Karnataka High Court
Kum.Pooja vs Sri Anjanappa on 7 March, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2025:KHC:9783
RFA No. 1195 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1195 OF 2019 (PAR-)
BETWEEN:
1. KUM.POOJA
D/O SRI ANJANAPPA
AGED ABOUT 11 YEARS,
2. SMT MANJULA
W/O SRI ANJANAPPA
AGED ABOUT 35 YEARS,
BOTH ARE RESIDING AT NO.49,
7TH CROSS, BHOVI COLONY
THYAGARAJANAGARA
BENGALURU-560 028
...APPELLANTS
(BY SRI.NAIK N.R., ADVOCATE)
AND:
1. SRI ANJANAPPA
S/O LATE SHANKARAPPA
AGED ABOUT 44 YEARS,
Digitally signed by
MARIGANGAIAH
PREMAKUMARI 2. SMT MANGAMMA
Location: HIGH COURT
OF KARNATAKA W/O LATE SHANKARAPPA
AGED ABOUT 68 YEARS,
3. SMT MANJULA
D/O LATE SHANKARAPPA
AGED ABOUT 42 YEARS,
4. SMT CHORAMMA
D/O LATE SHANKARAPPA
AGED ABOUT 40 YEARS,
5. SRI YALLAPPA
S/O LATE SHANKARAPPA
AGED ABOUT 38 YEARS,
-2-
NC: 2025:KHC:9783
RFA No. 1195 of 2019
6. SRI NAGAVENI
S/O LATE SHANKARAPPA
AGED ABOUT 36 YEARS,
ALL ARE RESIDING AT NO.49,
7TH CROSS, BHOVI COLONY
THYAGARAJANAGARA
BENGALURU-560 028
7. SRI.G.BALAJI
S/O SRI V.GAJENDRA RAO
AGED ABOUT 38 YEARS,
8. SMT DIVYA
W/O SRI.G.BALAJI
AGED ABOUT 26 YEARS,
BOTH ARE RESIDING AT NO.49
GROUND FLOOR
7TH CROSS, BHOVI COLONY
THYAGARAJANAGARA
BENGALURU-560 028
...RESPONDENTS
(BY SRI.R1, R2, R6, R7 & R8 ARE SERVED BUT UNREPRESENTED;
SERVICE OF NOTICE TO R3 & R5 ARE HELD SUFFICIENT;
V/O DATED, R4 IS DEAD & R1 TO R3 & R5 AND R6
ARE TREATED AS LR'S OF DECEASED R4.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND
DECREE DATED 08.04.2019 PASSED IN O.S.NO.4648/2016 ON THE
FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING THE SUIT FOR PARTITION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
-3-
NC: 2025:KHC:9783
RFA No. 1195 of 2019
ORAL JUDGMENT
This appeal by the unsuccessful plaintiffs in
O.S.No.4648/2016 is directed against the impugned
judgment and decree dated 08.04.2019 passed by the I
Additional City Civil and Sessions Judge, Bengaluru City
(CCH.No.2) (for short, 'Trial Court') whereby the said suit
filed by the appellants/plaintiffs against
respondents/defendants for partition and separate
possession, declaration that they are entitled to their
legitimate share in the suit schedule immovable properties
and for other reliefs was dismissed by the Trial Court.
2. Heard the learned counsel for the
appellants/plaintiffs and perused the material on record.
The respondents having been served with notice of the
appeal, have chosen to remain unrepresented and they
have not contested the appeal.
3. Though the matter is posted for 'Admission',
with the consent of learned counsel for the
NC: 2025:KHC:9783
appellants/plaintiffs and in the light of the amended
provisions contained in Order 41 Rule 11 of CPC, the
matter is taken up for final disposal.
