The Facts in Uttam’s Case

The Appellant/Plaintiff’s grandfather, Jagannath Singh had died in 1973. His

widow, Mainabai and 4 children (including the father of the Appellant) survived
him. The Appellant had been born in 1977, after the death of his grandfather.
The Appellant sought partition to isolate his 1/8 th share in the joint family
property. The Appellant filed a suit against his father and 3 of his father’s
brothers (Respondents).

Before the Supreme Court:

Judgment
The Supreme Court relied upon its own judgment in Gurubhai Khandappa
Magdum v. Hirabhai Khandappa Magdum (1978) 3 SCC 383 (“Gurupad”) to
rule that in cases of succession which are covered under the Proviso to Section
6, it is necessary to carry out a fictional partition just before the deceased’s
death, to determine the deceased’s share in the joint family property.

Para 14 of the Uttam Singh judgment also shows that if upon a partition, there
are people who are only coparceners and not otherwise entitled to a share upon
intestate succession (such as a Plaintiff, being a grandson of the deceased with
the deceased’s son alive- if the Plantiff were alive at the death of his
grandfather), then they will get only the share which they would upon notional
partition just before the deceased’s death and not any portion of the deceased’s
share.

The Court then relied upon its decisions in Commissioner of Wealth Tax,
Kanpur and Ors. v. Chander Sen and Ors., Yudhishter v. Ashok Kumar and
Bhanwar Singh v. Puran to hold that when succession takes place under Sec. 8
of the Act, then the entire joint family property loses its nature and the heirs
succeed the deceased’s interests as tenants in common in accordance with
Section 19 of the Act.

The Court summarized the legal position saying that a conjoint reading of
Sections 4, 6, 8 and 19 shows that if succession takes place in accordance with
Sec. 8 the joint family property ceases to be joint family property in the hands
of the various persons who have succeeded to it as they now hold the property
as tenants in common and not as joint tenants as provided under Sec. 19.

The Supreme Court rejected the appeal holding that the Appellant cannot sue
for partition. When his grandfather died in 1973, his share in the joint family
property was divided between his sons as individual shares and no longer
remained joint family property. Thus according to the Supreme Court’s
interpretation, the Appellant’s father and uncles (sons of Jagannath) did
not jointly own any family property that could be made subject to
partition.

Analysis of Judgments referred in and Critique of Uttam Singh

I will now proceed to analyze the cases relied upon/referred to in Uttam, in

order to argue that none of those lend support for the conclusion reached or
reasoning employed in Uttam.

See the Gurupad judgment - There, Khandappa (“K”) died in 1960, leaving
behind a widow, 2 sons and 3 daughters. In 1962 his widow filed a suit for
partition claiming 7/24th share, on the basis that upon notional partition just
before K’s death, K, his widow and 2 sons each would have got a 1/4th share and
dividing K’s 1/4th share between 6 family members (since Proviso to S.6 would
apply as there were female heirs), each would get 1/24 th and therefore widow
would get 1/4th + 1/24th = 7/24th share.
It was held that there was no prior partition and that the property was HUF
property and that S.6 proviso and therefore S.8 would apply. The Supreme
Court allowed the widow’s suit and gave her 7/24th share.

The observations in Gurupad have been relied on in Uttam to mean that even
upon a notional partition (in contradistinction to an actual partition), all the Joint
family property (in contradistinction to only the deceased’s share in the
property) gets converted into separate property. However, Mulla on Hindu
Law, 21st Edition, 2010 at Page 1107 after referring to Para 13 of Gurupad has
observed as follows:

“The above observations … The decision of the Supreme Court does not
say that the fiction and notional partition must bring about total
disruption of the joint family... It is submitted that notional partition need
not result in total disruption of the joint family. Nor would it result in the
cessation of coparcenary.”

Thereafter, on Page 1108, it is further stated as follows:

“In State of Maharashtra vs Narayan Rao AIR 1985 SC 1234, the
Supreme Court carefully considered the above decision in Gurupad’s
case and pointed out that Gurupad’s case ‘has been treated as authority
(only) for the position that when a female member who inherits an
interest in the joint family property under s 6 of the Act files a suit for
partition expressing her willingness to go out of the family she would be
entitled to both the interest she has inherited and the share which would
have been notionally allotted to her as stated in Explanation I to s 6 of
the Act.”

Therefore even as per Mulla and as held in Narayan Rao, the decision in Uttam
would be open to criticism, as Uttam carries the legal fiction of notional
partition beyond its logical end viz. to simply calculate the distribution of the
share of the deceased person and not to bring an end to the coparcenary.

In its landmark judgment in CWT v. Chander Sen (1986) 3 SCC 567 (relied
upon in Uttam), the Supreme Court held that after coming into force of the
HSA, the legal position was that when a son inherits property under Section 8
(i.e. intestate succession of his father’s self-acquired property), he takes it as his
individual property and not as Karta of his own HUF. In Chander Sen, there
was a partition of the business carried on by Chander and his father, Rangi Lal.
The father and son carried on the business even after the partition and the father
died, leaving Rs. 1,85,043/- in his account. It was this amount that was the bone
of contention as Chander’s own HUF in its wealth tax return claimed it was his
individual property and not that of his HUF. It is clear from a reading of inter
alia, para 2 of the judgment that the said amount of Rs. 1,85,043/- was treated as
individual property of Rangi Lal and therefore it was ultimately held by the
Supreme Court that this amount devolved upon Chander in his individual
capacity as per Section 8.

