SUPREME COURT OF INDIA
Sheela Devi and Others
Vs
Lal Chand and Another
Civil Appeal No. 4326 of 2006, Arising Out of S.L.P. (C) No. 4031 of 2006
(S. B. Sinha and Dalveer Bhandari, JJ)
29.09.2006
S. B. SINHA, J.
1. Leave granted.
2. Interpretation of some of the provisions of The Hindu
Succession Act, 1956 (for short "the Act") and, in particular,
Sections 6 and 8 thereof arises for consideration in this appeal which arises
out of a judgment and order dated 10th October, 2005 passed by the High Court
of Punjab and Haryana in RSA No. 1627 of 1994 dismissing an appeal from a
judgment and order dated 23rd May, 1994 passed by the Additional District
Judge, Patiala affirming a judgment and decree dated 17th May, 1990 passed by
the Subordinate Judge 1st Class Samana decreeing the suit filed by the
plaintiffs-respondents herein.
3. The relationship between the parties is not in dispute. Tulsi Ram was the
owner of the property. He died in the year 1889 leaving behind five sons, viz.,
Waliati, Babu Ram, Charanji Lal, Hukam Chand and Uggar Sain. The aforementioned
five sons of Tulsi Ram were members of a Mitakshara Coparcenary. We are
concerned with the estate of one of the sons of Tulsi Ram, viz., Babu Ram,
whose children are parties before us. It is not in dispute that Uggar Sain died
issueless in 1931. The names of all the brothers were mutated in the year 1927
in respect of the properties left by Tulsi Ram. Babu Ram died in the year 1989
leaving behind two sons, viz., Lal Chand and Sohan Lal (Plaintiffs-Respondents)
and three daughters (Appellants herein). Lal Chand was born in 1938 whereas
Sohan Lal was born in 1956.
4. A finding of fact has been arrived at that the parties are governed by the
Mitakshara School of Hindu Law. The sons of Tulsi Ram were, thus, coparceners.
Upon the death of Tulsi Ram, Babu Ram inherited 1/5th share in the property.
However, on the death of Uggar Sain, 1/20th share of Tulsi Ram's property was
also devolved on him. Indisputably, the names of the parties were shown in the
revenue records having 1/5th share each. The said order of the revenue
authorities came to be challenged by plaintiffs-respondents herein, inter alia,
on the premise that defendants had not acquired any right, title and interest
in the property.
The learned Trial Judge in his judgment recorded the following:
9. As a result keeping in view the evidence on record I hold that the
plaintiffs and Babu Ram had constituted a Joint Hindu Family and out of the
land in suit 1/5th share was separate property of Babu Ram and 4/5th share was
ancestral property in the hands of Babu Ram qua the plaintiffs. The issue is
decided accordingly.
5. The suit of the plaintiffs was decreed on the basis thereof. The Appellate
Court also affirmed the decree passed by the learned Trial Judge. On a Second
Appeal having been filed by Appellants herein, according to the High Court, the
only question which required determination was as to whether the provisions of
Section 8 of the Act would apply to the facts of the present case or the law as
applicable prior to the enforcement of the 1956 Act would apply. The High Court
opined that for the purpose of determination of the said question it was
necessary to determine the nature of the property. Having held that the nature
of the property must be recorded as Hindu Coparcenary and ancestral property,
it was stated that the law applicable before the Act came into force would
govern the rights of the parties and not the provisions of the Act.
6. Mr. Nidesh Gupta, learned Counsel appearing on behalf of Appellants
submitted that the High Court committed a manifest error in arriving at the
aforementioned findings in total disregard of the provisions of the 1956 Act.
The learned Counsel would contend that keeping in view the fact that the
succession opened only in the year 1989 when Babu Ram died, the question of
applying the law as was obtaining prior to coming into force of the Act did not
arise. It was urged that the provisions contained in Section 8 of the Act are
clear and explicit and in that view of the matter the succession of the parties
would be governed in terms of the Scheduled appended thereto. Mr. Manoj Swamp,
learned Counsel appearing on behalf of Respondents, however, would submit that
having regard to the provisions contained in Section 6 of the Act, the concept
of Mitakshara coparcenary having been saved, the parties would be governed
thereby.
7. The Act was enacted to amend and codify the law relating to intestate
succession amongst Hindus. Section 4 of the Act provides for an overriding
effect of the Act. Sub-section (2) of Section 4 of the Act reads as under:
For the removal of doubts it is hereby declared that nothing contained in this
Act shall be deemed to affect the provisions of any law for the time being in
force providing for the prevention of fragmentation of agricultural holdings or
for the fixation of ceilings or for the devolution of tenancy rights in respect
of such holdings.
Section 6 of the Act deals with devolution of interest in coparcenary property
and is in the following terms:
6. Devolution of interest in coparcenary property. - When a male Hindu dies
after the commencement of this Act, having at the time of his death an interest
in a Mitakshara coparcenary property, his interest in the property shall
devolve by survivorship upon the surviving members of coparcenary and not in
accordance with this Act:
Provided that, if the deceased had left him surviving a female relative
specified in class I of the Schedule or a male relative specified in that class
who claims through such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship.
