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Updated: Feb 20, 2022


Human greed has no bonds and ends the rush to acquire worldly possessions is a reality witnessed vastly by the materialistic world. Poverty and power remain the biggest cause of disputes the world over and India is no exception to it[i]. The struggle over women's property rights[ii] has been prolonged and the achievements have been few.

Furthermore, most reforms were aimed at protecting the rights of women until the Hindu Succession Act of 1956. The idea of the notional partition is introduced[iii] in section 6 of the Hindu Succession Act, with the daughter as a class I heir, was probably one of the first steps in the statutory recognition of a daughter's right in her father's property[iv].

Hindus are the only concept of the Hindu family which is lawfully recognised. Two law schools, Mitakshara and Dayabhaga, govern the law of the Hindu Undivided Family in Indian law. The family land for the latter was transferred as separate property. In Mitakshara, however, common family ownership was intestate to all classes, while the "notional" share of the deceased man remained untouched – heirs of I ( including female) in equal parts.

The Hindu Law Committee had proposed that the principle of right by birth should be removed before the above-mentioned act. The Hindu Succession Act of 1956 represents a new period in Indian history. Any changes with far-reaching implications in the heritage and sequence-structure have been vigorously attempted.[v]. The legislation in these fields had to be revised completely, as some of the laws under the previous document law had become outdated. The Law Commission of India in its 174th Report on "Property Rights of Women: Proposed Reforms under the Hindu Law" in May 2000 mentioned in the introduction itself that:-

"Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself. This is particularly so in relation to laws governing the inheritance/succession of property amongst the members of a Joint Hindu family. It seems that this discrimination is so deep and systematic that it has placed women at the receiving end. Recognizing this, the Law Commission in pursuance of its terms of reference, which, inter-alias oblige and empower it to make recommendations for the removal of anomalies, ambiguities, and inequalities in the law, decided to undertake a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956. The study is aimed at suggesting changes to this Act so that women get an equal share in the ancestral property".[vi]

This initiative was however met with heavy social opposition from the conservative interests who rejected fair treatment for a daughter. It was even denied the suggestion of having coparceners of daughters. It took the House almost 50 years to guarantee a right of birth for children and, as seen by the numbers of irregularities that it made, the effort has also been half-hearted. It is presumably because of the lack of security under the old section 6 that daughters have to be introduced to be coparceners. Although the Hindu Succession Act allowed daughters to get an interest in the notional partition, it also allowed the co-parceners, foreign to the conventional Hindu constitution, to dispense with their undivided interest in the coparcenary. There was also a significant chance of the daughter's wishes being defeated.

In accordance with the amended law, the undivided share in Hindu family property shall be transferred based on the clarification of Article 6(3)(c) of the Hindu Succession Act to legitimate heirs on the death of one of the members of the coparcenaries. The share which is translated by metals and limits is only notional and not actual. The daughter becomes interested by birth and is still safe, even though the father has a will to dispose of his own interest. A had a family farm, for example, and he only had a son B who died untastefully. B had one son and a daughter. When B died, the family estate remained indivisible. Now B's kids will have the same share of B, that is to say, half of the family estate. However, before the 2005 update to the Hindu Succession Act, women of its ancestors had no right to share family land.


In the 1956 Hindu Succession Act, fundamental reforms were made into women's property concept:

a) There was a difference in old law between the heirs of men and women, but there was no differentiation in the Hindu Succession Act of 1956 among the heirs of men.

b) The old law only provided sons, grandchildren, and grandchildren of predecessor sons with the benefit of the doctrine of representation. However, the 1955 Hindu Succession Act applies the benefit of this doctrine to the sons of former daughters and to the daughters of previous sons and daughters of the former son of a late son, as well as the wife of the former son and widow of the former son.

The below are the categories of female heirs that are entitled to inherit:

· The daughter(s),

· The daughter’s-daughter’s son(s),

· The daughter’s-daughter’s daughter(s),

· The daughter’s son’s daughter(s), and

· The son’s daughter’s son(s).

(c) Under ancient law, certain women's heirs had no right to succeed to the benefit of the Mitakshara coparcener, but the 1956 Hindu Succession Act granted the right to the success of a certain female heir to the interests of a Mitakshara coparcener. This is only some of the broad lines of the 1956 Hindu Succession Act. Reforms were made.


