Much after the partition of the property devolved upon Class
I heirs of N. Ramakrishnan when each of the divided shares
became exclusive property of the cosharers and sold by father of
the appellant, without challenging the partition decree or the sale
deeds executed by father of the appellant, during the lifetime of
father, the suit for partition has been filed in the year 1997 on
behalf of the minor on the premise of inheritance as coparcener by birth. {Para 40}
41. Finally, in view of the general rule of succession in the case
of property of a male dying intestate, under the provisions of
Chapter II of the Hindu Succession Act, 1956, the property of N.
Ramakrishnan (grandfather of the appellant) devolved upon the
Class I heirs in the order of succession specified therein, and they
shall take the property simultaneously to the exclusion of all other
heirs. With the partition decree, the property of N. Ramachandran falling in the share of the father of the appellant became his exclusive property in his individual capacity and cannot be said to be coparcenary. There is no question of devolution of the property once partitioned and became exclusive individual property of the first respondent upon the appellant herein so as to recognise his right on the premise of attaining coparcenary rights with his birth. For the reasons aforementioned, there is no infirmity in the impugned judgment.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7020 OF 2012
J. RAJESH (MINOR) THR.
HIS MOTHER AND NATURAL
GUARDIAN J. GOMATHI Vs M. KUMARAN. (DEAD) THR.
LRS. & ORS.
Author: SUNITA AGARWAL, J.
1. A short question for consideration in this appeal is as to
whether the appellant would be entitled to half share in the
property of his father who is still alive and can seek a decree of
partition on the premise of the property in question being
ancestral/joint family property.
2. The facts in brief are that the Original Suit No.1698 of 1997
was filed on behalf of the appellant as minor through his mother
being natural guardian seeking relief of partition and possession
of half share claimed by the appellant in the suit property, which
is the land admeasuring 1811 sq. ft. (described at the foot of the
Civil Appeal No.7020 of 2012 2
plaint). It was pleaded on behalf of the plaintiff/appellant that the
suit property being joint family property belonging to his
grandfather namely late N. Ramakrishnan, has been inherited by
him along with his father who was the first defendant in the suit.
3. As averred in the plaint itself, the first defendant’s sister G.
Lalitha filed a suit namely C.S. No.1728 of 1993 for partition and
possession of the divided share of N. Ramakrishnan, i.e., the
grandfather. The suit was decreed on the basis of a compromise
dated 03.02.1994, whereunder the first defendant had got his
share in a land to the extent of 1811 sq. ft.
4. Original defendant nos. 2 and 3 are purchasers of the suit
property vide sale deeds dated 03.04.1997 and 17.04.1997
executed by the first defendant. As per the plaint averments, the
plaintiff/appellant herein while seeking to establish his
entitlement to half share in the suit property would plead that the
first defendant was trying to alienate the suit property to deprive
the valuable right of the plaintiff/appellant to the same. However,
there is no challenge to the compromise decree dated 03.02.1994
or the aforementioned sale deeds executed in favour of defendant
nos. 2 and 3. Only relief sought was for partition and possession
of half share to the plaintiff/appellant herein in the suit property.
Civil Appeal No.7020 of 2012 3
5. The suit was contested by defendant nos. 2 and 3, on the
ground that the first defendant was absolute owner by virtue of the
compromise decree dated 03.02.1994 and the defendants had paid
sale consideration and had taken possession of the suit property
and are enjoying the same since the date of purchase.
6. The learned II Additional Judge, City Civil Court, Chennai
passed the preliminary decree of partition which was challenged in
the first appeal filed by the original defendant nos. 2 and 3.
7. The facts considered by the First Appellate Court in setting
aside the preliminary decree of partition granted by the Trial Court
are that the property originally belong to the father of the first
defendant by name late N. Ramakrishnan. The plaintiff/appellant
is son of the first defendant/respondent and being minor is
represented by his mother and natural guardian.
8. The plaintiff was born on 06.01.1994 and the suit for
partition and possession of properties belonging to N.
Ramakrishnan was filed by the first defendant’s sister namely G.
Lalitha in the year 1993. The first defendant did not contest the
suit filed by the appellant and had executed two sale deeds in
favour of the defendant nos. 2 and 3 with regard to the property
Civil Appeal No.7020 of 2012 4
which he obtained as a result of the partition decree under the
compromise dated 03.02.1994.
9. The question answered by the First Appellate Court is as to
whether the plaintiff acquired right by birth in the property which
fell into the share of the first defendant/his father and as such is
entitled to the decree of partition as prayed for. Considering
decisions of this Court, the First Appellate Court has held that as
per the Class I heirs listed in the Schedule under Section 8 of the
Hindu Succession Act, 1956, the son of a male dying intestate will
become an absolute owner of the property which he derives from
his father and holds the property as absolute one and his son has
no right by birth over such property.
