Whether step mother can execute agreement of sale regarding immovable property as karta if she has inherited it alongwith her step daughters from her husband?

There is no dispute about the fact that the suit properties were the separate properties of Dajiba. After his demise somewhere

in the year 1966-67 his widow i.e. defendant no.1 and daughters,

who are the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act. However, in view of provision of Section 19 of that Act, all these heirs of Dajiba would inherit as tenants in common and not as joint tenants. Once such a devolution is understood, the matter becomes clear like a day light. The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand. By virtue of such mode of succession by the widow and four daughters of Dajiba receiving the suit properties as his heirs, they take their individual shares as tenants in common. In the bsence of the suit properties being joint, therefore, there was no question of the step mother - defendant no.1 acting as a manager or karta of the family. She, therefore, had no right to deal with the suit properties even for legal necessity.It has been held that under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.1648 OF 2005

Kamalabai  Vitthalrao Jadhav Vs Darubai W/o. Dajiba

CORAM : MANGESH S. PATIL, J.

Pronounced on : 31-03-2022

Print Page

Whether there is presumption of existence of HUF after commencement of Hindu Succession Act 1956?

Also, as Order 6 Rule 4 CPC is attracted to suits where plaintiff claims that a coparcenary or Hindu Joint Family exists, (inasmuch as after coming into force of the Act, 1956, there is no presumption as to the existence of an HUF), detailed facts have to be averred. However, no averments have been made by factual references qua each property claimed to be a Hindu Joint Family property.

IN THE HIGH COURT OF DELHI

CS (OS) 2223/2013, 

Decided On: 04.02.2019

Aarshiya Gulati  Vs.  Kuldeep Singh Gulati and Ors.

Print Page

Whether it can be presumed that there was joint family property if there was HUF Bank Account?

HUF BANK ACCOUNT IS NOT RELATABLE TO ANY PROPERTY. THEREFORE, IRRELEVANT

86. As regards the HUF Bank account opened on 22nd November, 1985, it is not relatable to any property. It is an admitted position that the Public as well as the Private Limited Companies, Partnership Firms and Family Members of the defendant No. 1 had been filing independent Income Tax Returns. Therefore, the said HUF Bank account is wholly irrelevant.

87. In any event, showing in Income Tax Return, a HUF Bank account is meaningless unless the sufficient income is shown from nucleus of Hindu Joint Family Properties. The consistent legal position is that once there is no sufficient nucleus in Savings Bank Account, as in the present case, it will not make a Business/Property as a Hindu Joint Family property.

IN THE HIGH COURT OF DELHI

CS (OS) 2223/2013, 

Decided On: 04.02.2019

Aarshiya Gulati  Vs.  Kuldeep Singh Gulati and Ors.

Hon'ble Judges/Coram:

Manmohan, J.

Citation: AIR 2019(NOC) 577 Del

Print Page

Leading Supreme court Judgment on share of widow in property of her deceased husband

Before considering the implications of Explanation 1, it is necessary to remember that what Section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshare coparcenary property at the time of his death. Since Explanation 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject matter which the section itself deals with. In the instant case the plaintiff's suit, based as it is on the provisions of Section 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the plaintiff. One, her share in her husband's share and two, her husband's own share in the coparcenary property. The proviso to Section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased. The plaintiff's share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three daughters and a widow. The son, daughter and a widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of Section 8(a) read with the 1st clause of Section 9, they take simultaneously and to the exclusion of other heirs. As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceased's property Under Section 10 read with Rules 1 and 2 of that section. Thus, whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiff's share therein will be 1/6th.

9. The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing 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. One must, therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, Fourteenth Edition, page 403, para 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and his sons.

10. Two things are thus clears : One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th. So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th or whether it is 1/4th plus 1724th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in Shiramabai which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred.

11. We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's life time between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff's husband and his sons. Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.

12. The fiction created by Explanation 1 has to be given its due and full effect. Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council. [1952] A.C. 109/132. He said if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mita-kshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.

What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose 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 life time 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 cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.

14. The interpretation which we are placing upon the provisions of Section 6, its proviso and explanation I thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929 conferred heirship rights on the son's daughter, daughter's daughter and sister in all areas where the Mitakshara law prevailed. Section 3 of the Hindu Women's Rights to Property Act. 1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family. The Hindu Succession Act, 1956 provides by Section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu Woman to acquire an equal status with males in matters of property. Even assuming that two Interpretations of Explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1828 of 1975

Decided On: 27.04.1978

Gurupad Khandappa Magdum  Vs. Hirabai Khandappa Magdum and Ors.

