LAW FOR ALL

Though the property may have partaken the character of self acquired property during the life time of Venkatarao, after his death, it is available for partition among the class-I heirs. = whether the said matter is covered by Section 6 or Section 8 of the Act. = Section 6: Devolution of interest of 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 purpose 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 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. Section 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. Section 6 gets attracted whenever a Hindu male, who was a member of coparcenary dies before any partition in the family has taken place. In such an event, his interest in the coparcenary property would devolve by survivorship and not by succession. In other words, if there existed four members in a coparcenary, each one of them would be entitled to 1/4th share in the event of any partition taking place; and if one of the coparcener’s dies before the partition has taken place, his interest in the coparcenary would result in change of shares meaning thereby; that the shares of the remaining three members would become 1/3rd each. Exception carved out under the proviso is that, if such coparcener is survived by a class-I female heir, his interest would devolve upon such class-I heir, or any male person claiming through her by succession. This can be exemplified by taking the instance of a son, who is a member of the coparcenary predeceasing his mother. In such an event, his share which would have been determined, had a partition taken place when he was alive would devolve upon his mother. However, it is only the male successors of the mother of the deceased, that would entitle to claim the said property through her. Section 8 operates in cases where a Hindu male, not being a member of coparcenary but holding property in his own right, dies. In such an event, the devolution would be through succession in favour of this class-I heirs, and in their absence to class-II heirs, and so on. A typical transformation of the character and nature of property takes place, in the event of death of a Hindu male, who held property in his own right. Take for instance; a Hindu male acquired property in different ways i.e., a) through his own efforts, i.e., self-acquisition or b) through partition in a joint family or c) through gift/settlement or other kinds of transfers from his kin or d) through succession. If during his life time any of his children demands partition of the said properties, he can resist the same by pleading that the properties, except those that have devolved through succession i.e., ancestral properties are his self acquisitions; and not available for partition. However, if he dies intestate, leaving behind the properties held by him, whether through succession, or in partition or through self-acquisition, or through transfer from his kin would become available for being shared by his class-I heirs. The properties, which, till his death were his self acquisitions would assume a different character and would be available for partition, among the class-I heirs of the deceased. In the instant case, Venkatarao died holding the suit properties in the form of self-acquisitions. Had any demand been made by his daughters for partition, during his life time, he could have effectively resisted the same by pleading that his self acquired properties are not available for partition. On his death, a substantial change takes place be it as regards the persons who can claim the share in it, or the nature of the property. The class-I heirs include not only his daughters i.e., second appellant and second respondent but also his mother and wife, first respondent and first appellant respectively, whereas the coparceners could have been his daughters alone. The property loses its character of self-acquisition and would be available for partition.