Madras High Court
Vasumathi vs R.Vasudevan on 8 November, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
S.A.No.527 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.08.2024
Pronounced on : 08.11.2024
CORAM : JUSTICE N.SESHASAYEE
S.A.No.527 of 2022
and CMP.No.10560 of 2022
1.Vasumathi
2.Malathi .. Plaintiffs / Respondents / Appellants
Vs
1.R.Vasudevan
2.A.Ravi
3.Saravanakumar .. Defendants / Appellants / Respondents
Prayer : Second Appeal filed under Section 100 of Code of Civil Procedure,
1908 praying to set aside the judgment and decree dated 21.04.2022 passed by
the I Additional District Judge at Coimbatore in A.S.No.57 of 2021 reversing
the judgment and decree dated 01.08.2012 passed by the Principal
Subordinate Judge at Coimbatore in O.S.No.505 of 2008.
For Appellants : Mr.Sharath Chandran
For Respondents : Mr.S.Silambannan, Senior Advocate
for Mr.K.Vasanthanayagan
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JUDGMENT
1. This second appeal is preferred by the plaintiffs in O.S. No.505 of 2008.
The suit is laid for partition of one item of immovable property. Broadly, it is
the daughters’ suit for partition against their father and brothers claiming a
share in the ancestral property as coparceners. They were successful before
the trial Court, and obtained a preliminary decree for partition of 1/5 share
each in the suit property, whereas before the first Appellate Court in
A.S.No.57 of 2021, which the defendants had preferred, the plaintiffs suffered
a reversal of fortune and lost their suit. Hence, this appeal. Parties would
now be referred to by their rank before the trial Court.
Facts :
2.1 The quintessential facts disclosed in the pleadings are:
a) The first defendant is the father of defendants 2 and 3 and also the
plaintiffs. While the plaintiffs are his daughters, the defendants 2
and 3 are the sons of the first defendant.
b) The suit property came to be allotted to the share of the first
defendant in a partition between him and his brother vide Ext.A1
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S.A.No.527 of 2022dated 01.09.1986.
c) Contending that the properties allotted to the first defendant under
Ext.A1 partition are ancestral in character, the plaintiffs claim that
they are also coparceners along with their father, the first defendant,
and their two brothers, defendants 1 and 2, in terms of amendment to
Section 6 of Hindu Succession Act vide Central Act 39 of 2005, and
demand 1/5 share each in the suit properties.
2.2(a) Defendants 2 and 3 in the present suit (O.S.505 of 2008), on their part
had instituted O.S.484 of 2011 against the plaintiffs herein, for restraining the
latter with a decree of prohibitory injunction from interfering with their
possession. They claimed title based on settlement deeds, dated 22.08.2008
(marked Exts.B1 and B2) executed by the first defendant, barely few days
before the institution of O.S.505 of 2008 on 01.09.2008.
2.2(b) This suit for injunction was contested by the present plaintiffs on the
ground that the first defendant herein was not the absolute owner of the
property, and that these plaintiffs have 1/5th share each in the suit property and
that their father (first defendant in O.S.505 of 2008) did not have any right to
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convey the plaintiffs’ share through any settlement deed, and that the said
documents themselves have been executed by the first defendant after the
plaintiffs had issued their suit notice demanding partition. They are sham as
they intended to defeat the right, title and interest of the plaintiffs in the suit
property.
3.1 Both the suits were jointly tried, and evidence was recorded in O.S.505 of
2008. During trial, for the plaintiffs, second plaintiff was examined as P.W.1
and she had produced Exts. A1 to A5. For the defendants, the second
defendant examined himself as D.W.1 and he had produced Exts.B1 and B2,
the separate settlement deeds which the first defendant had executed in favour
of defendants 2 and 3.
3.2 On appreciating the facts and evidence before it in the context of amended
Sec.6 of the H.S. Act, the trial court proceeded to decree the suit in O.S.505 of
2008 and dismissed O.S.484 of 2011. Aggrieved by the same, the defendants
in the partition suit preferred a first appeal in A.S. No.57 of 2021 on the file of
the I Additional District Court, Coimbatore. The decree passed in O.S.484 of
2011 was not challenged and it appears to have attained finality. The first
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appellate court however, reversed the finding of the trial court and dismissed
the suit, and hence the plaintiffs are before the Court in this appeal.
4. The appeal is admitted for considering the following substantial questions
of law:
1. Whether the judgment of the first appellate Court suffers
from grave and manifest perversity as it has misconstrued
the effect and terms of the partition deed Ex.A1 to hold
that the suit property was not ancestral in character?
2. In the light of the decisions of the Supreme Court in
Shyam Narayan Prasad Vs. Krishna Prasad [(2018) 7
SCC 646] and Vineeta Sharma Vs. Rakesh Sarma
[(2020) 6 SCC 1], whether the suit property is liable to
division amongst the appellants, respondents 2 and 3 and
their father the 1st respondent?
3. In the light of the recitals in Ex.A1, whether the first
appellate Court has miscast the onus of proof on the
appellants thereby vitiating its judgment in the light of the
law laid down by the Supreme Court in Rangammal Vs.
Kuppuswamy [2011 12 SCC 220]?
4. In the view of the decision of this Hon’ble Court in
M.Krishnamurthy Vs Pandeepankar [2017 (3) CTC5/54
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S.A.No.527 of 2022170], whether the first appellate Court has committed a
manifest error in holding that the ancestral properties
allotted to the first respondent under Ex.A1, would be his
self-acquisitions?
5. Whether the impugned judgment is vitiated on account of
a material irregularity flowing from a violation of the
mandate of Order XLI Rule 31 of the Code in the light of
the decision of this Hon’ble Court in K.Sundararaj Vs.
R.Chellamuthu [(2015) 2 Mad LJ 575] ?
5. Heard Thiru. Sharath Chandran, learned counsel for the appellants and
Thiru. S.Silambannan for the respondents. Mr.Sharath Chandran, learned
counsel for the plaintiffs/appellants submitted:
a) Ext. A1 forms the source of title for the first defendant, and so is it
for the plaintiffs. In Ext.A1, the first defendant, his brother
Kothandapani, and their four sisters make a joint statement that the
properties dealt with thereunder are their ancestral property. Indeed
Ext.A1 recites that a certain Rangasamy Chettiar had possessed
ancestral properties, and that he had also purchased two items of
immovable properties, and that all the properties which Rangasamy
Chettiar had held were treated as ancestral properties. This was
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S.A.No.527 of 2022admitted by all his six children (of whom the first defendant and his
brother Kothandapani were his sons, and the rest are his four
daughters) in the recital to Ext.A1. Here, the first appellate court
has allowed an error to influence its line of reasoning by opting to
read only part of the recital in Ext.A1 and omitting to read a critical
portion thereof. This selective reading of Ext.A1 has led the first
appellate court to a wrong conclusion.
b) Secondly, inasmuch as the parties to Ext.A1 had conceded that the
property that had been partitioned thereunder is an ancestral
property, it binds them. Indeed, the first defendant, as a party to
Ext.A1 is estopped from challenging it. A recital to a document may
not be conclusive, and can be explained. However, the first
defendant did not offer to explain it, except making a counter
allegation in the written statement that the share he had obtained
under Ext.A1 was his personal property. Pleadings hardly takes the
role of proof, and here, the first defendant did not testify before the
Court to establish that the recitals in Ext.A1 about the ancestral-
nature of the property, to which he had subscribed himself to
voluntarily and willingly, were either false or that it had not been
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acted upon. When the defendants challenge the intent and purport of
the recital in Ext.A1, and the first defendant having lent his approval
to it when Ext.A1 was executed, he was the most competent witness
to prove the contrary, as he believes in the contrary.
