not affect the share fixed on the date of severance of status.19
The title of a Mitakshara coparcenary’s estate stands transformed from joint to separate ownership even without the need for actual partition of the subject-matter by metes and bounds, upon expression of interest by any of the members to separate.20 Severance of status is distinct from de facto division of estate into specific shares which division may be brought about by various modes such as private agreement or arbitration or through court as a last resort upon the failure to arrive at a private agreement.21 Severance of status is effective and complete even though it is not followed by actual partition of the estate by metes and bounds.22Mitakshara does not contemplate actual division and distribution of property for severance of status to be effective and the former is only a result of the latter.23 Even if members of a coparcenary continue to live together and enjoy the property without actual division, after severance of status, they do so as tenants-in-common and not joint tenants and such conduct only affects the mode of enjoyment of property but not the title of the property.24 A member who expresses his intention to separate cannot undo the effect of severance of status and disruption of the coparcenary merely by revoking expression of such intention and the family can continue as a coparcenary only through an agreement to reunite.25
A three-Judge Bench of the Supreme Court in Addagada Raghavamma v. AddagadaChenchamma26has approved the understanding posited by the decisions of the Privy Council cited above and disagreed with contrary view in decisions of the Madras High Court.27In Puttarangamma v. M.S. Ranganna28 the Supreme Court noted the approval of the Privy Council decisions in Raghavamma29.
Formulation of the law on disruption of Mitakshara coparcenary as understood by Mitakshara and approved by the Supreme Court is found in a three-Judge Bench decision of Kalyani v. Narayanan30 wherein it was reiterated that:
- …an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property….
In Hardeo Rai v. Sakuntala Devi31 the Supreme Court while decreeing a suit for specific performance by an agreement-holder in respect of coparcenary property, held that upon severance of status through expression of intention, even in the absence of division by metes and bounds, a coparcener is the owner of his share and he can alienate through sale or mortgage in the same manner as his separate property. Whilst holding so, the Supreme Court rejected the defence of the vendor that the subject- matter of the contract for sale belongs to the coparcenary and the same was not partitioned by metes and bounds.
The position on severance of status and consequential disruption of the Mitakshara coparcenary spelt out by Mitakshara as recognised by the Privy Council and approved by the Supreme Court held the field even after the enactment of the HSA, till the decision of the Supreme Court in Vineeta32.
(B) Position Post-Vineeta
(i) Partition is complete only upon division by metes and bounds
A question before the Supreme Court in Vineeta33 was whether application of the legal fiction of notional partition contained in Section 6 HSA disrupts the Mitakshara coparcenary.34 Whilst answering this in the negative, which the authors have discussed below, the Court in Vineeta35 has also opined on aspects of severance of status which mark a stark departure from Mitakshara.
The Court in Vineeta36has held that “…mere severance of status by way of filing a suit does not bring about partition….”37 Further, it has held that “…until and unless actual partition is finally worked out, rights have to be recognised as they exist at the time of final decree….”38 Furthermore, “…an intention to separate need not be confused with change of rights during the pendency of the suit, which has to be given full effect, to do complete justice.”[4]39
The above formulation in Vineeta40 departs from Mitakshara in that now the Mitakshara coparcenary ceases to exist only upon actual division of the estate by metes and bounds. In other words, expression of intention to separate either by issuance of notice or by agreement or by instituting a suit does not disrupt the Mitakshara coparcenary and only an actual division of the estate by metes and bounds produces such an effect.
In the opinion of the authors, the implications which follow from the decision in Vineeta41are that even after expression of interest to separate,
(i) the property is enjoyed as joint tenants;
(ii) shares do not crystallise until final decree in a suit or at the time of actual division if by agreement; and
(iii) change in the body of coparceners through births and deaths continue to affect the shares of individual coparceners.
The decision in Vineeta42 has rendered it impossible for a coparcenary to continue to enjoy the property jointly even though members have expressed an intention to separate. In other words, for a Mitakshara coparcenary to cease to exist, members have to actually divide the estate after expression of such interest.