Hon'ble Judges/Coram:

Y.V. Chandrachud, C.J., V.D. Tulzapurkar and P.N. Singhal, JJ.

Equivalent citations: 1978 AIR 1239, 1978 SCR (3) 761

Print Page

Whether widowed daughter in law is entitled to get maintenance from father in law if there is no coparcenary property?

19. Maintenance of widowed daughter-in-law.

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law : Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under Sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.

10. Shri Deopujari, learned Counsel for the appellants has further contended that provisions of Section 19(2) only bar execution of the obligation by such widowed daughter-in-law against father-in-law if father-in-law has no coparcenary property. In other words, he contends that the obligation of father-in-law which springs from Section 19(1) is independent of its enforceability under Section 19(2). He argues that the obligation cannot be executed or enforced through a Court of law because of bar under Sub-section (2) of Section 19 of the Act if such father-in-law has no coparcenary property, but the obligation exists even against self acquired property under Section 19(1). I am not in a position to accept such distinction. An obligation which cannot be legally enforced cannot be recognized as legal obligation at all. Section 19 is a complete scheme in itself which provides for an obligation and also its enforcement. It creates a right in daughter in law with corresponding liability on father in law. It specifies in what circumstances & to what extent the right accrues and when or how it is enforceable. It is therefore not possible to read Section 19(1) independent of Section 19(2) of Act. I, therefore, find no merit in the argument sought to be raised by the Appellant.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 117 of 1989

Decided On: 18.01.2008

Venubai Wasudeo Rambhad Vs. Laxman Lahanuji Rambhad and Ors.

Hon'ble Judges: 

B.P. Dharmadhikari, J.

Citation: AIR 2008 Bom 13,

Print Page

Whether S 16 of Hindu marriage Act grants illegitimate child right in ancestral coparcenary property?

 So far as Section 16 of the Act is concerned, though it was enacted to legitimate children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents," In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further righter than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court deregulating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 7247 of 1995

Decided On: 20.12.2002

 Jinia Keotin Vs.  Kumar Sitaram Manjhi and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Shivaraj V. Patil, JJ.

Print Page

Whether son and grandson have right in property which father got in partition?

Therefore, the properties acquired by Defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of Defendant No. 2 retained the character of a coparcenary property and the Plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the Plaintiffs was not maintainable.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: (2018) 7 SCC 646

Print Page

Whether father can execute will in respect of ancestral property which he received in partition?

 It is clearly emerging factual and legal position in the matter that there had been partition among father and three sons in 1978 whereunder each of them received one fourth share in the inherited coparcenary property and that in 1990, the father under a registered will, had bequeathed his one fourth separate share received in partition, to only two sons. The third son though being alive, had not received anything under the bequest. Father of the plaintiff died in 1991. Thereafter, the properties bequeathed were being enjoyed by the two sons as their independent properties. That enjoyment had never been questioned by the third son. The Maharashtra amendment to Hindu Succession Act had been effective since 1994 and amendment to section 6 to Hindu Succession Act had been made effective from 2005. Disposition of the property by the father of the plaintiff, as such, obviously has been before 20th day of December, 2004. On partition, the property had become separate property of father and as such, he had an absolute right to deal with the same and which he did by executing a registered will, which appears to have been acted upon. Coparcenary nature of the property had ceased to continue upon partition of the properties among the partitioning members of the coparcenary, since 1978. It is not the case that any male member had been born after 1978 to deceased father in order to lay claim to any share in the property. Father admittedly had executed will of his partitioned separate share in 1990 and in 1991, he has expired. Disposition of suit property among coparceners then had taken place before Maharashtra Amendment of 1994 to Hindu Succession Act, 1956. Even if it is assumed that amendment to section 6 of the Hindu Succession Act, is retroactive, the legislature has already made its intention clear that disposition of properties made before 20th December, 2004 would remain unaffected.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 440 of 2015

Decided On: 22.03.2017

 Leelavati Baburao Chaudhari Vs. Pitambar Shridhar Attarde and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh, J.

Citation: 2017(6) MHLJ 469

Print Page

Whether one coparcener can transfer his share in property by way of gift without consent of other coparcener?

