Guest Post : 'A Fit Case for Review'

 Guest Post : 'A Fit  Case for Review' by R.Ramachandran

R. Ramachandran critically examines the latest Supreme Court judgment in Ganduri Koteshwaramma and Anr. v Chakiri Yanadi & Anr. by Justice R.M. Lodha. We have covered a post on the judgment which can be accessed here.

In Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi & Anr. (in Civil  Appeal No. 8538 of 2011) decided by the Supreme Court on 12.10.2011,  it is not clear as to when was the Suit for partition instituted.  This information is very much necessary, especially in the context of partition of a Hindu coparcenery property.  

There are two possibilities – (1) the suit for partition might have been instituted prior to coming into force of the Hindu Succession (Andhra Pradesh) Amendment Act, 1986; or (2) instituted after the coming into force of the said Act.

Position if the partition suit had been instituted prior to 5.9.1985

If such a suit had been instituted prior to the coming into force of The Hindu Succession (Andhra Pradesh) Amendment Act, 1986 (Act 13 of 1986) which granted equal coparcenery rights to daughters with effect from 5.9.1985, then the daughters were not co-larceners by the relevant date and as such were not entitled for coparcenary share.  At best, they could have only been entitled for inheritance right in the share of the property that fell to their father.

Partition in the instant case was instituted only in the year 1991

I contacted the Advocate of one of the parties to the case and ascertained that the Suit for partition had been instituted in the year 1991.

The case relates to Andhra Pradesh, and the daughters taking birth in the family had been granted equal coparcenery rights as that of the sons, by Hindu Succession (Andhra Pradesh) Amendment Act, 1986, effective from 5.9.1985.  Since the suit for partition was instituted only in the year 1991, after coming into force of the AP Amendment Act, 1986, the decision of the Supreme Court, granting equal share to the daughters in the coparcenery property along with the sons in the family IS ABSOLUTELY CORRECT.

BUT THE REASONING GIVEN BY THE SUPREME COURT FOR ARRIVING AT THE SAID DECISION APPEARS TO BE WRONG FOR THE  REASONS:

According to classical Hindu Law, some of the circumstances in which partition can take place are: (i) partition effected by father; (ii) partition by Agreement; (iii) severance by unilateral declaration by one of the coparcener; (iv) partition by conduct by one of the coparcener; (vi) partition by institution of suit etc.

Classical law to prevail

According to Section 4 (a) of the HSA 1956, "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 HSA 1956 shall cease to have effect with respect to any matter for which provision is made in this Act" (emphasis supplied).

Prior to the HSA (Amendment) Act, 2005 w.e.f. 9.9.2005, there was no provision in the Hindu Succession Act, 1956 which provided for devolution of interest in coparcenery property – other than when ‘a male Hindu dies’.  (See Section 6).

Thus, in the absence of any provision in the HSA, 1956, the Classical Hindu Law will prevail.

Effect of filing of suit for partition:

The institution of a suit for partition by an adult coparcener is an unequivocal intimation of his intention to separate and there is consequently a severance of his joint status from the date when the suit is instituted. [Kawal Narain v. Prabhu Lal (1915) 44 IA 159; Rachhpali v. Chandresar AIR 1924 Oudh 252.]

The moment the partition is effected in any of the above methods, the de jure (in law) partition takes place.

The partition strictly speaking is complete the moment the community of interest is severed or severance in status takes place.  The actual physical division of the property by metes and bounds may, or may not follow and the members may continue to hold the property in joint possession as tenants-in-common, without the incidents of fluctuation of interest and application of the doctrine of survivorship.

The de facto partition – i.e. actual physical division of the property by metes and bounds may take place later on.

A suit demanding a partition, will effect a severance of the status from the date of its institution in a court of law, irrespective of whether he gets a decree from the court or not. [Ramalinga v. Narayana AIR 1922 PC 201.]

The following catena of decisions by the Supreme Court supports the above view.

