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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

UTTAM …APPELLANT               

VERSUS

SAUBHAG SINGH & ORS. …RESPONDENTS

J U D G M E N T  

R.F. Nariman, J.

1. Leave granted.

2. The present appeal is by the plaintiff who filed a suit for

partition,  being  Suit  No.5A of  1999  before  the  Second  Civil

Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in

which  the  first  four  defendants  happened  to  be  his  father

(defendant No.3),  and his father’s three brothers i.e. defendant

Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on

the footing that  the suit  property was ancestral property, and

that,  being a coparcener, he had a right  by birth in the said

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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

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accordance with rules of  intestacy and not survivorship.  This

being so, no joint family property remained to be divided when

the suit for partition was filed by the plaintiff, and that since the

plaintiff had no right while his father was alive, the father alone

being a Class I heir (and consequently the plaintiff not being a

Class I heir), the plaintiff had no right to sue for partition, and

therefore  the  suit  was  dismissed  and  consequently  the  first

appeal was allowed.  

4. Following  the  same  line  of  reasoning  and  several

judgments  of  this  Court,  the  High  Court  in  second  Appeal

dismissed the said appeal, holding:-

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

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

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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

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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.  

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7. Shri Niraj Sharma, learned counsel appearing on behalf

of  the  respondents,  countered  these  submissions,  and  also

referred to various provisions of the Hindu Succession Act and

various judgments of this Court to buttress his submission that

once Section 8 gets applied by reason of the application of the

proviso to Section 6, the joint family property ceases to be joint

family  property  thereafter, and can only  be succeeded to  by

application  of  either  Section  30  or  Section  8,  Section  30

applying in case a will had been made and Section 8 applying

in  case  a  member  of  the  joint  family  dies  intestate.   He,

therefore,  supported  the  judgment  of  the  High  Court  and

strongly  relied  upon  two  judgments  in  particular,  namely

Commissioner  of  Wealth  Tax,  Kanpur  and  Others  v.

Chander Sen and Others, (1986) 3 SCC 567, and  Bhanwar

Singh v. Puran, (2008) 3 SCC 87, to buttress his submission

that once Section 8 is applied to the facts of a given case, the

property thereafter ceases to be joint family property, and this

being  the  case,  no  right  to  partition  a  property  which  is  no

longer joint family property continues to subsist in any member

of the coparcenary.  

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8. Having  heard  learned  counsel  for  the  parties,  it  is

necessary  to  set  out  the  relevant  provisions  of  the  Hindu

Succession Act, 1956.  The Act, as its long title states, is an Act

to amend and codify the law relating to intestate succession

among Hindus.   Section 4  overrides the Hindu Law in  force

immediately before the commencement of this Act insofar as it

refers to any matter  for  which provision is  made by the Act.

Section 4 reads as follows:

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

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

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

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

“6.  Devolution  of  interest  in  coparcenary property.—When  a  male  Hindu  dies  after  the commencement of this Act, having at the time of his death  an  interest  in  a  Mitakshara  coparcenary property, his interest in the property shall devolve by

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survivorship  upon  the  surviving  members  of  the coparcenary and not in accordance with this Act : Provided that, if the deceased had left him surviving a  female  relative  specified  in  Class  I  of  the Schedule or a male relative specified in that class who  claims  through  such  female  relative,  the interest  of  the  deceased  in  the  Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation  1.—For  the  purposes  of  this  section, the interest of a Hindu Mitakshara coparcener shall be  deemed  to  be  the  share  in  the  property  that would have been allotted to him if a partition of the property  had  taken  place  immediately  before  his death,  irrespective  of  whether  he  was  entitled  to claim partition or not.

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

It is common ground between the parties that since the present

suit was filed only in 1998 and the decree in the said suit was

passed on 20.12.2000, that the amendment to Section 6, made

in 2005, would not govern the rights of the parties in the present

case. This becomes clear from a reading of the proviso (i) to

Section 6 of the amended provision which states as follows:-

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

The explanation to this Section also states thus:

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

From a reading of the aforesaid provision it becomes clear that

a  partition  having  been  effected  by  a  court  decree  of

20.12.2000, which is prior to 9th September, 2005, (which is the

date  of  commencement  of  the Amending Act),  would  not  be

affected.

9. The  next  important  Section  from  our  point  of  view  is

Section 8, which reads as follows:-

“8. General rules of succession in the case of males.—The  property  of  a  male  Hindu  dying intestate shall devolve according to the provisions of this Chapter — (a)  firstly,  upon  the  heirs,  being  the  relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;

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(c)  thirdly,  if  there  is  no  heir  of  any  of  the  two classes,  then upon the agnates of  the deceased; and (d)  lastly,  if  there  is  no  agnate,  then  upon  the cognates of the deceased.”

THE SCHEDULE  

Class I

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

10. Also of some importance are Sections 19 and 30 of the

said Act which read as follows:-

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

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

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

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

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

11. Before analysing the provisions of the Act, it is necessary

to  refer  to  some of  the  judgments  of  this  Court  which have

dealt,  in  particular,  with  Section  6  before  its  amendment  in

2005, and with Section 8.  In G.K. Magdum v. H.K. Magdum,

(1978) 3 S.C.R. 761, the effect of the old Section 6 was gone

into  in  some  detail  by  this  Court.  A  Hindu  widow  claimed

partition  and  separate  possession  of  a  7/24th share  in  joint

family  property  which  consisted  of  her  husband,  herself  and

their  two sons.   If  a  partition  were to  take place during  her

husband’s lifetime between himself and his two sons, the widow

would have got a 1/4th share in such joint family property.  The

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deceased husband’s 1/4th share would then devolve, upon his

death, on six sharers, the plaintiff and her five children, each

having  a  1/24th share  therein.   Adding  1/4th and  1/24th,  the

plaintiff claimed a 7/24th share in the joint family property. This

Court held:-

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

There  is  thus  no  dispute  that  the  normal  rule provided for by Section 6 does not apply, that the

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proviso  to  that  section  is  attracted  and  that  the decision of the appeal must turn on the meaning to be  given  to  Explanation  1  of  Section  6.  The interpretation  of  that  Explanation  is  the subject-matter  of  acute  controversy  between  the parties.”