10. It was held that when property devolved upon the divided
sons and daughters per capita and not per stripes, each one of
them was entitled to alienate their shares, particularly when
different properties were allotted in their favour and in a case of
this nature, joint coparcenary does not survive. It was held that
Section 6 of the Hindu Succession Act was not attracted to the
facts of the case as partition has taken place and the
heirs/successors of the original owner N. Ramchandran became
owners to the extent of the properties falling within their shares.
Civil Appeal No.7020 of 2012 5
11. It was held that when a divided son or daughter has got the
property belonging to their father in a partition, whether it is
ancestral or self-acquired property of the father, they became
absolute owners of their respective shares and they can deal with
the property exclusively excluding their sons. The son of a divided
son (grandson) does not get right from his father by birth who is
excluded by virtue of Section 8 of the Hindu Succession Act and
he cannot become a coparcener in the property in question.
12. The suit property is an ancestral property belonging to N.
Ramkrishnan and the divided share in the said property reached
the hands of his son who became absolute owner therefore and his
grandson, the appellant herein does not get interest in the
property.
13. Following the proposition of law laid down by this Court in
the judicial pronouncements discussed therein, it was held that as
per Class I heirs of the Schedule under Section 8 of the Hindu
Succession Act, upon a Hindu dying intestate, the first class heirs
namely, the heirs mentioned in Class I (Schedule-I) son, daughter,
widow and brother shall take shares equally to the exclusion of the
other heirs, including son’s son. The High Court has held that the
plaintiff/appellant herein did not acquire right by birth in the
Civil Appeal No.7020 of 2012 6
property which came in the hands of his father by partition after
the death of his grandfather and, hence he is not entitled to seek
partition in the property.
14. By placing Section 29-A of the Hindu Succession (Tamil Nadu
Amendment) Act, 1989, it was urged by Mr. K. Paari Vendhan,
learned Counsel for the appellant herein that in a Joint Hindu
Family governed by Mitakshara Law, son of a coparcener shall
become a coparcener in his own right by birth, inclusive of the
right to claim by survivorship. The submission is that by virtue of
Section 29-A inserted in the Hindu Succession Act, 1956 by the
Tamil Nadu Amendment Act, 1989, the right of daughter of a
coparcener to inherit in a coparcenary property by birth has been
recognised, notwithstanding anything contained in Section 6 of the
Hindu Succession Act, 1956. The significance of Section 29-A is
that in a subsisting Mitakshara coparcenary governed by the Tamil
Nadu amendment, a daughter/female member who qualifies the
provision holds a coparcenary interest. The statutory protection
preserves eligible daughters’ coparcenary rights and leaves a son’s
existing right by birth intact.
15. It was submitted that due to operation of Section 29-A, the
compromise decree dated 03.02.1994, as aforesaid, will not turn
Civil Appeal No.7020 of 2012 7
the nature of shares of coparcener determined therein into “selfacquired
property”, as by virtue of Clause (iii) of Section 29-A, the
suit property continued to have incidents of “coparcenary”
ownership. Accordingly, the appellant’s father’s share did not
become his self-acquired property.
16. The contention is that Section 29-A of the Hindu Succession
(Tamil Nadu Amendments) Act, 1989 inserted as Chapter II-A of
the Hindu Succession Act, 1956 substituted Section 6 (1) so to
provide coparcenary rights to daughters by birth and in the same
manner as sons. The amendments passed by Tamil Nadu
Legislature in 1989 effectively make daughters equal coparceners
from 1989 onwards and this position has been affirmed by the
Madras High Court in Shanmugha Udayar Vs. Sivanandam and
others1.
17. The learned counsel for the appellant would submit that the
appellant was born on 06.01.1994 and as such became a
coparcener in the ancestral property of his grandfather with his
birth only. Although the partition suit was instituted in 1993, but
the decree came to be passed only on 03.02.1994 (after the
appellant’s birth) and his father was allotted the subject property.
1 1993 SCC OnLine Mad 99
Civil Appeal No.7020 of 2012 8
The appellant was not made a party in the partition proceedings
despite the suit having been decreed only after his birth and after
he acquired coparcenary right in the subject property by birth.
Mere fact of partition or separation from other branches does not
destroy the coparcenary character as against the first respondent’s
own son.
18. Reference was made to Rohit Chauhan Vs. Surinder Singh
and others,2 and Arshnoor Singh Vs. Harpal Kaur,3 to submit
that this Court has distinguished partition of ancestral property
from succession under Section 8 and recognized son’s interest
upon birth and that on partition, the ancestral coparcenary
property allotted to a coparcener remains a coparcenary property
qua the allottee’s son.
