Rewriting S. 6 of the HSA, 1956 (before 2005)

By Ashish Kumar Singh

Recently, the Delhi High Court in the case of Sh. Gyan Chand & Ors. v. Sh.Ram Chander (RSA №69 of 2014), through Justice Valmiki J. Mehta observed in Para 6 as follows:

“In my opinion ………… Also it is not the case of the appellants/defendants in the written statement that the appellants/defendants formed an HUF with their father/respondent/plaintiff. Further, in law, even assuming for the sake of arguments, the respondent/plaintiff/father had inherited the suit property from his father, mere inheritance cannot make the property as an HUF property unless the property was inherited by the respondent/plaintiff from his father prior to passing of the Hindu Succession Act, 1956 and which is not the factual position as the grandfather Jiwan Ram died in 1976. An ancestral property is not necessarily HUF property. This has been held by the Supreme Court in its judgments in the cases of Commissioner of Wealth Tax, Kanpur etc. Vs. Chander Sen Etc. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar AIR 1987 SC 558. Supreme Court in these judgments has held that after passing of the Hindu Succession Act, 1956, if any property is inherited by a male person from his paternal ancestor, he inherits the same as a self -acquired property and not as an HUF property………….the present judgment”.(Emphasis supplied is mine)

The above Para shows how erroneously the Section 6 and Section 8 of the Hindu Succession Act have been applied to this case. It is quite astonishing that the apex court and some High courts have in their judgements reached the conclusion that the concept of joint Mitakshara property or Hindu undivided Family property has been abrogated by the Hindu Succession Act. A view that has been propounded after the enactment of the Hindu Succession Act is that there is nothing like an ancestral property for the son succeeding to his father’s, father’s father’s, father’s father’s father’s property takes it as a separate property. All property which is not in coparcenary is a separate property for the purpose of old Hindu law. The apex court and other High courts have held that when a son acquired a self-acquired property from his father, father’s father, father’s father’s father, he takes it as a separate property, and not as a HUF property. Such view of the apex court has led to the inevitable conclusion that no new Mitakshara Hindu joint family can come into existence after the coming of the Hindu Succession Act. This amounts to saying that the Hindu Succession Act has abolished the Mitakshara joint family and consequently Hindu Undivided Family (hereinafter HUF). With utmost respect, in my humble submission, this view is totally against the basic principles of the Hindu law. This article will deal with the above conclusion of the courts in three parts, in first part I will trace the history of such conclusion through various case laws, in second part I will give arguments in the favour of the opposite conclusion and lastly, in third part I will give a conclusion to this article. In this article I will also try to critically analyse and answer the following questions:-

1. Whether the Hindu joint Mitakshara property or Hindu joint family property has been abolished after the enactment of the Hindu Succession Act, 1956 (30 of 1956) (hereinafter ‘HSA’) or not?

2. Whether the character of the property inherited by a Hindu from his father, father’s father, father’s father’s father has been changed after the enactment of the Act or not?

3. Whether the acquisition of a property by a Hindu from his father, father’s father, father’s father’s father where the deceased has left a class I heirs who includes sons, predeceased son’s son, predeceased son’s predeceased son’s son, the property so acquired will be a joint property in the hands of son, son’s son, son’s son’s son or not?

Some basic principles of old Hindu law

1. First principle is that so long a property remains in the hands of a single person, the same was to be treated as a separate property and thus, would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten. But once a son is born, it becomes a coparcenary property and he would acquire an interest therein.

2. Second principle is that the character of ancestral property is not taken away by there being a partition of the property in the family of the inheritor, and though a share of ancestral property allotted to a coparcener on partition will be his separate property as regards others, it will be ancestral property as against the allottee’s sons, grandsons, and great-grandsons whether born before or after the partition.

3. Third Principle is that where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards has male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch.

In C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar (AIR 1953 SC 495), the question arose as to the character of the self-acquired property given by the father by a way of gift to a son. In this case it was rightly pointed out that had the father’s property devolved by succession on the son, son’s son, son’s son’s son would have got a right by birth in it, and the property would have been coparcenary property. The question, therefore, is, can the father, by changing the mode of devolution, change the character of the property? The Supreme Court held that the character of the property in the hands of the donee-son would depend upon the intention of the donor-father. If he gave it as a separate property it will be a separate property, and if he gave it a joint family property, it would have that character. Justice B.K.Mukherjea (as the learned Chief Justice of India then was) in this case made a pertinent observation about the character of the separate property on its passing by succession to the son and his lordship held:

“It is obvious, however, that the son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it by partition, made by the Grandfather himself during his lifetime. On both these occasions the grandfather’s property comes to the father by virtue of the latter’s legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.” (Emphasis supplied is mine)

The learned Justice stated the obvious but, with due respect, it was misunderstood by Justice M.H.Beg (as the learned Chief Justice of India then was) in Commissioner of Income-Tax v. Ram Rakshpal (1968 67 I.T.R. 164). His lordship observed that it could not be inferred that “there is any question of first vesting in the father and then vesting again in the father and the son (i.e. the son and grandson of the deceased).” The logic of vesting and divesting and then revesting is utterly an ill-conceived one in my humble submission. Even if we analyse this argument of vesting, divesting and revesting from the perspective of a tax statute, let say income tax act, 1961, it does not the stand the test of logic for it leads to absurd results. For instance, if a Mitakshara Hindu dies leaving behind three sons A, B and C and three grandsons AS, BS and CS, obviously as under the old Hindu law, under the Act also, A, B and C will succeed to the separate property of the father and not the grandsons AS, BS and CS as in the presence of a near heir, Hindu law did not and the Act too does not visualise the possibility of a remoter heir succeeding. Under the Dayabhaga school too, A, B and C will constitute coparcenary in the language of Hindu law or an HUF in the language of laws of taxation. Since the Dayabhaga law does not recognize son’s birth right, the question of AS, BS or CS getting any interest in it does not arise. The argument of vesting, divesting and revesting cannot be used in respect of the Dayabhaga law. Had he been concerned with this law, he would not have been able to say that there is no HUF in such a situation. Then, is there something in the Act which forces us to say that in such a situation an HUF exists under the Dayabhaga law but does not exist under the Mitakshara law? There cannot obviously be any justification for this dual interpretation, for this leads to one result under the Mitakshara School and another result under the Dayabhaga School.

