UNIVERSITY OF PETROLEUM AND ENERGY

STUDIES, DEHRADUN
SCHOOL OF LAW
B.A.LL. B (Hons.)
CRIMINAL/ LABOUR/ ENERGY/ CONSTITUTIONAL LAW
SEMESTER – IV
ACADEMIC YEAR: 2022-2023

Rules of Partition Under Mitakshara Coparcenary

FAMILY LAW
Under the supervision of Nanda Pardhey ma’am

Submitted By:
Gurdev Singh Tung
500085198
R450220245
INDEX:
1. Abstract
2. Keywords
3. Abbreviations
4. Introduction
5. Satrughan Isser vs Smt. Subujpari & Others on 4 August, 1966
6. Govindram Mihamal vs Chetumal Villardas on 30 June, 1969
7. Commissioner Of Income-Tax vs Mulchand Sukmal Jain on 11 November, 1992
8. Vineeta Sharma vs. Rakesh Sharma AIR 2020 SC
9. Bibliography

ABSTRACT:
One of the most fundamental parts of Hindu1 Law is Joint family where there exists a common
ancestor whose further lineal male descendants live together under the same roof with other
members too, including wives, daughters or people who are unmarried while also sharing many
other common things. The truth is that there is no escape for almost every Hindu from being part
of a Hindu joint family, be it in this generation or the coming ones. Therefore, the Hindu Laws
usually presume the fact that each and every family is a joint family unless specifically
mentioned. The major point of distinction between the Mitakshara and Dayabhaga is that of joint
family property. So, this research paper will basically be focusing on the Mitakshara school and
specifically on the rules of partition under Mitakshara coparcenary.

KEYWORDS: Hindu Law, Joint Family Property, Mitakshara, Coparcenary, Hindu

Succession Act, 1956

ABBREVIATIONS:
SC – Supreme Court
Retd. – Retired
HSA – Hindu Succession Act2
Sec. – Section
Art. – Article

1
“Hindu” defined In Constitution under Article 25 (2)(b)
2
Hindu Succession Act, 1956
AIR – All India Reporter

INTRODUCTION:
As all of us know Hindu Law is one of the most ancient laws throughout the globe. Going back
in history, Hindu Law came into existence for the purpose of satisfying the needs and
requirements of the people and for their welfare. Hindu Law comes from various sources
including Shrutis (also known as the phrases of God), Smritis (or the textual form), Customs (or
the vintage practices) and Commentaries and digests.
As of now, the Hindu Law is categorized into the codified and the uncodified law. Each and
every Hindu is administered under the codified law. One of the most major points of distinction
between codified and uncodified law is that the concept of Schools of Hindu Law as they do not
exist in codified law any more but are very much present in the uncodified law.
Also, Smritis and Vedas are the sources where various people from all over India wrote the
commentaries that proved to shape the entire idea of the schools of Hindu law.
Basically, the term school of thought points towards the presence of divided opinions on a single
subject matter. So, if we apply this in the Hindu Law, it refers to the presence of divided
opinions on the principles and policies of the Hindu Law.
Something to not is that unlike the statutes, school of thought may no longer be codified now and
don't have the force of law any longer. However, it should also be noted that they do in fact
affect the legislature's mind.
So, talking about Schools of Hindu law, they are commentaries and the digestives of the smritis.
Now, they seemed to have widened the actual scope of Hindu law and also explicitly played a
part in contributing to its overall development.
So, the 2 major schools of India, as of now, are mentioned as follows:
1.) Mitakshara
2.) Dayabhaga
Now, this research paper will focus more on the Mitakshara side of things. The idea of
coparcenary under Hindu Law is something where mainly by the male member of the family, the
children, grandsons and great-grandsons son are the ones who have a right by birth to have an
interest in the coparcenary property.
Also, in a Mitakshara coparcenary3, no female can be a coparcener but will always be the Joint
Family's part
So, to sum up, under Mitakshara coparcenary, a son, son’s son, son’s son’s son can be a
coparcenary i.e., father and his three lineal male descendants.
3
Section 6 of the Hindu Succession Act, 1956
CASES:
Satrughan Isser vs Smt. Subujpari & Others on 4 August, 1966