  So far the gift deed is concerned, the defendants claimed
that the gift deed was executed by Laldas in their favour in May, 1971
and then he died in June, 1971. On the contrary, plaintiff’s case is that 
Laldas died in the month of May, 1971. It may be mentioned here that
the defendants have not claimed any counter claim for declaration of
the gift deed as valid. No issue was framed on this question but the
trial court recorded a finding that gift deed is a valid, legal and
genuine document. I have already held above that there had been no
partition between the parties and there is unity of title and possession,
so, the coparcener cannot transfer by way of gift his share without the
consent of other coparcener.
 (26) The Hon’ble Supreme Court in AIR 1987 Supreme
Court 1775 has held that gift by a coparcener of undivided share is a
void transaction. Since there was unity of title and possession between
the parties and there had been no partition, the so called gift deed,
even if executed by Laldas, is a void document and no valid title,
interest and possession will pass on the defendants.

IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.250 of 1976

Sabitri Devi & Ors. V Sri Lakhan @ Ramjiwan Prasad & Ors.

CORAM:  MR. JUSTICE MUNGESHWAR SAHOO

Date: 06-02-2017
Citation: AIR 2017 Patna 85

Print Page

Whether coparceners will be denied rights in coparcenary property if their names are not mentioned in partition deed?

    Now coming to the facts, as stated above, the parties are

governed by Hindu Mithakshara Law as modified by custom. The recitals

in Ext.A1 clearly indicate that the properties obtained by Veluchami in that

partition were ancestral in nature. Admitted facts would show that the

defendants 3 and 5 were born before commencement of the Act of 1956

and also much prior to Ext.A1. As the properties included in Ext.A1 were

ancestral, the defendants 3 and 5 had acquired a right by birth although

their rights were not recognized in Ext.A1. It is a definite proposition that a

mere non-mentioning of the names of coparceners in a partition deed

should not denude them of their rights. That also would not affect or alter

the nature of property involved in the document. And the property still

would remain as        coparcenary property. In otherwords, a mere non-

inclusion of certain coparceners in a partition deed will not make a



coparcenary property a separate property of the executants.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:
       MR. JUSTICE A.HARIPRASAD

                29TH DAY OF SEPTEMBER 2016

                              RSA.No. 996 of 2009 
KALI AMMAL
V
VALLIYAMMAL,

                   Citation: AIR 2017 (NOC) 211 Ker

Print Page

Whether father can transfer ancestral property as his separate property after birth of son?

A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father’s property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody’s case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding.
Reportable

Supreme Court of India

Rohit Chauhan vs Surinder Singh & Ors on 15 July, 2013

Bench: Chandramauli Kr. Prasad, V. Gopala Gowda

Citation:AIR 2013 SC3525

Print Page

What will be share of grandsons in property inherited by their father from their grandfather?

Admittedly, it has come on record that Bhola inherited 1/3 of the property left by his father Shiv Dihal. Consequently, it can safely be said that it was coparcenary property and the rights devolved on the coparceners. The coparceners are the plain tiffs and the defendants whose common ancestor was their father Bhola. In view of Section 6 of the Hindu Succession Act, the property devolved in equal shares on the coparceners. Bhola's death occurred after the commencement of the Hindu Succession Act, 1956. Consequently, Section 6 of the said Act became applicable upon the prop erty in question 

Allahabad High Court

Chunnilal vs Smt. Dullar And Ors. on 12 July, 2007

Equivalent citations: AIR 2007 All 202, 2007 (4) AWC 4068

Bench: T Agarwala

Print Page

Good legal article on Hindu woman's right to property

INTRODUCTION

1.In the ancient times, the woman could hold property but

in practice, in comparison to men's holding, her right to dispose of

the property was qualified. This was the situation prior to 1937 when

there was no codified law.   The Hindu Women's Right to Property

Act, 1937 was one of the most important enactment that brought

about changes to give better rights to women.  The said Act was the

outcome  of   discontent  expressed   by   a  sizeable   section   of  society against the unsatisfactory affairs of the women's

 right to property.

Even  the said act did not give an absolute right to women.  Under

the said Act a widow was entitled to a limited interest over the

property of her husband­what was to be termed as Hindu widow's

estate.   The Act was amended in 1938 to exclude the widow from

any interest in agricultural land.