Explanation I.--For the purposes of this 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.
Explanation 2.-- Nothing contained in the proviso to this section shall be
construed as enabling a person who has separated himself from the coparcenary
before the death of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.
A bare perusal of the said provisions would clearly show that where the
deceased had left him surviving a female relative specified in class I of the Schedule,
his interest in the Mitakshara coparcenary property shall devolve by intestate
succession and not by survivorship.
8. We have noticed hereinbefore that a finding of fact has been arrived at that
the properties in the hands of Babu Lal and his brothers were joint family
property. The principle of law applicable in this case is that so long a
property remains in the hands of a single person, the same was to be treated as
a separate property and thus, would be entitled to dispose of the coparcenary property
as the same were his separate property, but, if a son is subsequently born to
him or adopted by him, the alienation whether it is by way of sale, mortgage or
gift, will nevertheless stand, for a son cannot object to alienations so made
by his father before he was born or begotten. But once a son is born, it
becomes a coparcenary property and he would acquire an interest therein.
9. In N.R. Raghavachariar's Hindu Law Principles and Precedents, 8th Edn. 1987,
Section 244, it is stated:
Besides, it is absolutely immaterial whether the sons were born to the
inheritor before or after the inheritance fell in. But if the property is
inherited from a paternal ancestor beyond the third degree then the property is
not ancestral as against the inheritor's sons, and the inheritor has absolute
powers of disposal over it. So also, if the inheritor has neither a son, son's
son nor son's son's son, the property is absolute in the inheritor's hands even
though he may have other relations, for instance, a great-great-grandson or a
paternal uncle, in the case of inheritance from father [Janki v. Nand Ram 11A.
194]. But property which comes to an inheritor from one of his three immediate
paternal ancestors as absolute property owing to the absence of sons, grandsons
or great-grandsons, becomes ancestral property with the birth of any of them,
though an alienation made by the inheritor before such birth, cannot be
impeached. The character of ancestral property is not taken away by there being
a partition of the property in the family of the inheritor, and though a share
of ancestral property allotted to a coparcener on partition will be his
separate property as regards others [Bejai Bahadur v. Bhupindar 17A. 456 :
221.A. 139 (P.C.) it will be ancestral property as against the allottee's sons,
grandsons, and great-grandsons whether born before or after the partition.
[Chatturbhooj v. Dharamsi 9B. 438; Lal Bahadur v. Kanhaia Lal 34 I.A. 65 : 29
A. 244 : 4 A.L.J. 227 : 9 Born. L.R. : 597 : 11 C.W.N. 417 : 17 M.L.J. 228; Visalatchi
v. Annasamy 5 M.H.C.R. 150 : Adurmoni v. Chowdhry 3 C.1; Allah Diyo v. Soha
1942 A.L.J. 443 : 1942 A. 331]
10. In Law of Joint Family System, Debts, Gifts, Maintenance, Damdupat, Benami
Transaction and Pre-emption, First Edition 1993, by Dr. Paras Diwan, at page
51, it is stated: They take an interest in it by birth, whether they are in
existence at the time of partition or are born subsequently. Such share,
however, is ancestral property only as regards his male issues. As regards
other relations, it is a separate property, and if the coparcener dies without
leaving male issues, it passes to his heirs by succession. A person who for the
time being is the sole surviving coparcener is entitled to dispose of the
coparcenary property as if it were his separate property. He may sell or
mortgage the property without legal necessity or he may make a gift of it. If a
son is subsequently born to him or adopted by him, the alienation, whether it
is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot
object to alienations made by his father before he was born or begotten.
11. In M.T. Pankajammal and Anr. v. M.T. Parthasarthy Aiyangar A1R (33) 1946
Madras 99, it was held:
...If it were necessary I would on the circumstances above adverted be prepared
to hold that there was no intention on the part of the executant that the son
to be adopted had to share the property with any son that may be born to him
subsequently. But as I have already held on a construction of the settlement
deed, the plaintiff became entitled to the property only on the death of his
father and as an adopted son, according to Hindu Law, he had to share it along
with the after born brother and his step-mother.
Although in 1927 Babu Ram had no son and the property at his hands became a
separate property. But, in view of the well-settled principles of Hindu Law, as
soon as a son was born to him the concept of the property being a coparcenary
property in terms of Mitakshara School of Hindu Law revived. The law in this
behalf has succinctly been stated in Mayne's Hindu Law and Usage, 14th edition,
at pages 627-628 and 641, in the following terms:
Where ancestral property has been divided between several joint owners, there
can be no doubt that if any of them have male issue living at the time of the
partition, the share which falls to him will continue to be ancestral property
in his hands, as regards has male issue, for their rights had already attached
upon it, and the partition only cuts off the claims of the dividing members.
