Devolution of Interest in Coparcenary Property before Hindu Succession (Amendment) Act, 2005
It is worthwhile to note that the Mitakshara law recognised two modes of devolution of property namely, survivorship and succession. The rule of survivorship applied with respect to coparcenary property, whereas the rule of succession applied to property held as separate or self acquired property by male Hindu who may be a member of joint family.
The property of a male Hindu may consist of his own separate or self acquired property or an interest in the Mitakshara coparccnary property or both. Whenever a question arises as to mode of devolution of coparcenary interest of a Mitakshara Coparcener, Section 6 of the Hindu Succession Act, 1956, provides the solution. Section 6 runs as under:
“Whenever a male Hindu dies after the commencement of this Act, having at the time of his death, an interest in the Mitakshara Coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him 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, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
For the purposes of this Section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Nothing contained in the proviso to this section shall be construed as enabling a person who has 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. This section may be read with Sections 8 and 30 of the Act.”
The Section contains one of the most revolutionary changes in this Act. First of all, it provides a rule of survivorship to be applied with respect to an undivided share in the Mitakshara coparcenary property of a Mitakshara coparcener who dies intestate. At the second instance, it provides a special rule of devolution of undivided share of Mitakshara coparcener in Mitakshara coparcenary property who dies intestate.
In the second case the devolution will be in accordance with the provisions of this Act, which lay down that where a Mitakshara coparcener dies intestate leaving behind a female heir of class I or a male heir claiming through such female heir, the rule of survivorship will not apply, instead the undivided interest will devolve in accordance with this Act, i.e., according to intestate succession under Section 8. Thus two modes of devolution of undivided coparcenary interest of a Mitakshara coparcener has been laid down in section 6.
(i) The rule of survivorship—(first part of Section 6)
(ii) The rule of succession—(Proviso to Section 6)
The first mode, as given above, is strictly according to Mitakshara law, whereas the second mode is the creation of this Act, which includes the female heirs of class I also, along with the male heirs, who shall be entitled to claim equal shares in the coparcenary interest of Mitakshara coparcener dying intestate.
The implications of the first mode would be that where the Mitakshara Coparcener dies intestate leaving behind only the male heirs of class I the rule of survivorship will apply. This kind of situation can hardly be conceived, as the rule of survivorship will come into operation only if there is complete absence of female heirs of class I heirs. On the other hand presence of any of the female heirs of class I would demolish the rule of survivorship and the entire law of devolution will be governed by intestate succession as laid down in Section 8-12.
In any case the concept of Mitakshara coparcenary and coparcenary property remains relevant in the context of Sections 6 of the Act.