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CASE NO.: Appeal (civil)  1233 of 2008

PETITIONER: Bhanwar Singh

RESPONDENT: Puran & Ors

DATE OF JUDGMENT: 12/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.     1233           OF 2008 (Arising out of SLP (C) No.9503 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Applicability of Section 8 of the Hindu Succession Act, 1956 (the  Act) to the facts of the present case is in question in this appeal which arises  out of a judgment and order dated 14.11.2006 passed by a learned Single  Judge of the Punjab and Haryana High Court whereby and whereunder the  second appeal preferred by the appellant herein was dismissed. 3.      One Bhima was the owner of the property.  He died in the year 1972  leaving behind his son, Sant Ram and three daughters, Shanti, Manti and  Shakuntala.  Appellant, who is son of Sant Ram was born in the year 1977.   He attained majority in the year 1995.  The properties in suit were  partitioned between Sant Ram and his sisters.  Their names were mutated in  the revenue records of rights.  Their shares in the properties of the deceased  Bhima were shown to be 1/4th each in the revenue records of 1973-74.   4.      Inter alia, on the premise that the properties of Bhima were joint  family properties and the same were transferred by Sant Ram, firstly by way  of mortgage and thereafter by sale in favour of the respondents herein in the  year 1985, the appellant filed a suit for setting aside the said alienations. It  was  contended that the consideration for the said transaction being a meager  sum of Rs.12,000/- and furthermore being not for legal necessity, the same  should be set aside.   5.      The said suit was decreed by the learned Trial Judge holding that the  property was joint family one and Sant Ram being the ’Karta’, could not  have transferred the same, save and except by way of legal necessity.  The  learned First Appellate Court, however, reversed the same findings, inter  alia, holding that upon the death of Bhima, Sant Ram became a co-sharer of  the property and having regard to the entries of the jamabandi for the year  1973-74, it had been established that he, along with his sisters, having  inherited the same in equal shares, the property lost the character of ancestral  property in terms of Section 8 of the Hindu Succession Act.   6.      It was furthermore opined that even if the property was a joint  property, the interest of Sant Ram being 1/4th in the half share therein and  the other half of Bhima having been inherited by Sant Ram and his sisters,  the disputed property ceased to be a Hindu Undivided Family Property.  In  any event, the Deed of Sale executed by Sant Ram having been executed for  legal necessity as the suit property had already been mortgaged, the deeds of  sale could not have been cancelled.   A limited notice was issued by this Court as to whether the father of  the petitioner had inherited the property from his forefathers.   7.      Mr. Gagan Gupta, learned counsel appearing on behalf of the  appellant, would submit that the Appellate Court as also the High Court

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committed a serious error in so far as they failed to take into consideration  the well settled principles of Hindu Law that transfer made by the father  after the birth of the son would be held to be illegal unless legal necessity  therefor is proved, as such transactions could be entered into by the manager  or karta of the family only for legal necessity and for no other.  The  Appellate Court, it was contended, committed a serious error in so far as it  proceeded to hold that the property in question became separate property at  the hands of Sant Ram, but, despite the same, it proceeded to determine the  question of legal necessity also.  It was furthermore submitted that only  because some entries have been made in the record of rights, the same by  itself would not lead to deprivation of the title in the property in the  appellant. 8.      Mr. Manoj Swarup, learned counsel appearing on behalf of the  respondents, on the other hand, would submit that in view of Section 8 of the  Hindu Succession Act, as the son of Bhima and his daughters inherited his  property and not the appellant as a grandson, the impugned judgment is  unassailable. 9.      The fact that the property at one point of time was a joint family  property stands admitted.   10.     The only question arises for consideration is as to whether the  appellant had acquired any interest therein by his birth in the year 1977;  Bhima having died in 1972.   11.     The Act brought about a sea change in the matter of inheritance and  succession amongst Hindus.  Section 4 of the Act contains a non-obstente  provision in terms whereof any text, rule or interpretation of Hindu Law or  any custom or usage as part of that law in force immediately before the  commencement of the Act, ceased to have effect with respect to any matter  for which provision is made therein save as otherwise expressly provided.   Section 6 of the Act, as it stood at the relevant time, provided for  devolution of interest in the coparcenary property.  Section 8 lays down the  general rules of succession that the property of a male dying intestate  devolve according to the provisions of the Chapter as specified in clause (1)  of the Schedule.  In the Schedule appended to the Act, natural sons and  daughters are placed in Class-I heirs but a grandson, so long as father is  alive, has not been included.  Section 19 of the Act provides that in the event  of succession by two or more heirs, they will take the property per capita and  not per stirpes, as also tenants-in-common and not as joint tenants.   12.     Indisputably, Bhima left behind Sant Ram and three daughters.  In  terms of Section 8 of the Act, therefore, the properties of Bhima devolved  upon Sant Ram and his three sisters.  Each had 1/4th share in the property.   Apart from the legal position, factually the same was also reflected in the  record of rights.  A partition had taken place amongst the heirs of Bhima. 13.     Although the learned First Appellate Court proceeded to consider the  effect of Section 6 of the Act, in our opinion, the same was not applicable in  the facts and circumstances of the case.  In any event, it had rightly been  held that even in such a case, having regard to Section 8 as also Section 19  of the Act, the properties ceased to be joint family property and all the heirs  and legal representatives of Bhima would succeed to his interest as tenants  in common and not as joint tenants.  In a case of this nature, the joint  coparcenary did not continue. 14.     Interpretation of Section 8 of the Hindu Succession Act came up for  consideration before this Court in Commissioner of Wealth Tax, Kanpur &  Ors. v. Chander Sen & Ors. [(1986) 3 SCR 254].  Mukherjee, J. (as the  learned Chief Justice then was) upon considering the changes effected by the  Hindu Succession Act as also the implication thereof and upon taking into  consideration the decisions of Calcutta High Court, Madhya Pradesh High  Court, Andhra Pradesh High Court as also Madras High Court on the one  hand and the Gujarat High Court on the other, opined : "In view of the preamble to the Act, i.e., that to  modify where necessary and to codify the law, in  our opinion it is not possible when Schedule  indicates heirs in class I and only includes son and  does not include son’s son but does include son of  a predeceased son, to say that when son inherits  the property in the situation contemplated by