6. Per contra, Thiru.Silambannan argued that Rangasamy Chettiar had
purchased three items of properties between 1943 and 1946, and he had two
sons namely the first defendant and Kothandapani, and four daughters and
they are Rajalakshmi, Saraswathi, Kannammal and Thirupurasundari. After
the death of Rangasamy Chettiar, all his six children had entered into Ext.A1
partition, dated 01.09.1986. In the context of the contention that the properties
are ancestral properties, two possible consequences flow out of Ext.A1.
Firstly, if they are ancestral properties, then by virtue of notional partition,
which law effects on the demise of Rangasamy Chettiar, his daughters would
be entitled to a share each, and indeed this has been recognised in Ext.A1.
When a notional partition takes place it effects a partition not only vertically
but also horizontally. This implies that the share which the first defendant had
obtained under Ext.A1 could only be his personal property and it cannot retain
the character of ancestral properties. Alternatively, it is an admitted fact that
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Rangasamy Chettiar had purchased two items of properties between 1943 and
1946 which Ext.A1 itself recites and hence when Rangasamy Chettiar died
leaving behind his daughters, necessarily under Sec.8 of the Hindu Succession
Act his properties will devolve on all his heirs equally, and the share which
his sons obtained, will therefore, retain the character of their personal
properties and not ancestral properties. Reliance was placed on the ratio in
Arshnoor Singh Vs Harpal Jaur [2019 (5) CTC 110) and Uttam Vs Saubhag
Singh [(2016) 4 SCC 68].
7. Replying the same, Mr. Sharath Chandran argued that the argument of the
defendants’ counsel overlooks the fact that the recital to Ext.A1 states that
besides the properties which Rangasamy Chettiar had purchased between
1943 and 1946, he had also possessed ancestral properties, and Ext.A1
describes all these properties taken as a whole as ancestral properties.
Secondly, the dictum that a notional partition will effect vertical and
horizontal division of entire ancestral properties as was held by the Hon’ble
Supreme Court in Uttam case (and even earlier in Gurupad Khandappa
Magdum Vs Hirabai Khandappa Magdum & Others, (1978) 3 SCC 383)
may no longer be good law in view of the ratio in Vineeta Sharma Vs Rakesh
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Sharma [(2020) 6 SCC 1].
DISCUSSION & DECISION
8. The learned counsel for the appellants/plaintiffs is correct in his
submissions when he submitted that Ext.A1 recites not only about the two
properties which Rangasamy Chettiar had purchased in 1943 and 1946, but
also about certain ancestral properties, even though the details of the ancestral
properties that he possessed were not specifically recited in the said
document. As to how these recitals in Ext.A1 are to be understood, and how
far they enable the sustenance of rival submissions, and which among the two
opposing contentions will eventually prevail over the other will be the subject
of discussion to follow. Now, it is time to introduce the very recitals in
Ext.A1, and they read:
@eh’;fs; ,e;J mtpgf;j FLk;gj;ijr; nrh;;e;j rnfhju
rnfhjhpfs; Mnthk;/ ekJ jfg;gdhUf;F //// ///// ///// kw;Wk;
gpJuh$pjkhd tPL tifauh brhj;Jf;fisa[k; ekJ
jfg;gdhh; mDgtpj;J te;Jk; mth; fhyk; brd;wgpd;
brhj;Jf;fis ehk; bghJthf Vf FLk;gkhf mDgtpj;J
tUfpnwhk;/ ,dpnky; bfhz;Lk; eh';fs; bghJthf
mDgtpj;J tUtJ rhpg;glhjjdhy; FLk;g ed;ikia
cj;njrpj;J mtuth;fs; jdpj;jdpahf ghfk; bra;Jbfhs;s
jPh;khdpj;J v’;fs; FLk;gj;jpy; mf;fiu bfhz;l
g”;rhaj;jhuh;fis itj;Jg;ngrp g”;rhaj;jhh;fs;
igry;gof;F Kot[ bra;J rk;kjpj;J ,jpy; fz;lgo ghfk;10/54
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S.A.No.527 of 2022bra;Jbfhz;Ls;nshk;/ mjd;go brhj;Jf;fis V. gp. rp
bc&l;a{y;fshfg; gphpj;Jf;bfhz;Ls;nshk;/ mjd;go V bc&l;a{y;
brhj;Jf;fis 1 yf;fkpl;l Mh;/nfhjz;lghzpa[k;. gp
bc&l;a{ypy; fz;l brhj;Jf;fis 2 yf;fkpl;l
Mh;/thRnjtDk;. rp bc&l;a{ypy; fz;l brhj;Jf;fis 3
Kjy; 6 yf;fkpl;l bgz; kf;fs; R.uh$yc&;kp. R.ru!;tjp
jfg;gdhhpd; bghJf;FLk;g brhj;jpy; ve;j tpjkhd ghfk;
bgwhky; bghJ FLk;g epjpapypUe;J jyh U:/5000 tPjKk;
Jif bgw;Wf;bfhz;Lk; cs;shh;fs;/ bgz; kf;fSf;F V. gp
bc&l;a{ypy; fz;l brhj;Jf;fspy; ve;jtpjkhd ghfKk;
Vw;gLj;jtpy;iy/@Translated to English the recital would read: other than the two items of
properties which Rangasamy Chettiar had purchased, he also had ancestral
properties, and that after his death the parties to the document had been
enjoying the same as common properties of the family. The second part of
this document states that the four sisters of the first defendant had taken only
Rs.5,000/- and not any share in the property dealt with thereunder.
9. The recital in Ext.A1 apparently reflects that the parties to Ext.A1 had
treated both these properties as one integrated property and did not opt to
differentiate the self-acquired properties of Rangasamy Chettiar and the
ancestral properties in his hands as two separate class of properties. What is
significant in the context of construction of Ext.A1 is that, in terms of the
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classical principles of Hindu law, a self-acquired property of a coparcener
may blend and integrate with the ancestral property, and once it is done, it will
shed its identity as a self-acquisition and will assume the character of an
ancestral property. The plaintiffs/appellants have structured their contention
right on this premise, and have come up with a straightforward strategy: When
the words which the parties to Ext.A1 employed therein to describe the
property that they chose to divide thereunder disclose their intent to treat the
entire property as an ancestral property in the hands of Rangasamy Chettiar,
then unless it is proved to be engineered by fraud, misrepresentation, or
plainly false, they bind them. Necessarily, the first defendant would then be
estopped from resiling from his stated position as to the description of the
property as an ancestral property, since he had consciously subscribed to that
idea. This argument poses no difficulty for this Court to appreciate and the
substantial question No.1 is answered in favour of the plaintiffs.
10.1 Evaluating the contentions to the contra made by the
defendants/respondents, however, requires greater attention, as they are
layered and veiled.
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10.2 If the defendants’ case is examined under a forensic scanner, it reveals
that its sustainability could be derived from their well-concealed supposition
that Rangasamy Chettiar held the properties covered under Ext.A1 only as
ancestral properties. The fact that they relied on the dictum in Uttam case
(where the Supreme Court has held that a notional partition under Proviso to
Sec.6 read alongside Explanation I thereto will effect a vertical and horizontal
division of the properties which the coparcenary held), spotlights this under
current supposition of the defendants.