The distinction between the position under Mitakshara and Vineeta43are illustrated below:
Illustration 1
If A is the propositus and B, C, D are his sons and B1 and C1 are his grandsons being the sons of B and C who are all alive at the time of institution of the suit for partition by B on 1-1-2020 the following is the manner of division of the estate:
Mitakshara:
(i) Filing of a suit on 1-1-2020 is a form of expression of interest by B to separate from the Mitakshara coparcenary consisting of A, B, C, D, B1, C1. The share of each branch crystallises on 1-1-2020.Assuming a complete partition takes place, the coparcenary has ceased to exist from 1-1-2020.Each branch represented by A,B,C,D get ¼th share as on 1-1-2020. B1 and C1 get ⅛th share each (½ of ¼th).
(ii) If B dies during the pendency of the suit, ¼th share of B’s branch is divided within his branch and does not enure to the benefit of the remaining coparceners through survivorship since shares crystallise on the date of the suit and survivorship stands abrogated under HSA. B1 takes a share as heir of B.
(iii) If D has a son D1 after the suit but D has sold his ¼th share after the suit was filed but before the birth of D1, D1 cannot question the sale.
(iv) If A has a son E during the pendency of the suit, E is entitled to a share reserved by A if any and ¼th allotted to other branches per stirpes will not be affected by E’s birth.
(v) As per the law prior to HSA, on account of devolution of coparcenary property by survivorship, the shares increased on deaths and decreased on births of coparceners. However, post HSA and 2005 Amendment to HSA devolution by survivorship has been abrogated. Hence, shares do not fluctuate with births and deaths.
Vineeta:
(i) The Mitakshara coparcenary does not cease to exist till the final decree proceedings have concluded and the property has been divided by metes and bounds.
(ii) If B dies and E is born during the pendency of the suit, A to E get 1/5th share each after the birth of E.
(iii) If D has a son D1, he will be entitled to question the sale since the Mitakshara coparcenary continued even after institution of the suit and D had no right to sell it unilaterally, even if D1 was not born at the time of alienation.
(iv) Purchaser from D can institute a suit for partition and separate possession to identify D’s share which he has purchased. However, after Vineeta44, since D could not have sold the property till such time final decree is drawn up since the Mitakshara coparcenary ceases only on division by metes and bounds and after born sons can question alienations made prior to their birth, it remains to be seen whether such a suit by the alienee is maintainable after Vineeta45.
(ii) Change in the body of coparceners to be noted
The question regarding applicability of 2005 Amendment to pending suits was considered in Vineeta46 and it was held that 2005 Amendment which brought about a change in law wherein daughters are recognised as coparceners, thereby affecting the body of coparceners, has to be taken note till such time actual partition of the estate takes place.47In other words, daughters have to be given a share even though the suit was filed/severance of status took place prior to the amendment so long as property has not been partitioned by actual division. In order to buttress this conclusion, the Court held that Mitakshara coparcenary ceases to exist, as per the amendment to Section 6 HSA, only upon actual division of the estate and not any time prior to that.48The reasoning of the Supreme Court is founded on the intention of the legislature in amending the law to include daughters as coparceners although it has not discussed authority to support the said conclusion. This is a break with the position under Mitakshara where severance of status is complete on expression of intention irrespective of actual division of the estate and the change in the body of coparceners does not affect the shares per stirpes.
Vineeta49 relied on cases pertaining to applicability of State Amendments to HSA which recognise daughters as coparceners in order to support its reasoning. The question regarding the applicability of amendment in Andhra Pradesh recognising daughters as coparceners, to pending partition suits, was considered by the Supreme Court in S. Sai Reddy v. S. Narayana Reddy50 (Sai Reddy) where it was held that “unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete”. Further, it was held that preliminary decree does not crystallise the shares nor does it bring out severance of status until divided by metes and bounds. Furthermore, Sai Reddy51 noted that such an interpretation is imperative since the amendment recognising daughters as coparceners is a beneficial legislation and ought to be interpreted liberally to give full effect.
