Supreme Court: State Cannot Invoke Doctrine Of Escheat To Challenge A Will Which Is Granted Probate

6.2. The grant of probate by a competent court of law can be assailed only by those who are the likely heirs if the Will is to fail, by either filing an appeal against it or by seeking revocation of the grant of probate under Section 263 of the IS Act, 1925. Further, it is only when there is failure of heirs that the estate of an intestate Hindu would devolve on the Government under Section 29 of the Act. This means that till that stage arrives, the Government is a stranger to the probate proceedings as well as any proceeding regarding succession under the personal law. Merely because the State of Rajasthan in the instant case has invoked the Rajasthan Escheat Regulation Act, 1956, would not give locus standi to assail the grant of probate of the Will of the testator. Hence, we have considered the locus standi of the State of Rajasthan to file these special leave petitions as a preliminary issue in these Special Leave Petitions.

6.3. In view of the above, we find that the State of Rajasthan in the instant case has no locus standi to challenge the judgment of the Division Bench of the High Court on the strength of the escheat of the properties of the testator. Section 29 of the Act does not apply in the instant case as this is not a case of intestate succession but one of testamentary succession as probate of the Will has been granted by High Court.

6.4. We may also mention that in the event the probate has been granted illegally to the legatees of a Will inasmuch as the Will itself is not a valid Will, then under Section 263 of the IS Act only the persons who could have succeeded, by the Will being declared invalid namely, the successors under the Act, as per Section 8 thereof could have filed an application under Section 263 of the IS Act for revocation of the grant of probate and none else.

6.5. In other words, we clarify that it is only in the event of intestate succession, Section 29 of the Act applying that there would be a devolution of the estate of a deceased male Hindu on the Government and not otherwise. Since such a situation does not arise in the instant case, as probate of the Will of testator has been granted by a competent Court of law; this is a case of testamentary succession.

 In the Supreme Court of India

(Before B.V. Nagarathna and Satish Chandra Sharma, JJ.)

SLP (C) No(s). 14721-14723/2024

State of Rajasthan Vs  Ajit Singh and Others 

Decided on September 1, 2025

Citation: 2025 SCC OnLine SC 1992

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Questions and answers on law (Part 69)

 Q 1:- What are rights of accused under Indian law?

Ans:- In India, the rights of the accused are enshrined in various legal documents, primarily the Constitution of India and the Code of Criminal Procedure (CrPC). Here are some key rights of the accused:

Fundamental Rights:

1) Right to Equality (Article 14): The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

2) Right to Life and Personal Liberty (Article 21): No person can be deprived of their life or personal liberty except according to procedure established by law.

3) Right against Self-Incrimination (Article 20(3): The accused cannot be compelled to answer questions or provide evidence that could be used against them in court.

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What changes Hindu Succession Amendment Act 2005 has brought regarding distribution of property among the legal heirs?

 The Hindu Succession Act, which governs the distribution of property among Hindus in India, has undergone several amendments to bring about gender equality and address other issues. The concepts of "per capita" and "per stripes" are related to the distribution of property among the legal heirs.

1. Per Capita Distribution:

   • In a per capita distribution, the estate is divided equally among all the living members of a particular generation.
   • Each member of the generation receives an equal share, irrespective of their individual needs or the number of children they may have.
   • This method is used when the distribution is to be made among individuals of the same generation.

2. Per Stirpes Distribution:

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Under which circumstance Compromise between some of the parties in partition suit will become invalid and no valid decree can be passed based on said compromise?

  The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order. {Para 11}

13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal Under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.

(Emphasis supplied)

91. Thus, in view of the aforesaid discussion, we hold that the cross-appeal filed by the Original Defendant No. 2, questioning the legality and validity of the settlement was maintainable in law.

92. We shall now look into the circumstances, as highlighted by the learned Senior Counsel appearing for the Defendant No. 2, rendering the settlement agreement dated 28.03.1991 invalid and not binding Under Order XXIII Rule 3 of the Code of Civil Procedure:

First, the alleged compromise agreement has admittedly not been signed by the Plaintiff who concededly has a share in the property as a coparcener. A written consent of all parties is necessary.

Secondly, a coparcenary undivided property in specie (Plot No. 140) has been allotted to Defendant 2 by Defendant No. 1 over which the Plaintiff also has an interest.