Facts:
The case4 revolves around Chando Kuer and her husband Babuji. The husband, Babuji, ended up
separating from the coparcenary in 1934 that he was earlier a member of. Now, after his death
which was on October 28 1937, it turned out that Chando Kuer attained the share he had in the
family property. However, the defendants ended up failing and neglecting in the process of
dividing the estate delivering her the share that was inherited by her. The suit ended up being in a
state of resistance by Babuji's collaterals.
Now, Chando Kuer tragically died on March 9, 1951 following which Chando's two daughters
namely Sujan Devi and Subujpari (further on referred to as "the appellants") were the ones that
were brought forward as her legal representatives and her heirs on the record.
Following this, the Trial Court ended up dismissing the suit itself but Satrughan, the son of
Ghiran, was granted a certificate from the High Court through which he appealed to this court.

Issues Raised:
Following the appeal, the Patna High Court actually granted a possession decree of the property's
share at the date of the suit. The main issues raised were following the death of Babuji that
tragically happened October 28, 1937. It was uncertain whether after the death of Babuji on
October 28 1937, does Chando Kuer was eligible of acquiring the same interest in the
coparcenary right that Babuji initially had by the Hindu Women's Rights to Property Act, 19375.
Also, with the institution of the suit, there was a formation of a defined interest for partition.
Following her death, the appellants (Chando's two daughters namely Sujan Devi and Subujpari)
had the estate of Babuji devil ed upon themselves which wasn't fitting right with Satrughan, the
son of Ghiran, who was granted a certificate from the High Court through which he appealed to
this court.

Decision:
The Judgment in this case was delivered by Shah, J. Musamat. Here, Chando Kuer, the widow of
Babuji, was the one who on April 23, 1949 instituted a suit in court against her husband's
4
Satrughan Isser vs Smt. Subujpari & Others on 4 August, 1966
5
Hindu Women's Rights to Property Act, 1937
collaterals with the aim of a partition decree for the purpose of achieving separate possession in
the form of the properties' half share.
As we know, under the well-known school of Hindu law, i.e., the Mitakshara school, following a
coparcener’s death individual interest among the property of the coparceners is actually devolved
by none other than survivorship that is upon the coparceners that still remain. Also, his widow if
there is any has maintenance entitled to her but only out of the property. So, it is isn't false to say
that the widow actually acquires the same right by statute to claim partition that a male owner
has.
In the findings that were recorded by the Trial Court, it wasn't challenged before in the appeal in
the High Court that in actually Babuji didn't separate from the other coparceners in 1934 but he,
in fact, did die in October 1937. Following the Act 18 of 19376 which was even modified by the
Bihar Act 6 of 19427, Chando Kuer was, with her husband's interest, invested in the property of
the coparcenary, both agricultural and non-agricultural.
So, when Chando Kuer instituted a suit for the purpose of partition, what happened was that the
interest actually became de-fined, and also vested in her which was in fact free from all the
claims or even rights of the coparceners of her husband.
The coparceners' right that they have to take that interest through survivorship on Chando Kuer's
death was later on extinguished.
Following her death, even though the interest wasn't separated and wasn't even in her exclusive
possession but what happened was that it was still devolved upon her husband's nearest heirs and
her daughters.
Hence, it is true that the suit was therefore very rightly decreed through the High Court. So, the
appeal that was made fails and is therefore dismissed with costs.

Critical analysis:
As we have seen, the judgement of this case successfully identified the real object, intent and the
spirit of the case as a whole.
Furthermore, following this judgment by the Court, there seemed to have been a way that was
paved and provided clearance on the barriers regarding the various confusions, conflicts and
issues. It wouldn't be false to say that it truly answered all important questions that were to be
addressed.
However, even though the judgement of this case is viewed as a landmark one and had in fact
played a major role in forwarding the rights in coparcenary property, there are still minute things
that need to be noted which might, in the long run, make a huge difference.

6
Act 18 of 1937
7
Bihar Act 6 of 1942
Conclusion:
So, it would be correct to say that this judgement did indeed address a lot of important topics but
there are still some minute things that need to be worked on here and there, for the purpose of
helping the people that are fighting and defending their rights and not make them feel like their
efforts were in vain. Regardless, there is no doubt in saying that this judgement was a landmark
one and proved to be a giant leap towards the direction of welfare of the people.

Suggestions:
• Target the issues raised and provide more clarity on them
• Invest more time combined with extensive research
…………………………………………………………………………………………………….