Sai Reddy52 was followed in Prema v. Nanje Gowda53wherein the Karnataka amendment recognising daughters as coparceners was made applicable to pending proceedings by holding that since a preliminary decree can be amended to accommodate births and deaths, daughters as coparceners can also be accommodated and any other interpretation would violate Articles 1454 and 1555 of the Constitution. Similar view was articulated in Ganduri Koteshwaramma v. Chakiri Yanadi.56
All the aforesaid decisions did not consider the three-Judge Bench decision in Raghavamma57and Kalyani58 and Coordinate Bench decision in Puttarangamma59 on the point of severance of status and disruption of Mitakshara coparcenary. Further, the reasoning in these decisions has been buttressed by the fact that since a preliminary decree can be modified/amended it is not conclusive. This position has been rejected by a four-Judge Bench of the Supreme Court to hold that the fact that a preliminary decree can be amended to modify the shares allotted does not render it inconclusive or make it a tentative decree but must be rendered conclusive.60Furtherthe Supreme Court has also suggested eliminating two stages in a suit for partition thereby implying that a preliminary decree is final and final decree proceedings are resorted to only if the parties do not come forward to divide the estate as per the preliminary decree.61 In the opinion of the authors, the option to modify a preliminary decree is only a means of effectuating the partition and accommodating changes in shares per capita (not per stirpes which is crystallised upon severance of status) upon death or other arrangements between parties, and is not apposite to justify the proposition that partition is incomplete till the final decree is passed. Two stages of preliminary decree and final decree are a matter of procedure in partition suits62 and whilst determination of shares is a function of substantive personal law. Furthermore, whilst these cases have tried to ameliorate the lot of daughters by giving full effect to the amendment, it has not limited its departure from settled law on disruption of Mitakshara coparcenary only to cases concerning 2005 Amendment.
In summary, per Vineeta63 since disruption of the coparcenary takes place only upon actual division of the estate, change in body of coparceners, namely, births and deaths or change in law affecting body of coparceners, will bring about change in shares (per stirpes and per capita) till such time final decree is not passed.
(iii) Devise of notional partition does not disrupt coparcenary
Notional partition is a legal fiction introduced by the HSA to calculate the interest of a Hindu male in Mitakshara coparcenary property who dies leaving behind certain female heirs.64 It is a beneficial device to enable certain females have a share in coparcenary property which was not available to them under classical Hindu law.65 Therefore, when shares are calculated through the device of notional partition, the question arises as to whethernotional partition sounds a death knell on the coparcenary.
In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh66, the Supreme Court clarified that, upon notional partition the joint family would not cease to exist or that the female claimant would not be separated from the joint family upon the death of the male, though her share would be fixed on such death and determined through the device of notional partition. It was observed that if Explanation I to Section 6 means the coparcenary has ended would be to extend the legal fiction of notional partition beyond its logical end.
(iv) Partition during lifetime of propositus does not disrupt coparcenary
Another question is whether the Mitakshara coparcenary is disrupted upon devolution of coparcenary property through partition during the lifetime of the propositus and consequently, whether the share allotted upon such partition is recharacterised as separate property.
A three-Judge Bench of the Supreme Court in Valliammai Achi v. Nagappa Chettiar67held
“…that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently….”
In other words, coparcenary property retains its nature upon partition qua the next generation of coparceners and in case of a sole surviving coparcener its nature is revived once he has a male/female issue.
In Rohit Chauhan v. Surinder Singh68(Rohit) the plaintiff’s father, father’s brothers and grandfather entered into a partition in 1969. Thereafter, upon the death of the grandfather, his share in the partitioned property devolved upon the plaintiff’s father and other brothers. The plaintiff was born subsequently in 1982. The plaintiff’s father alienated the property that fell to his share in 2001 and 2004 which was challenged by the plaintiff who claimed coparcenary rights in his father’s property. The Supreme Court upheld the plaintiff’s claim on the ground that though the plaintiff was not born at the time of partition, the property revived its ancestral nature upon his birth. Since the alienations were made after the birth of the plaintiff, it would affect the plaintiff’s coparcenary rights and were therefore, null and void.
Rohit69 was followed in Arshnoor Singh v. Harpal Kaur70where the great-grandfather of the appellant passed away in 1951 with all his properties devolving on his sole child i.e. grandfather of the appellant. During the lifetime of the grandfather, his property was partitioned equally amongst his three sons including the father of the appellant. The grandfather passed away in 1970, and was survived by his widow, 3 sons and a daughter. The father of the appellant thereafter alienated the property devolved upon him. The appellant sought a declaration that the alienation was null and void since the property was coparcenary property. The Supreme Court held that the alienation was null and void since the property alienated was coparcenary in nature.