Thirdly, there is variance between the agreement and the compromise petition producing the agreement.

Fourthly, the judgment dated 01.08.2000 of the first appellate court accepting the compromise does not make allotment of the property allotted in specie to the Defendant No. 2. The first appellate court has proceeded on the wrong premise that the Defendant No. 2 has surrendered her rights to the Defendant No. 1. The first appellate court was further wrong in specifically noting that the compromise agreement does not cause any prejudice to the rights of the Plaintiff and therefore can be given effect.

Fifthly, the compromise agreement was entered into by beckoning a smaller share to the Defendant No. 2, while she has a larger share in view of Vineeta Sharma (supra). The consideration for the alleged compromise/settlement was therefore inadequate and whole agreement has to fall to the ground due to changed and supervening circumstances effectuated by change in law.

Lastly, even otherwise, the allotment of a co-ownership property in a specie to one coparcener cannot be modified in a preliminary decree. Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

93. It is now well settled that Under Order XXIII Rule 3 of the Code of Civil Procedure as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. (See: Gurpreet Singh v. Chatur Bhuj Goel, MANU/SC/0032/1987 : (1988) 1 SCC 270.)

94. Indisputably, in the case on hand, the Plaintiff has not put her signature on the deed of settlement, which was produced before the High Court in first appeal. The Plaintiff has made herself very clear that she never joined in the settlement between her brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the settlement could be said to be unlawful, being without any written consent of all the parties. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained.

95. In Nityamoni Dasi v. Gokul Chandra Sen reported in MANU/WB/0534/1910 : (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed:

... The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintain ed.....

96. In Vir Singh and Ors. v. Kharak Singh and Ors. reported in MANU/LA/0229/1924 : AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:

...the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the Court was, therefore, fully justified in refusing to enforce it....

97. In Taraprasanna Sarkar and Anr. v. Kalikamohan Sarkar and Ors. reported in MANU/WB/0026/1923 : AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:

...There can be no compromise binding upon, all the parties to a partition suit until and unless all the parties have joined in the compromise:...

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Decided On: 29.03.2023

Prasanta Kumar Sahoo and Ors. Vs. Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0326/2023.

Read full Judgment here: Click here.

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Whether the daughter is entitled to get share in the ancestral property of her father If Law Gets Amended Before Passing Final Decree In Partition Suit?

 Before we proceed to discuss the dictum, as laid by this Court in Vineeta Sharma (supra) we must look into the decision of this Court in the case of Ganduri Koteshwaramma (supra). In Ganduri Koteshwaramma (supra) this Court, in paras 11, 12, 13 & 14, observed as under:

11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to Sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20-12-2004; and (ii) where testamentary disposition of property has been made before 20-12-2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before 20-12-2004. For the purposes of new Section 6 it is explained that "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to Sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19-3-1999 and amended on 27-9-2003 deprives the Appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.

13. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999 which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.

14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. {Para 59}

60. Thus, in Ganduri Koteshwaramma (supra) this Court made the following things explicitly clear:

(i) The equal share given to the daughter of a coparcener governed by Hindu Mitakshara Law along with brothers is by way of a substantive right;

(ii) Though the substantive right is created on and from 9-9-2005, it relates back to the incidence of birth;

(iii) The substantive right would not be available only if the coparcenary property is disposed of or alienated including by any partition or testamentary disposition of property before 20-12-2004 and;

(iv) If there is disposition of a coparcenary property by any partition, such partition must be by execution of a Deed of Partition duly registered under the Registration Act, 1908 or effected by a decree of the Court.

(v) A preliminary decree of partition only determines the rights and interests of the parties. It is only by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, if there is any change in law necessitating determination of shares accordingly then, there would be no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.

20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit -- even after its remand -- cannot be disposed of by it.

78. This Court in Vineeta Sharma (supra) clarified the entire position as follows:

107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [MANU/SC/1241/2015 : (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, MANU/SC/0064/2018 : (2018) 3 SCC 343: (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned Senior Counsel appearing for the Appellants that in a partition suit, the preliminary decree cannot be varied in the final decree proceedings, despite the amendment of the law governing the parties.

