RADHA BAI versus RAM NARAYAN & ORS.

[2019] 17 S.C.R. 119

RADHA BAI

RAM NARAYAN & ORS.

(Civil Appeal No. 5889 of 2009)

NOVEMBER 22, 2019

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Hindu Succession Act, 1956 – ss. 6 and 8 – Share in theproperty – land was owned and possessed by one ‘S’ – S’ hadtwo sons ‘J’ and ‘P’ – ‘J’ had two sons defendant No. 4 and fatherof the appellant-plaintiff – Appellant’s father predeceased ‘J’ (hisfather) and ‘S’ (his grandfather) – He died in 1957, whereas ‘J’died in 1982 and ‘S’ in 1965 – Appellant’s father left behind hiswife and daughter-appellant – After the death of ‘S’, his two sons‘J’ & ‘P’ partitioned the suit property and result of which, the suitproperty came to the exclusive share of ‘J’ and had become theabsolute owner thereof, on basis of which right, he (‘J’) executedregistered sale deed in favour of his three grandsons (sons ofdefendant No. 4) – Appellant instituted suit and sought share inthe property – The suit was dismissed by the Trial Court – TheAppellate Court, however, reversed the conclusion reached by theTrial Court and ordered appellant to obtain possession over thehalf share of the disputed land – Aggrieved, respondents-defendantNos. 1 to 4 filed second appeal before the High Court – The HighCourt set aside the Judgment of the Appellate Court and affirmedthe Judgment and decree passed by the Trial Court – On appeal,held: After the death of ‘S’ in 1965, the property devolved uponhis two sons ‘J’ and ‘P’ – They succeeded and partitioned propertybetween themselves – As result property came into exclusive shareof ‘J’ – The father of appellant-plaintiff had predeceased his father‘J’ and even his grandfather ‘S’ – During the life time of ‘J’, fatherof appellant could not have succeeded to the property and for thesame reason, the appellant being his daughter cannot be heard toclaim any right higher than that of her father – Therefore, applyingthe settled legal position to the present case, the view taken by theHigh Court upheld.

ADismissing the appeal, the Court

HELD: 1. Considering to the factual matrix of the presentcase, it is noticed that ‘S’ had inherited ancestral property andwas alive till 1965. The father of appellant-plaintiff, predeceasedhim in 1957. The father of appellant was the son of ‘J’. ‘J’ diedBin 1982. During the life time of ‘J’, in terms of Section 6 of theHindu Succession Act, 1956 appellant’s father could not havesucceeded to the property as he could claim only through ‘J’.‘J’, however, was alive till 1982. If appellant’s father himself hadno claim in his own rights, the question of appellant, being hisdaughter, succeeding to the property does not arise. [Para 19]C[136-E-F]

2. The consistent view of this Court, is that the grand sonor grand daughter is clearly excluded from heirs in Class-I.Appellant’s father himself was grand son of ‘S’, who predeceased‘S’. After the demise of ‘S’ in 1965, therefore, the ancestral suitDproperty could be and came to be partitioned between ‘J’ and‘P’ in 1967. As result of that partition, the suit property cameto the exclusive share of ‘J’ in his individual capacity. He could,therefore, legitimately dispose of the same in the manner hedesired and which he did in favour of his grandsons (defendantNos.1 to 3 respectively) vide registered sale deed dated 21[st]EJuly, 1979. Neither the stated partition of 1967 nor the registeredsale deed in favour of respondents (defendant Nos.1 to 3) dated21[st] July, 1979 has been challenged. The relief sought in the suitas filed by the appellant/plaintiff is only for partition and awardingshare to the appellant/plaintiff alongwith possession. Suffice itto observe that, the grand-daughter of ‘Janakram’ (appellant)Fcould not have claimed higher right than the right of her father.[Para 20] [136-G-H; 137-A-B]State Bank of India v. Ghamandi Ram (Dead) ThroughGurbax Rai (1969) 2 SCC 33 : [1969] 3 SCR 51 ;Commissioner of Wealth Tax, Kanpur and Others v.GChander Sen and Others (1986) 3 SCC 567 ;Yudhishter v. Ashok Kumar (1987) 1 SCC 204 : [1987]1 SCR 516 ; Hardeo Rai v. Sakuntala Devi and Others(2008) 7 SCC 46 : [2008] 7 SCR 1 – relied on.

Gurupad Khandappa Magdum v. Hirabai KhandappaHMagdum and Others (1978) 3 SCC 383 : [1978] 3

SCR 761 ; Ramesh Verma (Dead) Through LegalRepresentatives v. Lajesh Saxena (Dead) By LegalRepresentatives and Another (2017) 1 SCC 257 ; Smt.Raj Rani v. Chief Settlement Commissioner, Delhi andOthers (1984) 3 SCC 619 : [1984] 3 SCR 763 –referred to.

