How would the separate property of the deceased be distributed under Mitakshara? (With Examples)

(a) A Hindu dies leaving a widow an adopted son and an after born natural son.

(b) A Hindu dies leaving a widow, a son of a predeceased son.

(c) A Hindu dies, leaving a mother’s sisters and a fa­ther’s half-sister’s son.

The relevant law on the point is provided under Sec. 6 of Hindu Succession Act of 1956 as follows:

Devolution of interest in copacenary property:

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakashara coparcenary prop­erty, his interest in the property shall devolve by survivorship upon the surviving member of the coparcenary and not in accor­dance with this Act:

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Provided that, if the deceased had left him surviving a female relative specified in class 1 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 shall devolve by a testimentary 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 allowed 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 of any of his heirs to claim on intestacy a share in the interest referred to therein.

Section 6 read with section 30 confers upon a coparcener in a Mitakshara family or his heirs, as the case may be, two rights:

1. Copacener’s undivided interest as qualified by section 6 would go by intestate succession to his personal heirs under the said Act; and

2. That interest could be disposed of by the coparceners by means of testamentary disposition under section 30(1). The provisions of section 6 and section 30 are comple­mentary to each other. [ILR (1974) Guj. 990].

Law applied to the present case:

(a) Widow is the heir of class I. Hence the provisions of the present Act of 1956 will apply, and the widow will take one share. The Act does not distinguish between an adopted son and an after born son. Hence both of them will take 1 share each.

Thus

Widow will get…………………………………….. 1/3

Adopted son will get, and………………………. 1/3

Natural after born son will get………………… 1/3
1

(b) In this case also

Widow will get…………………………………. 1 share i.e. 1/3

Son will get……………………………………… 1 share i.e. 1/3

Son of a predeceased son will get…. 1 share ‘i.e. 1/3

(1) The mother’s sister’s son and father’s half-sister’s son, both are Atma Bandhus of the deceased. They are equal in de­gree. The test will be the power or conferring spiritual benefit because the test of nearness of blood will not apply. The father’s half-sister’s son will be preferred to the mother’s sister’s son. [Jitendra Nath Roy v. Nagendra Nath Roy, 59 Cal. 476 P.C.].