4. A Perusal of the material on record will indicate
that appellant No.1/plaintiff No.1 is the daughter of
defendant No.1 Sri.Anjanappa while appellant
No.2/plaintiff No.2, the mother of plaintiff No.1 is the wife
of Anjanappa. It is a matter on record that defendant
No.1/respondent No.1 Anjanappa was son of late
Shankarappa and respondent No.2/defendant No.2 is the
wife of late Shankarappa while the defendant Nos.3 to 6
are the remaining children of the said Shankarappa. The
appellants/plaintiffs being the granddaughter and
daughter-in-law of Shankarappa filed the instant suit inter
alia contending that the suit schedule property was
originally allotted in favour of the aforesaid late
Shankarappa's father Ankaiah and registered sale deed
dated 29.06.1992 was executed in favour of Shankarappa.
It is contended that upon demise of aforesaid
NC: 2025:KHC:9783
Shankarappa, the suit schedule property became the
ancestral and joint family property of the appellants and
respondent Nos.1 to 6 who became entitled to their
respective legitimate shares in the suit schedule property.
It was also contended that the respondent Nos.1 to
6/defendant Nos.1 to 6 executed a registered sale deed
dated 01.08.2013 in favour of defendant Nos.7 and 8 -
alienees in relation to the suit schedule property. It is
further contended that the appellant Nos.1 and 2 being the
daughter and wife of Anjanappa instituted proceedings
against respondent No.1/defendant No.1 in
Crl.Misc.No.641/2010 under Section 12 of the Protection of
Women from Domestic Violence Act, 2012 (for short,
'PWDV Act'), in which liberty was granted in favour of the
appellants to file the present suit and as such they filed
the instant suit for partition, declaration and other reliefs
in relation to the suit schedule immovable property.
5. As stated supra, it is the specific contention of
the appellants/plaintiffs that the property originally
NC: 2025:KHC:9783
belonged to one Shankarappa and upon his demise, the
suit schedule property became ancestral/joint family
property of the plaintiffs and defendant Nos.1 to 6, who
are entitled to their legitimate shares in the suit schedule
property and the defendant Nos.1 to 6 were not entitled to
execute the registered sale deed dated 01.08.2013 in
favour of defendant Nos.7 and 8 and consequently the
appellants/plaintiffs entitled to their legitimate share in the
suit schedule property.
6. The respondent Nos.1, 2 and 4 to 6 entered
their appearance but did not file their written statement in
the suit before the Trial Court, while respondent Nos.3, 7
and 8 were places exparte. The second plaintiff examined
herself as PW1 and documentary evidence at Ex.P1 to
Ex.P12 were marked and there was no cross-examination
by the respondents/defendants who also did not adduce
any oral or documentary evidence.
7. After hearing the parties, the Trial Court came
to the conclusion that the appellants/plaintiffs are not
NC: 2025:KHC:9783
entitled to any share in the suit schedule property and
merely because there were proceedings under the PWDV
Act in Crl.Misc.No.641/2010 against respondent No.1 -
Anjanappa, the said proceedings could not be made the
basis to uphold the claim of the appellants/plaintiffs in
relation to the suit schedule property. Accordingly, the
Trial Court proceeded to pass the impugned judgment and
decree dismissing the suit filed by the appellants/plaintiffs,
who are before this Court by way of the present appeal.
8. Heard. The following points arise for
consideration in the present appeal.
a) Whether the Trial Court is justified in
coming to the conclusion that the
appellants/plaintiffs were not entitled to
any share in the suit schedule property?
b) Whether the impugned judgment and
decree passed by the Trial Court warrants
interference in the present appeal?
