Bombay High Court
Smt. Deepa Datta Naik And Anr vs None on 4 March, 2025
2025:BHC-AS:10120
First Appeal No. 317 of 2025 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 317 OF 2025.
1. Smt. Deepa Datta Naik ]
Age : 42 years, Occupation : Household, ]
2. Master Atharv Datta Naik, ]
Age : 9 years, Occupation : Student, ]
(Minor represented through his natural ]
guardian, His mother, Appellant no. 1 Smt. ]
Deepa Datta Naik) ]
Both residing at House No. 373, Kolhe-Kopar, ]
Post : Pargaon, Taluka : Panvel, District : Raigad. ] ...Appellants.
Versus
None ] ...Respondent.
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Mr. Saurabh Bhutala for Appellant.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : 26th February, 2025.
Pronounced on : 04th March, 2025.
Judgment :
1. The First Appeal is at the instance of original Applicants whose
Civil Miscellaneous Application No. 95 of 2024 seeking permission for
the sale of undivided share of Applicant No.3-minor under Section 8 of
the Hindu Minority and Guardianship Act, 1956 [for short, "Minority
Act"] came to be rejected by the impugned judgment dated 23 rd
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December, 2024.
2. The facts lie in the narrow compass that the Application came to
be filed by Applicant, who is mother of Applicant No. 3-Atharv Datta
Naik contending that property in question was owned by Applicant No.
3's grandfather, one Baban Krishna Naik, which property had been
allotted to Baban Naik by City and Industrial Development Corporation
Limited in lieu of acquisition of properties of Baban Naik. On 25 th
December, 2019, Baban Krishna Naik expired. The Applicant No. 3's
father Datta Baban Naik expired on 22 nd April, 2021. The Applicants are
the legal heirs of Datta Baban Naik and after demise of Datta Baban
Naik, the Applicants have inherited his undivided share in the plots
allotted by CIDCO. Citing financial necessities, the Application came to
be filed under Section 8(2) of the Minority Act for appointment of
Applicant No. 1 as natural guardian of Applicant No. 3 and for
permission to sale undivided share of Applicant No. 3 in subject-
property.
3. The Application came to be rejected by Trial Court by taking into
consideration, the provisions of Section 12 of the Minority Act, which
provides that where a minor has an undivided interest in joint family
property and the property is under the management of an adult
member of the family, no guardian shall be appointed for the minor in
respect of such undivided share. The Trial Court held that in view of the
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provisions of Sections 6 and 12 of the Minority Act, permission under
Section 8 is not required for disposing minor's undivided share in the
joint family property.
4. Learned counsel appearing for the Appellant would submit that
minor was having an undivided share in the property, which was left
behind by his father and Applicant No. 1's husband and did not
constitute joint family property. Drawing attention of this Court to the
provisions of Section 8 of the Hindu Succession Act, 1956, he submits
that as per the rules of Succession in the case of Hindu dying intestate,
the property devolves upon the heirs specified in class I of the
Schedule and accordingly, Applicant No. 3-minor has acquired
undivided one-third share in the property, which is now sought to be
alienated after taking permission of the Court. He would further
submit that though the property belonged to grandfather of Applicant
No. 3, it was inherited by father of Applicant No.3. The property
devolved by testamentary or intestate succession under the provisions
of Section 8 of the Hindu Succession Act, 1956, and when read with
Section 19 of Hindu Succession Act, 1956 the Applicants' succeeded to
the property as tenants-in-common and not as joint tenants. He,
therefore, submits that property does not constitutes joint family
property and therefore, permission under Section 8 of Minority Act
ought to have been granted. In support, he relies upon the following
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decisions :-
Sandhya Anant Gharat vs. NIL1
Uttam vs. Saubhag Singh2
Commissioner of Wealth Tax, Kanpur vs. Chander Sen3
Sri Narayan Bal vs. Sridhar Sutar4
Bhanwar Singh vs. Puran5
Vasant vs. Moreshwar6
5. The following point would arise for determination:
(i) Whether in the facts of the present case, provisions of Section 8 of
the Hindu Minority and Guardianship Act, 1956 is applicable?