In M.Yogendra v. Leelamma N.71it was held that:
- 29. It is now well settled in view of several decisions of this Court that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.72
The decision in Vineeta73 does not deal with these aspects and the law as stated above remains unaffected by the decision in Vineeta74.
(v) Succession upon death of propositus
Devolution of coparcenary property through survivorship under Mitakshara75was done away with by Section 6(1) HSA, if a male died intestate leaving behind female relations under Section 876. The 2005 Amendment did away with survivorship completely and Section 8 now applies to devolution of coparcenary property also, in the same manner as separate property. The question which arises is whether coparcenary property inherited by a male coparcener by operation of Section 6 read with Section 8 would so retain its nature.
In Bhanwar Singh v. Puran77(Bhanwar), the plaintiff’s grandfather died in 1972 and his children including the plaintiff’s father succeeded to joint family property by operation of Section 8 since succession opened after the HSA came into force. The plaintiff was born in 1977 and the plaintiff’s father alienated his share of property in 1985. The plaintiff sought to challenge the sale on the ground that the property was coparcenary in nature. The Supreme Court upheld the sale on the ground that the coparcenary nature of the property ended when devolution occurred through Section 8 and Section 19 HSA78 which states that the property devolves per capita on the heirs and not per stirpes.
Bhanwar79 was followed in Uttam v. Saubhag Singh80 (Uttam) where the grandfather of the plaintiff passed away in 1973 and his property devolved on his widow and sons. The plaintiff was born in 1978 and filed a suit for partition in 1998 which was decreed in 2000. The Supreme Court, applying the concept of notional partition in Explanation I to Section 6, held that since the grandson was not born at the time of his grandfather’s death, he would not be entitled to a share in his grandfather’s property as a coparcener. It was observed that since the date of death of his grandfather was after the commencement of HSA, Sections 6 and 8 would apply and when ancestral property devolves by application of Section 8, members hold such property as tenants-in-common and not joint tenants by virtue of Sections 481, 8 and 19 of HSA. In effect the Mitakshara coparcenary comes to an end on application of Section 8 and subsequent generations cannot seek coparcenary rights in such properties.
The factual matrix in Rohit82 and Bhanwar83 are similar but the differentiating factor is the mode of devolution of coparcenary property. Uttam84 differentiated Rohit85on the ground that it did not deal with succession under Section 8 HSA since the propositus was alive when properties were partitioned. Similarly, Arshnoor86 differentiated Uttam87with the following observation:
7.8.…the succession opened in 1973 after the Hindu Succession Act, 1956 came into force. The Court was concerned with the share of the appellant’s grandfather in the ancestral property, and the impact of Section 8 of the Hindu Succession Act, 1956. In light of these facts, this Court held that after property is distributed in accordance with Section 8 of the Hindu Succession Act, 1956, such property ceases to be joint family property in the hands of the various persons who have succeeded to it. It was therefore held that the appellant was not a coparcener vis-à-vis the share of his grandfather….88
The Supreme Court in Arshnoor89 observed that the succession would open in 1951 when the great-grandfather of the appellant passed away, and therefore HSA would be inapplicable, whereas in Uttam90, the share of a grandson born after the death of the grandfather was in question. Therefore, it was held, as per Mitakshara, the property would be ancestral property in the hands of his grandfather and father and subsequently his son. Property received in partition is self-acquired in the absence of coparceners but once a son is born, the ancestral nature of the property is revived.
It is pertinent to note that in Uttam91 the concept of notional partition has been applied only to the extent of determining the share of the coparcener prior to his death. The share allotted on such notional partition to his male issue has not been distinguished from the share allotted by operation of Section 8 or Section 3092 HSA.
The following illustration demonstrates the above observations.
Illustration 2
A is the propositus of a Mitakshara coparcenary and has a wife W, son B, and daughter C. B has a son D. C has a daughter E. A dies intestate and B files a suit for partition immediately after his death.
Death in 1950: Prior to HSA
On A’s death, the property devolves through survivorship and both B and D can exercise coparcenary rights over it. B holds the property as ancestral property vis-à-vis D irrespective of whether D was born before or after the partition. However, D cannot question any alienation by B prior to D’s birth.
Death in 2001: After HSA but prior to 2005 Amendment
On A’s death, proviso to Section 6 applies due to the presence of Class I female heirs W and C. Devolution of property takes place through intestate succession as per Section 8 and not by survivorship. Shares will be determined using the device of notional partition as per Explanation I to Section 6.