In Ram Rakshpal (Supra), the question came for consideration is whether the income from the one-third assets of late father which devolved on his son by succession was to be assessed as his individual income or as part of the income of the HUF consisting of himself and his son. The simplified facts of the case are that one Durga Prasad, his son Rakshpal and his grandson Ashok Kumar, son of Rakshpal, constituted an HUF until 11 October 1948 when there was a partition in the family leading to Durga Prasad’s separation. Thereafter, Durga Prasad earned on his own separate business in the name and style M/s Muriidhar Mathura Prasad until he died on 29 March 1958. Ram Rakshpal and his son Ashok Kumar also carried on their own business under the name and style M/s Ram Rakshpal Ashok Kumar, an HUF business. Since, on his death, Durga Prasad was survived by his own widow, a daughter and son Ram Rakshpal, the business of Durga Prasad, which was obviously his separate property, devolved on these three heirs, each taking one-third share. The daughter took away her one-third share, but the widow of Durga Prasad and Ram Rakshpal entered into a partnership in the remaining two-third assets.

The learned justice considered the question: whether the rule of Hindu law was altered by the Section 4 of the HSA. The High court held that it has been altered by the Section 4. I will try to show in the later part of this article why this is a wrong exposition of law. The learned justice also adverted to the assumption that the HSA provides a complete code of succession, in my humble submission, it is a wrong assumption. I will deal this assumption later in this article. The learned justice concluded by saying:

“It is not possible to argue from these cases that the business which Durga Prasad started after partition must be stamped with the character of Hindu undivided family property and must retain that character, even on a succession by Ram Rakshpal on the death of Durga Prasad, in respect of the business carried on by Durga Prasad.”

(Emphasis in original)

His lordship also gave the current position of Hindu law and his lordship observed:

“Thus, the position under the Hindu law is that partition takes away, qua a coparcener, the character of coparcenary property from the property which goes to the share of another coparcener upon a division, although the property obtained by a coparcener upon partition continues to be coparcenary property for him and his unseparated issue. This means that, so far as Ram Rakshpal and his issue were concerned, it was only that property which came to the share of Ram Rakshpal which could be regarded as coparcenary property.”

(Emphasis supplied is mine)

Had the argument of the Justice M.H.Beg been taken to logical conclusion, there would come into no new Mitakshara joint families or HUFs after the enactment of the HSA. It may be emphasised that the foundation of Mitakshara coparcenary and the HUF is laid when a Hindu inherits the separate property of his father, father’s father, father’s father’s father. On such inheritance, he holds the property as joint family or HUF property in which sons acquire an interest by birth. If we are allowed to say that a property inherited under Section 8 will be only of separate in nature, then effectively we are holding that the Mitakshara joint family has been abolished by the act. It is important to note that nothing in the act which expressly or by necessary implication lays down that the old Hindu law relating to the character of inherited or ancestral property has been changed.

In Ghasiram Agarwalla V. Commissioner of Gift-Tax (1968 69 I.T.R. 235), the Assam High court echoed the views of the Allahabad High court in Ram Rakshpal (Supra). The simplified facts of the case are: A HUF consisted of Sagarmal Agarwalla, his son Ghasiram Agarwalla and three grandsons. The HUF properties included a rice mill. There was a partial partition as to the rice mill. After partial partition the mill was converted into a partnership business of Sagarmal and Ghasiram and Ghasiram’s sons having some defined shares in it. Sagarmal died on 1 June 1960 and at the time of his death; there stood to his credit a sum of Rs. 91,668 in the firm’s books. This sum continued to stand in his name up to 31 March 1961, the last date of the accounting year, and thereafter it was shown as equally divided between Ghasiram and his three sons and the amount was transferred accordingly to the individual accounts. The gift-tax officer held that on the death of Sagarmal the entire amount of Rs. 91,668 devolved on Ghasiram as the sole heir, and since Ghasiram allowed three-fourth of this amount to be credited to his three sons, he made a gift of Rs. 68,751 to his sons and was, therefore, liable to gift-tax. This view was upheld by the appellate assistant commissioner who observed that when Ghasiram inherited his father’s separate property under section 8 of the Act, he took it as his separate property. This view was confirmed by the income-tax appellate tribunal which made a reference to the High Court.

The facts of this case were very simple and there is no scope for confusion but again the High court came to a wrong conclusion. The High Court quoted following passage from the Mulla’s Hindu Law:

“A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners” (Emphasis in original)

There is no doubt that this is the correct position of the Hindu law regarding the separate property. But on this basis Justices came to a wrong conclusion. They took the view that the Section 8 of the HSA codified the proposition of old Hindu law. They added: “Hence, the view taken by the members of the Appellate Tribunal that after the passing of the Hindu Succession Act the law is changed does not appear to be sound, because even before the Act the separate property devolved on the heirs of the individual concerned” (Emphasis supplied is mine). The learned justices did not spell the basis on which they have reached the conclusion that the separate property devolving by succession as it did before and it does after the act, on the son also remain separate qua his sons. This case is the perfect example how our imagination boggles in a simple case. The court came to held that Ghasiram took Rs.91,688 from his father as his separate property and the division of the above sum between the Ghasiram and his sons is nothing but a gift made by the Ghasiram to his sons, so he is liable to gift-tax. To my limited understanding the court has effected a partition between Ghasiram and his sons by adhering to his incorrect interpretation, and the partition is not a transfer of property, therefore, no question of the exaction of gift-tax arises.