82.The only thing that needs to be done now is to give effect to the amendment in the provisions of Section 6 of the 1956 Act and redetermine the shares of the parties accordingly. To put it straight, the Plaintiff is entitled to 1/3rd share in all the properties of her Late father. The issue whether all the properties were ancestral as raised on behalf of the Appellants pale into insignificance.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Decided On: 29.03.2023

Prasanta Kumar Sahoo and Ors. Vs. Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0326/2023.

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Whether daughter of tribal person is entitled to get right in ancestral property by survivorship as per The Hindu Succession Act?

A short question which is posed for consideration of this Court is whether the appellant/petitioner being the daughter is entitled to the share in the compensation with respect to the land acquired, on survivorship basis under the provisions of Hindu Succession Act? At the outset, it is required to be noted that the appellant belongs to tribal community and is a member of Scheduled Tribe. As per Section 2(2) of the Hindu Succession Act, the Hindu Succession Act will not be applicable to the members of the Scheduled Tribe. Therefore, as such as rightly observed by the High Court the appellant cannot claim any right of survival under the provisions of the Hindu Succession Act.

Therefore, so long as Section 2(2) of the Hindu Succession Act stands and there is no amendment, the parties shall be governed by the provisions of Section 2(2) of the Hindu Succession Act. Therefore, though on equity we may be with the appellant being daughter and more than approximately 70 years have passed after the enactment of the Hindu Succession Act and much water has flown thereafter and though we are prima facie of the opinion that not to grant the benefit of survivorship to the daughter in the property of the father can be said to be bad in law and cannot be justified in the present scenario, unless Section 2(2) of the Hindu Succession Act is amended, the parties being member of the Scheduled Tribe are governed by Section

2(2) of the Hindu Succession Act.  {Para 6}

6.1 If the claim of the appellant on the basis of the survivorship

under the Hindu Succession Act is accepted in that case it would

tantamount to amend the law. It is for the legislature to amend the law and not the Court.

7. Under the circumstances in view of Section 2(2) of Hindu

Succession Act and the appellant being the member of the Scheduled Tribe and as the female member of the Scheduled Tribe is specifically excluded, the appellant is not entitled to any right of survivorship under the provisions of Hindu Succession Act. No error has been committed by the High Court. The appeal therefore deserves to be dismissed and is accordingly dismissed.

7.1 Before parting, we may observe that there may not be any justification to deny the right of survivorship so far as the female member of the Tribal is concerned. When the daughter belonging to the nontribal is entitled to the equal share in the property of the father, there is no reason to deny such right to the daughter of the Tribal community. Female tribal is entitled to parity with male tribal in intestate succession. To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which right to equality is guaranteed, it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6901 OF 2022

Kamla Neti (Dead) through LRs  Vs The Special Land Acquisition

Officer & Ors.

Author: M.R. SHAH, J.

Dated: December 9, 2022.

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Supreme court: Inherited Property Of A Female Hindu Dying Issueless And Intestate Goes Back To The Source

 The determination and adjudication of the issue depends upon the answers to the following questions :-
1) What is the nature of the property and what would be the course of succession if it is a separate property as opposed to undivided property?
2) Whether a sole daughter could inherit her father’s separate property dying intestate? And if so -
3) What would be the order of succession after the death of such daughter? {Para 19}

73. The basic aim of the legislature in enacting Section 15(2) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source.

74. Section 15(1)(d) provides that failing all heirs of the female specified in Entries (a)-(c), but not until then, all her property howsoever acquired will devolve upon the heirs of the father. The devolution upon the heirs of the father shall be in the same order and according to the same rules as would have applied if the property had belonged to the father and he had died intestate in respect thereof immediately after her death. In the present case the since the succession of the suit properties opened in 1967 upon death of Kupayee Ammal, the 1956 Act shall apply and thereby Ramasamy Gounder’s daughters being Class-I heirs of their father too shall be heirs and entitled to 1/5th share each in the suit properties.

75. This Court while analysing the provisions of Sections 15 & 16 of the Act in the case of State of Punjab Vs. Balwant Singh & Ors., 1992 Supp. (3) SCC 108, has held as under:-
“7. Sub-section (1) of Section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e). As per Sections 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously. Sub- section (2) of Section 15 begins with a non-obstante clause providing that the order of succession is not that prescribed under sub-section (1) of Section 15. It carves out two exceptions to the general order of succes- sion provided under sub-section (1). The first exception relates to the property inherited by a female Hindu from her father or mother. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father. The second exception is in relation to the property inherited by a female Hindu from her husband or from her father-in-law. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter) not upon the other heirs referred to under sub-section (1) in the order specified thereunder but upon the heirs of the husband.
8. The process of identifying the heirs of the intestate under sub-section (2) of Section 15 has been explained in Bhajya v. Gopikabai and Anr. [1978] 3 SCR 561. There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the Act. Rule 3 of Section 16 provides that "the devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death".

76. Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja Singh (dead) by LRs., (2002) 1 SCC 210, a two-Judge Bench of this Court analysing the provisions of Sections 14, 15 and 16 of the Act reiterating the view taken in the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed as under :-

“The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-Section 2 of Section 15, which gives a special pattern of succession. “

Supreme Court

JUSTICE S. ABDUL NAZEER JUSTICE KRISHNA MURARI

ARUNACHALA GOUNDER (DEAD) BY LRS. Vs. PONNUSAMY AND ORS.

CIVIL APPEAL NO. 6659 OF 2011

20th January 2022

Author: KRISHNA MURARI, J.

Citation:  2022 ALL SCR (ONLINE) 59

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Whether children born out of void marriage are class 1 Legal heirs as S 8 of the Hindu Succession Act?

This Court in the matter of Laxmibai

and others vrs. Limbabai, reported in 1983 Mh.L.J.103, has

recorded a finding that the children born out of the marriage

which is void cannot be termed illegitimate one and they are

covered by the expression ‘son and daughter - class-I' for

Scheduled 8 of the Hindu Succession Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATER JURISDICTION

SECOND APPEAL NO. 269 OF 1992

 Shri Vishnu Laxman Padule Vs  Laxman Rama Padule,

CORAM: N.W.SAMBRE, J .

DATE : 9 JANUARY, 2020.

Citation: 2021(2) MHLJ 288

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What is difference between succession and survivorship as per Hindu Succession Act?

Prior to enactment of Hindu Succession Act 1956,on the death of one coparcener of joint family,other coparceners of joint family were getting property of joint family by survivorship and was not inherited by his legal heirs. This rule was partly abrogated by Hindu Succession Act 1956 and totally abrogated by Hindu Succession Amendment Act 2005.Now joint family property is inherited by legal heirs of deceased and not by other coparceners of joint family. Joint family property passes to legal heirs of deceased by succession or inheritance. 

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How to ascertain the legal heirs of female Hindu for succession to her property if her husband pre-deceased her?

The only reason why the High Court has allowed the second appeal is on the ground that the appellant is not an heir of her mother-in-law under the Hindu Succession Act.

3. This finding proceeds on a misconception of the provisions of the Hindu Succession Act. Section 15 of the Hindu Succession Act provides general rules of succession in the case of female Hindus. Under Sub-section (1), the property of a Hindu female dying intestate shall devolve (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband. Gomathi Ammal does not have any heirs falling under (a). Therefore, we have to examine who are the heirs of her husband. The heirs of a male Hindu are set out in the Schedule to the Hindu Succession Act. Heirs in Class I include a widow of a pre-deceased son. The appellant fits this description. But the High Court has held that when Sesha Iyengar, the husband of Gomathi Ammal died, their son Venkatarama Iyengar was alive. So the appellant cannot be called the widow of a pre-deceased son.

4. In order to decide who are the heirs of a female Hindu under category (b) of Section 15(1), one does not have to go back to the date of the death of the husband to ascertain who were his heirs at that time. The heirs have to be ascertained not at the time of the husband's death but at the time of the wife's death because the succession opens only at the time of her death. Her heirs under Section 15(1)(b) will have to be ascertained as if the succession to her husband had opened at the time of her death. Thus, if at the time of Gomathi Ammal's death, there is any heir of her husband who fits the description in the schedule of being the widow of his pre-deceased son, she will be one of the heirs entitled to succeed. The status of the heir must be determined at the time of the death of the female whose heirs are being ascertained. The appellant was the widow of a pre-deceased son on the date when Gomathi Ammal died. Therefore, the learned single Judge was not right in coming to the conclusion that the appellant is not an heir of Gomathi Ammal.

IN THE SUPREME COURT OF INDIA

C.A. No. 1944 of 1998 

Decided On: 03.04.1998

 Seethalakshmi Ammal Vs. Muthuvenkatarama Iyengar and Ors.

