Appellant had filed a suit for partition against his father and three uncles (brothers of father), claiming 1/8th share in the suit property on the footing that the suit property was ancestral property, and he being a coparcener has a right by birth as per the Mitakshara Law.

The suit was resisted on the ground that property was not ancestral by an earlier partition, father of the Appellant has become separate. Trial Court decided in favour of the Appellant. However, the First Appellate Court clarified that when Appellant’s grandfather died, his grandmother was alive and accordingly, his grandfather’s share will have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the grandfather of Appellant had died intestate, and once Section 8 steps in, the joint family property has to be divided in accordance with rules of intestacy and not survivorship. Once the above position comes up, no joint family property remained to be divided when the suit for partition was filed by the Appellant, and that since the Appellant had no right while his father was alive, the father alone being a Class I heir (and consequently the Appellant not being a Class I heir), the Appellant had no right to sue for partition, and therefore the suit was dismissed and consequently the first appeal was allowed.

High Court also dismissed the appeal filed against the above finding by holding grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father.

Thus, on the facts, it was undisputed that after the death of grandfather of the Appellant, there were four surviving sons as Class I heirs and the properties had devolved upon them when succession had opened. It was also proved that no earlier partition had taken place. Accordingly, Appellant being the grandson was held as not entitled to claim partition during the lifetime of his father since the Appellant has no birth right in the suit properties. High Court accordingly answered the issue against the Appellant by holding that the first appellate court had committed no error in dismissing the suit for partition.

It was observed that, on the death of Appellant’s grandfather, the proviso to Section 6 would apply inasmuch as his grandfather 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. Accordingly the Appellant would be entitled to a share on this partition taking place in 1973 (as his grandfather has died in 1973). The Appellant however was born only in 1977 i.e. after his grandfather’s death. He nowhere sought allotment of share but claimed 1/8th share on dividing the joint family property between 8 co-sharers in 1998.

Court then went on to summarise law as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005 as under:

  1. 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).
  2. 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.
  3. 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 testamentary or intestate succession, and not by survivorship.
  4. 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 this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.
  5. 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.
  6. 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 tenants in common and not as joint tenants.

In view of the above, on the death of Appellant’s grandfather, the joint family property which was ancestral property in the hands of Appellant’s grandfather and the other coparceners, devolved by succession under Section 8 of the Act. The ancestral property then ceased to be joint family property on the date of death of Appellant’s grandfather and the other coparceners and his widow held the property as tenants in common and not as joint tenants. Thus, 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.

The appeal was accordingly dismissed.

[Uttam vs. Saubhag Singh & Ors.]

(SC, 02.03.2016)

Civil Appeal No. 2360 of 2016



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