Print Page

Leading Judgment on doctrine of blending of property

 The next question that falls for consideration is whether
‘C’ Schedule property was blended with the joint family property and
treated as part of the joint family property. To consider the issue, it
is profitable to discuss the law on this point. The decision in the
case of Ram Janam Singh –v- Stae of Uttar Pradesh and
another, reported in AIR 1994 SC 1722, enumerates the doctrine of
blending as follows:
6. To pronounce on the question of law presented
for our decision, we must first examine what is the
true scope of the doctrine of throwing into the
“common stock” or “common hotchpot”. It must be
remembered that a Hindu family is not a creature
of a contract. As observed by this Court in
Mallesappa Bendeppa Desai v. Desai Mallappa9
that the doctrine of throwing into common stock
inevitably postulates that the owner of a separate
property is a coparcener who has an interest in the
coparcenary property and desires to blend his
separate property with the coparcenary property.
The existence of a coparcenary is absolutely
necessary before a coparcener can throw into the
common stock his self-acquired properties. The
separate property of a member of a joint Hindu
family may be impressed with the character of joint
family property if it is voluntarily thrown by him
into the common stock with the intention of
abandoning his separate claim therein. The
separate property of a Hindu ceases to be a
separate property and acquires the characteristic of
a joint family or ancestral property not by any 
physical mixing with his joint family or his
ancestral property but by his own volition and
intention by his waiving and surrendering his
separate rights in it as separate property. The act
by which the coparcener throws his separate
property to the common stock is a unilateral act.
There is no question of either the family rejecting or
accepting it. By his individual volition he
renounces his individual right in that property and
treats it as a property of the family. No longer he
declares his intention to treat his self acquired
property as that of the joint family property, the
property assumes the character of joint family
property. The doctrine of throwing to the common
stock is a doctrine peculiar to the Mitakshra School
of Hindu law. When a coparcener throws is
separate property into the common stock, he
makes no gift under Chapter VII of the Transfer of
Property Act. In such a case there is no donor or
donee. Further no question of acceptance of the
property thrown into the common stock arises.”
In Lakkireddi Chinna Venkata Reddi and others Vs.
Lakkireddi Lakshmama, reported in AIR 1963 SC 1601, the
decision describes the principles of doctrine of blending as follows:-
“9. Law relating to blending of separate property
with joint family property is well-settled. Property
separate or self-acquired of a member of a joint
Hindu family may be impressed with the character of
joint family property if it is voluntarily thrown by the
owner into the common stock with the intention of
abandoning his separate claim therein: but to
establish such abandonment a clear intention to
waive separate rights must be established. From the
mere fact that other member of the family were
allowed to use the property jointly with himself, or
that the income of the separate property was utilised
out of generosity to support persons whom the
holder was not bound to support, or from the failure
to maintain separate accounts, abandonment cannot
be inferred, for an act of generosity or kindness will
not ordinarily be regarded as an admission of a legal
obligation.
Thus, to sum up the
principles decided in the aforesaid decisions, it can be said that in
order to establish that the separate or self-acquired property of a
coparcener is blended with a joint family property following
ingredients have to be established.
1. There must be a coparcenery joint family in
existence;
 2. Property in question must be separate or self
acquired of a Hindu coparcener;
 3. He allows such property to be used by joint
family;
 4. Such action of the coparcener must be out of his
own volition;
 5. He must have an intention of waiving,
surrendering and/or abandoning his claim of
separate rights over such property.
 HIGH COURT OF ORISSA: CUTTACK
 F.A. NO. 82 OF 2000

Rama Chandra Prusty Vs Bidyadhar Prusty and others 

 Date of Judgment: 11.12.2015

P R E S E N T:
 SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)730 Orissa

Print Page

Whether rights of coparceners will be affected if ancestral property is not mentioned in partition deed as coparcenary property?

