UTTAM vs. SAUBHAG SINGH

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2360_of 2016 [ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014] UTTAM …APPELLANT VERSUS SAUBHAG SINGH & ORS. …RESPONDENTS J U D G M E N T R.F. Nariman, J. 1. Leave granted. 2. The present appeal is by the plaintiff who filed a suit for JUDGMENT partition, being Suit No.5A of 1999 before the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened to be his father (defendant No.3), and his father’s three brothers i.e. defendant th Nos. 1,2 and 4. He claimed a 1/8 share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said 1 Page 1 property in accordance with the Mitakshara Law. A joint written statement was filed by all four brothers, including the plaintiff’s father, claiming that the suit property was not ancestral

the plaintiff’s father had become separate. The trial court, by its order dated 20.12.2000 decreed the plaintiff’s suit holding that it was admitted by DW.1 Mangilal that the property was indeed ancestral property, and that, on the evidence, there was no earlier partition of the said property, as pleaded by the defendants in their written statements. 3. The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the property was ancestral and that no earlier partition between the brothers had in fact JUDGMENT taken place. However, it held that the plaintiff’s grandfather, one Jagannath Singh having died in 1973, his widow Mainabai being alive at the time of his death, the said Jagannath Singh’s share would have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in 2 Page 2 accordance with rules of intestacy and not survivorship. This being so, no joint family property remained to be divided when the suit for partition was filed by the plaintiff, and that since the

being a Class I heir (and consequently the plaintiff not being a Class I heir), the plaintiff had no right to sue for partition, and therefore the suit was dismissed and consequently the first appeal was allowed. 4. 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. JUDGMENT 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 3 Page 3 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.

5. It is this judgment that has been challenged before us in appeal. 6. Shri Sushil Kumar Jain, learned senior advocate appearing on behalf of the appellant, took us through various provisions of the Hindu Succession Act, and through several judgments of this Court, and contended that Section 6, prior to JUDGMENT its amendment in 2005, would govern the facts of this case. He conceded that as Jagannath Singh’s widow was alive in 1973 at the time of his death, the case would be governed by the proviso to Section 6, and that therefore the interest of the deceased in the Mitakshara coparcenary property would devolve by intestate succession under Section 8 of the said Act. However, he argued that it is only the interest of the deceased 4 Page 4 in such coparcenary property that would devolve by intestate succession, leaving the joint family property otherwise intact. This being the case, the plaintiff had every right to sue for

coparcener and having a right of partition in the joint family property, which continued to subsist as such after the death of Jagannath Singh, the plaintiff’s right to sue had not been taken away. He went on to argue that Section 8 of the Act would not bar such a suit as it would apply only at the time of the death of Jagannath Singh i.e. the grandfather of the plaintiff in 1973 and not thereafter to non suit the plaintiff, who as a living coparcener of joint family property, was entitled to a partition before any other death in the joint family occurred. He also JUDGMENT argued that the Hindu Succession Act only abrogated the Hindu Law to the extent indicated, and that Sections 6 and 8 have to be read harmoniously, as a result of which the status of joint family property which is recognized under Section 6 cannot be said to be taken away upon the application of Section 8 on the death of the plaintiff’s grandfather in 1973. 5 Page 5 7. Shri Niraj Sharma, learned counsel appearing on behalf of the respondents, countered these submissions, and also referred to various provisions of the Hindu Succession Act and

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. JUDGMENT 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. 6 Page 6 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

among Hindus. Section 4 overrides the Hindu Law in force immediately before the commencement of this Act insofar as it refers to any matter for which provision is made by the Act. Section 4 reads as follows: “4. Overriding effect of Act.— Save as otherwise expressly provided in this Act,— ( a ) 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 this Act, shall cease to have effect with respect to any matter for which provision is made in this Act; ( b ) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.” JUDGMENT Section 6 prior to its amendment in 2005 reads as follows: “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 7 Page 7

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 had 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.” JUDGMENT It is common ground between the parties that since the present suit was filed only in 1998 and the decree in the said suit was passed on 20.12.2000, that the amendment to Section 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:- 8 Page 8 “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.”

“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 th 20.12.2000, which is prior to 9 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 JUDGMENT Section 8, which reads as follows:- “8. General rules of succession in the case of males.— The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter — ( a ) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; ( b ) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; 9 Page 9 ( c ) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and ( d ) lastly, if there is no agnate, then upon the cognates of the deceased.” THE SCHEDULE Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son, son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.” 10. Also of some importance are Sections 19 and 30 of the JUDGMENT said Act which read as follows:-

(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and (b) as tenants-in-common and not as joint tenants. 10 Page 10

Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.” 11. Before analysing the provisions of the Act, it is 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, JUDGMENT (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 th partition and separate possession of a 7/24 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 th would have got a 1/4 share in such joint family property. The 11 Page 11 th deceased husband’s 1/4 share would then devolve, upon his death, on six sharers, the plaintiff and her five children, each th th having a 1/24 share therein. Adding 1/4 and 1/24th, the

Court held:-

There is thus no dispute that the normal rule provided for by Section 6 does not apply, that the 12 Page 12 proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be given to Explanation 1 of Section 6. The interpretation of that Explanation is the subject-matter of acute controversy between the parties.” 12. This Court, in dealing with the proviso and explanation 1 of Section 6, held that the fiction created by explanation 1 has to be given its full effect. That being the case, it was held:-

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13. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors., (1985) 3 S.C.R. 358, this Court JUDGMENT distinguished the judgment in Magdum’s case in answering a completely different question that was raised before it. The question raised before the Court in that case was as to whether a female Hindu, who inherits a share of the joint family property on the death of her husband, ceases to be a member of the family thereafter. This Court held that as there was a partition by operation of law on application of explanation 1 of Section 14 Page 14 6, and as such partition was not a voluntary act by the female Hindu, the female Hindu does not cease to be a member of the joint family upon such partition being effected. 14. In Shyama Devi (Smt) and Ors. v. Manju Shukla (Mrs) and Anr., (1994) 6 SCC 342, this Court again considered the effect of the proviso and explanation 1 to Section 6, and followed the judgment of this Court in Magdum’s case (supra). This Court went on to state that explanation 1 contains a formula for determining the share of the deceased on the date of his death by the law effecting a partition immediately before a male Hindu’s death took place. 15. On application of the principles contained in the aforesaid decisions, it becomes clear that, on the death of Jagannath JUDGMENT 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, 15 Page 15 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

th that he is entitled to a 1/8 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. This question would have to be answered with reference to some of the judgments of this Court. JUDGMENT 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 16 Page 16 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

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 he 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 JUDGMENT 17 Page 17 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 pre-existing 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-à-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-à-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.

The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, 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. JUDGMENT

18 Page 18 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.

followed Chander Sen’s case and the various judgments following Chander Sen’s case. This Court held:-

Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants. JUDGMENT Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, 19 Page 19 therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record-of-rights. A partition had taken place amongst the heirs of Bhima. Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue.” (at paras 12-15) 20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as JUDGMENT such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi

Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration 20 Page 20 of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of

Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary prop erty, 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 JUDGMENT 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 testamentary or intestate succession, and not by survivorship. 21 Page 21 (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In

get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as JUDGMENT tenants in common and not as joint tenants. 21. Applying the law to the facts of this case, it is clear that 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 22 Page 22 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

family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs. ……………………………J. (Kurian Joseph) ……………………………J. (R.F. Nariman) New Delhi; March 2, 2016. JUDGMENT 23 Page 23