On notional partition, A and B would take ½ share each. A’s ½ share would then devolve on B and D on the basis of Section 8 and W takes a share equal to B depending on the school of Mitakshara.
Per Uttam
Entire share held by B (share obtained through notional partition under Explanation I to Section 6 and through Section 8) loses its ancestral nature by virtue of Section 4 read with Section 19 and D will not have right in the coparcenary property although a coparcener irrespective of whether D was born before or after the death of A. Consequently, D’s progeny are coparceners but do not have a right in coparcenary property. In other words, the coparcenary ended with the death of A at all levels/branches of the coparcenary.
Death in 2019: After 2005 Amendment
On A’s death, Section 6(3) of the HSA applies and not survivorship. A’s share in the coparcenary property is determined through the device of notional partition. B and C take shares as coparceners and the share of A determined through notional partition will devolve equally on B and C as per Section 8. Property in the hands of B and C retains its ancestral nature qua D and E respectively. However, on the death of B and C, by operation of Section 6(3), their shares would devolve in accordance with Section 8 or Section 30 HSA as applicable.
From the above discussion, the disparate application of the law can be explained by the fact that continuation of coparcenary nature of property and the coparcenary itself is dependent on its mode of devolution. In case of partition i.e. where coparcenary property is divided between coparcenary when the propositus is alive, the property after partition retains its coparcenary nature qua subsequent generations of coparceners. In the hands of a sole surviving coparcener, it becomes his separate property until a coparcener is born. In case of succession i.e. when the coparcenary property is to be partitioned upon the death of the propositus Sections 6, 8 and 19 HSA have been interpreted to bring about an end to the coparcenary and a share so allotted becomes separate property in the hands of the coparceners and subsequent generations cannot exercise any coparcenary rights over such property.
Vineeta93 cites both Rohit94 and Yogendra95 reiterating that coparcenary property retains its nature upon partition in respect of subsequent generation of coparceners. However, by obliterating the relevance of date of death being the date on which succession opens and devise of notional partition, Vineeta96 alters the nature of coparcenary property qua future generations.97
A close reading of Vineeta98 reveals that it leans towards Uttam99 and rings a death knell on the Mitakshara coparcenary by diluting the devise of notional partition. In the same breathe Vineeta100 has also clarified that “Coparcenary or HUF, as the case may be, does not come to an end by statutory fiction.”101 thereby implicitly overturning Uttam102. Thus, the result in Uttam103remains unchanged byVineeta104 since the latter has only disagreed with Uttam105 reasoning justifying the result but has introduced its own reasoning which supports the same result. The position after Vineeta106 is illustrated hereunder:
Illustration 3
A is the propositus of coparcenary property. W is the wife of A. A has a son B and daughter C. B has a son D and C has a daughter E. A died in 2004 and is survived by W, B, D,C, and E. B files a suit for partition in 2010 which is pending consideration as of date.
Prior to Uttam
Succession opened in 2004 on A’s death. As per the concept of notional partition, A and B would take ½ share each as coparceners. Thereafter, A’s ½ share would devolve on B, W, and C in accordance with Section 8 HSA. The share so received would continue as coparcenary property vis-à-vis B’s branch.
Uttam
As per Uttam107, the entire share received by B would lose the nature of coparcenary property. D would not have any coparcenary rights over the property.
Vineeta
Since the suit is pending, irrespective of date of death of A, both B and C are coparceners. B and C’s share would continue to remain coparcenary vis-à-vis D and E respectively B and C can therefore not alienate the coparcenary property without D’s consent respectively.
(vi) Separation of share does not disrupt coparcenary
A coparcenary does not cease merely upon one or few members expressing their intention to separate and it may continue vis-à-vis the others.108Whether the coparcenary continues is a question of fact to be determined by the court.109Separation of share is only a species of partition.110
In Vineeta111, three decisions112 were relied upon as authority for the proposition that severance of status has to be followed by immediate separation for the Mitakshara to cease.113 In Palani Ammal114 and Ramabadra115whilst discussing the consequences which follow when all members separate as opposed to when only one member separates, it was held that Mitakshara may continue vis-à-vis the others. It was in this context that observations were made that all instances of severance of status do not disrupt the coparcenary and if only one member has separated, the others may continue as a coparcenary. In Gangabai116 the question was whether a family arrangement pleaded resulted in partition of all Mitakshara properties although only certain properties were divided by metes and bounds and others were enjoyed jointly as tenants-in-common. It was held that the family arrangement disrupted the entire family including the lands enjoyed jointly and yet to be divided by metes and bounds. These cases pertaining to separation of shares which does not necessarily disrupt the coparcenary have not departed from Mitakshara and reliance on the same in Vineeta117for the proposition that actual division alone disrupts the Mitakshara may not be wholly apposite.