Govindram Mihamal vs Chetumal Villardas on 30 June, 1969

Facts:
In this case8, Mithamal, who is the plaintiff's father, advanced a loan to the defendant, as a karta9
of the joint Hindu family, on 19-6-1950 under a sarkar note.
What happened after this was that there was a renewal of the loan by acknowledged by another
sarkar note which was dated 9-6-1953. Furthermore, there was another sarkar note, which was
the third one, dated 9-6-1956. However, Mithamal tragically died in February 1958, after their
renewal.
Following this, Mithamal's eldest son who is also the plaintiff in this case, has filed the suit in
discussion on 15-6-1959 for the exact purpose of recovering the due amount under the sarkar
note. So, he has filed the suit claiming the principal amount that was under the sarkar note while
also claiming the interest that was on it.

Issues Raised:
Following the claims of the plaintiff, there were several defenses that were raised. The defendant
pleaded that he wasn't paid any amount at all.

8
Govindram Mihamal vs Chetumal Villardas on 30 June, 1969
9
Article 236 of the Mulla Hindu Law
Furthermore, it was also pleaded that Mithamal, as a karta of the joint Hindu family, had never
even advanced the amount. It was supposed to be his personal transaction and thus due to this
reason the suit by the plaintiff alone stands invalid.
Adding into this, Mithamal also left behind some other heirs which actually also included two
married daughters. So, the suit is not a properly representative suit as they weren't joint as
parties, and thus must fail.
Furthermore, another issue raised regarding this is that there we as an acknowledgement of the
sarkar note within Art. 1 of Schedule 1's meaning in the Stamp Act.

Decision:
What happened was that the plaintiff's previous suit in itself wasn't maintainable and this led to it
being dismissed10. However, the plaintiff went on to file a second appeal out of aggravation
The judgment made by the Full Bench of the Kerala High Court clearly points out as to what is
the decision on the case.
As of now, it appears that there isn't any judgement regarding consideration. Therefore, it is very
important to take the effect of HSA into consideration
Furthermore, it was brought into light that there wasn't any need at all to make a decision as to
whether a complete participation of the family property is executed or whether it is something
like a piecemeal partition keeping in view the deceased's interest and what the effect is in either
of the case, be it the entirety of the family property or the interests held among the other
coparceners themselves in the family
It was also clearly pointed out that there is a major difference between the provisions constituted
in the HSA and the Hindu Women's Rights to Property Act, 193711.
So, it was held that the plaintiff's two sisters who were married way before the institution of the
suit had in fact vested shares in the joint Hindu family, following the interest of Mithamal, (their
deceased father) of which the plaintiff claims to be a karta.
However, it was also stated that the interest ceased to have the joint family property's character
and couldn't at any cost represent the karta's interest in the joint Hindu family.
Therefore, as the two married daughters' interest isn't represented, the suit's frame is defective
which leads to the dismissal of the suit.

Critical analysis:

10
Section 45 of the Contract Act
11
Hindu Women's Rights to Property Act, 1937
As we have seen, the judgement of this case successfully identified the real object, intent and the
spirit of the case as a whole.
Furthermore, following this judgment by the Court, there seemed to have been a way that was
paved and provided clearance on the barriers regarding the various confusions, conflicts and
issues. It wouldn't be false to say that it truly answered all important questions that were to be
addressed.
However, even though the judgement of this case is viewed as a landmark one and had in fact
played a major role in forwarding the rights in coparcenary property, there are still minute things
that need to be noted which might, in the long run, make a huge difference.

Conclusion:
So, it would be correct to say that this judgement did indeed address a lot of important topics but
there are still some minute things that need to be worked on here and there, for the purpose of
helping the people that are fighting and defending their rights and not make them feel like their
efforts were in vain. Regardless, there is no doubt in saying that this judgement was a landmark
one and proved to be a giant leap towards the direction of welfare of the people.