Hon'ble Judges/Coram:

S.V. Manohar and D.P. Wadhwa, JJ.

Citation: AIR 1998 SC 1692

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Whether children born to adoptee father prior to his adoption can inherit his property in Adoptive family?

 Since the succession has opened after the death of Laxman on 10th

January, 1987, therefore, succession has to be in accordance with

the Act and not as per Hindu law as all text, rule or interpretation

of Hindu law prior to commencement of the Act have ceased to

have any effect unless expressly provided for in the said Act. This

Court in a Judgment reported as Bhaiya Ramanuj Pratap Deo v.

Lalu Maheshanuj Pratap Deo(1981) 4 SCC 613 held that a bare perusal of

Section 4 would indicate that any custom or usage as part of Hindu

law in force will cease to have effect after the enforcement of

Hindu Succession Act with respect to any matter for which

provision is made in the Act.

14. The principle that the Act will be applicable on the date succession

opens is well settled. Reference may be made to a judgment reported

as Bhanwar Singh v. Puran & Ors. (2008) 3 SCC 87, wherein this Court

held that the Act brought about a sea of change in the matter of

inheritance and succession amongst Hindus. Section 4 of the Act

contains a non- obstante provision in terms whereof 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 the

Act, ceased to have effect with respect to any matter for which

provision is made therein save as otherwise expressly provided.

15. Since there is no provision of denying the rights of succession to

the natural born son of an adoptee father, therefore, the succession

will be in terms of the provisions of the Act alone.

In my opinion, the fictional severance of ties with the

natural family would not mean that her children would

cease to be her children or can be considered to be not

her children by means of a legal fiction. If by virtue of

the definition in Section 3(j) even the illegitimate

children of a Hindu female have been given a right to

inherit her property, then it would not be permissible to

say that her legitimate children should be excluded

because they were born to her prior to the date of her

husband’s adoption. If, however, the Legislature had

specifically provided for this, then effect must be given

to such a provision and the wishes of the Legislature

respected. Where, however, there is no such clear

provision, such exclusion would appear to be against

the plain language of the enactment and it would not

be proper to come to any such conclusion.”

21. In view of the provisions of the Act which do not make any

distinction between the son born to a father prior or after adoption

of his father and that there is no provision which bars the natural

born son to inherit the property of his natural father, therefore, the

High Court has rightly upheld the rights of the sons of Laxman. In

fact, in the Full Bench judgment of Bombay High Court in Martand

Jiwajee Patil, it has been held that the natural father retains the

right to give in adoption his son born before his own adoption.

Therefore, if he has a right to give his son in adoption, such son has

a right to inherit property by virtue of being an agnate. There was

a full blood relationship between the three sons and the daughter

who was born after adoption. All the children of Laxman are

entitled to inherit the property of their natural father and mother in

accordance with the provisions of the Act as succession has opened

after the death of Laxman in 1987 and subsequently the mother in

the year 1992.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6642-6643 OF 2010

KALINDI DAMODAR GARDE  Vs MANOHAR LAXMAN KULKARNI 

HEMANT GUPTA, J.

Dated:FEBRUARY 07, 2020.
Citation: (2020) 4 SCC 335

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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.

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Necessary pleading to be made if claim is made that suit property is HUF property

 I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.

10. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.

IN THE HIGH COURT OF DELHI

CS (OS) No. 1737/2012

Decided On: 18.01.2016

 Surender Kumar  Vs.  Dhani Ram and Ors.

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Whether there is presumption as to existence of HUF after coming into force of Hindu Succession Act 1956?

The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, MANU/SC/0265/1986 : (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.

IN THE HIGH COURT OF DELHI

CS (OS) No. 1737/2012

Decided On: 18.01.2016

 Surender Kumar  Vs.  Dhani Ram and Ors.

Hon'ble Judges/Coram:

Valmiki J. Mehta, J.

Citation: MANU/DE/0126/2016 : 227 (2016) DLT 217 

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Parameters for declaring one member as tenant amongst several members

Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant.

IN THE HIGH COURT OF BOMBAY

Spl. C. A. No 1739 of 1967

Decided On: 29.01.1971

Gool Rustomji Lala Vs. Jal Rustomji Lala

Hon'ble Judges/Coram:

S.B. Bhasme, J.