19. In light of the said legal proposition, the appellant’s half share
recognised by the trial court must be protected and the High Court
has erred in treating the mere allotment under a family partition
as conclusive proof of the first respondents being the individual
owner without addressing the pleaded ancestral character, the
appellant’s birth and the statutory scheme applicable in the State
of Tamil Nadu.
2 (2013) 9 SCC 419
3 (2020) 14 SCC 436
Civil Appeal No.7020 of 2012 9
20. In view of the above, it was contended that the purchasers
namely the original defendant nos. 2 and 3 cannot acquire greater
right than their vendor namely the first respondent. Their plea of
absolute ownership must therefore be tested against the
appellant’s independent coparcenary claim and the trial Court’s
finding that the property was ancestral, not controverted by the
first respondent (father of the appellant), is to be upheld.
21. It was urged that the first respondent was not competent to
transfer the entire suit property without determining/demarcating
the share of the appellant coparcener, the property obtained by the
first respondent through partition, held by him as karta of a
coparcenary property. The first respondent remained ex parte in
the trial court, the High Court and before this Court until his death
in the year 2024. The onus of proving the legal necessity for sale
of a coparcenary property has not been discharged by the first
respondent. In the result, the trial court’s preliminary decree for
partition of half share of the appellant is liable to be restored and
the sale deeds dated 03.04.1997 and 17.04.1997 are to be held as
not binding on the share of the appellant by setting aside the
judgment and order dated 11.08.2010 of the High Court.
Civil Appeal No.7020 of 2012 10
22. Mr. K.K. Mani, learned counsel for the respondent, on the
other hand, would submit that the present is a case of a male, i.e.,
grandson seeking succession in the property of his grandfather
which would be governed by Section 8 of the Hindu Succession Act
and heirs mentioned in Class I of the Schedule to Section 8 would
be attracted. Section 6 of the Hindu Succession Act, 2005 or
Section 29-A of the Hindu Succession (Tamil Nadu Amendment)
Act, 1989 are not attracted.
23. The consistent view of this Court in the case of succession of
a grandson has been that the grandson is clearly excluded from
the heirs mentioned in Class I Schedule and the divided son gets
absolute right with full power of alienation. Section 8 of the Hindu
Succession Act, 1956 lays down the scheme of succession to the
property of a Hindu dying intestate. The schedule classifies the
heirs on whom such property should devolve as those specified in
Class I who took simultaneously to the exclusion of all other heirs.
A son’s son is not mentioned as an heir under Class I of the
Schedule, and, therefore he cannot get any right in the property of
his grandfather under the said provision. The suit property which
devolve on the first respondent upon the death of his father
intestate after coming into force of the Hindu Succession Act, 1956
Civil Appeal No.7020 of 2012 11
did not constitute HUF property consisting of his own branch
including his sons.
24. Reliance is placed on the decisions of this Court in C.W.T.
and others Vs. Chander Sen and others4, Vimalben Ajitbhai
Patel Vs. Vatslabeen Ashokbhai Patel and others5 and Radha
Bai Vs. Ram Narayan and others.6
25. It was further submitted that the appellant though is
aggrieved by the partition/compromise decree but he has not
challenged the same so far. The suit property is no more an
ancestral property and moreover the appellant’s father being alive
when suit was filed, the appellant has no right to claim any share
in the same. The original defendant nos. 2 and 3 namely
respondent no.1 and 2 herein are innocent purchaser of the suit
property and the suit filed by the appellant is a collusive suit with
his father who had not turned up to contest the proceedings.
26. Section 6 and 8 of Hindu Succession Act, 1956 prior to 2005
amendment, and Section 29-A of the Hindu Succession (Tamil
Nadu) Act, 1989 relevant for this case are extracted hereinunder :-
The Hindu Succession Act, ‘1956’
4 (1986) 3 SCC 567
5 (2008) 3 SCC 87
6 (2020) 19 SCC 513
Civil Appeal No.7020 of 2012 12
“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 survivorship upon the surviving members of the
coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a
female relative specified in class I of the Schedule or a male
relative specified in that class who claims through such
female relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and
not by survivorship.
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 constructed as enabling a person who has
separated himself from the coparcenary before the death of
the deceased or any of his heirs to claim or intestay a share
in the interest referred to therein.”
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 not heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(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.