  Now coming to the facts, as stated above, the parties are

governed by Hindu Mithakshara Law as modified by custom. The recitals

in Ext.A1 clearly indicate that the properties obtained by Veluchami in that

partition were ancestral in nature. Admitted facts would show that the

defendants 3 and 5 were born before commencement of the Act of 1956

and also much prior to Ext.A1. As the properties included in Ext.A1 were

ancestral, the defendants 3 and 5 had acquired a right by birth although

their rights were not recognized in Ext.A1. It is a definite proposition that a

mere non-mentioning of the names of coparceners in a partition deed

should not denude them of their rights. That also would not affect or alter

the nature of property involved in the document. And the property still

would remain as        coparcenary property. In otherwords, a mere non-

inclusion of certain coparceners in a partition deed will not make a



coparcenary property a separate property of the executants. In this case,

another contention is that Ext.B1 release deed, taken from the defendants

3 and 5 by Veluchami and his two wives, also probabilises the case of the

appellants that deceased Veluchami himself had acknowledged the nature

of property as one belonged to a coparcenary.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                     PRESENT:

                             MR. JUSTICE A.HARIPRASAD

                29TH DAY OF SEPTEMBER 2016

                                               RSA.No. 996 of 2009 
 KALI AMMAL ,
Vs
       VALLIYAMMAL, 

Print Page

Whether daughters can be denied share in coparcenary property on ground that cash and jewellery are given to them?

Learned Counsel for the appellants argued that Sannamadaiah purchased a site in the name of the third plaintiff and gave gold and silver jewellery as well as cash to the first and second plaintiffs and therefore plaintiffs cannot claim any share in the suit properties. Admittedly, the defendants have not stepped into the witness-box to substantiate their contention, nor is there any plea in the written statement to that effect. Even assuming that Sannamadaiah had purchased a site in the name of third plaintiff and given jewellery and cash to other plaintiffs, the same cannot take away their legal right as daughters to claim a share in the co-parcenary properties by virtue of Section 6 read with Section 8 of Hindu Succession Act. Point No. 4 is therefore answered in the negative.

 Equivalent Citation: AIR2016Kant4, 2015(4)KCCR3091

IN THE HIGH COURT OF KARNATAKA

Regular First Appeal No. 58 of 2014

Decided On: 07.09.2015

 Lokamani and Ors.  Vs. Mahadevamma and Ors.

Hon'ble Judges/Coram:N. Kumar and G. Narendra, JJ.

Print Page

When daughter can claim that property is still coparcenary property on date of coming into force of Amendment Act?

It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.

            IN THE HIGH COURT OF BOMBAY

Decided On: 14.08.2014

 Badrinarayan Shankar Bhandari etc. etc.
Vs.

 Ompraskash Shankar Bhandari etc. etc.

 Citation: 2014(5)CTC353, 2014(5)MhLj434,2014(5) ALLMR846 FB

Print Page

Whether daughter born prior to 9.9.2005 has right to file suit for partition in respect of coparcenary properties?

 In view of the observations made by the Apex Court in
the cases of Ganduri and S. Sai Reddy, this Court holds that
plaintiff has right to file suit for relief of partition in respect of
coparcenary properties though she was born prior to 9.9.2005 and
the Trial Court has not committed any error in rejecting the
application filed by the applicant. 
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 47 OF 2013
 Babu Dagadu Awari,

Versus
 Baby w/o. Namdev Lagad,

Citation;2014(4) MHLJ608 Bom,AIR 2015(NOC)446BOM

Print Page

Leading judgment on partition of joint family property

It is clear from the decisions in Sai Reddy (supra), Ganduri

Koteshwaramma (supra) and Prema (supra) that a partition of the

Hindu Joint Family – that crystallizes each member’s interest, and

thus makes the interests immune to further changes in the law – can

only take place in the manner prescribed by the HSA. A deemed

partition under the proviso to Section 6, HSA is not an actual partition

that crystallizes the interest of all members of the HUF, but only a

legal construction introduced by the legislature to determine how the

interests of the deceased would devolve upon his heirs if a Class I

female relative is alive. The purpose of this fiction of deemed partition as opposed to following the simple rule of survivorship otherwise) is

that Class I female heirs also receive a share in the coparcenary

property of the deceased male, as they would otherwise be excluded

(not being coparcenors themselves, pre the 2005 Amendment). To

argue that such deemed partition crystallizes the interest of the

daughters finally, and that any rights accruing to them at a later stage

which grant an interest in the coparcenary property are unenforceable,

is contrary to the terms and the spirit of the proviso to Section 6 as it

existed before the 2005 Amendment and the letter of the amendment

itself.