10.3 That however, depends on when Rangasamy Chettiar had died. It was
not disclosed anywhere, including in Ext.A1 or Exts.B1 and B2. However,
both sides made a joint statement that Rangasamy Chettiar had died in 1962.
This Court chooses to act on this joint statement and reckons that Rangasamy
Chettiar had died in 1962, for it is a statement on an aspect of fact merely, on
which there is an agreement between both the sides. (And being an admitted
fact, it does not require any proof.)
11. This Court has two facts now: (a) that the property dealt with under
Ext.A1 was the ancestral property; and (b) that Rangasamy Chettiar had died
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in 1962. And, how they will benefit the defendants’ line of arguments will be
seen later. First, to the application of doctrine of estoppel as regards the
recitals in Ext.A1, which forms the core of the plaintiffs’ case.
On Estoppel – Plaintiffs’ Strategy
12. Turning to the merit of the plaintiffs’ arguments, their strategy is to pin
down the first defendant to the recital in Ext.A1. In Spencer and Bower on
‘Reliance Based Estoppel’, (Bloomsbury, 5th Edition, pp-326-363), it has been
pointed out that the view of Lord Coke and his contemporaries that “neither
doth a recital conclude because it has no direct affirmation” has been rejected
by subsequent authority. The learned authors point out that the recitals of a
deed can imply an agreement as to a fact which can be a source of estoppel.
An example of this is the decision of Patteson. J, in Stroughill Vs Buck
[(1850) 14 QB 781], wherein he observed thus:
“When a recital is intended to be a statement which all the
parties to the deed have mutually agreed to admit as true, it is
an estoppel upon all. But, when it is intended to be the
statement of one party only, the estoppel is confined to that
party, and the intention is to be gathered from construing the
instrument.”14/54
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S.A.No.527 of 2022In Horton Vs Westminster Improvement Commisioners [(1852) 7 Exch 780],
the rule of estoppel was explained thus:
“The meaning of estoppel is this—that the parties agreed, for
the purpose of a particular transaction, to state certain facts
as true; and that, so far as regards that transaction, there
shall be no question about them.”The later decisions, however, placed the matter on a sounder footing. In
Young Vs Raincock [7 C. B. 310, 338], Coltman J. said:
“Where it can be collected from the deed, that the parties to it
have agreed upon a certain admitted state of facts as the basis on
which they contract, the statementof those facts, though but in the
way of recital, shall estop the parties to aver the contrary.”In Greer Vs Kettle [1938 A.C 156], the House of Lords expounded the
principle behind what is now commonly alluded to as “Estoppel by deed”.
Speaking for the House, Viscount Maugham, LC, said:
“Estoppel by deed is a rule of evidence founded on the principle
that a solemn and unambiguous statement or engagement in a
deed must be taken as binding between parties and privies and
therefore as not admitting any contradictory proof. It is
important to observe that this is a rule of common law, though it
may be noted that an exception arises when the deed is
fraudulent or illegal.”15/54
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S.A.No.527 of 2022But the first defendant has neither troubled the plaintiffs, nor this Court, as he
did not choose to plead or prove that the recital as to the character of the
property in Ext.A1 is fraudulent or illegal, or at least false.
13. The first round of this litigious battle belonged to the plaintiffs, but it is
not the end game as yet. The Court still has to evaluate the merit of the case of
the defendants as to the character of the property which the first defendant had
obtained. Indeed, even part of substantial questions 2 and 4 which have been
raised in this appeal seek answers here.
Over to Defendants’ case
14. When Rangasamy Chettiar died in 1962, in terms of Proviso to Sec.6 read
with Explanation I thereof, a notional partition took place, which implied that
Rangasamy Chettiar was posthumously allotted 1/3rd share in the entire
ancestral property. And this 1/3rd share of Rangasamy Chettiar had devolved
on his two sons and four daughters equally, and accordingly, each of his
children became entitled to 1/18th share each. This implies that both the sons
of Rangasamy Chettiar (which included the first defendant) had their
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undivided 2/3rd share in the ancestral property plus 1/18th share each to which
they had succeeded to by telescoping the operation of Sec.8 of the H.S.Act
into Sec.6 of the Act. And, in Ext.A1 partition, none of the daughters pressed
for their share in the property to the extent of their respective 1/18th share.
Instead, they settled for Rs.5,000/-each.
15. The theme of the defendants’ argument has been that in terms of the ratio
in Uttam Vs Saubhag Singh [(2016) 4 SCC 68], when notional partition took
place to vest Rangasamy Chettiar with an undivided 1/3rd share in the ancestral
property, it destroys the entire coparcenery, and disintegrates the ancestral
property which the coparcenery had held both vertically and horizontally, and
therefore, no ancestral property could thereafter be created when Ext.A1 was
executed. This is the first layer. When the children of Rangasamy Chettiar,
(which included his two sons and four daughters) succeeded to the undivided
1/3rd share notionally allotted to him, each of them took 1/18th share in it.
Ascertaining the character of this share is the second layer. And, Ext.A1
shows that none of the four daughters of Rangasamy Chettiar had opted to
enforce their right to seek partition of their respective 1/18th share. Understanding
its effect will constitute the third layer of the defendants’ arguments.
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The H.S.Act Implications on Coparcenery & Ancestral Property
16. In this segment, law is discussed to ascertain the character of the
undivided 2/3rd share that remained with the first defendant and his brother
Kothandapani after the allotment of 1/3rd share towards the share of
Rangasamy Chettiar notionally under Sec.6 of the H.S.Act.
17. The two major implications which the H.S.Act has managed to engage the
Courts since its enactment, is on the perceived legislative intent to interfere
with the fundamentals which characterize the Hindu law conceptualization of
the right to property: (a) how far the notional partition as envisaged in Sec.6
of the Act, as it was originally enacted, has affected the rest of the
coparcenery among the surviving coparceners as well as the remainder of the
ancestral property which they hold; and (b) how to understand the character of
the property which a son takes in the estate of a male Hindu dying intestate? It
relates not only to the self-acquisitions or individual property of a male
Hindu, but also the property allotted notionally to a deceased male Hindu
having an interest in the ancestral property which the coparcenery to which he
belonged holds. This aspect pertains to the effect which Sec.8 of the Act
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brings to the table. The answers to points (a) and (b) will address the issues
involved in the first and the second layers of the defendants’ case
respectively.
Effect of Notional Partition – Judicial Views
18. Whether a notional partition under Sec.6 of the H.S.Act, as it was then,
effect both vertical as well as horizontal partition and destroy the entire
coparcenery even as between the surviving coparceners? In Gurupad
Khandappa Magdum Vs Hirabai Khandappa Magdum & Others [(1978) 3
SCC 383] the Supreme Court held it to be so, which conclusion was later
echoed in Uttam Vs Saubhag Singh & others [(2016) 4 SCC 68] by a two
Judges bench, though on a different line of reasoning. In Gurupad case
[(1978) 3 SCC 383], a three Judges bench of the Supreme Court, presided by
the then Chief Justice had held:
“13. ….To make the assumption at the initial stage for the limited
purpose of ascertaining the share of the deceased and then to
ignore it for calculating the quantum of the share of the heirs is
truly to permit one’s imagination to boggle. All the
consequences which flow from a real partition have to be
logically worked out, which means that the share of the heirs
must be ascertained on the basis that they had separated from
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S.A.No.527 of 2022had taken place during the lifetime of the deceased. The
allotment of this share is not a processual step devised merely
for the purpose of working out some other conclusion. It has to
be treated and accepted as a concrete reality, something that
cannot be recalled just as a share allotted to a coparcener in an
actual partition cannot generally be recalled.”In Uttam case, a two Judges bench of the Supreme the Court was required to
resolve an issue involving the claim of a grandson by birth to the share that
came to be allotted under a notional partition to his grandfather upon the
latter’s demise. Since Proviso to Sec.6 provides that a share allottable to a
deceased coparcener under a notional partition is governed by rules of
intestate succession under Sec.8 of the Hindu Succession Act, the Court
negated the claim. Reading Sec.8 in conjunction with Sec.4 and Sec.30 of the
Hindu Succession Act, the Court proceeded inter alia to declare:
“18. (i) to (iii) …… …… …… …… …… ….. …..
(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
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S.A.No.527 of 2022of 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 Section 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.”
The dictum in both Gurupad case and Uttam case, in effect has equated a
notional partition, which to repeat, is only a statutory contrivance that impacts
the coparcenery property upon the demise of a coparcener, to an actual
partition among all the coparceners though on different line of reasoning.
Between these two decisions of the Supreme Court, in State of Maharashtra
Vs Narayan Rao Sham Rao Deshmukh & Others [(1985) 2 SCC 321] a three
Judges bench of the Supreme Court distinguished Gurupad view and differed
from it. However, when Uttam case arrived in the scene, it in effect
reinstated the conclusion in Gurupad case, and with it the issue once again
came alive and the law was eventually reset by another three Judges bench of
the Supreme Court in Vineeta Sharma Vs Rakesh Sharma [(2020) 9 SCC 1]
[which followed an earlier two judges judgement in Danamma alias Suman
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Sirpur & another Vs Amar & Others, (2018) 3 SCC 343, which in turn relied
on the ratio of an earlier two Judges bench in Anardevi & Others Vs
Paremeshwari Devi & Others, (2006) 8 SCC 656]. In Vineeta Sharma case
the Court held:
“103. The only question involved in the aforesaid matter was with
respect to the Explanation of Section 6 and the determination of
the widow’s share. In that case, the question was not of fluctuation
in the coparcenary body by a legal provision or otherwise.
Everything remained static. No doubt about it, the share of the
deceased has to be worked out as per the statutory fiction of
partition created. However, in case of change of body of the
coparceners by a legal provision or otherwise, unless and until the
actual partition is finally worked out, rights have to be recognised
as they exist at the time of the final decree. It is only the share of
the deceased coparcener, and his heirs are ascertained under the
Explanation to Section 6 and not that of other coparceners, which
keep on changing with birth and death.
109. When the proviso to unamended Section 6 of the 1956 Act
came into operation and the share of the deceased coparcener was
required to be ascertained, a deemed partition was assumed in the
lifetime of the deceased immediately before his death. Such a
concept of notional partition was employed so as to give effect to
Explanation to Section 6. The fiction of notional partition was
meant for an aforesaid specific purpose. It was not to bring about
the real partition. Neither did it affect the severance of interest22/54
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S.A.No.527 of 2022nor demarcated the interest of surviving coparceners or of the
other family members, if any, entitled to a share in the event of
partition but could not have claimed it. The entire partition of the
coparcenary is not provided by deemed fiction; otherwise,
coparcenary could not have continued which is by birth, and the
death of one coparcener would have brought an end to it. Legal
fiction is only for a purpose it serves, and it cannot be extended
beyond.”
19.1 While Vineeta Sharma dictum may offer a ready-reckoner solution, still
its ratio can be explained as a product of the fusion of traditional Hindu law
and its legislative variant in the Hindu Succession Act. It is now explained:
a) The Constitution has granted fundamental right to equality and also
a right to a dignified life. The right to dignified life is unachievable
in reality unless it is backed by right to property. And if equality
doctrine has to be telescoped into right to dignified life, then a man
and a woman cannot have an identical or substantially similar levels
of dignified life unless both have certain right to property. Without
economic freedom, it is futile to presume that a woman can enjoy
her other personal rights effectively. While Article 15 of the
Constitution grants women a right to equal opportunity, it is the
economic security that ensures them a complete life under the
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S.A.No.527 of 2022Constitution. It has been said several times, and it is stated yet
another time that the legislative interference with the traditional
coparcenery and the incidence of ancestral property is intended to
provide security and dignity to a certain class of female heirs of a
deceased coparcener. And, it stops there, or at least ought to stop
there.
b) But to secure a class of women with a certain right to property for
accomplishing the Constitutional purposes and aspirations, should
the fundamentals of Hindu Law be disturbed? If the objective is only
to secure a dignified life for Hindu women, who hitherto were
deprived of any right to property except perhaps the stridhana
property (which are but the gifts given to a Hindu female at the time
of her marriage), does it necessarily require either the destruction of
the coparcenary or a forced disintegration of the ancestral property?
c) The Courts in this country did not have any difficulty in
understanding the legislative intent behind Sec.6, but where it
tended to produce conflicting opinions was on the extent to which
the legislative intent behind it could be stretched: While Gurupad
and Uttam considered that the legislative intent should be stretched
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S.A.No.527 of 2022to its elastic limits as enabling the destruction of the entire
coparcenery as if the notional partition under Sec.6 has engineered a
vertical and horizontal division of ancestral property inter se among
all the coparceners, the moderate view, which is in majority, has
considered that the notional partition is but a vehicle to grant a class
of female heirs some right in the ancestral property and no more.
This is made evident by the Parliamentary debate on the Hindu
Succession Bill. Allaying the apprehension of the members of the
Rajya Sabha about the destruction of coparcenery and ancestral
property, Shri. Pataskar, the then Union Minister for Law,
explained:
“(1) By this Bill, the joint family of the mitakshara type is not
abolished, and that is the main difference between this Bill
and the provisions of the lapsed Hindu Code regarding the
same.
(2) At the same time, a daughter is given a share in the
property of her father even if he was a coparcener in a joint
Hindu family to the same extent as an undivided son.
(3) This Bill does not in any way take away the right of any
member of a Hindu coparcenary to get himself separated
from the coparcenary.”25/54
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S.A.No.527 of 2022Shri Pataskar proceeds to state:
“As hon. Members are aware, when the Estate Duty Act was
passed, a similar question had arisen. Estate duty is a
measure of taxation of property which comes to a person by
inheritance. In India, in the case of a large number of people
who are governed by mitakshara system of Hindu Law, there
is no inheritance with respect, at any rate, to the joint family
properties which are held by the families concerned. If all
such properties or any interest in such properties were to be
excluded from estate duty because they devolve by
survivorship and not by inheritance, it would have defeated
the very purpose for which the estate duty was proposed to be
levied. It was, therefore, then decided that, for the purpose
of this taxation, the interest of a deceased coparcener
should be treated as if his interest in the coparcenary
property has been separated from rest of the coparcenary
property just prior to his death. Following up this precedent,
a similar method has been evolved for the purpose of giving
a female heir a share in the property of the deceased
member of a joint Hindu coparcenary; and just as the
purpose of the estate duty could be achieved without
actually disrupting the joint Hindu family governed by the
mitakshara school of law, this Bill has proceeded to give a
share to a female heir on the same basis without necessarily
disrupting the joint Hindu family. This, in short, is the
genesis of the scheme underlying clause 6 of the Bill, which
is the most important clause so far as this Bill is concerned.”
(emphasis supplied)26/54
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S.A.No.527 of 202219.2 The legislative intent, as was made evident by Shri. Pataskar (which
finds its reflection in Vineeta Sharma, though it did not refer to his speech),
nowhere declared any intent to destroy the fundamental concepts which are
peculiar to Hindu Law – the coparcenary and the ancestral property. To re-
emphasize, the Act, read in the backdrop of the legislative intent, does not
focus on effecting a complete partition, or to interfere with the right of the
surviving coparceners to live as a group, which law understands as
coparcenery. To this court, it involves a fundamental right available to the
coparceners under Article 19(1)(c) of the Constitution to live together as a
specific group sharing certain defined features, with their right to manage
whatever property, to underscore, whatever property, that they have as a
group. As will be seen later, the Act does not aim at obstructing the formation
of new ancestral property post its enactment. To explain it differently,
whenever notional partition takes place, the legal fiction which the legislature
has invented only intends to carve out the share of the deceased coparcener
from the whole, to enable its distribution inter alia among his Class I female
heirs. In that sense, a notional partition can only be termed as a partial
partition of the whole, and cannot be understood as implying the
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disintegration of the whole. It is explained in the next paragraph.
20. A partition under the Hindu law is effected when a coparcener declares his
intent to sever from the coparcenary and seeks partition of his share. It may
trigger a partition inter se among all the coparceners, or may just stop with
granting a share to the one who has declared his intent to leave the
coparcenary, (both of which can be achieved either consensually among all
the coparceners, or litigiously through a legal process). What, however, is
significant is that when a coparcener breaks away from the coparcenary, the
division of coparcenary estate (or the ancestral property) need not necessarily
trigger a complete partition among all the coparceners but can be confined to
the share of the coparcener who seeks partition. In Kalyani (died) through
LRs Vs Narayanan & others [AIR 1980 SC 1173 : (1980) Supp. SCC 298],
the Supreme Court has made an exposition on the partition and its effect on
the joint family. The issue before the Court was the authority of the karta of a
Mitakshara joint family to effect partition between his two sets of heirs
through his two wives through a Will. The Court explains:
“10… Partition is a word of technical import in Hindu law.
Partition in one sense is a severance of joint status and
coparcener of a coparcenery is entitled to claim it as a matter28/54
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S.A.No.527 of 2022of his individual volition. In this narrow sense all that is
necessary to constitute partition is a definite and unequivocal
indication of his intention by a member of a joint family to
separate himself from the family and enjoy his share in
severalty . Such an unequivocal intention to separate brings
about a disruption of joint family status, at any rate, in respect
of separating member or members and thereby put an end to
the coparcenery with right of survivorship and such separated
members holds from the time of disruption of joint family as
tenants-in-common. Such partition has an impact on
devolution of shares of such members. It goes to his heirs
displacing survivorship. Such partition irrespective of whether
it is accompanied or followed by division of properties by
metes and bounds covers both the division of right and division
of property (See Appovier Vs Rama Subba Aiyan quoted with
approval in Krishnabai Bhritar Ganpatrao Deshmukh Vs
Appasaheb Tuljaramarao Nimbalkar). A disruption of joint
family status by a definite and unequivocal indication ot
separate implies separation in interest and in right, although
not immediately followed by a defacto actual division of the
subject-matter. This may at any time be claimed by virtue of
the separate right (See Girija Bai Vs Sadashiv). A physical and
actual division of property by metes and bounds follows from
disruption of status and would be termed partition in a broader
sense.
20. Partition can be partial qua person and property but a
partition which follows disruption of a joint family status will29/54
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S.A.No.527 of 2022be amongst those who are entitled to a share on partition…..”.
It would therefore be more appropriate to equate a notional partition to a
partial partition made in aid of a divided coparcener. That it might have been
forced on the coparcenary through a legislation, and posthumously qua the
deceased coparcener need not lead to the conclusion that the legislature
intended to destroy the entire coparcenary. Indeed, there is no legislative
space to conclude it. Its real effect has been to (i) interfere with the right of
the surviving coparceners to succeed to the share of the deceased coparcener
by survivorship; and (ii) to reduce their combined holding to the extent of the
property that becomes allottable to Class I female heirs, and no more. For
instance, if there are five coparceners who jointly hold 10 acres of land, and if
one coparcener dies leaving only female heirs, then under the concept of
notional partition the deceased coparcener will become entitled to obtain 2
acres which will go to his female heirs, and to that extent, it will reduce the
combined entitlement of the surviving coparceners to 8 acres, whereas before
the Act, the surviving coparceners would have obtained the entire 10 acres.
Granting a share to the female heirs, therefore, will merely bring down the
quantum of property available to the rest of the coparcenary, and no more. If
however, an understanding that a notional partition will effect a complete
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partition among all the coparceners is entertained, then beyond what it does, it
will also interfere with the right of the surviving coparceners to stay together.
21.1 However, very surprisingly, even though the concept of notional
partition has been under the judicial scanner and scrutiny since its descent on
the legal horizon, not many of the popular and path-breaking judgments on
the subject had ever seen to have considered the legislative intent with
reference to the Parliamentary debate on a the bill. In Kalpana Mehta &
Others Vs Union of India & Others [(2018) 7 SCC 1], a Constitution Bench
of the Supreme Court has approved the Parliamentary debates as an aid to the
interpretation of statutes for exploring the legislative intent behind it. Indeed,
in Kalpana’s case the Supreme Court has echoed Justice Krishna Iyer’s voice
in B.Banerjee Vs Anita Pan [(1975)1 SCC 166], where he said:
“The ‘sound-proof theory’ of ignoring voices from Parliamentary
debates, once sanctified by British tradition, has been replaced by
the more legally realistic and socially responsible canon of
listening to the legislative authors when their artefact is being
interpreted”It stands perfectly to reason. There can be nothing more amusing than to
treasure-hunt the intent of a legislation, when the legislature, which had made
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S.A.No.527 of 2022it, presents its intent to the Court in a platter.
21.2 Given the context of this case it requires to be recorded that the
knowledge of this Court is not drawn to any of the authorities taking note of
the Parliamentary debate while understanding the import and effect of Sec. 6
or for that matter even Sec. 8 of the Act. The dictum in Vineeta Sharma,
therefore, needs to be appreciated in this contextual setting due to its
proximity in correctly reflecting the legislative intent behind Sec.6.
22. It may be added here that when the Parliament originally enacted Sec.6, it
merely experimented with its idea of empowering a class of female heirs
economically, yet it was seen to be hesitant to issue an admit card to the
daughters of a male coparcener for an entry into the club of coparceners. And,
notional partition, in its wisdom came in handy to relieve it of its predicament,
as it could now balance its intent to preserve the legal incidence of ancestral
property in the hands of the coparcenery alongside its intent to vest some right
at least in the ancestral property in certain class of female heirs of a deceased
coparcener. And, it took another half a century for the Parliament to bring an
amendment to Sec.6 vide Central Act 39 of 2005, to elevate the status of
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S.A.No.527 of 2022daughters as coparceners (after at least three states have brought in their own
amendments to this effect – Tamilnadu, Andhra Pradesh and Maharashtra)
and this statutory accomplishment enabled it to grant equal share to the
daughters in the ancestral property. In the din of this euphoria what however,
appears to have been overlooked is that other than the daughters, the widow
and the mother of the deceased coparcener also figure as Class I female heirs,
and the rise in status of daughters as coparceners in effect has reduced the
quantum of property which the widow and the mother would get. But, what
is significant is that neither before, nor now, the Parliament has attempted to
destroy the fundamentals of Hindu law such as the coparcenery, the ancestral
property, and their inter-relationship and the legal incidence attached to them,
a la the Kerala Joint Family System (Abolition) Act, 1975.
