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High Court of Judicature at Bombay
ROSHAN DALVI, J.
Shalini Sumant Raut & Others
Versus
Milind Sumant Raut & Others
CHAMBER SUMMONS NO. 492 OF 2012 IN SUIT NO. 143 OF 2010 WITH CHAMBER SUMMONS NO. 2123 OF 2011
Decided on : 14-12-2012
When there are only male heirs in HUF then old Hindu coparcenary prevailing before 1956 enactment would continue. - The general rules of jointness of a Hindu family, being community of interest and unity of possession, the incidents of a joint family property, the coparcener surviving to the interest of a deceased coparcener, the share of a coparcener diminishing or augmenting upon the death or birth of another coparcener, the joint ownership of a coparcener, the undivided share of coparcenary etc. stand diluted upon any coparceners having any female heir since 1956 in respect of such interest.
It was this beginning of egalitarianism which is the bed rock of a Hindu society.
The true effect of the uncodified Hindu law relating to the Hindu coparcenery, therefore, applied only so long as there were only male heirs in that HUF after 1956. It would continue as before until any one coparcener died. The devolution of interest in the coparcenary got changed as per Section 6 of the HSA. It continued as before if he had only sons. It came to an end in effect if he had a single daughter or even a predeceased s on having a single daughter such that he had a female relative (heir) or a male heir claiming through a female relative (heir).
Hindu Succession Act, 1956 - Section 6 - Applicability of amendment to succession.
If holder of coparcenary property died after 1956, provision of old Section 6 would prevail and if death occurred after 2005, provision of new Section 6 would prevail. - The succession would open upon the death of a Hindu. Hence if a Hindu died after 1956, the provisions of the old Section 6 as enacted in 1956 and as analyzed above would prevail. If he died after 2005, the provisions of new Section 6 as amended by the Amendment Act, 2005 and analyzed above would prevail.
Hindu Succession Act, 1956 - Section 6 - Succession.
Where a Hindu father, holder of joint family property or coparcenary property, died intestate in 1991, left behind 5 sons and 3 daughters therefore his succession would be governed by old Section 6 of Act, 1956. - In the instant case, a Hindu father, the holder of joint family property or coparcenary property, had died intestate leaving behind 5 sons and 3 daughters. In view of facts that deceased had died in November, 1991 and left behind daughters also, his succession would be governed by old Section 6 as enacted in 1956 and prior to 2005 Amendment.
When deceased died, his interest in the coparcenery property devolved by succession upon his 8 children; 5 sons and 3 daughters and not upon all the surviving members of coparcenary including the sons of his sons. That however relates not to the entire properties of deceased but only to his interest as a coparcener in all the suit properties. The interest of the other coparceners who are his 5 sons and their sons would continue as joint interest in the coparcenary property with community of interest and unity of possession being the prime principle of coparcenery property. That coparcenary continued as before. The share which all the 8 successors got became their individual separate property. In that interest their sons and grandsons would have no share. But in the remainder of the coparcenary ancestral joint Hindu family properties the great grandsons of deceased would continue to have their share as coparceners.
All the sons of deceased, their sons and their sons’ sons living at the time of the death of deceased would constitute the HUF of deceased. They are coparceners in the family. All of them would have by birth a right in the coparcenary properties/HUF properties/ancestral properties. They would have an undivided interest therein. They would have a right to partition those properties. Until the partition is applied for and granted they would have community of interest and unity of possession. Death of deceased i.e. holder of HUF property does not effect their community of interest and unity of possession. They continued joint since there was no partition of the HUF, though their coparcenary interest did not augment on death of deceased leaving behind 3 female relatives (heirs). Whatever be the share of all the coparceners being the sons, sons’ sons and sons’ sons’ sons then living constituting the HUF, they would continue to have their share as before. Only the interest of deceased in that coparcenery property would succeed to his Class I heirs under Section 8.
The entire of the properties would not succeed to his heirs. The other coparceners would continue their coparcenary interest in the remaining ancestral joint family properties. They would be entitled to ask for partition of the properties to the extent of the interest which continued joint. In a large family such as this the interest of the father would be equal to that of his sons, sons’ sons and sons’ sons’ sons in the coparcenary property. Hence the entire property cannot devolve by succession. Only that limited interest would devolve by succession. The other coparceners, including the great grandsons would be entitled to demand partition of the ancestral joint family properties less the interest of deceased holder of properties and other such deceased coparceners.
Hindu Succession Act, 1956 - Sections 6, 8 and 19 - Hindu undivided family.
In a suit for declaration as co-owner, ascertaining share, partition etc., properties cannot be alienated without consent of all coparceners. - These properties fall within the law enunciated inter alia in items (xxix), (xliii), (xlv) and (lx) above. These properties could not have been alienated without the consent of all the coparceners. If so alienated, the alienation could be challenged. The ’applicants in CHS 2123 of 2011 seek to challenge that alienation. The very application is because of such challenge and to prevent further alienation. The parties to the suit who have alienated the coparcenary properties would have to account for the alienation or justify the alienation upon its challenge.
Alienation can be made for the benefit of the estate, for legal necessity or for meeting any antecedent debts, for management of the joint property by the Karta or pious obligation of a son to discharge his father’s debts subject to Section 6(4).
The applicants who claim to partition the properties and to protect their coparcenary interest therein would have to challenge the alienation. That is not expressly done. That also could be done by the applicants in their own suit for partition and protection of their coparcenary interest, if filed.
Hindu Succession Act, 1956 - Sections 6, 8 and 19 - Ownership of ancestral properties.
