A and his three Sons B, C, and D constituted a Mitakshara Coparcenary. B gets himself separated. Then A dies leaving behind the three sons and a widow W. B demands a share in the interest of A in the Coparcenary property as well as his separate property. But other heirs refuse to give him. Decide.

Question: A and his three Sons B, C, and D constituted a Mitakshara Coparcenary. B gets himself separated. Then A dies leaving behind the three sons and a widow W. B demands a share in the interest of A in the Coparcenary property as well as his separate property. But other heirs refuse to give him. Decide.

Find the answer only on Legal Bites. [A and his three Sons B, C, and D constituted a Mitakshara Coparcenary. B gets himself separated. Then A dies leaving behind the three sons and a widow W. B demands a share in the interest of A in the Coparcenary property as well as his separate property. But other heirs refuse to give him. Decide.]

Answer

Section 6 of the Hindu Succession Act 1956 provides

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara Coparcenary property, his interest in the property shall devolve by survivorship upon 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 male relative specified in that class who claims through such female relative, the interest of the deceased in coparcenary property shall devolve by testamentary or intestate succession.

Explanation No. 2 to Section 6 says that nothing contained in the provision of this Section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased.

Section 8 of the Hindu Succession Act says ” property of a male Hindu dying intestate shall devolve according to provisions of chapter (a) firstly upon the heirs being relatives specified in class I of the schedule….”

Since under old Mitakshara School of Hindu Law, the joint family property devolves the survivorship. This concept has been retained in Section 6 of the Hindu Succession Act.

However, proviso to Section 6 says if a deceased having interest in coparcenary property at the time of his death is survived by a female relative of class I of schedule of Act or a male relative of said class, claiming through such female then his interest in coparcenary property shall devolve by testamentary or intestate succession and then provisions of Section 8 of the said Act will apply while keeping in mind, that as per Explanation 2 of Section 6, any heir, who has got separated from the family before the death of coparcener will be excluded from the rule of succession as given under Section 8 of the Act.

This rule of succession as provided under Section 6 read with Section 8 of the Act has its application only in respect of the deceased’s share in coparcenary property. But where there is no coparcenary property of deceased, or intestate has left behind the only self-acquired property, then same shall devolve according to Rules as provided under Section 8 of the Act and the fact that a son had separated himself from family before death of intestate will not affect his right to claim a share in the self-acquired property of male Hindu died intestate.

Turning to the case in hand, it is clear that originally coparcenary consisted of A and his three sons, B, C, and D. It is further clear that the son B separated himself during the lifetime of his father, and the coparcenary continued between A and his two sons C and D. A has died leaving behind his three sons and a widow W. The widow W is the class I female heir of the deceased.

Therefore, the interest of the deceased in the coparcenary property shall devolve upon his two sons C and D, and his widow W as provided in Sections 6 and 8 of the Act. B is not entitled to get any share in the said coparcenary interest of the deceased. However, B is entitled to get 1/4th share in the separate property of the deceased as laid down in Section 8 of the Act.

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