In N.V.Narendranth v. The Commissioner of Wealth-Tax (1969 SCR (3) 882), the question arose was whether a coparcener having a wife and a two minor daughters, and no son receives his share of joint family properties on partition can be assessed as property belonging to the Hindu undivided family comprising himself, wife and two minor daughters or it is to be treated as his individual property for the purpose of wealth tax. Justice V. Ramaswami speaking for the bench made some pertinent observations:

“The next question is whether the assets which came to the share of the appellant on partition ceased to bear the character of joint family properties and became the individual property in his hands. In this connection, a distinction must be drawn between two classes of cases where an assesses, is sought to be assessed in respect of ancestral property held by him : (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee.” (Emphasis supplied is mine)

Justice V.Ramaswami then also made a reference to the apex court decision in Attorney-General of Ceylon v. A.R.Arunachalam Chettiar where Justice J.C.Shah (as the learned Chief Justice of India then was) observed:

“Property of a joint family, therefore, does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu Undivided Family…………”(Emphasis supplied is mine)

After the reference to Attorney-General of Ceylon (Supra), Justice V.Ramaswami laid down the test to test whether a particular item of property is joint or not, and his lordship observed:

“It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as “joint property of the undivided family”.(Emphasis supplied is mine)

In Commissioner of Wealth-Tax v. Harshadlal Manihal (1974 97 I.T.R. 86 Guj), the question arose was whether the self-acquired property and personal assets of the deceased father of the assessee were to be assessed as, HUF property represented by the assessee or individual property. Chief Justice B.Diwan speaking for the Division bench held that, after following N.V.Narendranth (Supra), the property was a HUF property in the hands of the assessee. Learned Chief justice also applied the test formulated in N.V.Narendranth (Supra) and in Para 14 held as follows:

“Applying the test evolved by the Supreme Court in Narendranath’s case, to the facts of this case, it is obvious that at the time of the relevant valuation date, the family consisted of the assessee, his wife, Mrinalini, his daughter, Jayashree, and his mother. The three female members of the family, namely, his widowed mother, his wife and his daughter were entitled to be maintained out of the property and were not only members of the family but had certain rights in the property which is in dispute. These are the rights of the members of the family who were in existence at the valuation date but applying the test of members of the family who were in existence at the valuation date but applying the test of members yet to be born, it is obvious that if a son were to be born to the assessee or to be adopted by the assessee, then the newly born son or adopted son would get right as from birth or as from the date of adoption into the property which is the subject-matter of dispute and when they become the members of the family in this manner, either by birth or by adoption, the property would undoubtedly become joint family property in the hands of the assessee. ………once the correct test to be applied is that of the members of the family in being and yet to be born. On this test the only conclusion which can be reached is that the property received by the assessee on the death of his father, Manilal, became the property of the joint Hindu family which at the valuation date consisted of the assessee, his wife, his daughter and his mother and the value of that estate on the valuation date must be treated as the value of the estate belonging to that Hindu undivided family.” (Emphasis supplied is mine)

In Commissioner of Income-Tax v. Babubhai Mansukhbhai (1977 108 I.T.R. 417 Guj), again the same question as Harshadlal Manihal (Supra) came for consideration, this time Chief Justice B.Diwan went to consider all the authorities including the Allahabad High Court judgement in Commissioner of Income-Tax v. Ram Rakshpal, Ashok Kumar (Supra) where Justice M.H.Beg( as learned Chief Justice of India then was) speaking for the single bench came to a contrary position to what was held by the Gujarat High Court in Harshadlal Manihal (Supra). The high court held that the Section 6 and Section 30 of the HSA did not affect the character of the property in the hands of the son when the son gets his inheritance from his own father. The High court in this regard observed as follows at Para 5:

“……….It will be noticed that both section 6 and section 30 deals with the undivided share of a Hindu in a Mitakshara coparcenary property. They do not deal with his individual self-acquired property. Therefore, it is obvious that what has been provided for in section 6 and section 30 of the Hindu Succession Act can in no way affect the character of the property in the hands of the son when the son gets the property by inheritance from his own father. Neither section 6 nor section 30 deals with such a situation. Under section 8 of the Act it has been provided that the property of a male Hindu dying intestate shall devolve according to Chapter II upon the heirs, being the relatives specified in Class I of the Schedule. If there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule ; and if there is no heir of any of the two classes, then upon the agnates of the deceased and if there is no agnate, then upon the cognates of the deceased. The result, therefore, is that so far as the property is concerned, it devolves according to the provisions of the Chapter in which section 8 is located but that does not again deal with the character of the property in the hands of the person to whom the property devolves by succession. With respect to the learned judges of the Allahabad High Court, it is impossible to read into the words of section 8 any provision which interferes with the scheme of Hindu law as it prevailed prior to the enactment of the Hindu Succession Act. Neither section 6 nor section 8, nor section 30 affect this principle of Hindu law as to in what capacity or in what character the son would enjoy the property once he received it from his father in succession.” (Emphasis supplied is mine)

Learned chief justice then made a reference to the Mulla’s Treatise on the Hindu law to come a conclusion that although there was some strong sentiment to abolish the Mitakshara coparcenary to bring it in line with the Dayabhaga School yet the Mitakshara coparcenary had been retained in an attenuated form. Therefore, the high court came to the conclusion that the Hindu’s HUF Institution has not been abolished by the HSA.