Case title	Date of Decision	SC Coram	Decision
Kalyani (Dead) by Lrs. Vs. Respondent: Narayanan and Ors. [1980]2SCR1130	27.02.1980	A. N. Sen, D. A. Desai and V. D. Tulzapurkar, JJ.	10.  … Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors. [1980] 1 SCR 161 . A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 I A 151. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.
Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. AIR 1978 SC 1239	27.04.1978	Y. V. Chandrachud, C.J., V. D. Tulzapurkar and P. N. Shingal, JJ.	“11. … Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share. 12. The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by Section 18A(9)(b) of the Indian Income-tax Act, 1922, was given by this Court in Commissioner of Income-tax, Delhi v. S. Teja Singh MANU/SC/0062/1958 . It was held in that case that the fiction that the failure to send an estimate of tax on income Under Section 18A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee Under Section 22 and that he had failed to comply with it. In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singh's case, a missing step had to be supplied which was not provided for by Section 18A(9)(b), namely, the issuance of a notice Under Section 22 and the failure to comply with that notice. Section 18A(9)(b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income Under Section 18A(3) he shall be deemed to have failed to furnish a return of his income. The section did not provide further that in the circumstances therein stated, a notice Under Section 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with. These latter assumptions in regard to the issuance of the notice Under Section 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by Section 18A(9)(b). In our case it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council. [1952] A.C. 109/132. He said if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. 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 coparcenery 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 Mita-kshara 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 coparcenery property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a   real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time 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 coparcenery 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.
Anar Devi & Ors. V. Parmeshwari Devi & Ors. AIR 2006 SC 3332	18.9.2009	B.N.Agrawal and P.P.Naolekar JJ.	Follows the above decision.
Munni Lal Mahto   and Ors. Vs. Chandeshwar Mahto and Anr. AIR 2007 Pat. 66	24.07.2006	Navaniti Prasad Singh, J of Patna High Court	Relied upon the decisions of Supreme Court in: Kalyani v. Narayan and Ors. AIR 1980 Supreme Court 1173;  wherein it has been inter-alia held that “holds that once there is a partition then there is a disruption in the joint family status and the rights are crystalised although not immediately followed by a de facto actual division of the subject matter of dispute. This decision clearly shows that the effectuate partition, it is not necessary that all joint family properties must be divided by metes and bounds and till that is not done, the joint family would continue. This judgment clearly lays down otherwise. The fact is that the moment the preliminary decree was passed, the joint family status stood disrupted and the parties became tenants in common.” M.L. Subbaraya Setty and Ors. v. ML Nagappa Setty and Ors. AIR 2002 Supreme Court 2066 holding that “severance of joint family status takes place no sooner preliminary decree is filed even though properties are not physically partitioned. Members of the joint family becomes tenants in common of the family property from the said day.”

The Supreme Court in the instant case of Ganduri Koteshwaramma has mainly dealt with the following two aspects to arrive its conclusion in the matter:

(1) Meaning of the term “partition”  

(2) Preliminary decree can be altered

The meaning of the term ‘Partition’:

In the instant case, the Supreme Court also heavily relied upon the Explanation under Section  6(5) in regard to the meaning of the term “Partition”.  According to the said provision, “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.

It is worth noting that this explanation has been introduced only in the HSA (Amendment) 2005 Act.  Therefore, the same could not be made applicable to the position obtaining prior to the coming into force of the Amendment Act.

This is for the reason that the Amendment Act, 2005 itself very specifically says that the said amendment is effective “on and from the commencement of the Hindu Succession (Amendment) Act, 2005.”

Thus, the SC could not have invoked the explanation under Section 6(5) of the Amended HSA, 1956 to give meaning to the word “partition”.

Even otherwise, the explanation under Section 6(3) of the amended Act is in pari material with the explanation 1 under un-amended Section 6 of the HSA, 1956.

The Supreme Court (three judge bench) has already ruled that once a fiction of ‘partition’ has been created it has to be given its logical end.  See Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. AIR 1978 SC 1239.

Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors. [1980] 1 SCR 161 .

A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 IA 151.

A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.

In view of the above categorical decisions by the SC decisions, the latest decision does not appear to be correct.  Further, in case of conflict, the decision of the higher bench (3 judge bench) would prevail than the decision of the division bench.

Modification of preliminary decree

The decision in Phoolchand and Anr. Vs. Gopal Lal (AIR 1967 SC 1470) quoted by the SC to support the view that  “If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation” is totally misplaced and misapplied.  The changed circumstances does not talk about changed circumstances in law; but the changed circumstances in facts of the case.

