“1. Whether the plaintiff being the female had got the
right to partition to the property solely belonged to
Sukhdeo and devolved upon Janak Ram by
survivorship after the demise of his father Sukhdeo?”
2. Whether the suit land inherited by late Janak
Ram from his father Sukhdeo, the sole owner of the
same became the ancestral property for the plaintiff on
the date of death of Sukhdeo in 1965 and on the date
of death of Janak Ram in 1982?”
It has been pleaded in the plaint that three years after the death of Sukhdeo, a partition took place in which the suit properties had fallen to the share of Janak Ram.
Once a partition of the coparcenary property takes place and the coparcener is put in exclusive possession of the property falling to his share to the exclusion of others
he acquires an absolute right over the property.
The plaintiff Radha Bai had a mere spes successionis and would have been entitled to a share by succession which would have opened only after the death of Janak Ram.
In this view of the matter, since Janak Ram, prior to his death in 1982, had sold the suit lands to the defendants No.1to 3 by executing a registered sale deed, the plaintiff Radha Bai could question the same only on the limited ground of fraud or being without consideration. During life time of Janak Ram, Radha Bai, being the daughter of a predeceased son Saheblal, had merely a spes successionis to the suit property and nothing more.
Apex :-
During the life time of Janakram, Saheblal could not have succeeded to the property and for the same reason, the appellant being his daughter cannot be heard to claim any right higher than that of Saheblal. Applying the settled legal position to the present case, the grounds urged by the appellant need to be rejected.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5889 OF 2009
Radha Bai ..…Appellant(s)
Versus
Ram Narayan & Ors. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
dated 12th February, 2007 of the High Court of Chhattisgarh at
Bilaspur (for short, ‘the High Court’) in Second Appeal No.84 of
2002, whereby the appeal filed by the respondentsoriginal
defendant Nos. 1 to 4 was allowed and the judgment and decree
passed by the Trial Court dismissing the suit filed by the
appellant, came to be confirmed.
2. The parties are related as under:
2
3. The appellant filed suit in the Court of Civil Judge, Class –
First, Shakti – District Bilaspur being Civil Suit No.31/A of 1985
asserting that the land situated in Village Barra, Tehsil Shakti,
more particularly described in Schedule A of the plaint, was
owned and possessed by Sukhdeo Chhannahu son of Sardha
Chhannahu. Sukhdeo was a Hindu and governed by the
Mitakshra Laws. The suit land came in the hands of Sukhdeo as
ancestral property, in which Sukhdeo and his sons Janakram
and Pilaram were having joint shares being coparceners. The
appellant’s father Saheblal was the son of Janakram, who had
3
another son by name Sonu (original defendant No. 4, who has
died during the pendency of the present appeal). The appellant’s
father Saheblal predeceased Janakram (his father) and Sukhdeo
(his grandfather). He died in 1957, whereas Janakram died in
1982 and Sukhdeo, in 1965. Saheblal left behind Laxminbai, his
wife and their daughter Radhabai (appellant/plaintiff). In this
backdrop, the appellant asserted that she was entitled to a share
in the suit property, claiming through her father Saheblal. The
appellant’s mother had already expired in 1984 before filing of
the suit in 1985.
4. It is the case of the appellant that after the death of her
mother, the appellant came to village Barra and requested the
Patwari of the village to mutate the land in her name. In
response, she was told that the land had already been mutated
in the name of Ram Narayan (defendant No.1), Jaya Narayan
(defendant No. 2) and Rohit Kumar (defendant No.3) three sons
of Sonu (deceased defendant No. 4), by virtue of the registered
sale deed executed in their favour by Janakram on 21st July,
1979. It was further revealed that after the demise of Sukhdeo in
1965, his two sons Janakram and Pilaram partitioned the suit
4
property in or around the year 1967, as a result of which, the
suit property came to the exclusive share of Janakram and he
had become absolute owner thereof, on the basis of which right,
he executed registered sale deed in favour of his three grandsons
(sons of his son Sonu (now deceased) defendant Nos.1 to 3
respectively).
5. Immediately after becoming aware of the above, in 1985, the
appellant instituted the suit for declaration and possession and
sought the following reliefs:
“14.): Prayer of the plaintiff is as under:
i): The court should award decree about the
possession of the relevant disputed land to the
plaintiff;
I (a): By partitioning the disputed lands, half share be
awarded to the plaintiff, and its land revenue
should be determined separately.
ii): The plaintiff may be awarded expenses of the
suit.
iii): Looking to the circumstances of the suit,
whatsoever appropriate relief the court may
consider it fit and just, the same may be
awarded to the plaintiff.”
5
6. The respondentsdefendants resisted the said suit. On the
basis of the rival pleadings, the Trial Court framed as many as 9
issues, which read thus:
“ISSUES: CONCLUSION:
============================================
(1.): Whether, after the death of Sukhdev, partition of
the joint & united property had been carried in
between Janakram & Pilaram. Yes.
(2.): Whether, the disputed land was received by
Janakram in the said partition. Not proved.
(3.): Whether, up to the year 1982, the disputed land
remained entered in joint & united
accounts of Janakram, Laxminbai and the plaintiff.}
Due to negative
conclusion of issue
No.2, detailed
appreciation has not
been done.
(4.): Whether, Janakram had no right to sale the
disputed property/land.
(5.): Whether, the sale deed dated 21st of July, 1997
is
illegal and void.
(6.): Whether, the plaintiff is entitled to obtain the
possession of the disputed lands.
(7.): Relief & Expenses. Suit is dismissed. The
rival parties shall bear their own expenses.
ADDITIONAL ISSUES:
6
(8.): Whether, the plaintiff is entitled to get half share
in the disputed lands. Not proved.
(9.): Whether, the suit of the plaintiff is not
maintainable. No. Its maintainable.”
7. The Trial Court after analysing the evidence on record,
proceeded to dismiss the suit preferred by the appellant vide
judgement and decree dated 24th November, 2000.
8. Being aggrieved, the appellant filed appeal being Civil
Appeal No.5A of 2001 in the Court of Additional District Judge,
Shakti, District BilaspurChhattisgarh. The Appellate Court,
however, reversed the conclusion reached by the Trial Court and
allowed the appeal vide judgment and decree dated 22nd January,
2002. The operative order passed by the First Appellate Court
reads thus:
“26.): On the basis of the abovementioned critical
appreciation, decree may be drawn to the following
effect:
i): That, resultant to acceptance of the appeal of
the appellant, the impugned judgment and the decree
dated 24th of November, 2000 is set aside.
ii): That, resultant to acceptance of the appeal of the
appellant, the suit of the plaintiff/appellant is
accepted, and it is ordered that the plaintiff/appellant
is entitled to obtain possession over the half share
separately, by carrying out partition of half share of
the disputed land, which has been enumerated in the
7
Schedule “A” annexed with the plaint; and accordingly
land revenue to that effect should also be determined.
iii): The Schedule “A” annexed with the plaint shall be
integral part of the decree
iv): The answering plaintiffs/respondents apart from
bearing their own expenses of the case, shall also bear
the expenses of the case of the plaintiff/appellant.
v): Advocate’s fee, upon verification be payable in the
decree at Rs.300/ (Rupees Three hundred only).
vi): Accordingly, decree may be drawn.”
