1. In 1956 the Hindu Law underwent extensive reforms inter alia in the law of inheritance and succession. The enactment of the Hindu Succession Act, 1956 dealt with coparcenary property which survived upon any of the coparceners having female heirs. This brought about a departure from the old Hindu Law such that upon the death of any coparcener the incidents of coparcenary property and its survivorship was largely diluted.
2. The above rules of devolution of interest in coparcenary property would, therefore be, to the extent stated in Section 6 of the HSA, overridden and would cease to apply as inconsistent with the provisions of the HSA. Consequently in case of ancestral property consisting of a father and his sons and grandsons only the rules of coparcenary property under the uncodified law would still prevail. But if the father has e.g. not only sons but also daughters and not only grandsons but also granddaughters his interest in coparcenary property would not survive to the other members of the coparcenary but would succeed to his heirs so that not only his sons and grandsons would get an increased share upon his death, but his successors being his sons, daughters as also his widow and his mother would succeed to his interest in the coparcenary property under the provisions of the HSA. …. Hence there is a notional partition which is deemed to have been effected upon the death of a coparcener under Section 6 of the HSA 1956. The share so separated devolves
upon the heirs of the deceased instead of vesting in the other coparceners by survivorship. Such partition does not bring about disruption in the coparcenary. It is only the interest of the deceased which is separated. The coparcenary minus the interest of the deceased continues with its incidents. The surviving coparceners continue as such. ………… Further amendment to Section 6 by the Amendment Act 39 of 2005 which came into effect from 09.09.1995 brought about further changes in devolution of interest of a Hindu male in coparcenary property. ……. There would be a notional partition under Section 6 of HSA, 1956 if a female relative (heir) or a person claiming through female relative (heir) was left by the deceased male Hindu coparcener. There shall be a deemed partition under the statutory provisions contained in Section 6(3) of the Act as amended in 2005. That would be a partition of the interest in Mitakshara property of a Hindu dying intestate. Consequently after 2005 upon the death of a coparcener, leaving any child, his son and his daughter would share equally in his interest in coparcenary property. They would share as if there was a partition. For all the Hindus dying after the commencement of the Amendment Act, leaving any child, the interest in the joint family property which he had would not survive at all. It would only succeed - either by testamentary or intestate succession. This has brought about a total departure from the law relating to the coparcenary property. After 2005 for all Hindus leaving any child there could be no case of survivorship at all; after 1956 but before 2005 there would be survivorship of interest in coparcenary property but only in a family having no female relatives (heirs). Even during that period in a family having female relatives (heirs) there would be no survivorship but only succession of the interest of a Hindu male in Mitakshara coparcenary property.
3. The Schedule annexed to Section 8 showing Class I and Class II heirs show the son, daughter, widow and mother of a Hindu male dying intestate as his first heirs. Along with them are included the sons and daughters of predeceased sons and daughter; a grandson is not included anywhere in Class I or Class II of the schedule to Section 8 of the HSA. The grandson never succeeds to the property of the Hindu male dying intestate. That includes also the interest in the joint family property which that Hindu male had and which would constitute his property or his estate. …….. The act also deals with the property of a female Hindu which would be her absolute property under Section 14 and the rules of succession of female Hindus under Sections 15 & 16 but with which the dispute in this case is not concerned and hence which shall not be dealt with.
4. Hence if there are two or more heirs when they succeed to a property, the property would devolve upon them per capita each one taking for that branch and as tenants in common so that the heirs of any deceased successor would claim the share of such successor. This is a further departure from the uncodified Hindu Law of survivorship of a coparcenary property in which the shares would fluctuate on the birth and death of any male member so that the other surviving male members would get a decreased or increased share upon the birth and death respectively thus
augmenting the shares of all the survivors. The shares of the successors under the Hindu Succession Act would not so augment. Each branch would take its share; the increase and decrease would be within that branch. The successors of those successors alone would get that share.
5. The interest of a Hindu in a coparcenary part which would otherwise survive to other coparceners equally can, therefore, be disposed of by will. Consequently the interest of a Hindu in Mitakshara coparcenary property would not per se survive upon coming into force of the HSA. If the Hindu does not leave behind any will it would only succeed to his/her heirs under Section 8/15 of the Act as applicable.
6. Consequently the general rules of jointness of a Hindu family, being community of interest and unity of possession, the incidents of a joint family property, the coparcener surviving to the interest of a deceased coparcener, the share of a coparcener diminishing or augmenting upon the death or birth of another coparcener, the joint ownership of a coparcener, the undivided share of coparcenary etc. stand diluted upon any coparceners having any female heir since 1956 in respect of such interest.
7. The true effect of the uncodified Hindu law relating to the Hindu coparcenery, therefore, applied only so long as there were only male heirs in that HUF after 1956.
It would continue as before until any one coparcener died. The devolution of interest in the coparcenary got changed as per Section 6 of the HSA. It continued as before if he had only sons. It came to an end in effect if he had a single daughter or even a predeceased son having a single daughter such that he had a female relative (heir) or a male heir claiming through a female relative (heir).