Citation:  AIR 1972 BOM 113

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Whether family of son will inherit property of father if son murders his father?

 Therefore, once it is held that a person who has murdered his father or a person from whom he wants to inherit, stands totally disqualified. Section 27 of the Hindu Succession Act makes it further clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed as if such person had died before the intestate. That shows that a person who has murdered a person through whom he wants to inherit the property stands disqualified on that account. That means he will be deemed to have predeceased him. The effect of Section 25 read with Section 27 of the Hindu Succession Act, 1956 is that a murderer is totally disqualified to succeed to the estate of deceased. The framers of the Act in the objects and reasons have made a reference to the decision of the Privy Council that the murderer is not to be regarded as the stock of a fresh line of descent but should be regarded as non-existent. That means that a person who is guilty of committing the murder cannot be treated to have any relationship whatsoever with deceased's estate.

24. Now, adverting to the facts of the present case, the effect of Sections 25 and 27 is that the respondent No.1 cannot inherit any property of his father as he has murdered him on the principle of justice, equity and good conscience and the fresh stock of his line of descent ceased to exist in that case. Once the son is totally disinherited then his whole stock stands disinherited i.e. wife or son. The defendant-respondent No.1 son himself is totally disqualified by virtue of Sections 25 and 27 of the Hindu Succession Act and as such the wife can have no better claim in the property of the deceased, Ramasamy Konar.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4838 of 1999

Decided On: 06.05.2005

 Vellikannu Vs.  R. Singaperumal and Ors.

Hon'ble Judges/Coram:

Ashok Bhan and A.K. Mathur, JJ.

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Notes on Hindu succession Act 1956 as amended in the year 2005

S 3.Definitions:-

a) Agnate :One person is said to agnate of another if two are related by blood or adoption wholly through male.

c) Cognate:One person is said to Cognate of another if two are related by blood or adoption not wholly through male.

d)The expressions custom and usage signify any rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area,tribe,community,group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy;and

provided further that in the case of a rule applicable only to a family,it has not been discontinued by the family;

e) 1)Full blood: Same father, Same mother.

        Half blood: Same father,different mother.

2)Uterine blood :Same mother,different father.

f) heir: person entitled to inherit property of deceased.

g) intestate: person died without making will.

S 4. Overriding effect of Act: Any law or custom contrary to this Act shall cease to apply to Hindus.

S 5.Act not to apply to certain properties:-

1)This Act shall not apply to any property succession to which is regulated by Indian succession Act,by reason of S 21 of Special marriage Act.

Read IMP Judgments on HSA: Click here

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Whether members of joint family can claim interest in property if Hindu male has bequeathed it by execution of will ?

Section 30 of the Act, the extract of which has been

referred to above, permits the disposition by way of Will of a

male Hindu in a Mitakshara coparcenary property. The

significant fact which may be noticed is that while the

legislature was aware of the strict rule against alienation by

way of gift, it only relaxed the rule in favour of disposition by

way of a Will of a male Hindu in a Mitakshara coparcenary

property. Therefore, the law insofar as it applies to joint

family property governed by the Mitakshara school, prior to

the amendment of 2005, when a male Hindu dies after the

commencement of the Hindu Succession Act, 1956 leaving at

the time of his death an interest in Mitakshara coparcenary

property, his interest in the property will devolve by

survivorship upon the surviving members of the coparcenary.

An exception is contained in the explanation to Section 30 of

the Act making it clear that notwithstanding anything

contained in the Act, the interest of a male Hindu in

Mitakshara coparcenary property can be disposed of by him

by Will or any other testamentary disposition and in the given

facts and circumstances, the testator Patel Hanume Gowda

was indeed qualified to execute a Will bequeathing his

undivided share in the joint family properties by a Will

Exhibit D2

dated 16.6.1962.

8. The submission of the learned counsel for the appellants

in claiming independent share as a member of the family in

the joint family properties is without substance for the reason

that the appellants have no independent share in the joint

family properties and their share could be devolved in the

undivided share of the testator in the joint family properties

and since the testator has bequeathed his share/his

undivided coparcenary interest by Will dated 16.6.1962, no

further independent share could be claimed by the appellants

in the ancestral properties as a member of the family as

prayed for.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7092 OF 2010

RADHAMMA Vs H.N. MUDDUKRISHNA

Dated: January 23, 2019.

Rastogi, J.

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