Notional Partition in Family Law | Hindu succession act 1956 notes

What is Notional Partition?

When a coparcener dies before without making any Will and leave behind some undivided coparcenary interest then that undivided coparcenary interest has to devolve upon his heirs through succession but for that purpose it has to be found out as to what would have been his actual share in joint property. However, since he is dead now, an actual partition to allocate his share will not be possible and therefore a legal fiction has been created through Explanation under Section 6(3) of Hindu Succession Act. According to this, it is to be deemed that an actual partition was done in the family immediately before the death of the coparcener and by ordinary rules of partition it will be examined as to what share would have been allocated to the deceased coparcener. It is this share which will now devolve by succession. Since it is a mere legal fiction therefore it is called fictional, deemed or notional partition. The notional partition is not a real partition, it neither effects a severance of status nor does it demarcate interest of other coparceners or those who are entitled to a share on partition.

The concept of deemed partition contained under Section 6(3) of the Hindu Succession Act, 1956 which was amended by Hindu Succession (Amendment) Act, 2005 which brought significant changes in the law of Mitakshara coparcenary. The law prior to and after the amendment is discussed as under :—

Notional partition before amendment

Prior to the amendment of 2005, the concept of notional partition was contained in Explanation 1 to Section 6 of Hindu Succession Act. Since, in a Mitakshara coparcenary, the shares of coparceners are not defined, their fluctuating interest is fixed by the explanation for the purpose of its devolution.,

Explanation 1 lays down that for the purpose of Section 6 the interest of the deceased coparcener shall be the share which he would have got, had there been a partition immediately before his death irrespective of whether he was entitled to claim partition or not. Thus, though the partition to ascertain the share of deceased is presumed to have taken place before his death, it does not automatically result in disruption of family.

Explaining the position in State of Maharashtra v. Narayan Rao, AIR 1985

SC 716, the Supreme Court held that in order to ascertain the share of the heirs in the property of deceased coparcener, it is first necessary to ascertain the share of the deceased in coparcenary property. Explanation 1 to Section 6 resorts to fictional expedients that interest of Mitakshara coparcener shall be deemed to be the share that he would have got if partition of the property had taken place soon before his death.

After ascertaining the coparcenary interest of the deceased coparcener in coparcenary property, his interest becomes subject to devolution according to the provisions of the Act.

Position after that amendment of 2005

After the enactment of Hindu Succession (Amendment) Act, 2005, following significant changes have been made in Section 6:-

(i) The daughter of a coparcener will become a coparcener by birth in her own

right.

(ii) The interest of deceased coparcener will devolve not by survivorship but by succession (testamentary or intestate) and the coparcenary property shall be deemed to have been divided as if the partition has taken place and -

(a) The daughter is allotted the same share as the son.

(b) The share of a predeceased (son or daughter), as they would have got at the time of partition shall be allotted to his or her surviving child, and

(c) If such child is not alive, then share shall be allotted to the child of such predeceased child of predeceased son or predeceased daughter, as the case may be.

Explanation to Section 6(3) is akin to Explanation 1 of unamended Section 6

which talked about notional partition.