Critical Analysis of Expunging the Mitakshara Coparcenary in Uttam v.

Shaubagh Singh: A Per

Incuriam Decision by Hon’ble Supreme Court
Abstract
Hindu Mitakshara Family doesn't cease to exist due to the demise of coparcener of the family. This article
examines the judgment of Uttam v Saubhag Singh AIR 2016 SC 1169 in a critical manner as it holds that as
soon as there is a notional partition, there is an end in the coparcenary wherein the joint family property gets
converted into separate property. It discusses the different situations regarding the application of Section 6
Hindu Succession Act, 1956 and Section 8, Hindu Succession Act, 1956 in the devolution of property and the
erroneous application of law in the present case.
Introduction
This case arises out of SLP (C) No. 6036 of 2014 and from the judgment dated 29/10/2013 of the High Court of
Madhya Pradesh at Indore in the second appeal no. 206 of 2005. It is decided by the division bench of Hon’ble
Justice Rohinton Fali Nariman and Hon’ble Justice Kurian Joseph and delivered by Hon’ble Justice Nariman on
March 2, 2016. The reliance has been put on Section 4 1, Section 82, Section 193 of Hindu Succession Act, 1956
and principles of Hindu Jurisprudence while deciding the case. In this case, it was decided that the coparcenary
ceases to exist if there is a notional partition upon the death of a coparcener in a joint Hindu family.
Facts of the Case
The suit is filed for claiming the share in the suit property saying that it is ancestral property. 4 Mr. Jagannath
Singh being a coparcener, having an interest in the coparcenary property died leaving behind a widow and four
sons that are D1, D2, D3, and D4, D3 being the father of the plaintiff in 1973. 5 The plaintiff was born in 1977
and claiming 1/8th share in the suit property claiming it to be ancestral and he has a right by birth in it, being a
coparcener in the joint family according to the Mitakshara Law. All the four brothers (first four defendants)
filed a joint statement that earlier a partition had taken place and the property is not ancestral.
Issues Involved
1. Does the joint family property which was ancestral in the hands of the Karta and his other coparceners,
which was devolved by the virtue of Section 8, Hindu Succession Act,1956 ceases to be a joint family
property on the date of death of the Karta and whether this property is held by the other coparceners and
Karta's widow as tenants in common and not as a joint tenant?
2. Whether the property that has been devolved on a Hindu by the virtue of Section 8 of Hindu Succession
Act, 1956 would amount to a generation of 2 classes among the Class-I heirs in the sense that, in the hands
of male-heirs it will be a joint Hindu family property concerning their relation as sons and no such concept
will be applicable on the female heirs or else it would be a Hindu undivided family property to his son?
3. Whether there is the inclusion of son of a pre-deceased son but exclusion of son's son for the matter of
claiming succession rights in a joint Hindu family?

1
Hindu Succession Act 1956, s 4.
2
Hindu Succession Act 1956, s 8.
3
Hindu Succession Act 1956, s 19.
4
Uttam Singh v. Saubhag Singh, 2013 SCC OnLine MP 10873.
5
Ibid.
Argument Advanced by Appellants
The prominent point contended by the counsel of appellant was on the footing that as at the time of death of
Jagannath in 1973, his widow was alive this situation will be governed as per the proviso to Section 6 of Hindu
Succession Act,1956 and hence, the devolution of the interest of the deceased in the mitakshara coparcenary
property will take place by intestate succession under Section 8 of the Act. 6 He contended that the joint family
property will remain intact and it is only the interest of the deceased person that will devolve by intestate
succession.7 Accordingly, being a coparcener the appellant has the right to file a suit for partition even his
father is still alive as having a right to claim partition. 8 It was urged that Section 8 wouldn’t be a bar to such
suits due to its application only at the time of death of the deceased (Jagannath Singh) and not after that to non-
suit the plaintiff.9 There should be a harmonious reading of Section 8 and Section 6 which would result that by
applying Section 8, the status of the joint family recognized under Section 6 cannot be said to be taken away on
the death of the plaintiff's grandfather in 1973.10
Argument Advanced by Respondents
The respondent pleaded that, as due to the application of proviso to Section 6, Section 8 gets applied, the status
of joint family to be joint ceases to exist and after that, either Section 8 or Section 30 can only successively
apply.11 Section 8 applies when a member of a joint family dies intestate and Section 30 applies when he dies
making a will. He placed reliance on the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen 12 and
case of Bhanwar Singh v. Puran13. Hence, contended that the plaintiff has no right to claim partition as it is no
longer a joint continuing to subsists in any member of the coparcenary.
Statutory References
The relevant provisions of the said Hindu Succession Act pertinent for this judgment are Section 4 which
consists of a non-obstante provision saying that any regulation or rule prevalent before the commencement of
this Act ceases to exist if provision is made therein save as otherwise expressly provided for that particular
subject in the Act.14
Section 6, talks about the devolution of interest in coparcenary property wherein it says that if a Hindu male,
with his interest in the mitakshara coparcenary property, dies without any female relative specified in Class-I
of the schedule or male relative specified in the same schedule who claims the interest of the deceased through
the female relative, the devolution will take place by survivorship and if not then, by testamentary or intestate
succession, whatever the case may be under this Act.15

