Shalini Sumant Raut & Ors vs Milind Sumant Raut & Ors

Bombay High Court

Shalini Sumant Raut & Ors vs Milind Sumant Raut & Ors on 14 December, 2012

CHAMBER SUMMONS NO. 492 OF 2012 IN SUIT NO. 143 OF 2010

WITH

CHAMBER SUMMONS NO. 2123 OF 2011 IN SUIT NO. 143 OF 2010

ORDER

1. This suit is filed for declaration that the plaintiffs and the defendants are co-owners of the suit properties, for ascertaining of the share claimed by them, for partitioning the suit properties as per such shares and for possession of such partitioned share. Exhibit 'A' to the plaint shows 9 2 CHS 492/12 immovable and several movable properties belonging to the joint family of the parties which are sought to be partitioned. Exhibit 'B' to the plaint shows the family tree.

2. The parties claim through one Rajaram Balkrishna Raut (Rajaram) who died intestate on 23.11.1991 leaving behind 8 children and several grand children ancestral properties. The children and the grand children who are the children of the pre-deceased or the deceased children of Rajaram are the parties to the suit. The great grand-children of the Rajaram are not sought to be made parties, though the suit properties are claimed to be ancestral properties of Rajaram.

3. The son and the grandson of plaintiff No.4 have sought to be made party-defendants to the suit. They claim that they are coparceners in the coparcenary property of the joint family which are the properties shown in the schedule Exhibit A to the plaint. They claim to be entitled to their share therein separately and individually from plaintiff No.4 who, they claim, is unable to manage his affairs and claim his share. They claim that the parties to the suit have taken advantage of the old age of their father/grand-father who resides alone which may adversely affect his share and consequently their shares. They have claimed their right by virtue of their birth in the suit properties which are claimed to be coparcenary properties. [See. Surjit Lal Chhabda Vs. Commissioner of Income Tax, Bombay AIR 1976 SC 109] They claim to protect their interest in the joint family properties which are the suit properties.

4. 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.

5. The parties to the suit have disposed of two of the properties in the suit. Hence defendant Nos.1 to 5 in the suit have applied for deletion of two immovable properties at Item Nos.6 & 7 shown in Exhibit 'A' to the plaint. They claim that the suit has become infructuous with regard to those properties and there is no lis between the parties with regard to those properties.

6. It would first have to be determined whether the applicants in Chamber Summons No. 2123 of 2011 who are the son and grandson of plaintiff No.4 must be made parties to the suit as having an independent right and interest in the suit properties being coparceners of the joint Hindu family.

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.

7. The seminal aspect for adjudication is 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 and hence prosecute or defend any litigation in respect of the joint family properties instituted by other coparceners who are his family members but who are of a generation or two generations prior to him. The test of the claim is in the right of the coparcener to apply for and obtain partition of the coparcenary property by virtue of his very birth. If that be so, the applicants as coparceners would be entitled to separately maintain a suit for partition to claim their share therein. If they can maintain a suit for partition they may also be joined as defendants in this suit and claim partition and other consequential reliefs in the suit, of course, subject to payment of court fees upon valuation of all the suit properties by them as per new and 4 CHS 492/12 different shares of all coparceners.

8. It may be mentioned at the inception that counsel on behalf of the applicants accepted that the applicants would pay court fees upon they being joined even as defendants in this suit pending the suit for determination, partition and recovery of their own share which they have claimed upon claiming interest in the suit properties.

9. It would be imperative to consider the Hindu Law relating to coparcenary property first.

10. In Mulla's Hindu Law, Twentieth Edition, Volume-I, Chapter XII relating to joint Hindu family-coparceners and coparcenary property-

Mitakshara Law the principles of the ancient settled uncodified Hindu Law are succinctly enunciated. The principles may be enumerated thus:

The property inherited by a Hindu from his father, father's father or father's father's father is ancestral property (unobstructed heritage as regards his own male issue).

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. 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. (Hence joint property and coparcenary property or joint Hindu family property or coparcenary property are synonymous).

(i) The persons who acquire an interest by birth in a joint family property or coparcenary property are sons, grand sons and great grand sons of the holder of the joint property. Sons, grandsons or great grandsons are joint owners/coparceners. They become entitled to joint property/coparcenary property upon their birth.

(ii) Ancestral property and separate property are distinct. The property inherited by a Hindu from his father, father's father, father's father's father is ancestral property. The property inherited by him from other relations is his separate property.

(iii) Ancestral property is a species of coparcenary property. If a Hindu acquires coparcenary property from his father, it becomes ancestral in his hands as regards his sons. The sons become coparceners with the father as regards such property. The coparcenary would then consist of the father and the son.

(iv) The coparcenary may consist also of the grandson and the great- grandson, who acquire an interest by birth in coparcenary property.

Illustration: If A inherits property from his father, his two sons B & C, would become coparceners with him as regards such ancestral property. If B has a son D and C has a son E, the coparcenary will consists of the father, sons and grandsons.

(v) A joint Hindu family has a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive from such ancestor (propositus). {After the amendment of 2005 to Section 6 of the Hindu Succession Act (HSA) (2005 Amendments) which shall be presently considered, the line within four degrees may be male or female}.

(vi) No coparcenary can commence without a common male ancestor.

{After 2005 Amendment a coparcenary may well commence with a 6 CHS 492/12 common female ancestor}.

(vii) After the death of common ancestor it may consist of collaterals, such as brothers, uncles, nephews and cousins. (These illustrations show two generations of coparceners). 

(viii) A coparcenary is a creature of law; it cannot be created by parties.

(ix) No female can be a coparcener, although she may be a member of joint Hindu family. (This position has changed upon the 2005 Amendment.)

(x) When a Hindu inherits the self acquired property of his father the sons take a vested interest in the property by reason of their birth and the property inherited by their father would become ancestral property in the hands of the son. The sons are coparceners as regards the property. When a son is born to either of them that son would also become a coparcener by the mere fact of his birth.

