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

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.

Presumption of Joint Hindu Family : The Law

Justice A.K. Mathur
Supreme Court of India

The Supreme Court in Appasaheb Peerappa Chandgade vs Devendra Peerappa Chandgade has ruled on the presumption regarding joint family property under the Hindu law. The Supreme Court after considering various precedents on the subject, held that there is no presumption of joint family property, and whoever alleges the existence of the same must prove it through evidence. The Supreme Court further added that if it is shown that the properties were acquired out of the family nucleus, the initial burden is discharged by the person who claims joint Hindu family, and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence. The relevant extracts from the judgment are reproduced hereinbelow;

6. We have gone through the records and heard learned Counsel for the parties at length. So far the legal proposition is concerned, there is no gain saying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards.

7. In the case of Srinivas Krishnarao Kango v. Narayan Devli Kango and Ors. , their Lordships held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors. wherein it was observed as follows:

There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called "division of status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether moveable or immoveable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.

Similarly, in the case of Achuthan Nair v. Chinnammu Amma and Ors. , their Lordships held as follows:

Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.

Similarly, in the case of Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and Ors., their Lordships have held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.

8. In the case of Surendra Kumar v. Phoolchand (dead) through LRs and Anr. their Lordships held as follows:

It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted/ But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family.

Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.

Right to Property of an Illegitimate Child : The Law

Justice Ganguly

The Supreme Court in Revanasiddappa & Anr. vs Mallikarjun & Ors. has examined the question whether an illegitimate child is entitled to a share in coparcenary property or his share is only limited to the self-acquired property of his parents under Section 16(3) of the Hindu Marriage Act? While examining the various judicial pronouncements on the subject the Court took a different view from earlier decisions and has accordingly referred the matter for reconsidered by a larger Bench of the Court. The relevant extracts from the judgment are reproduced hereinbelow;

12. Section 16(3) of the Hindu Marriage Act, 1955 reads as follows:

"16. Legitimacy of children of void and voidable marriages-

(1) xxx

(2) xxx

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

13. Thus, the abovementioned section makes it very clear that a child of a void or voidable marriage can only claim rights to the property of his parents, and no one else. However, we find it interesting to note that the legislature has advisedly used the word "property" and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general.

14. Prior to enactment of Section 16(3) of the Act, the question whether child of a void or voidable marriage is entitled to self-acquired property or ancestral property of his parents was discussed in a catena of cases. The property rights of illegitimate children to their father's property were recognized in the cases of Sudras to some extent.

15. In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors., [AIR 1923 PC 8], the Privy Council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father's property, along with the legitimate children.

16. In P.M.A.M. Vellaiyappa Chetty & Ors. v. Natarajan & Anr., [AIR 1931 PC 294], it was held that the illegitimate son of a Sudra from a permanent concubine has the status of a son and a member of the family and share of inheritance given to him is not merely in lieu of maintenance, but as a recognition of his status as a son; that where the father had left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son was not entitled to demand a partition of the joint family property, but was entitled to maintenance out of that property. Sir Dinshaw Mulla, speaking for the Bench, observed that though such illegitimate son was a member of the family, yet he had limited rights compared to a son born in a wedlock, and he had no right by birth. During the lifetime of the father, he could take only such share as his father may give him, but after his death he could claim his father's self-acquired property along with the legitimate sons.

17. In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr., [1889-90 Indian Appeals 128], the facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son and a legitimate daughter and three widows. The legitimate son had died and the issue was whether the illegitimate son could succeed to the property of the Raja. The Privy Council held that the illegitimate son was entitled to succeed to the Raja by virtue of survivorship.

18. In Gur Narain Das & Anr. v. Gur Tahal Das & Ors., [AIR 1952 SC 225], a Bench comprising Justice Fazl Ali and Justice Bose agreed with the principle laid down in the case of Vellaiyappa Chetty (supra) and supplemented the same by stating certain well- settled principles to the effect that "firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime. But on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son." However, the Bench was referring to those cases where the illegitimate son was of a Sudra from a continuous concubine.

19. In the case of Singhai Ajit Kumar & Anr. v. Ujayar Singh & Ors., [AIR 1961 SC 1334], the main question was whether an illegitimate son of a Sudra vis-`-vis his self-acquired property, after having succeeded to half-share of his putative father's estate, would be entitled to succeed to the other half share got by the widow. The Bench referred to Chapter 1, Section 12 of the Yajnavalkya and the cases of Raja Jogendra Bhupati (supra) and Vellaiyappa Chetty (supra) and concluded that "once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father's entire self-acquired property in the absence of a son, widow, daughter or daughter's son and to share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow's death."

