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Sunday, March 6, 2016

grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father.= Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants.-(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.

                                 REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2360_of 2016
                [ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014]


UTTAM                             …APPELLANT

      VERSUS
SAUBHAG SINGH & ORS.              …RESPONDENTS

                        J U D G M E N T



R.F. Nariman, J.



1.    Leave granted.



2.    The  present  appeal  is  by  the  plaintiff  who  filed  a  suit  for
partition, being Suit No.5A of 1999 before the Second Civil Judge, Class  II
Devas, Madhya Pradesh, dated 28.12.1998, in which the first four  defendants
happened to  be  his  father  (defendant  No.3),   and  his  father’s  three
brothers i.e. defendant Nos. 1,2 and 4. He claimed  a  1/8th  share  in  the
suit property on the footing that the suit property was ancestral  property,
and that, being a coparcener, he had a right by birth in the  said  property
in accordance with the Mitakshara Law.  A joint written statement was  filed
by all four brothers, including the plaintiff’s father,  claiming  that  the
suit property was not ancestral property, and that an earlier partition  had
taken place by which the plaintiff’s father had become separate.  The  trial
court, by its order dated 20.12.2000 decreed the  plaintiff’s  suit  holding
that it  was  admitted  by  DW.1  Mangilal  that  the  property  was  indeed
ancestral property,  and  that,  on  the  evidence,  there  was  no  earlier
partition of the said property,  as  pleaded  by  the  defendants  in  their
written statements.



3.    The first Appellate Court, by its judgment dated 12.1.2005,  confirmed
the finding that the property was ancestral and that  no  earlier  partition
between the brothers had in fact taken place.  However,  it  held  that  the
plaintiff’s grandfather, one Jagannath Singh having died in 1973, his  widow
Mainabai being alive at the time of his death, the  said  Jagannath  Singh’s
share would have to be distributed in  accordance  with  Section  8  of  the
Hindu Succession  Act,  1956  as  if  the  said  Jagannath  Singh  had  died
intestate, and that being the case, once  Section  8  steps  in,  the  joint
family property has to be divided in accordance with rules of intestacy  and
not survivorship. This being so, no joint family  property  remained  to  be
divided when the suit for partition was filed by  the  plaintiff,  and  that
since the plaintiff had no right while his  father  was  alive,  the  father
alone being a Class I heir (and  consequently  the  plaintiff  not  being  a
Class I heir), the  plaintiff  had  no  right  to  sue  for  partition,  and
therefore the suit was dismissed  and  consequently  the  first  appeal  was
allowed.



4.    Following the same line of reasoning and  several  judgments  of  this
Court, the High Court in second Appeal dismissed the said appeal, holding:-

“15. Thus in view of  the  provisions  contained  in  Sections  4,6,  8  and
Schedule of the Act as well as the law settled by the  aforesaid  judgments,
it is clear that after coming into force of the Act grand-son has  no  birth
right in the properties  of  grand-father  and  he  cannot  claim  partition
during lifetime of his father.

16. In the present case, it is undisputed that Jagannath  had  died  in  the
year 1973, leaving behind respondents No. 1 to 4 i.e. his four sons  covered
by Class I heirs of the schedule  therefore,  the  properties  had  devolved
upon them when succession had opened on the death of Jagannath. It has  also
been found proved that no partition had taken place between respondents  No.
1 to 4. The appellant who is the grand son of Jagannath is not
entitled to claim partition during the lifetime of his  father  Mohan  Singh
in the properties left behind by Jagannath since the appellant has no  birth
right in the suit properties.

17. In view of the aforesaid, the substantial questions of law are  answered
against the  appellant  by  holding  that  the  first  appellate  court  has
committed no error in  dismissing  the  suit  for  partition  filed  by  the
appellant referring to Section 8 of the Act  and  holding  that  during  the
lifetime of Mohan Singh,  the  appellant  has  no  right  to  get  the  suit
property partitioned.”