The father and his male issue still remain joint. The same rule would apply
even where the partition had been made before the birth of male issue or before
a son is adopted, for the share which is taken at a partition, by one of the
coparceners is taken by him as representing his branch. It was held by the
Andhra Pradesh High Court that where a father divided the family property
between him and his sons, the share obtained by him was his self-acquired
property which he could bequeath to his wife.
Coparceners may hold property separately - An examination into the property of
the joint family would not be complete without pointing out what property may
be held by the individual members as their separate property. All property
which is not held in coparcenary is separate property and Hindu law recognizes
separate property of individual members of a coparcenary as well as of
separated members. (1) Property which comes to a man as obstructed heritage
(Saprati bandhadaya) is his separate property. It is not self-acquired property
within the meaning of Hindu law, though in their incidents, there may be no
difference between the two species....
{See also Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar LR I.A. Vol.
IX Page 128.}
12. The question again came up for consideration before a Division Bench of the
Allahabad High Court in Pratap Narain v. Commissioner of Income-Tax, U.P. 63
ITR 505 wherein Pathak, J. (as His Lordship then was) opined:
It seems to us that it is now well settled, that when Hindu undivided family
property is partitioned between the members of a Hindu undivided family, and a
share is obtained on such partition by a coparcener, it is ancestral property
as regards his male issue. They take an interest in it by birth, whether they
are in existence at the time of partition or are born subsequently. We are of
the opinion that it is not correct to say that the share of the property, upon
partition, constitutes the separate property of the coparcener and that it is
only subsequently when a son is born that the property becomes ancestral
property or Hindu undivided family property. The birth of the son does not
alter the nature of the property. The property all along continues to be
coparcenary property. But upon the birth of a son all the rights which belong
to a coparcener belong to that son, and the enlarged rights hitherto enjoyed by
the sole coparcener are now abridged within their normal compass.
13. We may, however, notice that the same learned. Judge in Commissioner of
Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors., in a case where father and
his son constituted a HUF and had been carrying on business in a partnership
firm, stated the law in the following terms:
We have noted the divergent views expressed on this aspect by the Allahabad
High Court, Full Bench of the Madras High Court, Madhya Pradesh and Andhra
Pradesh High Courts on one side and the Gujarat High Court on the other.
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.
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 he 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 preexisting Hindu law. It would be difficult
to hold today the property which devolved on a Hindu under Section 8 of the
Hindu Succession
Act would be HUF in his hand visa-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.
In paragraph 15, however, the law was stated as under:
It is clear that under the Hindu law, the moment a son is born, he gets a share
in the 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 separated 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. But the question is: is the position
affected by Section 8 of the Hindu Succession Act, 1956
and if so, how? The basic argument is that Section 8 indicates the heirs in
respect of certain property and Class I of the heirs includes the son but not
the grandson. It includes, however, the son of the predeceased son. It is this
position which has mainly induced the Allahabad High Court in the two
judgments, we have noticed, to take the view that the income from the assets
inherited by son from his father from whom he has separated by partition can be
assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who
dies intestate devolves on his son in his individual capacity and not as karta
of his own family. On the other hand, the Gujarat High Court has taken the
contrary view.
The said decision has been followed by this Court in Commissioner of Income Tax
v. P.L. Karuppan Chettiar and Additional Commissioner of Income Tax v.
M. Karthikeyan .
14. In Eramma v. Veerupana and Ors., this Court observed:
It is clear from the express language of the section that it applies only to
coparcenary property of the male Hindu holder who dies after the commencement
of the Act. It is manifest that the language of Section 8 must be construed in
the context of Section 6 of the Act. We accordingly hold that the provisions of
Section 8 of the Hindu Succession Act are not retrospective in operation and
where a male Hindu died before the Act came into force i.e. where succession
opened before the Act, Section 8 of the Act will have no application.
15. The Act indisputably would prevail over the old Hindu Law. We may notice
that the Parliament, with a view to confer right upon the female heirs, even in
relation to the joint family property, enacted Hindu Succession Act, 2005. Such
a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The
succession having opened in 1989, evidently, the provisions of Amendment Act,
2005 would have no application. Sub-section (1) of Section 6 of the Act governs
the law relating to succession on the death of a coparcener in the event the
heirs are only male descendants. But, proviso appended to Sub-section (1) of
Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal
Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It
was, therefore, obligatory on the part of the Plaintiffs-Respondents to show
that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So
far as the Second son Sohan Lal is concerned, no evidence has been brought on
records to show that he was born prior to coming into force of Hindu Succession Act, 1956. Thus, it was the half share in
the property of Babu Ram, which would devolve upon all his heirs and legal
representatives as at least one of his sons was born prior to coming into force
of the Act.
16. Except to the aforementioned extent; in our opinion, the courts below are
correct in applying the provisions of Section 6 of the Act and holding that
Section 8 thereof will have no application. The appeal is allowed in part and
to the aforementioned extent. The decree would be modified accordingly. No
costs.