9. As stated supra, the appellant No.2/plaintiff
No.2 who is none other than the mother of plaintiff No.1
NC: 2025:KHC:9783
examined herself as PW1. It is a matter on record that the
defendant No.1 - Anjanappa is the son of late
Shankarappa in whose favour the registered sale deed
dated 29.06.1992 was executed in relation to the suit
schedule property. It is also an undisputed fact that the
aforesaid Shankarappa has expired subsequent to
29.06.1992 and the said property being his separate or
self-acquired property or the same would devolve by
intestate succession as contemplated under Section 8 of
the Hindu Succession Act, 1956 (for short, '1956 Act') and
in the light of the provisions contained in Section 19 of
1956 Act, the granddaughter or daughter-in-law of the
aforesaid Shankarappa would not be entitled to put-forth
any claim in relation to the suit schedule property during
the lifetime of respondent No.1/defendant No.1 -
Anjanappa. In other words, the suit schedule property
which belongs to Shankarappa would devolve Per stirpes
and not Per capita upon the legal heirs of Shankarappa
i.e., defendant Nos.1 to 6 in terms of Section 19 of 1956
Act and all of them would be entitled to succeed to the suit
NC: 2025:KHC:9783
schedule property as co-owners/tenants in common, as a
result of which, the daughter-in-law of Shankarappa and
granddaughter of Shankarappa would not be entitled to
any share in the suit schedule property during the lifetime
of Anjanappa - defendant No.1, as held by the Hon'ble
Apex Court in the case of UTTAM SINGH VS. SAUBHAG
SINGH AND OTHERS1 wherein it is held as under:
"R.F. NARIMAN, J.-- Leave granted. The
present appeal is by the plaintiff who filed a suit for
partition, being Suit No. 5-A of 1999 before the
Second Civil Judge, Class II, Devas, Madhya
Pradesh, dated 28-12-1998, in which the first four
defendants happened to be his father (Defendant
3), and his father's three brothers i.e. Defendants
1, 2 and 4. He claimed a 1/8th share in the suit
property on the footing that the suit property was
ancestral property, and that, being a coparcener,
he had a right by birth in the said property in
accordance with the Mitakshara law. A joint written
statement was filed by all four brothers, including
the plaintiff's father, claiming that the suit property
was not ancestral property, and that an earlier
partition had taken place by which the plaintiff's
AIR 2016 SC 1169
- 10 -
NC: 2025:KHC:9783
father had become separate. The trial court, by its
order dated 20-12-2000 decreed the plaintiff's suit
holding that it was admitted by DW 1, Mangilal that
the property was indeed ancestral property, and
that, on the evidence, there was no earlier partition
of the said property, as pleaded by the defendants
in their written statements.
2. The first appellate court, by its judgment
dated 12-1-2005, confirmed the finding that the
property was ancestral and that no earlier partition
between the brothers had in fact taken place.
However, it held that the plaintiff's grandfather, one
Jagannath Singh having died in 1973, his widow
Mainabai being alive at the time of his death, the
said Jagannath Singh's share would have to be
distributed in accordance with Section 8 of the
Hindu Succession Act, 1956 as if the said Jagannath
Singh had died intestate, and that being the case,
once Section 8 steps in, the joint family property
has to be divided in accordance with rules of
intestacy and not survivorship. This being so, no
joint family property remained to be divided when
the suit for partition was filed by the plaintiff, and
that since the plaintiff had no right while his father
was alive, the father alone being a Class I heir (and
consequently the plaintiff not being a Class I heir),
the plaintiff had no right to sue for partition, and
- 11 -
NC: 2025:KHC:9783
therefore the suit was dismissed and consequently
the first appeal was allowed.
3. Following the same line of reasoning and
several judgments of this Court, the High Court in
the second appeal dismissed [Uttam v. Saubhag
Singh, 2013 SCC OnLine MP 10873] the said
appeal, holding : (Uttam case [Uttam v. Saubhag
Singh, 2013 SCC OnLine MP 10873] , SCC OnLine
MP paras 16-18)
"16. Thus in view of the provisions contained in
Sections 4, 6, 8 and Schedule to the Act as
well as the law settled by the aforesaid
judgments, it is clear that after coming into
force of the Act grandson has no birth right in
the properties of grandfather and he cannot
claim partition during lifetime of his father.
17. In the present case, it is undisputed that
Jagannath had died in the year 1973, leaving
behind Respondents 1 to 4 i.e. his four sons
covered by Class I heirs of the Schedule
therefore, the properties had devolved upon
them when succession had opened on the
death of Jagannath. It has also been found
proved that no partition had taken place
between Respondents 1 to 4. The appellant
who is the grandson of Jagannath is not
entitled to claim partition during the lifetime of
his father Mohan Singh in the properties left
behind by Jagannath since the appellant has
no birth right in the suit properties.