Chandrakanta and Others v. Ashok Kumar and Others2002 (3) MPLJ 576 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5889of 2009.

From the Judgment and Order dated 12.02.2007 of the HighCourt of Chhattisgarh at Bilaspur in Second Appeal No. 84 of 2002.

Sarabjit Dutta, Akshat Shrivastava, Ms. Pooja Shrivastava, Advs.for the Appellant.

Manoj Prasad, Sr. Adv., Prakash Kumar Singh, Ashutosh Dubey,Ms. Richa Rathi, Dhirendra Kumar, Ajay Kumar Srivastava, Dr. RajeshPandey, Ms. Tanuja Manjari Patra, Ms. Shweta, Ms. Aswathi M.K.,Manoj Selvaraj S., Ms. Yogita Ahuja, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. This appeal takes exception to the judgment and order dated12[th] February, 2007 of the High Court of Chhattisgarh at Bilaspur (forshort, ‘the High Court’) in Second Appeal No.84 of 2002, whereby the

Aappeal filed by the respondents-original defendant Nos. 1 to 4 wasallowed and the judgment and decree passed by the Trial Courtdismissing the suit filed by the appellant, came to be confirmed.

2. The parties are related as under:

BSukhdeo (Sahdeo)Expired in 1965JanakramPilaramSon of SukhdeoSon of SukhdeoExpired in 1982Expired in 1967CSonuSaheblalLaxminbaiDefendant No. 4Expired in 1957Expired in 1984 (Wife)Expired in 2016Radha BaiPlantiff (Daughter)DRam NarayanJaya NarayanRohit KumarDefendant No. 1Defendant No. 2Defendant No. 3

3. The appellant filed suit in the Court of Civil Judge, Class –EFirst, Shakti – District Bilaspur being Civil Suit No.31/A of 1985 assertingthat the land situated in Village Barra, Tehsil Shakti, more particularlydescribed in Schedule of the plaint, was owned and possessed bySukhdeo Chhannahu son of Sardha Chhannahu. Sukhdeo was Hinduand governed by the Mitakshra Laws. The suit land came in the handsFof Sukhdeo as ancestral property, in which Sukhdeo and his sonsJanakram and Pilaram were having joint shares being coparceners. Theappellant’s father Saheblal was the son of Janakram, who had anotherson by name Sonu (original defendant No. 4, who has died during thependency of the present appeal). The appellant’s father Saheblalpredeceased Janakram (his father) and Sukhdeo (his grand-father). HeGdied in 1957, whereas Janakram died in 1982 and Sukhdeo, in 1965.Saheblal left behind Laxminbai, his wife and their daughter Radhabai(appellant/plaintiff). In this backdrop, the appellant asserted that she wasentitled to share in the suit property, claiming through her fatherSaheblal. The appellant’s mother had already expired in 1984 beforeHfiling of the suit in 1985.4. It is the case of the appellant that after the death of hermother, the appellant came to village Barra and requested the Patwariof the village to mutate the land in her name. In response, she wastold that the land had already been mutated in the name of Ram Narayan(defendant No.1), Jaya Narayan (defendant No. 2) and Rohit Kumar(defendant No.3) - three sons of Sonu (deceased defendant No. 4), byvirtue of the registered sale deed executed in their favour by Janakramon 21[st] July, 1979. It was further revealed that after the demise ofSukhdeo in 1965, his two sons Janakram and Pilaram partitioned thesuit property in or around the year 1967, as result of which, the suitproperty came to the exclusive share of Janakram and he had becomeabsolute owner thereof, on the basis of which right, he executedregistered sale deed in favour of his three grandsons (sons of his sonSonu (now deceased) - defendant Nos.1 to 3 respectively).

5. Immediately after becoming aware of the above, in 1985, theappellant instituted the suit for declaration and possession and soughtthe following reliefs:

“14.): Prayer of the plaintiff is as under:-

i): The court should award decree about the possession of therelevant disputed land to the plaintiff;

I (a): By partitioning the disputed lands, half share be awardedto the plaintiff, and its land revenue should be determinedseparately.

ii): The plaintiff may be awarded expenses of the suit.

iii): Looking to the circumstances of the suit, whatsoeverappropriate relief the court may consider it fit and just, the samemay be awarded to the plaintiff.”