9. The respondentsoriginal defendant Nos. 1 to 4 filed second
appeal before the High Court, being Second Appeal No.84 of
2002. While admitting the second appeal, the Court formulated
two questions as substantial questions of law. The same read
thus:
“1. Whether the plaintiff being the female had got the
right to partition to the property solely belonged to
Sukhdeo and devolved upon Janak Ram by
survivorship after the demise of his father Sukhdeo?”
2. Whether the suit land inherited by late Janak
Ram from his father Sukhdeo, the sole owner of the
same became the ancestral property for the plaintiff on
the date of death of Sukhdeo in 1965 and on the date
of death of Janak Ram in 1982?”
10. After analysing the factual matrix and the evidence on
record, the High Court opined that the Appellate Court
8
committed manifest error and misapplied the settled legal
position. The High Court considered the matter in the following
words:
“8. The sole point which thus arises for determination
in the Second Appeal is whether the suit property was
held by Janak Ram in his own right to the exclusion of
Pila Ram, and whether the rule of succession or the
rule of survivorship shall apply. It has been pleaded in
the plaint that three years after the death of Sukhdeo,
a partition took place in which the suit properties had
fallen to the share of Janak Ram. Once a partition of
the coparcenary property takes place and the
coparcener is put in exclusive possession of the
property falling to his share to the exclusion of others
he acquires an absolute right over the property. The
plaintiff Radha Bai had a mere spes successionis and
would have been entitled to a share by succession
which would have opened only after the death of
Janak Ram. In this view of the matter, since Janak
Ram, prior to his death in 1982, had sold the suit
lands to the defendants No.1to 3 by executing a
registered sale deed, the plaintiff Radha Bai could
question the same only on the limited ground of fraud
or being without consideration. During life time of
Janak Ram, Radha Bai, being the daughter of a
predeceased son Saheblal, had merely a spes
successionis to the suit property and nothing more.
There is no material on record to show that the
defendant No.4 – Sonu had got the sale deed dated
21.7.1979 executed from Janak Ram perforce or
without consideration. In this view of the matter,
Janak Ram who, after partition, held the suit property
to the exclusion of the other coparcener had an
absolute right to sell it to the defendants no.1 to 3.
Radha Bai, the plaintiff, having failed to prove that the
sale deed was without consideration or was executed
perforce could not challenge the said transaction on
9
any ground. The evidence led by Radha Bai itself
shows that she had full knowledge of the sale deed
executed by Janak Ram in favour of defendants No.1
to 3. Radha bai, the plaintiff, did not enter the witness
box despite present in Court and having been asked to
do so. In this view of the matter, I am of the considered
opinion that the suit filed by Radha Bai must fail
because the rule of succession applied to the facts of
the case and succession would have opened only after
the death of Janak Ram, who was the exclusive owner
of the share received by him in partition with Pilaram.
The substantial question No.1 is thus answered in
negative that Janak Ram being the exclusive owner of
the suit property, during his life time Radha Bai had
acquired no right to the suit properties and to file a
suit for partition and possession of the suit lands
which had already been sold by Janak Ram during his
life time by executing a sale deed in favour of
defendants No.1 to 3. Question No.2 is answered that
after death of Sukhdeo, there was a partition of
coparcenary property in which Janak Ram had
received the suit lands as his share and was therefore,
the absolute owner of the suit property. In this view of
the matter, rule of survivorship does not apply to the
facts of the present case, since suit property, after
partition, was held by Janak Ram in his own right and
to the exclusion of the other coparcener. Thus, the suit
property had, after partition effected between Janak
Ram and Pila Ram, ceased to be ancestral property
and was held by Janak Ram as exclusive owner
thereof. The rule of succession would thus apply to the
present case and succession would have opened only
after the death of Janak Ram. Therefore, Radha Bai,
who had a mere spes successionis could succeed only
by proving that the sale deed executed by Janak Ram
was without consideration or was got executed by
defendant no.4 – Sonu perforce. Having failed to do so,
the suit must fail.
9. Having answered both the substantial questions of
law, the appeal deserves to be allowed. Accordingly,
10
the appeal is allowed. The judgment and decree dated
22.1.2002 passed by Additional District Judge, Sakti,
District Bilaspur in Civil Appeal No.5A/2001 is set
aside and the judgment and decree passed by Civil
Judge, ClassII, Sakti dated 24.11.2000 in Civil Suit
No.90A/88 is affirmed. There shall be no order as to
costs.”
11. The appellant plaintiff has assailed the aforesaid decision
of the High Court on the ground that in the backdrop of the
indisputable factual position and the decisions of this Court in
Gurupad Khandappa Magdum Vs. Hirabai Khandappa
Magdum and Others1 and Ramesh Verma (Dead) Through
Legal Representatives Vs. Lajesh Saxena (Dead) By Legal
Representatives and Another2
, the High Court committed
manifest error of law in holding that the rule of survivorship will
not apply and plaintiff had a mere spes successionis. According
to the appellant, the suit property was admittedly ancestral
property in the hands of Sukhdeo. After coming into force of the
Hindu Succession Act, 1956 (for short “the 1956 Act”) w.e.f. 17th
June, 1956, as Saheblal had died after commencement of the
1956 Act, Section 6 of the 1956 Act and in particular
1 (1978) 3 SCC 383
2 (2017) 1 SCC 257
11
ExplanationI thereof, was clearly attracted. As a result of which,
the notional partition of the coparcenary property had taken
place before the death of Saheblal. The proviso to Section 6 was
also attracted since Saheblal left behind his wife Laxminbai and
daughter Radhabai (appellantplaintiff). Resultantly, the interest
of deceased Saheblal in the Mitakashara coparcenary property
stood devolved by succession under the 1956 Act and not by
survivorship. The appellantplaintiff being the sole surviving heir
of Saheblal was claiming right in the entire share of Saheblal.
12. It is next urged that the sale deed executed by Janakram in
favour of respondentsdefendant Nos.1 to 3 respectively, dated
21st July, 1979, was ex facie illegal and not binding on the
appellantplaintiff. Janakram had no authority to sell the
ancestral property, which had settled in the coparceners after the
death of Sukhdeo. Similarly, the partition effected in 1967
between Janakram and Pilaram, leaving out the branch of
predeceased Saheblal, would be of no avail and cannot be the
basis to dislodge the claim of the plaintiff in the suit property.The
appellant prays that the judgment and decree passed by the First
12
Appellate Court, decreeing the suit in favour of the appellantplaintiff be upheld and restored.
13. The respondentsdefendants, on the other hand, would
contend that in the present case, Saheblal died in 1957. The
ancestral property was succeeded by two surviving sons of
Sukhdeo Janakram and Pilaram equally–when the succession
had opened after the death of Sukhdeo in 1965. The appellantplaintiff was not an heir in Class – I at the relevant time. Had the
appellant been daughter of predeceased son of Sukhdeo, she may
have had some chance of pursuing her claim. However, the
appellant being the greatgrand daughter of Sukhdeo, had no
claim in the suit property in 1965. In law, the father of the
appellant Saheblal, could not have succeeded to the property
during the life time of his father Janakram. Whereas, on account
of partition between Janakram and Pilaram after the demise of
Sukhdeo, the suit property came to the exclusive share of
Janakram and he had become absolute owner thereof. As
Janakram held the suit property in his individual capacity and
not on behalf of coparceners and family members, he could
alienate the same as per his volition to any one, which he did in
13
favour of his grandsons (respondentsdefendant Nos.1 to 3
respectively) vide registered sale deed dated 21st July, 1979. In
such a situation, it is settled law that the grand daughter cannot
be treated as an heir so as to have a share in the suit property.
