PROJECT WORK

OF

FAMILY LAW- II

ON

TOPIC: CASE ANALYSIS OF SHALINI RAUT & ORS V MILIND

SUBMITTED BY: SUBMITTED TO:

ARUBA ANSARI(GU15R0075) Prof. SADAF ALI KHAN

SEMESTER-VII (Assistant professor of Law)

GLOCAL LAW SCHOOL

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 TABLE OF CONTENTS

 FACTS OF THE CASE

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FACTS OF THE CASE

In this case, the plaintiffs and the defendants approached the Court seeking for a declaration
that they both were co-owners of the suit properties for ascertaining of the share claimed by
them, for partitioning of suit properties as per such shares, and for the possession of such
partitioned share. The parties claimed through one Rajaram Balkrishna Raut (Rajaram), who
died intestate on the 23rd of November, 1991, leaving behind 8 children ( 5 sons and 3
daughters), and several grandchildren various ancestral properties. The children and the grand
children who are the children of the pre-deceased or the deceased children of Rajaram were the
parties to the suit. The great grand-children of Rajaram were not sought to be made parties,
though the suit properties were claimed to be ancestral properties of Rajaram. In the present
case, the son and the grandson of plaintiff No. 4 had sought to be made party-defendants to the
suit. They claimed that they are coparceners in the coparcenary property of the joint family,
and claimed to be entitled to their share therein separately and individually from plaintiff No.
4 who, according to them, was unable to manage his affairs and claim his share. According to
the son and the grandson of Plaintiff no. 4, the parties to the suit had taken advantage of the old
age of their father/grand-father who resided, alone, which may have adversely affected his
share and consequently their shares. They had claimed their right by virtue of their birth in the
suit properties which were claimed to be coparcenary properties.

The plaintiffs as well as the defendants contended that during the lifetime of plaintiff No. 4, his
son and grandson would not have any share in the suit properties and, therefore, have no locus
to be joined as party-defendants. The parties to the suit had also disposed of two of the
properties in the suit. Hence the defendants applied for deletion of two immovable properties.
They claimed that the suit had become in fructuous with regard to those properties and there is
no relationship between the parties with regard to those properties.

ISSUES FRAMED

Did the female member of Joint Hindu Family have the share the ancestral property of the
deceased?

CONTENTIONS OF PLAINTIFF AND RESPONDENT

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It is contended by the plaintiffs as well as the defendants including plaintiff No.4 that during
the lifetime of plaintiff No.4, his son and grandson would not have any share in the suit
properties and, therefore, have no locus to be joined as party-defendants.
Counsel on behalf of the applicants also relied upon the case of Narayan Ramchandra Katkar
& Ors. Vs. Arjun Bhimrao gore & Ors. AIR 1986 BOMBAY 122 to claim partition in para 4
of which it is held that a suit by a son for partition and separate possession was maintainable
even if his father as joint with his brother and did not consent to the partition. The applicants,
as members of the HUF would be entitled to claim partition so long as the ancestral property
continued joint and they continued to be coparceners. The test is whether the applicants can
apply for partition and separation possession of their share in the HUF in which their grand-
father and great-father Rajaram was Karta. For that purpose they do not require the consent of
their father or grand-father, plaintiff No.4. That claim would have been maintainable even if
their father or grand-father, plaintiff No.4, remained joint with his brothers and sisters.
It is contented by respondent It can be seen that the plaintiffs have not understood the concept
of joint ownership and co-ownership of ancestral properties. Ancestral properties cannot be
jointly owned. Joint properties survive to the joint holders entirely upon the death of one joint
holder. Ancestral properties survive to all the members of the coparcenary. Ancestral properties
can be co- owned by community of interest and unity of possession such that each party is an
owner of an undivided share. Upon the incidents of joint family property or coparcenary
property, this interest is augmented by the death of any coparcener (co-owner) and is
diminished by the birth of any coparcener in the HUF. The fact remains that the properties in
Exhibit A stated to be the co- owned or jointly owned are unmistakably and repeatedly stated
to be ancestral properties. The ancestral properties would survive to the coparceners in a Hindu
coparcenary owning such joint family properties. The only exceptions to that would be the
interest of the deceased Hindu in such coparcenary.

JUDGEMENT
“Entire property of deceased which is ancestral and which continues joint would not succeed
to his sons as heirs of deceased alone but other legal heirs would have a share in HUF
properties, being ancestral properties of deceased left after interest of deceased.” The
applicants, therefore, cannot simplicitor be party-defendants to the suit. They would require to
join the other coparceners also who are the children of the other parties to the suit. The
applicants would have to value their share in the suit premises as coparceners. If the applicants
also challenge the alienation by sale of two properties admittedly executed by the parties to the
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suit, as the other coparceners, they would have to value those suit properties entirely and pay
court fees accordingly. It is, therefore, too simplistic to state that the applicants may be only
made party-defendants.

