Bombay High Court
Vasant S/O Kashinath Salve vs Moreshwar S/O Bhujangrao Niwalkar And ... on 17 October, 2024
Author: M.W. Chandwani
Bench: M.W. Chandwani
2024:BHC-NAG:12214
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.479 OF 2019
Vasant S/o Kashinath Salve
Aged about 62 years, Occ: Private Medical
R/o Colliery Road, Ballarpur,
Tahsil Ballarpur, Dist. Chandrapur. ...APPELLANT
(Orig. Deft. No.2)
(On R.A.)
...V E R S U S...
1. Moreshwar S/o Bhujangrao Niwalkar
Aged about 66 years, Occ: Private work,
2. Arun S/o Bhujangrao Niwalkar
Aged about 66 years, Occ: Private work,
3. Anil S/o Bhujangrao Niwalkar
Aged about 66 years, Occ: Private work,
...(Orig. Plaintiffs)
(On R.A.)
4. Bhujangrao S/o Sitaram Niwalkar
[Died during the pendency of the suit.
Hence, deleted by the trial Court]
... (Orig. Def.No.2)
All R/o Bamani, Tahsil Ballarpur,
District Chandrapur. ...RESPONDENTS
-------------------------------------------------------------------------------------------
Mr. Rohit Joshi a/w Mr. Madhur Deo, Advocates for Appellant.
Ms Kirti Satpute, Advocate for respondent nos.1 to 3.
-------------------------------------------------------------------------------------------
CORAM :- M.W. CHANDWANI, J.
ARGUMENTS WERE HEARD ON :- 19.07.2024.
JUDGMENT IS PRONOUNCED ON :- 17.10.2024
JUDGMENT:
1. This second appeal challenges the judgment and decree
dated 12.06.2019 in Regular Civil Appeal No.50/2013 passed by
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the District Judge, Chandrapur, thereby reversing the decree of
dismissal of suit in Regular Civil Suit No.167/2008 (Old RCS
No.74/2006).
2. Respondent nos.1 to 3 the sons of deceased Bhujangrao
Sitaram Niwalkar, original defendant no.2, filed a suit against the
appellant herein claiming that the suit property is ancestral
property and the same is in possession of respondent nos.1 to 3.
Bhujangrao Niwalkar alienated the suit property in favour of the
appellant without consent of respondent nos.1 to 3, the
coparceners. The said alienation was not for the benefit of Hindu
joint family and therefore, respondent nos.1 to 3 sought
declaration that the said sale-deed dated 21.08.1974 executed by
their father Bhujangrao Niwalkar in favour of the appellant is not
binding on them. They also sought an injunction restraining the
appellant from disturbing their possession over the suit property.
3. The trial Court held that the sale-deed dated 21.08.1974
executed in favour of the appellant is not binding on respondent
nos.1 to 3 and also held that respondent nos.1 to 3 are entitled to
injunction restraining the appellant from disturbing their peaceful
possession over the suit property. However, the trial Court
dismissed the suit on the ground that it is beyond the prescribed
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period of limitation. Dissatisfied with the decree of dismissal,
respondent nos.1 to 3 preferred an appeal before the learned
District Judge, Chandrapur. The appellate Court held that the suit
filed by respondent nos.1 to 3 is within limitation and thereby
decreed the suit of respondent nos.1 to 3, declaring that the said
sale-deed dated 21.08.1974 is not binding on respondent nos.1 to
3 and also restrained the appellant from disturbing the possession
of respondent nos.1 to 3 over the suit property. The appellant
challenged the said judgment and decree by this second appeal.
4. By order dated 14.01.2020, this Court has framed
following substantial questions of law:
"(1) Whether in appeal it is necessary for a party to file a
cross-objection in respect of an adverse finding which is
rendered by the Trial Court?
(2) Whether Order 41, Rule 22 of the Civil Procedure
Code, permits the respondents to raise all pleas as are
available to him, in respect of a finding rendered by the
Trial Court?
(3) What is the nature of difference between the property
held as a coparcener and as a person inheriting under
Section 8 of the Hindu Succession Act, 1956?"