14. To buttress the above noted submission, reliance is placed
on the decision of the Madhya Pradesh High Court in the case of
Chandrakanta and Others Vs. Ashok Kumar and Others3
and two decisions of this Court in Hardeo Rai Vs. Sakuntala
Devi and Others4
and Commissioner of Wealth Tax, Kanpur
and Others Vs. Chander Sen and Others5
. Additional reference
is made to the dictum in Yudhishter Vs. Ashok Kumar6 and
Smt. Raj Rani Vs. Chief Settlement Commissioner, Delhi and
Others7
. It is urged that the High Court has not committed any
error, much less a manifest error, warranting interference by this
Court. Hence, it is urged that this appeal being devoid of merits,
be dismissed.
3 2002 (3) MPLJ 576
4 (2008) 7 SCC 46
5 (1986) 3 SCC 567
6 (1987) 1 SCC 204
7 (1984) 3 SCC 619
14
15. We have heard Mr. Sarabjit Dutta, learned counsel for the
appellant and Mr. Manoj Prasad, learned Senior Counsel for the
respondents.
16. Before we proceed to analyse the rival submissions, it may
be apposite to reproduce Section 6 of the 1956 Act as applicable
at the relevant time. The same read thus:
“6. 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
the Section shall be construed as enabling a person
who has 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.”
17. This Court has noted the incidents of coparcenership
under the Mitakshra Law, in the case of State Bank of India
15
Vs. Ghamandi Ram (Dead) Through Gurbax Rai8
. In
paragraph 5 of the reported decision, the Court observed thus:
“5. According to the Mitakshara School of Hindu Law
all the property of a Hindu joint family is held in
collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the
Mitakshara lays down in express terms that the joint
family property is held in trust for the joint family
members then living and thereafter to be born (see
Mitakshara, Chapter I, 127). The incidents of coparcenership under the Mitakshara law are: first,
the lineal male descendants of a person up to the
third generation, acquire on birth ownership in the
ancestral properties of such person; secondly, that
such descendants can at any time work out their
rights by asking for partition; thirdly, that till
partition each member has got ownership
extending over the entire property, conjointly with
the rest; fourthly, that as a result of such coownership the possession and enjoyment of the
properties is common; fifthly, that no alienation of
the property is possible unless it be for necessity,
without the concurrence of the coparceners, and
sixthly, that the interest of a deceased member
lapses on his death to the survivors. A coparcenary
under the Mitakshara School is a creature of law
and cannot arise by act of parties except in so far
that on adoption the adopted son becomes a coparcener with his adoptive father as regards the
ancestral properties of the latter.”
(emphasis supplied)
This exposition has been taken note of in Hardeo Rai (supra).
After noticing this exposition, the Court went on to observe in
paragraph Nos.20 to 23 as follows:
8 (1969) 2 SCC 33
16
“20. The first appellate court did not arrive at a
conclusion that the appellant was a member of a
Mitakshara coparcenary. The source of the property
was not disclosed. The manner in which the properties
were being possessed by the appellant visàvis the
other coowners had not been taken into
consideration. It was not held that the parties were
joint in kitchen or mess. No other documentary or oral
evidence was brought on record to show that the
parties were in joint possession of the properties.
21. One of the witnesses examined on behalf of the
appellant admitted that the appellant had been in
separate possession of the suit property. The appellant
also in his deposition accepted that he and his other
cosharers were in separate possession of the property.
22. For the purpose of assigning one’s interest in the
property, it was not necessary that partition by metes
and bounds amongst the coparceners must take place.
When an intention is expressed to partition the
coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once
the share of a coparcener is determined, it ceases to be
a coparcenary property. The parties in such an event
would not possess the property as “joint tenants” but
as “tenantsincommon”. The decision of this Court in
SBI1, therefore, is not applicable to the present case.
23. Where a coparcener takes definite share in the
property, he is owner of that share and as such he can
alienate the same by sale or mortgage in the same
manner as he can dispose of his separate property.”
In the case of Chander Sen (supra), this Court considered the
interplay between Sections 4, 6 and 8 of the 1956 Act including
Chapter II and heirs in ClassI of the Schedule. The Court noted
as follows:
17
“10. The question here, is, whether the income or asset
which a son inherits from his father when separated
by partition the same should be assessed as income of
the Hindu undivided family of son or his individual
income. There is no dispute among the commentators
on Hindu law nor in the decisions of the court that
under the Hindu law as it is, the son would inherit the
same as karta of his own family. But the question is,
what is the effect of Section 8 of the Hindu Succession
Act, 1956? The Hindu Succession Act, 1956 lays down
the general rules of succession in the case of males.
The first rule is that the property of a male Hindu
dying intestate shall devolve according to the
provisions of Chapter II and Class I of the Schedule
provides that if there is a male heir of Class I then
upon the heirs mentioned in Class I of the Schedule.
Class I of the Schedule reads as follows:
“Son; daughter; widow; mother; son of a
predeceased son; daughter of a
predeceased son; son of a predeceased
daughter; daughter of a predeceased
daughter; widow of a predeceased son; son
of a predeceased son of a predeceased son;
daughter of a predeceased son of a
predeceased son; widow of a predeceased
son of a predeceased son.”
11. The heirs mentioned in Class I of the Schedule
are son, daughter etc. including the son of a
predeceased son but does not include specifically
the grandson, being, a son of a son living. Therefore,
the short question, is, when the son as heir of Class I
of the Schedule inherits the property, does he do so in
his individual capacity or does he do so as karta of his
own undivided family?
12. Now the Allahabad High Court has noted that the
case of CIT v. Ram Rakshpal, Ashok Kumar after
referring to the relevant authorities and commentators
had observed at p. 171 of the said report that there
was no scope for consideration of a wide and general
nature about the objects attempted to be achieved by a
piece of legislation when interpreting the clear words of
the enactment. The learned judges observed, referring
18
to the observations of Mulla’s Commentary on Hindu
Law and the provisions of Section 6 of the Hindu
Succession Act, that in the case of assets of the
business left by father in the hands of his son will be
governed by Section 8 of the Act and he would take in
his individual capacity. In this connection reference
was also made before us to Section 4 of the Hindu
Succession Act. Section 4 of the said Act provides for
overriding effect of Act. Save as otherwise expressly
provided in the Act, 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 the Act and any
other law in force immediately before the
commencement of the Act shall cease to apply to
Hindus insofar it is inconsistent with any of the
provisions contained in the Act. Section 6 deals with
devolution of interest in coparcenary property and
it makes it clear that when a male Hindu dies after
the commencement of the 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 the Act. The proviso indicates 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 Mitakshara coparcenary property shall devolve
by testamentary or intestate succession, as the
case may be, under this Act and not by
survivorship.”
