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TMI Blog1972 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... t the house as well as the holding in dispute was acquired by Durga. On his death, these properties were inherited by his three sons in equal shares. The sons of Durgu constituted a Joint Hindu Family. The properties were coparcenary properties. On the death of Chhangey, his share went to the other members or the coparcenary by survivorship. Consequently, the plaintiff had a 1/2 share in the house as well as in the tenancy holding. 4. The defence was that the three sons of Durgu were separate. Chhangey's share was inherited by his widow, Smt. Kaushalya. On her death, Chhangey's share went to his brother Chhiddu as the nearest heir. The plaintiff, who was one degree removed, did not inherit Chhangey's 1/3rd share. Consequently, Chhiddu's share was 2/3, while the plaintiff was entitled only to 1/3rd share, in the properties. The trial Court held that the house as well as the tenancy holding was joint family property, succession to which was governed by the rule of survivorship. The plaintiff was entitled to a half share in both these properties. The suit was decreed for partition of a half share. 5. The defendants went up in appeal, which was dismissed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the three brothers constituted a coparcenary, the properties inherited by them from their father did not belong to them but vested in the Joint Hindu Family or the coparcenary. He challenged the correctness of the view taken in Mahabir Singh's case. 7. In that case, Ram Prasad and his brothers were members of a Joint Hindu Family governed by the Mitakshara. The family owned an occupancy holding. Ram Prasad died leaving a widow and his brothers. The widow granted a lease of the holding to the defendant. The brothers filed a suit to set aside the lease. A Division Bench (Richards, C. if. and Rafiq, J.) held:-- Ram Prasad was not the 'tenant' of the holding in question, the coparcenary body which made up the joint Hindu family of which he was a member constituted the 'tenant'. The very moment that Ram Prasad died the coparcenary body continued to be the tenant but the body was composed of the survivors of the family. Ram Prasad had no interest which devolved upon anyone. On this view, it was held that Section 22, N.W.P. Tenancy Act, 1901, which provided that when a tenant dies his interest shall devolve in the way specified in the secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . His interest is fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'.... As observed by the Privy Council Katama Natchiar v. Raja of Shivagunga (1863) 9 Moo Ind App 539 : 543 and 611 (PC) 'there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession'. 11. It is thus clear that the members of the joint family collectively own the coparcenary property. Each member has an interest in such property, though his interest becomes definite on partition. Till then, it is an undivided interest. The view expressed in Mahabir Singh's case and the other cases mentioned above, that the members were not the tenants of the holding because they had no interest in it, is, with respect, fallacious. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itling it to hold property. But as seen above, the rules of Hindu Law do not clothe the joint Hindu family with Such a status. 14. It is settled law that rules of personal law are subject to modification by statutory enactments, Kallu v. Sital If a statute provides now the interest of the owner of a particular kind of property will pass on his death, such provision will override and abrogate the rules of personal law in respect of such properties. Section 20 (2) of the Tenancy Act of 1901 provided that the interest of an occupancy tenant was heritable subject to the provisions of that Act. Section 22 of that Act laid down a table of succession. These statutory provisions will prevail and will have the effect of abrogating the rule of Hindu Law on an interest passing by survivorship, in relation to tenancy holdings governed by that Act. In Bhura v. Shahbuddin ILR (1908) All 128 it was held that the rule of succession laid down in Section 22 of the Tenancy Act was a deliberate departure from personal law and would override the latter. This decision was followed by another Bench in Ali Bakhsh v. Barakatullah ILR (1912) All 419. It was held that Section 22 is independent and exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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