5. Mr. Rohit Joshi, learned counsel for the appellant,
would submit that though the appellant did not file a cross-
objection or a cross-appeal, as per Order XLI Rule 22, the
appellant who was respondent before the first appellate Court,
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had right to object to any issue which ought to have been in his
favour without filing any cross-appeal or cross-objection.
According to him, the trial Court without framing an issue on the
point of nature of suit property, i.e. whether the suit property is
ancestral or self-acquired property has held that the suit property is
ancestral property of respondent nos.1 to 3. When the objection
was raised by the appellant before the appellate Court it was
overruled on the ground that no cross-appeal or cross-objection has
been filed by the appellant. He submitted that as per Order XLI
Rule 22 of the CPC, the respondent need not file cross-appeal or
cross-objection to attack any finding recorded by the trial Court.
6. Mr. Rohit Joshi, learned counsel for the appellant,
further submitted that since the suit property was inherited by
deceased Bhujangrao Niwalkar from his father after the Hindu
Succession Act, 1956 (for short, "Act of 1956") came into force
respondent nos.1 to 3 will not get interest by birth. The suit
property devolved upon deceased Bhujangrao Niwalkar as per
Section 8 of the Act of 1956 being son of deceased Sitaram
Niwalkar, the grandfather of respondent nos.1 to 3. Therefore, the
property inherited by deceased Bhujangrao assumed the character
of self-acquired property. This aspect has neither been considered
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by the trial Court nor the appellate Court. According to him, once
succession opens after commencement of the Act of 1956, the
property of Hindu male on his death shall devolve upon his legal
heir, as per Section 8 of Act of 1956 and not by survivorship. The
trial Court as well as the appellate Court erred in holding that the
property is ancestral property and respondent nos.1 to 3 have
interest in the suit property, consequently held that the sale-deed
executed by their father - Bhujangrao Niwalkar is not binding on
them.
7. Per contra, Ms Satpute, learned counsel for respondent
nos.1 to 3, submitted that concurrent findings are recorded by the
appellate Court as well as the trial Court that the suit property
which was inherited by deceased Bhujangrao is an ancestral
property and respondent nos.1 to 3 are having interest in the said
property. Therefore, the trial Court as well as the appellate Court
rightly held that the sale-deed executed by deceased Bhujangrao,
the father of respondent nos.1 to 3, is not binding on respondent
nos.1 to 3. She further submitted that there was no cross-appeal
or cross-objection filed for challenging the finding of the trial
Court that the suit property is ancestral property, therefore, he
cannot challenge the same before the appellate Court in absence
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of the cross-objection. She supported the judgments of the Courts
below and sought rejection of the appeal.
8. It is a matter of record that both parties before the trial
Court claimed by way of rival pleadings about nature of the suit
property. No issue was framed by the trial Court as to nature of
the suit property. The trial Court proceeded to record the findings
that the suit property is ancestral property. Though, this ground
was raised by the counsel for the appellant before the appellate
Court while arguing the appeal, being respondent in the said
appeal, the same has not been appreciated on the ground that no
cross-objection was filed by the appellant.
9. For appreciating the arguments of the learned counsel
for the appellant, it will be apt to refer Order XLI Rule 22, which is
reproduced here:
"ORDER XLI
22. Upon hearing respondent may object to decree as if he
had preferred separate appeal.--
(1) Any respondent, though he may not have appealed
from any part of the decree, may not only support the
decree 2 [but may also state that the finding against him
in the Court below in respect of any issue ought to have
been in his favour; and may also take any cross-objection
to the decree which he could have taken by way of appeal
provided he has filed such objection in the Appellate
Court within one month from the date of service on him
or his pleader of notice of the day fixed for hearing the
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appeal, or within such further time as the Appellate Court
may see fit to allow.
Explanation. --A respondent aggrieved by a finding of the
Court in the judgment on which the decree appealed
against is based may, under this rule, file cross-objection
in respect of the decree in so far as it is based on that
finding, notwithstanding that by reason of the decision of
the Court on any other finding which is sufficient for the
decision of the suit, the decree, is, wholly or in part, in
favour of that respondent."