18. In view of the aforesaid, the substantial
questions of law are answered against the
appellant by holding that the first appellate
court has committed no error in dismissing the
- 12 -
NC: 2025:KHC:9783
suit for partition filed by the appellant referring
to Section 8 of the Act and holding that during
the lifetime of Mohan Singh, the appellant has
no right to get the suit property partitioned."
It is this judgment that has been challenged
before us in appeal.
4. Shri Sushil Kumar Jain, learned Senior
Advocate appearing on behalf of the appellant, took
us through various provisions of the Hindu
Succession Act, and through several judgments of
this Court, and contended that Section 6, prior to
its amendment in 2005, would govern the facts of
this case. He conceded that as Jagannath Singh's
widow was alive in 1973 at the time of his death,
the case would be governed by the proviso to
Section 6, and that therefore the interest of the
deceased in the Mitakshara coparcenary property
would devolve by intestate succession under
Section 8 of the said Act. However, he argued that
it is only the interest of the deceased in such
coparcenary property that would devolve by
intestate succession, leaving the joint family
property otherwise intact. This being the case, the
plaintiff had every right to sue for partition while his
father was still alive, inasmuch as, being a
coparcener and having a right of partition in the
joint family property, which continued to subsist as
such after the death of Jagannath Singh, the
- 13 -
NC: 2025:KHC:9783
plaintiff's right to sue had not been taken away. He
went on to argue that Section 8 of the Act would
not bar such a suit as it would apply only at the
time of the death of Jagannath Singh i.e. the
grandfather of the plaintiff in 1973 and not
thereafter to non-suit the plaintiff, who as a living
coparcener of joint family property, was entitled to
a partition before any other death in the joint
family occurred. He also argued that the Hindu
Succession Act only abrogated the Hindu law to the
extent indicated, and that Sections 6 and 8 have to
be read harmoniously, as a result of which the
status of joint family property which is recognised
under Section 6 cannot be said to be taken away
upon the application of Section 8 on the death of
the plaintiff's grandfather in 1973.
5. Shri Niraj Sharma, learned counsel appearing
on behalf of the respondents, countered these
submissions, and also referred to various provisions
of the Hindu Succession Act and various judgments
of this Court to buttress his submission that once
Section 8 gets applied by reason of the application
of the proviso to Section 6, the joint family property
ceases to be joint family property thereafter, and
can only be succeeded to by application of either
Section 30 or Section 8, Section 30 applying in case
a will had been made and Section 8 applying in
- 14 -
NC: 2025:KHC:9783
case a member of the joint family dies intestate.
He, therefore, supported the judgment of the High
Court and strongly relied upon two judgments in
particular, namely, CWT v. Chander Sen [CWT v.
Chander Sen, (1986) 3 SCC 567 : 1986 SCC (Tax)
641] and Bhanwar Singh v. Puran [Bhanwar Singh
v. Puran, (2008) 3 SCC 87 : (2008) 1 SCC (Civ)
779] , to buttress his submission that once Section
8 is applied to the facts of a given case, the
property thereafter ceases to be joint family
property, and this being the case, no right to
partition a property which is no longer joint family
property continues to subsist in any member of the
coparcenary.
6. Having heard the learned counsel for the
parties, it is necessary to set out the relevant
provisions of the 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. Section 4 overrides the Hindu law in
force immediately before the commencement of
this Act insofar as it refers to any matter for which
provision is made by the Act. Section 4 reads 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
- 15 -
NC: 2025:KHC:9783
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 insofar as it is inconsistent
with any of the provisions contained in this
Act."
Section 6 prior to its amendment in 2005 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
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.
- 16 -
NC: 2025:KHC:9783
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."
7. It is common ground between the parties
that since the present suit was filed only in 1998
and the decree in the said suit was passed on 20-
12-2000, that the amendment to Section 6, made
in 2005, would not govern the rights of the parties
in the present case. This becomes clear from a
reading of the proviso (i) to Section 6 of the
amended provision which states as follows:
"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."