In Brij Lal v. Daulat Ram (1977 79 Punj L.R. 27), a non tax case, wherein neither the Ram Rakshpal (Supra) nor any other precedents were cited. Justice Harbans Lal reached the identical conclusion as was reached by the Gujarat High court in Harshadlal Manihal (Supra) and Babubhai Mansukhbahi (Supra). The simplified facts of the case were that one Kheta Ram died on l8 July 1957 leaving behind his self-acquired property and his widow, two sons, one of whom was named Daulat Ram, who also had a son by the name Jagan Nath, and two daughters. Under the Act the widow, sons and daughters inherited the property, each taking one share. In execution of a money decree against Jagan Nath, his interest in the coparcenary property was sought to be attached and sold. Jagan Nath pleaded that he had no interest in the property. This contention was accepted by the district judge who held that old Hindu law, under which son of a Hindu got an interest by birth in the property inherited by him from his father, father’s father or father’s father’s father, stood abrogated.

Overruling this view, the learned judge said that so far as the daughters were concerned, the estate inherited by them was their separate property, but so far as the share inherited by Daulat Ram from his father Kheta Ram was concerned, it must be treated as ancestral property and as such according to the established principle of the Mitakshara law it must partake the character of coparcenary or joint family property or HUF property. Repelling the contention that the Mitakshara law has been abrogated by the Section 4(1) the learned Justice held that:

”Section 6 and Section 8 of the Act only postulate as to how the property left by a male Hindu will be inherited by the surviving heirs. It does not in any manner say as to how this property will be treated in the hands of the heirs. The Act being silent in this matter, section 4 of the Act cannot be interpreted to have abrogated the established principles of Mitakshara law ……… It is clear from a perusal of section 4 of the Act that the entire Mitakshara law has not been abrogated by the Act but only to the extent the same is inconsistent with the provisions of the Act. If there is a conflict between Mitakshara law and the Act, the provisions of the Act will prevail. Where any field has been left uncovered by the provisions of the Act, the Mitakshara law will still continue to hold the field.” (Emphasis supplied is mine)

The learned Justice, in conclusion, held that the property inherited by the Daulat Ram from his father was ancestral in his hands. His lordship rightly warned of the consequences of the wrong interpretation i.e. the character of the property in the hand of son from his father is self-acquired and rightly observed:

“If any other interpretation is adopted, the result will be that as soon as a male Hindu dies, the property left by him and inherited by his son will also become self-acquired property and the entire Mitakshara law will have to be held to have come to an end. I do not think this was the intention of section 4 of the Act.” (Emphasis supplied is mine)

In Additional Commissioner of Income-Tax v. R.A.Manicka Mudaliar (1978 114 I.T.R. 521), the Madras high court followed the decisions of Allahabad and Assam high court. The matter was considered by full bench of Madras High court in Additional Commissioner of Income-Tax v. P.L.Karuppan Chettiar (1978 114 I.T.R. 523), where an HUF consisted of Paianiappa, his wife Anandavalli, son Karuppan and daughter-in-law. The HUF effected a partition on 22 March 1954 and Paianiappa and Karuppan separated. In regard to the property which Karuppan got as his share, a separate HUF consisting of himself, his wife and their subsequently born sons and daughter came into existence, This HUF was assessed to income-tax. On 9 September 1963 Paianiappa died leaving behind his widow Anandavalli and son Karuppan. Anandavalli and Karuppan succeeded to the property of Paianiappa as his heirs under section 8 of the

Act and each took onehalf share in the property. The question was whether the income derived from the property of Paianiappa inherited by Karuppan would be assessed as the income of the HUF or as the income of his separate property. Obviously, the question was the same: Whether the separate property of the father inherited by a Hindu would constitute HUF property or his separate property vis-a-vis his sons? The Madras High Court rightly posed the question thus: How do the heirs in class I take the property under section 8 and added: “If the mode of division provided by the section is different from that which obtained before the Hindu Succession Act came into operation, in accordance with the principles of Hindu law in view of what is categorically stated in section 4 of the Act, it is section 8 of the Act that should prevail and not the principles of Hindu law.” No one would challenge this formulation. But the learned judges took the view that the old Hindu law of inheritance stood changed and stated the following reason:

“When we search for the relatives mentioned in class I of the Schedule, which is attracted by virtue of section 8, we find no sons’ sons are mentioned at all though the grandson of the deceased son is mentioned. . . . But where the son as well as his son, are the persons concerned, by applying section 8, we have to come to the conclusion that the son alone, namely, Karuppan, in this case will inherit the property to the exclusion of the grandson. This being the effect of the statutory provision, no interest will accrue to the grandson in the property which belonged to Palaniappa.”(Emphasis supplied is mine)

This is the trap. The Hindu law of inheritance did not say that son, son’s son and son’s son’s son inherited a separate property. The learned justices held that even if assuming that Palaniappa property is ancestral in the hands of Karuppan, still because of the effect of the statute, karuppan’s son will not have an interest in the property. I will deal with this conclusion at the appropriate stage and will try to show why there is a fallacy in the reached conclusion.

In Commissioner of Wealth-tax v. Chander Sen (1986 AIR SC 1753=1986 SCR (3) 254), the question arose was whether the income or asset which a son inherits from his father when separated by partition would be assessed as income of the HUF of son or his individual income. The simplified facts of the case are: one Rangi Lal and his Chander Sen constituted an HUF. On October 10, 1961, there was partial partition in the family by which business was divided between the father and the son. On July 17, 1965, Rangi Lal died leaving behind his son, Chander Sen and his grandsons i.e. sons of Chander Sen. His wife and mother predeceased him and he had no other issue except Chander Sen. On his death there was a credit balance of Rs 1,85,043 in his account of his firm. This sum was shown as the net wealth of the family as it was considered as individual property of Chander Sen.