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Section 8 he takes it as karta of his own undivided  family. The Gujarat High Court’s view noted  above, if accepted, would mean that though the son  of a predeceased son and not the son of a son who  is intended to be excluded under Section 8 to  inherit, the latter would by applying the old Hindu  law get a right by birth of the said property  contrary to the scheme outlined in Section 8.  Furthermore as noted by the Andhra Pradesh High  Court that the Act makes it clear by Section 4 that  one should look to the Act in case of doubt and not  to the pre-existing Hindu law. It would be difficult  to hold today the property which devolved on a  Hindu under Section 8 of the Hindu Succession  would be HUF in his hand vis-a-vis his own son;  that would amount to creating two classes among  the heirs mentioned in class I, the male heirs in  whose hands it will be joint Hindu family property  and vis-a-vis son and female heirs with respect to  whom no such concept could be applied or  contemplated. It may be mentioned that heirs in  class I of Schedule under Section 8 of the Act  included widow, mother, daughter of predeceased  son etc. Before we conclude we may state that we  have noted the obervations of Mulla’s Commentary  on Hindu law 15th Edn. dealing with Section 6 of  the Hindu Succession Act at page 924-26 as well  as Mayne’s on Hindu Law, 12th Edition pages 918- 919. The express words of Section 8 of The  Hindu Succession Act, 1956 cannot be ignored and  must prevail. The preamble to the Act reiterates  that the Act is, inter alia, to ’amend’ the law, with  that background the express language which  excludes son’s son but included son of a  predeceased son cannot be ignored."

15.     The Gujarat High Court in Commissioner of Income-tax, Gujarat-I v.  Babubhai Manshkhbhai (Deceased) [108 ITR 417], however, it may be  noticed, had taken the view that in the case of the Hindus governed by  Mitakshara law, where a son inherited the self- acquired property of his  father, he took it as a joint family property of himself and his son and not as  his separate property.  The said view, as indicated hereinbefore was not  accepted by this Court.   The principle evolved in Chander Sen (supra) was reiterated by this  Court in Yodhishter v. Ashok Kumar [(1987) 1 SCR 516 at 523]; Sunderdas  Thackersay & Bros. v. Commissioner of Income-tax [1982 (137) ITR 646];  Commissioner of Income Tax v. P.L. Karuppan Chettiar [1993 Supp.(1)  SCC 580]; and  Additional Commissioner of Income-tax v. M. Karthikeyan  [1994 Supp.(2) SCC 112]. In Yodhishter (supra), this Court observed: "This question has been considered by this  Court in Commissioner of Wealth Tax, Kanpur  and Ors. v. Chander Sen and Ors. [(1987) 1 SCR  516] where one of us (Sabyasachi Mukharji, J)  observed that under the Hindu Law, the moment a  son is born, he gets a share in father’s property and  become part of the coparcenary. His right accrues  to him not on the death of the father or inheritance  from the father but with the very fact of his birth.  Normally, therefore whenever the father gets a  property from whatever source, from the  grandfather or from any other source, be it  separated property or not, his son should have a

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share in that and it will become part of the joint  Hindu family of his son and grandson and other  members who form joint Hindu family with him."  