NO NEED for invoking the provisions of Hindu Succession (Amendment) Act, 2005

Since the Suit for partition was instituted in the year 1991, even according to the Hindu Succession (Andhra Pradesh) Amendment Act, 1986, the daughters have become equal co-larceners in the coparcenary property.

Therefore, there was no need for the Supreme Court to have invoked the provisions of the 2005 Amendment Act at all.

A FIT CASE FOR ‘REVIEW’

The latest decision by the SC, which according to my understanding is not well founded on legal reasoning, is bound to upset the well settled legal positions and would cause immense confusion and doubts as regards the rights and entitlements in regard to the partition of the Coparcenery property is concerned.  Since the instant decision appears to have overlooked a plethora of earlier decisions and has not addressed several legal issues in a cogent and logical manner, and the reasoning for the decision is ill-founded, it is a fit case for seeking Review.  Review is also a must in order to protect the interests of scores of persons whose suit for partition might be pending adjudication throughout the country.

Related Post :

Devolution of Coparcenary Property to Hindu Females : The Law

Distinction Between a 'Math' & 'Temple' : The Law

Justice R.V. Raveendran
Supreme Court of India

The Supreme Court in Parasamaya Kolerinatha Madam, Tirunelveli Vs. P.Natesa Achari has cast a distinction between the definition, use and purpose of a 'Math' and a 'Temple' and has further gone on to lay tests to determine whether an endowment is of a private or of a public nature. The relevant extracts from the judgment are as under;

7. As all these questions are interconnected, we will consider them together. We may at first refer to the definitions of the words `Math' and `Temple' in the Act. Section 6(13) of the Act defines `Math' thus : 

"Math means a Hindu religious institution with properties attached thereto and presided over by a person, the succession to whose office devolves in accordance with the direction of the founder of the institution or is regulated by usage and (i) whose duty it is to engage himself in imparting religious instruction or rendering spiritual service; or (ii) who exercises or claims to exercise spiritual headship over a body of disciples; and includes places of religious worship or instruction which are appurtenant to the institution. xxx xxx" 

Section 6(20) of the said Act defines the term "temple" as "Temple means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any section thereof, as a place of public religious worship. xxx xxx" 

8. The distinction between maths and temples, stated in several judicial pronouncement has found statutory recognition in the aforesaid definitions. There are two necessary ingredients for a structure or place to be described as a temple under the Act. First is its use as a place of public religious worship. Second is dedication of the structure or place to, or for the benefit of, or use as of right by, the Hindu community or a section thereof, as a place of public religious worship. The mere fact that members of the public are allowed to worship at a place, will not make it a public temple. The Hindu sentiments and the tenets of Hinduism do not normally exclude worshippers from a place of worship, even when it is private or part of a Math. Therefore, the crucial test is not whether the members of the public are permitted to worship, but whether the worship by the members of the public is as of right by the Hindu community or any section thereof, or whether a place has been dedicated a place of public religious worship. [See : the decision of the Privy Council in Mundacheri Koman vs. Atchuthan - ILR 58 Mad. 91, the decisions of the Madras High Court in Madras Hindu Religious Endowments Board vs. Deivanai Ammal - 1953 (2) MLJ 688; Bodendraswami Mutt vs. The President of the Board of Commissioners for Hindu Religious Endowments - 1955 (1) MLJ 60, and The Commissioner, Hindu Religious & Charitable Endowment (Admn.) Department vs. T.A.T. Srimath Gnaniar Madalayam - 2003 (1) MLJ 726]. 

9. In Goswami Shri Mahalaxmi Vahuji vs. Shah Ranchhoddas Kalidas (Dead) & Ors. - AIR 1970 SC 2025 and T.D. Gopalan vs. The Commissioner of Hindu Religions and Charitable Endowments, Madras - AIR 1972 SC 1716, this Court held that the origin of the temple, the manner in which the affairs are managed, the gifts received by it, the rights exercised by devotees in regard to worship therein and the consciousness of the devotees themselves as to the character of the temple, are the factors which go to show whether a temple is a public temple or a private temple. It is also well-settled that mere installation and consecration of idols in a place will not make it a place of public religious worship. Where the evidence shows that the disputed property retained the identity as a Math and where Gurupoojas (functions celebrating/important days associated with the founder or head of the math) are performed regularly, it will not lose the characteristic of a Math and become a temple, merely because idols have been installed and members of a section of Hindu community offer worship. In fact, this fact is now statutorily recognized in the definition of Math in section 6(13) of the Act which makes it clear that a Math includes any place of religious worship which is appurtenant to the institution of a Math. 