(xi) 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).

(xii) The essence of a coparcenary is unity of ownership.

(xiii) The ownership of a coparcenary is in the whole body of the coparceners. 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".

(xiv) He becomes entitled to a definite share only on partition.

(xv) The members of a joint family who are within 3 degrees from the last holder of the property have a right to demand partition.

(xvi) Until partition he would have a common possession and common enjoyment of coparcenary property.

(xvii)  The well known expression of HUF is that there is a "community of interest and unity of possession between all the members of the family which has been enunciated since the Privy Council case of Katama Natchiar Vs. Rajab of Shivagunga (1863) 9 MIA 539 @ 543 & 611.

(xviii) Hence the interest of a coparcener in coparcenary property/joint Hindu family property is undivided and indefinite. If fluctuates on the birth or death of a member. So long as the family remains joint no individual member can have a definite share. When it is partitioned the share of the member in the joint family becomes definite.

(xix) On the death of one coparcener, the others take by survivorship the share which he had in common earlier.

(xx) Coparcenary property is, therefore, held in collective ownership by all the coparceners in a quasi-corporate capacity.

(xxi)   The incidents of a coparcenary are that the lineal male descendants upto the third generation, acquire by birth, the ownership in ancestral properties of their ancestor.

(xxii)  Their descendants can ask for partition.

(xxiii) Till partition, each member or coparcener would have ownership extended over the entire property conjointly with the rest.

(xxiv) As a result of the co-ownership the possession and enjoyment of the property is common. Hence the coparceners cannot alienate the property except for necessity without concurrence of all coparceners.

(xxv) The interest of the deceased members passes on his death to the surviving coparceners.

(xxvi) The surviving coparceners are not only his brothers and sisters but 8 CHS 492/12 also their children - each being entitled to his own specific equal share. [See. State Bank of India Vs. Ghamandi Ram AIR 1969 SC 1330]

(xxvii) The interest of a coparcener in an undivided Mitakshra property is not individual property.

(xxviii) Coparcenary property is of two types; apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage.

(xxix) When a person acquires an interest in the property by birth, it is unobstructed heritage, because the accrual of the right to the property is not obstructed by the existence of the owner. The property inherited by a Hindu from his father or father's father or father's father's father is unobstructed heritage as regards his own male issue i.e. his son, grandson or great-grandson. His sons would acquire an interest in it from the moment of their birth. They become coparceners with their paternal ancestor in such property immediately upon their birth.{After the 2005 Amendment a daughter also would acquire an interest in the unobstructed heritage from the moment of her birth.}

(xxx) A property acquired from others e.g. maternal grand-father is obstructed heritage. No right accrues by birth in such property. The right would accrue on the death of the last owner without leaving a male issue. Hence the accrual of the right is obstructed by the existence of the owner. The property devolving upon parents, brothers, nephews, uncles etc. upon the death of the last owner, is obstructed heritage. These relations do not get a vested interest in the property by birth. Until the death of the owner they only have a spes successionis or a bare chance of succession which is contingent upon surviving the owner.

(xxxi) Unobstructed heritage devolves by survivorship; obstructed heritage devolves by succession.

(xxxii) Property jointly acquired by the members of the joint family, with 9 CHS 492/12 the aid of ancestral property, is also joint family property. Property acquired by them without the aid of ancestral property may or may not be joint family property.

(xxxiii) The term joint family property is synonymous with coparcenary property. -page 370 (Separate property would be synonymous with self acquired property.)

(xxxiv) A coparcener has joint interest or joint possession in joint family property or coparcenary property. -page 370 (xl) Property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. His son, grandson and great-grandson would acquire an interest in it by virtue of their birth, if they have a male issue. (Hence ancestral property is inherited and not self acquired property.) -page 372 (xli) If a person who acquired a property by birth has no male issue, he would hold that property as absolute owner thereof and he would be able to deal with it as he pleased. However if he had a male issue in existence at the time he inherited the property or if he had a male issue subsequently, they would become entitled to the interest in the property by virtue of their birth. -page 372 (xlii) A father cannot change the character of the joint family property into absolute property of his son by bequeathing it to him as if it was the self acquired property of the father. It would be ancestral property only in the hands of the son. His son would acquire it by survivorship since he would acquire an interest in it by his birth. -page 372 (Hence since the father cannot bequeath the property after his death, he cannot also transfer such property during his lifetime inter vivos.) (xliii) A person inheriting property from his three immediate paternal ancestors (father, father's father and father's father's father) must hold it in coparcenary with his son, son's son and son's son's sons. Such property is ancestral as regards his male issue. -page 373 10 CHS 492/12

(xliv) A son takes an interest equal to that of the father in ancestral property upon his birth. -page 377 (xlv) This right is wholly independent of his father. He does not claim through his father. -page 377 ........ "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father." (see mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). (See. Valliammai Achi Vs. Nagappa Chettiar & Anr. AIR 1967 SC 1153) Hence the transfer of such property would affect the interest of the son in the ancestral property.

(xlvi) There is no distinction between the rights of a father and his sons as regards ancestral property. -page 377 (xlvii) A father can, however, dispose of the ancestral property only for payment of his debts (legal necessity). -page 377-378 (xlviii) A father has no greater interest in the joint property than any of his sons. Each son acquires an interest equal to that of the father upon his birth. His grandson and great-grandsons similarly acquire an equal interest upon their birth. -page 378 (xlix) On the death of a coparcener, his interest in the coparcenary property does not pass by succession to his heirs. It passes by survivorship to the other coparceners. {This position of old uncodified Hindu law has been materially altered by Section 6 of the HSA as enacted in 1956 and later as amended in 2005.}

(l) There is a presumption that every Hindu family is joint in food, worship and estate. -page 393 (li) There is a presumption that a joint family continues joint. -page 393 (lii)The presumption of union is the greatest in the case of father and sons.