One of the questions that arise in cases of separation of share is whether the share of the branch which has separated should be deducted from the share due to his branch in a subsequent partition or whether severance of one branch should be ignored and a subsequent partition is to be effected on a clean slate. The same is explained by way of the following illustration:
Illustration 4
A has two sons B and C and they have a son each B1 and C1and A, B, C, B1 and C1 form a coparcenary. In a suit for partition is filed by B1 he is entitled to ½th share. A, B, C, and C1 continue as a joint family and B1 has separated after the suit.
In a subsequent partition between A, B, C and C1 whether the 1/6th share of B1 has to be deducted from B’s branch or ignored. In other words, will B’s share be 1/3-1/6th or 1/3rd of what remains. The Madras school118 advocates deduction of the share of B1 from that of B whilst Bombay school119 advocates the latter view. Eminent commentators on the subject such as Raghavachariar have suggested an amalgamation of both views to correct inequities which may arise in the facts of each case.120
(vii) Death of collateral does not disrupt coparcenary
Vineeta121 has held that death of a coparcener/collateral does not bring about a disruption of the coparcenary and surviving members can continue as a coparcenary until a subsequent partition122 and share of the deceased coparcener has to be calculated with reference to property available “at the time of death of the deceased coparcener.”123 In other words, Vineeta124 is advocating the Madras view stated above in the case of death of a coparcener. However, this has to be reconciled with effect of change of law also formulated by Vineeta125 which is illustrated below.
Illustration 5
In Illustration 4 if C has died prior to the partition leaving behind is wife W and son C1, A, B, B1 are the surviving coparceners. If C1 and W file a suit for partition the share of C will be as it stood on the date of his death. A, B, C will get 1/3rd each and C’s 1/3rd will devolve in his branch as per Section 6 applying the device of notional partition since he is survived by W. After the death of C, the coparcenary can continue with A, B and B1 and discerning the share of C does not disrupt the coparcenary completely. Whether the 1/3rd share which enured to C has to be deducted or partition has to be carried out between surviving coparceners will depend on the Madras or Bombay view cited above.
If A also had two daughters D1 and D2, and C had died prior to 2005 Amendment and State Amendments, a suit for partition was filed after 2005 Amendment the question arises as to whether C’s share will be as on the date of his death or date on which final decree is drawn up.
If suit filed immediately on C’s death
A, B, C will be entitled to 1/3rd share on C’s death. The coparcenary continues. The device of notional partition does not apply to discern C’s share since A the propositus is alive.
If suit decreed after Vineeta
A, B, C, D1, and D2 are entitled to 1/5th each applying the 2005 Amendment and Vineeta126. If share of C crystallised on his death then 1/3rd share of C has to be deducted from the estate and A, B, D1, and D2 take a share in remaining estate.
If A dies after Vineeta
If A also dies during the pendency of the suit and survived by widow W, then A, B, C, D1, W, and D2 will be entitled to 1/6th each (applying notional partition and assuming they follow Bombay school) and the 1/6th share of A will be redistributed amongst B, D1, D2, W.
In the opinion of the authors, one has to bear in mind the distinction between death of a collateral and a propositus/father, which has been brought into focus by the decision in Vineeta127 since it is a decision which pertains to daughters as coparceners of their fathers. Vineeta128 does not deal with share of collaterals. In such cases whether the dictum in Vineeta129 applies remains an unresolved question.130 The above illustration also indicates the difference when C, a collateral has died and A the father remains alive since notional partition does not apply vis-à-vis C’s share when the propositus A is alive while calculating the share of C. Since notional partition does not apply to death of collaterals, the view in Vineeta131on partial partitions is obiter dicta.
