Dear Mr. Rajasekharan,
Thanks for giving reference of the SC decision.
This decision is completely wrong (notwithstanding that it has been rendered by SC) based on wrong understanding of and mixing and confusing the provisions of Hindu Succession Act, 1956.
For instance, it is not in dispute that the property in question to begin with was Ancestral. Therefore, all the male members (at the relevant point of time as it is prior to coming into force of HS (Amendment) Act, 2005) are co-parceners. The grandson being within the 4 generations of male members is WITHOUT DOUBT A CO-PARCENER AND has every right to ask for partition of the property - even when the Grandfather/Father is alive.
Now, first reading Section 6 and 30 of the HSA.
As per Sec. 6, Upon death of a Male co-parcener, having interest in co-parcenary properlty, has to devolve on survivorship and not as per provisions of HSA, 1956.
First exception: If the said male had left behind any class-I female heirs (mother, wife, daughter etc.,) then the deceased co-parcener's interest in the property shall devolve NOT BY SURVIVORSHIP, but either by his TESTAMENTARY DISPOSITION or intestate Succession, as the case may be.
The Testamentary disposition mentioned in First proviso to Section 6 has connection to the Sec. 30 of the HSA, under which a co-parcener can dispose of his interest thorugh testamentary disposition.
Therefore, upon death of the male co-parcener, there will be a NOTIONAL partition of the property. The share that falls to the portion of the deceased co-parcener who has left behind Class-I female heirs will go either by way of (i) Testamentary disposition or (ii) Intestate Succession. IN SUCH CASE, only the portion of the property of the deceased co-parcener loses its co-parcenary character as the same is either goes by way of Testamentary disposition or by way of inheritence - and the property in the hands of the beneficiaries will be their personal properties (no more having the character of the co-parcenary).
However, just because a NOTIONAL Partition had taken place, it does not automatically mean that the remaining co-parcenary property (not falling to the share of the deceased co-parcener) will cease to be of co-parcenary character or that the remaining property also should be partitioned then there. In fact, if the remaining co-parceners desired to continue jointly, they may do so. THIS IS WHAT HAD HAPPENED IN THE CASE IN QUESTION - as has been repeatedly stated by all the 4 brothers (i.e. father of the plaintiflf and his uncles) that no partition had taken place**. In any case, the plaintiff, being the grandson of the deceased is definitely a co-parcener as far as the remaining property is concerned.
Therefore to say that the grandson is not entitled to ask for partition, or that the property has lost co-parcenary character is completely WRONG.
**Even if the partition had taken place between the 4 brothers (i.e. between the plaintiff's father and his three uncles) still it will be coparcenary property in the hands of his father qua the children and as such the plaintiff has every right to ask for partition.
To say the least, even at the level of SC, the hindu Mitakshara law has not been properly understood, and a number of wrong decisions are being rendered from time to time. The decision mentioned by you is also one amongst such wrong decisions.