In this case Ram Rakshpal (Supra), Ghasiram Agarwalla (Supra), P.L.Karuppan Chettiar (supra), Babubhai Mansukhbahi (Supra), Madhya Pradesh High Court decision in Shri Vallabhdas Modani v. Commissioner of Income-Tax (MP 1 138 I.T.R. 673) and Andhra Pradesh High Court decision in Commissioner of Wealth-Tax v. Mukundgirji (AP 2 144 I.T.R. 18) were discussed. Madhya Pradesh High Court and Andhra Pradesh High Court had followed Ram Rakshpal (Supra). The Supreme Court realised that there were divergent views on the above question by the Allahabad High Court, full bench of Madras High court, Madhya Pradesh High Court and Andhra Pradesh High Court on one side and Gujarat High Court on the other side. The apex Court rejected the views of Gujarat High Court and observed as follows:

“In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court’s view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated.” (Emphasis supplied is mine)

The apex court further observed:

“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 included son of a predeceased son cannot be ignored.” (Emphasis supplied is mine)

The apex court in this case held that the old Hindu law position regarding the devolution and inheritance has been altered by the Section 8. In my humble submission, the apex court have erred in interpreting the primary objective of Section 8 and Section 6 proviso, it is submitted that the primary objective of Section 6 proviso read with Section 6 Explanation 1 read with Section 8 is to give some share out of the ancestral property to the daughters and other female members, that was till then denied to them. It was a step forward in creating some space or participation in ownership of coparcenary property by daughters through indirectly and meagre substantively [this was corrected by 2005 amendment act wherein full rights were given to the females] in comparison to what their male counterparts entitlement was. It is also wrong to say that by subscribing to the Gujarat High Court’s view grandson who is not mentioned in Class I heirs will be given a right to inherit under old Hindu law. Firstly, grandson would acquire an interest by birth in the property of his father which devolved to him in notional partition under Section 6 proviso so there is no need to mention grandson in class I heir list. Secondly, to hold that the property which devolved on Hindu under Section 8 would be HUF in his hand vis-a-vis his own son, would be creating two classes is blatantly wrong because Section 6 read with Section 8 read with first schedule envisage two classes where a part of the interest of the deceased will given to the class I heir as their separate property and the rest of the interest of the deceased will merge with the allottee’s property and become HUF qua his male issues. Furthermore to hold that in case of confusion we must look to the HSA rather than the ‘pre-existing’ law is inconsistent with the HSA itself for HSA has left the gap in the act to be filled by the old Hindu law, for example HSA does not provide, how the notional partition will be done and who will be entitled to a share in notional partition, to find who were entitled to a share notional partition we have to go back to the old Hindu law. Even if forego the above example, it is needed to be asked why those texts, rules or interpretations regarding any matter for which nothing is provided in the HSA have been saved in Section 4(1). Therefore, the inevitable conclusion that can be derived is that old Hindu law is still effective as the HSA itself is, unless it is inconsistent with the act. The apex court rightly observed that the statements and objects given in the preamble of the HSA must not be ignored. The HSA seeks to amend and codify the law relating to intestate succession. But the word ‘amend’ does not mean that the grandson has been excluded from HSA. The HSA only tries to attenuate or relax the Mitakshara joint coparcenary by opening a gap for the class I heir in the property devolution scheme as was in old Hindu law. If the legislature wants to abolish the Mitakshara joint coparcenary, it can provide for the same in the Section 4, but that is not the case.

In Yudhister v. Ashok Kumar (1987 AIR 558= 1987 SCR (1) 516), the apex court followed the Chander Sen (Supra) and held:

“……..that under the Hindu Law, the moment a son is born, he gets a share in father’s property and become part of the coparcenary. His right accrues to him not on the’ death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity.” (Emphasis supplied is mine)

The apex court further observed:

“In that view of the matter, it would be difficult to hold that property which developed on a Hindu under section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a- vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property.” (Emphasis supplied is mine)

The question that arose in this case was whether the respondent i.e. son was a licensee of his father or a co-owner of the property namely the ancestral property. The court as is evident from the above Para held that the respondent was a licensee of his father. In this case property in question was a self-acquired property of the respondent’s grandfather. After his demise the property devolved to the respondent father. The above question itself is self evident enough to tell us that how much absurd situation we have reached following the ratio of Chander Sen (Supra), where a son who was supposed to have right in his father’s property (mind you it was not his father’s self-acquired property) by the fact of his taking birth has been denied. This judgement show how the apex court is hell bent on destroying the old Hindu institution: Mitakshara joint family or HUF.

The ratio of Chander Sen (Supra) was followed in Yudhister (Supra), Sheela Devi and Ors. v. Lal chand and Ors. (Appeal civil 4326 of 2006), Bhanwar singh v. Puran and Ors. (Appeal civil 1233 of 2008), Appropraite Authority (IT Deptt.) and Ors. v. M. Arifulla and Ors. (2002 10 SCC 342), M.Yogendra and Ors. v. Leelamma N. and Ors. (Civil appeal no. 4818–19 of 2009), Uttam v. Saubhag Singh and Ors. (Civil appeal №2360 of 2014) and in the recent case of M.Arumugam v. Ammaniammal and Ors. (Civil appeal №8642 of 2009, delivered in 2020).