5.    It is this judgment that has been challenged before us in appeal.



6.    Shri Sushil Kumar Jain, learned senior advocate  appearing  on  behalf
of  the  appellant,  took  us  through  various  provisions  of  the   Hindu
Succession Act, and through several judgments of this Court,  and  contended
that Section 6, prior to its amendment in 2005, would govern  the  facts  of
this case.  He conceded that as Jagannath Singh’s widow was  alive  in  1973
at the time of his death, the case would  be  governed  by  the  proviso  to
Section  6,  and  that  therefore  the  interest  of  the  deceased  in  the
Mitakshara coparcenary property would devolve by intestate succession  under
Section 8 of the said Act.  However, he argued that it is only the  interest
of  the  deceased  in  such  coparcenary  property  that  would  devolve  by
intestate succession, leaving the joint family  property  otherwise  intact.
This being the case, the plaintiff had every  right  to  sue  for  partition
while his father was still  alive,  inasmuch  as,  being  a  coparcener  and
having a right of partition in the joint family  property,  which  continued
to subsist as such after the  death  of  Jagannath  Singh,  the  plaintiff’s
right to sue had not been taken away.  He went on to argue  that  Section  8
of the Act would not bar such a suit as it would apply only at the  time  of
the death of Jagannath Singh i.e. the grandfather of the plaintiff  in  1973
and not thereafter to non suit the plaintiff, who as a living coparcener  of
joint family property, was entitled to a partition before  any  other  death
in the joint family occurred.  He also argued that the Hindu Succession  Act
only abrogated the Hindu Law to the extent indicated, and  that  Sections  6
and 8 have to be read harmoniously, as a  result  of  which  the  status  of
joint family property which is recognized under Section 6 cannot be said  to
be taken away upon the  application  of  Section  8  on  the  death  of  the
plaintiff’s grandfather in 1973.



7.    Shri  Niraj  Sharma,  learned  counsel  appearing  on  behalf  of  the
respondents, countered these  submissions,  and  also  referred  to  various
provisions of the Hindu Succession Act and various judgments of  this  Court
to buttress his submission that once Section 8 gets  applied  by  reason  of
the application of the proviso to  Section  6,  the  joint  family  property
ceases to be joint family property thereafter, and can only be succeeded  to
by application of either Section 30 or Section 8,  Section  30  applying  in
case a will had been made and Section 8 applying in case  a  member  of  the
joint family dies intestate.  He, therefore, supported the judgment  of  the
High Court and strongly relied upon  two  judgments  in  particular,  namely
Commissioner of Wealth Tax, Kanpur and Others v.  Chander  Sen  and  Others,
(1986) 3 SCC 567, and Bhanwar Singh v. Puran, (2008) 3 SCC 87,  to  buttress
his submission that once Section 8 is applied to the facts of a given  case,
the property thereafter ceases to be joint family property, and  this  being
the case, no right to partition a property which is no longer  joint  family
property continues to subsist in any member of the coparcenary.



8.    Having heard learned counsel for the parties, it is necessary  to  set
out the relevant provisions of the Hindu Succession Act, 1956.  The Act,  as
its long title states, is an Act to amend and codify  the  law  relating  to
intestate succession among Hindus.  Section 4 overrides  the  Hindu  Law  in
force immediately before the commencement of this Act insofar as  it  refers
to any matter for which provision is made by the Act.  Section  4  reads  as
follows:

“4. Overriding effect of Act.—Save as otherwise expressly provided  in  this
Act,—

(a) any text, rule or interpretation of Hindu Law or any custom or usage  as
part of that law in force immediately before the commencement of  this  Act,
shall cease to have effect with respect to any matter  for  which  provision
is made in this Act;

(b) any other law in force immediately before the commencement of  this  Act
shall cease to apply to Hindus in so far as it is inconsistent with  any  of
the provisions contained in this Act.”