6
Uttam v. Saubhag Singh AIR 2016 SC 1169, ¶ 6.
7
ibid.
8
ibid.
9
ibid.
10
ibid.
11
AIR [2016] SC 1169, ¶ 7.
12
AIR [1986] SC 1753.
13
AIR [2008] SC 1490.
14
Hindu Succession Act 1956, s 4.
15
Hindu Succession Act 1956, s 6.
2
Section 8 mentioned certain rules regarding the succession of the property of the Hindu male dying intestate
following the provision of the concerned Chapter mentioned in Clause (1) of the schedule.16
Section 19 talks about the mode of succession if two or more heirs are succeeding to a property of an intestate,
they shall take it, firstly according to the principle of per capita, and secondly the property will be as tenants-in-
common and not joint tenants.17
Section 30 talks about testamentary succession.
Judicial References
The Supreme Court relied on many judicial pronouncements in the present case to support its
ruling. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum 18 wherein the plaintiff was a widow
and she was claiming the share of 7/24 th of the joint family property consisting of their two sons, her husband,
and herself. Being four legitimate claimants (3 coparceners and 1 being a mother of coparcener), if partition
would have taken place during the lifetime of the plaintiff's husband, she would have got 1/4 th share. Now, on
the death of her husband (died in 1960), his 1/4th share will devolve upon their five children and his widow, i.e.,
plaintiff. Hence 1/4 + 1/24 = 7/24.

A W

S S D D D

In this joint Family chart, A is Karta (Mr. Gurupad), W is

his wife, S is his First son, S his second son, D is his 1st daughter, D is his second daughter and D is his third
daughter.
According to the law of partition, to calculate the share of the above joint Hindu Family we have to identify the
legitimate claimants as per the principle of per stripes. Karta is also a coparcener. There are two categories for

the same. First being the coparceners i.e., S & S (as daughters weren’t coparcener at that time before 2005) and
W, being the mother of the coparcener. Hence, there are 4 legitimate claimants. Hence, as per the rule of per
capita, the share of ‘W’ had there been a partition in the lifetime of ‘A’ would be ¼. Now, as ‘A’ died leaving
behind his six heirs, it will devolve as per the rule of intestate succession. Hence, ¼ × 1/6 = 1/24. Now the
whole share of W is ¼ + 1/24 = 7/24.
In this regard, the Court stated that the husband of the plaintiff died after the commencement of the Act, with an
interest in the coparcenary property shows that this attracts Section 6 of the Act and as he died leaving behind
his heirs (female relatives specified in Class-I of schedule) the general rule would not be applicable i.e.,
devolution would not take place by survivorship. Therefore, the proviso to Section 6 will be attracted and
16
Hindu Succession Act 1956, s 8.
17
Hindu Succession Act 1956, s 19.
18
[1978] 3 SCC 383.
3
devolution will take place as per intestate succession. The controversial point is regarding the explanation-1 of
Section 6 between the parties. The court stated that the heir will get their share of what they might have got had
there been a partition at the lifetime of the deceased along with the share which she/he deemed to be received in
the notional partition.
Further, they referred State of Maharashtra v. Narayan Rao Sham Rao Deshmukh19 , the main point of
discussion was that does a female Hindu ceases to be a member of a joint family, once she has inherited a share
of the joint family property on the death of her husband. The Apex Court stated that as the act of partition is not
a voluntary act of a female Hindu and it took place due to application of Explanation-I of Section 6 (operated
due to law), she does not cease to be a member of the joint family.
In the state of Shyama Devi v. Manju Shukla20 it was stated by the court that for determining the share of the
deceased on the date of this death, Explanation 1 to Section 6 mentions a formula to determine the share of such
deceased person according to the law of notional partition.
The Court, by applying the above-mentioned principle in the present case said that, if the plaintiff had been
alive in 1973 when Jagannath died, he would be entitled to a share due to the notion of partition at that
particular time. However, it has been told in the court that the plaintiff has been born in 1977, no such share
could be allotted to him.
The court mentioned the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen21 wherein the father has
already died in 1965 leaving his heirs behind. There was a credit balance in the firm and the main issue was
whether this amount could be said as the joint family property as the father's share has already been devolved
under Section 8 of the Act. It was held now it cannot be accepted that there will be the formation of two classes
within the Class-I heirs, the male heirs and the female heirs where the property will be joint in the hands of
male heirs and nothing as such will apply regarding female heirs.
They also stated the case of Bhanwar Singh v. Puran22 where the Bhima died leaving behind three daughters
and Sant Rama. There were entitled to share of 1/4 th by the virtue of Section 8 of the Act. A partition had taken
place and It was held that with respect to Section 19 along with Section 8, the properties are no more joint
family property and all other heirs & representatives will hold his interest not as joint tenants but as tenants-in-
common. In such nature, the joint coparcenary didn’t continue to exist.
There were certain other judgments cited by the counsel for appellants, saying that the joint family property
continues though there is a sole surviving coparcener. The property is held as an incidence of coparcenary
property. However, the Apex Court said that in these cases there was no discussion on Section 4, Section 8,
Section 19, or Section 6 of the principal Act.
Finding of the Supreme Court

