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SUPREME COURT OF INDIA
Kurian Joseph, R.F. Nariman, JJ.
Uttam – Appellant
Versus
Saubhag Singh & Ors. – Respondents
Civil Appeal No. 2360 of 2016 [Arising out of SLP(Civil) No. 6036 of 2014]
Decided on : 02-03-2016
(b) Hindu Succession Act, 1956 – Section 6, prior to amendment in 2005 – Death of plaintiff’s grandfather in 1973 leaving behind his widow – A partition deemed to be effected by operation of Explanation 1 immediately before death of plaintiff’s grandfather in 1973 – Plaintiff would be entitled to a share in this partition, but for his birth in 1977 – No share can be allotted to him. (Para 15)
(1978) 3 SCR 761; (1985) 3 SCR 358; (1994) 6 SCC 342 – Relied upon
(c) Hindu Succession Act, 1956 – Section 8 – Property ancestral property in the hands of the grandfather – On grandfather dying intestate property no more remaining joint family property – Other coparceners and plaintiff’s grandmother holding property as tenants in common and not as joint tenants – Devolving by succession – Plaintiff, the grandson, not born at the time of his grandfather’s death, not a coparcener – Partition suit not maintainable. (Para 20, 21)
(1986) 3 SCC 567; (2008) 3 SCC 87; (1987) 1 SCC 204 – Relied upon
(1988) 2 SCC 126; (2006) 8 SCC 581; (2013) 9 SCC 419 – Distinguished
Facts of the case:
The plaintiff filed a suit for partition in which the first four defendants happened to be his father (defendant No.3), and his father’s three brothers i.e. defendant Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law.
The trial court decreed the plaintiff’s suit.
The first Appellate Court allowed the first appeal.
The High Court dismissed the second Appeal.
Finding of the Court:
Appellant’s partition suit is not maintainable.
Result: Appeal dismissed.
Based on the provided legal document, the property does not remain a coparcenary after certain events, particularly the death of a male coparcener. When a male owner dies intestate, the property devolves among his heirs according to the rules of succession, and the joint family property is deemed to be partitioned by operation of law. This results in the property being held as tenants in common by the heirs, rather than as a unified coparcenary entity (!) (!) .
Furthermore, if the interest of a deceased coparcener devolves through intestate succession, the property ceases to be a coparcenary in the hands of the successors. It is then divided into separate shares, and the heirs hold their respective portions as individual tenants in common, thereby losing the joint status of the coparcenary property (!) (!) (!) .
In cases where the property was originally joint and a partition was made prior to the death, the joint status may be preserved up to that point. However, after the death of a coparcener and the application of succession laws, the property is generally no longer considered a coparcenary in the hands of the successors, as they hold the property as tenants in common (!) (!) (!) .
Therefore, property does not remain a coparcenary after the death of a male coparcener and the subsequent devolution of his interest among heirs, especially when the property is divided by operation of law or through succession. It transitions from a joint coparcenary to individual holdings as tenants in common.
JUDGMENT :
R.F. Nariman, J.
1. Leave granted.
2. The present appeal is by the plaintiff who filed a suit for partition, being Suit No.5A of 1999 before the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened to be his father (defendant No.3), and his father’s three brothers i.e. defendant Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law. A joint written statement was filed by all four brothers, including the plaintiff’s father, claiming that the suit property was not ancestral property, and that an earlier partition had taken place by which the plaintiff’s father had become separate. The trial court, by its order dated 20.12.2000 decreed the plaintiff’s suit holding that it was admitted by DW.1 Mangilal that the property was indeed ancestral property, and that, on the evidence, there was no earlier partition of the said property, as pleaded by the defendants in their written statements.
3. The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the property was ancestral and that no earlier partition between the brothers had in fact taken place. However, it held that the plaintiff’s grandfather, one Jagannath Singh having died in 1973, his widow Mainabai being alive at the time of his death, the said Jagannath Singh’s share would have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in accordance with rules of intestacy and not survivorship. This being so, no joint family property remained to be divided when the suit for partition was filed by the plaintiff, and that since the plaintiff had no right while his father was alive, the father alone being a Class I heir (and consequently the plaintiff not being a Class I heir), the plaintiff had no right to sue for partition, and therefore the suit was dismissed and consequently the first appeal was allowed.
4. Following the same line of reasoning and several judgments of this Court, the High Court in second Appeal dismissed the said appeal, holding:-
“15. Thus in view of the provisions contained in Sections 4,6, 8 and Schedule of the Act as well as the law settled by the aforesaid judgments, it is clear that after coming into force of the Act grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father.
16. In the present case, it is undisputed that Jagannath had died in the year 1973, leaving behind respondents No. 1 to 4 i.e. his four sons covered by Class I heirs of the schedule therefore, the properties had devolved upon them when succession had opened on the death of Jagannath. It has also been found proved that no partition had taken place between respondents No. 1 to 4. The appellant who is the grand son of Jagannath is not entitled to claim partition during the lifetime of his father Mohan Singh in the properties left behind by Jagannath since the appellant has no birth right in the suit properties.
17. In view of the aforesaid, the substantial questions of law are answered against the appellant by holding that the first appellate court has committed no error in dismissing the suit for partition filed by the appellant referring to Section 8 of the Act and holding that during the lifetime of Mohan Singh, the appellant has no right to get the suit property partitioned.”
5. It is this judgment that has been challenged before us in appeal.
6. Shri Sushil Kumar Jain, learned senior advocate appearing on behalf of the appellant, took us through various provisions of the Hindu Succession Act, and through several judgments of this Court, and contended that Section 6, prior to its a
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