(emphasis supplied)
Again in paragraph 15:
“15. It is clear that under the Hindu law, the moment
a son is born, he gets a share in the father’s property
and becomes part of the coparcenary. His right
accrues to him not on the death of the father or
inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets
19
a property from whatever source from the grandfather
or from any other source, be it separated property or
not, his son should have a share in that and it will
become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu
family with him. But the question is: is the position
affected by Section 8 of the Hindu Succession Act,
1956 and if so, how? The basic argument is that
Section 8 indicates the heirs in respect of certain
property and Class I of the heirs includes the son but
not the grandson. It includes, however, the son of the
predeceased son. It is this position which has mainly
induced the Allahabad High Court in the two
judgments, we have noticed, to take the view that the
income from the assets inherited by son from his
father from whom he has separated by partition can be
assessed as income of the son individually. Under
Section 8 of the Hindu Succession Act, 1956 the
property of the father who dies intestate devolves on
his son in his individual capacity and not as karta of
his own family. On the other hand, the Gujarat High
Court has taken the contrary view.”
After considering the divergent views expressed by the Allahabad
High Court, Full Bench of the Madras High Court, Madhya
Pradesh and Andhra Pradesh High Courts on one side and the
Gujarat High Court on the other, it proceeded to opine as follows:
“21. 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.
22. 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
20
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 be
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 preexisting Hindu law. It would
be difficult to hold today that the property which
devolved on a Hindu under Section 8 of the Hindu
Succession Act would be HUF in his hand visàvis 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
visàvis 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.
23. 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. 92426 as well as
Mayne’s on Hindu Law, 12th Edn., pp. 91819.
24. 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.”
(emphasis supplied)
This decision has been quoted with approval in Yudhishter
(supra). In paragraph 10 of the said decision, the Court observed
thus:
21
“10. This question has been considered by this Court
in CWT v. Chander Sen where one of us (Sabyasachi
Mukharji, J.) observed that under the Hindu law, the
moment a son is born, he gets a share in father’s
property and becomes part of the coparcenary. His
right accrues to him not on the death of the father or
inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets
a property from whatever source, from the grandfather
or from any other source, be it separated property or
not, his son should have a share in that and it will
become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu
family with him. This Court observed that this position
has been affected by Section 8 of the Hindu
Succession Act, 1956 and, therefore, after the Act,
when the son inherited the property in the situation
contemplated by Section 8, he does not take it as karta
of his own undivided family but takes it in his
individual capacity. At p. 577 to 578 of the Report, this
Court dealt with the effect of Section 6 of the Hindu
Succession Act, 1956 and the commentary made by
Mulla, 15th Edn., pp. 92426 as well as Mayne’s
Hindu Law, 12th Edn. pp. 91819. Shri Banerji relied
on the said observations of Mayne on Hindu Law, 12th
Edn., at p. 91819. This Court observed in the
aforesaid decision that the views expressed by the
Allahabad High Court, the Madras High Court, the
Madhya Pradesh High Court and the Andhra Pradesh
High Court appeared to be correct and unable to
accept the views of the Gujarat High Court. To the
similar effect is the observation of learned author of
Mayne’s Hindu Law, 12th Edn., p. 919. In that view of
the matter, it would be difficult to hold that property
which devolved on a Hindu under Section 8 of the
Hindu Succession Act, 1956 would be HUF in his
hand visàvis his own sons. If that be the position
then the property which devolved upon the father of
the respondent in the instant case on the demise of his
grandfather could not be said to be HUF property. If
that is so, then the appellate authority was right in
holding that the respondent was a licensee of his
father in respect of the ancestral house.”
22
18. The respondents have also invited our attention to the
decision of Madhya Pradesh High Court in Chandrakanta
(supra), which had followed the aforementioned dictum to reject
the claim of the plaintiffs on the ground that so long as their
father was alive, they cannot claim any right.
19. Reverting to the factual matrix of the present case, it is
noticed that Sukhdeo had inherited ancestral property and was
alive till 1965. The father of appellant, Saheblal, predeceased him
in 1957. Saheblal was the son of Janakram. Janakram died in
1982. During the life time of Janakram, in terms of Section 6 of
the 1956 Act, Saheblal could not have succeeded to the property
as he could claim only through Janakram. Janakram, however,
was alive till 1982. If Saheblal himself had no claim in his own
rights, the question of appellant, being his daughter, succeeding
to the property does not arise.
20. The consistent view of this Court, including of three Judge
Bench, is that the grand son or grand daughter is clearly
excluded from heirs in ClassI. Saheblal himself was grand son
of Sukhdeo, who predeceased Sukhdeo. After the demise of
Sukhdeo in 1965, therefore, the ancestral suit property could be
23
and came to be partitioned between Janakram and Pilaram in
1967. As a result of that partition, the suit property came to the
exclusive share of Janakram in his individual capacity. He could,
therefore, legitimately dispose of the same in the manner he
desired and which he did in favour of his grandsons (defendant
Nos.1 to 3 respectively) vide registered sale deed dated 21st July,
1979. Neither the stated partition of 1967 nor the registered sale
deed in favour of respondents (defendant Nos.1 to 3) dated 21st
July, 1979 has been challenged. The relief sought in the suit as
filed by the appellant/plaintiff is only for partition and awarding
share to the appellant/plaintiff alongwith possession. Suffice it to
observe that, the granddaughter of Janakram (appellant herein)
could not have claimed a higher right than the right of her father
Saheblal.
21. Reliance placed by the appellant on the decision of this
Court in Gurupad Khandappa Magdum (supra), is inapposite.
In that case, the plaintiff, being heir in ClassI, claimed to have
share in the interest of her husband which he had at the time of
his death in the coparcenary property. In that view of the matter,
in terms of proviso to Section 6 of the 1956 Act, the interest of
her husband in the coparcenary property would devolve by
24
succession under the 1956 Act. Similarly, in the case of Raj
Rani (supra), the Court was called upon to consider the dispute
between the widow, three sons and three daughters of the
deceased who being heirs in ClassI had succeeded to interest in
equal shares, as the property in question was Mitakshara
coparcenary property, by virtue of ExplanationI of Section 6 of
the 1956 Act. That analysis can be discerned from paragraph 17
of the reported judgment. Even the recent decision of this Court
in Ramesh Verma (supra), does not take the matter any further
for the appellant. Inasmuch as, even in that case, the dispute
was between the concerned heirs in ClassI after the demise of
Bhagwan Das. Before commencement of the 1956 Act, the
notional partition had taken place and as per Section 82 of the
Madhya Bharat Land Code, his sons and wife became entitled to
get 1/3 share in the property. On partition, share had fallen to
one of the sons which became his separate property and no
longer remained a Mitakshara property. This factual position
could be discerned from paragraph 11 of the reported judgment.
22. A priori, we uphold the view taken by the High Court that
after the death of Sukhdeo in 1965, the property devolved upon
25
his two sons Janakram and Pilaram. They succeeded to the
ancestral property equally. They later effected partition in 1967,
as a result of which, the property came to the exclusive share of
Janakram. The father of appellant, Saheblal, had predeceased
his father Janakram and even his grandfather Sukhdeo. During
the life time of Janakram, Saheblal could not have succeeded to
the property and for the same reason, the appellant being his
daughter cannot be heard to claim any right higher than that of
Saheblal. Applying the settled legal position to the present case,
the grounds urged by the appellant need to be rejected.
23. Accordingly, this appeal must fail. Hence, the same is
dismissed with no order as to costs.
24. All pending applications are also disposed of in the above
terms.
