Leading caselaw on succession under Hindu succession Act 1956
followed Chander Sen’s case and the various judgments
following Chander Sen’s case. This Court held:-
“The Act brought about a sea change in the matter
of inheritance and succession amongst Hindus.
Section 4 of the Act contains a non obstante
provision in terms whereof any text, rule or
interpretation of Hindu Law or any custom or usage
as part of that law in force immediately before the
commencement of the Act, ceased to have effect
with respect to any matter for which provision is
made therein save as otherwise expressly provided.
Section 6 of the Act, as it stood at the relevant time,
provided for devolution of interest in the
coparcenary property. Section 8 lays down the
general rules of succession that the property of a
male dying intestate devolves according to the
provisions of the Chapter as specified in Clause (1)
of the Schedule. In the Schedule appended to the
Act, natural sons and daughters are placed as
Class I heirs but a grandson, so long as father is
alive, has not been included. Section 19 of the Act
provides that in the event of succession by two or
more heirs, they will take the property per capita
and not per stirpes, as also tenants-in-common and
not as joint tenants.
Indisputably, Bhima left behind Sant Ram and three
daughters. In terms of Section 8 of the Act,
therefore, the properties of Bhima devolved upon
Sant Ram and his three sisters. Each had 1/4th
share in the property. Apart from the legal position,
factually the same was also reflected in the
record-of-rights. A partition had taken place
amongst the heirs of Bhima.
Although the learned first appellate court proceeded
to consider the effect of Section 6 of the Act, in our
opinion, the same was not applicable in the facts
and circumstances of the case. In any event, it had
rightly been held that even in such a case, having
regard to Section 8 as also Section 19 of the Act,
the properties ceased to be joint family property and
all the heirs and legal representatives of Bhima
would succeed to his interest as tenants-in-common
and not as joint tenants. In a case of this nature, the
joint coparcenary did not continue.” (at paras 12-15)
20. Some other judgments were cited before us for the
proposition that joint family property continues as such even
with a sole surviving coparcener, and if a son is born to such
coparcener thereafter, the joint family property continues as
such, there being no hiatus merely by virtue of the fact there is
a sole surviving coparcener. Dharma Shamrao Agalawe v.
Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi
v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v.
Surinder Singh (2013) 9 SCC 419, were cited for this purpose.
None of these judgments would take the appellant any further
in view of the fact that in none of them is there any consideration
of the effect of Sections 4, 8 and 19 of the Hindu Succession Act.
The law, therefore, insofar as it applies to joint family property
governed by the Mitakshara School, prior to the amendment of
2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the
Hindu Succession Act, 1956, having at the time of his death an
interest in Mitakshara coparcenary property, his interest in the
property will devolve by survivorship upon the surviving
members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be
disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is
contained in the proviso to Section 6, which states that if such a
male Hindu had died leaving behind a female relative specified
in Class I of the Schedule or a male relative specified in that
Class who claims through such female relative surviving him,
then the interest of the deceased in the coparcenary property
would devolve by testamentary or intestate succession, and not
by survivorship.
(iv) In order to determine the share of the Hindu male
coparcener who is governed by Section 6 proviso, a partition is
effected by operation of law immediately before his death. In
this partition, all the coparceners and the male Hindu’s widow
get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by
reason of the death of a male Hindu leaving self-acquired
property or by the application of Section 6 proviso, such
property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act,
after joint family property has been distributed in accordance
with section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various
persons who have succeeded to it as they hold the property as
tenants in common and not as joint tenants.
Applying the law to the facts of this case, it is clear that on
the death of Jagannath Singh in 1973, the joint family property
which was ancestral property in the hands of Jagannath Singh
and the other coparceners, devolved by succession under
Section 8 of the Act. This being the case, the ancestral
property ceased to be joint family property on the date of death
of Jagannath Singh, and the other coparceners and his widow
held the property as tenants in common and not as joint
tenants. This being the case, on the date of the birth of the
appellant in 1977 the said ancestral property, not being joint
family property, the suit for partition of such property would not
be maintainable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2360_of 2016
[ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014]
UTTAM …APPELLANT
VERSUS
SAUBHAG SINGH & ORS. …RESPONDENTS
Dated;March 2, 2016.
R.F. Nariman, J.
https://www.lawweb.in/2016/03/leading-caselaw-on-succession-under.html