The Explanation to this Section also states
thus:
"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."
From a reading of the aforesaid provision it
becomes clear that a partition having been effected
by a court decree of 20-12-2000, which is prior to
- 17 -
NC: 2025:KHC:9783
9-9-2005, (which is the date of commencement of
the amending Act), would not be affected.
8. The next important section from our point
of view 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
Son; daughter; widow; mother; son of a
predeceased son; daughter of a predeceased
son; son of a predeceased daughter; daughter
of a predeceased daughter; widow of a
predeceased son; son of a predeceased son of
a predeceased son; daughter of a predeceased
son of a predeceased son; widow of a
predeceased son of a predeceased son; son of
a predeceased daughter of a predeceased
daughter; daughter of a predeceased daughter
of a predeceased daughter; daughter of a
predeceased son of a predeceased daughter;
- 18 -
NC: 2025:KHC:9783
daughter of a predeceased daughter of a
predeceased son."
9. Also of some importance are Sections 19
and 30 of the said Act 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 stirpes; 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."
10. Before analysing the provisions of the
Act, it is necessary to refer to some of the
- 19 -
NC: 2025:KHC:9783
judgments of this Court which have dealt, in
particular, with Section 6 before its amendment in
2005, and with Section 8. In Gurupad Khandappa
Magdum v. Hirabai Khandappa Magdum [Gurupad
Khandappa Magdum v. Hirabai Khandappa
Magdum, (1978) 3 SCC 383 : (1978) 3 SCR 761] ,
the effect of the old Section 6 was gone into in
some detail by this Court. A Hindu widow claimed
partition and separate possession of a 7/24th share
in joint family property which consisted of her
husband, herself and their two sons. If a partition
were to take place during her husband's lifetime
between himself and his two sons, the widow would
have got a 1/4th share in such joint family
property. The deceased husband's 1/4th share
would then devolve, upon his death, on six sharers,
the plaintiff and her five children, each having a
1/24th share therein. Adding 1/4th and 1/24th, the
plaintiff claimed a 7/24th share in the joint family
property. This Court held : (SCC pp. 386-87, paras
6-7)
"6. The Hindu Succession Act came into force
on 17-6-1956. Khandappa having died after
the commencement of that Act, to wit in 1960,
and since he had at the time of his death an
interest in Mitakshara coparcenary property,
the preconditions of Section 6 are satisfied and
that section is squarely attracted. By the
application of the normal rule prescribed by
that section, Khandappa's interest in the
coparcenary property would devolve by
- 20 -
NC: 2025:KHC:9783
survivorship upon the surviving members of
the coparcenary and not in accordance with
the provisions of the Act. But, since the widow
and daughter are amongst the female relatives
specified in Class I of the Schedule to the Act
and Khandappa died leaving behind a widow
and daughters, the proviso to Section 6 comes
into play and the normal rule is excluded.
Khandappa's interest in the coparcenary
property would therefore devolve, according to
the proviso, by intestate succession under the
Act and not by survivorship. Testamentary
succession is out of question as the deceased
had not made a testamentary disposition
though, under the Explanation to Section 30 of
the Act, the interest of a male Hindu in
Mitakshara coparcenary property is capable of
being disposed of by a will or other
testamentary disposition.
7. There is thus no dispute that the normal
rule provided for by Section 6 does not apply,
that the proviso to that section is attracted and
that the decision of the appeal must turn on
the meaning to be given to Explanation 1 of
Section 6. The interpretation of that
Explanation is the subject-matter of acute
controversy between the parties."
11. This Court, in dealing with the proviso
and Explanation 1 of Section 6, held that the fiction
created by Explanation 1 has to be given its full
effect. That being the case, it was held : (Magdum
case [Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum, (1978) 3 SCC 383 : (1978) 3
SCR 761] , SCC pp. 389-90, para 13)
"13. In order to ascertain the share of heirs in
the property of a deceased coparcener it is
- 21 -
NC: 2025:KHC:9783
necessary in the very nature of things, and as
the very first step, to ascertain the share of
the deceased in the coparcenary property. For,
by doing that alone can one determine the
extent of the claimant's share. Explanation 1 to
Section 6 resorts to the simple expedient,
undoubtedly fictional, that 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 that
property had taken place immediately before
his death. What is therefore required to be
assumed is that a partition had in fact taken
place between the deceased and his
coparceners immediately before his death.
