Notional Partition
The assumed partition just before a coparcener's death, under the old section 6 and under section 6(3) after 2005
Scope: The notional partition rule only. Who the heirs are and the daughter's coparcenary right are in their own notes.
In one minute
A notional partition is a partition the law assumes to have taken place immediately before a coparcener's death. It is used only to ascertain the share of the deceased in Mitakshara coparcenary property. The share then goes to his heirs by succession, not by survivorship.
Before 2005 this rule was in Explanation 1 to section 6. After 2005 it is in the Explanation to section 6(3). It does not actually divide the family property, which stays undivided.
Exam focus
- Frequency: Rarely asked
- Usually asked as: Short answer (4 to 6 marks)
Legal provision
- Section 6(3), after 2005: where a Hindu dies after the 2005 Amendment, his interest in Mitakshara joint family property devolves by will or intestate succession and not by survivorship. The coparcenary property is deemed to be divided as if a partition had taken place.
- Explanation to section 6(3): the interest of a Mitakshara coparcener is the share that would have been allotted to him if a partition had taken place immediately before his death. It does not matter whether he was entitled to claim partition.
- Section 6(3)(a) to (c): the daughter gets the same share as a son. The share of a pre-deceased son or daughter goes to that person's surviving child, and then to the child of a pre-deceased child.
- Explanation 1 to old section 6: the pre-2005 form of the rule, applied in Gurupad Khandappa Magdum v. Hirabai.
Meaning and definition
Mitakshara coparcenary property is held jointly. A coparcener has no fixed share until partition. When a coparcener dies, the law needs a way to find his share. It does this by a legal fiction. It assumes that a partition took place just before his death and gives him the share he would then have received.
- Coparcener dies
- Step 1Assume a partition just before his death.
- Step 2Find the share he would have received.
- Step 3That share devolves on his heirs by succession.
- Step 4The family property is not in fact divided.
Detailed explanation
Step 1: before 2005 (Gurupad Khandappa Magdum)
When a coparcener died leaving a female class I relative, Explanation 1 to section 6 required a partition to be assumed immediately before his death. The Court held that this assumption runs through every step of finding the heirs' shares.
Khandappa died in 1960, leaving a widow, two sons and three daughters. On the assumed partition, the coparceners were Khandappa and his two sons, and the widow was entitled to a share equal to a son's. That made four equal shares of one-fourth. Khandappa's one-fourth then went to six class I heirs, one-twenty-fourth each. The widow got one-fourth plus one-twenty-fourth, which is 7/24th.
Step 2: after 2005 (section 6(3))
The Explanation to section 6(3) keeps the assumed partition. The share is what would have been allotted if a partition had taken place immediately before his death. The daughter now gets the same share as a son. The share of a pre-deceased child goes to that child's surviving child, and further down.
Step 3: the courts on the deeming
In Prakash v. Phulavati, the Court held that a statutory notional partition is not covered by the Explanation to section 6(5). The three-Judge Bench in Vineeta Sharma overruled the views in that case, including those on the effect of the deemed partition. It noted that the deemed partition under the old section 6 fixes only the deceased's share and leaves the coparcenary undisturbed (paras 66, 97, 101 of Vineeta Sharma).
Exceptions and special rules
- Not a real partition: the family property stays undivided; the fiction fixes only the deceased's share.
- Entitlement to claim partition: the Explanation to section 6(3) applies whether or not the coparcener could claim partition.
- Succession, not survivorship: after 2005 the share goes by will or intestate succession (section 6(3)).
Don't confuse: notional partition and actual partition
| Point | Notional partition | Actual partition |
|---|---|---|
| Nature | A legal assumption | A real division of the property |
| Purpose | To find a dead coparcener's share | To end the joint holding |
| Effect on the family | The coparcenary continues | Joint status ends for those who take separate shares |
Inside the concept. A coparcener in Kakinada dies. The law assumes a partition just before his death to find his share. The brothers keep holding the rest jointly.
Just outside it. Two brothers in Kakinada sign a registered partition deed and divide the land. That is an actual partition.
Common mistakes
- Stopping at 1/24th in the Gurupad calculation. The widow also gets the one-fourth from the assumed partition.
- Saying that the notional partition really divides the family property. It does not.
- Saying that the property passes by survivorship after 2005. Section 6(3) sends it by succession.
Apply it
Problem
A Hindu man dies in 1962 leaving a widow, two sons and three daughters. He owned only a share in Mitakshara coparcenary property. The widow claims her share.
Issue
How is the widow's share found under the old section 6?
Rule
Under Explanation 1 to the old section 6, a partition is assumed immediately before his death, and the heir takes that share plus her share in his interest (Gurupad).
Application
On the assumed partition there are four shares of one-fourth: the man, two sons and the widow. His one-fourth goes to six heirs, one-twenty-fourth each.
Conclusion
The widow gets one-fourth plus one-twenty-fourth, which is 7/24th.
Leading case laws
- Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum
Facts. Khandappa died in 1960, leaving a widow, two sons and three daughters. The widow sued for 7/24th of the joint family property.
Principle. The notional partition under Explanation 1 to section 6 must be carried through to the end. The widow gets her notional-partition share and her share in the deceased's interest, which is 7/24th.
Why it matters. It is the leading case on how the assumed partition is worked out.
- Vineeta Sharma v. Rakesh Sharma
Facts. A larger Bench heard a reference on the conflict over amended section 6 and decided it on 11 August 2020.
Principle. The Court noted that the deemed partition under the old section 6 fixes only the deceased's share and leaves the coparcenary undisturbed (paras 66, 97, 101).
Why it matters. It limits what the notional partition does and overrules Prakash v. Phulavati.
How to write this answer in the exam
5-mark answer
- Meaning of notional partition.
- Old section 6, Explanation 1.
- Section 6(3) after 2005.
- Gurupad: 7/24th.
10-mark answer
- Meaning and purpose.
- Old section 6, Explanation 1.
- Gurupad calculation step by step.
- Section 6(3) and its Explanation.
- Vineeta Sharma on the deemed partition.
- Notional and actual partition compared.
Key points to remember
- A notional partition is a partition assumed just before a coparcener's death.
- It fixes only the deceased's share; the coparcenary is not divided.
- Gurupad: widow's share is 1/4 plus 1/24, which is 7/24.
- Section 6(3), after 2005: succession, not survivorship.
- Daughter gets the same share as a son (section 6(3)(a)).
Quick self-test
1. What does a notional partition find?
The share of a coparcener who has died.
2. What was the widow's share in Gurupad?
7/24th.
3. Does the notional partition divide the family property?
No. It only fixes the deceased's share.