6. The respondents-defendants resisted the said suit. On the basisof the rival pleadings, the Trial Court framed as many as 9 issues, whichread thus:

“ISSUES:CONCLUSION:

===============================================

(1.): Whether, after the death of Sukhdev, partition of the joint

& united property had been carried in betweenJanakram & Pilaram.Yes.

(2.): Whether, the disputed land was received by Janakramin the said partition. Not proved.

(3.): Whether, up to the year 1982, the disputed land remainedentered in joint & united accounts of Janakram,Laxminbai and the plaintiff.}

Due to negative conclusion ofissue No.2, detailedappreciation has not beendone.

(4.): Whether, Janakram had no right to sale the disputedproperty/land.

(5.): Whether, the sale deed dated 21[st] of July, 1997 is illegaland void.

(6.): Whether, the plaintiff is entitled to obtain the possessionof the disputed lands.

(7.): Relief & Expenses. Suit is dismissed. The rival partiesshall bear their own expenses.ADDITIONAL ISSUES:

(8.): Whether, the plaintiff is entitled to get half share in thedisputed lands.Not proved.

(9.): Whether, the suit of the plaintiff is not maintainable.No. Its maintainable.”

7. The Trial Court after analysing the evidence on record,proceeded to dismiss the suit preferred by the appellant vide judgementand decree dated 24[th] November, 2000.

8. Being aggrieved, the appellant filed appeal being Civil AppealNo.5-A of 2001 in the Court of Additional District Judge, Shakti, DistrictGBilaspur-Chhattisgarh. The Appellate Court, however, reversed theconclusion reached by the Trial Court and allowed the appeal videjudgment and decree dated 22[nd] January, 2002. The operative orderpassed by the First Appellate Court reads thus:

“26.):On the basis of the above mentioned critical appreciation,Hdecree may be drawn to the following effect:-

i): That, resultant to acceptance of the appeal of theappellant, the impugned judgment and the decree dated24[th] of November, 2000 is set aside.

ii): That, resultant to acceptance of the appeal of theappellant, the suit of the plaintiff/appellant is accepted,and it is ordered that the plaintiff/appellant is entitled toBobtain possession over the half share separately, bycarrying out partition of half share of the disputed land,which has been enumerated in the Schedule “A”annexed with the plaint; and accordingly land revenueto that effect should also be determined.

iii): The Schedule “A” annexed with the plaint shall beintegral part of the decree

iv): The answering plaintiffs/respondents apart from bearingtheir own expenses of the case, shall also bear theexpenses of the case of the plaintiff/appellant.

v): Advocate’s fee, upon verification be payable in thedecree at Rs.300/- (Rupees Three hundred only).

vi): Accordingly, decree may be drawn.”

9. The respondents-original defendant Nos. 1 to 4 filed secondappeal before the High Court, being Second Appeal No.84 of 2002.While admitting the second appeal, the Court formulated two questionsas substantial questions of law. The same read thus:

“1. Whether the plaintiff being the female had got the rightto partition to the property solely belonged to Sukhdeoand devolved upon Janak Ram by survivorship after thedemise of his father Sukhdeo?”

2. Whether the suit land inherited by late Janak Ram fromhis father Sukhdeo, the sole owner of the same becamethe ancestral property for the plaintiff on the date ofdeath of Sukhdeo in 1965 and on the date of death ofJanak Ram in 1982?”

10. After analysing the factual matrix and the evidence on record,the High Court opined that the Appellate Court committed manifest errorand misapplied the settled legal position. The High Court consideredthe matter in the following words:

“8. The sole point which thus arises for determination in theSecond Appeal is whether the suit property was held by JanakRam in his own right to the exclusion of Pila Ram, and whetherthe rule of succession or the rule of survivorship shall apply. Ithas been pleaded in the plaint that three years after the death ofSukhdeo, partition took place in which the suit properties hadfallen to the share of Janak Ram. Once partition of thecoparcenary property takes place and the coparcener is put inexclusive possession of the property falling to his share to theexclusion of others he acquires an absolute right over theproperty. The plaintiff Radha Bai had mere spes successionisand would have been entitled to share by succession whichwould have opened only after the death of Janak Ram. In thisview of the matter, since Janak Ram, prior to his death in 1982,had sold the suit lands to the defendants No.1to 3 by executinga registered sale deed, the plaintiff Radha Bai could question thesame only on the limited ground of fraud or being withoutconsideration. During life time of Janak Ram, Radha Bai, beingthe daughter of predeceased son Saheblal, had merely spessuccessionis to the suit property and nothing more. There is nomaterial on record to show that the defendant No.4 – Sonu hadgot the sale deed dated 21.7.1979 executed from Janak Ramperforce or without consideration. In this view of the matter,Janak Ram who, after partition, held the suit property to theexclusion of the other coparcener had an absolute right to sell itto the defendants no.1 to 3. Radha Bai, the plaintiff, having failedto prove that the sale deed was without consideration or wasexecuted perforce could not challenge the said transaction on anyground. The evidence led by Radha Bai itself shows that shehad full knowledge of the sale deed executed by Janak Ram infavour of defendants No.1 to 3. Radha bai, the plaintiff, did notenter the witness box despite present in Court and having beenasked to do so. In this view of the matter, I am of the consideredopinion that the suit filed by Radha Bai must fail because therule of succession applied to the facts of the case and successionwould have opened only after the death of Janak Ram, who wasthe exclusive owner of the share received by him in partition withPilaram. The substantial question No.1 is thus answered innegative that Janak Ram being the exclusive owner of the suitproperty, during his life time Radha Bai had acquired no right tothe suit properties and to file suit for partition and possessionof the suit lands which had already been sold by Janak Ramduring his life time by executing sale deed in favour ofdefendants No.1 to 3. Question No.2 is answered that after deathof Sukhdeo, there was partition of coparcenary property inwhich Janak Ram had received the suit lands as his share andwas therefore, the absolute owner of the suit property. In thisview of the matter, rule of survivorship does not apply to the factsof the present case, since suit property, after partition, was heldby Janak Ram in his own right and to the exclusion of the othercoparcener. Thus, the suit property had, after partition effectedbetween Janak Ram and Pila Ram, ceased to be ancestralproperty and was held by Janak Ram as exclusive owner thereof.The rule of succession would thus apply to the present case andsuccession would have opened only after the death of Janak Ram.Therefore, Radha Bai, who had mere spes successionis couldsucceed only by proving that the sale deed executed by JanakRam was without consideration or was got executed bydefendant no.4 – Sonu perforce. Having failed to do so, the suitmust fail.

9. Having answered both the substantial questions of law, theappeal deserves to be allowed. Accordingly, the appeal is allowed.The judgment and decree dated 22.1.2002 passed by AdditionalDistrict Judge, Sakti, District Bilaspur in Civil Appeal No.5-A/2001 is set aside and the judgment and decree passed by CivilJudge, Class-II, Sakti dated 24.11.2000 in Civil Suit No.90-A/88is affirmed. There shall be no order as to costs.”

11. The appellant - plaintiff has assailed the aforesaid decisionof the High Court on the ground that in the backdrop of the indisputablefactual position and the decisions of this Court in Gurupad KhandappaMagdum Vs. Hirabai Khandappa Magdum and Others[1]andRamesh Verma (Dead) Through Legal Representatives Vs. LajeshSaxena (Dead) By Legal Representatives and Another[2], the HighCourt committed manifest error of law in holding that the rule ofsurvivorship will not apply and plaintiff had mere spes successionis.

1 (1978) 3 SCC 383

2 (2017) 1 SCC 257

AAccording to the appellant, the suit property was admittedly ancestralproperty in the hands of Sukhdeo. After coming into force of the HinduSuccession Act, 1956 (for short “the 1956 Act”) w.e.f. 17[th] June, 1956,as Saheblal had died after commencement of the 1956 Act, Section 6of the 1956 Act and in particular Explanation-I thereof, was clearlyattracted. As result of which, the notional partition of the coparcenaryBproperty had taken place before the death of Saheblal. The proviso toSection 6 was also attracted since Saheblal left behind his wifeLaxminbai and daughter Radhabai (appellant-plaintiff). Resultantly, theinterest of deceased Saheblal in the Mitakashara coparcenary propertystood devolved by succession under the 1956 Act and not byCsurvivorship. The appellant-plaintiff being the sole surviving heir ofSaheblal was claiming right in the entire share of Saheblal.

12. It is next urged that the sale deed executed by Janakram infavour of respondents-defendant Nos.1 to 3 respectively, dated 21[st]July, 1979, was ex facie illegal and not binding on the appellant-plaintiff.DJanakram had no authority to sell the ancestral property, which hadsettled in the coparceners after the death of Sukhdeo. Similarly, thepartition effected in 1967 between Janakram and Pilaram, leaving outthe branch of predeceased Saheblal, would be of no avail and cannotbe the basis to dislodge the claim of the plaintiff in the suit property.TheEappellant prays that the judgment and decree passed by the FirstAppellate Court, decreeing the suit in favour of the appellant-plaintiffbe upheld and restored.13. The respondents-defendants, on the other hand, wouldcontend that in the present case, Saheblal died in 1957. The ancestralFproperty was succeeded by two surviving sons of Sukhdeo - Janakramand Pilaram equally–when the succession had opened after the deathof Sukhdeo in 1965. The appellant-plaintiff was not an heir in Class –I at the relevant time. Had the appellant been daughter of predeceasedson of Sukhdeo, she may have had some chance of pursuing her claim.However, the appellant being the great-grand daughter of Sukhdeo, hadGno claim in the suit property in 1965. In law, the father of the appellant- Saheblal, could not have succeeded to the property during the life timeof his father Janakram. Whereas, on account of partition betweenJanakram and Pilaram after the demise of Sukhdeo, the suit propertycame to the exclusive share of Janakram and he had become absoluteHowner thereof. As Janakram held the suit property in his individual