10. This Court in Radhakanta Deb vs. The Commissioner of Hindu Religious Endowments, Orissa [AIR 1981 SC 798] on a conspectus of earlier authorities, laid down the following tests to provide sufficient guidelines to determine on the facts of each case, whether an endowment is of a private or a public nature : 

"Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature : 

(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by member of the public is as of right; 

(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; 

(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; 

(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment." 

(emphasis supplied) 

11. We may also in this context refer to one of the earliest judgments of the Madras High Court. In Thambu Chetti Subraya Chetti vs. A.T. Arundel - ILR 6 (1883) Mad. 287. The question considered therein was whether a building known as the Dharma Sivachari Mattam could be considered to be a place of public worship, as idols were installed in the said Math premises, so that exemption from payment of municipal tax could be availed. A Division Bench of the Madras High Court held : 

"The original signification of the term Math or Matha is a building or set of buildings in which Hindu religious mendicants reside under a superior, who is called a Mahant. This spiritual superior is regarded with veneration by the members of the sect, and is installed with some ceremony, and not infrequently receives an honorific title. Although a place of worship is not a necessary part of a Math, such a place is, as may be expected, often found in such institutions, and, though intended primarily for the use of the inmates, the public may be admitted to it, and so this part of the building may become a place of religious worship. A Hindu Math somewhat resembles a Catholic Monastery. From the circumstance that a portion of it is not infrequently devoted to worship, and that the public may be admitted to it, the term Math has acquired a secondary signification as a small temple. Taking the whole of the facts mentioned in the judgment, we see reason to think that the institution was a Math in the original rather than the secondary sense of that term.............when the Mattam is in part of in whole used for purposes other than those of public worship, it will be liable to taxation." 

(emphasis supplied) 

12. Therefore, the fact that there are some idols installed in a Math and members of the public offer worship to such idol will not make it a place of public religious worship, that is, a temple, if the other ingredients of a math exist or if it is established to be a premises belonging to a math and used by the math for its purposes. If the property in its origin was a math property, it cannot be treated as a temple merely because the math had installed idols and permitted worship by the members of the community and the premises is used for rendering charitable and religious services. The Division Bench has proceeded on the erroneous impression that existence of an idol in a math property, when worshipped by the members of the community, would convert the math property into a temple.

Devolution of Coparcenary Property to Hindu Females : The Law

Justice R.M. Lodha
Supreme Court of India

The Supreme Court in Ganduri Koteshwaramma Vs. Chakiri Yanadi has discussed the law relating to intestate succession by Hindu females and the effect of the amendment to the Hindu Succession Act. While dealing with the effect of the amendment in the Hindu Succession Act, in a suit for partition of ancestral property, the Supreme Court has observed as under;

12. 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, decided to bring in necessary changes in the law. The statement of objects and reasons of the 2005 Amendment Act, inter alia, reads as under : 

".......The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property." 

13. With the above object in mind, the Parliament substituted the existing Section 6 of the 1956 Act by a new provision vide 2005 Amendment Act. After substitution, the new Section 6 reads as follows : 

"6. Devolution of interest in coparcenary property.— 

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- - 

(a) by birth become a coparcener in her own right in the same manner as the son; 

(b) have the same rights in the coparcenary property as she would have had if she had been a son; 

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: 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. 

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. 

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-- 

(a) the daughter is allotted the same share as is allotted to a son; 

(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and 

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be. 

Explanation.-- For the purposes of this sub-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. 

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect – 

(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or 

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. 

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. 

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." 

14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. 

15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.

