(Querist) 21 June 2009
This query is : Resolved
Hi, My grandfather, grandmother, father & 2 uncles has made a partition deed of properties acquired by grandfather from ancestors. My grandfather has dies and the deed is not registered. What is the impact of the same? And what are my rights on the property as a Grandson.
son's son during the life time of the son, would not inherit from the grandfather.
IN THE HIGH COURT OF DELHI
Decided On: 24.09.2007
Appellants: Master Gaurav Sikri and Anr. Vs. Respondent: Smt. Kaushalya Sikri and Ors
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 Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-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-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu Law, 15th Edn. dealing with Section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition, pages 918-919.
22. The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored.
23. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.
The above decision makes it clear that a son's son during the life time of the son, would not inherit from the grandfather. This is so because only the son of a predeceased son has been shown as an heir in Class I of the Schedule. In the said decision, the Supreme Court has categorically observed that the express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. In this background, I am of the view that the submission made by the leraned Counsel for the defendants, that the plaintiffs would not have any entitlement during the life time of the defendant No. 2, is well founded.
(Expert) 22 June 2009
as per my view, the unregistered partition deed possess validity and moreover its a family arrangement which possess a complete binding force upon the members. the apex court has reiterated the fact the family arrangements must be given superiority if validly made and would bind the members.
adv. rajeev ( rajoo )
(Expert) 22 June 2009
If the partition is acted upon according to the partition deed then it is valid. Once partition is always partition. U can claim ur share in ur father's share only.