capacity and not on behalf of coparceners and family members, he couldalienate the same as per his volition to any one, which he did in favourof his grandsons (respondents-defendant Nos.1 to 3 respectively) videregistered sale deed dated 21[st] July, 1979. In such situation, it is settledlaw that the grand daughter cannot be treated as an heir so as to havea share in the suit property.

14. To buttress the above noted submission, reliance is placedon the decision of the Madhya Pradesh High Court in the case ofChandrakanta and Others Vs. Ashok Kumar and Others[3] and twodecisions of this Court in Hardeo Rai Vs. Sakuntala Devi and Others[4]and Commissioner of Wealth Tax, Kanpur and Others Vs. ChanderSen and Others[5]. Additional reference is made to the dictum inYudhishter Vs. Ashok Kumar[6]and Smt. Raj Rani Vs. ChiefSettlement Commissioner, Delhi and Others[7]. It is urged that the HighCourt has not committed any error, much less manifest error,warranting interference by this Court. Hence, it is urged that this appealbeing devoid of merits, be dismissed.

15. We have heard Mr. Sarabjit Dutta, learned counsel for theappellant and Mr. Manoj Prasad, learned Senior Counsel for therespondents.

16. Before we proceed to analyse the rival submissions, it maybe apposite to reproduce Section 6 of the 1956 Act as applicable atthe relevant time. The same read thus:

“6. When male Hindu dies after the commencement of thisAct, having at the time of his death an interest in Mitaksharacoparcenary property, his interest in the property shall devolveby survivorship upon the surviving members of the coparcenaryand not in accordance with this Act:

Provided that, if the deceased had left him surviving femalerelative specified in Class I of the Schedule or male relativespecified in that class who claims through such female relative,the interest of the deceased in the Mitakshara coparcenary

3 2002 (3) MPLJ 576

4 (2008) 7 SCC 46

5 (1986) 3 SCC 567

6 (1987) 1 SCC 204

7 (1984) 3 SCC 619

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 interestof Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if aBpartition of the property had taken place immediately before hisdeath, irrespective of whether he was entitled to claim partitionor not.

Explanation 2.—Nothing contained in the proviso to theSection shall be construed as enabling person who hasCseparated himself from the coparcenary before the death of thedeceased or any of his heirs to claim on intestacy share in the”interest referred to therein.

17. This Court has noted the incidents of co-parcenership underthe Mitakshra Law, in the case of State Bank of India Vs. GhamandiDRam (Dead) Through Gurbax Rai[8]. In paragraph 5 of the reporteddecision, the Court observed thus:

“5. According to the Mitakshara School of Hindu Law all theproperty of Hindu joint family is held in collective ownershipby all the coparceners in quasi-corporate capacity. The textualEauthority of the Mitakshara lays down in express terms that thejoint family property is held in trust for the joint family membersthen living and thereafter to be born (see Mitakshara, Chapter I,1-27). The incidents of co-parcenership under theMitakshara law are: first, the lineal male descendants ofa person up to the third generation, acquire on birthFownership in the ancestral properties of such person;secondly, that such descendants can at any time work outtheir rights by asking for partition; thirdly, that till partitioneach member has got ownership extending over the entireproperty, conjointly with the rest; fourthly, that as resultGof such co-ownership the possession and enjoyment of theproperties is common; fifthly, that no alienation of theproperty is possible unless it be for necessity, without theconcurrence of the coparceners, and sixthly, that theinterest of deceased member lapses on his death to the

H8 (1969) 2 SCC 33

survivors. coparcenary under the Mitakshara School isa creature of law and cannot arise by act of parties exceptin so far that on adoption the adopted son becomes co-parcener with his adoptive father as regards the ancestralproperties of the latter.”