 (liii)After the coparceners separate, there is no presumption as to joint 11 CHS 492/12 family property. -page 393 (liv)There is no presumption that the joint family possessed joint family property; the party who claims partition must prove that it is joint family property. (If it is admitted to be joint family property or ancestral property, that fact would not have to be proved.) -page 394 (lv) There may be a joint Hindu family which does not have any joint property or any estate. [See. Ram Narain Chand Vs. Purnea Banking Corporation Ltd. AIR 1953 Pat 110 (lvi) The plaintiff must prove (or it may be admitted) that the family possessed some property with the income of which some other property was acquired. Such property would become joint family property since it would be purchased with joint family funds. -page 395 (lvii) Where it is admitted that the family possessed some joint family property, it would form the nucleus from which another property could have been acquired. -page 395 (lviii)Such acquisition would carry a presumption that that was joint property. The presumption that properties in the hands of individual coparceners is coparcenary property (or joint property or ancestral property) would arise if the family nucleus is proved. -page 395 (lix)If no nucleus is shown the members alone would be co-sharers but the property would not be taken to be joint family property and hence would not devolve by survivorship. -page 395 (lx)Coparceners have community of interest and unity of possession. No coparcener is entitled to any any special interest in coparcenary property. No coparcener is entitled to exclusive possession of any part of the property. (No coparcener can, therefore, sell or alienate any ancestral property or joint family property except with the consent of the other coparceners.) -page 409 (lxi)No coparcener can predicate at any given moment what his share in joint family property is. No member would be entitled to a definite 12 CHS 492/12 share in joint family property or in its income. The income would be brought into a common chest or purse. His share would become defined only when the partition takes place. -page 409 (lxii) Each coparcener is entitled to joint possession and enjoyment of family property. -page 410 (lxiii) If a coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. (He may sue for joint possession or enjoyment or for separate possession upon partition. However he would have to value his share in the coparcenary property on the date of filing of the suit and pay court fees thereon). -page 410 (lxiv) The right to enforce a partition and the right survivorship go hand in hand. "It is the right to partition which determines the right to take by survivorship" as held by the Privy Council in Anant Vs. Gopal (1895) 19 Bom 269.

11. These rules and incidents of coparcenary or joint family properties are enumerated in the case of State Bank of India Vs. Ghamandi Ram AIR 1969 SC 1330 thus:

"the incidents of co-parcenership under the Mitakshara law are :

first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors."

Further in the case of Surjit Lal Chhabda Vs. Commissioner of Income Tax, Bombay AIR 1976 SC 109 the conclusion derived from the position of uncodified Hindu Law is set out thus:

13 CHS 492/12 "the expression 'Hindu undivided family' must be construed in the sense in which it is understood under the Hindu Law.

The presumption therefore is that the members of a Hindu family are living in a state of union, unless the contrary is established.

generally speaking, the normal state of every Hindu family is joint and in the absence of proof of division, such is the legal presumption.

A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha daya), cannot be coparceners. Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption.

That it does not take more than one male to form a joint Hindu family with females is well established. In Gowli Buddanna v. Commissioner of Income-tax, Mysore, Bangalore, (1966) 3 SCR 224 = (AIR 1966 SC 1523).

These are the principles of the uncodified Hindu law.

12. In 1956 the Hindu Law underwent extensive reforms inter alia in the law of inheritance and succession. The enactment of the Hindu Succession Act, 1956 dealt with coparcenary property which survived upon any of the coparceners having female heirs. This brought about a departure from the old Hindu Law such that upon the death of any coparcener the 14 CHS 492/12 incidents of coparcenary property and its survivorship was largely diluted.

13. It would, therefore, be apt to see certain provisions of the Hindu Succession Act, 1956 in that behalf :

(a) The purpose and object of the Act as shown in the statement of the objects and reasons was to amend and codify the law relating to the intestate succession amongst Hindus. It is the third of the three installments of the Hindu Code; the first two having dealt with the aspects of adoption and maintenance and guardianship and minority issues. It amended and codified the law relating to intestate succession amongst Hindus. It brought about changes with regard to women's property and provided rules for devolution of interest of a deceased male in certain cases. It laid down a uniform and comprehensive system of inheritance applying to the persons governed inter alia by Mitakshara Law.

(b) Section 4 of the Act gave overriding effect to the Act. Section 4 runs thus:

4. Overriding 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.

Thus Section 4 overrides any text, rule or interpretation of Hindu law or any custom or usage and any other law in force prior to the commencement of the Act. Under Section 4(1)(b) any of these would cease to apply to Hindus so far as it was inconsistent with any of the provisions of the Act.

(c) Section   6   deals   with   devolution   of   interest   in   coparcenary  property. The relevant part of amended Section 6 runs thus:

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.

The above rules of devolution of interest in coparcenary property would, therefore be, to the extent stated in Section 6 of the HSA, overridden and would cease to apply as inconsistent with the provisions of the HSA.

Consequently in case of ancestral property consisting of a father and his sons and grandsons only the rules of coparcenary property under the uncodified law would still prevail. But if the father has e.g. not only sons but also daughters and not only grandsons but also granddaughters his interest in coparcenary property would not survive to the other members of the coparcenary but would succeed to his heirs so that not only his sons and grandsons would get an increased share upon his death, but his successors being his sons, daughters as also his widow and his mother would succeed to his interest in the coparcenary property under the provisions of the HSA.

Hence there is a notional partition which is deemed to have been effected upon the death of a coparcener under Section 6 of the HSA 1956.

The share so separated devolves upon the heirs of the deceased instead of vesting in the other coparceners by survivorship. Such partition does not 16 CHS 492/12 bring about disruption in the coparcenary. It is only the interest of the deceased which is separated. The coparcenary minus the interest of the deceased continues with its incidents. The surviving coparceners continue as such.

