Nature of the property under S.6 and 8 of HSA after the demise of the holder!

The conflicting decisions

In Uttam v. Saubhag Singh[1] (“Uttam case”), the Supreme Court held that upon demise of propositus ancestral property held by him and the other coparceners ceases to be joint family property. Recently, in Doddamuniyappa v. Muniswamy[2] (“Doddamuniyappa case”) Supreme Court took a contrary view and held that the father’s property upon his demise and inheritance by sons, acquires character of coparcenary property in their hands. On a detailed examination of provisions of Hindu Succession Act 1956 (for short “Act”) and various earlier judicial precedents, reasoning in the said two cases, appears to be flawed. The correct position of law seems to lie between the two extremes.

Hindu Succession Act 1956

The Act amended and codified the law relating to intestate succession among Hindus. Non obstante provision therein provided that 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.[3]  Therefore in case of doubt one should look to the Act and not to the un-amended Hindu Law.

Changed manner of devolution of interest in coparcenary property

Under un-amended Hindu Law, a Hindu male governed by Mitakshara school when succeeded to the property of his father, father's father or father's father's father, he took it as ancestral property and his son, son's son and son's son's son acquired an interest in it by birth.

Section 6 of the Act provided for devolution of interest in coparcenary property as under:

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not….”

In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum[4]considering the effect of proviso to section 6, the Supreme Court held:

“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. … 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 lifetime of the deceased.”

Change effected by proviso to section 6 is explained by the following authoritative text from Mulla, Principles of Hindu Law, 17th Edn., Vol. II, p. 250 quoted by Supreme Court in Anar Devi v. Parmeshwari Devi[5] (“Anar Devi case”):

“Explanation 1 defines the expression ‘the interest of the deceased in Mitakshara coparcenary property’ and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption.”

The court in Anar Devi case held:

“…for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.”

Devolution of separate property

Section 8 of the Act prescribes general rules of succession in the case of males as under:

“8. General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.”

In CWT v. Chander Sen,[6] (“Chander Sen case”) Supreme Court having considered conflicting decisions of various High Courts as to status of father’s self acquired property when inherited by his son under Section 8 of the Act, settled the position of law under:

“ In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to he excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to ‘amend’ the law, with that background the express language which excludes son's son but includes son of a predeceased son cannot be ignored.”

The position of law as aforesaid was reiterated by Supreme Court in CIT v. M. Karthikeyan[7] in following words:

“… the share obtained by the son is governed by Section 8 of Hindu Succession Act and therefore his separate property.”

Again in Makhan Singh v. Kulwant Singh[8], Supreme Court reiterated:

“… It is the admitted case before us that 11 marlas had been purchased by Dula Singh from his income as an employee of the Railways and it was therefore his self-acquired property. Such a property falling to his sons by succession could not be said to be the property of the joint Hindu family.”

The conflicting view in Uttam v. Saubhag Singh

In Uttam v. Saubhag Singh[9] (Uttam case), considering Chander Sen case and other decisions on point, the Supreme Court summarized the law applying to a Hindu governed by Mitakshara School, prior to the amendment of 2005 and held:

“On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants”. This summation as regards nature of property distributed in accordance with Section 8, is consistent with Chander Sen case. Applying the law to the facts of the case, in Uttam  case the Supreme Court found that on the death of propositus, a Hindu male in 1973 who survived by Class I female heir, proviso to section 6 of the Act applied. The court however held that the ancestral property in the hands of deceased propositus and the other coparceners, devolved by succession under Section 8 of the Act and consequently the ancestral property ceased to be joint family property on the date of death of propositus, the other coparceners and his widow held the property as tenants-in-common and not as joint tenants.

With due respect this understanding overlooks that  in case governed by the proviso to Section 6 of the Act, the interest of the deceased propositus in the coparcenary property only devolves by intestate succession under Section 8 and consequently ceases to be ancestral property. Such succession in relation to the interest of the deceased propositus would not change the nature of ancestral property in the hands of other surviving coparceners which would continue to remain ancestral property qua the sons, son’s son and son’s son’s son, of such surviving coparceners.

Irreconcilable view in Doddamuniyappa v. Muniswamy

In Doddamuniyappa v. Muniswamy[10] the court was dealing with a case where a Hindu male had purchased a property from his sister and thus constituted his separate property.  After his demise, the property was inherited by his sons. The Court held that upon inheritance by the sons the property acquired character of coparcenary property in their hands. The court relied on principle of un-amended Hindu Law that a person inheriting property from his three immediate paternal ancestors holds it, in coparcenary with his sons, sons' sons, and sons' sons' sons. Again with due respect, the decision overlooks the effect of section 8 of the Act and several earlier decisions of Supreme Court on the point referred supra.

Conclusion

Reconciling earlier decisions in Chander Sen case and Anar Devi case the position of law emerging is that in case of demise of a male Hindu governed by  Mitakshara School, any self acquired property in his hand will devolve on his Class-I legal heirs and constitute their separate properties.  In case the deceased held any ancestral properties, there would be notional partition wherein the share of the deceased immediately before his demise would be ascertained.  Such share would constitute separate property of the deceased and will devolve on his legal heirs under Section-8 and would constitute their separate property.  Ancestral property falling to the share of surviving co-parceners in the notional partition shall constitute ancestral property in their hands vis-a-vis their respective sons, sons’ sons, sons’ sons’ sons.  In this view, the rulings in Uttam case and Doddamuniyappa case need to be revisited.

• [1](2016) 4 SCC 68