(emphasis supplied)

This exposition has been taken note of in Hardeo Rai (supra).After noticing this exposition, the Court went on to observe in paragraphNos.20 to 23 as follows:

“20. The first appellate court did not arrive at conclusion thatthe appellant was member of Mitakshara coparcenary. Thesource of the property was not disclosed. The manner in whichthe properties were being possessed by the appellant vis-à-visthe other co-owners had not been taken into consideration. It wasnot held that the parties were joint in kitchen or mess. No otherdocumentary or oral evidence was brought on record to showthat the parties were in joint possession of the properties.

21. One of the witnesses examined on behalf of the appellantadmitted that the appellant had been in separate possession ofthe suit property. The appellant also in his deposition acceptedthat he and his other co-sharers were in separate possession ofthe property.

22. For the purpose of assigning one’s interest in the property, itwas not necessary that partition by metes and bounds amongstthe coparceners must take place. When an intention is expressedto partition the coparcenary property, the share of each of thecoparceners becomes clear and ascertainable. Once the shareof coparcener is determined, it ceases to be coparcenaryproperty. The parties in such an event would not possess theproperty as “joint tenants” but as “tenants-in-common”. Thedecision of this Court in SBI1, therefore, is not applicable to thepresent case.

23. Where coparcener takes definite share in the property, heis owner of that share and as such he can alienate the same bysale or mortgage in the same manner as he can dispose of hisseparate property.”

AIn the case of Chander Sen (supra), this Court considered theinterplay between Sections 4, 6 and 8 of the 1956 Act including ChapterII and heirs in Class-I of the Schedule. The Court noted as follows:

“10. The question here, is, whether the income or asset which ason inherits from his father when separated by partition the sameBshould be assessed as income of the Hindu undivided family ofson or his individual income. There is no dispute among thecommentators on Hindu law nor in the decisions of the court thatunder the Hindu law as it is, the son would inherit the same askarta of his own family. But the question is, what is the effectof Section 8 of the Hindu Succession Act, 1956? The HinduCSuccession Act, 1956 lays down the general rules of successionin the case of males. The first rule is that the property of maleHindu dying intestate shall devolve according to the provisionsof Chapter II and Class I of the Schedule provides that if thereis male heir of Class I then upon the heirs mentioned in ClassDI of the Schedule. Class I of the Schedule reads as follows:

“Son; daughter; widow; mother; son of predeceased son;daughter of predeceased son; son of predeceased daughter;daughter of predeceased daughter; widow of predeceasedson; son of predeceased son of predeceased son; daughterEof predeceased son of predeceased son; widow of apredeceased son of predeceased son.”

11. The heirs mentioned in Class I of the Schedule are son,daughter etc. including the son of predeceased son but doesnot include specifically the grandson, being, son of son living.FTherefore, the short question, is, when the son as heir of Class I of theSchedule inherits the property, does he do so in his individual capacityor does he do so as karta of his own undivided family?

12. Now the Allahabad High Court has noted that the case ofCIT v. Ram Rakshpal, Ashok Kumar after referring to the relevantGauthorities and commentators had observed at p. 171 of the said reportthat there was no scope for consideration of wide and general natureabout the objects attempted to be achieved by piece of legislationwhen interpreting the clear words of the enactment. The learned judgesobserved, referring to the observations of Mulla’s Commentary onHindu Law and the provisions of Section 6 of the Hindu SuccessionHAct, that in the case of assets of the business left by father in the handsof his son will be governed by Section 8 of the Act and he would takein his individual capacity. In this connection reference was also madebefore us to Section 4 of the Hindu Succession Act. Section 4 of thesaid Act provides for overriding effect of Act. Save as otherwiseexpressly provided in the Act, any text, rule or interpretation of Hindulaw or any custom or usage as part of that law in force immediatelybefore the commencement of this Act shall cease to have effect withrespect to any matter for which provision is made in the Act and anyother law in force immediately before the commencement of the Actshall cease to apply to Hindus insofar it is inconsistent with any of theprovisions contained in the Act. Section 6 deals with devolution ofinterest in coparcenary property and it makes it clear that whena male Hindu dies after the commencement of the Act havingat the time of his death an interest in Mitakshara coparcenaryproperty, his interest in the property shall devolve bysurvivorship upon the surviving members of the coparcenaryand not in accordance with the Act. The proviso indicates thatif the deceased had left him surviving female relative specifiedin Class I of the Schedule or male relative specified in thatclass who claims through such female relative, the interest ofthe deceased in Mitakshara coparcenary property shall devolveby testamentary or intestate succession, as the case may be,under this Act and not by survivorship.”