That assumption, once made, is irrevocable. In
other words, the assumption having been
made once for the purpose of ascertaining the
share of the deceased in the coparcenary
property, one cannot go back on that
assumption and ascertain the share of the
heirs without reference to it. The assumption
which the statute requires to be made that a
partition had in fact taken place must
permeate the entire process of ascertainment
of the ultimate share of the heirs, through all
its stages. To make the assumption at the
initial stage for the limited purpose of
ascertaining the share of the deceased and
then to ignore it for calculating the quantum of
the share of the heirs is truly to permit one's
imagination to boggle. All the consequences
which flow from a real partition have to be
logically worked out, which means 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. The allotment of this
share is not a processual step devised merely
for the purpose of working out some other
conclusion. It has to be treated and accepted
- 22 -
NC: 2025:KHC:9783
as a concrete reality, something that cannot be
recalled just as a share allotted to a
coparcener in an actual partition cannot
generally be recalled. The inevitable corollary
of this position is that the heir 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 received or must be deemed to have
received in the notional partition."
(emphasis in original)
12. In State of Maharashtra v. Narayan Rao Sham
Rao Deshmukh [State of Maharashtra v. Narayan
Rao Sham Rao Deshmukh, (1985) 2 SCC 321 :
(1985) 3 SCR 358] , this Court distinguished the
judgment in Magdum case [Gurupad Khandappa
Magdum v. Hirabai Khandappa Magdum, (1978) 3
SCC 383 : (1978) 3 SCR 761] in answering a
completely different question that was raised before
it. The question raised before the Court in that case
was as to whether a female Hindu, who inherits a
share of the joint family property on the death of
her husband, ceases to be a member of the family
thereafter. This Court held that as there was a
partition by operation of law on application of
Explanation 1 of Section 6, and as such partition
was not a voluntary act by the female Hindu, the
female Hindu does not cease to be a member of the
joint family upon such partition being effected.
- 23 -
NC: 2025:KHC:9783
13. In Shyama Devi v. Manju Shukla [Shyama Devi
v. Manju Shukla, (1994) 6 SCC 342] , this Court
again considered the effect of the proviso and
Explanation 1 to Section 6, and followed the
judgment of this Court in Magdum case [Gurupad
Khandappa Magdum v. Hirabai Khandappa
Magdum, (1978) 3 SCC 383 : (1978) 3 SCR 761] .
This Court went on to state that Explanation 1
contains a formula for determining the share of the
deceased on the date of his death by the law
effecting a partition immediately before a male
Hindu's death took place.
14. On application of the principles contained in the
aforesaid decisions, it becomes clear that, on the
death of Jagannath Singh in 1973, the proviso to
Section 6 would apply inasmuch as Jagannath
Singh had left behind his widow, who was a Class I
female heir. Equally, upon the application of
Explanation 1 to the said Section, a partition must
be said to have been effected by operation of law
immediately before his death. This being the case,
it is clear that the plaintiff would be entitled to a
share on this partition taking place in 1973. We
were informed, however, that the plaintiff was born
only in 1977, and that, for this reason, (his birth
being after his grandfather's death) obviously no
such share could be allotted to him. Also, his case
- 24 -
NC: 2025:KHC:9783
in the suit filed by him is not that he is entitled to
this share but that he is entitled to a 1/8th share on
dividing the joint family property between 8 co-
sharers in 1998. What has therefore to be seen is
whether the application of Section 8, in 1973, on
the death of Jagannath Singh would make the joint
family property in the hands of the father, uncles
and the plaintiff no longer joint family property
after the devolution of Jagannath Singh's share, by
application of Section 8, among his Class I heirs?
This question would have to be answered with
reference to some of the judgments of this Court.