Section 29-A of the Hindu Succession (Tamil Nadu
Amendment) Act, 1989, as contained in Chapter II-A of the
Tamil Nadu Act, inserted after Chapter II of the Hindu
Succession Act, 1956:-
Civil Appeal No.7020 of 2012 13
29-A. Equal rights to daughter in coparcenary property.-
Notwithstanding anything contained in section 6 of this Act,-
(i) in a Joint Hindu Family governed by Mitakshara
Law, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as a son
and have the same rights in the coparcenary property as
she would have had if she had been a son, inclusive of the
right to claim by survivorship; and shall be subject to the
same liabilities and disabilities in respect thereto as the
son;
(ii) at a partition in such a Joint Hindu Family the
coparcenary property shall be so divided as to allot to a
daughter the same share as is allotable to a son:
Provided that the share which a pre-deceased son or
a pre-deceased daughter would have got at the partition if
he or she had been alive at the time of the partition shall
be allotted to the surviving child of such pre-deceased son
or of such pre-deceased daughter:
Provided further that the share allotable to the predeceased
child of a predeceased son or of a pre-deceased
daughter, if such child had been alive at the time of the
partition, shall be allotted to the child of such predeceased
child of the predeceased son or of the predeceased
daughter, as the case may be;
(iii) any property to which a female Hindu becomes
entitled by virtue of the provisions of clause (i) shall be
held by her with the incidents of coparcenary ownership
and shall be regarded, notwithstanding anything
contained in this Act or any other law for the time being in
force, as property capable of being disposed of by her by
will or other testamentary disposition;
(iv) nothing in this Chapter shall apply to a daughter
married before the date of the commencement of the
Hindu Succession (Tamil Nadu Amendment) Act, 1989;
(v) nothing in clause (ii) shall apply to a partition which
had been effected before the date of the commencement of
the Hindu Succession (Tamil Nadu Amendment) Act,
1989.
Civil Appeal No.7020 of 2012 14
In Commissioner of Wealth Tax, Kanpur and others Vs.
Chander Sen and others7, the question considered by this Court
was – whether the income or asset which a son inherits from his
father when separated by partition, could be assessed as income
of Hindu undivided family of son or his individual income?
27. While answering the said question, it was noted that though
under the Hindu Law the moment a son is born he gets a share in
the father’s property and becomes part of the coparcener. His right
accrued 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 Hindu joint family of his son and grandson and other
members who form joint Hindu family with him.
28. However, this position is affected by Section 8 of the Hindu
Succession Act, 1956. The Hindu Succession Act, 1956 lays down
the scheme of succession to the property of a Hindu dying intestate
male. The first rule is that the property of a male Hindu dying
intestate shall devolve according to the provisions of Chapter II and
7 (1986) 3 SCC 567
Civil Appeal No.7020 of 2012 15
upon the heirs in Class I of the Schedule being relatives mentioned
in Class I which reads as follows:-
“Son, daughter, widow, mother, son of a predeceased son,
daughter of a predeceased son, son of a predeceased
daughter, daughter of a predeceased daughter, widow of a
predeceased son, son of a predeceased son of a predeceased
son, daughter of a predeceased son of a predeceased son,
widow of a predeceased son of a predeceased son.”
The heirs mentioned in Class I of the Schedule are son,
daughter etc. including the son of a predeceased son but does not
include specifically the grandson, being a son of son living. The
question, thus was, when the son as heir of Class I of the Schedule
inherits a property, (“as first respondent in the present case”), does
he do so in his individual capacity or does he do so as karta of his
own undivided family?
29. Having noted the divergent views expressed by different High
Courts, it was observed and held in paragraphs 21, 22, 23 and 24
as under :-
21. It is necessary to bear in mind the Preamble to the
Hindu Succession Act, 1956. The Preamble states that it was
an Act to amend and codify the law relating to intestate
succession among Hindus.
22. 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
Civil Appeal No.7020 of 2012 16
though the son of a predeceased son and not the son of a son
who is intended to be 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
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 preexisting
Hindu law. It would be difficult to hold today the
property which devolved on a Hindu under Section 8 of the
Hindu Succession would be HUF in his hand vis-a-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-a-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.
23. Before we conclude we may state that we have noted
the observations of Mulla's “Commentary on Hindu law” 15th
Edn. dealing with Section 6 of the Hindu Succession Act at
page 924-26 as well as Mayne's on “Hindu Law”, 12th Edn.
pages 918-919.
24. 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 included son of a
predeceased son cannot be ignored.
30. In Bhanwar Singh Vs. Puran and others,8 this Court has
dealt with the applicability of Section 8 of the Hindu Succession
Act, 1956, the properties in suit therein were partitioned between
son and three daughters of the original owner. After partition the
properties inherited in the share of son was mortgaged and later
sold by him. The fact that the suit property at one point of time
was a joint family property was admitted and the question which
8 (2008) 3 SCC 87
Civil Appeal No.7020 of 2012 17
arose for consideration was as to whether the appellant had
acquired any interest therein by his birth in the property of his
grandfather died prior to his birth.