(emphasis supplied)

Again in paragraph 15:

“15. It is clear that under the Hindu law, the moment son isborn, he gets share in the father’s property and becomes partof the coparcenary. His right accrues to him not on the death ofthe father or inheritance from the father but with the very factof his birth. Normally, therefore whenever the father gets aproperty from whatever source from the grandfather or fromany other source, be it separated property or not, his son shouldhave share in that and it will become part of the joint Hindufamily of his son and grandson and other members who formjoint Hindu family with him. But the question is: is the positionaffected by Section 8 of the Hindu Succession Act, 1956 and ifso, how? The basic argument is that Section 8 indicates the heirsin respect of certain property and Class I of the heirs includes

the son but not the grandson. It includes, however, the son ofthe predeceased son. It is this position which has mainly inducedthe Allahabad High Court in the two judgments, we have noticed,to take the view that the income from the assets inherited byson from his father from whom he has separated by partitioncan be assessed as income of the son individually. Under Section8 of the Hindu Succession Act, 1956 the property of the fatherwho dies intestate devolves on his son in his individual capacityand not as karta of his own family. On the other hand, the GujaratHigh Court has taken the contrary view.”

After considering the divergent views expressed by theCAllahabad High Court, Full Bench of the Madras High Court, MadhyaPradesh and Andhra Pradesh High Courts on one side and the GujaratHigh Court on the other, it proceeded to opine as follows:

“21. It is necessary to bear in mind the preamble to the HinduSuccession Act, 1956. The preamble states that it was an ActDto amend and codify the law relating to intestate successionamong Hindus.

22. In view of the preamble to the Act i.e. that to modify wherenecessary and to codify the law, in our opinion it is not possiblewhen Schedule indicates heirs in Class I and only includes sonand does not include son’s son but does include son of apredeceased son, to say that when son inherits the property inthe situation contemplated by Section 8 he takes it as karta ofhis own undivided family. The Gujarat High Court’s viewnoted above, if accepted, would mean that though the sonof predeceased son and not the son of son who isintended to be excluded under Section 8 to inherit, thelatter would by applying the old Hindu law get right bybirth of the said property contrary to the scheme outlinedin Section 8. Furthermore, as noted by the Andhra Pradesh HighCourt that the Act makes it clear by Section 4 that one shouldlook to the Act in case of doubt and not to the pre-existing Hindulaw. It would be difficult to hold today that the property whichdevolved on Hindu under Section 8 of the Hindu SuccessionAct would be HUF in his hand vis-à-vis his own son; that wouldamount to creating two classes among the heirs mentioned inClass I, the male heirs in whose hands it will be joint Hindu family

property vis-à-vis son and female heirs with respect to whomno such concept could be applied or contemplated. It may bementioned that heirs in Class I of Schedule under Section8 of the Act included widow, mother, daughter ofpredeceased son etc.

23. Before we conclude we may state that we have noted theobservations of Mulla’s Commentary on Hindu Law, 15th Edn.dealing with Section 6 of the Hindu Succession Act at pp. 924-26 as well as Mayne’s on Hindu Law, 12th Edn., pp. 918-19.

24. The express words of Section 8 of the Hindu Succession Act,1956 cannot be ignored and must prevail. The preamble to theAct reiterates that the Act is, inter alia, to “amend” the law, withthat background the express language which excludes son’s sonbut includes son of predeceased son cannot be ignored.”

(emphasis supplied)

This decision has been quoted with approval in Yudhishter(supra). In paragraph 10 of the said decision, the Court observed thus:

“10. This question has been considered by this Court in CWT v.Chander Sen where one of us (Sabyasachi Mukharji, J.)observed that under the Hindu law, the moment son is born,he gets share in father’s property and becomes part of thecoparcenary. His right accrues to him not on the death of thefather or inheritance from the father but with the very fact ofhis birth. Normally, therefore whenever the father gets propertyfrom whatever source, from the grandfather or from any othersource, be it separated property or not, his son should have ashare in that and it will become part of the joint Hindu family ofhis son and grandson and other members who form joint Hindufamily with him. This Court observed that this position has beenaffected by Section 8 of the Hindu Succession Act, 1956 and,therefore, after the Act, when the son inherited the property inthe situation contemplated by Section 8, he does not take it askarta of his own undivided family but takes it in his individualcapacity. At p. 577 to 578 of the Report, this Court dealt withthe effect of Section 6 of the Hindu Succession Act, 1956 andthe commentary made by Mulla, 15th Edn., pp. 924-26 as wellas Mayne’s Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied

EFG

Aon the said observations of Mayne on Hindu Law, 12th Edn.,at p. 918-19. This Court observed in the aforesaid decision thatthe views expressed by the Allahabad High Court, the MadrasHigh Court, the Madhya Pradesh High Court and the AndhraPradesh High Court appeared to be correct and unable to acceptthe views of the Gujarat High Court. To the similar effect is theBobservation of learned author of Mayne’s Hindu Law, 12th Edn.,p. 919. In that view of the matter, it would be difficult to holdthat property which devolved on Hindu under Section 8 of theHindu Succession Act, 1956 would be HUF in his hand vis-à-vishis own sons. If that be the position then the property whichCdevolved upon the father of the respondent in the instant caseon the demise of his grandfather could not be said to be HUFproperty. If that is so, then the appellate authority was right inholding that the respondent was licensee of his father in respectof the ancestral house.”