19
AIR [1985] SC 716.
20
[1994] 6 SCC 342.
21
AIR [1986] SC 1753.
22
AIR [2008] SC 1490.
4
In the present case, the Court summarized certain points that is applied to joint Hindu family of Mitakshara
School that are as follows:
i. When there is a death of a Hindu coparcener, having an interest in the coparcenary at the time of his
death the interest will devolve by survivorship. (vide Section 6)
ii. An Exception to the (i) point, is that if he died leaving behind a surviving female relative or female
relative specified in Class-I of the schedule of the Act, then the devolution will take place by intestate
succession by virtue of proviso to Section 6of the Act.
iii. The other explanation is in Section 30 of the Act, wherein it states that the devolution will take place in
this manner if there was a will or other testamentary disposition.
iv. Notional Partition (legal fiction or deemed partition) takes place immediately before the death of Hindu
Male coparceners. All the coparceners and widow of the coparcener gets a share in the joint family
property.
v. If there is an application of Section 8, either due to proviso to Section 6 or leaving a self-acquired
property of the Hindu male, the devolution will take place only by intestacy.
vi. The conjoint reading of Section 8, Section 4, and Section 19, shows that once the property is divided
according to Section 8, the joint family property is not joint and it is held as tenants-in common who
have succeeded on such property.
Judgment
In this case, it was held that the Mitakshara Coparcenary property comes to an end regarding all the practical
purposes as there is the death of one of the coparceners. They held that the death of Jagannath Singh results
from the devolution of the joint family property by applying Section 8 of the Act, hence the property is no more
a joint and the other coparceners and widow are not joint tenants but tenants-in-common. The Appeal was
dismissed.
As Section 8 is applied in the present case, the joint family property remained to be divided when the plaintiff
filed a suit for partition. Since the plaintiff had no right in the property as his father being alive (father is class-I
heir, the plaintiff being not), the plaintiff cannot ask for partition. Therefore, the suit for partition in the first
appellate court was dismissed.23
Critical Analysis
The position with respect to notional partition settled before the present case was in Gurupad Magdum’s case
(Supra). The court here mentioned that though the widow of the deceased coparcener could not claim partition
if it took to place her share would be 7/24th. The judgment of the Apex Court nowhere seems of the intention
that the legal fiction or notional partition would result to total disruption of the joint property or the coparcenary
ceases to exist though the deceased is survived by coparceners. 24This has also been mentioned in Mulla on
Hindu Law, 21st edition at page 1107 with respect to Gurupad’s case. With regards to notional partition, the