…………………………..J
(A.M. Khanwilkar)
…………………………..J
(Dinesh Maheshwari)
New Delhi;
November 22, 2019.
right to partition to the property solely belonged to
Sukhdeo and devolved upon Janak Ram by
survivorship after the demise of his father Sukhdeo?”
2. Whether the suit land inherited by late Janak
Ram from his father Sukhdeo, the sole owner of the
same became the ancestral property for the plaintiff on
the date of death of Sukhdeo in 1965 and on the date
of death of Janak Ram in 1982?”
It has been pleaded in the plaint that three years after the death of Sukhdeo, a partition took place in which the suit properties had fallen to the share of Janak Ram.
Once a partition of the coparcenary property takes place and the coparcener is put in exclusive possession of the property falling to his share to the exclusion of others
he acquires an absolute right over the property.
The plaintiff Radha Bai had a mere spes successionis and would have been entitled to a share by succession which would have opened only after the death of Janak Ram.
In this view of the matter, since Janak Ram, prior to his death in 1982, had sold the suit lands to the defendants No.1to 3 by executing a registered sale deed, the plaintiff Radha Bai could question the same only on the limited ground of fraud or being without consideration. During life time of Janak Ram, Radha Bai, being the daughter of a predeceased son Saheblal, had merely a spes successionis to the suit property and nothing more.
Apex :-
During the life time of Janakram, Saheblal could not have succeeded to the property and for the same reason, the appellant being his daughter cannot be heard to claim any right higher than that of Saheblal. Applying the settled legal position to the present case, the grounds urged by the appellant need to be rejected.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5889 OF 2009
Radha Bai ..…Appellant(s)
Versus
Ram Narayan & Ors. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
dated 12th February, 2007 of the High Court of Chhattisgarh at
Bilaspur (for short, ‘the High Court’) in Second Appeal No.84 of
2002, whereby the appeal filed by the respondentsoriginal
defendant Nos. 1 to 4 was allowed and the judgment and decree
passed by the Trial Court dismissing the suit filed by the
appellant, came to be confirmed.
2. The parties are related as under:
2
3. The appellant filed suit in the Court of Civil Judge, Class –
First, Shakti – District Bilaspur being Civil Suit No.31/A of 1985
asserting that the land situated in Village Barra, Tehsil Shakti,
more particularly described in Schedule A of the plaint, was
owned and possessed by Sukhdeo Chhannahu son of Sardha
Chhannahu. Sukhdeo was a Hindu and governed by the
Mitakshra Laws. The suit land came in the hands of Sukhdeo as
ancestral property, in which Sukhdeo and his sons Janakram
and Pilaram were having joint shares being coparceners. The
appellant’s father Saheblal was the son of Janakram, who had
3
another son by name Sonu (original defendant No. 4, who has
died during the pendency of the present appeal). The appellant’s
father Saheblal predeceased Janakram (his father) and Sukhdeo
(his grandfather). He died in 1957, whereas Janakram died in
1982 and Sukhdeo, in 1965. Saheblal left behind Laxminbai, his
wife and their daughter Radhabai (appellant/plaintiff). In this
backdrop, the appellant asserted that she was entitled to a share
in the suit property, claiming through her father Saheblal. The
appellant’s mother had already expired in 1984 before filing of
the suit in 1985.
4. It is the case of the appellant that after the death of her
mother, the appellant came to village Barra and requested the
Patwari of the village to mutate the land in her name. In
response, she was told that the land had already been mutated
in the name of Ram Narayan (defendant No.1), Jaya Narayan
(defendant No. 2) and Rohit Kumar (defendant No.3) three sons
of Sonu (deceased defendant No. 4), by virtue of the registered
sale deed executed in their favour by Janakram on 21st July,
1979. It was further revealed that after the demise of Sukhdeo in
1965, his two sons Janakram and Pilaram partitioned the suit
4
property in or around the year 1967, as a result of which, the
suit property came to the exclusive share of Janakram and he
had become absolute owner thereof, on the basis of which right,
he executed registered sale deed in favour of his three grandsons
(sons of his son Sonu (now deceased) defendant Nos.1 to 3
respectively).
5. Immediately after becoming aware of the above, in 1985, the
appellant instituted the suit for declaration and possession and
sought the following reliefs:
“14.): Prayer of the plaintiff is as under:
i): The court should award decree about the
possession of the relevant disputed land to the
plaintiff;
I (a): By partitioning the disputed lands, half share be
awarded to the plaintiff, and its land revenue
should be determined separately.
ii): The plaintiff may be awarded expenses of the
suit.
iii): Looking to the circumstances of the suit,
whatsoever appropriate relief the court may
consider it fit and just, the same may be
awarded to the plaintiff.”
5
6. The respondentsdefendants resisted the said suit. On the
basis of the rival pleadings, the Trial Court framed as many as 9
issues, which read thus:
“ISSUES: CONCLUSION:
============================================
(1.): Whether, after the death of Sukhdev, partition of
the joint & united property had been carried in
between Janakram & Pilaram. Yes.
(2.): Whether, the disputed land was received by
Janakram in the said partition. Not proved.
(3.): Whether, up to the year 1982, the disputed land
remained entered in joint & united
accounts of Janakram, Laxminbai and the plaintiff.}
Due to negative
conclusion of issue
No.2, detailed
appreciation has not
been done.
(4.): Whether, Janakram had no right to sale the
disputed property/land.
(5.): Whether, the sale deed dated 21st of July, 1997
is
illegal and void.
(6.): Whether, the plaintiff is entitled to obtain the
possession of the disputed lands.
(7.): Relief & Expenses. Suit is dismissed. The
rival parties shall bear their own expenses.
ADDITIONAL ISSUES:
6
(8.): Whether, the plaintiff is entitled to get half share
in the disputed lands. Not proved.
(9.): Whether, the suit of the plaintiff is not
maintainable. No. Its maintainable.”
7. The Trial Court after analysing the evidence on record,
proceeded to dismiss the suit preferred by the appellant vide
judgement and decree dated 24th November, 2000.
8. Being aggrieved, the appellant filed appeal being Civil
Appeal No.5A of 2001 in the Court of Additional District Judge,
Shakti, District BilaspurChhattisgarh. The Appellate Court,
however, reversed the conclusion reached by the Trial Court and
allowed the appeal vide judgment and decree dated 22nd January,
2002. The operative order passed by the First Appellate Court
reads thus:
“26.): On the basis of the abovementioned critical
appreciation, decree may be drawn to the following
effect:
i): That, resultant to acceptance of the appeal of
the appellant, the impugned judgment and the decree
dated 24th of November, 2000 is set aside.
ii): That, resultant to acceptance of the appeal of the
appellant, the suit of the plaintiff/appellant is
accepted, and it is ordered that the plaintiff/appellant
is entitled to obtain possession over the half share
separately, by carrying out partition of half share of
the disputed land, which has been enumerated in the
7
Schedule “A” annexed with the plaint; and accordingly
land revenue to that effect should also be determined.
iii): The Schedule “A” annexed with the plaint shall be
integral part of the decree
iv): The answering plaintiffs/respondents apart from
bearing their own expenses of the case, shall also bear
the expenses of the case of the plaintiff/appellant.
v): Advocate’s fee, upon verification be payable in the
decree at Rs.300/ (Rupees Three hundred only).
vi): Accordingly, decree may be drawn.”