As to Point No. (i) :
6. The suit property was owned by Baban Krishna Naik who was
grandfather of Applicant No. 3 and after his death in the year 2019, the
father of Applicant No. 3, i.e. Datta Baban Naik and Applicant No. 3's
uncle Rahul Baban Naik inherited the property. Upon the death of
Baban Naik, the property lost the character of joint family property.
Datta Baban Naik and Rahul Baban Naik inherited the properties as
tenants-in-common and not as joint tenants. It will be relevant to refer
to Section 6, Section 8 and Section 19 of the Hindu Succession Act,
1 First Appeal No. 62 of 2023, dtd. 2nd March, 2023.
2 (2016) 4 SCC 68.
3 (1986) 3 SCC 567.
4 (1996) 8 SCC 54.
5 (2008) 3 SCC 87.
6 2024 SCC OnLine Bom 3456.
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1956, which reads as under:-
"6. Devolution of interest in coparcenary property. - (1) On
and from the commencement of the Hindu Succession
(Amendment) Act, 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
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, 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.
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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, 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.
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.
(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."
"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;
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(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."
"19. Mode of succession of two or more heirs. - If two or
more heirs succeed together to the property of an intestate,
they shall take the property,―
(a) save as otherwise expressly provided in this Act, per capita
and not per stirpes; and
(b) as tenants-in-common and not as joint tenants."
7. The provisions of Section 6(3) of the Hindu Succession Act, 1956
provides that where a Hindu dies after commencement of the Hindu
Succession (Amendment) Act of 2005, his interest in the property of
joint hindu family shall devolve by testamentary or intestate
succession, and not by survivorship. After the Act of 1956 came into
force, if a male inherited a property from his ancestors by reason of
Section 8 of the Hindu Succession Act, 1956, the property assumed the
character of self-acquired property and did not remain the joint family
property. Section 19, which is also significant, provides that if two or
more heirs succeed together to the property of an intestate, they shall
take the property as tenants-in-common and not as joint tenants. Thus,
Rahul Naik and Datta Naik inherited properties as tenants-in common
and not as joint tenants upon the death of Baban Naik, in view of
Section 8 of the Hindu Succession Act, 1956. The property, which was
inherited by Datta devolved upon the Applicants' as the self-acquired
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property of Datta and no longer remained joint family property. The
Trial Court failed to note the nature of property inherited by Datta
Baban Naik, and has committed an error in holding that property is a
joint family property.
8. In the case of Bhanwar Singh (supra) in somewhat similar facts,
the Apex Court considered the provisions of Hindu Succession Act,
1956. In that case, the property belonged to one Bhima and thereafter,
devolved upon his son Sant Ram and daughters'. Sant Ram alienated
the property, which was sought to be contested by son of Sant Ram.
The Apex Court considered the provisions of Section 8 and Section 19
of Hindu Succession Act, 1956 and held that properties ceased to be a
joint family property and in the case of this nature, the joint
coparcenary did not continue.
9. In case of Uttam vs. Saubhag Singh (supra), the Apex Court
summarised the law in Paragraph No. 18 as under:-
"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 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:-
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(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 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."
(emphasis supplied)
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10. In view of clear enunciation of law by Apex Court, the property in
hands of Applicants was not joint family property.
11. Point No. (i) is accordingly answered in favor of Appellant No. 1.
12. As it is held that property is not a joint family property, the
provisions of Section 8 of the Minority Act are applicable. The Trial
Court rejected the application on ground of maintainability by
considering the property to be joint family property. As the application
was dismissed on ground of maintainability, the necessary inquiry as
contemplated under Section 8 of Minority Act was not carried out by
Trial Court.
13. Resultantly, the following order is passed:-
:ORDER:
[i] First Appeal is allowed.
[ii] The impugned order dated 23rd December, 2024 is hereby
quashed and set aside.
[iii] Civil Miscellaneous Application No. 95 of 2024 is restored
to file, to be decided in light of observations made in the
present order.
[Sharmila U. Deshmukh, J.]
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