20. The amendment to Section 16 has been introduced and was brought about with the obvious purpose of removing the stigma of illegitimacy on children born in void or voidable marriage (hereinafter, "such children").

21. However, the issues relating to the extent of property rights conferred on such children under Section 16(3) of the amended Act were discussed in detail in the case of Jinia Keotin & Ors. v. Kumar Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was contended that by virtue of Section 16(3) of the Act, which entitled such children's rights to the property of their parents, such property rights included right to both self-acquired as well as ancestral property of the parent. This Court, repelling such contentions held that "in the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself." Thus, the submissions of the appellants were rejected.

22. In our humble opinion this Court in Jinia Keotin (supra) took a narrow view of Section 16(3) of the Act. The same issue was again raised in Neelamma & Ors. v. Sarojamma & Ors. [(2006) 9 SCC 612], wherein the court referred to the decision in Jinia Keotin (supra) and held that illegitimate children would only be entitled to a share of the self-acquired property of the parents and not to the joint Hindu family property.

23. Same position was again reiterated in a recent decision of this court in Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685], wherein this Court held that a child born in a void or voidable marriage was not entitled to claim inheritance in ancestral coparcenary property but was entitled to claim only share in self-acquired properties.

24. We cannot accept the aforesaid interpretation of Section 16(3) given in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) for the reasons discussed hereunder:

25. The legislature has used the word "property" in Section 16(3) and is silent on whether such property is meant to be ancestral or self-acquired. Section 16 contains an express mandate that such children are only entitled to the property of their parents, and not of any other relation.

26. On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.

27. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio- economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time.

28. The amendment to Section 16 of the Hindu Marriage Act was introduced by Act 60 of 76. This amendment virtually substituted the previous Section 16 of the Act with the present Section. From the relevant notes appended in the clause relating to this amendment, it appears that the same was done to remove difficulties in the interpretation of Section 16.

29. The constitutional validity of Section 16(3) of Hindu Marriage Act was challenged before this Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC 76], held that Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner which advances the object of the legislation. This Court also recognized that the said Act intends to bring about social reforms and further held that conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16 (See para 68).

30. In paragraph 75, page 101 of the report, the learned judges held that Section 16 was previously linked with Sections 11 and 12 in view of the unamended language of Section 16. But after amendment, Section 16(1) stands de-linked from Section 11 and Section 16(1) which confers legitimacy on children born from void marriages operates with full vigour even though provisions of Section 11 nullify those marriages. Such legitimacy has been conferred on the children whether they were/are born in void or voidable marriage before or after the date of amendment.

31. In paragraph 82 at page 103 of the report, the learned Judges made the following observations: "In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents."

32. It has been held in Parayankandiyal (supra) that Hindu Marriage Act is a beneficent legislation and intends to bring about social reforms. Therefore, the interpretation given to Section 16(3) by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) needs to be reconsidered.

33. With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate `ipso-jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.

34. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.

35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.

36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha Matha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pe- existing common law view discussed above. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the Statute and the principles voiced under Part IV of the Constitution, namely, the Directive Principles of State Policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today State would include the higher judiciary in this country. Considering Article 37 in the context of the duty of judiciary, Justice Mathew in Kesavananda Bharati Sripadagalvaru v. State of Kerala and another [(1973) 4 SCC 225] held:

"......I can see no incongruity in holding, when Article 37 says in its latter part "it shall be the duty of the State to apply these principles in making laws", that judicial process is `State action' and that the judiciary is bound to apply the Directive Principles in making its judgment."

38. Going by this principle, we are of the opinion that Article 39 (f) must be kept in mind by the Court while interpreting the provision of Section 16(3) of Hindu Marriage Act. Article 39(f) of the Constitution runs as follows:

"39. Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing-

(a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) xxx

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."

39. Apart from Article 39(f), Article 300A also comes into play while interpreting the concept of property rights. Article 300A is as follows: "300A. Persons not to be deprived of property save by authority of law: No person shall be deprived of his property save by authority of law."

40. Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.

41. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.

42. For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) on Section 16(3) of the Act.

43. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench.