Bombay High Court
Anna Yadaorao Sonwane And 4 Ors vs Mahadeorao Pandurang Nagrikar on 22 October, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:12265
J SA-389-2009.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.389 OF 2009
APPELLANTS : 1 Anna S/o. Yadeorao Sonwane,
Aged 41 years, occ. Decoration work
2 Gopala S/o. Yadeorao Sonwane,
Aged 48 years, occ. Decoration work
3 Smt. Gangabai Wd/o. Yadeorao
Sonwane,
Aged 67 years, occ. Nil (Deleted as per
Court order dated 07.06.2022)
4 Ku. Pramila D/o. Yadeorao Sonwane,
Aged 29 years, Occ. Labour
5. Smt. Radhika W/o. Chinduji Urkude,
Aged 32 years, Occ. Labour
All the appellants 1 to 4 are resident of
Budhwari Peth, Umred, District
Nagpur.
..VERSUS..
RESPONDENTS : 1 Mahadeorao S/o. Pandurang Nagrikar,
Aged 67 years, Occ. Agriculture,
resident of Itwari Peth, Umred, District
Nagpur.
Amended as per Hon'ble 1a Subhadra wd/o Mahadeorao Nagrikar,
Court Order dated
20.10.2022 Aged about 69 years, Occupation:- Not
known
1b Manoj s/o Mahadeorao Nagrikar,
aged About 44 years, Occupation:-
Agriculture
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1c Kishor Mahadeorao Nagrikar,
aged about 37 Years, Occupation:-
Agriculture
The respondent No.1a to 1c are
resident of Near Itwari Post Office,
Itwari Peth, Umred, District: Nagpur
1d Kunda W/o Arun Bande
aged about 42 years, Occupation:
Housewife Resident of Mahajanwadi,
Wanadongari behind Sutgirni, Tah
Hingana Dist- Nagpur.
1e Savita W/o Eknath Dalal,
aged about 40, Occ: Housewife
Resident of Sonamata Mandir, Lahan
Deoghar, Sirsi Tah: Umred Dist:
Nagpur.
1f Nitu W/o Vilas Nimje,
Age about 38 years, Resident of Purani
Machhisath sadakpatti, near Durga
Mata Temple Tah: Mouda Dist:
Nagpur.
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Mr P. A. Abhayankar, Advocate for Appellants.
Mr P. P. Pendke, Advocate for Respondents.
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CORAM : M. W. CHANDWANI, J.
RESERVED ON : 24th JULY, 2024.
PRONOUNCED ON : 22nd OCTOBER, 2024.
JUDGMENT
1. Heard.
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2. The ultimate question arising in this appeal is,
whether the property acquired by a Hindu male from his father
or forefather in succession by virtue of Section 8 of the Hindu
Succession Act, 1956 (hereinafter referred to as, “the Act of
1956”), is coparcenary property, wherein his sons and daughters
will get right by birth ?
3. The appellant Nos.1 and 2 are the sons and the
appellant Nos.4 and 5 are the daughters of deceased Yadeorao
Sonwane. There was a partition between Yadeorao and his
brother regarding their father’s property, which occurred after
their father’s death. The agricultural land bearing Gat No.28/4
admeasuring area 3.49 H.R. situated at Village Kawadasi
(Barad) fell in the share of Yadeorao. On 07.02.1988, deceased
Yadeorao purchased the agricultural land bearing Gat No.43/1
admeasuring area 1.40 H.R. and Gat No.45/3 admeasuring
area 0.51 H.R. from Laxmiparasad Hindriya and his son Pritim
Laxmiprasad Hindriya. The said agricultural land situated at
Narsala is renumbered as Gat No.64 admeasuring area 2.10
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H.R., which is the suit property. Deceased Mahadeorao
Nagrikar i.e. the original defendant – the father of the present
respondents purchased the suit property by registered sale-deed
dated 30.01.1996 for a consideration of Rs.2,26,000/-.
4. The case of the appellants before the Trial Court was
that the suit property is purchased out of the income of the
ancestral property of deceased Yadeorao and the appellants.
Yadeorao was addicted to liquor, gambled excessively and was
also a womanizer. Therefore, he started residing separately at
Gangapur. Despite there being no legal necessity of joint family,
Yadeorao sold the suit property to Mahadeorao Pandurang
Nagrikar. When the appellants came to know about this fact,
they issued a notice to the original defendant. Hence, a suit for
possession over the suit property alongwith a prayer asking for
1/6th share of the suit property apart from mesne profit was
filed against deceased Mahadeorao. The defence of deceased
Mahadeorao was that the suit property is self acquired property
of deceased Yadeorao.
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5. The Trial Court after hearing the suit on merits
decreed the suit of the appellants by holding that the nature of
the suit property is joint family property and it has been sold by
deceased Yadeorao without any legal necessity. The Trial Court
also held that each appellants have 1/6th share in the suit
property and they are entitled for possession over the suit
property. The decree passed by the Trial Court was carried in
appeal by deceased Mahadeorao before the District Judge,
Nagpur. The District Judge, Nagpur, reversed the findings of
the Trial Court and held that the suit property is self acquired
property of deceased Yadeorao, therefore, he had absolute right
to sell the suit property. Accordingly, the decree of the Trial
Court was set aside and the suit was dismissed. Being aggrieved
with the decision of the Appellate Court, the appellants, who
are the original plaintiffs, have filed this second appeal.
6. The appeal was admitted on the following substantial
questions of law :
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6“(1) Whether 1st Appellate Court was justified to
set aside the decree passed by the trial Court directing
partition amongst family members ?
(2) Whether transferer Yadavrao had legal
necessity to dispose of property in favour of
respondent ?”
7. Mr P. A. Abhayankar, learned counsel appearing on
behalf of the appellants submitted that the property of Survey
No.28/4 admeasuring area 3.49 H.R. situated at Kawadasi
(Barad), which was received by deceased Yadeorao in partition
between him and his brother in the year 1984, was ancestral
property. Out of the income of the agriculture land of Gat
No.28/4 admeasuring area 3.49 H.R. situated at Village
Kawadasi (Barad), deceased Yadeorao purchased the suit
property in his name. Therefore, suit property purchased from
joint family fund is joint family property of the appellants.
Yadeorao, behind the back of the appellants, sold the suit
property to Mahadeorao without any legal necessity of the joint
family. Therefore, the sale-deed dated 30.01.1996 executed by
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Yadeorao is not binding upon the appellants and they are
entitled for possession over the suit property. According to him,
the Trial Court has rightly held that the suit property was
ancestral property of the plaintiffs and determined 1/6 th share
of each of the plaintiffs in the suit property. According to him,
the Appellate Court failed to appreciate the fact that the suit
property received either through inheritance or from his father
or forefather would be considered as ancestral property in the
hands of the sons and daughters as per the principles of
coparcenary. According to the principle of coparcenary, the
coparceners are entitled to ancestral property by birth as per the
Hindu law. The decision of the Apex Court in the case of Rohit
Chauhan vs. Surinder Singh and Ors., AIR SC 3525, has been
relied upon, wherein the Apex Court has held in para 11 as
under :
“11. We have bestowed our consideration to the rival
submission and we find substance in the submission of Mr.
Rao. In our opinion, coparcenary property means the
property which consists of ancestral property and a
coparcener would mean a person who shares equally with
others in inheritance in the estate of common ancestor.
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8Coparcenary is a narrower body than the Joint Hindu
family and before commencement of Hindu Succession
(Amendment) Act, 2005, only male members of the family
used to acquire by birth an interest in the coparcenary
property. A coparcener has no definite share in the
coparcenary property but he has an undivided interest in it
and one has to bear in mind that it enlarges by deaths and
diminishes by births in the family. It is not static. We are
further of the opinion that so long, on partition an ancestral
property remains in the hand of a single person, it has to be
treated as a separate property and such a person shall be
entitled to dispose of the coparcenary property treating it to
be his separate property but if a son is subsequently born,
the alienation made before the birth cannot be questioned.
But, the moment a son is born, the property becomes a
coparcenary property and the son would acquire interest in
that and become a coparcener. The view which we have
taken finds support from a judgment of this Court in the
case of M. Yogendra v. Leelamma N., (2009) 15 SCC 184,
in which it has been held as follows :
29. It is now well settled in view of several decisions
of this Court that the property in the hands of a sole
coparcener allotted to him in partition shall be his
separate property for the same shall revive only when
a son is born to him. It is one thing to say that the
property remains a coparcenary property but it is
another thing to say that it revives. The distinction
between the two is absolutely clear and
unambiguous. In the case of former any sale or
alienation which has been done by the sole survivor
coparcener shall be valid whereas in the case of a
coparcener any alienation made by the karta would
be valid.”
8. Taking his argument further, Mr Abhayankar,
learned counsel for the appellants submitted that the
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agricultural land of Gat No.28/4 as well as the income from the
said agricultural land would belong to the joint family and
appellants have proved the nucleus fund for purchase of the
suit property. According to the learned counsel for the
appellants, the suit property was purchased in the name of
deceased Yadeorao, therefore, the suit property, which has been
purchased out of the income of the joint family property will
also become joint family property.
9. Next, learned counsel for the appellants would
submit that, in wake of judgment of the Hon’ble Apex Court in
the case of Rohit Chauhan (supra), the suit property is nothing
but ancestral property of the appellants. Particularly, appellant
Nos.1 and 2 have a right by birth being sons of deceased
Yadeorao. According to him, there is nothing on record to
suggest that deceased Yadeorao has sold the suit property due
to any legal necessity of the joint family, therefore, the finding
of the Appellate Court does not sustain in the eyes of law.
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10. The sum and substance of the argument of learned
counsel for the appellants is that the Trial Court has rightly
appreciated that the property received by a Hindu male in
partition shall be ancestral property for his sons. Therefore, the
appellants have interest in the suit property. Hence, he
submitted that the findings of the Appellate Court are
erroneous and are required to be set aside.
11. Per contra, Mr P. P. Pendke, learned counsel
appearing for the respondents would submit that the Appellate
Court, relying on the decision of the Hon’ble Apex Court in
the case of Bhanwar Singh vs. Puran and others, (2008) 3 SCC
87, has rightly held that the suit property is not ancestral
property of the appellants and it was self acquired property of
deceased Yadeorao. Next submission of the learned counsel for
the respondents is that burden of proof lies with the person
claiming the suit property to be coparcenary property to show
that there was sufficient nucleus fund with the joint family to
purchase the property. However, the appellants have failed to
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discharge this burden. Therefore, even if the suit property of
Gat No.28/4 is deemed as joint family or coparcenary property,
the appellants have failed to prove that the joint Hindu family
had possession of the nucleus i.e. the income from ancestral
property. Subsequently, the purchase of the suit property by
Yadeorao in his name constitutes as self-acquired property of
Yadeorao and not joint Hindu family property. Therefore, the
learned counsel appearing for the respondents sought rejection
of the appeal.
12. Having heard the learned counsels for the respective
parties and having gone through the record and judgments of
the Trial Court as well as the First Appellate Court, it transpires
that the Trial Court held that the agricultural land of Gat
No.28/4 that was received by Yadeorao was ancestral property,
and therefore, appellant Nos.1 and 2 being coparceners, have
an interest in the land and are in possession of the joint Hindu
family property. The fact that the appellants have a joint family
milk business proved the possession of nucleus funds for
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purchase of the suit property. Therefore, the suit property is
joint family property of the appellants and deceased Yadeorao.
As against this, the Appellate Court reversed the decree of the
Trial Court on the ground that the suit property received by
deceased Yadavrao in his share assumes the character of self-
acquired property as he inherited the same under Section 8 of
the Act of 1956.
13. Under uncodified Hindu Mitakshra School of law,
the interest of a Hindu male in coparcenary property used to
devolve upon surviving coparceners. Later, in year 1955-56,
the Hindu law came to be codified by different enactments.
Law regarding inheritance and succession of a Hindu is
codified by Hindu Succession Act, 1956. The Act, as its long
title states, is an Act to amend and codify the law relating to
intestate succession among Hindus. It is necessary to set out the
relevant provisions of the Act of 1956. Section 4 overrides the
Hindu Law in force immediately before the commencement of
this Act with respect to any matter for which a provision is
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made by the Act. Section 4 reads as follows:
“4. Overriding effect of Act.–Save as otherwise expressly
provided in this Act,–
(a) any text, rule or interpretation of Hindu Law or any
custom or usage as part of that law in force immediately
before the commencement of this Act, shall cease to have
effect with respect to any matter for which provision is
made in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions
contained in this Act.”
Section 6 prior to 2005 Amendment reads as follows:
“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
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14was entitled to claim partition or not.
Explanation 2.–Nothing contained in the proviso to this
section shall be construed as enabling a person who had
separated himself from the coparcenary before the death of
the deceased or any of his heirs to claim on intestacy a share
in the interest referred to therein.”