In M.Arumugam (Supra) the apex court in Para 15 observed:

“15. There is another reason to take this view. Section 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by Will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenary shall be deemed to be property capable of being disposed of by him within the meaning of Section 30. This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his self­-acquired property. Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement.” (Emphasis supplied is mine)

The conclusion which learned justice have reached, in my humble submission, is wrong, as Section 30 provides only for the power of disposal of an undivided interest in Mitakshara property. But it does not mean that a Karta can dispose the whole of the joint family property as other coparceners as right in it by birth. Section 30 provides that any coparceners can disposes only his interest, in the Mitakshara joint property, which devolves to him if there, is a partial partition. Disposal of Property under Section 30 is only possible when allottee is the sole coparcener. Had a son been born to him he cannot exercise his right to dispose his property through Will or any other testamentary instruments. In my humble opinion, the Section 30 cannot be stretch to such a level to reach such conclusion. I will deal with Section 19 later in the arguments section of this article.

In Vellikannu v. R. Singhaperumal (2005 6 SCC 622), the apex court was considering the question whether a son who is held guilty of having murdered his father was disqualified from his inheriting his coparcenary property and would be deemed to have predeceased his father. Pertinent facts of this case are as follows: The scheduled property in question are the self-acquired property of one late Ramasami Konar and the first defendant, the only son of Ramasami Konar and the plaintiff is the wife of the first defendant. Wife of Ramasami Konar was already divorced and married with some other person and was residing separately. The first defendant was married to the plaintiff-appellant. On 10/10/1972 first defendant murdered his father, Ramasami Konar and was convicted under S.302 of the Indian Penal Code, 1860 for life imprisonment. But in 1975 he was released early on the recommendation of the Madras High Court. Plaintiff filed a suit in the trial court claiming that she alone is entitled to the entire estate of late Ramasami Konar since his husband is disqualified under S.25 read with S.27 of the HSA to inherit his father property. The trial court held that although the first defendant was disqualified under S.6 read with S.25 read with S.27 yet plaintiff was entitled to half share under proviso of S.6 of the HSA. The same was confirmed on the appeal from the trial court by the learned lower appellate court. The learned lower appellate court observed that Plaintiff was entitled to a share in the scheduled property as she was a class I heir under schedule I of the HSA. The Madras High Court on regular second appeal set aside the judgment of the judicial authorities below. The high court held that the plaintiff was not entitled to the property under Proviso of S.6 and the plaintiff will inherit as widow only when there was a succession to the estate of the late Ramasami Konar. Furthermore the High court held that S.6 was not applicable in this case. The apex court while considering the above question held:

“Therefore, it is now settled that a member of coparceners acquires a right in the property by birth. His share may fluctuate from time to time but his right by way of survivorship in coparcenary property in Mitakshara Law is a settled proposition.” (Emphasis in original)

The apex court further observed:

“Therefore, in view of various decisions of this Court it appears that Defendant №1 and the plaintiff who was married to Defendant №1 were members of joint Hindu family. If the defendant-appellant sic [respondent] had not incurred the disqualification, then they sic [he] would have inherited the property as per Mitakshara School of Hindu Law. But the question is that when the sole male survivor had incurred the disqualification can he still claim the property by virtue of Mitakshara School of Hindu Law? If he cannot get the property by way of survivorship, then the question is whether his wife who succeeds through the husband can succeed to the property? Our answer to this question is in negative.” (Emphasis supplied is mine)

The apex court then went on to hold that the decision of the learned single judge of the High court was right. In my humble submission, the ratio of this case is in direct conflict with the Chander Sen (Supra) and Yudhister (Supra) for the ratio of the Chander Sen (Supra) have been applied then the Plaintiff will be entitled to a share in the deceased property as she will be a class I heir under first schedule. According to the Chander Sen (Supra) the self-acquired property of the deceased will be a separate property in the hands of his son, the first defendant, and the devolution will take place through mode of succession under proviso of S.6 of the HSA, since in this case the first defendant has, been disqualified under S.25 and been deemed to have predeceased his father under S.27, the plaintiff will be considered as his widow for all purpose, since widow is a class I heir she will be entitled to inherit the property.

But in this case the apex court does not follow the ratio of Chander Sen (Supra) and held that if the son has not incurred disqualification under S.25 then he will have inherit property under old Hindu rule. In other words, if the son has not been disqualified then he would have taken his father property not as a separate property but as a coparcener and such devolved property will be joint qua his son, son’s son and son’s son’s son.

In Rohit Chauhan v. Surinder Singh and Others (2013 9 SCC 419), the simplified facts of the case are: A HUF consists of grandfather Budhu and his three sons, namely Gulab Singh, Zile Singh and one Ram Kumar. Gulab Singh is the father of the plaintiff-appellant whereas Surinder Singh, defendant-respondent, is the son of Zile singh. In partition Budhu and his three sons got 1/4 share i.e. 72 kanals of land. Budhu bequeathed his share i.e. 18 kanals to each of his three sons and kept the rest with himself. After the death of Budhu, each son takes 1/3 share i.e. 6 kanals. Meanwhile plaintiff’s father managed to purchase 8 kanals of land from the income of the properties he got in partition. In this way Plaintiff’s father got 102 kanals of land. Plaintiff was born on 25/03/1982. Plaintiff’s father on 19/05/2000 through two sale deeds sold 8 kanals of land to some family members and gifted rest 96 kanals to Surinder Singh through a release deed dated 28/05/2000. The plaintiff challenged both the sale deeds and the release deed. The apex court held:

“In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. (Emphasis supplied is mine)

Learned justice distinguished the Bhanwar Singh (Supra), which followed Chander Sen (Supra) on a very flimsy ground. The Court held that Plaintiff-appellant is a coparcener with his father Gulab Singh, and Gulab Singh being the karta of the family cannot dispose the coparcenary property without any legal necessity. The apex court quashed both the sale deeds and the release deed.