23. Reverting to the facts of this case, if the first layer of the defendants’ case
is tested on the plane of the above discussion, it must be held that they lose a
point on the issue that they have raised as its premise is unsupported either by
the legislative intent behind Sec.6 of the Act, or by the principles set out in
Vineeta Sharma case [(2020) 9 SCC 1]. The result of the discussion is that,
when Rangasamy Chettiar died, despite the notional partition allotting him
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S.A.No.527 of 20221/3rd share in the ancestral property, the 2/3rd share of the surviving
coparceners (the two sons of Rangasamy Chettiar) will continue to remain as
ancestral property in their hands.
(b) Sec.8 of the H.S.Act & Its Impact:
24.1 In this section, this Court proposes to understand the law to ascertain the
character of the share of the property which the first defendant and his brother
along with their four sisters had obtained from and out of the notionally
alloted 1/3rd share of Rangasamy Chettiar. Each of Rangasamy Chettiar’s
children including the first defendant had obtained an identical 1/18th share.
24.2 Sec.8 of the Hindu Succession Act, operates in two circumstances:
a) on the share allotted notionally to a deceased coparcener. The
precondition here is the existence of Class I female heirs; and
b) when a male Hindu dies intestate leaving his personal or individual
property.
The immediate fallout of the operation of Sec.8 in the above two
circumstances is that it managed to equate the character of the property
constituting the share allotted under a notional partition to the property held
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S.A.No.527 of 2022
as personal property or as self-acquisition by a deceased male Hindu dying
intestate since the legal incidence of succession is the same – the one
prescribed under Sec.8. To state it differently, Sec.8 forms the common
denominator on which both the classes of properties are fitted as the
numerator. It would therefore imply that the share allotted under a notional
partition to a deceased coparcener will possess all the characteristics of a self-
acquisition for succession under Sec.8. In terms of the texts of Hindu law,
whenever a partition takes place (either wholly among all the coparceners, or
partly in aid of a divided coparcener) each of those who get so divided, hold
their respective shares of the property as their personal property as between
the other. Now, if the share allotted to a deceased coparcener is to be equated
to a share of a divided coparcener, then this share can be treated only as the
personal or individual property of the deceased coparcener. The passage
extracted from Kalyani’s case [AIR 1980 SC 1173] in paragraph 20 above
may be revisited again.
25. The issue however, is not how the property is treated in the hands of the
deceased male Hindu, but how it should be treated in the hands of his sons,
even if there are Class I female heirs, who succeed to the estate of the
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S.A.No.527 of 2022
deceased male Hindu. According to Mulla, it will be an ancestral property in
the hands of those sons, since in terms of the definition popularised by his
treatise, an ancestral property is that which a male Hindu inherits from his
father, grandfather or great-grandfather. Now, should the intervention of
class I female heirs to take a share along with the sons of the deceased
coparcener lead to a different consequence? Starting with the ratio in
Commissioner of Wealth Tax Vs Chandra Sen [(1986) 3 SCC 567] and
Assistant Commissioner of Income Tax Vs P.L. Karuppan Chettiar [AIR
1979 Madras 1 (FB)], the predominant view has been that when a son takes a
share in the property of his father under Sec.8, then it is treated as the personal
or the individual property in the hands of the son, and consequently the son’s
son (or grandson of the male Hindu) cannot claim a share in the share of the
grandfather during the lifetime of the son. The Uttam case dictum essentially
rests on this supposition. But, it may have to be stated that both in Chandra
Sen case and Karuppan Chettiar case there was an actual partition between
the father and the son, and therefore, in terms of the texts of the Hindu law, on
partition, they take a share per capita and not per stripes. More about it in
later paragraphs.
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S.A.No.527 of 2022
26.1 However, a little realised consequence of the understanding that
whenever Sec.8 operates the share which a son obtains will be only his
personal property, is that it holds a potential to obstruct the formation of new
ancestral property. For example, if A, a son along with the class I female heirs
take a share by the operation of Sec.8 of the Act, and if the share A takes is
treated as his personal property, and if A dies, leaving B and C as his sons
along with class I female heirs, then by the operation of Sec.8 again the share
which B and C obtain from A will again be treated as their personal property.
The chain may go endlessly.
26.2 If an ancestral property has to be formed, in terms of its definition, a
property must have to pass hands at least from father to son, but if the dictum
in Chandra Sen and Karuppan Chettiar cases is understood as a
mathematical formula for understanding the implications of Sec.8 as indicated
above, no share at no point of time in any generation which a son gets will
vest in him as ancestral property. How will the ancestral property be formed
then? If this idea is given its operational effect since the arrival of Sec.8 in
1956, then its working, with or without the combination of Sec.6 of the Act,
would have ended the formation of ancestral property. Therefore, what
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S.A.No.527 of 2022
purpose can the amendment of Sec.6 achieve? Irrespective of the shares
which the daughters take either as Class I female heirs under pre-amended
Sec.6 or as coparceners after its amendment in 2005, there must exist
ancestral property, for them to take a share. Here, the following passage from
the speech of Shri. Pataskar on the floor of Rajya Sabha is relevant. He says:
“The property inherited by a Hindu from his father, father’s
father or father’s father’s father is ancestral property.
Property inherited by him from other relations is his separate
property. The essential feature of ancestral property is that
if the person inheriting it has sons, grandsons or great-
grandsons, they become joint owners with him and become
entitled to it by reason of their birth. So far as separate
property Is concerned, the holder is the absolute owner
thereof. But separate or self-acquired property, once it
descends to the male issue of the owner, becomes ancestral
in the hands of the male issue who inherits it.
27. It is now necessary to visualise how an ancestral property could at all be
formed as per the rules governing its formation. No property commences as
an ancestral property. It should have been first earned by a male Hindu
ancestor – father or grandfather or great-grandfather as his self-acquisition,
and they should have allowed it to be inherited by their son, grandson or
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S.A.No.527 of 2022
great-grandson. Logically, every property in the hands of a male Hindu can
therefore, commence only as a self-acquisition by some ancestor at some point
of time, and only when it devolves on his son, does it become an ancestral
property. To state it differently, it is not until a property acquired by one
Hindu male passes on to the next generation of male Hindu can an ancestral
property be created.
28.1 The point is, should Sec.8 be understood as affecting the formation of
ancestral property in the hands of the son of a deceased male Hindu? Here, it
becomes necessary to consider the import and impact of Sec.19 of the
H.S.Act. It reads:
Section 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 stirpes; and
b) as tenants-in-common and not as joint tenants.
Sec.19 of the Act instructs that as between those who take a share together, or
simultaneously, under a male (which implies, on their death) as between them
they would take their share per capita, and not per stripes, and consistent with
it, it also declares that each of the sharers of the deceased male Hindu will
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S.A.No.527 of 2022
take their respective share as tenants-in-common and not as joint tenants. In
other words, Sec.19 in essence declares the rule which Courts follow while
granting a preliminary decree for partition. Mulla in his treatise (25th Edition,
Page 487, Paragraph 320 ) writes :
320. Shares on Partition:
On a partition between the members of a joint family, shares are
allotted according to the following rules:
(1) On a partition between a father and his sons, each
son takes a share equal to that of the father. Thus, if
a joint family consists of a father and three sons, the
property will be divided into four parts, each of the
four members taking one-fourth.
(2) Where a joint family consists of brothers, they take
equal shares on a partition.
(3) Each branch takes per stripes (i.e., according to the
stock) as regards every other branch, but the members
of each branch take per capita as regards each other.
This rule applies equally whether the sons are all by
the same wife or by different wives [Illustrations (a)
and (b)].
Rule 3 explains how the rule of per capita and per stripes operate. Mayne’s
on Hindu Law (17th Edition, Page 1027, Paragraph 445) explains the same
concept more graphically as below:
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445. Right of representation:
Under Mitakshara law, the right to a share passes by
survivorship among the remaining coparceners, subject to the
rule that where any deceased coparcener leaves male issue,
they represent the rights of their ancestor to a partition. For
instance, suppose A dies, leaving a son B, two grandsons E and
F, three great-grandsons H, I, J and one great-great-grandson
Z. The last named will take nothing, being beyond the fourth
degree of descent (para 283). The share of his ancestor W willpass by survivorship to the other brothers, B, C, D, and their
descendants, and enlarge their interests accordingly. Hence B, C,
and D will each be entitled to one-third. E and F will take the third
belonging to C, and H, L, J will take D’s third. Each class will
take per stripes as regards every other class, but the members of
the class take per capita as regards each other. ”
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S.A.No.527 of 202228.2 The judicial understanding of these concepts has been consistent with the
above rule. In Manjanatha Shanabhaga Vs Narayana Shanabhaga [ILR
(1882) 5 Madras 362] the Court was required to determine the shares
available to the coparceners after a set of coparceners had divided from the
coparcenery and taken their shares. Muthuswami Iyer J writes:
“The rule that, as between different branches, division should
be by the stock, and that as between the sons of the same
father, it should be per capita, is laid down with reference to
cases in which all the coparceners desire partition at the same
time, and it ought not to be applied indiscriminately… When,
therefore, a joint family in an advanced stage of development is
broken up by partition, regard is had to the successive vested
interests of each branch; and the division by the stock at each
stage a new branch intervenes secures equal shares to those
who were the sons of the same father..”The learned Judge then proceeds to provide an example and it reads: “If, for
instance, A and B, two brothers, have each two sons, and if the two sons of A
first separate from the joint family, and if A should afterwards desire
partition from B and his sons,” what would be the share A would now be
entitled to? The learned Judge answers:
“ The shares of coparceners in each branch may increase or
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S.A.No.527 of 2022decrease according as the existing coparceners die or new
coparceners are born, and when the joint family consists of
several branches and one of those branches become extinct, the
interest of that branch may also survive to the other. But so
long as neither branch is extinct, the right of survivorship has
no influence upon the shares of the coparceners who belong
to a branch different to that to which the deceased
coparceners belonged. Take for example the case of two
brothers, one of whom has two sons and the other has three
sons. If either of the brothers dies, the share of the other
branch would still be a moiety. If both the brothers die, each
branch will still take a half share. If one brother and two out
of his three sons die, the surviving son would take the moiety
of his own branch, whilst the two sons in the other branch
would take each only a quarter share. So long as there are
coparceners in each branch, the operation of the right of
survivorship is precluded by the right of representation.”The correctness of ratio in Manjanatha’s case, more particularly the thrust it
made on Smiriti Chandrika to address the issue before it became the subject
of serious debate in Narayana Sah Vs A. Sankar & others [AIR 1929 Madras
865 (FB)]. This part is not essential, but what is contextually relevant is the
passage from Mayne which the Court has relied on. The Court writes:
“5.Mayne on Hindu Law, page 346, paragraph 270, is also quoted. He
says:
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S.A.No.527 of 2022It is common to say that in an undivided family each member
transmits to his ‘issue his own share in the joint property, and
that such issue takes per capita inter se, but per stripes as
regards the issue of other members. But it must always be
remembered that this only a statement of what would be their
rights on a partition. Until partition all their rights consist
merely in a common enjoyment of the common property, to
which is further added the right of male issue to forbid
alienation, made by their direct ancestors.”28.3 The difference the Hindu Succession Act has brought to the above rule
(per capita and per stripes) is on the point of its applicability. Prior to the
arrival of the Act, the joint tenancy of the coparcenery vis-a-vis the ancestral
property it held would continue till a partition among the coparceners took
place, and partition would be effected only at the will of the coparcener or the
coparceners, as the case may be. The inroad which the H.S.Act has made to
this traditional concept is twofold : (a) in enforcing a notional partition under
Sec.6 against the will of the coparceners; and (b) in declaring that the shares
which devolve under Sec.8 of the Act will follow the rule prescribed in
Sec.19, which rule is traditionally applicable only at the point of partition, and
not at the point of devolution. This is because the Act has to accommodate
female heirs for whose benefit the Parliament has laboured to tinker with the
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what it means by ‘per capita’ and ‘per stripes’, or ‘tenancy in common’ and
‘joint tenancy’, it is necessary to fall back on the conceptual Hindu Law for
their understanding.
29. Now, is there anything abhorrent in Sec.8 read with Sec.19 in
understanding that a share which a son takes in the estate of his father is an
ancestral property? To illustrate it, A, a male Hindu, dies intestate leaving his
self acquisition or a notionally allotted share in the ancestral property to be
succeeded to by his heirs. He has two sons, B and C. And he also has two
daughters, his widow and mother, all of whom will constitute his class I
female heirs. Now, by the rule of succession envisaged under Sec.8, each of
these heirs will take 1/6th share each. They get it per capita. And they also
get it as tenants-in-common and not as joint tenants, in the sense that none
among B and C and their female siblings could succeed to the share of anyone
as among them by survivorship. To re-emphasis, Sec.19 merely states how a
share vests in the first generation of heirs, but does not state anything as to
how the property should be treated after it is so vested in a son. This would
imply that the 1/6th share which B or C obtains belongs to his line, and it
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This Court is unable to support an interpretation or an understanding that
Sec.19 bars the formation of ancestral property in the male line upon vesting
of a share per capita in the son. As stated elsewhere in this judgement,
partition among co-sharers can happen either consensually or through a
preliminary decree for partition of a court. Now, does it come in the way of,
say B or C in the above illustration, taking their shares as an ancestral
property? Hindu Succession Act does not bring in its own definition of
coparcenery or ancestral property, but merely adopts the concepts as they are
in the texts of Hindu law. If that is so, is it permissible to read into Sec.8 and
19 any implications more than what the statute has contemplated?
30. If the law is so understood, should the fact that some of the first-
generation heirs are female heirs make any difference to the course of the
discussion above? If class I female heirs are granted a share, again as stated
elsewhere in this judgement, it only reduces the extent of property which a
son may obtain, but it does not interfere with the formation of ancestral
property in the hands of the son, for he obtaining a share from his father’s
estate fits in well with Mulla’s definition of ancestral property: A share he has
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not earned, but obtained from his ancestor – his/her own father. The solution
is provided in C. Krishna Prasad Vs CIT [(1975) 1 SCC 160], (followed in
Shyam Narayan Prasad Vs Krishna Prasad [(2018) 7 SCC 646]) where
speaking for the Bench, H.R.Khanna J. writes:
“The share which a coparcener obtains on partition of
ancestral property is ancestral property as regards his male
issue. They take an interest in it by birth, whether they are in
existence at the time of partition or are born subsequently.