Suggestions:
• Make the domain larger than before
• Pay more focus on the minute details
………………………………………………………………………………………………………

Commissioner Of Income-Tax vs Mulchand Sukmal Jain on 11 November,

1992

Facts:
In this case12, what happened was that the father died but the death occurred after the Hindu
Succession Act, 1956 came into force. After his death, he left behind only his son and wife.
So, we can say that share of that father that was undivided and didn't pass by survivorship, ended
up passing to the two heirs by succession who are the son and the widow.
Now, as we know, under the Mitakshara school of Law, even though each and every coparcener
is entitled to obtain a share during the partition, not every coparcener might have an unqualified

12
Commissioner Of Income-Tax vs Mulchand Sukmal Jain on 11 November, 1992
right that enables them to sue for their share in the partition. Another point to be noted is that the
wife actually can't even demand for the partition, however, in a case where there is a partition
that is taking place between the son and the husband, then the wife might actually be entitled to
receive a share in the partition that will be equal to what the son will receive in form of
maintenance and it will lead to holding it separately from her very husband.

Issues Raised:
The main argument in this case on behalf of Revenue is actually based on this principle. There is
an ignorance of the changes (by the argument) that are made in the Mitakshara Law by several
statutes that also includes the HSA, 1956.
Also, under HSA's provisions, even in a case where a coparcener, which means that a member of
the joint family (male) dies in a state where everything is still undivided, then his interest,
specifically the share which would've been provided to him in a case where a partition had
actually taken place just before his death, then it would end up being devolved by succession.

Decision:
In the case in question, the share of the father that was undivided ended up being devolved on the
son and the widow through succession.
Now, what happens is that the heirs get the share from the coparcener who is deceased, in the
form of inheritance or intestate succession, as tenants-in-common
So, the heirs take the deceased coparcener's share, not as joint tenants but as tenants-in-common
which is clearly mentioned in HSA13.
On the coparcener death, leaving such heirs which is clearly contemplated in HSA14, the family's
status doesn't get disrupted.
The sole purpose of this is quantifying the interest of the coparcener who is dead which is for the
purpose of inheritance that there is a calculation that is made which is as to what would've been
obtained by him in a case where there had been a partition immediately before his death.
However, the truth is that there can be no such type of legal fiction due to which there would be
a disruption in the family.
So far, the deceased coparcener's interest which is in turn devolved by his heirs' inheritance is the
what's concerned, which is taken by the heirs as tenants-in-common.
So, we can say that when a coparcener passes away, his share ultimately devolves on his heirs as
it should and the part that continues to be the coparcenary asset is the balance share.

13
Section 19 (b) of the Hindu Succession Act, 1956
14
Something that isn't fitting right is the contrary view that the High Courts seemed to have taken
during this as they aren't considering the HSA provisions' impact on Mitakshara Law's
principles, so the court clearly disagrees with the view that the High Court took.

Now, the only case where there is ground for invalid partition is where there is only a male and a
female in the joint family. So, it was held that the principle of Mitakshara law in this case will
stand modified to an extent under HSA. We, therefore, answer the question in the affirmative,
that is, in favour of the assessee and against the Revenue.

Critical analysis:
As we have seen, the judgement of this case successfully identified the real object, intent and the
spirit of the case as a whole.
Furthermore, following this judgment by the Court, there seemed to have been a way that was
paved and provided clearance on the
barriers regarding the various confusions, conflicts and issues. It wouldn't be false to say that it
truly answered all important questions that were to be addressed.
However, even though the judgement of this case is viewed as a landmark one and had in fact
played a major role in forwarding the rights in coparcenary property, there are still minute things
that need to be noted which might, in the long run, make a huge difference.

Conclusion:
So, it would be correct to say that this judgement did indeed address a lot of important topics but
there are still some minute things that need to be worked on here and there, for the purpose of
helping the people that are fighting and defending their rights and not make them feel like their
efforts were in vain. Regardless, there is no doubt in saying that this judgement was a landmark
one and proved to be a giant leap towards the direction of welfare of the people.

Suggestions:
• Pay more focus on the minute details
• Make the domain larger than before
……………………………………………………………………………………………………

Vineeta Sharma vs. Rakesh Sharma AIR 2020 SC

Facts:
This case15 basically revolved around a conflict regarding the actual the applicability of Sec. 6 of
the HSA, 2005 specifically with respect to the aspect of daughters in this matter.
Under this, the daughter of the coparcener is deemed to become a coparcener by birth in her very
own right just like in the case of the son of the coparcener.
On 11th August 2020, a three-judge bench in the Supreme court of India headed by Retd. Justice
Arun Mishra finally settled this really long controversial conflict, the result of which was a 122-
page landmark judgment which is undeniably not very easy to read and grasp but one that can
without any doubt be deemed as an important one which also contributed in the overall
progression of the concept. It laid down the rights that the daughters have in the coparcenary
property and cleared the matter as to whether the Amendment of 200516 had made the daughter
eligible of the same right as that the son possesses in the coparcenary property where it doesn't
matter whether the father was alive before the Amendment or not.