D18. The respondents have also invited our attention to the decisionof Madhya Pradesh High Court in Chandrakanta (supra), which hadfollowed the aforementioned dictum to reject the claim of the plaintiffson the ground that so long as their father was alive, they cannot claimany right.

E19. Reverting to the factual matrix of the present case, it isnoticed that Sukhdeo had inherited ancestral property and was alive till1965. The father of appellant, Saheblal, predeceased him in 1957.Saheblal was the son of Janakram. Janakram died in 1982. During thelife time of Janakram, in terms of Section 6 of the 1956 Act, Saheblalcould not have succeeded to the property as he could claim only throughFJanakram. Janakram, however, was alive till 1982. If Saheblal himselfhad no claim in his own rights, the question of appellant, being hisdaughter, succeeding to the property does not arise.

20. The consistent view of this Court, including of three JudgeBench, is that the grand son or grand daughter is clearly excluded fromGheirs in Class-I. Saheblal himself was grand son of Sukhdeo, whopredeceased Sukhdeo. After the demise of Sukhdeo in 1965, therefore,the ancestral suit property could be and came to be partitioned betweenJanakram and Pilaram in 1967. As result of that partition, the suitproperty came to the exclusive share of Janakram in his individualHcapacity. He could, therefore, legitimately dispose of the same in the

manner he desired and which he did in favour of his grandsons(defendant Nos.1 to 3 respectively) vide registered sale deed dated 21[st]July, 1979. Neither the stated partition of 1967 nor the registered saledeed in favour of respondents (defendant Nos.1 to 3) dated 21[st] July,1979 has been challenged. The relief sought in the suit as filed by theappellant/plaintiff is only for partition and awarding share to theappellant/plaintiff alongwith possession. Suffice it to observe that, thegrand-daughter of Janakram (appellant herein) could not have claimeda higher right than the right of her father Saheblal.21. Reliance placed by the appellant on the decision of this Courtin Gurupad Khandappa Magdum (supra), is inapposite. In that case,the plaintiff, being heir in Class-I, claimed to have share in the interestof her husband which he had at the time of his death in the coparcenaryproperty. In that view of the matter, in terms of proviso to Section 6 ofthe 1956 Act, the interest of her husband in the coparcenary propertywould devolve by succession under the 1956 Act. Similarly, in the caseof Raj Rani (supra), the Court was called upon to consider the disputebetween the widow, three sons and three daughters of the deceasedwho being heirs in Class-I had succeeded to interest in equal shares,as the property in question was Mitakshara coparcenary property, byvirtue of Explanation-I of Section 6 of the 1956 Act. That analysis canbe discerned from paragraph 17 of the reported judgment. Even therecent decision of this Court in Ramesh Verma (supra), does not takethe matter any further for the appellant. Inasmuch as, even in that case,the dispute was between the concerned heirs in Class-I after the demiseof Bhagwan Das. Before commencement of the 1956 Act, the notionalpartition had taken place and as per Section 82 of the Madhya BharatLand Code, his sons and wife became entitled to get 1/3 share in theproperty. On partition, share had fallen to one of the sons which becamehis separate property and no longer remained Mitakshara property.This factual position could be discerned from paragraph 11 of thereported judgment.

22. priori, we uphold the view taken by the High Court thatafter the death of Sukhdeo in 1965, the property devolved upon his twosons Janakram and Pilaram. They succeeded to the ancestral propertyequally. They later effected partition in 1967, as result of which, theproperty came to the exclusive share of Janakram. The father ofappellant, Saheblal, had predeceased his father Janakram and even hisgrandfather Sukhdeo. During the life time of Janakram, Saheblal could

138SUPREME COURT REPORTS

Anot have succeeded to the property and for the same reason, theappellant being his daughter cannot be heard to claim any right higherthan that of Saheblal. Applying the settled legal position to the presentcase, the grounds urged by the appellant need to be rejected.

23. Accordingly, this appeal must fail. Hence, the same isBdismissed with no order as to costs.

24. All pending applications are also disposed of in the aboveterms.

Ankit GyanC

Appeal dismissed.