Section 6 post 2005 amendment reads as follows:
6. Devolution of interest in coparcenary property.―
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 2005), in a
Joint Hindu family governed by the Mitakshara law, the
daughter of a coparcener shall,―
(a) by birth become a coparcener in her own right the same
manner as the son;
(b) have the same rights in the coparcenery property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenery property as that of a son, and any reference to a
Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener: Provided that
nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any
partition or testamentary disposition of property which had
taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any
other law for the time being in force, as property capable of
being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 2005),
his interest in the property of a Joint Hindu family
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governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be,
under this Act and not by survivorship, and the
coparcenery property shall be deemed to have been divided
as if a partition had taken place and,―
(a) the daughter is allotted the same share as is allotted to a
son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may be.
Explanation. For the purposes of this sub-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.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), no court shall
recognise any right to proceed against a son, grandson or
great-grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the
ground of the pious obligation under the Hindu law, of
such son, grandson or great-grandson to discharge any such
debt:
Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 2005), nothing contained in this sub-
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(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of,
any such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act,
2005 (39 of 2005) had not been enacted.
Explanation. For ― the purposes of clause (a), the
expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as
the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 2005).
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December, 2004 Explanation. For the purposes of this ―
section “partition” means 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.”
14. The next important Section is Section 8, which reads
as follows:-
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;
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(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.”
THE SCHEDULE
Class I
Son; daughter; widow; mother; son of a pre-deceased son;
daughter of a pre- deceased son; son of a pre-deceased
daughter; daughter of a pre-deceased daughter; widow of a
pre- deceased son; son of a pre-deceased son of a pre-
deceased son; daughter of a pre-deceased son of a pre-
deceased son; widow of a pre-deceased son of a pre-
deceased son, son of a pre-deceased daughter of a pre-
deceased daughter; daughter of a pre- deceased daughter of
a pre-deceased daughter; daughter of a pre-deceased son of
a pre-deceased daughter; daughter of a pre- deceased
daughter of a pre-deceased son.”
15. Sections 19 and 30 of the Act of 1956 also carry
importance, which read as follows:-
“19. Mode of succession of two or more heirs.–If two or
more heirs succeed together to the property of an intestate,
they shall take the property,–
(a) save as otherwise expressly provided in this Act, per
capita and not per stripes; and
(b) as tenants-in-common and not as joint tenants.
30. Testamentary succession.– Any Hindu may dispose of
by will or other testamentary disposition any property,
which is capable of being so disposed of by him or by her, in
accordance with the provisions of the Indian Succession
Act, 1925 (39 of 1925), or any other law for the time being
in force and applicable to Hindus.
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Explanation.–The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of a
member of a tarwad, tavazhi, illom, kutumba or kavaru in
the property of the tarwad, tavazhi, illom, kutumba or
kavaru shall, notwithstanding anything contained in this
Act, or in any other law for the time being in force, be
deemed to be property capable of being disposed of by him
or by her within the meaning of this section.”
16. The Act brought about a sea of change in the matter
of inheritance and succession amongst Hindus. Section 4 of the
Act of 1956 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 a provision is made therein,
save as otherwise expressly provided. Section 6 of the Act of
1956, as it stood at the relevant time, provided for devolution
of interest in the coparcenary property. Section 8 of the Act of
1956 lays down the general rules of succession that the
property of a male dying intestate devolves according to the
provisions of the Chapter as specified in Clause (1) of the
Schedule. In the Schedule appended to the Act, natural sons
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and daughters are placed as Class I heirs but a grandson, so long
as father is alive, has not been included. Section 19 of the Act of
1956 provides that in the event of succession by two or more
heirs, they will take the property per capita and not per stripes,
as also tenants-in-common and not as joint tenants.
17. Thus, the position of law as regards coparcenary
property after the Act of 1956 came into force has undergone a
change. After 17th June 1956, if a male inherits property from
his ancestor by virtue of Section 8 of the Act of 1956, the said
property assumes the character of self-acquired property and
does not remain joint family property. Sons or daughters of the
said male will not get interest in the said property by birth.
18. Way back in the year 1984, the Hon’ble Apex Court
in the case of Commissioner of Wealth Tax, Kanpur etc. vs.
Chander Sen etc. AIR SC 1753 has held as under:
“19. It is necessary to bear in mind the Preamble to the
Hindu Succession Act, 1956. The Preamble states that it
was an Act to amend and codify the law relating to intestate
succession among Hindus.