31. Having regard to Section 8 as also Section 19 of the Hindu
Succession Act, 1956, it was held that the property ceased to be
joint family property with the partition having taken place amongst
the heirs of the grandfather/appellant therein. In such a case, a
joint coparcenary did not continue. The interpretation of Section 8
of the Hindu Succession Act which came up for consideration in
C.W.T Vs. Chandrasen (supra) was noted to further record that the
principles evolved therein were reiterated by this Court in
Yudhisthir Vs. Ashok Kumar,9 and C.I.T Vs. M. Karthikeyan.10
It was held that Section 6 of the Hindu Succession Act, 1956,
was not attracted to the facts of the said case in view of the fact
that son and daughters having partitioned their properties became
owners to the extent of one-fourth share each and son had the
requisite right to transfer the lands falling within his share.
Furthermore, in terms of Section 19 of the Act as son and
daughters became tenants in common and took the property
9 (1987) 1 SCC 204
10 1994 Supp. (2) SCC 112
Civil Appeal No.7020 of 2012 18
devolve upon them as per capita and not per stripes, each one of
them was entitled to alienate their share.
32. Recently in Radha Bhai Vs. Ram Narayan and others11,
the question was as to whether the suit land inherited by late
Janakram from his father Sukhdeo, the sole owner, became the
ancestral property of the plaintiff on the date of death of Sukhdeo
in 1965 and on the date of death of Janakram in 1982. According
to the plaintiff/appellant therein, the suit property was admittedly
ancestral property in the hands of Sukhdeo after coming into force
of Hindu Succession Act, 1956 with effect from 17.6.1956.
Invoking Section 6 of 1956 Act, the appellant/plaintiff, the great
granddaughter of Sukhdeo claimed the entire share of her father
being the sole surviving heir of the son of Janakram. It was urged
that the sale deed executed by Janakram in the year 1979 was ex
facie illegal and not binding on the appellant/plaintiff as
Janakram had no authority to sell the ancestral property which
had settled in the coparceners after the death of Sukhdeo. The
respondent/defendant therein on the other hand contended that
the ancestral property was succeeded by two surviving sons of
Sukhdeo namely Janakram and Pilaram equally when the
11 (2020) 19 SCC 513
Civil Appeal No.7020 of 2012 19
succession had opened after the death of Sukhdeo in 1965. The
appellant/plaintiff was not an heir in Class I at the relevant time
being the great granddaughter of Sukhdeo, and, as such, she had
no claim in the suit property in 1965. The reason being that the
father of the appellant could not have succeeded to the property
during the lifetime of his father Janakram.
33. After the death of Sukhdeo, the suit property came to the
exclusive share of Janakram and he had become absolute owner
thereof. As Janakram held the suit property in his individual
capacity and not as a coparcener on behalf of his family members,
he could alienate the same as per his volition to anyone. In such a
situation, as per the settled law, the granddaughter of Janakram
cannot be treated as an heir of Class I, or a coparcener so as to
have a share in the suit property. Section 6 of the 1956 Act as
applicable at the relevant time was taken into consideration and
the decision in C.W.T Vs. Chandra Sen and others was noted in
paragraphs 19, 20 and 21 as under:-
“19. In Chander Sen, this Court considered the interplay
between Sections 4, 6 and 8 of the 1956 Act including
Chapter II and heirs in Class I of the Schedule. The Court
noted as follows: (SCC pp. 572-73, paras 10-12)
"10. The question here, is, whether the income or asset
which a son inherits from his father when separated by
Civil Appeal No.7020 of 2012 20
partition the same should be assessed as income of the
Hindu Undivided Family of son or his individual income.
There is no dispute among the commentators on Hindu law
nor in the decisions of the court that under the Hindu law as
it is, the son would inherit the same as karta of his own
family. But the question is, what is the effect of Section 8 of
the Hindu Succession Act, 1956? The Hindu Succession Act,
1956 lays down the general rules of succession in the case of
males. The first rule is that the property of a male Hindu
dying intestate shall devolve according to the provisions of
Chapter II and Class I of the Schedule provides that if there
is a male heir of Class I then upon the heirs mentioned in
Class I of the Schedule. Class I of the Schedule reads as
follows:
'Son; daughter; widow; mother; son of a predeceased son;
daughter of a predeceased son; son of a predeceased
daughter, daughter of a predeceased daughter, widow of a
predeceased son; son of a predeceased son of a predeceased
son; daughter of a predeceased son of a predeceased son;
widow of a predeceased son of a predeceased son."
11. The heirs mentioned in Class 1 of the Schedule are son,
daughter, etc. including the son of a predeceased son but does
not include specifically the grandson, being, a son of a son
living. Therefore, the short question, is, when the son as heir
of Class I of the Schedule inherits the property, does he do
so in his individual capacity or does he do so as karta of his
own undivided family?