Devolution of Property under S. 8 of the Hindu Succession Act : Whether Joint or Self Acquired Property? : The Law

Justice Hima Kohli
Delhi High Court

The Delhi High Court in Pratap v. Shiv Shanker has recapitulated the law relating to the devolution of property under S. 8 of the Hindu Succession Act. While following the dicta laid down by the Hon'ble Supreme Court of India, the Court held that property devolving under S. 8 of the Hindu Succession Act would be self acquired property of an individual vis-a-vis his sons. The relevant extracts from the judgment are reproduced hereinbelow:

5. The entire issue that arises for consideration in the present case hinges on the effect of Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as „the Act'). The Act lays down 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, in the manner as stipulated in Section 8 of the Act. Sub-section (a) of Section 8 of the Act provides that the property of a male dying intestate shall devolve firstly upon the heirs, being the relatives specified in class I of the Schedule. Class I of the Schedule reads as below:

"Heirs in 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."

6. The heirs mentioned in Class I of the Schedule shows that the list includes sons, daughters etc. as also son of the pre-deceased son, but does not specifically include the grandson, being the son of a living son. Under the Hindu Law, the moment a son is born, he gets a share in his father‟s property and becomes a part of the coparcenery.

Such a right accrues in favour of the son by virtue of his birth and not on the date of demise of the father or inheritance from the father.

However, it is no longer res integra that under Section 8 of the Act, the property which devolves on a Hindu would not be HUF property in his hand, vis-a-vis his own sons. The aforesaid conclusion was drawn by the Supreme Court in the case of Commissioner of Wealth-tax, Kanpur etc. vs. Chander Sen etc. reported as AIR 1986 SC 1753, wherein after taking note of the divergent views expressed on the said issue by the Allahabad High Court, Full Bench of Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on the one side, and the Gujarat High Court on the other, it was observed as below:-

"19. 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.

20. 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 S. 8 he takes it as karta of his own undivided family. ......... It would be difficult to hold today the property which devolved on a Hindu under S. 8 of the Hindu Succession Act would be HUF property 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 S.8 of the Act included widow, mother, daughter of predeceased son etc.

21. xxxxxxx

22. The express words of S.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 included son of a predeceased son cannot be ignored."

(emphasis added)

7. The aforesaid judgment was referred to and relied upon by the Supreme Court in a subsequent judgment entitled Yudhishter vs. Ashok Kumar reported as AIR 1987 SC 558. In the aforesaid judgment, it was held as below:

"10. This question has been considered by this Court in Commr. Of Wealth Tax. Kanpur v. Chander Sen (1986) 3 SCC 567; (AIR 1986 SC 1753), 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 separate 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. ............ 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 was unable to accept the views of the Gujarat High Court. ......... 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 vis-à-vis 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 appellant authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." (emphasis added)

8. A Single Judge of this Court in the case of Rahul Behl and others vs. Smt. Ichayan Behl and another reported as DRJ 1991 (21) 205 followed the aforesaid judgments of the Supreme Court and rejected the plaint of the plaintiffs therein, who had filed a suit for declaration against their grandmother and their father on the ground that a residential house situated in Greater Kailash Part-I was a self- acquired property of their grandfather and upon his demise, the property fell into the Hindu Joint Family and became a coparcenery property, thus resulting in the plaintiffs acquiring a share therein as coparceners on their birth. On an application filed by the defendants therein seeking rejection of the plaint under Order 7 Rule 11 CPC, the Court held that the father of the plaintiffs acquired a share in the suit property in his individual capacity as a heir of his deceased father and not as coparcenery property. 

Thus, by applying the provisions of Section 8 of the Act, the Single Judge held that defendant No. 2 therein alone inherited the property to the exclusion of his sons because the said property devolved on him in his individual capacity and became his self-acquired property, and therefore would not form a part of or become a coparcenery property.

9. The aforesaid principle of law is squarely applicable to the facts of the case in hand. It is held that the trial court did not err in arriving at a conclusion that upon the demise of his father, grandfather of the appellant, the suit property devolved on the respondent in his individual capacity and thus, had to be treated as self-acquired property in his hands. The appellant failed to establish that there existed any coparcenary, in which the appellant and the respondent were coparceners or there existed any HUF of which, the respondent was a Karta. Therefore the claim of the appellant for partition of the suit property on the ground that the same was ancestral, was rightly turned down. The suit property has to be treated as self-acquired property in the hands of the respondent. The appellant cannot claim any share therein on the ground that the said property is ancestral in nature.