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S.6 — Devolution of Interest (Pre-2005)

Topic 54 | Module 5: HSA, 1956 | The Legal Bridge

For Judicial Service Aspirants: RJS | DJS | PCS-J | HJS | APO

Comprehensive Study Notes with Landmark Case Laws, Mnemonics & Exam Tips

Section 6 — Devolution of Interest in Coparcenary Property (Pre-2005)

Relevant Provision: Section 6 of Hindu Succession Act, 1956 (Original, before 2005 Amendment)

Priority: VERY HIGH | Exam Relevance: RJS / DJS / PCS-J / HJS (Historical Context for 2005 Amendment)

1. Introduction

Section 6 of HSA 1956, in its ORIGINAL form (before the 2005 Amendment), was the provision that governed the devolution of a deceased male coparcener's interest in Mitakshara coparcenary property. The original S.6 attempted a COMPROMISE between the traditional Mitakshara survivorship rule and the new statutory succession scheme. It preserved survivorship as the general rule but carved out an important exception through the NOTIONAL PARTITION mechanism — allowing certain female heirs to claim a share.

Understanding the pre-2005 S.6 is essential for examination purposes because: (a) it provides the HISTORICAL CONTEXT for the 2005 Amendment; (b) deaths occurring before 9.9.2005 are STILL governed by the old S.6; (c) questions often require comparison between pre and post-2005 positions; and (d) the notional partition mechanism was a complex but elegant solution that is frequently tested.

2. TEXT OF ORIGINAL SECTION 6

"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 the 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 a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.— For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation II.— Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

3. THE GENERAL RULE — SURVIVORSHIP

The MAIN RULE of original S.6 was: when a male Hindu dies with an interest in coparcenary property, that interest devolves by SURVIVORSHIP upon surviving coparceners — NOT by succession. This preserved the classical Mitakshara position.

Example: Father F and sons S1, S2, S3 are coparceners. F dies. Under the main rule, F's interest is absorbed by S1, S2, S3 by survivorship. F's widow, married daughters, and mother get NOTHING from the coparcenary property through this route.

4. THE PROVISO — NOTIONAL PARTITION EXCEPTION

The PROVISO to S.6 created a critical exception: if the deceased had left surviving a FEMALE relative specified in CLASS I of the Schedule (or a male claiming through such female), then the deceased's interest devolves by SUCCESSION (testamentary or intestate), NOT by survivorship.

This effectively meant: if there was a Class I female heir (like widow, daughter, mother), the survivorship rule was DISPLACED and the property passed by succession.

4.1 Class I Female Relatives Triggering the Proviso

The key Class I female relatives who triggered the notional partition:

Widow of the deceased
Daughter of the deceased
Mother of the deceased
Widow of a predeceased son
Daughter of a predeceased son
Widow of a predeceased son of a predeceased son
Daughter of a predeceased son of a predeceased son

If ANY of these survived the deceased, the proviso was triggered.

5. EXPLANATION I — NOTIONAL PARTITION

Explanation I introduced the concept of NOTIONAL PARTITION:

The deceased coparcener's interest is deemed to be the share he WOULD HAVE received if a partition had taken place IMMEDIATELY BEFORE his death. This is a FICTIONAL partition — no actual partition occurs, but the law imagines one to determine the deceased's share.

Steps for computation:

Identify all coparceners alive at the time of the deceased's death.
Include the deceased himself in the count.
Determine what share each would get in a hypothetical partition.
The deceased's notional share is then distributed by succession under HSA (S.8-13) to his heirs.

5.1 Illustration

F (father), S1, S2 (sons) are coparceners. F dies leaving widow W and daughter D.

Step 1: Coparceners at F's death = F, S1, S2 (3 persons).
Step 2: On notional partition, each gets 1/3.
Step 3: F's 1/3 share devolves by succession to his Class I heirs: S1, S2, W, D (each gets 1/4 of F's 1/3 = 1/12 each).
Final: S1 gets 1/3 (coparcenary) + 1/12 (succession) = 5/12. Same for S2. W gets 1/12. D gets 1/12.

6. EXPLANATION II — SEPARATED MEMBERS EXCLUDED

A coparcener who had ALREADY SEPARATED before the death of the deceased cannot claim under the proviso. The proviso only benefits those who were part of the coparcenary or are heirs of the deceased.

7. SECTION 7 — DEVOLUTION COMPUTATION

Section 7 HSA provides the MACHINERY for computing the deceased's share when the proviso to S.6 applies. It states that the interest of a deceased in Mitakshara coparcenary property shall be determined by reference to a hypothetical partition immediately before death, allotting shares to:

All coparceners (including the deceased).
Wives of coparceners (for their maintenance share).
The computation follows the rules of partition applicable at that time.

8. LANDMARK CASES

⚖️ CWT v. Chander Sen (1986) 3 SCC 567

Ratio: FOUNDATIONAL on S.6. When a Hindu dies leaving Class I female heirs, the proviso to S.6 is triggered — property devolves by succession not survivorship. The notional partition determines the deceased's share.

⚖️ Gurupad Khandappa Magdum v. Hirabai (1978) 3 SCC 383

Ratio: LANDMARK on computation of notional partition. Supreme Court explained the step-by-step method of computing shares through fictional partition. The widow's share in the notional partition must be included.

⚖️ State of Maharashtra v. Narayan Rao (1985) 2 SCC 321

Ratio: Discussed the interplay between survivorship (main rule) and succession (proviso). When the proviso applies, survivorship is completely displaced for the deceased's share.

⚖️ Commissioner HR v. Smt. Gauri (2018) 12 SCC 175

Ratio: Confirmed that for deaths BEFORE 9.9.2005, the old S.6 continues to apply. The 2005 Amendment does not retrospectively change the devolution rules for pre-2005 deaths.

9. IMPORTANT POINTS FOR EXAM REVISION

Original S.6: General rule = SURVIVORSHIP. Exception (proviso) = succession if Class I female heir survives.
Notional partition: Fictional partition immediately before death to determine deceased's share.
Class I female heirs trigger proviso: Widow, daughter, mother, etc.
Computation: Count coparceners + deceased; allot equal shares; deceased's share goes by succession.
Separated members excluded: Explanation II — person who already separated cannot claim.
Pre-2005 deaths: STILL governed by old S.6.
Post-2005: New S.6 replaces this entirely (Topic 55).

🧠 MNEMONIC: Original S.6 — 'SURVIVORSHIP + PROVISO'

Main rule: Survivorship (coparcenary absorbs). PROVISO: If Class I female heir survives → notional partition → succession. Remember: Proviso DISPLACES survivorship.

🎯 EXAM TIP

Pre-2005 S.6 is tested through: (1) Computational problems (notional partition shares); (2) Comparison with post-2005; (3) MCQ on when survivorship vs succession applies; (4) Whether old rule applies to pre-2005 deaths (YES — Commissioner HR v. Gauri).

10. PRACTICE QUESTIONS

Q1: Explain the original Section 6 HSA. How did it balance survivorship with succession?

Q2: What is a notional partition? Explain with an illustration how shares are computed.

Q3: When does the proviso to original S.6 apply? Who triggers it?

Q4: F, S1, S2 are coparceners. F dies in 2004 leaving widow W, daughter D, and mother M. Compute shares.

Q5: Compare the position under original S.6 with the position under S.6 as amended in 2005.