(viii) Dichotomy between partition under taxation law and Hindu Law obliterated
Section 171 of the Income Tax Act, 1961132 ascribes a special meaning to “partition” of estate of a Mitakshara coparcenary by confining it to physical division of property.133 Severance of status, or division of income without dividing the estate are not recognised as partition through a deeming fiction.134Such an understanding has been posited under the fiscal statute keeping in mind the interest of the revenue although it does not accord with the understanding under Mitakshara which is the substantive personal law governing this aspect. This dichotomy was noted and justified by the Supreme Court in ITO v. N.K. Sarada Thampatty.135 The decision in Vineeta136, by relying on Sarada137to buttress its finding that partition necessarily means actual division of estate, has overlooked the special meaning ascribed to “partition” under the Income Tax Act and the context in which the decision in Sarada138 was rendered. Resultantly, Vineeta139 has brought personal law (Hindu Law) in line with taxation law on the aspect of disruption of coparcenary.
Conclusion
The following conclusions emerge from the above:
i) Post-Vineeta140 a Mitakshara coparcenary continues till such time actual division of estate has not taken place. The only understating of partition is division by metes and bounds, and severance of status is now irrelevant.
ii) Since actual division of estate alone disrupts the coparcenary, all changes in law pertaining to change in the body of coparceners have to be noted. This alters not only the share per capita but also the share per stirpes.
iii) In the opinion of the authors, the view that severance of status is no longer relevant has to be confined to cases to accommodate the amendment recognising daughters as coparceners since rationale for departing from classical Hindu law in Vineeta141was to give effect to this beneficial amendment.
iv) Severance of status must remain relevant in other cases for instance where alienations are questioned because if severance of status takes place only on division by metes and bounds it sets at naught those alienations/mortgages of individual shares even without division by metes and bounds and cases where severance of status has taken place without actual division and the property is being enjoyed jointly although nature of ownership is tenants-in-common.Vineeta142 severely restricts the manner of enjoyment of coparcenary property and introduces new formalities for dealing with the same.
v) The view of the authors is supported by the fact that Vineeta143 has not overruled the three-Judge Bench decision in Raghavamma144and Puttarangamma145but has only added a rider that in applicable cases change of law is to be noted.
vi) Vineeta146 was a tight rope walk to balance severance of status understood by Mitakshara with ensuring daughters gets a share as coparceners. The question remains whether the amendment to Section 6 recognising daughters as coparceners could have been made applicable to pending cases without departing from the law on severance of status.
vii) Devolution of coparcenary property under Section 6 HSA is closely modelled on the manner of devolution of separate property as per Section 8 HSA on account of dilution of the effect of the devise of notional partition by Vineeta147thereby impeding subsequent generation of coparceners from exercising rights as coparceners.
* BA LLB (Hons.) NALSAR; Advocate, Karnataka High Court. Author can be reached at aparnabhushan04@gmail.com.
**BA,LLB (Hons.) (NLSIU); BCL (Oxon); Advocate, High Court of Karnataka. Author can be reached at nayanatara.bg@gmail.com.
1http://www.scconline.com/DocumentLink/k0WmkSp1.
2 Hindu Succession Act, 1956. http://www.scconline.com/DocumentLink/7stFp3DE.
[3] (2020) 9 SCC 1 (Vineeta). For a detailed analysis see Aparna and Nayana Tara, “Daughters as Coparceners: Unresolved Questions” (2020) 8 MLJ 32.
5Hindu Succession (Amendment) Act, 2005.
6N.R. Raghavachariar, Hindu Law: Principles and Precedents, 3rd Edn., p. 253 (Raghavachariar).
7Vineeta, (2020) 9 SCC 1, paras 23-25.
8Vineeta, (2020) 9 SCC 1, paras 23-25.
9Vineeta, (2020) 9 SCC 1, paras 23-25.
10Appovier v. Rama Subba Aiyan, (1866) 11 MIA 75 (Appovier).
11Appovier v. Rama Subba Aiyan,(1866) 11 MIA 75 (Appovier).
12Raghavachariar at p. 256.
13Appovier, (1866) 11 MIA 75; Suraj Narain v. Iqbal Narain, 1912 SCC OnLine PC 50 (Suraj); Girja Bai v. Sadashiv Dhundiraj, 1916 SCC OnLine PC 31 (Girija).
