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Note On Hindu Succession Act
Note On Hindu Succession Act
II. Merely because there is a joint family, there is no presumption that property
possessed by it’s members is joint family property.
In Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 it was held:
“The Hindu law upon this aspect of the case is well settled. Proof of
the existence of a joint family does not lead to the presumption that
property held by any member of the family is joint, and the burden rests
upon anyone asserting that any item of property was joint to establish the
fact. But where it is established that the family possessed some joint
property which from its nature and relative value may have formed the
nucleus from which the property in question may have been acquired, the
burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint
family property”.
2
III. In Satrughan Isser v. Sabujpari : AIR 1967 SC 272 the Court held:
born, as the case may be, unless it was made for purposes binding on
the members of the family or the existing member consented to it or
the subsequently born member ratified it after he attained majority. If
another member was conceived in the family or inducted therein by
adoption before such consent or ratification, his right to avoid the
alienation will not be affected.”
VI. There can be more than one preliminary decree in a partition suit.
(a) In Virdhachalam Pillai v. Chaldean Syrian Bank Ltd., : AIR 1964 SC 1425 it
was held:
“(1) A father can by incurring a debt, even though the same be
not for any purpose necessary or beneficial to the family so long as
it is not for illegal or immoral purposes, lay the entire joint family
property including the interests of his sons open to be taken in
execution proceedings upon a decree for the payment of that debt.
(2) The father can, so long as the family continues undivided
alienate the entirety of the family property for the discharge of his
antecedent personal debts subject to their not being illegal or
immoral.
In other words, the power of the father to alienate for satisfying
his debts, is co-extensive with the right of the creditors to obtain
satisfaction out of family property including the share of the sons
in such property.
(3) Where a father purports to burden the estate by a mortgage
for purposes not necessary and beneficial to the family, the
mortgage qua mortgage would not be binding on the sons unless
the same was for the discharge of an antecedent debt. Where there
is no antecedency, a mortgage by the father would stand in the
same position as an out and out sale by the father of family
property for a purpose not binding on the family under which he
receives the sale price which is utilised for his personal needs.
It need hardly be added that after the joint status of the family
is disrupted by a partition, the father has no right to, deal with the
family property by sale or mortgage even to discharge an
1
(1991) 3 SCC 647
2
(2011) 9 SCC 788
6
antecedent debt, nor is the son under any legal or moral obligation
to discharge the post-partition debts of the father.
(4) Antecedent debt in this context means a debt antecedent in
fact as well as in time i.e. the debt must be truly independent and
not part of the mortgage which is impeached. In other words, the
prior debt must be independent of the debt for which the mortgage
is created and the two transactions must be dissociated in fact so
that they cannot be regarded as part of the same transaction.”
(b) This was reiterated in Manibhai v. Hemraj, (1990) 3 SCC 68, in the following words:
(c) In Faqir Chand v. Harnam Kaur, AIR 1967 SC 727 it was held:
“In Brij Narain v. Mangla Prasad3 the Privy Council laid down five
propositions, of which the following three are material for the decision of
this appeal:
“(1) The managing member of a joint undivided estate cannot
alienate or burden the estate qua manager except for purposes of
necessity; but
(2) if he is the father and the other members are the sons he
may, by incurring debt, so long as it is not for an immoral purpose,
lay the estate open to be taken in execution proceeding upon a decree
for payment of that debt.
(3) If he purports to burden the estate by mortgage, then
unlessthat mortgage is to discharge an antecedent debt, it would not
bind the estate.”
Brij Narain case1 received the approval of this court in Luhar Amritlal
Nagji v. Doshi Jayantilal Jethalal42.
3
(1923) LR 51 (IA) 129,139
4
(1960) 3 SCR 840,852-853
8
In M.V.S. Manikayala Rao v. M. Narasimhaswami, : AIR 1966 SC 470 the Court held:
(a) In N.V. Narendranath v. CWT, (1969) 1 SCC 748, at page 754 it was held that
5
1957 Appeal Cases 540 (Privy Council)
10
individual property. It is clear that the present case falls within the
ratio of the decision of this Court in Gowali Buddanna6 case and the
Appellate Tribunal was right in holding that the status of the
respondent was that of a Hindu Undivided Family and not that of an
individual.”