Section 6 prior to its amendment in 2005 reads as follows:

 “6. Devolution of interest in coparcenary property.—When a male Hindu  dies
after the commencement of this Act, having at  the  time  of  his  death  an
interest in a Mitakshara coparcenary property, his interest in the  property
shall devolve by survivorship upon the surviving members of the  coparcenary
and not in accordance with this Act :
Provided that, if the deceased had left  him  surviving  a  female  relative
specified in Class I 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 property  shall  devolve  by  testamentary  or
intestate succession, as the  case  may  be,  under  this  Act  and  not  by
survivorship.

Explanation 1.—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 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.

Explanation 2.—Nothing contained in the proviso to  this  section  shall  be
construed  as  enabling  a  person  who  had  separated  himself  from   the
coparcenary before the death of the deceased or any of his  heirs  to  claim
on intestacy a share in the interest referred to therein.”


It is common ground between the parties that  since  the  present  suit  was
filed only  in  1998  and  the  decree  in  the  said  suit  was  passed  on
20.12.2000, that the amendment to Section 6, made in 2005, would not  govern
the rights of the parties in the present case. This  becomes  clear  from  a
reading of the proviso (i) to Section  6  of  the  amended  provision  which
states as follows:-

“Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before the 20th
day of December, 2004.”


The explanation to this Section also states thus:

“Explanation.—For  the  purposes  of  this  section  “partition”  means  any
partition made by execution of a deed of  partition  duly  registered  under
the Registration Act, 1908 (16 of 1908) or partition effected  by  a  decree
of a court.”



From a reading of the aforesaid provision it becomes clear that a  partition
having been effected by a court decree of 20.12.2000, which is prior to  9th
September, 2005, (which is the date of commencement of  the  Amending  Act),
would not be affected.



9.    The next important Section from our point of view is Section 8,  which
reads as follows:-

“8. General rules of succession in the case  of  males.—The  property  of  a
male Hindu dying intestate shall devolve  according  to  the  provisions  of
this Chapter —
(a) firstly, upon the heirs, being the relatives specified  in  Class  I  of
the Schedule;
(b) secondly, if there is no heir of Class I, then  upon  the  heirs,  being
the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes,  then  upon  the
agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”


                                THE SCHEDULE

                                   Class I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a  pre-
deceased son; son of a pre-deceased daughter;  daughter  of  a  pre-deceased
daughter; widow of a pre-deceased son; son of a pre-deceased son of  a  pre-
deceased son; daughter of a pre-deceased son of a  pre-deceased  son;  widow
of a pre-deceased son of a pre-deceased son, son of a pre-deceased  daughter
of a pre-deceased daughter; daughter of a pre-deceased daughter  of  a  pre-
deceased  daughter;  daughter  of  a  pre-deceased  son  of  a  pre-deceased
daughter; daughter of a pre-deceased daughter of a pre-deceased son.”


10.   Also of some importance are Sections 19 and 30 of the said  Act  which
read as follows:-

“19. Mode of succession of two or more heirs.—If two or more  heirs  succeed
together to the property of an intestate, they shall take the property,—

(a) save as otherwise expressly provided in this Act,  per  capita  and  not
per stirpes; and

(b) as tenants-in-common and not as joint tenants.



30. Testamentary succession.—  Any Hindu may dispose of  by  will  or  other
testamentary  disposition  any  property,  which  is  capable  of  being  so
disposed of by him or by her, in  accordance  with  the  provisions  of  the
Indian Succession Act, 1925 (39 of 1925), or any  other  law  for  the  time
being in force and applicable to Hindus.

Explanation.—The interest of  a  male  Hindu  in  a  Mitakshara  coparcenary
property  or  the  interest  of  a  member  of  a tarwad,  tavazhi,   illom,
kutumba or kavaru in   the   property   of   the tarwad,   tavazhi,   illom,
kutumba or kavaru shall, notwithstanding anything contained in this Act,  or
in any other law for the time being in  force,  be  deemed  to  be  property
capable of being disposed of  by  him  or  by  her  within  the  meaning  of
this section.”