10. The rule states that if the finding recorded by the trial
Court on any particular issue is incorrect or the said finding ought
to have been in favour of the appellant, in such a case the
appellant may file a cross-objection in respect of the same.
Therefore, the words "and may also take any cross-objection"
mentioned in the rule assume significance which shows that, apart
from demonstrating that the finding against him ought to have
been in his favour, the appellant may also take any cross-
objection. In other words, the rule envisages that the appellant
may demonstrate that the finding against him is not correct
irrespective of filing of the cross-objection. The right to file a
cross-objection is in addition to the right to demonstrate or state
that any finding recorded by the Courts below ought to have been
in his favour.
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11. A reference can be made to case of Banarsi Vs. Ram
Phal 1, wherein the Supreme Court has taken into consideration,
the amendment of 1976 to the Code of Civil Procedure and has
observed as under:
"10. The CPC amendment of 1976 has not materially or
substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands in
its entirety is neither entitled nor obliged to prefer any
cross-objection. However, the insertion made in the text of
sub-rule (1) makes it permissible to file a cross-objection
against a finding. The difference which has resulted we
will shortly state. A respondent may defend himself
without filing any cross-objection to the extent to which
decree is in his favour; however, if he proposes to attack
any part of the decree he must take cross-objection. The
amendment inserted by the 1976 amendment is
clarificatory and also enabling and this may be made
precise by analysing the provision. There may be three
situations:
(i) The impugned decree is partly in favour of the
appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent
though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent
and all the issues have also been answered in favour of
the respondent but there is a finding in the judgment
which goes against the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross-objection
against that part of the decree which is against him if he
seeks to get rid of the same though that part of the decree
which is in his favour he is entitled to support without
taking any cross-objection. The law remains so post-
1 (2003) 9 SCC 606
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amendment too. In the type of cases (ii) and (iii) pre-
amendment CPC did not entitle nor permit the respondent
to take any cross-objection as he was not the person
aggrieved by the decree. Under the amended CPC, read in
the light of the explanation, though it is still not necessary
for the respondent to take any cross-objection laying
challenge to any finding adverse to him as the decree is
entirely in his favour and he may support the decree
without cross-objection; the amendment made in the text
of sub-rule (1), read with the explanation newly inserted,
gives him a right to take cross-objections to a finding
recorded against him either while answering an issue or
while dealing with an issue. The advantage of preferring
such cross-objection is spelt out by sub-rule (4). In spite of
the original appeal having been withdrawn or dismissed
for default, the cross-objection taken to any finding by the
respondent shall still be available to be adjudicated upon
on merits which remedy was not available to the
respondent under the unamended CPC. In the pre-
amendment era, the withdrawal or dismissal for default of
the original appeal disabled the respondent to question
the correctness or otherwise of any finding recorded
against the respondent."
12. Thus, if the decree was in favour of a person, then in
appeal filed by opponent party challenging the decree, the person,
while attacking adverse findings recorded by the trial Court
against him need not file a cross-objection, unless he seeks to
modify the decree which has been passed by the Courts below.
Consequently, in appeal filed by a person aggrieved by decree of a
Court, a respondent can raise all pleas available to them in respect
of adverse findings recorded by the trial Court. Therefore, I find
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substance in the argument of the learned counsel for the appellant
that the appellate Court was not justified in ignoring the argument
attacking the finding recorded by the trial Court about the nature
of the suit property only on the reason that the cross-objection was
not filed by the appellant herein. The substantial question
recorded at serial nos.1 and 2 are answered accordingly.
13. This takes me to the next substantial question of law.
Perusal of impugned judgments of the trial Court as well as the
appellate Court shows that the suit property was initially held by
Sitaram Balaji Niwalkar, the father of Bhujangrao. After the death
of Sitaram, the property was inherited by Bhujangrao, original
defendant no.2, the father of respondent nos.1 to 3. Thus, the
moot question that arises is, whether the property inherited by
deceased Bhujangrao will assume the character of self-acquired
property or shall be treated as coparcenery property, wherein
respondent nos.1 to 3 got right by birth?