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20. 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 be excluded under
section 8 to inherit, the latter would by applying the old
Hindu law get a right by birth of the said property contrary
to the scheme outlined in section 8. Furthermore as noted
by the Andhra Pradesh High Court that the Act makes it
clear by section 4 that one should look to the Act in case of
doubt and not to the 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 would be
HUF in his hand vis-a-vis his own son; that would amount
to creating two classes among the heirs mentioned in class I,
the male heirs in whose hands it will be joint Hindu family
property and vis-a-vis son and female heirs with respect to
whom no such concept could be applied or contemplated.
It may be mentioned that heirs in class I of Schedule under
section 8 of the Act included widow, mother, daughter of
predeceased son etc.
21. Before we conclude we may state that we have noted the
observations of Mulla’s Commentary on Hindu law 15th
Edn. dealing with section 6 of the Hindu Succession Act at
page 924-26 as well as Mayne’s on Hindu Law, 12th
Edition pages 918-919.
22. The express words of section 8 of The Hindu
Succession Act, 1956 cannot be ingorned and must prevail.
The preamble to the Act reiterates that the Act is, inter alia,
to ‘amend’ the law, with that background the express
language which excludes son’s son but included son of a
predeceased son cannot be ignored.”
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19. The view taken in Chander Sen (supra) is
consistently followed in the decisions of Yudhishter vs. Ashok
Kumar, (1987) 1 SCC 204 and Bhanwar Singh vs. Puran and
others, (2008) 3 SCC 87. Later in the year 2016, the Apex
Court in the decision of Uttam Vs. Saubhag Sing and others,
(2016) 4 SCC 68 postulated various contingencies which have
been summarized in para 18 of the said judgment, which is
reproduced here:
“18. Some other judgments were cited before us for the
proposition that joint family property continues as such
even with a sole surviving coparcener, and if a son is born
to such coparcener thereafter, the joint family property
continues as such, there being no hiatus merely by virtue of
the fact there is a sole surviving coparcener. Dharma
Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2
SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581,
and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419,
were cited for this purpose. None of these judgments would
take the appellant any further in view of the fact that in
none of them is there any consideration of the effect of
Sections 4, 8 and 19 of the Hindu Succession Act. The law,
therefore, insofar as it applies to joint family property
governed by the Mitakshara School, prior to the
amendment of 2005, could therefore be summarized as
follows:-
(i) When a male Hindu dies after the commencement of
the Hindu Succession Act, 1956, having at the time of his
death an interest in Mitakshara coparcenary property, his
interest in the property will devolve by survivorship uponTAMBE
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22the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section
30 Explanation of the Act, making it clear that
notwithstanding anything contained in the Act, the interest
of a male Hindu in Mitakshara coparcenary property is
property that can be disposed of by him by will or other
testamentary disposition.
(iii) A second exception engrafted on proposition (i) 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.
(iv) 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.
(v) 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.
(vi) 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.”
TAMBE
J SA-389-2009.odt
23
20. The decision of Rohit Chauhan (supra) relied upon
by the counsel for the appellants and other decisions of the
Apex Court on the line of decision in Rohit Chauhan (supra)
have been considered in the case of Uttam (supra). The Apex
Court has observed that in these decisions, Sections 4, 8 and 19
of the Act of 1956 were not considered. Therefore, the decision
in the case of Rohit Chauhan (supra) will not be helpful to the
appellants.
21. Evidently, the grandfather of appellant Nos.1, 2, 4
and 5 died in the year 1983 after the commencement of the Act
of 1956 and thereafter, deceased Yadeorao alongwith his
brother received the property of Gat No.28/4 in succession by
virtue of Section 8 of the Act of 1956. Therefore, the suit
property received by deceased Yadeorao in succession
alongwith his brother assumes the character of self-acquired
property and does not remain coparcenary property.
Consequently, the appellant Nos.1 and 2, the sons of deceased
Yadeorao, will not get any interest in the suit property by birth.
TAMBE
J SA-389-2009.odt
24
Having held so, even if the case of the appellants, that the suit
property is purchased out of the income of the agricultural land
of Gat No.28/4 is accepted, the suit property cannot become
joint family property or ancestral property, but it was self-
acquired property of Yadeorao.
22. To conclude, the Appellate Court was justified in
setting the decree passed by the Trial Court directing partition
of the suit property amongst the family members aside. The
substantial question of law No.1 is answered accordingly.
23. In wake of the answer to substantial question of law
No.1, question No.2 does not survive. Accordingly, the appeal
fails and the same is dismissed.
(M. W. CHANDWANI, J.)
Signed by: Mr. Ashish Tambe
TAMBE
Designation: PA To Honourable Judge
Date: 08/11/2024 15:17:06