The shares of legal heirs of a deceased coparcener are determined on the assumption of the deemed partition as on date of death.
The rights of the legal heirs of a Hindu coparcener are ascertained on deemed partition of the joint family on the date of death. In the example given in Tax Forum on changes in the Hindu Law of Succession published on January 23 and 30, 2006 you have assumed that the widow of the deceased would not have a share on such deemed partition. I am of the view that she has such a share in view of the decision in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1981) 129 ITR 440 (SC), where it was held that the mother also has a share in a partition. A clarification on this point will be appreciated.
The reader is right in pointing out that the shares of legal heirs of a deceased coparcener are determined on the assumption of the deemed partition as on date of death. It is on such deemed partition that the legal heirs inherit the share of the father/husband, from the share, which the deceased would have got on such partition. Hindu Succession Act 1956 does not alter the share of the father/husband on his death, but only gives a legal right over the share of the deceased to his wife, son and the daughter, all having equal rights in ascertaining the share of the deceased in the joint family, the pre-existing law alone will prevail.
The decision in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1981) 129 ITR 440 (SC) referred by the reader ruled that the legal heirs of the deceased would inherit the share that would have been allotted to the deceased coparcener, as if a partition had taken place on the date of his death. It was in this context, it was pointed out that the widow's share in the joint family property on a notional partition will be in addition to her own share as a legal heir. In the facts of the case, the deceased left his widow, two sons and three daughters. The widow's share in joint family was taken as 1/4th, because she was governed by the Northern School of Hindu Law in which the wife is entitled to a share in a partition between the husband and sons. This was not an issue in this case. The Supreme Court has also referred the reason for understanding the share of the deceased as one-fourth share to Article 315 of Mulla's Hindu Law, which clearly recognised the widow's share, but states that this is the position, "except in Southern India" and also refers to two decisions, one of Madras High Court and the other of the Andhra Pradesh High Court (Full Bench) for the different position prevailing in this law in the Southern School of Hindu Law. In the example given in these columns, the share of the deceased was understood, as under the Southern School, where the mother has no share equal to her son in the deemed partition. She is entitled only to a share of her husband's share.
However, in actual partition between the husband and sons (now also daughters), a share can be given to a mother, if agreed between the parties to the partition in lieu of right to maintenance, so that there is no inference of gift in such a case, if a share is given to the mother by agreement, though governed by the Southern School, as was decided by the Madras High Court in CGT v. RM.S. Ramanathan Chettiar (1969) 74 ITR 758 (Mad), where it was pointed out, that though she is not entitled to a share in coparcenary property, there is still a right to maintenance against such property, so that an amount can be allowed for her maintenance and such amount could be in the form of a share, though it will not discharge the coparceners from their obligation to maintain her as a member of the family.