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Examining the Dilution of Survivorship and the Progression of Notional Partition

Yajas Achal

Jindal Global Law School


The paper seeks to examine with the help of case laws how the concept of notional partition has throughout the years developed into becoming a platform through which amendments are made to the discriminatory laws that have existed in the Hindu laws. The article tracks the different rights that were conferred at different points of time through its applicability, how it helped emancipate the positions of women in the society, and with regards to inheritance and the effect it had on the diminishing of the concept of survivorship.


The Classical Hindu laws gave no right to daughters in ancestral properties as all the inheritance laws were reserved for the male survivors through the doctrine of survivorship. There are various codifications and enactments that have contributed to diluting this doctrine of survivorship over time and in turn resulted in the strengthening of women’s rights to ancestral property.

Prior to 1937 a widow had no right to demand partition and a mother would only receive share on partition between brothers. The shares would be contingent on births and deaths and upon death the doctrine of survivorship would apply. The first codification, The Hindu Women’s Right to Property Act, 1937 however empowered women to right to partition and the right to hold his share by stepping into the shoes of the deceased coparcener. She had a right to enjoy any income arising out of the property or the property itself but not to alienate the property.

So to get a basic understanding if we had a family that consisted of a father, a son and a daughter in any time before 1956, the property at the death of the coparcener would all go to son as the sole surviving coparcener via the doctrine of survivorship.

The 1956 Hindu Succession Act further diluted the concept of survivorship after the 1937 Act as it limited the concept of survivorship only to cases where the coparcener had not left behind any class I female heirs or any male claiming through such a heir because in the absence of this, notional partition or testamentary succession would apply. Notional partition was a result of interpretation of section 6 by a three judge bench in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum[1] wherein it was held that when a Hindu dies, a partition is to take place thinking he is alive. He is subsequently allotted a share that then becomes personal and is allocated further to class I heirs. The judgment from the case of Gurudappa Khandappa essentially set up the theory that played a fundamental role in not only diluting survivorship but also providing recourse to women with regards to the ancestral property. Section 6 of the proviso now stated “if the deceased coparcener has left him a surviving female relative specified in Class I of Schedule to the Act 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 succession under this Act and not by survivorship.”[2] This enabled the daughters to get a share out of their father’s estate which a female heir normally would not from the coparcenary property. Once a coparcener died, the property would still be split in the same way as it would before with the only difference being that it was assumed that right before his death the deceased had asked for a partition in which case he would also get a certain share. At this point the ancestral property ceases to exist and the family members would be in possession of the property as tenants. This notion of the joint family property being converted into separate properties upon the notional partition division was introduced and upheld in Uttam v. Saubhag Singh & Ors[3] which was also susceptible to some criticism due to some underlying assumptions and flaws. In accordance with section 8 of the act the property that would have been computed to the deceased would then be allotted by intestate succession and not survivorship which would entitle the female heirs to a certain share of the property as well, via the deceased’s share of the property by virtue of being a first class heir irrespective of the gender. Through the act a coparcener was also empowered to make a will of his undivided interest in the coparcenary under Section 30 as opposed to earlier where a coparcener could not dispose his undivided interest in the coparcenary property by will and it was devolved by survivorship. In these ways the act confined the cases of survivorship to cases where male Hindu left undivided interest and no class I heir or son of predeceased daughter.

If we take aforementioned example we would see how this Act reinforced a women’s right to ancestral property as compared to before. If there were a father, son and a daughter, at the death of the father the property would be split into two portions according to notional partition and out of the deceased’s share the daughter would get half of the estate which would leave her with one fourth of the ancestral property as opposed to nothing before.

The Hindu Succession (Amendment) Act, 2005 completely abolished the doctrine of survivorship and further strengthened the position of the women substantially. This Amendment has substituted Section 6 from 9/9/2005. It was held that at the death of a Hindu his interest in the property of a joint Hindu family would devolve by testamentary succession and not by survivorship, furthermore the coparcenary property would be allocated as if a partition had taken place. The major amendments that altered their position was the interest of a Hindu coparcener would be deemed to be the share in the property that would have been allotted to him if a partition of a property would have taken place immediately before his death, without any weightage to whether he was entitled to claim partition or not which meant that notional partition would be applied in all cases essentially replacing survivorship.

Another amendment was that a daughter would be allocated the same share as that of a son which put them on an equal footing, and it also saw the inclusion of female Hindus as having a right of disposal of property by will. It was in the case of Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr[4] that the effect of the 2005 Amendment Act was first discussed. The court in this case pointed out how by entitling only men to be coparceners we are not only discriminating against women on the basis of gender but also violating their right to equality that is guaranteed to them by the constitution itself.

In the case of Prakash Vs Phulavati[5] it was held that the amendment to section 6 by the 2005 Act will not be held retrospectively and will be applicable only if the daughter is alive and her father should be alive on the date of the amendment. While the part about the father is in contradiction with the findings of the Ganduri case the aspect of the daughter being alive was laid down as it had not been deliberated on in any other judgments.

If we take the earlier used example in the setting of post 2005, at the death of the father the property will be split according to notional partition and both the son and the daughter will eventually get the same amount owing to both now being coparceners and also being entitled to the share of the deceased via being class I heirs through intestate succession. The said acts contributed towards eradicating the doctrine of survivorship in certain aspects and circumstances at first and then as a whole in 2005. Simultaneously the provisions mentioned above in each of these acts helped enhance the position of women with regards to their right in an ancestral property to an extent where daughters are now vested with the rights to seek partition and act as a Karta as was held in the case of Sujata Sharma v. Manu Gupta.[6]

[1] Gurupad Khandappa Madgum v. Hirabai Khandappa Magdum, AIR 1978 SC 1239 [2] The Hindu Succession Act, 1956 [3] Uttam v. Saubhag Singh, (2016) 4 SCC 68 [4] Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr. AIR2012SC169 [5] Prakash and Ors. v. Phulavati and Ors., MANU/SC/1241/2015 [6]Mrs Sujata Sharma v Shri Manu Gupta & Ors [CS (OS) 2011/2006]

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