12. Now the Allahabad High Court has noted that the case
of CIT v. Ram Rakshpal10 after referring to the relevant
authorities and commentators had observed at p. 171 of ITR
that there was no scope for consideration of a wide and
general nature about the objects attempted to be achieved by
a piece of legislation when interpreting the clear words of
Mulla's Commentary on Hindu Law and the provisions of
Section 6 of the Hindu Succession Act, that in the case of
assets of the business left by father in the hands of his son
will be governed by Section 8 of the Act and also made before
us to Section 4 of the Hindu Succession Act. Section 4 of the
said Act provides for overriding effect of Act. Save as
otherwise expressly provided in the Act, 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 the Act and any other law in
force immediately before the commencement of the Act shall
cease to apply to Hindus insofar it is inconsistent with any of
the provisions contained in the Act. Section 6 deals with
Civil Appeal No.7020 of 2012 21
devolution of interest in coparcenary property and it makes it
clear that when a male Hindu dies after the commencement of
the Act having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property
shall devolve by survivorship upon the surviving members of
the coparcenary and not in accordance with the Act. The
proviso indicates that if the deceased had left him surviving a
female relative specified in Class I of the Schedule or a male
relative specified in that class who claims through such female
relative, the interest of the deceased in Mitakshara
coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and
not by survivorship."
20. Again in para 15: (Chander Sen case, SCC pp. 573-74)
"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 judgments10, 11
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
taken12 the contrary view."
21. After considering the divergent views expressed by the
Allahabad High Court12,13 the Full Bench14 of the Madras
High Court, Madhya Pradesh14 and Andhra Pradesh High
Courts15 on one side and the Gujarat High Court on the
12 CIT v. Ram Rakshpal, 1966 SCC OnLine All 429 : (1968) 67 ITR 164
13 Khudi Ram Laha v. CIT, 1966 SCC OnLine All 435 : (1968) 67 ITR 364
14 CIT v. Babubhai Mansukhbhai, 1975 SCC OnLine Guj 77 : (1977) 108 ITR 417
15 CWT v. Mukundgirji, 1983 SCC OnLine AP 288 : (1983) 144 ITR 18
Civil Appeal No.7020 of 2012 22
other, it proceeded to opine as follows: (Chander Sen case,
SCC pp. 577-78, paras 21-24)
"21. It is necessary to bear in mind the preamble to the
Hindu Succession Act, 1956. The preamble states that it was
an Act to amend and codify the law relating to intestate
succession among Hindus.
22. 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 Cłass 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 view12 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 be 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 Section 8. Furthermore, as noted by the Andhra
Pradesh High Court15 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
that the property which devolved on a Hindu under Section
8 of the Hindu Succession Act would be HUF in his hand visà-
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 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.
23. Before we conclude we may state that we have noted
the observations of Mulla's Commentary on Hindu Law, 15th
Edn. dealing with Section 6 of the Hindu Succession Act at
pp. 924-26 as well as Mayne's on Hindu Law, 12th Edn., pp.
918-19.
24. 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."
Civil Appeal No.7020 of 2012 23
Another decision of this Court in Yudhisthir case (supra)
wherein Chander Sen was quoted with approval, has also been
noted in paragraph 22 as under:-
22. This decision has been quoted with approval in
Yudhishter case. In para 10 of the said decision, the Court
observed thus: (SCC pp. 110-11)
"10. This question has been considered by this Court in
CWT v. Chander Sen where one of us (Sabyasachi Mukharji,
J.) observed that under the Hindu law, the moment a son is
born, he gets a share in 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. This Court
observed that this position has been affected by Section 8 of
the Hindu Succession Act, 1956 and, therefore, after the Act,
when the son inherited the property in the situation
contemplated by Section 8, he does not take it as karta of his
own undivided family but takes it in his individual capacity.
At pp. 577 to 578 of the Report, this Court dealt with the
effect of Section 6 of the Hindu Succession Act, 1956 and the
commentary made by Mulla, 15th Edn., pp. 924-26 as well
as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji
relied on the said observations of Mayne’s Hindu Law, 12th
Edn., at pp. 918-19. This Court observed in the aforesaid
decision that the views expressed by the Allahabad High
Court10, 11, the Madras High Court13, the Madhya Pradesh
High Court14 and the Andhra Pradesh High Court15 appeared
to be correct and unable to accept the views12 of the Gujarat
High Court. To the similar effect is the observation of learned
author of Mayne's Hindu Law, 12th Edn., p. 919. In that view
of the matter, it would be difficult to hold that property which
devolved on a Hindu under Section 8 of the Hindu
Succession Act, 1956 would be HUF in his hand vis-à-vis his
own sons. If that be the position then the property which
devolved upon the father of the respondent in the instant
case on the demise of his grandfather could not be said to be
HUF property. If that is so, then the appellate authority was
right in holding that the respondent was a licensee of his
father in respect of the ancestral house."