9. The respondentsoriginal defendant Nos. 1 to 4 filed second
appeal before the High Court, being Second Appeal No.84 of
2002. While admitting the second appeal, the Court formulated
two questions as substantial questions of law. The same read
thus:
“1. Whether the plaintiff being the female had got the
right to partition to the property solely belonged to
Sukhdeo and devolved upon Janak Ram by
survivorship after the demise of his father Sukhdeo?”
2. Whether the suit land inherited by late Janak
Ram from his father Sukhdeo, the sole owner of the
same became the ancestral property for the plaintiff on
the date of death of Sukhdeo in 1965 and on the date
of death of Janak Ram in 1982?”
10. After analysing the factual matrix and the evidence on
record, the High Court opined that the Appellate Court
8
committed manifest error and misapplied the settled legal
position. The High Court considered the matter in the following
words:
“8. The sole point which thus arises for determination
in the Second Appeal is whether the suit property was
held by Janak Ram in his own right to the exclusion of
Pila Ram, and whether the rule of succession or the
rule of survivorship shall apply. It has been pleaded in
the plaint that three years after the death of Sukhdeo,
a partition took place in which the suit properties had
fallen to the share of Janak Ram. Once a partition of
the coparcenary property takes place and the
coparcener is put in exclusive possession of the
property falling to his share to the exclusion of others
he acquires an absolute right over the property. The
plaintiff Radha Bai had a mere spes successionis and
would have been entitled to a share by succession
which would have opened only after the death of
Janak Ram. In this view of the matter, since Janak
Ram, prior to his death in 1982, had sold the suit
lands to the defendants No.1to 3 by executing a
registered sale deed, the plaintiff Radha Bai could
question the same only on the limited ground of fraud
or being without consideration. During life time of
Janak Ram, Radha Bai, being the daughter of a
predeceased son Saheblal, had merely a spes
successionis to the suit property and nothing more.
There is no material on record to show that the
defendant No.4 – Sonu had got the sale deed dated
21.7.1979 executed from Janak Ram perforce or
without consideration. In this view of the matter,
Janak Ram who, after partition, held the suit property
to the exclusion of the other coparcener had an
absolute right to sell it to the defendants no.1 to 3.
Radha Bai, the plaintiff, having failed to prove that the
sale deed was without consideration or was executed
perforce could not challenge the said transaction on
9
any ground. The evidence led by Radha Bai itself
shows that she had full knowledge of the sale deed
executed by Janak Ram in favour of defendants No.1
to 3. Radha bai, the plaintiff, did not enter the witness
box despite present in Court and having been asked to
do so. In this view of the matter, I am of the considered
opinion that the suit filed by Radha Bai must fail
because the rule of succession applied to the facts of
the case and succession would have opened only after
the death of Janak Ram, who was the exclusive owner
of the share received by him in partition with Pilaram.
The substantial question No.1 is thus answered in
negative that Janak Ram being the exclusive owner of
the suit property, during his life time Radha Bai had
acquired no right to the suit properties and to file a
suit for partition and possession of the suit lands
which had already been sold by Janak Ram during his
life time by executing a sale deed in favour of
defendants No.1 to 3. Question No.2 is answered that
after death of Sukhdeo, there was a partition of
coparcenary property in which Janak Ram had
received the suit lands as his share and was therefore,
the absolute owner of the suit property. In this view of
the matter, rule of survivorship does not apply to the
facts of the present case, since suit property, after
partition, was held by Janak Ram in his own right and
to the exclusion of the other coparcener. Thus, the suit
property had, after partition effected between Janak
Ram and Pila Ram, ceased to be ancestral property
and was held by Janak Ram as exclusive owner
thereof. The rule of succession would thus apply to the
present case and succession would have opened only
after the death of Janak Ram. Therefore, Radha Bai,
who had a mere spes successionis could succeed only
by proving that the sale deed executed by Janak Ram
was without consideration or was got executed by
defendant no.4 – Sonu perforce. Having failed to do so,
the suit must fail.
9. Having answered both the substantial questions of
law, the appeal deserves to be allowed. Accordingly,
10
the appeal is allowed. The judgment and decree dated
22.1.2002 passed by Additional District Judge, Sakti,
District Bilaspur in Civil Appeal No.5A/2001 is set
aside and the judgment and decree passed by Civil
Judge, ClassII, Sakti dated 24.11.2000 in Civil Suit
No.90A/88 is affirmed. There shall be no order as to
costs.”
11. The appellant plaintiff has assailed the aforesaid decision
of the High Court on the ground that in the backdrop of the
indisputable factual position and the decisions of this Court in
Gurupad Khandappa Magdum Vs. Hirabai Khandappa
Magdum and Others1 and Ramesh Verma (Dead) Through
Legal Representatives Vs. Lajesh Saxena (Dead) By Legal
Representatives and Another2
, the High Court committed
manifest error of law in holding that the rule of survivorship will
not apply and plaintiff had a mere spes successionis. According
to the appellant, the suit property was admittedly ancestral
property in the hands of Sukhdeo. After coming into force of the
Hindu Succession Act, 1956 (for short “the 1956 Act”) w.e.f. 17th
June, 1956, as Saheblal had died after commencement of the
1956 Act, Section 6 of the 1956 Act and in particular
1 (1978) 3 SCC 383
2 (2017) 1 SCC 257
11
ExplanationI thereof, was clearly attracted. As a result of which,
the notional partition of the coparcenary property had taken
place before the death of Saheblal. The proviso to Section 6 was
also attracted since Saheblal left behind his wife Laxminbai and
daughter Radhabai (appellantplaintiff). Resultantly, the interest
of deceased Saheblal in the Mitakashara coparcenary property
stood devolved by succession under the 1956 Act and not by
survivorship. The appellantplaintiff being the sole surviving heir
of Saheblal was claiming right in the entire share of Saheblal.
12. It is next urged that the sale deed executed by Janakram in
favour of respondentsdefendant Nos.1 to 3 respectively, dated
21st July, 1979, was ex facie illegal and not binding on the
appellantplaintiff. Janakram had no authority to sell the
ancestral property, which had settled in the coparceners after the
death of Sukhdeo. Similarly, the partition effected in 1967
between Janakram and Pilaram, leaving out the branch of
predeceased Saheblal, would be of no avail and cannot be the
basis to dislodge the claim of the plaintiff in the suit property.The
appellant prays that the judgment and decree passed by the First
12
Appellate Court, decreeing the suit in favour of the appellantplaintiff be upheld and restored.
13. The respondentsdefendants, on the other hand, would
contend that in the present case, Saheblal died in 1957. The
ancestral property was succeeded by two surviving sons of
Sukhdeo Janakram and Pilaram equally–when the succession
had opened after the death of Sukhdeo in 1965. The appellantplaintiff was not an heir in Class – I at the relevant time. Had the
appellant been daughter of predeceased son of Sukhdeo, she may
have had some chance of pursuing her claim. However, the
appellant being the greatgrand daughter of Sukhdeo, had no
claim in the suit property in 1965. In law, the father of the
appellant Saheblal, could not have succeeded to the property
during the life time of his father Janakram. Whereas, on account
of partition between Janakram and Pilaram after the demise of
Sukhdeo, the suit property came to the exclusive share of
Janakram and he had become absolute owner thereof. As
Janakram held the suit property in his individual capacity and
not on behalf of coparceners and family members, he could
alienate the same as per his volition to any one, which he did in
13
favour of his grandsons (respondentsdefendant Nos.1 to 3
respectively) vide registered sale deed dated 21st July, 1979. In
such a situation, it is settled law that the grand daughter cannot
be treated as an heir so as to have a share in the suit property.