It is submitted that the ratio of this case is in direct conflict with the ratio of Chander Sen (Supra) and Yudhister (Supra) as the property of Plaintiff’s father was considered ancestral qua his son i.e. Plaintiff, which according to Chander Sen (Supra) will be Plaintiff’s father separate property. Above Para lays down the correct exposition of the Hindu law, that is that the nature of the property does not change even if such property devolved under Section 8. This case lays down the and correct exposition of Hindu law that when a Hindu gets his father’s separate property by inheritance, he holds it as a coparcenary property with his son or sons if he has any at that time, and if he has none, then the moment he gets one. In the interlude, i.e., between the period from the death of his father when he inherits the property and a son is born to him, he can treat the property as his separate property and may alienate it, and if, by the time he gets a son, no property is left, the son will obviously get no interest. But if he does not alienate and the inherited property is still with him, the moment a son is born to him, the son becomes a coparcener with him. In this proposition of Hindu law no logic of vesting, divesting and revesting is involved. The son’s birth right in the ancestral property is a typical and peculiar Mitakshara concept. It is important to note that although the allottee can treat his property as his separate property till the time a son his born to him, but it cannot be construed that the nature of the property has been changed from ancestral to separate and again changes from separate to ancestral when a son is born to the allottee, it will always remain ancestral although it may be treated as separate for the time being till his son is born. The ratio of this case totally negated the proposition that the property devolved under Section 8 read with proviso to Section 6 is a separate property for male members.

Interestingly both the Rohit Chauhan (Supra) and Vellikannu (Supra) on one hand and Chander Sen (Supra) and Yudhister (Supra) was decided by the bench of same strength, therefore, in my opinion, it must be referred to a larger bench, though the time will tell whether which one of the two will be upheld. Apart from what the apex court will decide in future, in my humble submission, Rohit Chauhan (Supra) lays down the correct position of the Hindu law.

Arguments in support of Rohit Chauhan (Supra) and Vellikannu (Supra)

1. The joint Mitakshara coparcenary has not been abolished by the Section 4 of the HSA.

The learned judges have more or less relied on the Section 4 of the HSA to conclude that this section has abrogated the old rule of Hindu law. I will try to show why the above statement is blaringly erroneous. I will also try to show that the joint Mitakshara coparcenary has been saved and is still intact, although it has been attenuated by the Section 8 of the HSA.

Section 4 sub-section 1 of the HSA reads as follows:

4. Over-riding effect of Act. —

(1) Save as otherwise expressly provided in this Act, —

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (Emphasis supplied is mine)

A simple reading of the Section 4(1) provides that any rule or interpretation with respect to any matter which has not been made in the HSA has been saved, and has not been abrogated. The question we need to ask ourselves is there any provisions in the HSA which deal with the nature of the self-acquired property that devolves on the son from his father. In my humble submission, there is none. Nowhere in the HSA have any provisions which dealt with the character of the self-acquired property inherited by the son from his father.

In Ram Rakshpal (Supra) Justice M.H.Beg observed that the HSA provides a self-contained and comprehensive code relating to both testate and intestate succession to the property of Hindus. With due respect this statement is evidently wrong in so far as it relates to the testamentary succession. This act nowhere provides for the testamentary succession. Section 30 simply lies down that a Hindu Mitakshara may dispose his undivided interest in the Mitakshara coparcenary by a will or any testamentary disposition. Section 30 merely confers the power of the disposal of the undivided interest in Mitakshara coparcenary property. Thus the observation about the code being comprehensive for testate succession is obviously wrong. Section 30 is provided herein below for reference:

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.]

(Emphasis supplied is mine)

It is also humbly submitted that the statement regarding the code being exhaustive for intestate succession is equally wrong. For example Section 6 proviso speaks of the notional partition but does not lay down any rule for it, and therefore, it is the rules of the old Hindu law for partition which will apply to the notional partition.

2. The Mitakshara law has been saved in HSA

(1) The HSA in drawing the list of heirs follows the principle of propinquity. Why has the mother been placed in class I heirs and father in class II heirs can be only explained on the basis of Vijananeshwara’s formulation that between father and mother, mother has better propinquity and therefore, will have precedence over the father. HSA is based on the general rule of succession on the basic principle of propinquity; it means preference to heirs on the basis of proximity of relationship i.e. the succession is carried out on the basis of the nearness/closeness of the relationship.

(2) Why does the act still give importance to the source of property in respect of succession to the property of a Hindu female, can be understood only if we keep in view the old Hindu law of woman’s property and rules of its devolution. The property which a woman inherits from her husband or father-in-law goes to the heirs of the husband, and the property which she inherits from her father or mother goes to her father’s heirs. This distinction that is maintained in section 15(2) of the Act has a basis in the old Hindu law. Section 15 sub-section 2 is herein below for reference:

15. General rules of succession in the case of female Hindus —

(2) Notwithstanding anything contained in sub-section (1), —

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. (Emphasis supplied is mine)

3. Section 6 and Section 8 of the HSA has not altered the character of the property which devolves on a son from his father.