11.   Before analysing the provisions of the Act, it is necessary  to  refer
to some of the judgments of this Court  which  have  dealt,  in  particular,
with Section 6 before its amendment in 2005, and with Section  8.   In  G.K.
Magdum v. H.K. Magdum, (1978) 3 S.C.R. 761, the effect of the old Section  6
was gone into in some detail by this Court. A Hindu widow claimed  partition
and separate possession of a 7/24th share in  joint  family  property  which
consisted of her husband, herself and their two sons.  If a  partition  were
to take place during her husband’s lifetime  between  himself  and  his  two
sons, the widow would have got a 1/4th share in such joint family  property.
 The deceased husband’s 1/4th share would then devolve, upon his  death,  on
six sharers, the plaintiff and her  five  children,  each  having  a  1/24th
share therein.  Adding 1/4th and 1/24th,  the  plaintiff  claimed  a  7/24th
share in the joint family property. This Court held:-

“The Hindu Succession Act came  into  force  on  June  17,  1956.  Khandappa
having died after the commencement of that Act, to wit in  1960,  and  since
he had at the time of  his  death  an  interest  in  Mitakshara  coparcenary
property, the pre-conditions of Section 6 are satisfied and that section  is
squarely attracted. By the application of  the  normal  rule  prescribed  by
that  section,  Khandappa's  interest  in  the  coparcenary  property  would
devolve by survivorship upon the surviving members of  the  coparcenary  and
not in accordance with the provisions of the Act. But, since the  widow  and
daughter are amongst the female  relatives  specified  in  class  I  of  the
Schedule  to  the  Act  and  Khandappa  died  leaving  behind  a  widow  and
daughters, the proviso to Section 6 comes into play and the normal  rule  is
excluded. Khandappa's interest in the coparcenary property  would  therefore
devolve, according to the proviso, by intestate  succession  under  the  Act
and not by survivorship. Testamentary succession is out of question  as  the
deceased  had  not  made  a  testamentary  disposition  though,  under   the
explanation to Section 30 of the Act,  the  interest  of  a  male  Hindu  in
Mitakshara coparcenary property is capable of being disposed of  by  a  will
or other testamentary disposition.

There is thus no dispute that the normal rule  provided  for  by  Section  6
does not apply, that the proviso to that section is attracted and  that  the
decision of the appeal must turn on the meaning to be given  to  Explanation
1 of Section 6. The interpretation  of  that  Explanation  is  the  subject-
matter of acute controversy between the parties.”


12.   This Court, in dealing with the proviso and explanation 1  of  Section
6, held that the fiction created by explanation 1 has to be given  its  full
effect. That being the case, it was held:-

“13. In order to ascertain the share of heirs in the property of a  deceased
coparcener it is necessary in the very nature of things,  and  as  the  very
first step, to ascertain the  share  of  the  deceased  in  the  coparcenary
property. For, by doing that alone can  one  determine  the  extent  of  the
claimant's  share.  Explanation  1  to  Section  6  resorts  to  the  simple
expedient, undoubtedly fictional, that 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 that property  had  taken  place
immediately before his death. What is therefore required to  be  assumed  is
that a partition had in fact  taken  place  between  the  deceased  and  his
coparceners immediately before his death. That  assumption,  once  made,  is
irrevocable. In other words, the assumption having been made  once  for  the
purpose of ascertaining  the  share  of  the  deceased  in  the  coparcenary
property, one cannot go back on that assumption and ascertain the  share  of
the heirs  without  reference  to  it.  The  assumption  which  the  statute
requires to be made that a partition had in fact taken place  must  permeate
the entire process of ascertainment of the  ultimate  share  of  the  heirs,
through all its stages. To make the assumption at the initial stage for  the
limited purpose of ascertaining the  share  of  the  deceased  and  then  to
ignore it for calculating the quantum of the share of the heirs is truly  to
permit one's imagination to boggle. All the consequences which flow  from  a
real partition have to be logically worked out, which means that  the  share
of the heirs must be ascertained on the basis that they had  separated  from
one another and had received a share in the partition which had taken  place
during the lifetime of the deceased. The allotment of this share  is  not  a
processual step devised merely for the purpose of  working  out  some  other
conclusion. It has to  be  treated  and  accepted  as  a  concrete  reality,
something that cannot be recalled just as a share allotted to  a  coparcener
in  an  actual  partition  cannot  generally  be  recalled.  The  inevitable
corollary of this position is that the heir will get his  or  her  share  in
the interest which the deceased had in the coparcenary property at the  time
of his death, in addition to the share which he or she received or  must  be
deemed to have received in the notional partition.”