It is submitted therefore, that Chander Sen has been wrongly relied on in Uttam
to support the proposition that even ancestral property will devolve upon the son
in his individual capacity.

In Bhanwar Singh v Puran (also cited in Uttam), one Bhima died in 1972,
leaving behind a Son, S and 3 daughters (no widow). In 1977 S’s son, SS was
born and in 1985 SS filed a suit for partition. Its crucial to note that in Para 3
and 24 of the judgment, its recorded that Partition had already happened
between S and his sisters in 1973 and the revenue records reflect the same.
From a reading of Para 14, it is obvious that this is the reason that the SC said in
Para 15 that S.6 will not be applicable and S.8 will only apply. Therefore the
property ceased to be joint family property and therefore the Suit was
dismissed. The alternative holding by the Appellate court, upheld by the SC,
that even if S.6 applied, then u/S.8 the property would cease to be joint
property, is therefore obiter and it is submitted, incorrect. Para 16 and 17 of this
judgment make it clear that CWT v. Chander Sen is only an authority for the
proposition that when a son inherits his father’s self-acquired property, he does
not take it as his joint family property but as his separate property.

Yudhishter v. Ashok Kumar (1987) 1 SCC 204 is also cited in para 16 of Uttam,
on the basis that it follows the law laid down in Chander Sen. In Yudhishter, the
Respondent before the Supreme Court was the landlord, who had filed a petition
for eviction against the Appellant/tenant on the ground of bona fide
requirement, amongst other grounds. The Rent Controller rejected the petition
on the ground that the Respondent had not been able to prove bona fide
requirement. The Appellate authority held that the Respondent and his joint
family were living in the house that belonged to the grandfather of the
Respondent and therefore, since the respondent was living there as a licensee of
the father, he was not a co-owner and therefore, it could not be said that the
Respondent was “occupying another residential house” in terms of Section
13(3)(a)(1) of the Rent Control Act. It is important to note therefore, that in
Yudhishter, on facts the property in question was found to be self-acquired and
not ancestral property and therefore Section 8 was applied and not section 6 of
the HSA. The Court further states that even if the chamber/big room is
considered as available, it is inadequate for the landlord and therefore to decide
this question is unnecessary .

If one only reads the judgment in Bhanwar, without reading Yudhishter, then at
first blush, Yudhister, discussed in para 19 of Bhanwar, seems to be contrary to
Chander Sen, as in the first half of para 10 of Yudishter, it says “whether
separated or not”- while Chander Sen says separated property is taken as such
and not as joint. However, only a part of the relevant para 10 of Yudhister is
quoted in Para 19 of Bhanwar, which makes it misleading. The remaining
relevant part of para 10 of Yudhister, after what has been quoted in Para 19 of
Bhanwar makes the position clear and in line with Chander Sen.

Sheela Devi is discussed in Para 20-23 of Bhanwar. In Sheela Devi, Tulsi Ram
died in 1889 (before coming into force of the HSA) leaving behind 5 sons
including Babu Ram. It was firstly held (relying on various judgments of the
Apex Court as well as Mayne’s) that it is settled law that when a partition
happens, the property that comes to the share of a coparcener is only separate
property qua the other coparceners whereas qua his sons it continues as
ancestral property. It was further held following Chander Sen that where S.8
applies then it will cease to be ancestral and the inheritor will take as separate
even qua his own sons. This not being the issue in Uttam, it was not necessary
for deciding it. Therefore the court’s opinion that Sheela Devi would not help
the appellant since there was no discussion of Sections 4,8 and 19 (which itself
is debatable as S.8 specifically and S.4 by language, is clearly discussed in
Sheela Devi and the judgments it cites) would be of no consequence.

Author’s Conclusion:
In light of the foregoing discussion, the author with utmost respect and humility
concludes as follows:
 The Error in Uttam lies in assuming that the entire coparcenary property
is to be divided by succession (as opposed to survivorship) in the notional
partition upon the death of the deceased in a case covered by the Proviso
to S.6 (i.e. a female heir being alive). This effectively means that if a
female heir also exists at the time of the death of any coparcener, the
coparcenary comes to an end.
 Whichever coparcenary the Plaintiff claims to a coparcener in, he will get
at least some share in the suit property- either the overall coparcenary of
 his father and his uncles (and their children) or only with his father. In
neither case can it be said that there is no ancestral property left.
 The conclusions in Para 18(i) to (v) of Uttam are absolutely correct, in
that they speak exclusively of the deceased’s share in the coparcenary and
not the entire coparcenary. Then suddenly and inexplicably there is a
jump to talking about the entire coparcenary, which does not, contrary to
what the judgment says, arise from “a joint reading of Sections 4,8 and
19. The judgment fails to consider the true effect of S.6 and particularly
the words “… not in accordance with this Act.”
 This last expression in S.6 must mean that S.8 can never apply to
coparcenary property. The situation of son’s son not being able to get a
share on partition if the son of the deceased is alive, only applies in case
S.8 applies. It cannot apply to devolution of coparcenary property left
over after taking out the share of the deceased which has converted into
self-acquired by reason of one of the exception to the normal rule of S.6.

It is therefore hoped that this rather discordant note struck by the Supreme
Court is corrected in an appropriate case sooner rather than later as it has
already resulted in confusion as well as judgments of various High Courts
rendered that follow the judgment in Uttam, which are, it is submitted, incorrect
for the same reasons as Uttam is.