It was rightly observed by Chief justice B.Diwan, in Harshadlal Manilal (Supra) and Babubhai Mansukhbhai (Supra), that Section 6 and Section 8, deal with the undivided interest of a Mitakshara coparcenary property. Both section 6 and section 8 do not deal with the character of the property, of a Hindu, when it devolves on his son by inheritance under proviso to section 6 r/w section 8. Section 8 deals with the mode of devolution of separate property and also specify the heir of a Hindu dying intestate. Section 8 is applicable in case of a general succession; mind it that Sikhs, Jains and Buddhists are also Hindu for the purposes of this act. It may be possible that Sikh or Jains or Buddhist does not flow the Mitakshara coparcenary system and there is only one mode of devolution i.e. succession. Section 8 is in the HSA to cater to the needs of the communities which do not follow Mitakshara law, and are governed by their customary laws which have pass muster Section 4(1). Proviso to section 6 only provides that property will devolve through succession, not through survivorship. Section 8 provides the mechanism for such devolution. In my humble submission, neither Section 6 nor Section 8 do not affect the Hindu principle as to what will be the character of the property or in what capacity the son will enjoy it, which has devolved to the son from his father through succession. Section 6 and Section has been reproduced herein below for reference:

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.

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.

(Emphasis supplied is mine)

A bare perusal of the Section 6 will show it only provides for modes of devolution i.e. either survivorship or intestate succession, it nowhere deals with the character of the property in the hands of a son.

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;

© 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. (Emphasis supplied is mine)

Section 8 nowhere deals with the character of the property in the hands of a son. Therefore, neither Section 6 nor Section 8 says anything about the nature of the property in the hands of a son. Consequently, it can be said with some force that the judgments of the High Courts and the apex Court holding that the acquisition of a father’s self-acquired property to son through succession is a separate property is erroneous and bad in law.

4. Section 19 does not alter the character of the property devolving from a father to his son under Section 6 proviso.

Section 19 is herein below reproduced for reference:

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.

(Emphasis supplied is mine)

Section 19 simply lays down that when two or more heirs succeed to the property of an intestate, they will take the property per capita and not per stirpes, and the heirs will take the property as tenants-in-common and not as joint tenants. It is important to note, as I demonstrated above, joint Mitakshara coparcenary property has not been abrogated, and it has been saved under Section 4(1), therefore, Section 19(a) will not be applicable to the devolution of property through survivorship under Section 6, but it will be hit by Section 19(b). Under the old Hindu law, devolution through survivorship is per stirpes and not per capita, and it has been saved. It is also important to note that devolution of property through succession under Section 6 proviso will come under the ambit of Section 19(a), therefore, devolution of property under Section 6 proviso read with Section 8 will be on per capita basis not on per stirpes. Section 19(b) hits both modes of devolution i.e. survivorship and succession.

Before we delve more deeply into Section 19(b), it is important to note the differences between tenants-in-common and joint tenants. In both cases property is held jointly, but in tenants-in-common shares of each joint owner is specified and on his death it devolves on his heir. In joint tenancy shares of each joint owner are not specified and on his death the other gets his interest through survivorship.

Although the heirs will take the property as tenants-in-common but it does not mean that the property will not be a joint family property for heirs qua son, son’s son, son’s son’s son. Each heir property will be separate and under his control with regard to other heirs’ properties. Each heir property will form a Joint Hindu family with his members i.e. his, wife, mother, son, daughter etc. Subsequently it will give rise to joint Mitakshara property for each heir qua his son, son’s son, and son’s son’s son. As under the old Hindu law, a joint Mitakshara coparcenary is destroyed when a male dies intestate or when partition takes place and a new joint Mitakshara coparcenary emerges the moment any son, son’s son and son’s son’s son is born to any coparceners/allottee, the same will be the case under the HSA. For example ‘A’ has two sons ‘B’ and ‘C’, and one unmarried daughter ‘D’, when A is alive HUF will comprise of A,B,C and D and coparcenary will comprise of A,B and C. The moment A dies (after 1956 and before 2005) the HUF will comprises of B, C and D, and the previous joint Mitakshara coparcenary will dissolve and new joint Mitakshara coparcenary will emerge the moment any son, son’s son and son’s son’s son is born to either A or B, or to both. Suppose a son is born to A then new coparcenary comprising A qua his son will born. When A dies B, C and D will take their shares as tenants-in-common and each will take the interest of deceased i.e. A per capita. Therefore from the above mentioned legal reasoning it can be said that Section 19 does not alter the character of the property that devolves to any son from his father.

In the end it is submitted that the whole argument is based on the fallacious assumption that under the old Hindu law, son and grandson together inherited the separate property of a Hindu. Once this assumption was made, it was easy to say that since this was not so under the Act, the whole of the old Hindu law stood abrogated by virtue of section 4. Once we realise that under the old Hindu law as well as under the Act son alone succeeds to the separate property of a Hindu, the whole argument crumbles and the section does not come into application. Since no provision as to the character of the separate property inherited by a son is made in the Act, the old Hindu law rule that the separate property of his father inherited by a Hindu is ancestral property qua his son has not been abrogated.

Conclusion

In the end, it is submitted that apex court must decide between Rohit Chauhan (Supra) and Vellikannu (Supra), and Chander Sen (Supra) and Yudhister (Supra), keeping in view that Mitakshara joint coparcenary is an important facet of Hindu life. We are all aware of the dangers of the nuclear families in Western countries. Some of the dangers are High Divorce rates, unstable family etc. Mitakshara joint coparcenary is not to be seen only in respect to property but it must be seen in a larger perspective: destroying Mitakshara joint coparcenary and Hindu joint family will be giving incentive to more nuclear families. It is also submitted that Chander Sen (Supra) and Yudhister (Supra) deserves to be overruled.

About the author

The author is a engineer, trainer to be a lawyer. He studies at the Faculty of Law, Delhi University.

References

Satyajeet A Desai, Mulla Hindu Law (23rd edition LexisNexis 2018)

Dr. Paras Diwan, Ancestral property after Hindu Succession Act 1956 (Indian Law Institute Journal, 1983 Vol.25 №1)

Dr. Paras Diwan, Modern Hindu Law (23rd edition Allahabad Law Agency 2018)