Hindu Succession Act| To Ascertain Shares Of Heirs In Coparcenary Property Of Deceased, First Step Is To Determine Share Of Deceased Himself: SC Reiterates

The Supreme Court has reiterated that in order to determine the shares of heirs in the Mitakshara Coparcenary Property of a deceased coparcener, the first step is to ascertain the share of the deceased on the date of his death.

The Court placed reliance on the judgment of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and others [(1978) 3 SCC 383, in which the Apex Court had observed -

"It was held therein that, in order to ascertain the shares of the heirs in the property of a deceased coparcener, the first step is to ascertain the share of the deceased himself in the coparcenary property and Explanation 1 to Section 6 provides a fictional expedient, namely, that his share is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death. It was pointed out that once that assumption has been made for the purpose of ascertaining the share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs without reference to it, and all the consequences which flow from a real partition have to be logically worked out, which means that the shares of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life-time of the deceased."

The Court dismissed a Petition filed by one of the daughters of the deceased. The Petitioner had demanded an individual share and partition after the demise of their father, which her brother rejected. Subsequently, the Trial Court granted her 1/3rd share in the property, but the High Court modified the order to 1/6th share during an appeal.

The Bench comprising Justice C.T. Ravikumar and Justice Sanjay Kumar observed, “Applying this principle, the share of Phannuram would first have to be determined as on the date of his death. He seems to have had two brothers and would have been entitled to a 1/3rd share in the coparcenary properties, if a partition had been effected before his death. In fact, such a partition was actually effected in 1964 and Phannuram’s 1/3rd share was allotted to his only son, Vishal. However, Vishal was a coparcener in his own right in a separate coparcenary with his father and would be entitled to a share in that coparcenary property by birth”.

Advocate Manoj Sharma appeared for the Appellants and Advocate Richa Kapoor appeared for the Respondents.

The case centered on the inheritance of a Mitakshara coparcenary property that belonged to Phannuram Sahu. Phannuram had two wives and several children. After his passing, a partition was done, and Kesar Bai, Phannuram’s daughter from his first wife, was given a 1/3rd share in the coparcenary properties. However, one of Phannuram’s sons, Vishal, disagreed with Kesar Bai’s request for further partition and allocation of her share. Kesar Bai then filed a partition suit, which the Trial Court ruled in her favour, granting her a 1/3rd share in the agricultural land, two house properties, and mesne profits. Vishal and Keja Bai appealed this decision but lost in the Appellate Court. They appealed to the High Court, which partially allowed the appeal, reducing Kesar Bai’s share to 1/6th. The legal representatives of Kesar Bai were dissatisfied with the order and filed a Civil Appeal before the Supreme Court, challenging the decision of the High Court.

The Court reiterated that succession will be decided per Section 6 of the HSA. The Court noted that under Explanation 1 of Section 6, an heir is entitled to not only the share they received or would have received in a hypothetical partition but also their proportionate share in the actual interest that the deceased had in the coparcenary property at the time of their death. The Court observed that the heir inherits their defined share in the notional partition as well as their portion of the deceased’s actual interest in the property when they passed away.

The Court observed that Section 8 of the HSA pertains to intestate succession in the case of males. It outlines the sequence in which property will be passed down to heirs. The Court asserted that Class I heirs have the highest priority, followed by Class II heirs, agnates, and lastly the cognates.

“In consequence, the final division of the 1/3rd share of Phannuram in the coparcenary properties would be as follows: Vishal would be entitled to 4/6th share (1/2+1/6) therein, while his sisters, Kesar Bai and Keja Bai, would each get 1/6th share therein, as they would be entitled to lay claim only to the half-share of Phannuram”, the Court held. 

Accordingly, the Court dismissed the Petition and affirmed the decision of the High Court.

Cause Title: Derha v Vishal & Anr. (2023 INSC 785)

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