15. In CWT v. Chander Sen [CWT v. Chander Sen,
(1986) 3 SCC 567 : 1986 SCC (Tax) 641] , a partial
partition having taken place in 1961 between a
father and his son, their business was divided and
thereafter carried on by a partnership firm
consisting of the two of them. The father died in
1965, leaving behind him his son and two
grandsons, and a credit balance in the account of
the firm. This Court had to answer as to whether
credit balance left in the account of the firm could
be said to be joint family property after the father's
share had been distributed among his Class I heirs
in accordance with Section 8 of the Act. This Court
examined the legal position and ultimately
approved of the view of four High Courts, namely,
- 25 -
NC: 2025:KHC:9783
Allahabad [CIT v. Ram Rakshpal Ashok Kumar,
1966 SCC OnLine All 429 : (1968) 67 ITR 164] ,
Madras [CIT v. P.L. Karuppan Chettiar, 1978 SCC
OnLine Mad 30 : (1978) 114 ITR 523] , Madhya
Pradesh [Shrivallabhdas Modani v. CIT, (1982) 138
ITR 673 (MP)] and Andhra Pradesh [CWT v.
Mukundgirji, 1983 SCC OnLine AP 288 : (1983) 144
ITR 18] , while stating that the Gujarat High Court
[CIT v. Babubhai Mansukhbhai, 1975 SCC OnLine
Guj 77 : (1977) 108 ITR 417] view contrary to
these High Courts, would not be correct in law.
After setting out the various views of the five High
Courts mentioned, this Court held : (Chander Sen
case [CWT v. Chander Sen, (1986) 3 SCC 567 :
1986 SCC (Tax) 641] , SCC pp. 577-78, paras 21-
25)
"21. 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.
22. 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 [CIT v. Babubhai
Mansukhbhai, 1975 SCC OnLine Guj 77 :
(1977) 108 ITR 417] view noted above, if
- 26 -
NC: 2025:KHC:9783
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 [CWT v. Mukundgirji, 1983
SCC OnLine AP 288 : (1983) 144 ITR 18] 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 Act would be HUF in his hand
vis-à-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-à-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.
23. Before we conclude we may state that we
have noted the observations 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 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 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
includes son of a predeceased son cannot be
ignored.
- 27 -
NC: 2025:KHC:9783
25. In the aforesaid light the views expressed
by the Allahabad High Court [CIT v. Ram
Rakshpal Ashok Kumar, 1966 SCC OnLine All
429 : (1968) 67 ITR 164] , the Madras High
Court [CIT v. P.L. Karuppan Chettiar, 1978
SCC OnLine Mad 30 : (1978) 114 ITR 523] ,
the Madhya Pradesh High Court
[Shrivallabhdas Modani v. CIT, (1982) 138 ITR
673 (MP)] , and the Andhra Pradesh High
Court [CWT v. Mukundgirji, 1983 SCC OnLine
AP 288 : (1983) 144 ITR 18] , appear to us to
be correct. With respect we are unable to
agree with the views of the Gujarat High Court
[CIT v. Babubhai Mansukhbhai, 1975 SCC
OnLine Guj 77 : (1977) 108 ITR 417] noted
hereinbefore."
16. In Yudhishter v. Ashok Kumar
[Yudhishter v. Ashok Kumar, (1987) 1 SCC 204] ,
SCC at pp. 210-11, para 10, this Court followed the
law laid down in Chander Sen case [CWT v.
Chander Sen, (1986) 3 SCC 567 : 1986 SCC (Tax)
641] .
17. In Bhanwar Singh v. Puran [Bhanwar Singh v.
Puran, (2008) 3 SCC 87 : (2008) 1 SCC (Civ) 779]
, this Court followed Chander Sen case [CWT v.
Chander Sen, (1986) 3 SCC 567 : 1986 SCC (Tax)
641] and the various judgments following Chander
Sen case [CWT v. Chander Sen, (1986) 3 SCC 567
: 1986 SCC (Tax) 641] . This Court held : Puran
case [Bhanwar Singh v. Puran, (2008) 3 SCC 87 :
- 28 -
NC: 2025:KHC:9783
(2008) 1 SCC (Civ) 779] , SCC pp. 90-91, paras
12-15)
"12. The Act brought about a sea 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 provision is made therein
save as otherwise expressly provided.
