IMPORTANT POINT
Where a coparcener had left him surviving a female relative specified in Class I of the Schedule, his interest in Mitakshkra Coparcenary property shall devolve by intestate succession and not by survivorship.

Headnote:HINDU LAW - Mitakshra School of Hindu Law - Hindu Succession Act, 1956 - Sections 6 and 8 - Where a coparcener left him surviving a female specified in Class I of the Schedule, his interest in Mitakshra Coparcenary property shall devolve by intestate succession and not by survivorship - Appellants, three sisters and respondent-plaintiffs two sons were born to coparcener who died in 1989 - Properties in hands of father of parties and his brothers were joint family property - One son plaintiff was born in 1938 and other son was born in 1956 but no evidence if second son was born before or after coming into force of the Act, 1956 - 1st son was a coparcener but it was obligatory on part of plaintiffs-respondents to show that second son also derived benefit of Section 6(1) of the Act - It would be half share of deceased father of parties 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 - Except to that extent, Courts below were right in applying provisions of Section 6 of the Act and holding that Section 8 thereof will have no application.
       Held : 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.(Para 11)
       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.(Para 12)
       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.(Para 13)
       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.(Para 17)
       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.(Para 23)
       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.(Para 24)
       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.(Para 25)

JUDGMENT

S.B. Sinha, J. - 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.

5. 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.”

6. 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.

7. 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.

8. Mr

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2006 Supreme(SC) 913

IMPORTANT POINTWhere a coparcener had left him surviving a female relative specified in Class I of the Schedule, his interest in Mitakshkra Coparcenary property shall devolve by intestate succession and not by survivorship.

Cases Referred (6)

IMPORTANT POINT
Where a coparcener had left him surviving a female relative specified in Class I of the Schedule, his interest in Mitakshkra Coparcenary property shall devolve by intestate succession and not by survivorship.