16.     Moreover, recently in Sheela Devi & Ors. v. Lal Chand & Anr. [(2006  (8) SCC 581], a Bench of this Court of which one of us was a member, held: "21. The Act indisputably would prevail over the  old Hindu law.  We may notice that Parliament,  with a view to confer right upon the female heirs,  even in relation to the joint family property,  enacted the Hindu Succession Act, 2005.  Such a  provision was enacted as far back in 1987 by the  State of Andhra Pradesh.  The succession having  opened in 1989, evidently, the provisions of the  Amendment Act, 2005 would have no application.   Sub-section (1) of  Section 6 of the Act governs  the law relating to succession on the death of a  coparcener in the event the heirs are only male  descendants.  But, the proviso appended to sub- section (1) of Section 6 of the Act creates an  exception.  First son of Babu Lal viz. Lal Chand,  was, thus, a coparcener.  Section 6 is an exception  to the general rules.  It was, therefore, obligatory  on the part of the respondent-plaintiffs to show that  apart from Lal Chand, Sohan Lal will also derive  the benefit thereof.  So far as the second son,  Sohan Lal is concerned, no evidence has been  brought on record to show that he was born prior  to coming into force of the Hindu Succession Act,  1956."

In that case, the properties in question were joint family properties.   They were copercenars.  After the death of Tulsi Ram, Babu Ram, whose  heirs were the appellants therein, inherited 1/5th share in the property.  The  relationship between the parties was not in dispute.  Tulsi Ram was the  owner of the property. He died in the year 1889 leaving behind five sons,  namely, Waliwati, Babu Ram, Charanji Lal, Hukam Chand and Uggar Sain.  On the death of  Uggar Sain 1/20th share of Tulsi Ram was also devolved on  him. The High Court arrived at a finding of fact that the properties were  coparcenary and ancestral property.  It was held that the law which was  applicable in the case would be the one which was prevailing before coming  into force of the Hindu Succession Act and the parties would be governed  thereby under the provisions thereof.  It was in the aforementioned situation  and having regard to the fact that the succession of the property was  governed in terms of Section 6 of the Act, it was held : "12.The principle of law applicable in this case is  that so long a property remains in the hands  of a  single person, the same was to be treated as a  separate property, and thus such a person would be  entitled to dispose of the coparcenary property as  the same were his separate property, but, if a son is  subsequently born to him or adopted by him, the  alienation whether it is by way of sale, mortgage or  gift, will nevertheless stand, for a son cannot  object to alienations so made by his father before  he was born or begotten {See C. Krishna Prasad v.  CIT [(1975 1 SCC 160]}.  But once a son is born,  it becomes a coparcenary property and he would  acquire an interest therein."    In that case, as noticed hereinbefore, Babu Ram had no son in the year  1922 but a son, Lal Chand, was born to him in the year 1938 and another  son, Sohan Lal, was born in 1956.  It was in the aforementioned situation,  this Court held that a joint family revived on the birth of Lal Chand.  This  Court, in that view of the matter also opined that as there was no proof as to

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whether the second son was born after the coming into force of the Hindu  Succession Act, it was held that his heirs were not entitled to take the benefit  of the coparcenary interest. Sheela Devi, therefore, is not applicable to the fact of the present case.   17.     It is true that the first Court of Appeal also entered into the question of  legal necessity for Sant Ram to alienate the property in favour of the  contesting respondents but the said issue was considered in the alternative to  the principal issue.  If the First Appellate Court was correct in its opinion  and we do not see any reason to differ therewith that Section 6 of the Hindu  Succession Act was not attracted to the facts of this case in view of the fact  that Sant Ram and his sisters having partitioned their properties became  owners to the extent of 1/4th share each, he had the requisite right to transfer  the lands falling within his share.   18.     Furthermore, in terms of Section 19 of the Act, as Sant Ram and his  sisters became tenants in common and took the properties devolved upon  them per capita and not per stirpes, each one of them was entitled to alienate  their share, particularly when different properties were allotted in their  favour.  It is, therefore, not correct to contend that the Court of First Appeal  arrived at a self-contradictory or inconsistent finding, as was submitted by  Mr. Gupta.   19.     For the reasons aforementioned, there is no infirmity in the impugned  judgment.  There is no merit in the case.  It is dismissed accordingly.  In the  facts and circumstances of the case, however, there shall be no order as to  costs.