14. To buttress the above noted submission, reliance is placed
on the decision of the Madhya Pradesh High Court in the case of
Chandrakanta and Others Vs. Ashok Kumar and Others3
and two decisions of this Court in Hardeo Rai Vs. Sakuntala
Devi and Others4
and Commissioner of Wealth Tax, Kanpur
and Others Vs. Chander Sen and Others5
. Additional reference
is made to the dictum in Yudhishter Vs. Ashok Kumar6 and
Smt. Raj Rani Vs. Chief Settlement Commissioner, Delhi and
Others7
. It is urged that the High Court has not committed any
error, much less a manifest error, warranting interference by this
Court. Hence, it is urged that this appeal being devoid of merits,
be dismissed.
3 2002 (3) MPLJ 576
4 (2008) 7 SCC 46
5 (1986) 3 SCC 567
6 (1987) 1 SCC 204
7 (1984) 3 SCC 619
14
15. We have heard Mr. Sarabjit Dutta, learned counsel for the
appellant and Mr. Manoj Prasad, learned Senior Counsel for the
respondents.
16. Before we proceed to analyse the rival submissions, it may
be apposite to reproduce Section 6 of the 1956 Act as applicable
at the relevant time. The same read thus:
“6. 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
the Section shall be construed as enabling a person
who has 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.”
17. This Court has noted the incidents of coparcenership
under the Mitakshra Law, in the case of State Bank of India
15
Vs. Ghamandi Ram (Dead) Through Gurbax Rai8
. In
paragraph 5 of the reported decision, the Court observed thus:
“5. According to the Mitakshara School of Hindu Law
all the property of a Hindu joint family is held in
collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the
Mitakshara lays down in express terms that the joint
family property is held in trust for the joint family
members then living and thereafter to be born (see
Mitakshara, Chapter I, 127). The incidents of coparcenership under the Mitakshara law are: first,
the lineal male descendants of a person up to the
third generation, acquire on birth ownership in the
ancestral properties of such person; secondly, that
such descendants can at any time work out their
rights by asking for partition; thirdly, that till
partition each member has got ownership
extending over the entire property, conjointly with
the rest; fourthly, that as a result of such coownership the possession and enjoyment of the
properties is common; fifthly, that no alienation of
the property is possible unless it be for necessity,
without the concurrence of the coparceners, and
sixthly, that the interest of a deceased member
lapses on his death to the survivors. A coparcenary
under the Mitakshara School is a creature of law
and cannot arise by act of parties except in so far
that on adoption the adopted son becomes a coparcener with his adoptive father as regards the
ancestral properties of the latter.”
(emphasis supplied)
This exposition has been taken note of in Hardeo Rai (supra).
After noticing this exposition, the Court went on to observe in
paragraph Nos.20 to 23 as follows:
8 (1969) 2 SCC 33
16
“20. The first appellate court did not arrive at a
conclusion that the appellant was a member of a
Mitakshara coparcenary. The source of the property
was not disclosed. The manner in which the properties
were being possessed by the appellant visàvis the
other coowners had not been taken into
consideration. It was not held that the parties were
joint in kitchen or mess. No other documentary or oral
evidence was brought on record to show that the
parties were in joint possession of the properties.
21. One of the witnesses examined on behalf of the
appellant admitted that the appellant had been in
separate possession of the suit property. The appellant
also in his deposition accepted that he and his other
cosharers were in separate possession of the property.
22. For the purpose of assigning one’s interest in the
property, it was not necessary that partition by metes
and bounds amongst the coparceners must take place.
When an intention is expressed to partition the
coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once
the share of a coparcener is determined, it ceases to be
a coparcenary property. The parties in such an event
would not possess the property as “joint tenants” but
as “tenantsincommon”. The decision of this Court in
SBI1, therefore, is not applicable to the present case.
23. Where a coparcener takes definite share in the
property, he is owner of that share and as such he can
alienate the same by sale or mortgage in the same
manner as he can dispose of his separate property.”
In the case of Chander Sen (supra), this Court considered the
interplay between Sections 4, 6 and 8 of the 1956 Act including
Chapter II and heirs in ClassI of the Schedule. The Court noted
as follows:
17
“10. The question here, is, whether the income or asset
which a son inherits from his father when separated
by partition the same should be assessed as income of
the Hindu undivided family of son or his individual
income. There is no dispute among the commentators
on Hindu law nor in the decisions of the court that
under the Hindu law as it is, the son would inherit the
same as karta of his own family. But the question is,
what is the effect of Section 8 of the Hindu Succession
Act, 1956? The Hindu Succession Act, 1956 lays down
the general rules of succession in the case of males.
The first rule is that the property of a male Hindu
dying intestate shall devolve according to the
provisions of Chapter II and Class I of the Schedule
provides that if there is a male heir of Class I then
upon the heirs mentioned in Class I of the Schedule.
Class I of the Schedule reads as follows:
“Son; daughter; widow; mother; son of a
predeceased son; daughter of a
predeceased son; son of a predeceased
daughter; daughter of a predeceased
daughter; widow of a predeceased son; son
of a predeceased son of a predeceased son;
daughter of a predeceased son of a
predeceased son; widow of a predeceased
son of a predeceased son.”
11. The heirs mentioned in Class I of the Schedule
are son, daughter etc. including the son of a
predeceased son but does not include specifically
the grandson, being, a son of a son living. Therefore,
the short question, is, when the son as heir of Class I
of the Schedule inherits the property, does he do so in
his individual capacity or does he do so as karta of his
own undivided family?
12. Now the Allahabad High Court has noted that the
case of CIT v. Ram Rakshpal, Ashok Kumar after
referring to the relevant authorities and commentators
had observed at p. 171 of the said report that there
was no scope for consideration of a wide and general
nature about the objects attempted to be achieved by a
piece of legislation when interpreting the clear words of
the enactment. The learned judges observed, referring
18
to the observations of Mulla’s Commentary on Hindu
Law and the provisions of Section 6 of the Hindu
Succession Act, that in the case of assets of the
business left by father in the hands of his son will be
governed by Section 8 of the Act and he would take in
his individual capacity. In this connection reference
was also made before us to Section 4 of the Hindu
Succession Act. Section 4 of the said Act provides for
overriding effect of Act. Save as otherwise expressly
provided in the Act, 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 the Act and any
other law in force immediately before the
commencement of the Act shall cease to apply to
Hindus insofar it is inconsistent with any of the
provisions contained in the Act. Section 6 deals with
devolution of interest in coparcenary property and
it makes it clear that when a male Hindu dies after
the commencement of the 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 the Act. The proviso indicates 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 Mitakshara coparcenary property shall devolve
by testamentary or intestate succession, as the
case may be, under this Act and not by
survivorship.”