13. 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 Class I 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 stirpes, as also tenants-in-
common and not as joint tenants.
14. 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.
15. Although the learned first appellate court
proceeded to consider the effect of Section 6 of
- 29 -
NC: 2025:KHC:9783
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."
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
[Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe, (1988) 2 SCC 126] , Sheela Devi v. Lal
Chand [Sheela Devi v. Lal Chand, (2006) 8 SCC
581] and Rohit Chauhan v. Surinder Singh [Rohit
Chauhan v. Surinder Singh, (2013) 9 SCC 419 :
(2013) 4 SCC (Civ) 377] 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
- 30 -
NC: 2025:KHC:9783
Mitakshara School, prior to the amendment of
2005, could therefore be summarised 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
- 31 -
NC: 2025:KHC:9783
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.
19. Applying the law to the facts of this case,
it is clear that on the death of Jagannath Singh in
1973, the joint family property which was ancestral
property in the hands of Jagannath Singh and the
other coparceners, devolved by succession under
Section 8 of the Act. This being the case, the
ancestral property ceased to be joint family
property on the date of death of Jagannath Singh,
and the other coparceners and his widow held the
property as tenants-in-common and not as joint
tenants. This being the case, on the date of the
birth of the appellant in 1977 the said ancestral
property, not being joint family property, the suit
for partition of such property would not be
maintainable. The appeal is consequently dismissed
with no order as to costs."
10. A perusal of the aforesaid judgment passed by
the Hon'ble Apex Court it is held sufficient to come to the
- 32 -
NC: 2025:KHC:9783
conclusion that the self acquired property or undivided
share in a joint family property of a coparcener would
devolve upon his children as tenants in common/co-
owners and during the lifetime of his children, the
grandchildren or daughter-in-law would not be entitled to
any share in the suit family property.
11. In the instant case, it is a matter on record that
the suit was filed during the lifetime of defendant No.1 -
Anjanappa, who is shown to be alive even as on today and
consequently in the light of the law laid down by the
Hon'ble Apex Court in UTTAM SINGH (supra) suit
schedule property cannot be construed as partaking the
nature or character of either a joint family property or
ancestral property in the hands of Anjanappa, so as to
enable or entitle the plaintiffs to claim a share in the suit
schedule property during the lifetime of the aforesaid
Anjanappa - defendant No.1.
12. Under these circumstances, I am of the
considered opinion that the Trial Court was fully justified in
- 33 -
NC: 2025:KHC:9783
coming to the conclusion that the appellants/plaintiffs
were not entitled to any share in the suit schedule
property and as such, I do not find any reason to interfere
with the impugned judgment and decree passed by the
Trial Court, especially when there is no illegality or
infirmity in the impugned judgment and decree nor the
same can be said to be perverse or capricious on contrary
to the facts or law warranting interference in the present
appeal.
13. Insofar as the contentions raised by the learned
counsel for the appellants/plaintiffs that the liberty was
granted in favour of the appellants/plaintiffs to seek
partition in Crl.Misc.No.641/2010 filed by the
appellants/plaintiffs against defendant No.1 under Section
12 of PWDV Act is concerned, apart from the fact that said
proceedings arise out of the aforesaid Act, which provides
for specific reliefs which can be granted only by the
learned Magistrate, the said proceedings in
Crl.Misc.No.641/2010 nor any order passed therein cannot
- 34 -
NC: 2025:KHC:9783
have the effect of creating a non-existent right in favour of
the appellants/plaintiffs to seek partition in the suit
schedule property. Under these circumstances, the said
contention urged on behalf of the appellants/plaintiffs
cannot be accepted.
14. Accordingly, point Nos.1 and 2 are answered in
the Negative and as against the appellants/plaintiffs. In
the result, there is no merit in the appeal and the same is
dismissed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
NC
