UTTAM V. SAUBHAG SINGH (2016) 4 SCC 68 

FACTS OF THE CASE 

In the present case, The Jagannath Singh had died in the year 1973, leaving behind his four sons  and widow wife covered by Class I heirs in property. The properties had devolved upon them  when succession had opened on the death of Jagannath. It had also been found proved that no  partition had taken place between four sons.  

The appellant who is the grandson of Jagannath claimed a 1/8th share in the suit property on the  footing that the suit property was ancestral property, and that, being a coparcener, he had a right  by birth in the said property in accordance with the Mitakshara Law. But the grand-son was no  birth right in the properties of grand-father and he cannot claim partition during lifetime of his  father Mohan Singh. 

ISSUE IN THE CASE 

1) Whether the joint family property retained its character as joint family property after the death  of Jagannath Singh? 

2) Whether the appellant being a coparcener, had a right in the disputed property by birth? 3) Whether the appellant had a right to sue for partition while his father (Class 1 heir) was alive? ARGUMENTS 

Shri Sushil Kumar Jain, learned senior advocate appearing on behalf of the appellant, took us  through various provisions of the Hindu Succession Act, and through several judgments of this 

Court, and contended that Section 6, prior to its amendment in 2005, would govern the facts of this case.  

1. He conceded that as Jagannath Singh’s widow was alive in 1973 at the time of his death, the  case would be governed by the proviso to Section 6. 

2. The interest of the deceased in the Mitakshara coparcenary property would devolve by  intestate succession under Section 8 of the said Act.  

However, he argued that it is only the interest of the deceased in such coparcenary property that  would devolve by intestate succession, leaving the joint family property otherwise intact. This  being the case, the plaintiff had every right to sue for partition while his father was still alive,  inasmuch as, being a coparcener and having a right of partition in the joint family property. 

Shri Niraj Sharma, learned counsel appearing on behalf of the respondents, countered these  submissions, and also referred to various provisions of the Hindu Succession Act and various  judgments of this Court to buttress his submission that once Section 8 gets applied by reason of  the application of the proviso to Section 6, the joint family property ceases to be joint family  property thereafter, and can only be succeeded to by application of either Section 30 or Section  8. 

Section 30 applying in case a will had been made and Section 8 applying in case a member of the  joint family dies intestate. therefore, He supported the judgment of the High Court and strongly  relied upon two judgments in particular, namely Commissioner of Wealth Tax, Kanpur and  Others v. Chander Sen and Others, (1986) 3 SCC 567, and Bhanwar Singh v. Puran, (2008)  3 SCC 87, to buttress his submission that once Section 8 is applied to the facts of a given case,  the property thereafter ceases to be joint family property and this being the case, no right to  partition a property which is no longer joint family property, continues to subsist in any member  of the coparcener. 

JUDGEMENT 

The present appeal is by the plaintiff who filed a suit for partition before the Second Civil Judge,  Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened  to be his father and his father’s three brothers. He claimed a 1/8th share in the suit property on  the footing that the suit property was ancestral property, and that, being a coparcener, he had a  right by birth in the said property in accordance with the Mitakshara Law.  

A joint written statement was filed by all four brothers, including the plaintiff’s father, claiming  that the suit property was not ancestral property and that an earlier partition had taken place by  which the plaintiff’s father had become separate. The trial court, by its order dated 20.12.2000  decreed the plaintiff’s suit holding that it was admitted by Mangilal that the property was indeed  ancestral property, and that, on the evidence, there was no earlier partition of the said property,  as pleaded by the defendants in their written statements.

The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the  property was ancestral and that no earlier partition between the brothers had in fact taken place.  However, it held that the plaintiff’s grandfather, one Jagannath Singh having died in 1973, his  widow Mainabai being alive at the time of his death, the said Jagannath Singh’s share would  have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the  said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint  family property has to be divided in accordance with rules of intestacy and not survivorship.  

In view of the aforesaid, the substantial questions of law are answered against the appellant by  holding that the first appellate court has committed no error in dismissing the suit for partition  filed by the appellant referring to Section 8 of the Act and holding that during the lifetime of  Mohan Singh, the appellant has no right to get the suit property partitioned. 

CONCLUSION 

On application of the principles contained in the aforesaid decisions, it becomes clear that, on the  death of Jagannath Singh in 1973, the proviso to Section 6 would apply, the said Section, a  partition must be said to have been affected by operation of law immediately before his death.  This being the case, it is clear that the plaintiff would be entitled to a share on this partition  taking place in 1973 but the plaintiff was born only in 1977 and that for this reason no such  share could be allotted to him. 

The exception engrafted on proposition is contained in the proviso to Section 6, which states that  if such a male Hindu had died leaving behind a female relative specified in Class I of the  Schedule or a male relative specified in that Class who claims through such female relative  surviving him, then the interest of the deceased in the coparcenary property would devolve by  testamentary or intestate succession, and not by survivorship. In order to determine the share of  the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by  operation of law immediately before his death. In this partition, all the coparceners and the male  Hindu’s widow get a share in the joint family property.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. 

Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973,  the joint family property which was ancestral property in the hands of Jagannath Singh and the  other coparceners, devolved by succession under Section 8 of the Act. This being the case, the  ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and  the other coparceners and his widow held the property as tenants in common and not as joint  tenants. This being the case, on the date of the birth of the appellant in 1977 they said ancestral 

property, not being joint family property, the suit for partition of such property would not be  maintainable. The appeal is consequently dismissed with no order as to costs. 

REFERENCES

https://indiankanoon.org/doc/21722097/ 

https://lawplanet.in 

This Article is written by Sachin Chopade from Dr. Babasaheb Ambedkar Marathwada  University of Aurangabad, Maharashtra. Intern at Legal Vidhiya.

Admin