ANALYSIS

The first question before the Court was whether the applicants, who are the son and grandson
of Plaintiff No. 4 must be made a party to the suit as having an independent right and interest
in the suit properties being coparceners of the joint Hindu family. Whether a son or a grandson
of a coparcener claiming an interest in the joint family properties/coparcenary properties would
be entitled to claim such interest by virtue of his birth? If that is so decided, the properties
which are sold pending the suit would have to be accounted for to them. If not, the properties
sold by the parties with which the parties to the suit, at present, have no dispute, may stand
deleted.

Coparcenary property

Let us first understand the meaning of the word ‘coparcenary property’, and the concept of
succession. The joint family property and the joint family ancestral property are collectively,
or individually called as coparcenary property. Coparcenary property is collectively owned by
all the coparceners, and thus, to own an interest in the ancestral or joint family property, a
Hindu male or female (females were given the status of coparceners after the Hindu Succession
Amendment Act, 2005) must be a coparcener. There is joint possession, and since the
ownership is collective, a Hindu male or female has limited powers of disposal over it. The
property inherited by a Hindu from his father, father’s father or father’s father’s father is the
ancestral property (unobstructed heritage as regards his own male issue).[i] His male issues
acquire an interest in it from the moment of their birth. They become coparceners with their
paternal ancestor upon their birth. The joint and undivided family is a normal condition of
Hindu society. An Undivided Hindu family is ordinarily joint in estate, food and worship.

A Hindu coparcenary is a narrower body than the joint family. It includes only those persons
who acquire by birth an interest in the joint or coparcenary property. The persons who acquire
an interest by birth in a joint family property or coparcenary property are sons, grandsons and
great grandsons of the holder of the joint property, and now, after the 2005 Amendment Act ,
even daughters, daughters’ daughters, daughters’ sons’ daughters, daughters’ daughters’ and

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daughters sons’ daughters. They become entitled to joint property/coparcenary property upon
their birth. The property inherited by a person from his father is ancestral in his hands. He is
not the owner of the property, he is entitled merely to hold and manage the property as the head
of the family for and on behalf of the family. The ownership of the property is in the joint
family consisting of himself and his sons. They are all co-owners or coparceners. (Hence the
expression co-owners and coparceners are synonymous). As can be seen, the essence of a
coparcenary is unity of ownership.

No coparcener or member of a joint Hindu family has a definite share in the property. His
interest is a fluctuating interest. It is enlarged by the deaths in the family; it is diminished by
the births in the family. Hence his interest is called “undivided coparcenary interest”. He
becomes entitled to a definite share only on partition, and the members of a joint family who
are within 3 degrees from the last holder of the property have a right to demand partition. The
interest of the deceased members passes on his death to the surviving coparceners. Each and
every coparcener has an equal interest in the coparcenary property.

Section 8 of the Hindu Succession Act, 1956

Now, according to Section 8 of the Hindu Succession Act, 1956, after the death of a male
Hindu, who dies intestate (without leaving a Will behind him), his property shall devolve to
his immediate heirs (relatives specified in class I and class II of the Schedule), and not to all
the coparceners in the family tree. The interest that the male had in the coparcenary property,
upon his death, is divided equally among all his heirs, that is, his sons, daughters, widow and
mother. This property is devolved by the rules of succession, and not survivorship. The
Schedule annexed to Section 8 showing Class I and Class II heirs show the son, daughter,
widow and mother of a Hindu male dying intestate as his first heirs. Along with them are
included the sons and daughters of predeceased sons and daughter; a grandson is not included
anywhere in Class I or Class II of the schedule to Section 8 of the HSA. The grandson never
succeeds to the property of the Hindu male dying intestate. That includes also the interest in
the joint family property which that Hindu male had and which would constitute his property
or his estate. Under Section 6 of the HSA 1956, there is a notional partition which is deemed
to have been effected upon the death of a coparcener. The share so separated devolves upon
the heirs of the deceased instead of vesting in the other coparceners by survivorship.

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SECTION 6 OF THE HINDU SUCCESSION ACT, 1956 AND THE HINDU
SUCCESSION AMENDMENT ACT, 2005

Section 6 of the Hindu Succession Act, 1956 deals with the devolution of interest in the
coparcenary property. It states that when a male Hindu dies after 1956, 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. Also, 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 Section, and not by survivorship. After 1956, daughters and widows
were considered to be heirs, and not coparceners, and they could get their father’s/husband’s
share of notional partition on his death. Daughters could get their share only upon their father’s
death, and not during his lifetime. However, after the amendment of 2005 in Section 6 of the
HSA, daughters started getting equal treatment to the sons. They started getting recognised as
coparceners, and would have the same interest in the coparcenary property as that of the son.

The relevant part of Section 6 ,as amended in 2005, runs thus:

“ Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had
been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that
of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a

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Provided that nothing contained in this sub-section shall affect or invalidate any disposition
or alienation including any partition or testamentary disposition of property which had taken
place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall
be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act, or any other law for the time being in force, as
property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had
they been alive at the time of partition, shall be allotted to the surviving child of such pre-
deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter,
as such child would have got had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or a predeceased
daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately before his death, irrespective of
whether he was entitled to claim partition or not.”

