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RECENT DEVELOPMENTS TO THE DOCTRINE OF NOTIONAL PARTITION AND ITS JUDICIAL APPROACH

Introduction

The notional partition’s goal is for the determination of shares that come from a member’s death in order to construct a share for females in that share. A female person gets an indefeasible property share of the deceased coparcenary in notional partition, but it doesn’t imply that she is segregated from the family, she can always access the property with the other men until she demonstrates her willingness to get divided by lodging a partition suit from the joint Hindu family. She could get her property in metes and boundaries that may have been conceptually allocated to her by lodging a partition suit, despite disturbing the coparcenary property and joint Hindu family. Female heirs weren’t granted the share in the property of ancestors before amending the Hindu Succession Act in 2005 (act). If the death of a coparcener occurs intestate, the Rule of Mitakshara needs to be changed to getting an equal part of the property. This idea reflects that when one of the coparceners died; there must be a fair share distribution between his male heirs and female heirs.

Recent Developments to the Doctrine of Notional partition

Section 6 of the 1956 act provides for the distribution of a person’s coparcenary or co-ownership asset to the interested ones if his death occurs with no will. In simple terms, if the death of a person of coparcenary property occurs without a will, the property passes to his three-generational male descendants. This is called survivorship. There was no right provided for female members in the act. As the wife is not deemed as a direct descendant of the deceased individual, she was provided with no privileges in the coparcenary property. This means that the male heirs were only deemed as coparceners. In 2005, amendments to the Hindu Succession Act were made by the Legislature. Among all, an amendment to section 6 of the Hindu Succession act 2005 is significant.  If only the male heirs of a family were there, the devolution of the property will be determined by the survivor. If a family contains both male heirs as well as female heirs, the survivorship idea will not apply; instead, the law will provide for devolution to the heirs.

A few major reforms through the Hindu succession amendment act 2005 are:
  1. Regardless of gender, all heirs have fair rights and they’ll be regarded by birth as coparceners.
  2. The deceased person’s daughter is entitled to coparcenary property like a son.
  3. Coming to liabilities, no difference can be observed, they are like equitable rights, so the liabilities are the same.
  4. Likewise, as in the male heirs’ case, 3 generation females are considered.
  5. The male heirs, as well as female heirs, are liable for debt repayment on behalf of their previous three-generational male fathers. Debt redemption doesn’t forward to the descendants, and if the debtor passes away, it stops.
  6. These amendments were relevant to a Hindu, whose interest in the property under Mitakshara law belongs to a common Hindu family and who passes away without a will after the amendment act has been passed.
  7. There are few eligible female heirs to inherit.
Judicial approach of Doctrine of Notional Partition

The Supreme Court in Vineet Sharma v. Rakesh Sharma[1] held that Daughters have the same entitlement as sons for inheriting the property of a joint Hindu family.  The court ruled that the modified act grants equal rights for daughters in getting the property of ancestors, which have a retroactive impact. As a result, a female born either prior to the amendment or afterwards is given the same status as a son under the amended section 6 of the 1956 act.[2] The court also overruled the views expressed in Prakash v. Phulvati[3], Mangammal v. TB Raju[4] and Danamma @ Suman Surpur v. Amar[5].

In Prakash v. Phulavati[6], it was reported that before the act was amended in 2005 when the deceased person died, his daughter lodged a lawsuit for getting an equitable portion like a coparcener in her father’s property. The court ruled that the act was intended to be potential, not retrospective in nature. So the death of a person before 2005 wouldn’t be considered by the amendment Act. The survivorship rule was applied here, and the female heir had no claim to her father’s wealth.

Prakash & Ors v. Phulavati & Ors.[7] and Danamma Suman Surpur & Anr. v. Amar[8] cases are questionable and contrary. As per the law construed in the Phulavati case, daughters weren’t authorised to the property shares. But in the Danamma case, the Supreme Court has chosen a varied opinion by stating that the initiation date was not valid to conception or birth, but only the preliminary principle and final decree as established in entirely different case of Ganduri Koteshwaramma  & Anr. v. Chakiri Yanadi & Anr.[9] This judgement entirely supported daughters and stated that they were entitled to the father’s share. These cases are now hard to understand as the verdicts caused confusion for many of the lower division courts.