12. This Court, in dealing with the proviso and explanation 1

of Section 6, held that the fiction created by explanation 1 has

to be given its full effect. That being the case, it was held:-

“13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of  things,  and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent  of  the claimant's  share. Explanation  1  to  Section  6  resorts  to  the  simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted  to  him  if  a  partition  of  that  property  had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption,  once  made,  is  irrevocable.  In  other words, the assumption having been made once for the  purpose  of  ascertaining  the  share  of  the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which  the  statute  requires  to  be  made  that  a partition had in fact taken place must permeate the entire  process  of  ascertainment  of  the  ultimate share of the heirs, through all its stages. To make the  assumption  at  the  initial  stage  for  the  limited

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purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the  share  of  the  heirs  is  truly  to  permit  one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working  out  some  other  conclusion.  It  has  to  be treated  and  accepted  as  a  concrete  reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the  interest  which  the  deceased  had  in  the coparcenary  property  at  the  time  of  his  death, in addition to the share which he or she received or must be deemed to have received in the notional partition.”

13. In  State  of  Maharashtra  v.  Narayan  Rao  Sham Rao

Deshmukh  and  Ors., (1985)  3  S.C.R.  358,  this  Court

distinguished the judgment in  Magdum’s case in answering a

completely  different  question that  was raised before  it.   The

question raised before the Court in that case was as to whether

a female Hindu, who inherits a share of the joint family property

on the death of her husband, ceases to be a member of the

family thereafter.  This Court held that as there was a partition

by operation of law on application of  explanation 1 of Section

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6, and as such partition was not a voluntary act by the female

Hindu, the female Hindu does not cease to be a member of the

joint family upon such partition being effected.  

14. In Shyama  Devi  (Smt)  and  Ors.

v.  Manju Shukla (Mrs) and Anr., (1994) 6 SCC 342, this Court

again considered the effect of the proviso and explanation 1 to

Section  6,  and  followed  the  judgment  of  this  Court  in

Magdum’s  case  (supra). This  Court  went  on  to  state  that

explanation 1 contains a formula for determining the share of

the deceased on the date of his death by the law effecting a

partition immediately before a male Hindu’s death took place.  

15. On application of the principles contained in the aforesaid

decisions,  it  becomes clear  that,  on  the  death  of  Jagannath

Singh in 1973, the proviso to Section 6 would apply inasmuch

as  Jagannath  Singh  had  left  behind  his  widow, who  was  a

Class I female heir.  Equally, upon the application of explanation

1 to the said Section, a partition must be said to have been

effected by operation of law immediately before his death.  This

being the case, it is clear that the plaintiff would be entitled to a

share on this partition taking place in 1973.  We were informed,

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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

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to whether credit balance left in the account of the firm could be

said to be joint family property after the father’s share had been

distributed among his Class I heirs in accordance with Section

8 of the Act.  

17. This  Court  examined  the  legal  position  and  ultimately

approved  of  the  view  of  4  High  Courts,  namely,  Allahabad,

Madras, Madhya Pradesh and Andhra Pradesh, while stating

that  the  Gujarat  High  Court’s  view  contrary  to  these  High

Courts, would not be correct in law.  After setting out the various

views of the five High Courts mentioned, this Court held:

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

In view of the preamble to the Act i.e. that to modify where  necessary  and  to  codify  the  law,  in  our opinion it  is not possible when Schedule indicates heirs in Class I and only includes son and does not include  son's  son  but  does  include  son  of  a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to he excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in

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Section  8.  Furthermore  as  noted  by  the  Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be  difficult  to  hold  today  the  property  which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his  own  son;  that  would  amount  to  creating  two classes among the heirs mentioned in Class I, the male  heirs  in  whose  hands  it  will  be  joint  Hindu family property and vis-à-vis son and female heirs with  respect  to  whom no  such  concept  could  be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act  included  widow,  mother,  daughter  of predeceased son etc.

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

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

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

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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,

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

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

20. Some  other  judgments  were  cited  before  us  for  the

proposition that  joint  family  property  continues as such even

with a sole surviving coparcener, and if a son is born to such

coparcener  thereafter,  the  joint  family  property  continues  as

such, there being no hiatus merely by virtue of the fact there is

a  sole  surviving  coparcener.  Dharma  Shamrao  Agalawe  v.

Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi

v.  Lal  Chand,  (2006)  8  SCC  581,  and  Rohit  Chauhan  v.

Surinder Singh (2013) 9 SCC 419, were cited for this purpose.

None of these judgments would take the appellant any further

in view of the fact that in none of them is there any consideration

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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.  

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(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

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of Jagannath Singh, and the other coparceners and his widow

held  the  property  as  tenants  in  common  and  not  as  joint

tenants.  This being the case, on the date of the birth of the

appellant  in 1977 the said ancestral  property, not  being joint

family property, the suit for partition of such property would not

be maintainable.  The appeal is consequently dismissed with no

order as to costs.  

……………………………J. (Kurian Joseph)

……………………………J. (R.F. Nariman)

New Delhi; March 2, 2016.  

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