(emphasis supplied)
Again in paragraph 15:
“15. It is clear that under the Hindu law, the moment
a son is born, he gets a share in the father’s property
and becomes part of the coparcenary. His right
accrues to him not on the death of the father or
inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets
19
a property from whatever source from the grandfather
or from any other source, be it separated property or
not, his son should have a share in that and it will
become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu
family with him. But the question is: is the position
affected by Section 8 of the Hindu Succession Act,
1956 and if so, how? The basic argument is that
Section 8 indicates the heirs in respect of certain
property and Class I of the heirs includes the son but
not the grandson. It includes, however, the son of the
predeceased son. It is this position which has mainly
induced the Allahabad High Court in the two
judgments, we have noticed, to take the view that the
income from the assets inherited by son from his
father from whom he has separated by partition can be
assessed as income of the son individually. Under
Section 8 of the Hindu Succession Act, 1956 the
property of the father who dies intestate devolves on
his son in his individual capacity and not as karta of
his own family. On the other hand, the Gujarat High
Court has taken the contrary view.”
After considering the divergent views expressed by the Allahabad
High Court, Full Bench of the Madras High Court, Madhya
Pradesh and Andhra Pradesh High Courts on one side and the
Gujarat High Court on the other, it proceeded to opine as follows:
“21. 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.
22. 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
20
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 be
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 preexisting Hindu law. It would
be difficult to hold today that the property which
devolved on a Hindu under Section 8 of the Hindu
Succession Act would be HUF in his hand visàvis 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
visàvis 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.
23. 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. 92426 as well as
Mayne’s on Hindu Law, 12th Edn., pp. 91819.
24. 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.”
(emphasis supplied)
This decision has been quoted with approval in Yudhishter
(supra). In paragraph 10 of the said decision, the Court observed
thus:
21
“10. This question has been considered by this Court
in CWT v. Chander Sen where one of us (Sabyasachi
Mukharji, J.) observed that under the Hindu law, the
moment a son is born, he gets a share in father’s
property and becomes part of the coparcenary. His
right accrues to him not on the death of the father or
inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets
a property from whatever source, from the grandfather
or from any other source, be it separated property or
not, his son should have a share in that and it will
become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu
family with him. This Court observed that this position
has been affected by Section 8 of the Hindu
Succession Act, 1956 and, therefore, after the Act,
when the son inherited the property in the situation
contemplated by Section 8, he does not take it as karta
of his own undivided family but takes it in his
individual capacity. At p. 577 to 578 of the Report, this
Court dealt with the effect of Section 6 of the Hindu
Succession Act, 1956 and the commentary made by
Mulla, 15th Edn., pp. 92426 as well as Mayne’s
Hindu Law, 12th Edn. pp. 91819. Shri Banerji relied
on the said observations of Mayne on Hindu Law, 12th
Edn., at p. 91819. This Court observed in the
aforesaid decision that the views expressed by the
Allahabad High Court, the Madras High Court, the
Madhya Pradesh High Court and the Andhra Pradesh
High Court appeared to be correct and unable to
accept the views of the Gujarat High Court. To the
similar effect is the observation of learned author of
Mayne’s Hindu Law, 12th Edn., p. 919. In that view of
the matter, it would be difficult to hold that property
which devolved on a Hindu under Section 8 of the
Hindu Succession Act, 1956 would be HUF in his
hand visàvis his own sons. If that be the position
then the property which devolved upon the father of
the respondent in the instant case on the demise of his
grandfather could not be said to be HUF property. If
that is so, then the appellate authority was right in
holding that the respondent was a licensee of his
father in respect of the ancestral house.”
22
18. The respondents have also invited our attention to the
decision of Madhya Pradesh High Court in Chandrakanta
(supra), which had followed the aforementioned dictum to reject
the claim of the plaintiffs on the ground that so long as their
father was alive, they cannot claim any right.
19. Reverting to the factual matrix of the present case, it is
noticed that Sukhdeo had inherited ancestral property and was
alive till 1965. The father of appellant, Saheblal, predeceased him
in 1957. Saheblal was the son of Janakram. Janakram died in
1982. During the life time of Janakram, in terms of Section 6 of
the 1956 Act, Saheblal could not have succeeded to the property
as he could claim only through Janakram. Janakram, however,
was alive till 1982. If Saheblal himself had no claim in his own
rights, the question of appellant, being his daughter, succeeding
to the property does not arise.
20. The consistent view of this Court, including of three Judge
Bench, is that the grand son or grand daughter is clearly
excluded from heirs in ClassI. Saheblal himself was grand son
of Sukhdeo, who predeceased Sukhdeo. After the demise of
Sukhdeo in 1965, therefore, the ancestral suit property could be
23
and came to be partitioned between Janakram and Pilaram in
1967. As a result of that partition, the suit property came to the
exclusive share of Janakram in his individual capacity. He could,
therefore, legitimately dispose of the same in the manner he
desired and which he did in favour of his grandsons (defendant
Nos.1 to 3 respectively) vide registered sale deed dated 21st July,
1979. Neither the stated partition of 1967 nor the registered sale
deed in favour of respondents (defendant Nos.1 to 3) dated 21st
July, 1979 has been challenged. The relief sought in the suit as
filed by the appellant/plaintiff is only for partition and awarding
share to the appellant/plaintiff alongwith possession. Suffice it to
observe that, the granddaughter of Janakram (appellant herein)
could not have claimed a higher right than the right of her father
Saheblal.
21. Reliance placed by the appellant on the decision of this
Court in Gurupad Khandappa Magdum (supra), is inapposite.
In that case, the plaintiff, being heir in ClassI, claimed to have
share in the interest of her husband which he had at the time of
his death in the coparcenary property. In that view of the matter,
in terms of proviso to Section 6 of the 1956 Act, the interest of
her husband in the coparcenary property would devolve by
24
succession under the 1956 Act. Similarly, in the case of Raj
Rani (supra), the Court was called upon to consider the dispute
between the widow, three sons and three daughters of the
deceased who being heirs in ClassI had succeeded to interest in
equal shares, as the property in question was Mitakshara
coparcenary property, by virtue of ExplanationI of Section 6 of
the 1956 Act. That analysis can be discerned from paragraph 17
of the reported judgment. Even the recent decision of this Court
in Ramesh Verma (supra), does not take the matter any further
for the appellant. Inasmuch as, even in that case, the dispute
was between the concerned heirs in ClassI after the demise of
Bhagwan Das. Before commencement of the 1956 Act, the
notional partition had taken place and as per Section 82 of the
Madhya Bharat Land Code, his sons and wife became entitled to
get 1/3 share in the property. On partition, share had fallen to
one of the sons which became his separate property and no
longer remained a Mitakshara property. This factual position
could be discerned from paragraph 11 of the reported judgment.
22. A priori, we uphold the view taken by the High Court that
after the death of Sukhdeo in 1965, the property devolved upon
25
his two sons Janakram and Pilaram. They succeeded to the
ancestral property equally. They later effected partition in 1967,
as a result of which, the property came to the exclusive share of
Janakram. The father of appellant, Saheblal, had predeceased
his father Janakram and even his grandfather Sukhdeo. During
the life time of Janakram, Saheblal could not have succeeded to
the property and for the same reason, the appellant being his
daughter cannot be heard to claim any right higher than that of
Saheblal. Applying the settled legal position to the present case,
the grounds urged by the appellant need to be rejected.
23. Accordingly, this appeal must fail. Hence, the same is
dismissed with no order as to costs.
24. All pending applications are also disposed of in the above
terms.
…………………………..J
(A.M. Khanwilkar)
…………………………..J
(Dinesh Maheshwari)
New Delhi;
November 22, 2019.