In Yogendra & Ors v. Leelamma N. & Ors.[10], Yogendra married a second woman illegally though his first wife was surviving. The first wife has three daughters and the second wife has one daughter. For the contention of whether under sections 6 and 8 of the amended act, the second wife’s daughter was allowed as a coparcener to Yogendra’s property, the court ruled that the 2nd marriage was deemed illegal, null and void by the Hindu Marriage Act, 1955. So, the daughter of the second wife would not be regarded as a coparcener, but as Yogendra’s illegitimate daughter. As Hindu Succession Act coparcener, she cannot possess any property but like an illegal child, she can acquire the property under the Act which was amended.

In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and Ors.[11] in terms of sections 6 and 8 of the act, the court​​ ruled that the partition need to be considered and approved as a concrete reality, which can’t be recalled at a later stage.[12]

In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh[13], the query before the judges for consideration was can women who inherited the property share of the joint family due to the family member’s death ceased to belong to the family. After pointing to the Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum[14], the court decided that the ruling, in this case, applied to specific case laws in which a family member had inherited a coparcenary property interest and expressed her desire to leave the family by lodging a partition suit.

In Uttam v. Saubhag Singh[15]the Supreme Court bench held that the coparcenary status ends if there is a notional division upon coparcener’s death, and the whole joint coparcenary property is transformed to a distinct one. The court ruled that the family property held jointly would be passed by intestate inheritance, not by survivorship rule after the coparcener’s death, and therefore the grandsons would not survive in the joint family property.

In Arshnoor Singh v. Harpal Kaur[16], the Apex Court bench ruled that when a person inherits property that is self-acquired from his ancestor that stops being coparcenary.

Recommendations and Conclusion

The Apex Courts analyzed the impact and intent of Notional partition incorrectly in many judgments. A lot of misunderstanding was there about the impact of this doctrine and the essence of the assets that every person receives until this recent decision of the Supreme Court. The court might have tried earlier for the fulfilment of society’s interest. It became late and many females didn’t get a chance to ask for a property share. After the Hindu Succession amendment in 2005, the primary purpose of this act is to assure all heirs eligible for the coparceners’ status in the estate of the family. The fundamental purpose and objective of inheritance equality can be accomplished through this amended act. The move made by this amendment to the act to eliminate inequalities in gender is very noticeable, but there is still a lack of social perception of gender equality in Indian society and that should be accomplished.

Author(s) Name: Chidige Sai Varshitha (Damodaram Sanjivayya National Law University, Visakhapatnam)

References:

[1]  Vineet Sharma v. Rakesh Sharma AIR 2020 SC 3717

[2] ‘Daughters have equal birthright to inherit property: Supreme Court’, (The Hindu, 11 August 2020), <https://www.thehindu.com/news/national/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/article32325891.ece> accessed on 07 January 2022

[3] Prakash v. Phulvati AIR 2016 SC 769

[4] Mangammal v. TB Raju & Ors. (2018) 15 SCC 662

[5] Danamma Suman Surpur & Anr. v. Amar (2018) 3SCC 343

[6] Supra Note 3

[7] Id

[8] Supra Note 5

[9] Ganduri Koteshwaramma v Chakiri Yanadi AIR 2012 SC 169

[10] Yogendra & Ors v Leelamma N. & Ors. 2009 (15) SCC 184

[11] Gurupad Khandappa Magdum v Hirabai Khandappa Magdum and Ors 1978 AIR 1239

[12] Aditya Anand, ‘Hindu Law Practice Questions for CLAT PG 2021’ (Lawctopus, 22 December 2020) <https://lawctopus.com/clatalogue/hindu-law-practice-questions-for-clat-pg-2020/> accessed on 07 January 2022

[13] State of Maharashtra v Narayan Rao Sham Rao Deshmukh 1985 AIR 716

[14] Gurupad Khandappa Magdum v Hirabai Khandappa Magdum 1978 AIR 1239

[15] Uttam v Saubhag Singh AIR 2016 SC 1169

[16] Arshnoor Singh v Harpal Kaur AIR 2019 SC 3098

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