In the case of Shankarlal Ramprasad Ladha Vs. Vasant Chandidasrao Deshmukh & Ors. 2009(2) ALL MR 93 it is held that the concept of notional partition is a legal device for demarcating the interest of the deceased when the explanation (I) of Section 6 is attracted. Like any other legal fiction, it is meant for a specific purpose. It is not a real partition by metes and bounds. It neither effects a severance of status, nor does it demarcate the interest of the surviving coparceners or any of the females who are entitled to a share on a partition.

The joint status of the family is not impaired by Section 6 of the HSA. The family is not disrupted.

(d) Further amendment to Section 6 by the Amendment Act 39 of 2005 which came into effect from 09.09.1995 brought about further changes in devolution of interest of a Hindu male in coparcenary property.

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

6. 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 reference to a daughter of a coparcener:

17 CHS 492/12 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 pre- deceased 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.

Consequently after 2005 upon the death of a coparcener, leaving any 18 CHS 492/12 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.

This has brought about a total departure from the law relating to the coparcenary property. 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.

(e) What would, therefore, be the succession amongst Hindu males is required to be seen. That is provided under Section 8 of the HSA. Section 8 runs thus:

8. General rules of succession in the case of males.-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

The Schedule 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 19 CHS 492/12 the interest in the joint family property which that Hindu male had and which would constitute his property or his estate.

(f) The act also deals with the property of a female Hindu which would be her absolute property under Section 14 and the rules of succession of female Hindus under Sections 15 & 16 but with which the dispute in this case is not concerned and hence which shall not be dealt with.

(g) Section 19 deals with the mode of succession of 2 or more heirs. Section 19 runs thus :

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 stripes; and

(b) as tenants-in-common and not as joint tenants.

Hence if there are two or more heirs when they succeed to a property, the property would devolve upon them per capita each one taking for that branch and as tenants in common so that the heirs of any deceased successor would claim the share of such successor.

This is a further departure from the uncodified Hindu Law of survivorship of a coparcenary property in which the shares would fluctuate on the birth and death of any male member so that the other surviving male members would get a decreased or increased share upon the birth and death respectively thus augmenting the shares of all the survivors. The shares of the successors under the Hindu Succession Act would not so augment. Each branch would take its share; the increase and decrease would be within that branch. The successors of those successors alone would get that share.

  (h)     Under Section 30 of the HSA, a Hindu, male or a female, would  be entitled to make a testamentary disposition as per the provisions of Indian Succession Act, 1925. The relevant part of Section 30 reads thus:

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, or any other law for the time being in force and applicable to Hindus.

The interest of a Hindu in a coparcenary part which would otherwise survive to other coparceners equally can, therefore, be disposed of by will. Consequently the interest of a Hindu in Mitakshara coparcenary property would not per se survive upon coming into force of the HSA. If the Hindu does not leave behind any will it would only succeed to his/her heirs under Section 8/15 of the Act as applicable.

14. This position would be governed by when the succession opened.

The succession would open upon the death of a Hindu. Hence if a Hindu died after 1956, the provisions of the old Section 6 as enacted in 1956 and as analyzed above would prevail. If he died after 2005, the provisions of new Section 6 as amended by the Amendment Act, 2005 and analyzed above would prevail.

15. 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. Consequently the law which applied to Rajaram's succession was under Section 6 of the HSA as enacted in 1956 and prior to the law as amended in 2005. Rajaram had left him surviving 3 daughters and 5 sons. His interest in his ancestral property which was Mitakshara coparcenary property, therefore, 21 CHS 492/12 devolved upon his sons and daughters by intestate succession under Section 8 of the Hindu Succession Act and not by survivorship. For such interest the Hindu Coparcenary property and all the incidents of such Hindu coparcenary as shown above would have applied had he left behind only sons. But he left behind 3 daughters also. Hence the incidents of a Hindu coparcenary do not apply to his interest in the coparcenary properties. The succession to his interest in the coparcenary property would be under Section 8 read with Section 19 of the HSA. All his sons and daughters would share equally per capita as tenants in common. Upon their death their children would take their share.

16. 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. Such interest could have only survived to them as coparceners had there been no female heir of Rajaram. (i.e. had Rajaram left no daughters or, of course, any persons claiming through daughters i.e. the heirs of such daughters.)

17. Consequently the general rules of jointness of a Hindu family, being community of interest and unity of possession, the incidents of a joint family property, the coparcener surviving to the interest of a deceased coparcener, the share of a coparcener diminishing or augmenting upon the death or birth of another coparcener, the joint ownership of a coparcener, the undivided share of coparcenary etc. stand diluted upon any coparceners having any female heir since 1956 in respect of such interest.

18. It was this beginning of egalitarianism which is the bed rock of a Hindu society.

19. The true effect of the uncodified Hindu law relating to the Hindu coparcenery, therefore, applied only so long as there were only male heirs in that HUF after 1956. It would continue as before until any one coparcener died. The devolution of interest in the coparcenary got changed as per Section 6 of the HSA. It continued as before if he had only sons. It came to an end in effect if he had a single daughter or even a predeceased son having a single daughter such that he had a female relative (heir) or a male heir claiming through a female relative (heir).

20. Ms. Iyer on behalf of the defendant Nos. 1 to 5 as also Mr. Divekar on behalf of plaintiff No.4 drew my attention to the judgment of the Supreme Court in the case of Commissioner of Wealth-tax, Kanpur Vs. Chander Sen AIR 1986 SC 1753 relating to partition of joint family business.