13.   In State of Maharashtra v. Narayan Rao Sham  Rao  Deshmukh  and  Ors.,
(1985) 3 S.C.R. 358, this Court distinguished the judgment in Magdum’s  case
in answering a completely different question  that  was  raised  before  it.
The question raised before the Court in  that  case  was  as  to  whether  a
female Hindu, who inherits a share of  the  joint  family  property  on  the
death of her husband, ceases to be a member of the family thereafter.   This
Court held that as there was a partition by operation of law on  application
of  explanation 1 of Section 6, and as such partition was  not  a  voluntary
act by the female Hindu, the female Hindu does not cease to be a  member  of
the joint family upon such partition being effected.



14.   In Shyama Devi (Smt) and Ors.
v.  Manju Shukla (Mrs)  and  Anr.,  (1994)  6  SCC  342,  this  Court  again
considered the effect of the proviso and explanation 1  to  Section  6,  and
followed the judgment of this Court in Magdum’s  case  (supra).  This  Court
went on to state that explanation 1 contains a formula for  determining  the
share of the deceased on the date of  his  death  by  the  law  effecting  a
partition immediately before a male Hindu’s death took place.



15.    On  application  of  the  principles  contained  in   the   aforesaid
decisions, it becomes clear that, on the death of Jagannath Singh  in  1973,
the proviso to Section 6 would apply inasmuch as Jagannath  Singh  had  left
behind his widow, who  was  a  Class  I  female  heir.   Equally,  upon  the
application of explanation 1 to the said Section, a partition must  be  said
to have been effected by operation of  law  immediately  before  his  death.
This being the case, it is clear that the plaintiff would be entitled  to  a
share on this partition taking place in 1973.  We  were  informed,  however,
that the plaintiff was born only in 1977, and that, for  this  reason,  (his
birth being after his grandfather’s death) obviously no such share could  be
allotted to him.  Also, his case in the suit filed by him is not that he  is
entitled to this share but that he is entitled to a 1/8th share on  dividing
the joint family property between 8 co-sharers in 1998.  What has  therefore
to be seen is whether the application of Section 8, in 1973,  on  the  death
of Jagannath Singh would make the joint family property in the hands of  the
father, uncles and the plaintiff no longer joint family property  after  the
devolution of Jagannath Singh’s share, by application of  Section  8,  among
his Class I heirs.  This question would have to be answered  with  reference
to some of the judgments of this Court.



16.   In Commissioner of Wealth Tax, Kanpur and Others v.  Chander  Sen  and
Others, (1986) 3 SCC 567, a partial partition having  taken  place  in  1961
between a father and his son, their  business  was  divided  and  thereafter
carried on by a partnership firm consisting of the two of them.  The  father
died in 1965, leaving behind him his son and two  grandsons,  and  a  credit
balance in the account of the firm.  This Court had to answer as to  whether
credit balance left in the account of the firm could be  said  to  be  joint
family property after the father’s share  had  been  distributed  among  his
Class I heirs in accordance with Section 8 of the Act.



17.   This Court examined the legal position and ultimately approved of  the
view of 4 High Courts, namely, Allahabad, Madras, Madhya Pradesh and  Andhra
Pradesh, while stating that the Gujarat High Court’s view contrary to  these
High Courts, would not be correct in law.  After  setting  out  the  various
views of the five High Courts mentioned, this Court held:

“It is necessary to bear in mind the preamble to the Hindu  Succession  Act,
1956. The preamble states that it was an Act to amend  and  codify  the  law
relating to intestate succession among Hindus.