Sai

Reddy

Koteshwaramma

(supra),

Prema

(supra)

and

Ganduri

(supra) have all consistently held that the mere

severance in status, sought to be brought about by the institution of a

partition suit, does not result in immutable shares. These decisions

also took note of Phoolchand & Anr v. Gopal Lal AIR 1967 SC 1470

and even an older decision (of the Privy Council) in Jadunath Roy and

Ors. v. Parameswar Mullick and Ors., AIR 1940 PC 11, where it was

held that even after a preliminary decree in a partition suit is made, the

Court is not only powerless, but has the duty to reflect later

developments, which could necessitate re-adjustment of shares (of the

parties) on account of fluctuation in the coparcenary or the joint

family.

33.

From another and more fundamental perspective, if the

fluctuation of interests continued between the male coparcenors (the

brothers) – after the death of Bakshi Ram in 1960, and a division of

his interest to his sons and daughters – there appears no reason why

the daughter’s interest should be foreclosed. They continued to remain

members of the HUF (though not coparcenars), and thus entitled to

avail of any rights that accrued in their favour as female members of

the family, specifically the 2005 amendment in this case. In this case,

till date no final decree has been passed, and neither has any registered

partition deed been placed on record or relied upon by any of the

parties. Accordingly, the amended Section 6 of the HSA is applicable.

The 2005 amending act, thus, is unambiguous, that no past partition or testamentary disposition of property is to be affected or reopened, in order to include the newly created shares of female members of the HUF in the coparcenary. The intention of Parliament was not to create chaos by reopening previous family settlement, but rather, to indicate that for all future actions, the rules of succession, and not survivorship, would operate in default, and further, that female members would be entitled to share just as their male counterparts. Equally, however, the amending act clarifies what is meant by 'partition' in terms of Section 6, i.e. "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." Accordingly, only those partitions made by the execution of a duly registered partition deed or a partition effected by a decree of a Court, i.e. partitions recognized by Section 6 as valid, which have occurred before the cut-off date identified, are saved from the operation of the amended Section 6, which would, if operative, require a redistribution of shares within the HUF. Having defined the expression 'partition' in Section 6, Parliament clarified which partitions are left unaffected by the amendment, and those that are susceptible to this change in the statute, giving the Courts clear and unambiguous direction in this regard. Thus, if a partition, as envisaged under the explanation to Section 6(5) occurred before 20.12.2004, then only may the Courts ignore the amended Section 6.

25. Crucially, since the rights and shares of the parties are decided as on the date of partition, it is important to determine the date of partition. First, as discussed above, the notion that a partition occurs as on the date of the death of a male member, and shares crystallize into vested rights at that point in time, as held by the learned Single Judge, is not the correct approach. That event (i.e. the death) only determines how that person's share will be divided amongst the family members (either by survivorship or by succession), rather than effecting any broad-based changes in the family holdings or effecting a partition inter se that would hold against subsequent changes in the family composition or changes in the law. Secondly, neither is the proposition that the shares are defined at the time of filing of the suit for partition correct. Rather, the HUF, and specifically, the coparcenary, continues even after the filing of the suit. The filing of a suit by itself does not mean that a partition has taken place, until a decree of Court effects partition, or a registered deed of partition is signed inter se the parties. Accordingly, the death or birth of family members during the pendency of a suit quite obviously will affect the shares in partition. Similarly, any change in law during the pendency of the suit, as for example is the case with Section 6 of the HSA, would affect the ultimate shares of the parties. A contrary conclusion would not only fly in the face of the definition of 'partition' in Section 6(5), but would also mean, for example, that no partition suit can be withdrawn after it is filed, a proposition which has been rejected on various occasions.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 31.01.2014

RFA (OS) 11/2010, C.M. NO. 1950/2010

SMT. SWARAN LATA AND ORS. Vs SHRI KULBHUSHAN LAL AND ORS.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE NAJMI WAZIRI

 Citation: AIR2014Delhi86, 210(2014)DLT393, 2014(141)DRJ205

Print Page

Basic concept of coparcenary property

Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419
Family and Personal Laws
Hindu Law
Coparcenary property or separate/self-acquired property - Partition of ancestral property - Property falling in share of a
single coparcener would be treated as his separate property vis--vis his relatives and he would be competent to
alienate/deal with it in any manner he would like - But upon his marriage subsequently when a son is born (and after the
2005 Amendment to Hindu Succession Act, 1956, also a daughter), property in his hand would be treated as
coparcenary property in which son(s)/daughter(s) as coparceners would get shares - Hence after birth of a child, he
could dispose of such property only as karta for legal necessity -

Print Page