They argued that the property of a Hindu male succeeds to his heirs and would not form the HUF of that heir. It would be his individual property. The case of Chander Sen (supra) concerned the wealth tax payment. It must be analysed only after considering the settled uncodified Hindu Law enunciated inter alia in items (viii), (xv), (xvi), (xl), (xli), (xlii) and (xliii) above. In that case there was a partition of joint family business between the father and his only son. The father and son continued the business in partnership. The son formed the joint family with his own sons. The father died leaving behind amounts standing to the credit of the father in the partnership account. That amount was held to have devolved upon his son by succession. The son was his only heir. The son was, therefore, held to have inherited that property as an individual and not as Karta as his own joint family. That judgment relates to the account of property which an heir succeeds to. It does not deal with succession of a deceased Hindu male alone. It deals with how the property is to be assessed. In that case there was a partition. Upon partition the share coming to the coparceners would be their separate individual property acquired by them on partition. The property would no longer be coparcenery.

23 CHS 492/12 That property would have to succeed; it can never survive to the other coparceners, because there are no coparceners upon the partition. The joint Hindu family comes to an end upon the partition. That property being the self acquired property of a given coparcener, who no longer is a coparcener because the joint Hindu family no longer continues joint, would succeed under Section 8 to Class I heirs initially.

In that case there was partial partition. The Court was concerned with the partitioned property. Another property which was house property of the family had continued to remain joint as has been set out in para 2 of that judgment. The Court was not concerned with how that house property had devolved upon the son since it remained joint. It was observed in para 2 of the judgment that that property devolved by survivorship. We are concerned with such properties. It would have to be seen how such property would survive inter alia to the applicants.

In that case the joint Hindu family consisted only of father and the son.

The father had not left any other female relative (heir). His widow and mother had predeceased him. Under section 6 of the HSA also that house property, therefore, would only survive to the son, Chander Sen. Had Rajaram also left no female heir, his interest in the ancestral properties would have survived to his male heirs being his sons as also then to his grandsons and great-grandsons, because unlike in the case of Chander Sen (supra), Rajaram left behind 3 daughters, the entire legal position would change in respect of such interest in consonance with Section 6 of the HSA, 1956.

21. It would, therefore, be incorrect to state that the Supreme Court held in the case of Chander Sen (supra) that all the properties left by a Hindu would only devolve by succession to his heirs. That would not only be simplistic but erroneous. In that case the property was partitioned and the share that the deceased Hindu male, being the father of Chander Sen, got on partition was his self acquired property which remained in partnership and his 24 CHS 492/12 son succeeded thereto only; his son did not succeed to the house property which had remained joint.

22. The Supreme Court has considered other judgments of various High Courts being Allahabad High Court, Madras High Court Full Bench, Andhra Pradesh High Court, Madhya Pradesh High Court as also Gujarat High Court. All of these are shown to me. The Gujarat High court has taken a view different from the other High Courts. The other High Courts' view has been accepted by the Supreme Court which is set out in the case of Chander Sen (supra). All those judgments also dealt with the properties separated by partition or self acquired properties. Reliance upon those judgments for the rule relating to ancestral property would, therefore, be equally misplaced if those judgments also are minutely analyzed and dissected.

23. The effect of the devolution by succession of the partitioned property or even ancestral property has been set out in those judgments which is material for our case.

24. The Supreme Court in the judgment in the case of Chander Sen (supra) held in para 11 that the heirs in Class I do not include the grandson being the son of a son living. Hence it is held in para 12 of the judgment that when the son as a Class I heir inherits the property, he does so in his individual capacity. Under Section 4 of the HSA that provision would override the old uncodified Hindu Law as being inconsistent with such succession under Section 8 of the HSA. The son taking individually would take per capita and not per stripes and as tenant-in-common and not as joint tenant under Section 19 of the HSA. He would be entitled to will away that property by a testamentary disposition under Section 30 of the HSA. It is held in para 14 of the judgment that when a son gets his share in a HUF (which is by partition only) to which Section 8 is applied, which includes the son but not 25 CHS 492/12 the grandson, the son takes individually in his individual capacity and not as Karta of his own family. Therefore that property would not continue joint and would not taken to be joint property. The son who so inherits, inherits it as his own separate property and his son would not have any right as a coparcener therein.

25. The Gujarat High Court in the case of Commissioner of Income- tax, Gujarat-I Vs. Dr. Babubhai Mansukhbhai, (1977) 108 ITR 417 took a view that whatever the property which the son in a HUF inherited and acquired from his father was ancestral property qua him and, therefore, that property would be coparcenary property of his HUF in which his son would have a share and which his son would be able to have partitioned. That view has been dissented from by the Supreme Court in the case of Chander Sen (supra). That related to the self acquired property of the father which succeeded to the son.

In this case it is Rajaram's ancestral property that the applicants claim.

Again, therefore, it is the specific provision of the statute prevailing over the settled principles of Hindu Law which is overridden by the statute that would be essential to this case.

26. It would be interesting to see how the Supreme Court has considered the judgments with which it found favour. The case of Commissioner of Income-tax, U. P. Vs. Ram Rakshpal, Ashok Kumar (1968) 67 ITR 164 was in the case of a son and a father of HUF which was partitioned. The assets inherited by his son from his father from whom he had separated by partition was held not capable of being the income of the HUF of the son. This was because partition took away the character of coparcenary property. The father left behind his widow, married daughter, his son and his son's son. The estate left by him devolved by succession as per Section 6 of the HSA under Section 8 thereof. There were, therefore, 3 26 CHS 492/12 shares; for his widow, his married daughter and the son. There was no share for his sons' son Ashok Kumar.

The other question that came up for consideration was whether that 1/3rd of the property which was inherited by the son was inherited by him as Karta of his own family or as an individual. It was held in para 12 of the judgment that that was inherited by him in his individual capacity.

Hence it would not be coparcenary property and hence his son Ashok Kumar would not be able to ask for partition of that property.