In view of the preamble to the Act i.e. that to modify where  necessary  and
to codify the  law,  in  our  opinion  it  is  not  possible  when  Schedule
indicates heirs in Class I and only includes son and does not include  son's
son but does include son  of  a  predeceased  son,  to  say  that  when  son
inherits the property in the situation contemplated by Section  8  he  takes
it as karta of his own undivided  family.  The  Gujarat  High  Court's  view
noted above, if accepted, would mean that though the son  of  a  predeceased
son and not the son of a son who is intended to he excluded under Section  8
to inherit, the latter would by applying the old Hindu law get  a  right  by
birth of the said property contrary to the scheme  outlined  in  Section  8.
Furthermore as noted by the Andhra Pradesh High Court that the Act makes  it
clear by Section 4 that one should look to the Act in case of doubt and  not
to the pre-existing Hindu law. It would  be  difficult  to  hold  today  the
property which devolved on a Hindu under Section 8 of the  Hindu  Succession
Act would be HUF in his hand vis-à-vis his own son;  that  would  amount  to
creating two classes among the heirs mentioned in Class I,  the  male  heirs
in whose hands it will be joint Hindu family property and vis-à-vis son  and
female heirs with respect to whom  no  such  concept  could  be  applied  or
contemplated. It may be mentioned that heirs in Class I  of  Schedule  under
Section 8 of the Act included widow, mother,  daughter  of  predeceased  son
etc.

Before we conclude we may state that  we  have  noted  the  observations  of
Mulla's Commentary on Hindu Law, 15th Edn. dealing with  Section  6  of  the
Hindu Succession Act at pp. 924-26 as well as  Mayne's  on Hindu  Law,  12th
Edn., pp. 918-19.

The express words of Section 8 of the Hindu Succession Act, 1956  cannot  be
ignored and must prevail. The preamble to the Act reiterates  that  the  Act
is, inter alia, to  “amend”  the  law,  with  that  background  the  express
language which excludes son's son but includes  son  of  a  predeceased  son
cannot be ignored.

In the aforesaid light the views expressed by the Allahabad High Court,  the
Madras High Court, the Madhya Pradesh High Court,  and  the  Andhra  Pradesh
High Court, appear to us to be correct. With respect we are unable to  agree
with the views of the Gujarat High Court noted hereinbefore.” [at paras  21-
25]


18.   In Yudhishter v. Ashok Kumar, (1987) 1  SCC  204  at  page  210,  this
Court followed the law laid down in Chander Sen’s case.



19.   In Bhanwar Singh v. Puran,  (2008)  3  SCC  87,  this  Court  followed
Chander Sen’s case and the various judgments following Chander  Sen’s  case.
This Court held:-

“The Act brought about a  sea  change  in  the  matter  of  inheritance  and
succession amongst Hindus. Section 4 of the  Act  contains  a  non  obstante
provision in terms whereof any text, rule or interpretation of Hindu Law  or
any custom or usage as part of that law  in  force  immediately  before  the
commencement of the Act, ceased to have effect with respect  to  any  matter
for which provision is made therein save as otherwise expressly provided.

Section 6 of the Act, as  it  stood  at  the  relevant  time,  provided  for
devolution of interest in the coparcenary property. Section 8 lays down  the
general rules of succession that the property  of  a  male  dying  intestate
devolves according to the provisions of the Chapter as specified  in  Clause
(1) of the Schedule. In the Schedule appended to the Act, natural  sons  and
daughters are placed as Class I heirs but a grandson, so long as  father  is
alive, has not been included. Section 19 of the Act  provides  that  in  the
event of succession by two or more heirs, they will take  the  property  per
capita and not per stirpes, as  also  tenants-in-common  and  not  as  joint
tenants.

