Case Summary
| Citation | Uttam v. Saubhag Singh(2016) 4 SCC 68 |
| Keywords | coparcener, male interstate , sec 6 HSA |
| Facts | Jagannath Singh, grandpa, died in 1973, leaving behind his widow and four sons. A grandson filed a suit for partition against his father and uncles, the father and uncles initially claiming that the father of the plaintiff had separated himself upon a prior partition, but on a later admission by the father that the property was indeed ancestral property. In this case, Grandson is plaintiff, where father is defendant no 1 and siblings of father are also defendant no 2, 3, 4. |
| Issues | Whether the joint family property kept its joint family character following Jagannath Singh’s death? Whether the appellant has a claim to the contested property by birth as a coparcener?Whether the appellant had the authority to file a partition action while his father (the Class 1 heir) was still alive? |
| Contentions | Plaintiff’s contention It was argued that because the deceased’s widow was alive at the time of his death, the case would fall within the proviso to Section 6’s jurisdiction. As a result, the deceased’s stake in the coparcenary property would pass through intestate succession rather than survivorship under Section 8 of the Act. Defendant’s contention The main argument was that if Section 8 is implemented, the joint family property ceases to be joint family property because of the application of the proviso to Section 6. Only Section 30 or Section 8 can be used to inherit such property if a will has been written or if a member of the joint family has died intestate. |
| Law Points | 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. 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. 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. |
| Judgement | As a coparcenary to the ancestral property, Uttam would have the right to his grandfather’s property. Unless it invoked the proviso, every coparcenary has a title on the ancestral property under Section 6. |
| Ratio Decidendi & Case Authority |
Full Case Details
R.F. Nariman, J. 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 4i.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
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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
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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 Section 6 prior to its amendment in 2005
reads as follows…
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:-
9. The next important Section from our point of view is Section 8, which reads as follows…
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 GurupadKhandappaMagdum v. HirabaiKhandappaMagdum, (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
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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… see para
no. 13
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’scase 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’scase (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 in as much 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
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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. See para no. 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 ShamraoAgalawe v. Pandurang
MiraguAgalawe(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
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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.