Civil Appeal No.7020 of 2012 24
In the facts of the said case, having noticed that Sukhdeo had
inherited ancestral property and was alive till 1965, whereas,
father of the appellant (son of Janakram) predeceased Sukhdeo
(his grandfather) in 1957 and Janakram, son of Sukhdeo had died
in 1982, and that during the lifetime of Janakram, in terms of
Section 6 of 1956 Act, the father of the appellant could not have
succeeded to the property as he could claim only through
Janakram who was alive till 1982, it was held that when father of
the appellant had no claim in his own rights, hence the question
of the appellant (being his daughter), succeeding to the property
does not arise. It was thus noted in paragraphs 25 and 26 and held
in paragraph 27 that :-
“25. The consistent view of this Court, including of the three-
Judge Bench, is that the grandson or granddaughter is
clearly excluded from heirs in Class I. Saheblal himself was
grandson of Sukhdeo, who predeceased Sukhdeo. After the
demise of Sukhdeo in 1965, therefore, the ancestral suit
property could be and came to be partitioned between
Janakram and Pilaram in 1967. As a result of that partition,
the suit property came to the exclusive share of Janakram in
his individual capacity. He could, therefore, legitimately
dispose of the same in the manner he desired and which he
did in favour of his grandsons (Defendants 1 to 3,
respectively) vide registered sale deed dated 21-7-1979.
Neither the stated partition of 1967 nor the registered sale
deed in favour of the respondents (Defendants 1 to 3) dated
21-7-1979 has been challenged. The relief sought in the suit
as filed by the appellant-plaintiff is only for partition and
awarding share to the appellant-plaintiff along with
possession. Suffice it to observe that the granddaughter of
Janakram (appellant herein) could not have claimed a higher
right than the right of her father Saheblal.
Civil Appeal No.7020 of 2012 25
26. Reliance placed by the appellant on the decision of this
Court in Gurupad Khandappa Magdum2, is inapposite. In
that case, the plaintiff, being heir in Class 1, claimed to have
share in the interest of her husband which he had at the time
of his death in the coparcenary property. In that view of the
matter, in terms of the proviso to Section 6 of the 1956 Act,
the interest of her husband in the coparcenary property
would devolve by succession under the 1956 Act. Similarly,
in Raj Rani8, the Court was called upon to consider the
dispute between the widow, three sons and three daughters
of the deceased who being heirs in Class I had succeeded to
interest in equal shares, as the property in question was
Mitakshara coparcenary property, by virtue of Explanation I
of Section 6 of the 1956 Act. That analysis can be discerned
from para 17 of the reported judgment. Even the recent
decision of this Court in Ramesh Verma3, does not take the
matter any further for the appellant. Inasmuch as, even in
that case, the dispute was between the heirs concerned in
Class I after the demise of Bhagwan Das. Before
commencement of the 1956 Act, the notional partition had
taken place and as per Section 82 of the Madhya Bharat Land
Code, his sons and wife became entitled to get 1/3rd share
in the property. On partition, share had fallen to one of the
sons which became his separate property and no longer
remained a Mitakshara property. This factual position could
be discerned from para 11 of the reported judgment.
27. A priori, we uphold the view taken by the High Court
that after the death d of Sukhdeo in 1965, the property
devolved upon his two sons Janakram and Pilaram. They
succeeded to the ancestral property equally. They later
effected partition in 1967, as a result of which, the property
came to the exclusive share of Janakram. The father of
appellant, Saheblal, had predeceased his father Janakram
and even his grandfather Sukhdeo. During the lifetime of
Janakram, Saheblal could not have succeeded to the
property and for the same reason, the appellant being his
daughter cannot be heard to claim any right higher than that
of Saheblal. Applying the settled legal position to the present
case, the grounds urged by the appellant need to be rejected.”
34. Reverting to the factual matrix of the present case, it is
noticed that the heirs of N. Ramakrishnan inherited his property
being Class I Schedule heirs having right of succession under
Civil Appeal No.7020 of 2012 26
Section 8 of the Hindu Succession Act, 1956. Section 8 of Hindu
Succession Act, 1956 lays down the scheme of succession to the
property of a Hindu male dying intestate. The schedule classified
the heirs on whom such property should devolve, those specified
in Class I took simultaneously to the exclusion of all other heirs. A
son’s son is not mentioned as an heir under Class I of the
Schedule, and, therefore he could not get any right in the property
of his grandfather under the provision. In the codified Hindu Law
of the Hindu Succession Act, 1956, the right of a son’s son in his
grandfather’s property during the lifetime of his father which
existed under the personal Hindu Law as enforced before the Act
1956, was not saved expressly by the legislature while enacting the
Hindu Succession Act, 1956. Section 8 of the Hindu Succession
Act, 1956 is to be read as a self-contained provision laying down
the scheme of devolution of the property of the Hindu male dying
intestate.
