9911796707
TMI Blog2006 (9) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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. 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 l/5th share each. The said order of the revenue authorities came to be challenged by plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 representat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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