27. Madras High Court's Full Bench judgment in the case of Additional Commissioner of Income-tax, Madras Vs. P. L. Karuppan Chettiar, 114 ITR 523 was also a case of partition effected between a father, his wife, their sons and daughter-in-law. The father was separated. The son constituted HUF with his wife and his subsequently born son. When the father died leaving behind his widow and the divided son who was Karta of his HUF as his legal heirs under Section 8 of the HSA, those 2 persons succeeded him to the partitioned properties of the father/husband. They could divide the properties amongst themselves. Since the father had left behind a female relative (heir) being his widow, the properties succeeded to the widow and the son as per the provisions of Section 6 of the HSA as per Section 8 thereof.

28. Hence the Supreme Court considered in para 16 of the judgment in the case Chander Sen (supra) upon considering the case of Madras High Court that when a Hindu male died, his sons and grandsons would have inherited in such property. Under Section 8 his sons' son would get excluded and the son alone would inherit the property to the exclusion of the grandson. No interest would accrue to the grandson in the property left by his grand- father. (This would be because Section 6 would come into play. There would be a notional partition. The property would succeed to the son and would not 27 CHS 492/12 survive to him. The succession is to the son as the Class I heir. The grandson is excluded from Class I).

The Supreme Court further held in para 16 that the effect of Section 8 was directly derogatory of the old Hindu Law and that the provision of Section 8 must prevail over uncodified law of survivorship in view of Section 4 of the HSA, which overrides the established provisions of Hindu law.

In fact the Supreme Court went further to show that since the grandson was excluded, an after born son of that son would also not get any interest in the property which was inherited by the son from the father. The Supreme Court observed that in respect of such property "it is not possible and visualize or envisage a Hindu undivided family."

In the above case there was a partition of the HUF during the lifetime of the father with his son.

It would not matter even where there is no partition if the father died leaving behind female relative (heir) as in this case. That aspect is not covered by the Supreme Court Judgment but directly falls under the aforesaid clear statutory provision of HSA. When those provisions applied also there would be no Hindu undivided family which could be visualized or envisaged for such interest of such deceased coparcener. The very concept of the HUF would then stand diluted or even terminated upon the death of coparcener. It, therefore, follows as a corollary that upon the death of any coparcener, there is a notional partition after 1956 and a deemed statutory partition after 2005 and the share which devolves upon any copercener in case of a family having female relative (heir) would be only upon succession and would devolve only as their individual property incapable of being partitioned and in which their own heirs would have no interest by their birth or by their continuance.

29. The case of Shrivallabhdas Modani Vs. Commissioner of Income tax, M. P.-I, 138 ITR 673 : (1983 Tax LR 559) of Madhya Pradesh 28 CHS 492/12 High Court was the case where no coparcenery was subsisting between a Hindu and his sons at the time of the death of the father. It was held that such property, which was not ancestral property, received by the son on his father's death could not be blended with other property, in that case the property allowed to the son on partition. Accordingly that property devolved by succession under Section 8 of the HSA. It was held by the Supreme Court in para 16A of the judgment that, therefore, the son's son who is not mentioned as an heir under Class I could not get any right in the property of his grand-father and the property devolved upon the son under the HSA and did not constitute HUF property consisting of his own branch including his sons.

Again this was not coparcenery property which devolved upon the son.

However it would make no difference if the interest in a coparcenery property devolved upon the son in case where the father left behind a female relative (heir) because that would devolve by succession as per Section 6 under Section 8 of the HSA.

30. The Supreme Court also accepted the judgment of the Andhra Pradesh High Court in the case Wealth-tax, A.P.-II Vs. Mukundgirji, 144 ITR 18 : (1983 Tax LR 1370) where the property devolved under Section 8 of the HSA. It was observed by the Andhra Pradesh High Court that the Parliament wanted to make a clean break from the old Hindu Law in certain respects consistent with modern egalitarian concepts. The intention of the law was to depart from the pre-existing Hindu Law as is reflected also from Section 19 of the HSA. Hence it was observed by the Supreme Court in the case of Chander Sen (supra) that when any property devolved upon a Hindu under Section 8 of the Act it could never be HUF property in the hands of successor vis-a-vis his own sons because if it was not so, it would amount to creating two classes amongst Class I heirs viz. the male heirs in whose hands it would be joint family property and the female heirs for whom such concept could not have 29 CHS 492/12 been applied or contemplated then (prior to 2005).

31. Hence any property which devolves under Section 8 of the HSA upon the death of a Hindu male would be his own individual property incapable of partition. It would be his own property in which his son or grandson would have no interest during his lifetime. The properties which devolve under Section 8 of the HSA are self acquired properties or partitioned HUF properties. They are not ancestral HUF properties which are not partitioned. The law which as laid down by the Supreme Court considering the aforesaid judgments of various High Courts was in respect of separate or partitioned properties. The law is the same also with regard to the interest of a coparcener in ancestral properties in case where the ancestor had female relatives (heirs).

32. It must be appreciated that when a joint Hindu family consists only of a father and a son both have an equal interest in the joint family property. On the death of the father, the father's interest would survive to the son if he has no child. It would succeed to the son if he has a female child (heir) after 1956 and if he has either a female or a male child (heir) after 2005. In such a case the entire estate of the father would devolve upon the son by succession or survivorship. Where, however, there are more coparceners in a joint Hindu family, the entire estate of the father would be less than the entire coparcenary properties. In such a case interest of the father would succeed to his heirs under Section 8 of the HSA and the remainder of the coparcenary properties would remain in the coparcenary and the other coparceners would continue to be such. Since the coparcenary would then remain, their interest would be diminished by the birth of any member in the coparcenary (either male or female after 2005) and would be augmented upon the death of any coparcener (who does not leave behind any heir).

33. When Rajaram died, his interest in the coparcenery property devolved by succession upon his 8 children; 5 sons and 3 daughters and not upon all the surviving members of coparcenary including the sons of his sons (and including applicant No.1 in CHS 2123 of 2011.) That however relates not to the entire properties of Rajaram shown in Exhibit A to the plaintiff.

