Saturday, September 26, 2009

Sheela Devi and Ors. Versus Lal Chand and Anr.

HELD:1.1. Section 6 of the Hindu Succession Act 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. [879-g-h]

1.2. 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 his separate property and thus, he 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. [880-b-c]

C. Krishna Prasad v. C.I.T., Bangalore, [1975] 1 SCC 160, relied on.

Chatturbhooj v. Dharamsi, 9B, 438; Lal Bahadur v. Kanhaia Lal, 34 I.A. 65: 29A. 244: 4 A.L.J. 227: 9 Bom. 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 and Allah Diyo v. Soha, (1942) A.L.J. 443: 1942 A. 331 - referred to.

Hindu Law Principles & Precedents, 8th Edn. (1987) by N.R. Raghavachariar, referred to.

1.3. Although in 1927 `B' had no son and the property at his hands became a separate property, 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 Mitakashara School of Hindu Law revived.
[881-g]

M.T. Pankajammal & Anr. v. M.T. Parthasarthy Aiyangar, AIR 33 (1946) Madras 99; Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar, [LRI.A. Vol. IX Page 128]; Pratap Narain v. Commissioner of Income-Tax, U.P., [63 ITR 505] and Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors., [1986] 3 SCC 567, referred to.

Law of Joint Family System, Debts, Gifts, Maintenance, Damdupat, Benami Transaction and Pre-emption, First Edition 1993 by Dr. Paras Diwan and Hindu Law & Usage, 14th Edition by Mayne, referred to.

2. In the instant case, 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 to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from eldest son of `B', his younger son will also derive the benefit thereof. So far as the second son is concerned, no evidence has been brought on records to show that he was born prior to coming into force of the Hindu Succession Act. Thus, it was the half share in the property of `B' 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 the aforementioned extent, 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. [885-c-d-e-f]

Commissioner of Income Tax v. P.L. Karuppan Chettiar, [1993] Supp. 1 SCC 580; Additional Commissioner of Income Tax v. M. Karthikeyan, [1994] Supp. 2 SCC 112 and Daya Singh (Dead) through L.Rs. and Anr. v. Dhan Kaur, [1974] 1 SCC 700, referred to.   

Nidesh Gupta, Vinod Shukla and S. Janani for the Appellants.

Manoj Swarup for the Respondents.

Subject: Hindu Law:

Hindu Succession Act, 1956; Ss. 6 and 8:

Intestate succession-Property in dispute owned by a person belonging to Mitakshara coparcenary-The owner died after 1956 Act came into force leaving behind two sons and three daughters-In terms of Revenue records, each child was entitled to 1/5th share in the property-Challenged by the sons-Decreed by trial Court-Appeal against dismissed by first appellate Court-Second appeal dismissed by the High Court-On appeal, Held: In terms of Section 6 of the Act, if a person died leaving behind surviving female members specified in Class I of the Schedule his interest in Mitakshra Coparcenary property shall devolve upon heirs by intestate succession and not by survivorship-So long as the property remains in the hands of a single person, the property could be disposed of by him-But once a son is born, he would acquire interest in the co-parcenary property-Since the succession in the present case having opened in 1989 after the death of the owner/father of the parties in dispute, provision of Amendment Act, 2005 not attracted-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 to Section 6(1) creates an exception to the general rules-Though first son was a co-parcener but no evidence furnished by them to show that second son of the deceased was also born prior to coming into force of the 1956 Act-Hence, it was the half share in the property of the deceased which would devolve upon all his heirs in terms of the provisions of the Act-Decree modified accordingly.

One `B', owner of the property in dispute, died in the year 1989 leaving behind two sons (Plaintiffs-Respondents) and three daughters (Appellants). One of his sons was born in the year 1938 whereas other son was born in the year 1956. The names of the parties were shown in the revenue records having 1/5th share each in the property, which was challenged by plaintiffs-respondents, sons of `B'. The trial Court decreed the suit holding that `B' and his sons constituted a joint Hindu family and 1/5th share in the property was their separate property and 4/5th share was ancestral property of `B' qua plaintiffs. The decree was affirmed by the appellate Court. Appeal filed by appellants/daughters of `B' was dismissed by the High Court holding 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. Hence the present appeal.

Appellants-daughters of the deceased `B' contended that the High Court committed a manifest error in arriving at the findings, in total disregard of the provisions of the Hindu Succession Act, 1956; that keeping in view the fact that the succession opened only in the year 1989 when `B' died, the question of applying the law as was obtaining prior to coming into force of the Act did not arise; and 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 Schedule appended thereto.
Respondents submitted 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.

Citation:, 2006(6   )Suppl.SCR874 , 2006(8   )SCC581 , 2006(10  )SCALE75  , 2006(12  )JT610
Judgement
CASE NO.:
Appeal (civil)  4326 of 2006

PETITIONER:
Sheela Devi and Ors.

RESPONDENT:
Lal Chand and Anr.

DATE OF JUDGMENT: 29/09/2006

BENCH:
S.B. Sinha & Dalveer Bhandari

JUDGMENT:
JUDGMENT

S.B. SINHA. J.

Leave granted.

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.

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 thed 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.

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 l/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."

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.

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 Schedule
appended thereto.

Mr. Manoj Swarup, 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.

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 1.- 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.

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.
(See Krishna Prasad v. C.LT, Bangalore, [1975] 1 SCC 160. But once a son is
born, it becomes a coparcenary property and he would acquire an interest
therein.

In N.R. Raghavachariar's Hindu Law Principles & 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, 11 A. 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: 22 1A. 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 IA. 65: 29 A. 244: 4 A.LJ. 227: 9 Bom. L.R.:
597: 11 C.W.N. 417: 17 M.LJ. 228; Visalatchi v. Annasamy, 5 M.H.C.R. 150:
Adurmoni v. Chowdhry, 3 C.I; Allah Diyo v. Soha, 1942 A.L.J. 443: 1942 A.
331."

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."

In M.T. Pankaiammal & Anr. v. M.T. Parthasarthv Aiyangar, AIR (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 &
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. (l) 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 Muttavan Chettiar v. Sangili Vira Pandia Chinnatambiar, [LR LA.
Vol. DC Page 128].}

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."

We may, however, notice that the same learned Judge in Commissioner of
Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors., [1986] 3 SCC 567, 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 be 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 vis-a-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, [1993] Supp 1 SCC 580 and Additional
Commissioner of Income Tax v. M. Karthikeyan, [1994] Supp 2 SCC 112.

In Eramma v. Veerupana and Ors., AIR (1966) SC 1879, 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."

(See also Daya Singh (Dead) Through L.Rs. and Anr. v. Dhan Kaur [1974] 1
SCC 700.)

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.

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.

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