35. Consequently, upon death of N. Ramakrishnan, the
grandfather of the appellant herein, the property devolved on his
Class I Schedule heirs as per Section 8 of the Hindu Succession
Act, 1956 and did not constitute HUF property of son consisting of
his own branch including the grandson. The surviving sons and
Civil Appeal No.7020 of 2012 27
daughters of N. Ramakrishnan, the Hindu male dying intestate,
shall each take one share being Class I Schedule heirs. The
partition among the Class I heirs was opened upon the death of N.
Ramakrishnan, (whose date of death has not been disclosed), with
the filing of the partition suit in 1993 by one of the coparceners
wherein settlement had been arrived between the heirs. Under the
compromise decree in terms of the settlement dated 03.02.1994,
each of the heir became exclusive owner of the property falling
within his/her share. The father of the appellant whose shares are
divided in terms of the compromise decree pursuant to the
settlement dated 03.02.1994, became exclusive owner of the
property falling in his share. With the partition, the property of N.
Ramakrishnan the grandfather of the appellant ceased to be joint
family property, inasmuch as, all heirs succeeded the same as
tenant in common and not as joint tenant, and joint coparcenary
did not continue.
36. The succession having been opened with the death of N.
Ramakrishnan, evidently before the appellant was born, inasmuch
as partition suit was filed in the year 1993, there is no question of
devolution of interest in the suit property upon the appellant.
Civil Appeal No.7020 of 2012 28
37. From the averments made in the memo of appeal, it seems
that parents of the appellant got married on 01.03.1993 and the
partition suit namely C.S. No. 1728 of 1993 seeking partition and
separate possession of the properties of N. Ramakrishnan, the
grandfather of the appellant (father of the first respondent herein)
was filed in 1993. The appellant was born on 06.01.1994 and the
settlement was arrived on 03.02.1994. The father of the appellant
was still alive and was impleaded as a first defendant in the suit
filed through the mother in the year 1997 on the premise of the
appellant having inherited coparcenary rights in the property of
his grandfather by birth.
38. As noted hereinbefore this Court in C.W.T Vs. Chandrasen
(supra) has considered the interplay between Section 4, 6 and 8 of
the Act 1956 including Chapter II and heirs in Class I of the
Schedule and has held that as per the codified Hindu law 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, would be impossible. It would be difficult to hold
that the property which devolved on a Hindu under Section 8 of
Civil Appeal No.7020 of 2012 29
the Hindu Succession Act would be HUF in his hand vis-à-vis his
own son as 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. The express words of Section 8 of the Hindu
Succession Act, 1956 cannot be ignored and must prevail.
39. To the contention of the appellant that he got share in his
grandfather’s property and became part of the coparcenary with
his birth, it is to be seen that the unamended Section 6, as noted
before, as it originally stood prior to 2005, provided for devolution
of interest in the Mitakshara coparcenary property, at the time of
death of a male Hindu after commencement of 1956 Act, by
survivorship, upon the surviving members of the coparcenary. In
the instant case, the date of death of N. Ramakrishnan, the
grandfather has not been indicated and the suit for partition
among Class I heirs was filed in the year 1993, evidently the
provisions of Section 6 of the Hindu Succession Act, 1956 or
Section 29(A) inserted by the Tamil Nadu Amendment Act, 1989
would have no application in the facts and circumstances of the
present case. From this perspective as well, the appellant cannot
become a coparcener as he was not a “surviving coparcener” on
the death of N. Ramakrishnan.
40. Much after the partition of the property devolved upon Class
I heirs of N. Ramakrishnan when each of the divided shares
became exclusive property of the cosharers and sold by father of
the appellant, without challenging the partition decree or the sale
deeds executed by father of the appellant, during the lifetime of
father, the suit for partition has been filed in the year 1997 on
behalf of the minor on the premise of inheritance as coparcener by
birth.
41. Finally, in view of the general rule of succession in the case
of property of a male dying intestate, under the provisions of
Chapter II of the Hindu Succession Act, 1956, the property of N.
Ramakrishnan (grandfather of the appellant) devolved upon the
Class I heirs in the order of succession specified therein, and they
shall take the property simultaneously to the exclusion of all other
heirs. With the partition decree, the property of N. Ramachandran
falling in the share of the father of the appellant became his
exclusive property in his individual capacity and cannot be said to
be coparcenary. There is no question of devolution of the property
once partitioned and became exclusive individual property of the
first respondent upon the appellant herein so as to recognise his
right on the premise of attaining coparcenary rights with his birth.
For the reasons aforementioned, there is no infirmity in the
impugned judgment.
42. The appeal, thus, failed and hence stands dismissed with no
order as to costs. All pending applications are also disposed of in
the above terms.
..……………….…………………..J.
[AUGUSTINE GEORGE MASIH]
..……………………..J.
[SUNITA AGARWAL]
NEW DELHI,
November 06, 2026
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