Ancestral properties cannot be jointly owned and survive to all members of coparcenary. - Ancestral properties cannot be jointly owned. Joint properties survive to joint holders entirely upon death of one joint holder. Ancestral properties survive to all members of coparcenary. Ancestral properties can be co-owned by community of interest and unity of possession such that each party is owner of undivided share. Upon incidents of joint family property or coparcenary property, this interest is augmented by death of any coparcener (co-owner) and is diminished by birth of any coparcener in HUF. Ancestral properties would survive to coparceners in Hindu coparcenary owning such joint family properties. Only exceptions to that would be interest of deceased Hindu in such coparcenery.
Hindu Succession Act, 1956 - Sections 6, 8 and 19 - Succession in HUF.
Since deceased, a Hindu father died in 1991, leaving behind 5 sons and 3 daughters hence interest of deceased in coparcenary property would devolve upon all 8 successors by intestate succession and not by survivorship. - In the instant case a Hindu father had expired on 23.11.1991 leaving behind 8 heirs being 5 sons and 3 daughters. Hence his succession opened on 23.11.1991. Consequently the law which applied to his succession was under Section 6 of the HSA as enacted in 1956 and prior to the law as amended in 2005. The father had left him surviving 3 daughters and 5 sons. His interest in his ancestral property which was Mitakshara coparcenary property; therefore, devolved upon his sons and daughters by intestate succession under Section 8 of the Hindu Succession Act and not by survivorship. For such interest the Hindu Coparcenary property and all the incidents of such Hindu coparcenary would have applied had he left behind only sons. But he left behind 3 daughters also. Hence the incidents of a Hindu coparcenary do not apply to his interest in the coparcenary properties. The succession to his interest in the coparcenary property would be under Section 8 read with Section 19 of the HSA. All his sons and daughters would share equally per capita as tenants in common. Upon their death their children would take their share.
Under that succession so long as the Sons and daughters of deceased are alive, the grandsons or the great grandsons would not succeed at all to any interest in the coparcenary property which the deceased had. Such interest could have only survived to them as coparceners had there been no female heir of deceased (i.e. had deceased left no daughters or, of course, any persons claiming through daughters i.e. the heirs of such daughters).
Hindu Succession Act, 1956 - Section 8 - Succession in case of properties held by male member.
In case of properties held by male member, property which devolves under Section 8 of Act, becomes individual property of successors. - The properties which devolve under Section 8 of the HSA are self-acquired properties or partitioned HUF properties. They are not ancestral HUF properties which are not partitioned. The law which as laid down by the Supreme Court considering the aforesaid judgments of various High Courts was in respect of separate or partitioned properties. The law is the same also with regard to the interest of a coparcener in ancestral properties in case where the ancestor had female relatives (heirs).
1. This suit is filed for declaration that the plaintiffs and the defendants are co-owners of the suit properties, for ascertaining of the share claimed by them, for partitioning the suit properties as per such shares and for possession of such partitioned share. Exhibit 'A' to the plaint shows 9 immovable and several movable properties belonging to the joint family of the parties which are sought to be partitioned. Exhibit 'B' to the plaint shows the family tree.
2. The parties claim through one Rajaram Balkrishna Raut (Rajaram) who died intestate on 23.11.1991 leaving behind 8 children and several grand children ancestral properties. The children and the grand children who are the children of the predeceased or the deceased children of Rajaram are the parties to the suit. The great grand-children of the Rajaram are not sought to be made parties, though the suit properties are claimed to be ancestral properties of Rajaram.
3. The son and the grandson of plaintiff No.4 have sought to be made party-defendants to the suit. They claim that they are coparceners in the coparcenary property of the joint family which are the properties shown in the schedule Exhibit A to the plaint. They claim to be entitled to their share therein separately and individually from plaintiff No.4 who, they claim, is unable to manage his affairs and claim his share. They claim that the parties to the suit have taken advantage of the old age of their father/grandfather who resides alone which may adversely affect his share and consequently their shares. They have claimed their right by virtue of their birth in the suit properties which are claimed to be coparcenary properties. [See. SurjitLal Chhabda Vs. Commissioner of Income Tax, Bombay AIR 1976 SC 109] They claim to protect their interest in the joint family properties which are the suit properties.
4. It is contended by the plaintiffs as well as the defendants including plaintiff No.4 that during the lifetime of plaintiff No.4, his son and grandson would not have any share in the suit properties and, therefore, have no locus to be joined as party-defendants.
5. The parties to the suit have disposed of two of the properties in the suit. Hence defendant Nos.1 to 5 in the suit have applied for deletion of two immovable properties at Item Nos.6 & 7 shown in Exhibit 'A' to the plaint. They claim that the suit has become infructuous with regard to those properties and there is no lis between the parties with regard to those properties.
6. It would first have to be determined whether the applicants in Chamber Summons No. 2123 of 2011 who are the son and grandson of plaintiff No.4 must be made parties to the suit as having an independent right and interest in the suit properties being coparceners of the joint Hindu family. If that is so decided, the properties which are sold pending the suit would have to be accounted for to them. If not, the properties sold by the parties with which the parties to the suit, at present, have no dispute, may stand deleted.
7. The seminal aspect for adjudication is whether a son or a grandson of a coparcener claiming an interest in the joint family properties/coparcenary properties would be entitled to claim such interest by virtue of his birth and hence prosecute or defend any litigation in respect of the joint family properties instituted by other coparceners who are his family members but who are of a generation or two generations prior to him. The test of the claim is in the right of the coparcener to apply for and obtain partition of the coparcenary property by virtue of his very birth. If that be so, the applicants as coparceners would be entitled to separately maintain a suit for partition to claim their share therein. If they can maintain a suit for partition they may also be joined as defendants in this suit and claim partition and other consequential reliefs in the suit, of course, subject to payment of court fees upon valuation of all the suit propertie
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