Notional partition applies to share in joint Hindu property

Can a person bequeath a joint family property? The property was inherited from my father and has been currently completely transferred to my name.

—A. Mittal

We have assumed that you are a Hindu male and are governed by the Mitakshara school of law.

Section 6(3) of the Hindu Succession Act, 1956 (as amended) provides as follows:

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

For the purposes of this sub-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.

The explanation to Section 30 of the Hindu Succession Act, 1956 (as amended) also clearly states that the interest of a male Hindu in a Mitakshara co-parcenary property shall notwithstanding anything contained in the Hindu Succession Act, 1956 (as amended) or in any other law for the time being in force, be deemed to be property capable of being disposed of by him.

Therefore, on the death of a member of a joint Hindu family, his share in the family property will not pass on to the other members but will devolve as per the bequests made in his will or as per the rules of intestate succession that would govern him. So, a member’s share in a joint Hindu family property can be bequeathed on the basis of a notional partition.

Technically, no one should be able to claim against such a bequest, unless such bequest is challenged and an order is decreed in favour of the person challenging it. In terms of the provisions of the Hindu Adoptions and Maintenance Act, 1956, one cannot by will, so dispose of his property so as to defeat the legal rights of his wife or any other person to maintenance.

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