14Mukund Dharman Bhoir v. Balkrishna Padmanji, 1927 SCC OnLine PC 68.
15Girja, 1916 SCC OnLine PC 31; Balkrishna v. Ramkrishna, 1931 SCC OnLine PC 31.
16Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136 (Raghavamma).
17Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar, (1979) 4 SCC 60.
18Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar, (1979) 4 SCC 60.
19Appovier, (1866) 11 MIA 75; Raghavchariar at p. 425.
20Appovier,(1866) 11 MIA 75; Kawal Nainv. Budh Singh,1917 SCC OnLine PC 25.
21Girja, 1916 SCC OnLine PC 31; Mukund Dharman Bhoir v. Balkrishna Padmanji, 1927 SCC OnLine PC 68.
22Girja, 1916 SCC OnLine PC 31; Kawal Nain v. Budh Singh, 1917 SCC OnLine PC 25;Hardeo Rai v. Sakuntala Devi,(2008) 7 SCC 46; Syed Kasam v. Jorawar Singh,1922 SCC OnLine PC 21.
23Raghavachariar at p. 373.
24Kalyani v. Narayanan, 1980 Supp SCC 298.
25Puttarangamma v. M.S. RangaAnna, AIR 1968 SC 1018.
27Rama Ayyar v. Meenakshi Ammal, 1930 SCC OnLine Mad 216 and Nyapati Narayana Rao v. Mudhavalapu Purushothama Rao,1937 SCC OnLine Mad 231
34Vineeta, (2020) 9 SCC 1, para 88.
47Vineeta, (2020) 9 SCC 1, para 107.
48Vineeta, (2020) 9 SCC 1, para 103
54http://www.scconline.com/DocumentLink/h7G5KbD4.
55http://www.scconline.com/DocumentLink/9etOajU7.
60Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992.
61Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689.
62See Or. 20 R. 18 of the Code of Civil Procedure, 1908.
64Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383 (Gurupad).
70(2020) 14 SCC 436 (Arshnoor). See also, Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646.
71(2009) 15 SCC 184 (Yogendra).
72See also C. Krishna Prasad v. CIT, (1975) 1 SCC 160; Sheela Devi v. Lal Chand, (2006) 8 SCC 581.
75Raghavachariar at p. 285.
76http://www.scconline.com/DocumentLink/045wE16k.
78http://www.scconline.com/DocumentLink/Rqmw9c35.
80(2016) 4 SCC 68 (Uttam). See also, Bhanwar Singh v. Puran, (2008) 3 SCC 87; CWT v. Chander Sen, (1986) 3 SCC 567; Yudhishter v. Ashok Kumar, (1987) 1 SCC 204.
81http://www.scconline.com/DocumentLink/lSScsIS2.
92http://www.scconline.com/DocumentLink/6akYcyAr.
97See Aparna and Nayana Tara, “Daughters as Coparceners: Unresolved Questions” (2020) 8 MLJ 32.
101Vineeta, (2020) 9 SCC 1, para 105.
108Palani Ammal v. Muthuvenkatacharla Moniagar, 1924 SCC OnLine PC 61.
109Bal Krishna v. Ram Krishna, 1931 SCC OnLine PC 31.
110Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689.
112Palani Ammal v. Muthuvenkatacharla Moniagar, 1924 SCC OnLine PC 61 (Palani Ammal); T.S. Ramabadra Odayarv. T.S. Gopalaswami Odayar,1930 SCC OnLine Mad 82 (Ramabadra); Gangabai v. Punau Rajwa Teli, 1955 SCC OnLine MP 39 (Gangabai).
113Vineeta, (2020) 9 SCC 1, para 95.
118A.M. Narayana Sah v. A. Sankar Sah, 1929 SCC OnLine Mad 53.
119Pranjivandas v. Ichcharam, 17 Bom LR 712.
120Raghavachariar at p. 420.
122Vineeta, (2020) 9 SCC 1, para 111.
123Vineeta, (2020) 9 SCC 1, para 112.
130See Aparna and Nayana Tara, “Daughters as Coparceners: Unresolved Questions”, (2020) 8 MLJ 32.
132http://www.scconline.com/DocumentLink/Ja3Fl274.
133Expln.(a) to S. 171 of the Income Tax Act, 1961.
134Expln.(a) to S. 171 of the Income Tax Act, 1961.