14. Under uncodified Hindu Mitakshra School of law, the
interest of a Hindu male in a coparcenary property used to
devolve upon surviving coparceners. Later, in year 1955-56, the
Hindu law came to be codified by a different enactments. Law
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regarding inheritance and succession of a Hindu is codified by
Hindu Succession Act, 1956. The Act, as its long title states, is an
Act to amend and codify the law relating to intestate succession
among Hindus. It is necessary to set out the relevant provisions of
the Act of the 1956. Section 4 overrides the Hindu Law in force
immediately before the commencement of this Act with respect to
any matter for which a provision is made by the Act. Section 4
read as follows:
"4. Overriding effect of Act.--Save as otherwise expressly
provided in this Act,--
(a) any text, rule or interpretation of Hindu Law or any
custom or usage as part of that law in force immediately
before the commencement of this Act, shall cease to have
effect with respect to any matter for which provision is made
in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions
contained in this Act."
Section 6 prior to 2005 Amendment reads as follows:
"6. Devolution of interest in coparcenary property.--
When a male Hindu dies after the commencement of this
Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property
shall devolve by survivorship upon the surviving members of
the coparcenary and not in accordance with this Act :
Provided that, if the deceased had left him surviving a
female relative specified in Class I of the Schedule or a male
relative specified in that class who claims through such
female relative, the interest of the deceased in the
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Mitakshara coparcenary property shall devolve by
testamentary or intestate succession, as the case may be,
under this Act and not by survivorship.
Explanation 1.--For the purposes of this section, the interest
of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if
a partition of the property had taken place immediately
before his death, irrespective of whether he was entitled to
claim partition or not.
Explanation 2.--Nothing contained in the proviso to this
section shall be construed as enabling a person who had
separated himself from the coparcenary before the death of
the deceased or any of his heirs to claim on intestacy a share
in the interest referred to therein."
Section 6 post 2005 amendment reads as follows:
"6. Devolution of interest in coparcenary property.―
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 2005), in a Joint
Hindu family governed by the Mitakshara law, the daughter
of a coparcener shall,―
(a) by birth become a coparcener in her own right the same
manner as the son;
(b) have the same rights in the coparcenery property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenery property as that of a son, and any reference to a
Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener: Provided that
nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any
partition or testamentary disposition of property which had
taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other
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law for the time being in force, as property capable of being
disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 2005), his
interest in the property of a Joint Hindu family governed by
the Mitakshara law, shall devolve by testamentary or
intestate succession, as the case may be, under this Act and
not by survivorship, and the coparcenery property shall be
deemed to have been divided as if a partition had taken
place and,―
(a) the daughter is allotted the same share as is allotted to a
son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may
be.
Explanation.―For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted
to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was
entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), no court shall
recognise any right to proceed against a son, grandson or
great-grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the ground
of the pious obligation under the Hindu law, of such son,
grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment) Act,
2005 (39 of 2005), nothing contained in this sub-section
shall affect―
14 sa479.19.odt
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of,
any such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act,
2005 (39 of 2005) had not been enacted. Explanation. ―For
the purposes of clause (a), the expression "son", "grandson"
or "great-grandson" shall be deemed to refer to the son,
grandson or great-grandson, as the case may be, who was
born or adopted prior to the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 2005).
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December, 2004 Explanation.―For the purposes of this
section "partition" means any partition made by execution of
a deed of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree of a
court."
15. The next important Section is Section 8, which reads as
follows:-
"8. General rules of succession in the case of males.--
The property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter --
(a) firstly, upon the heirs, being the relatives specified in
Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the
heirs, being the relatives specified in Class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two classes, then
upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of
the deceased."
THE SCHEDULE
Class I
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Son; daughter; widow; mother; son of a pre-deceased son;
daughter of a pre- deceased son; son of a pre-deceased
daughter; daughter of a pre-deceased daughter; widow of a
pre-deceased son; son of a pre-deceased son of a pre-
deceased son; daughter of a pre-deceased son of a pre-
deceased son; widow of a pre-deceased son of a pre-
deceased son, son of a pre-deceased daughter of a pre-
deceased daughter; daughter of a pre-deceased daughter of
a pre-deceased daughter; daughter of a pre-deceased son of
a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased son."
16. Sections 19 and 30 of the Act of 1956 also carry
importance, which read as follows:-
"19. Mode of succession of two or more heirs.--If two or
more heirs succeed together to the property of an intestate,
they shall take the property,--
(a) save as otherwise expressly provided in this Act, per
capita and not per stripes; and
(b) as tenants-in-common and not as joint tenants.
30. Testamentary succession.-- Any Hindu may dispose of
by will or other testamentary disposition any property, which
is capable of being so disposed of by him or by her, in
accordance with the provisions of the Indian Succession Act,
1925 (39 of 1925), or any other law for the time being in
force and applicable to Hindus.
Explanation.--The interest of a male Hindu in a Mitakshara
coparcenary property or the interest of a member of a
tarwad, tavazhi, illom, kutumba or kavaru in the property of
the tarwad, tavazhi, illom, kutumba or kavaru shall,
notwithstanding anything contained in this Act, or in any
other law for the time being in force, be deemed to be
property capable of being disposed of by him or by her
within the meaning of this section."
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17. The Act brought about a sea of change in the matter of
inheritance and succession amongst Hindus. Section 4 of the Act
contains a non obstante provision in terms whereof any text, rule
or interpretation of Hindu Law or any custom or usage as part of
that law in force immediately before the commencement of the
Act, ceased to have effect with respect to any matter for which a
provision is made therein, save as otherwise expressly provided.
Section 6 of the Act, 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 devolves according to the provisions of the Chapter
as specified in Clause (1) of the Schedule. In the Schedule
appended to the Act, natural sons and daughters are placed as
Class I heirs but a grandson, so long as father is alive, has not
been included. Section 19 of the Act provides that in the event of
succession by two or more heirs, they will take the property per
capita and not per stripes, as also tenants-in-common and not as
joint tenants.
18. Thus, the position of law as regards coparcenary
property after the Act of 1956 came into force has undergone a
change. After 17th June 1956, if a male inherits property from his
17 sa479.19.odt
ancestor by virtue of Section 8 of the Act of 1956, the said
property assumes the character of self-acquired property and does
not remain joint family property. Sons or daughters of the said
male will not get interest in the said property by birth.
19. Way back in the year 1984, the Supreme Court in the
decision of Commissioner of Wealth Tax, Kanpur etc. Vs. Chander
Sen etc.1 has held as under:
"19. It is necessary to bear in mind the Preamble to the
Hindu Succession Act, 1956. The Preamble states that it was
an Act to amend and codify the law relating to intestate
succession among Hindus.
20. In view of the preamble to the Act, i.e., that to modify
where necessary and to codify the law, in our opinion it is
not possible when Schedule indicates heirs in class I and
only includes son and does not include son's son but does
include son of a predeceased son, to say that when son
inherits the property in the situation contemplated by
section 8 he takes it as karta of his own undivided family.
The Gujarat High Court's view noted above, if accepted,
would mean that though the son of a predeceased son and
not the son of a son who is intended to be excluded under
section 8 to inherit, the latter would by applying the old
Hindu law get a right by birth of the said property contrary
to the scheme outlined in section 8. Furthermore as noted
by the Andhra Pradesh High Court that the Act makes it
clear by section 4 that one should look to the Act in case of
doubt and not to the pre-existing Hindu law. It would be
difficult to hold today the property which devolved on a
Hindu under section 8 of the Hindu Succession would be
HUF in his hand vis-a-vis his own son; that would amount
to creating two classes among the heirs mentioned in class
I, the male heirs in whose hands it will be joint Hindu
1 AIR SC 1753 : 1986 TAX LR 1328
18 sa479.19.odt
family property and vis-a-vis son and female heirs with
respect to whom no such concept could be applied or
contemplated. It may be mentioned that heirs in class I of
Schedule under section 8 of the Act included widow,
mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted
the observations of Mulla's Commentary on Hindu law 15 th
Edn. dealing with section 6 of the Hindu Succession Act at
page 924-26 as well as Mayne's on Hindu Law, 12th Edition
pages 918-919.
22. The express words of section 8 of The Hindu Succession
Act, 1956 cannot be ingorned and must prevail. The
preamble to the Act reiterates that the Act is, inter alia, to
'amend' the law, with that background the express language
which excludes son's son but included son of a predeceased
son cannot be ignored."
20. That view is consistently followed in the cases of
Yudhishter Vs. Ashok Kumar1; Banwar Singh Vs. Puran2. In later,
in the year 2016, the Supreme Court in the decision of Uttam Vs.
Saubhag Sing and others3, after considering all these decisions as
well as the decision of Rohit Chauvhan Vs. Surinder Singh4
postulated various contingencies which have been summarized in
para 18 of the said judgment, which is reproduced here:
"18. Some other judgments were cited before us for the
proposition that joint family property continues as such
even with a sole surviving coparcener, and if a son is born
to such coparcener thereafter, the joint family property
continues as such, there being no hiatus merely by virtue of
the fact there is a sole surviving coparcener. Dharma
1 (1987) 1 SCC 204
2 (2008) 3 SCC 87
3 (2016) 4 SCC 68
4 (2013) 9 SCC 419
19 sa479.19.odt
Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2
SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and
Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were
cited for this purpose. None of these judgments would take
the appellant any further in view of the fact that in none of
them is there any consideration of the effect of Sections 4,
8 and 19 of the Hindu Succession Act. The law, therefore,
insofar as it applies to joint family property governed by
the Mitakshara School, prior to the amendment of 2005,
could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of
the Hindu Succession Act, 1956, having at the time of his
death an interest in Mitakshara coparcenary property, his
interest in the property will devolve by survivorship upon
the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section
30 Explanation of the Act, making it clear that
notwithstanding anything contained in the Act, the interest
of a male Hindu in Mitakshara coparcenary property is
property that can be disposed of by him by will or other
testamentary disposition.
(iii) A second exception engrafted on proposition (i) is
contained in the proviso to Section 6, which states that if
such a male Hindu had died leaving behind a female
relative specified in Class I of the Schedule or a male
relative specified in that Class who claims through such
female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by
testamentary or intestate succession, and not by
survivorship.
(iv) In order to determine the share of the Hindu male
coparcener who is governed by Section 6 proviso, a
partition is effected by operation of law immediately before
his death. In this partition, all the coparceners and the
male Hindu's widow get a share in the joint family
property.
(v) On the application of Section 8 of the Act, either by
reason of the death of a male Hindu leaving self-acquired
property or by the application of Section 6 proviso, such
20 sa479.19.odt
property would devolve only by intestacy and not
survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the
Act, after joint family property has been distributed in
accordance with section 8 on principles of intestacy, the
joint family property ceases to be joint family property in
the hands of the various persons who have succeeded to it
as they hold the property as tenants in common and not as
joint tenants."
21. Evidently, in the present case, the grandfather of
respondent nos.1 to 3 died in 1969, i.e. after the commencement
of the Act of 1956. Therefore, the suit property inherited by
deceased Bhujangrao in succession, as per Section 8 of the Act of
1956, assumes the character of self-acquired property and does
not remain coparcenary property. Respondent nos.1 to 3 will not
get any interest in the suit property by their birth. Deceased
Bhujangrao could very well have disposed of the property, which
he did, even without necessity or without procuring benefits from
the said transaction for Hindu joint family. These aspects have not
been considered by the Courts below and erroneously held that
right of respondent nos.1 to 3 in the suit property is created by
birth assuming the suit property to be coparcenary property.
Therefore, the said finding of the trial Court as well as appellate
Court is required to be set aside.
21 sa479.19.odt
22. The substantial question of law at serial no.3 is answered
by holding that the suit property inherited by deceased
Bhujangrao is not coparcenary property but assumes the character
of self-acquired property with unfettered right to dispose of the
same as self-acquired property. To that extent the appeal
succeeds.
23. Since it is an admitted position that respondent nos.1 to
3 are in possession of the suit property, therefore, they are entitled
for injunction to protect their possession. The judgment and
decree of appellate Court is set aside and modified as under :
i. The suit is partly decreed.
ii. The appellant himself or any person acting on his
behalf are hereby restrained permanently from
interfering with the possession over the suit property
without following due process of law.
JUDGE
Wagh