Indisputably, Bhima left behind Sant Ram and three daughters.  In  terms  of
Section 8 of the Act, therefore, the properties of Bhima devolved upon  Sant
Ram and his three sisters. Each had 1/4th share in the property. Apart  from
the legal position, factually the same was also reflected in the  record-of-
rights. A partition had taken place amongst the heirs of Bhima.

Although the learned first appellate court proceeded to consider the  effect
of Section 6 of the Act, in our opinion, the same was not applicable in  the
facts and circumstances of the case. In any event, it had rightly been  held
that even in such a case, having regard to Section 8 as also Section  19  of
the Act, the properties ceased to be  joint  family  property  and  all  the
heirs and legal representatives of Bhima would succeed to  his  interest  as
tenants-in-common and not as joint tenants. In a case of  this  nature,  the
joint coparcenary did not continue.” (at paras 12-15)


20.   Some other judgments were cited before us  for  the  proposition  that
joint  family  property  continues  as  such  even  with  a  sole  surviving
coparcener, and if a son is born to such coparcener  thereafter,  the  joint
family property continues as such, there being no hiatus  merely  by  virtue
of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe  v.
Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand,  (2006)
8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were  cited
for this purpose.  None of these judgments  would  take  the  appellant  any
further in view of the fact that in none of them is there any  consideration
of the effect of Sections 4, 8 and 19 of  the  Hindu  Succession  Act.   The
law, therefore, insofar as it applies to joint family property  governed  by
the Mitakshara School, prior to the amendment of 2005,  could  therefore  be
summarized as follows:-

(i)   When a male Hindu dies after the commencement of the Hindu  Succession
Act, 1956, having at the  time  of  his  death  an  interest  in  Mitakshara
coparcenary  property,  his  interest  in  the  property  will  devolve   by
survivorship upon the surviving members of  the  coparcenary  (vide  Section
6).

(ii)   To  proposition  (i),  an  exception  is  contained  in  Section   30
Explanation of the  Act,  making  it  clear  that  notwithstanding  anything
contained  in  the  Act,  the  interest  of  a  male  Hindu  in   Mitakshara
coparcenary property is property that can be disposed of by him by  will  or
other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is  contained  in  the
proviso to Section 6, which states that  if  such  a  male  Hindu  had  died
leaving behind a female relative specified in Class I of the Schedule  or  a
male relative specified in  that  Class   who  claims  through  such  female
relative  surviving  him,  then  the  interest  of  the  deceased   in   the
coparcenary property would devolve by testamentary or intestate  succession,
and not by survivorship.

(iv)  In order to determine the share of the Hindu male  coparcener  who  is
governed by Section 6 proviso, a partition is effected by operation  of  law
immediately before his death.  In this partition, all  the  coparceners  and
the male Hindu’s widow get a share in the joint family property.

(v)   On the application of Section 8 of the Act, either by  reason  of  the
death of a male Hindu leaving self-acquired property or by  the  application
of Section 6 proviso, such property would devolve only by intestacy and  not
survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act,  after  joint
family property has  been  distributed  in  accordance  with  section  8  on
principles of intestacy, the  joint  family  property  ceases  to  be  joint
family property in the hands of the various persons who  have  succeeded  to
it as they hold the property as tenants in common and not as joint tenants.



21.   Applying the law to the facts of this case, it is clear  that  on  the
death of Jagannath Singh in  1973,  the  joint  family  property  which  was
ancestral  property  in  the  hands  of  Jagannath  Singh  and   the   other
coparceners, devolved by succession under Section 8 of the Act.  This  being
the case, the ancestral property ceased to be joint family property  on  the
date of death of Jagannath Singh, and the other coparceners  and  his  widow
held the property as tenants in common  and  not  as  joint  tenants.   This
being the case, on the date of the birth of the appellant in 1977  the  said
ancestral property, not being joint family property, the suit for  partition
of such property would not be  maintainable.   The  appeal  is  consequently
dismissed with no order as to costs.

                                  ……………………………J.
                                  (Kurian Joseph)


                                  ……………………………J.
                                  (R.F. Nariman)
New Delhi;
March 2, 2016.

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