Legal Correspondent

Partition has to be assumed immediately before coparcener's death

Devolution of undivided interest on coparcener Rajasthan High Court judgment quashed

NEW DELHI: If a male member in a Hindu family having an equal share in coparcenary (joint) property dies without leaving a will, the property should be divided among the survivors on the basis of `notional partition' as if the partition was effected just before his death, the Supreme Court has held.

A Bench consisting of Justices B.N. Agrawal and P.P. Naolekar said: "For purposes of finding out the undivided interest of a deceased coparcener [one who inherits jointly or equally], a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession. It will obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would be entitled to claim his undivided interest in the coparcenary property."

Nagar Mal, who adopted Nemi Chand, died in 1989 without leaving a will. Along with the adopted son, his two daughters claimed a one-third share each in the property. The trial court passed an ex parte decree for partition with one-third share each to the three children. The Rajasthan High Court confirmed this decree.

Setting aside the impugned judgment, the Bench said notional partition [on a 50:50 basis] of the suit property between Nagar Mal and Nemi Chand had to be assumed immediately before the death of Nagar Mal. That being so, Nagar Mal's undivided interest in the suit property, which was half, devolved on his death upon his three children in equal proportion. Nemi Chand would get half of the entire property, which right he acquired on the date of adoption and a third of the remaining half, which devolved upon him by succession.

This being the position, each of the daughters was entitled not to one-third but one-sixth share of the suit property.