There would be a notional partition under Section 6 of HSA, 1956 if a female relative (heir) or
a person claiming through female relative (heir) was left by the deceased male Hindu
coparcener. There shall be a deemed partition under the statutory provisions contained in
Section 6(3) of the Act as amended in 2005. That would be a partition of the interest in
Mitakshara property of a Hindu dying intestate.

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Consequently, after 2005, upon the death of a coparcener, leaving any child, his son and his
daughter would share equally in his interest in coparcenary property. They would share as if
there was a partition. For all the Hindus dying after the commencement of the Amendment Act,
leaving any child, the interest in the joint family property which he had would not survive at
all. It would only succeed – either by testamentary or intestate succession. After 2005 for all
Hindus leaving any child there could be no case of survivorship at all; after 1956 but before
2005 there would be survivorship of interest in coparcenary property but only in a family
having no female relatives (heirs). Even during that period in a family having female relatives
(heirs) there would be no survivorship but only succession of the interest of a Hindu male in
Mitakshara coparcenary property.

In this case, Rajaram expired on 23.11.1991 leaving behind 8 heirs being his 5 sons and 3
daughters. Some of them have expired leaving behind their widow and sons and daughters.
These are the parties to the suit. Rajaram died intestate. Rajaram’s succession opened on
23.11.1991. His interest in his ancestral property which was Mitakshara coparcenary property,
therefore, devolved upon his sons and daughters by intestate succession under Section 8 of the
Hindu Succession Act and not by survivorship. All his sons and daughters would share equally
per capita as tenants in common. Upon their death their children would take their share. Under
that succession so long as the sons and daughters of Rajaram are alive, the grandsons or the
great-grandsons of Rajaram would not succeed at all to any interest in the coparcenary property
that Rajaram had. In the case of Commissioner of Wealth-tax, Kanpur v. Chander Sen[v], the
Supreme Court held that the heirs in Class I do not include the grandson being the son of a son
living. Hence it is held that when the son as a Class I heir inherits the property, he does so in
his individual capacity. The son takes individually in his individual capacity and not as Karta
of his own family.

It is seen in this case that though the suit is indeed in respect of the ancestral properties left by
Rajaram, the shares claimed by the plaintiffs are ascertained as if on succession. They are not
ascertained taking into account the survivorship of any coparcener of the Hindu Undivided
Family (hereinafter referred to as “HUF”) of Rajaram but as co-owners of the property
belonging to Rajaram. The addition of the applicants to the array of parties in the suit would
necessitate revision of the shares of each coparcener which, upon partition, he/she would be
entitled to. Consequently the share of the parties to the suit would also similarly vary. The
applicants would be required to file their own separate suit for partition of the coparcenary

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interest which they have in the HUF of Rajaram which would continue after his death, until
partition is demanded by any coparcener. Though, therefore, the applicants may be entitled to
partition, it would not be proper to allow them to join in this suit. They may sue separately
upon showing all the coparceners of the HUF of Rajaram.

After the death of Rajaram when the family continued joint but with diminution of the share
of Rajaram and upon the death of Sumant, another son of Rajaram on 22.01.2008, the interest
of Sumant in the coparcenary also devolved by succession, he having left a widow and a
daughter as his female relatives (heirs). The daughter of Rajaram, Sunanda having died in 2001,
the share in the coparcenary would not augment or diminish, she not having been a coparcener
until her death; she is only an heir of the deceased Rajaram who would have succeeded to his
Rajaram’ interest in his ancestral properties.

The applicants, therefore, do have a share in the HUF properties, being the ancestral properties
of Rajaram left after the interest of Rajaram and Sumant and another such deceased coparcener
leaving behind female heirs or male heirs claiming though their female heirs is deducted there
from. However, since the suit is not fully settled, it continues. The applicants are, therefore,
seen to be the coparceners of the suit properties which are admittedly ancestral properties. The
applicants would certainly be entitled to demand partition of the properties. They would have
to consider and account for the notional partition as had taken place upon the death of Rajaram
leaving three female heirs and ascertained their share in the suit properties. The applicants
would also have to consider and account for the notional partitions which may have taken place
in their HUF upon the death of other coparceners leaving behind other female heirs.

CONCLUSION

The Court held that applicants did have a share in HUF properties, being ancestral properties
of deceased. Since coparceners jointly own the coparcenary property, these properties could
not have been alienated without the consent of all coparceners. In coparcenary property, after
the death of a coparcener, his interest of the property would be equally divided among his heirs,
by notional partition, and other coparceners would continue to enjoy their interest in the joint
family property. Before the 2005 Act, daughters were only regarded as heirs to their father, and
could only get the father’s share of notional partition after his death, and not in his lifetime.
Though the 1956 Act did try to remove the disparity that existed between male and female
child before 1956, it did not fully succeed. Complete equality was brought about by the 2005

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Amendment Act, where the daughters were given equal status to that of the sons, by being
made more than just heirs. Daughters now enjoy the same rights as that of the son, and are also
equally subjected to liabilities in the coparcenary property. This Act of 2005 has opened up
new horizons for women getting their fair share in the society. It is in tune with true spirit of
our Constitution, and treats men and women alike.

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