2016 (3) TMI 1369 - SC - Indian Laws

Partition of ancestral property - right of grand-son in the properties of grand-father - birth right of grand son in the property or not - the property was ancestral and that no earlier partition between the brothers had in fact taken place - Section 8 of the Hindu Succession Act, 1956 - HELD THAT - On the death of Jagannath Singh in 1973, the proviso to Section 6 would apply inasmuch as Jagannath Singh had left behind his widow, who was a Class I female heir. Equally, upon the application of explanation 1 to the said Section, a partition must be said to have been effected by operation of law immediately before his death. This being the case, it is clear that the plaintiff would be entitled to a share on this partition taking place in 1973. We were informed, however, that the plaintiff was born only in 1977, and that, for this reason, (his birth being after his grandfather s death) obviously no such share could be allotted to him. Also, his case in the suit filed by him is not that he is entitled to this share but that he is entitled to a 1/8th share on dividing the joint family property between 8 co-sharers in 1998. What has therefore to be seen is whether the application of Section 8, in 1973, on the death of Jagannath Singh would make the joint family property in the hands of the father, uncles and the plaintiff no longer joint family property after the devolution of Jagannath Singh s share, by application of Section 8, among his Class I heirs. On the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. Appeal dismissed.

Summary

Issues Involved:
1. Whether the suit property was ancestral property.
2. Whether an earlier partition had taken place.
3. Applicability of Section 8 of the Hindu Succession Act, 1956.
4. Plaintiff's right to sue for partition during the lifetime of his father.
5. Impact of Sections 4, 6, 8, and 19 of the Hindu Succession Act on the nature of the property.

Detailed Analysis:

1. Whether the suit property was ancestral property:
The plaintiff claimed a 1/8th share in the suit property, asserting it was ancestral property and that he had a right by birth under Mitakshara Law. The defendants, including the plaintiff's father, contested this, stating the property was not ancestral. The trial court decreed in favor of the plaintiff, accepting DW.1 Mangilal's admission that the property was ancestral. The first appellate court and the High Court confirmed this finding.

2. Whether an earlier partition had taken place:
The defendants claimed an earlier partition had occurred, separating the plaintiff's father from the joint family property. The trial court found no evidence of such a partition. The first appellate court and the High Court upheld this finding, confirming no earlier partition had taken place.

3. Applicability of Section 8 of the Hindu Succession Act, 1956:
The first appellate court applied Section 8, stating that upon the death of Jagannath Singh in 1973, his share would be distributed as if he had died intestate. This application of Section 8 meant the property devolved according to rules of intestacy, not survivorship, thereby ceasing to be joint family property. The High Court agreed, stating that after the application of Section 8, the grandson (plaintiff) had no birthright in the property and could not claim partition during his father's lifetime.

4. Plaintiff's right to sue for partition during the lifetime of his father:
The plaintiff argued that he had a right to sue for partition as a coparcener in the joint family property. However, the first appellate court and the High Court held that since the property devolved under Section 8, it ceased to be joint family property. Consequently, the plaintiff, not being a Class I heir, had no right to sue for partition during his father's lifetime.

5. Impact of Sections 4, 6, 8, and 19 of the Hindu Succession Act on the nature of the property:
The Supreme Court analyzed the provisions of the Hindu Succession Act. Section 4 overrides pre-existing Hindu Law. Section 6 (prior to its 2005 amendment) and its proviso were discussed, particularly the notional partition that occurs immediately before the death of a coparcener. Section 8 dictates the devolution of property by intestate succession, and Section 19 states that heirs take the property as tenants-in-common, not as joint tenants. The Court concluded that upon Jagannath Singh's death, the property ceased to be joint family property and was held as tenants-in-common by the heirs.

Conclusion:
The Supreme Court affirmed that upon the application of Section 8, the joint family property ceased to exist as such. The plaintiff, born after his grandfather's death, had no right to claim partition of property that had devolved by intestate succession and was held as tenants-in-common. The appeal was dismissed with no order as to costs.