In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum[vii]," the Supreme Court has interpreted “the theory of notional partition implanted in Section 6, its proviso and Explanation that it is made with a view to ascertain the share of the deceased’s widow in the coparcener property”[viii]

The brief facts of the case were as follows: “the joint Hindu family consisted of Karta, his wife, two sons and three daughters. On the death of Karta, his widow claimed a 7/24 share in the joint Hindu family property in which her husband had Coparcenary interest. The court held that the notional partition had, on the assumption that the actual partition occurred, be carried to its logical conclusion. The Court has translated the deemed or notional partition into an actual partition, destroying the joint Hindu family and crystallizing its shares.”

And in State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Others[ix],“the concern was whether women who inherited a common family estate share due to the death of a family member would cease to be a family member. Following reference to the Gurupad judgment, the Court concluded that the Gurupad ratio applied to certain cases in which a woman member had taken an interest in the coparcenary land, and it expressed her wish to leave the family by filing a lawsuit.”

In Uttam v. Saubhag Singh[x], the two Supreme Court judge bench held that “the position of the coparcenary comes to an end when a notional partition occurs when a co-parcener dies and the complete common coparcenary property becomes a separate property. The tribunal concluded that, after the death of the co-parent, the entire property that the family holds together will be transferred by intestate succession and not by survival.”

In Ramesh Verma(DEAD) Tr.Lrs vs Lajesh Saxena (DEAD) By Lrs & Anr[xi], A 2-judge supreme court bench held that “its separate property and not Mitakshara property were the share that was assigned to the father of the respondent in notional division under section 82 of the Madhya Bharat Land Code. It was also noted that the transfer of the respondent's estate would only take place in succession and not through survival in 1956 after the Hindu Succession Act.”

A two-judge court bench at para 7.5 held that “if a person inherits an ownacquired land from his ancestors, the property ceases to be coparcenary property”in Arshnoor Singh v. Harpal Kaur and others[xii]. Again in Radha Bai v. Ram Narayan and others[xiii], a two bench judge in Para 20 considered that “he had a share in the son assigned to him when his father died and could dispose of him in whatever way he wanted.”


The notional partition does not transform into a physical partition and does not cause the joint Hindu family to automatically interrupt. The purpose of the notional partition is to decide only the shares deriving from a member's death in order to split a portion of the proportion for female members. The idea is that a woman member is not to be reparted by the family until she reveals her intention to be split from the coparcenary by filing a suit for partitioning the joint Hindu family, but this does not mean she is not separated from her family. By filing a suit for partition she can get her property in metes and bounds which may have been notionally allocated to her, without disturbing the joint Hindu family and coparcenary property, with other members remaining joint. The share of the deceased coparcener that falls on the male members of the Hindu group under the notional division is the accretion of the remainder of the coparceners and is considered ancestral.

In conclusion, the Court also claims that the Apex Court misinterpreted the effect of the notional partition. The formation and intent of the Hindu family was strongly counterproductive to such an understanding. There is much uncertainty to date about the impact that membership gets on such a partition of the conceptual division, and the essence of the land. It is alleged to be essential for clearing the air of authoritative jurisdiction on these matters.

[i]Saxena, Poonam Pradhan, “LAW RELATING TO PARTITION vol. 43,no. 4, Journal of the Indian Law Institute, pp. 574–580 (2001). [ii]Shivani Singhal, Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 1956, 19 Student B. REV 50 (2007). [iii]Hindu Succession Act (Act 30 of 1956), s. 6 (3). [iv] Hindu Succession Act (Act 30 of 1956), s. 6. [v]Himanshu Gautam & Romil Talwar, Property Rights of Women: Analysis, 6 INDIAN J.L. & Just. 1 (2015). [vi]Law commission of India, “174th Report on Property Rights of women: Proposed reforms Under the Hindu Law”, (May 2000). [vii](1978) 3 SCC 383 [viii]Sivaramayya. B, “PARTITION OF JOINT HINDU FAMILY PROPERTY” 28 (2) Journal of the Indian Law Institute, pp. 226–228 (1986). [ix](1985) 3 SCR 358. [x] AIR 2016SC 1169 [xi](2017) 1 SCC 257. [xii] Civil Appeal NO. 5124 of 2019, delivered on July 1, 2019. [xiii]Civil Appeal NO. 5889 of 2009, delivered on November 2, 2019.

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