Such share, however, is ancestral property only as regards
his male issue. As regards other relations, it is separate
property, and if the coparcener dies without leaving male
issue, it passes to his heirs by succession (see p. 272 of
Mulla’s Principles of Hindu Law,14th Edn.)”
31.1 Any theory that proposes that when Sec.8 operates, the share in the hands
of the son will be his personal property or individual property and it can never
assume the character of an ancestral property even when the son begets a son,
will signify the death-knell for the formation of ancestral property, which the
Parliament never intended to meddle with, which to repeat, is neither the
intent of the Parliament, nor within the scheme of the Act.
31.2. This apart, it may also lead to internal contradiction in understanding the
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statutory scheme of the Hindu Succession Act in that, while Sec.6 still intends
to preserve the concept of ancestral property as a rule, and to simultaneously
construe Sec.8 as barring the formation of new ancestral property will be a
synthesis of both thesis and antithesis which eventually will result in a
negation of the idea of ancestral property. While interpreting the statute, it is
an imperative necessity to ensure that the operation of one provision should
not be allowed to eat up the existential relevance of another provision as in
auto-immune disease.
31.3 Every provision must be given its due space for its operation, and hence,
any attempt at interpreting a statute must ensure that all the provisions support
each other for sustaining their simultaneous co-existence and relevance.
“Ut res magis valeat quam pereat”, which broadly means let the thing be
more valued than it perishes, implying thereby that the interpretation of laws
must make them worth rather than making them useless. It applies even for
internal working of different parts of the same statute. In Badshah Vs Urmila
Badshah Godse [(2014) 1 SCC 188], the Supreme Court has held “ … where
alternative constructions are possible the Court must give effect to that which
will be responsible for the smooth working of the system for which the statute
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S.A.No.527 of 2022has been enacted rather than one which will put a road block in its way ..”.
See also: Pratap Singh Vs State of Jharkhand [(2005) 3 SCC 551] and
H.S.Vankani Vs State of Gujarat [(2010) 4 SCC 301].
32. To sum up the discussion on Sec.6 and Sec.8, it may be said that what
emerges out of ancestral property will necessarily be ancestral property in
whose hands it should be ancestral property, and what remains after providing
for female heirs will also remain as ancestral property.
33.1 On facts, the point which is waiting to be answered is whether the 1/18th
share which the first defendant had obtained from the share notionally allotted
to the share of his father Rangasamy Chettiar is ancestral? It will necessarily
become one, once he has sons, the defendants 2 and 3. Now with his
daughters, the plaintiffs, becoming coparceners, they will also be entitled to
take a share in it.
33.2 Alternatively, which is on facts, Ext.A1 evidences first defendant’s
conscious decision to blend the same with his undivided share in the ancestral
property which he held jointly with his brother Kothandapani. In effect, the
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undivided 1/3rd share which the first defendant originally had in the ancestral
property together with the 1/18th share which he had obtained from the share
of his father must necessarily be held to constitute ancestral property in his
hands by virtue of Ex-A1. Defendants lose another vital point here to the
plaintiffs.
Effect of the Abandonment of shares by the Daughters
34. This is the last layer of the defendants’ contentions. Here the focus now
gets shifted to consider the character of the property which statute vests in the
four daughters of Rangasamy Chettiar. Under Ext.A1, they had taken a
conscious decision to abandon their respective 1/18th share and settled for
Rs.5,000/- each. Incidence of Sec.6 of the Hindu Succession Act can only
vest a share in the Class I female heir of a deceased coparcener having an
interest in the ancestral property. It merely grants them a right to seek
partition of their share. But, how to deal with the share so vested in the female
heirs is the prerogative of those female heirs. On facts, the recitals in Ex A1
makes a candid statement that the daughters of Rangasamy Chettiar did not
desire the disintegration/fragmentation of the joint family property, and it was
for this reason that they received Rs.5,000/- in lieu of their respective shares.
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It is akin to a situation where someone who has a right to claim a slice of the
cake out of the whole, but chooses not to claim it to preserve its
wholesomeness. Will it not leave the whole cake intact? Indeed, the first
defendant, who is a party to Ext.A1 has not attempted to characterise this
transaction any differently from what is stated in Ext A1.
35. In fact, even amongst the coparceners, it is possible for a coparcener to
renounce his share to the other coparceners. The consequence of such
renunciation is that the interest of the coparcener would merge with the
others. The coparcenary would, nevertheless continue as was held by a
Division Bench of this Court in Kaveramma Vs Vishnu Kunkullayya and
others [AIR 1919 Madras 440 : 1918 SCC OnLine Mad 257]. However, this
court hastens to add that the ratio in that case may not apply here on fours,
since the share which a relinquishing coparcener has is also ancestral
property, whereas in the present case, the same effect is achieved through
Ext.A1.
36. To sum up the discussions as to whether the suit property which was
allotted to the first defendant under Ext.A1 constitutes ancestral property in
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his hands, this Court unhesitatingly holds that it is an ancestral property in
which the plaintiffs as coparcener would be entitled to a share. It may be that
about a week prior to the institution of the suit, first defendant might have
executed Exts.B1 and B2 settlement deeds, dated 22.08.2008 in favour of his
sons, defendants 2 and 3 here, but it is important that even prior to that the
plaintiffs have demanded their share in the property vide notice under Ext.A2
and Ext.A4 notices, dated 13.08.2008 and 19.08.2008 respectively. But when
the plaintiffs have already become entitled to a share in the suit property as
coparceners even from 09.09.2005, when amended Sec.6 came into effect,
anything done by the defendants to upset the plaintiffs entitlement is liable to
be ignored by the Court. And, admittedly, on that date, there was no written
partition between the defendants. Substantial question No.2 is accordingly
decided in favour of the plaintiffs/appellants. So far as the onus of proof
goes, inasmuch as the rule of estoppel binds the first defendant to the recital
regarding the character of the property in Ext.A1, the burden indeed is on the
first defendant to explain the same as false or a mistake. Necessarily the
answer to substantial question No.3 is also decided in favour of the
plaintiffs/appellants. And in view of answer to the above substantial questions
1 to 3, this Court has to hold that substantial question No.4 must be decided in
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favour of the appellants. This Court does not consider that any specific
finding is required for substantial question No.5, for neither side is seen to
have been prejudiced by the failure to frame appropriate points for
consideration by the first appellate court.
Conclusion:
37. To conclude, this appeal is allowed and the judgment in A.S.No.57 of
2021 on the file of the I Additional District Court, Coimbatore is set aside and
the decree of the trial Court in O.S.505 of 2008 is restored. No costs.
Consequently, connected miscellaneous petition is closed.
08.11.2024
Index : Yes / No
Neutral Citation : Yes / No
ds
To:
1. The I Additional District Judge
Coimbatore.
2. The Principal Subordinate Judge
Coimbatore.
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N.SESHASAYEE.J.,
ds
Pre-delivery Judgment in
S.A.No.527 of 2022
08.11.2024
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