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TMI Blog2016 (3) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... mily 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. - CIVIL APPEAL NO. 2360 of 2016 [ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014] - - - Dated:- 2-3-2016 - Shri Kurian Joseph AND Mr. R.F. Nariman, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act and various judgments of this Court to buttress his submission that once Section 8 gets applied by reason of the application of the proviso to Section 6, the joint family property ceases to be joint family property thereafter, and can only be succeeded to by application of either Section 30 or Section 8, Section 30 applying in case a will had been made and Section 8 applying in case a member of the joint family dies intestate. He, therefore, supported the judgment of the High Court and strongly relied upon two judgments in particular, namely Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, (1986) 3 SCC 567, and Bhanwar Singh v. Puran, (2008) 3 SCC 87, to buttress his submission that once Section 8 is applied to the facts of a given case, the property thereafter ceases to be joint family property, and this being the case, no right to partition a property which is no longer joint family property continues to subsist in any member of the coparcenary. 8. Having heard learned counsel for the parties, it is necessary to set out the relevant provisions of the Hindu Succession Act, 1956. The Act, as its long title states, is an Act to amend and codif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6, made in 2005, would not govern the rights of the parties in the present case. This becomes clear from a reading of the proviso (i) to Section 6 of the amended provision which states as follows:- Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. The explanation to this Section also states thus: Explanation.-For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. From a reading of the aforesaid provision it becomes clear that a partition having been effected by a court decree of 20.12.2000, which is prior to 9th September, 2005, (which is the date of commencement of the Amending Act), would not be affected. 9. The next important Section from our point of view is Section 8, which reads as follows:- 8. General rules of succession in the case of males.-The property of a male Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to refer to some of the judgments of this Court which have dealt, in particular, with Section 6 before its amendment in 2005, and with Section 8. In G.K. Magdum v. H.K. Magdum, (1978) 3 S.C.R. 761, the effect of the old Section 6 was gone into in some detail by this Court. A Hindu widow claimed partition and separate possession of a 7/24th share in joint family property which consisted of her husband, herself and their two sons. If a partition were to take place during her husband s lifetime between himself and his two sons, the widow would have got a 1/4th share in such joint family property. The deceased husband s 1/4th share would then devolve, upon his death, on six sharers, the plaintiff and her five children, each having a 1/24th share therein. Adding 1/4th and 1/24th, the plaintiff claimed a 7/24th share in the joint family property. This Court held:- The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, the pre-conditions of Section 6 are satisfied and that section is squarely attracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily 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. This question would have to be answered with reference to some of the judgments of this Court. 16. In Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, (1986) 3 SCC 567, a partial partition having taken place in 1961 between a father and his son, their business was divided and thereafter carried on by a partnership firm consisting of the two of them. The father died in 1965, leaving behind him his son and two grandsons, and a credit balance in the account of the firm. This Court had to answer as to whether credit balance left in the account of the firm could be said to be joint family property after the father s share had been distributed among his Class I heirs in accordance with Section 8 of the Act. 17. This Court examined the legal position and ultimately approv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , inter alia, to amend the law, with that background the express language which excludes son's son but includes son of a predeceased son cannot be ignored. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore. [at paras 21-25] 18. In Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 at page 210, this Court followed the law laid down in Chander Sen s case. 19. In Bhanwar Singh v. Puran, (2008) 3 SCC 87, this Court followed Chander Sen s case and the various judgments following Chander Sen s case. This Court held:- The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:- (i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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