That relates only to his interest as a coparcener in all the suit properties. The interest of the other coparceners who are his 5 sons and their sons would continue as joint interest in the coparcenary property with community of interest and unity of possession being the prime principle of coparcenery property since the suit properties were admittedly ancestral properties of Rajaram. That coparcenary continued as before. The coparcenery property, which would be presumed upon they being ancestral properties, to the extent of the shares of the other coparceners continued joint. The share which plaintiff No.4 got as a successor along with his remaining 4 brothers and 3 sisters became his individual separate property. In that interest his sons and his grandsons (the applicants herein) would have no share. But in the remainder of the coparcenary ancestral joint Hindu family properties the applicants would continue to have their share as before Rajaram's death. The entire property of Rajaram which was ancestral and which continued joint would, therefore, not succeed to his sons as the heirs of Rajaram alone. The sons would hold the properties partly as coparceners of the HUF of Rajaram, which is presumed under the uncodified Hindu Law in the properties which are specifically averred to be ancestral in para 1 of the plaint itself, and would also succeed to the interest of Rajaram in such properties and would hold that portion of the properties so succeeded as their individual properties.

34. In the case of Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum & Ors. AIR 1978 SC 1239 it is held that the share of the deceased in the coparcenary property must be ascertained to ascertain the 31 CHS 492/12 share of the heirs in the property of the deceased coparcener. The share that will succeed to them is only the share in the property that would have been allotted to the deceased coparcener if a partition of that property had taken place immediately before his death. It must, therefore, be assumed that the partition had so taken place. The share of the other heirs cannot be ascertained without reference to such share which would devolve by succession. All the consequences which flow from a real partition have to be logically worked out so that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased.

Hence the heirs of such deceased coparcener will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she would receive in the notional partition. Similarly the share of the widow in the coparcenary property would be ascertained by adding the share to which she is entitled upon the notional partition during her husband's lifetime to the share which she would get in the husband's interest upon his death.

35. In the family tree Exhibit B to the plaint only the legal heirs of Rajaram are shown. They would be the heirs of the interest which Rajaram had in the coparcenery property. All the coparceners of the family are not shown in Exhibit B. All the sons of Rajaram, their sons and their sons' sons living at the time of the death of Rajaram would constitute the HUF of Rajaram. They are coparceners in the family. All of them would have by birth a right in the coparcenary properties/HUF properties/ancestral properties being the properties shown in Exhibit A to the plaint. They would have an undivided interest therein. They would have a right to partition those properties. Until the partition is applied for and granted they would have community of interest and unity of possession. Rajaram's death does not effect their community of interest and unity of possession. They continued 32 CHS 492/12 joint since there was no partition of the HUF, though their coparcenary interest did not augment on Rajaram's death leaving behind 3 female relatives (heirs). Whatever be the share of all the coparceners being the sons, sons' sons and sons' sons' sons then living constituting the HUF, they would continue to have their share as before. Only the interest of Rajaram in that coparcenery property would succeed to his Class I heirs under Section 8. The applicants would have no interest in that share because their father, plaintiff No.4 who succeeded to the interest which Rajaram had in the coparcenery property would get it as his own individual property.

36. However, the entire of the properties would not succeed to his heirs. The other coparceners would continue their coparcenary interest in the remaining ancestral joint family properties. They would be entitled to ask for partition of the coparcenary properties to the extent of the interest which continued joint. In a large family such as this the interest of the father would be equal to that of his sons, sons' sons and sons' sons' sons in the coparcenary property. Hence the entire property cannot devolve by succession. Only that limited interest would devolve by succession. The other coparceners, including the applicants would be entitled to demand partition of the ancestral joint family properties less the interest of Rajaram and other such deceased coparceners.

37. Considering the sons of all the sons of Rajaram and after 2005 also the daughters and all the daughters of the sons as well as the daughters of Rajaram as also their sons and daughters, the number of coparceners would have to be enumerated and the share of each coparcener would accordingly have to be ascertained. That is yet not done by the applicants. Though the applicants in CHS 2123 of 2011 would be entitled to the share, the applicants have not stated what their share would be in the coparcenary property being the ancestral property of Rajaram.

38. The applicants claim that they are as much entitled to be parties in this suit as they would be entitled to sue on partition. The applicants in effect claim their share in the HUF family/coparcenary property of the HUF of Rajaram. That share is not ascertained by the applicants. Mr. Apte on behalf of the applicants agreed that an application of this nature is an application for partition the HUF properties and for protection of the HUF property/coparcenary properties until the partition is effected. He argued that in a partition suit such as this for claiming a specified share each plaintiff and defendant is essentially a plaintiff and entitled to ask for his share. He conceded that such share would be given only upon such party valuing his share and paying Court fee thereon.

39. 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 was 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.

40. It is seen 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 34 CHS 492/12 survivorship of any coparcener of the 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 simplistic application of the applicants to make them party-defendants would, therefore, be not in order. The applicants would require to file their own separate suit for partition of whatever be the coparcenary interest which they have in the HUF of Rajaram which would continue after his death, until partition is demanded by any coparcener.

41. Though, therefore, the applicants may be entitled to partition, it would be neither feasible not proper to allow them to join in this suit. They may sue separately upon showing all the coparceners of the HUF of Rajaram which survived to his sons, sons' sons and sons' sons' sons and after 2005 also to the daughters, daughters' daughters and daughters' daughters' daughters and daughters' sons' daughters of Rajaram.