Issues Raised:
There were a lot of major and very important questions raised throughout this case. For instance,
one major questions or issue that was raised during this particular case was whether the
Amendment of Hindu Succession act in 2005 surely enables the daughter of the coparcener of all
those rights that are clearly mentioned in the newly formed Sec. 6 of the HSA 2005, regardless
of the fact whether the partition of the coparcenary property happened before 2005 or afterwards.
Following this major question, another question or issue that was raised before the court was
regarding the father of the daughter and whether it was mandatory of him to be alive in 2005 or
not for the purpose of authorizing the daughter in order to claim her rights for a part in the
coparcenary property.

Decision:
Now, the judgement of this case is mainly based on the premise that the new form of the Sec. 6
after the Amendment of 2005 fails to lay down its advantages to the daughter of the coparcener
prospectively and for that matter it also fails to do it retrospectively but instead it operates
retroactively.
What happens is that the legislation tends to operate retroactively while prescribing some
conditions for the purpose of claiming the benefits of such law. Also, the court in the process of
examining the applicability of the said provisions, finally held that the daughters of the
15
Vineeta Sharma vs. Rakesh Sharma AIR 2020 SC
16
The Hindu Succession (Amendment) Act, 2005
coparcener are in fact entitled, at par with sons, which means that they have equal rights in the
coparcenary property by birth. Furthermore, as the daughter of the coparcener has the right in the
coparcenary property by birth, so her right in order to claim a share becomes truly independent
of a notional partition under Section 6 of the HSA, 200517 and so according to this the daughter
of the coparcener is in fact entitled to have a right in the coparcenary property with no respect to
the fact whether her father, before the Amendment of 2005, was alive or not. However, it was
also cleared that all the alienations and partitions that have already taken place before the
judgement takes place remain undisturbed.
So, the court during the entirety of this case focused on each and every aspect the had any
relation to the concept of coparcenary which also included the Historical Background of the HSA
while also referring to the Judgment of the Danamma’s and Phulawati’s case and upholding the
judgement given in the case, basically saying that it is a good law, though it is to be noted that
the discussion of Prakash vs. Phulawati was removed from that judgment.

Critical analysis:
As we have seen, the judgement of this case successfully identified the real object, intent and the
spirit of the Amendment of 2005 in the HSA.
Following this judgment by the Supreme Court of India, there seemed to have paved a way and
provided a clearance of the last barrier regarding the confusion related to the rights that the
daughters of the coparcener possessed in the coparcenary property.
However, even though the judgement of this case is viewed as a landmark one and had in fact
played a major role in forwarding the rights in coparcenary property to women, there are still
things that need to be noted, like the point that this judgement is only applicable to Joint Hindu
Property and actually doesn't affect the provisions related to the properties of her father that are
separate or the self-acquired property.

Conclusion:
So, it would be correct to say that there is still a lot of work to be done on this, for the purpose of
helping a daughter to acquire her real wealth. Regardless, there is no doubt in saying that this
judgement was a landmark one and proved to be a giant leap towards the direction of overall
equality and the upliftment of women’s rights, because it has basically placed the daughters at
par with the sons and provided them with what they deserve in their father's property which is
their equal coparcenary rights.

Suggestions:

17
Section 6 of the HSA, 2005
• Target the issues raised and provide more clarity on them
• Invest more time combined with extensive research
……………………………………………………………………………………………………

BIBLIOGRAPHY:
- Poonam Pradhan Saxena’s Family Law II Book
- Mulla’s Family law
- indiankanoon,org
- Legal Service India E-Journal

CONCLUSION:
So, this research paper has covered the topic of Mitakshara coparcenary and the rules of partition
under it in great detail as was required for such an important yet ignored topic. The presence of
case laws will definitely prove to be amazingly beneficial for everyone that wants to reach the
depths of the topic.
………………………………………………………………………………………………………