8. Supreme Court in the case of Commissioner of Wealth-tax, Kanpur Vs. Chander Sen AIR 1986 SC 1753 relating to partition of joint family business. In that case there was a partition of joint family business between the father and his only son. The father and son continued the business in partnership. The son formed the joint family with his own sons. The father died leaving behind amounts standing to the credit of the father in the partnership account. That amount was held to have devolved upon his son by succession. The son was his only heir. The son was, therefore, held to have inherited that property as an individual and not as Karta as his own joint family. That judgment relates to the account of property which an heir succeeds to. It does not deal with succession of a deceased Hindu male alone. It deals with how the property is to be assessed. In that case there was a partition.
Upon partition the share coming to the coparceners would be their separate individual property acquired by them on partition. The property would no longer be coparcenery. That property would have to succeed; it can never survive to the other
coparceners, because there are no coparceners upon the partition. The joint Hindu family comes to an end upon the partition. That property being the self acquired property of a given coparcener, who no longer is a coparcener because the joint Hindu family no longer continues joint, would succeed under Section 8 to Class I heirs initially.
9. Hence any property which devolves under Section 8 of the HSA upon the death of a Hindu male would be his own individual property incapable of partition. It would be his own property in which his son or grandson would have no interest during his lifetime. The properties which devolve under Section 8 of the HSA are self acquired properties or partitioned HUF properties. They are not ancestral HUF properties which are not partitioned. The law which as laid down by the Supreme Court considering the aforesaid judgments of various High Courts was in respect of separate or partitioned properties. The law is the same also with regard to the interest of a coparcener in ancestral properties in case where the ancestor had female relatives (heirs).
10. It must be appreciated that when a joint Hindu family consists only of a father and a son both have an equal interest in the joint family property. On the death of the father, the father's interest would survive to the son if he has no child. It would succeed to the son if he has a female child (heir) after 1956 and if he has either a female or a male child (heir) after 2005. In such a case the entire estate of the father would devolve upon the son by succession or survivorship. Where, however, there are more coparceners in a joint Hindu family, the entire estate of the father would be less than the entire coparcenary properties. In such a case interest of the father would succeed to his heirs under Section 8 of the HSA and the remainder of the coparcenary properties would remain in the coparcenary and the other coparceners would continue to be such. Since the coparcenary would then remain, their interest would be diminished by the birth of any member in the coparcenary (either male or female after 2005) and would be augmented upon the death of any coparcener (who does not leave behind any heir).
11. In the case of Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum & Ors.
AIR 1978 SC 1239 it is held that the share of the deceased in the coparcenary property must be ascertained to ascertain the share of the heirs in the property of the deceased coparcener. The share that will succeed to them is only the share in the property that would have been allotted to the deceased coparcener if a partition of that property had taken place immediately before his death. It must, therefore, be
assumed that the partition had so taken place. The share of the other heirs cannot be ascertained without reference to such share which would devolve by succession.
All the consequences which flow from a real partition have to be logically worked out so that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. Hence the heirs of such deceased coparcener will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she would receive in the notional partition. Similarly the share of the widow in the coparcenary property would be ascertained by adding the share to which she is entitled upon the notional partition during her husband's lifetime to the share which she would get in the husband's interest upon his death.
12. It can be seen that the plaintiffs have not understood the concept of joint ownership and co-ownership of ancestral properties. Ancestral properties cannot be jointly owned. Joint properties survive to the joint holders entirely upon the death of one joint holder. Ancestral properties survive to all the members of the coparcenary.
Ancestral properties can be co- owned by community of interest and unity of possession such that each party is an owner of an undivided share. Upon the incidents of joint family property or coparcenary property, this interest is augmented by the death of any coparcener (co-owner) and is diminished by the birth of any coparcener in the HUF. The fact remains that the properties in Exhibit A stated to be the co- owned or jointly owned are unmistakably and repeatedly stated to be ancestral properties. The ancestral properties would survive to the coparceners in a Hindu coparcenary owning such joint family properties. The only exceptions to that would be the interest of the deceased Hindu in such coparcenary.
13. Alienation can be made for the benefit of the estate, for legal necessity or for meeting any antecedent debts, for management of the joint property by the Karta or pious obligation of a son to discharge his father's debts subject to Section 6(4) of the has as amended in 2005 which runs thus. (4). After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the
same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
14. Apex Court in its judgment in the case of Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another, reported in AIR 1952 SC 72. The relevant portion contained in para 13 is reproduced below : "13. ... We think, however, that the statements could be admitted under Section 32(3) of the Evidence Act. The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under Section 32(3) of the Evidence Act. The assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of the same statement (vide Blackburn, J. in Smith v. Blakey). It is not merely the precise fact which is against interest that is admissible but all matters that are "involved in it and knit up with the statement. ..."