42. It may be mentioned that the plaintiffs have themselves admitted in para 1 that Rajaram was the holder of various ancestral properties. They have shown the legal heirs of Rajaram in paras 1, 2, 3, 4 & 5 of the plaint. In para 6 of the plaint the plaintiffs have claimed the shares as the heirs of Rajaram as per Hindu Law without mentioning whether it was uncodified or the codified Hindu law and how the plaintiff ascertained such shares. In para 7 of the plaint, the plaintiffs have stated that the heirs of Rajaram were "joint owners" of the suit properties. This is a concept unknown to Hindu Law. In para 8 of the plaint, the plaintiffs have averred that between the parties and their predecessor-in-title some of the properties are in possession of the some of the defendants are co-owners. In para 9 of the plaint, the plaintiffs have averred that certain valuable movables belong to joint family. In para 10 of 35 CHS 492/12 the plaint, the plaintiffs have averred that they have applied for partition of the ancestral and joint properties described in Exhibit A to the plaint. The plaintiffs have referred to co-owners, joint owners or coparceners in the Hindu coparcenary synonymously. In para 11(A) of the plaint, the plaintiffs have averred that the parties are co-owners of all the properties described in Exhibit A to the plaint and those properties are ancestral properties and the parties are joint owners. Hence upon the averment that Rajaram had ancestral property described in Exhibit A to the plaint, the plaintiffs have sought partition of those ancestral and joint properties described in Exhibit A to the plaint.

43. 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.

44. The fact that the suit is essentially for partition lends itself to the conclusion that the suit properties stated to be of Rajaram and not acquired by the parties themselves, are HUF properties capable of such partition. Yet all the coparceners of the HUF of Rajaram as on the date of the suit are not made 36 CHS 492/12 parties. Similarly the share of the each of the parties which is claimed, is not the share of each of the coparceners. The share of only the heirs of Rajaram upon succession cannot be ascertained and partitioned for the ancestral properties of Rajaram. The non-joinder of all coparceners may be fatal to the suit.

45. At the time when Rajaram died in 1991, his succession having opened, the interest in the joint family property devolved by succession upon his heirs, he having left daughters and widow as shown in paras 2 & 3 of the plaint respectively. Similarly 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) as shown in para 4 of the plaint. 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.

46. The other sons and daughters of the sons and daughters of Rajaram, who were living at the time of the death of Rajaram, are not shown and hence not known to Court.

47. It may be mentioned that if the plaintiffs had sued for the suit properties not as ancestral properties of Rajaram, but as his self acquired properties which would wholly devolve by succession the suit would have been barred by the Law of Limitation, Rajaram's succession having opened in 1991, the cause of action to sue would have accrued to the plaintiffs as his heirs in 1991. The suit properties are admittedly HUF properties being the ancestral properties of Rajaram. The Hindu uncodified law would apply to 37 CHS 492/12 the suit properties subject to the in-roads made by the HSA only in respect of the interest of Rajaram in the HUF properties upon his death. Hence partition could be claimed in 2010 only of HUF properties.

48. 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 therefrom.

49. Despite seeing some share of the applicants in CHS 2123 of 2011, because that share is not ascertained and because the entire HUF consisting of all the coparceners is not shown, at present the applicants are not made parties to the suit and are directed to sue themselves for partition as advised.

50. The parties to the suit have admittedly sold some of the properties mentioned in the schedule Exhibit A to the plaint being properties at Item Nos.6 & 7 thereof. Defendant Nos.1 to 5 have applied for deleting these properties. It appears that the other parties to the suit have agreed to have those properties deleted.

51. The Court has, however, seen that all the properties shown in Exhibit A to the plaint are admittedly ancestral properties of Rajaram. They constitute HUF properties. The interest in the HUF properties would survive to the sons, sons' sons and sons' sons' sons of Rajaram until 2005 and thereafter to the daughters, daughters' daughters, daughters' sons' daughters, daughters' daughters' and daughters sons' daughters after 2005. The applicants in CHS 2123 of 2011 as also the other coparceners would have an interest in those properties.

52. These properties fall within the law enunciated inter alia in items 38 CHS 492/12 (xxix), (xliii), (xlv) and (lx) above. These properties could not have been alienated without the consent of all the coparceners. If so alienated, the alienation could be challenged. The applicants in CHS 2123 of 2011 seek to challenge that alienation. The very application is because of such challenge and to prevent further alienation. The parties to the suit who have alienated the coparcenary properties would have to account for the alienation or justify the alienation upon its challenge.

53. Alienation can be made for the benefit of the estate, for legal necessity or for meeting any antecedent debts, for management of the joint property by the Karta or pious obligation of a son to discharge his father's debts subject to Section 6(4) of the has as amended in 2005 which runs thus.

(4). After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

54. The alienation can be challenged by the coparceners if it is unauthorized. Hence if the alienation is not for the above purposes it can only be challenged after it is made. (Ramesh Damodhar Deshmukh Vs. Damodhar Domaji Deshmukh & Ors. 1999(1) Mh.L.J. 153).

55. The applicants who claim to partition the properties and to protect their coparcenary interest therein would have to challenge the alienation. That is not expressly done. That also could be done by the applicants in their own suit for partition and protection of their coparcenary interest, if filed.

56. However the suit is not fully settled. The suit, therefore, continues. Pending the suit and pending the enumeration of all the coparceners and the ascertainment of correct shares, the properties cannot be allowed to be deleted so as not to form that suit properties which would come up for the Court's scrutiny.

57. 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. Until such time as it is demanded they would continue to have interest in the undivided suit properties. That would be the community of interest and unity of possession. The applicants would have to ascertain their precise share in the suit premises to claim any partition. The shares of the parties to the suit would alter upon the applicants' claim. The applicants would have to consider and account for the notional partition as had taken place upon the death of Rajaram leaving 3 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. 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.

58. If the applicants also challenge the alienation by sale of two properties admittedly executed by the parties to the suit, as the other coparceners, they would have to value those suit properties entirely and pay court fees accordingly.

59. It is, therefore, too simplistic to state that the applicants may be only made party-defendants.

60. Consequently there shall be no order in both the aforesaid Chamber Summons.