23
AIR [2016] SC 1169.
24
AIR [1978] SC 1239.
5
severance of status (mere fiction) is deemed to have taken place immediately before the death of the deceased
who left behind an heir.25The two things that are required to be emphasized. First, all rules regarding actual
partition apply to notional partition and if it weren't, then other provisions would not work. Secondly, as the
notional partition is a deemed partition, the severance of status takes place only with respect to the interest of
the deceased coparcener and not with respect to any other surviving members of the Hindu Undivided Family. 26
It can be said that this exercise of notional partition is done so that the interest of the deceased can be separated
and the proviso can be made work upon it.27
In Mulla, with respect to the case of Narayan Rao, Gurupad’s case has been an authority wherein the Court
discussed that if a female member wants to go out of the family, she will get both the share that would have
been notionally allotted and she had inherited by virtue of Explanation-I of Section 6. Next, the case of Chander
Sen is only an authority for the proposition that even if Section 6 is applied, the joint property ceases to be joint
under Section 8 as in that case it was held, a son inherits his father’s self-acquired property, it is his separate
property and not joint family property.
In the case of Chander Sen, the main issue was regarding the amount left behind by his father in the account of
the firm of which they both were partners. The amount comes under the purview of his self-acquired property
of Chander's father. Here, it was devolved to Chander in his individual capacity by the virtue of Section 8 of the
Hindu Succession Act,1956.
The main point to be noted here is that Chander Sen’s case talks about the devolution of self-acquired property
of the demised father where the partition was already done. However, in the present case, it is regarding the
devolution of the ancestral property after the death of the coparcener. So, in a way, it seems that this case has
been inappropriately relied upon in Uttam's case to prove the situation that an ancestral property will devolve in
an individual capacity.
Further, as per the provisions of the principal Act, exclude son's son include a son of a predeceased son, as
when the succession opens, it opens with the application of per strips, i.e., among the heads of each branch of
Hindu Joint Family. Therefore, the son of a predeceased son gets an equal share in succession.
Due to this particular judgment in Uttam's case, there has been the creation of a lot of conflicting decisions of
High Court those have relied on this case as a precedent and they are also delivering the same inappropriate
judgment as done in Uttam and this costs a lot to a joint Hindu family.28

A W

S S S D D

25
Shive Hondav v. Director AIR [1992] Bom 72; Paras Diwan, FAMILY LAW (6th edn, Allahabad Law Agency 2001) 417.
26
Vijendra Kumar and Vidhi Singh, ‘Extinguishing Hindu Joint Family and Mitakshara Coparcenary: A Critique’ [2018] 1 CLPR 22.
27
Paras Diwan and Peeyushi Diwan, MODERN HINDU LAW (15th edn, Eastern Book Company 2003) 259.
28
Nikhil Rohatgi, ‘A Critique of Supreme Court’s Judgment in Uttam v. Shaubagh Singh & Others’ (BAR & BENCH, 24 November
2018) <https://www.barandbench.com/columns/a-critique-of-the-supreme-courts-judgment-in-uttam-v-saubhag-singh-ors>accessed
16 June 2021.
6
 S

The self-acquired property of A will devolve in accordance with Section 8 of the principal Act. So firstly,
identify the legitimate claimants as per stripes that are 6 coparceners and W being the mother of the
coparceners, there are seven legitimate claimants. By applying per capita of the legitimate claimants will get
1/7th share of the self-acquired property.
Now, when it comes to coparcenary property, we have to apply the principle of notional partition. So, here each
will have 1/7th share of the coparcenary property. A’s share is also 1/7 th Now, this 1/7th share will devolve

among the class-1 heirs of the deceased i.e., 1/7 × 1/6 = 1/42. So, the share of W, S, S, S, D, D is 1/7 + 1/42 =

1/6. Now, 1/6th is held by S as an incidence of a coparcenary property and as and when S is born, he has a right
by birth in it. Even if S is born after the death of A, his right in the coparcenary doesn't extinguish. The
coparcenary does not come to an end if there is a death of a coparcener in the joint Hindu family. This is the
settled law with respect to a notional partition which was not followed in Uttam v. Saubhag Singh & hence
there is a requirement to review the judgment as it settles a binding precedent that is contrary to the established
principles of Hindu Jurisprudence.
Conclusion
The Court in the present case came to a conclusion that the Mitakshara Coparcenary comes to an end for all
practical purposes if there is the death of one of the coparcener which doesn't seem appropriate as neither the
Mitakshara coparcenary nor the Hindu Joint Family comes to an end on the death of one of the coparcenars.
There is a misapplication of the concept of notional partition baffling it with an actual partition in the matter of
intestate succession. Here, the two-judge bench in the present case has overlooked the judgment delivered by
three-judge benches in Gurupad v Hirabai. Therefore, it can be said that this pronouncement of the Apex Court,
though a binding precedent, is per incuriam. In this case, no remedial provisions have been kept by the Supreme
Court to correct this erroneous judgment. The Hon'ble Court should reconsider the several aspects of this case
and hence, save the extinguishment of the Mitakshara joint family, joint property, and the coparcenary system.

7
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