“The character of any joint family property does not change with
the severance of the status of the joint family and a joint family
property continues to retain its joint family character so long as the
joint family property is in existence and is not partitioned amongst
the co-sharers. By a unilateral act it is not open to any member of the
joint family to convert any joint family property into his personal
property.”
6
(1960)60 ITR 293
11
In Annasaheb Bapusaheb Patil v. Balwant, AIR 1995 SC 895 =(1995) 2 SCC 543, it was
held:
(a) In CWT v. Chander Sen, (1986) 3 SCC 567 the Court declared:
“15. It is clear that under the Hindu law, the moment a son is
born, he gets a share in the father’s property and becomes part of the
coparcenary. His right accrues to him not on the death of the father
or inheritance from the father but with the very fact of his birth.
Normally, therefore whenever the father gets a property from
whatever source from the grandfather or from any other source, be it
separated property or not, his son should have a share in that and it
will become part of the joint Hindu family of his son and grandson
and other members who form joint Hindu family with him. But the
question is: is the position affected by Section 8 of the Hindu
Succession Act, 1956 and if so, how? The basic argument is that
Section 8 indicates the heirs in respect of certain property and Class I
of the heirs includes the son but not the grandson. It includes,
however, the son of the predeceased son. It is this position which has
mainly induced the Allahabad High Court in the two judgments, we
have noticed, to take the view that the income from the assets
inherited by son from his father from whom he has separated by
partition can be assessed as income of the son individually. Under
Section 8 of the Hindu Succession Act, 1956 the property of the
father who dies intestate devolves on his son in his individual
capacity and not as karta of his own family. On the other hand, the
Gujarat High Court has taken the contrary view.
…
14
7
(1983) 144 ITR 18(AP)
15
This has been reiterated in Yudhishter Vs. Ashok Kumar8, Sheel Devi v. Lal
Chand and another9 and in Uttam v. Saubhag Singh and others10.
XIV. Law applicable to joint family property governed by the Mitakshara school prior
to the amendment in 2005 by Act 39 of 2005 is set out in Anar Devi v. Parmeshwari Devi,
(2006) 8 SCC 656 in the following terms:
“11. … we hold that according to Section 6 of the Act when a
coparcener dies leaving behind any female relative specified in Class I
of the Schedule to the Act or male relative specified in that class
claiming through such female relative, his undivided interest in the
Mitakshara coparcenary property would not devolve upon the surviving
coparcener, by survivorship but upon his heirs by intestate succession.
Explanation 1 to Section 6 of the Act provides a mechanism under
which undivided interest of a deceased coparcener can be ascertained
and i.e. that 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. It
means for the purposes of finding out undivided interest of a deceased
8
(1987) 1 SCC 204
9
(2006) 8 SCC 581
10
(2016) 4 SCC 68
17
Recently, in Uttam Vs. Saubhag Singh and others .. (2016) 4 SCC 68 also the
Court summed up in the following terms:
“(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 testamentary
or intestate succession, and not by survivorship.
(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 this partition, all
18
the coparceners and the male Hindu’s widow 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 tenants-in-common and
not as joint tenants.”
XV. Section 6 of the Hindu Succession Act, 1956 after its amendment in 2005 by
amending Act 39 of 2005.
interregnum events occur necessitating change in shares, the Court can amend the
preliminary decree or pass another preliminary decree re-determining the rights and
interests of the parties having regard to the changed situation.
In Danamma Vs. Amar .. (2018) 3 SCC 343, the Supreme Court held that clause
(a) of sub-Section (1) of Section 6 which states that the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner as the son would be
prospective in operation whereas clause (b) which states that they would have same rights
in the coparcenery as she would have if she had been a son and clause (c) which states
that they would be subject to the same liabilities in respect of the said coparcenery
property as that of a son and other parts of sub-section (1) of Section 6 as well as sub-
section (2) would be retro-active in operation and amended Section 6 applied to
daughters born prior to 17-06-1956 or thereafter (between 17-06-1956 and 08-09-
2005) provided they are alive on 09-09-2005, the date when the Amendment Act of
2005 came into force. The Court held that the partition suit was filed in 2002, since
during its pendency, the 2005 Amendment came into force, though preliminary decree
was passed in 2007, it requires to be amended taking into account the change in law
brought by 2005 Amendment.