1991 (9) TMI 374 - HC - Indian Laws

Hindu male's partitioned joint family property becomes separate property, not joint with children under Section 8

The Kerala HC held that property obtained by a Hindu male through partition of joint family property becomes his separate property, not joint family ... - The core legal question considered in this judgment is whether property obtained by a Hindu in partition of joint-family properties constitutes his separate and individual property or remains joint-family property, including his wife, sons, and daughters, under Hindu Law as modified by custom and the Hindu Succession Act.Another issue raised relates to the maintainability of the suit in light of the bar under Section 100 of the Co-operative Societies Act, which restricts civil court jurisdiction over matters provided for in that Act.The Court also examined the interplay between the traditional Hindu Mithakshara Law principles of joint-family property and the statutory modifications introduced by the Hindu Succession Act, 1956, particularly Sections 4, 6, and 8.Issue-wise Detailed AnalysisIssue 1: Nature of Property Obtained in Partition - Separate or Joint-Family PropertyRs.The relevant legal framework involves the Hindu Mithakshara Law, which traditionally recognizes joint-family property governed by the rule of survivorship, and self-acquired or separate property governed by succession rules. The Hindu Succession Act, 1956, intended to amend and codify intestate succession among Hindus, introduces statutory provisions that override inconsistent traditional rules as per Section 4.Section 6 of the Act preserves the rule of survivorship for coparcenary property but provides exceptions where female heirs specified in Class I of the Schedule exist, in which case succession under the Act applies. Section 8 sets out the order of succession for male Hindus dying intestate, prioritizing heirs in Class I, then Class II, agnates, and cognates.The Court analyzed whether property allotted to the first Defendant in the partition deed devolves on his personal heirs under Section 8 or whether Plaintiffs, as his children, have a right by birth under traditional joint-family principles.The Court noted conflicting judicial opinions: Gujarat and Punjab High Courts held that property inherited from a father by a son becomes joint-family property in the son's hands, while Allahabad and Madras High Courts took the contrary view, emphasizing statutory succession rules.Precedents cited include:Brij Lal v. Daulat Ram: Held that Sections 6 and 8 govern inheritance but do not affect how heirs treat the property; where the Act is silent, Mithakshara Law applies.Commissioner of Income Tax v. Babubhai Mausukhbhai (Gujarat HC): Held that inherited self-acquired property assumes joint-family character in the hands of the son.Commissioner of Income Tax v. Ram Rakshpal (Allahabad HC): Held that income from inherited assets is not joint-family income but the son's separate income under Section 8.Addl. I.T. Commr. v. P.L.K. Chettiar (Madras HC Full Bench): Held that Section 8 excludes grandsons from inheritance and that statutory provisions override traditional Hindu Law principles.The Court favored the reasoning in the Madras Full Bench decision, emphasizing that Section 6 applies only to coparcenary property, preserving survivorship, while Section 8 governs separate property succession, excluding the doctrine of succession by birth in such cases.Applying these principles, the Court held that property allotted to the first Defendant in partition is his separate property, subject to succession under Section 8 upon his death. The Plaintiffs, as his children, have no right by birth over this property but only as statutory heirs. Consequently, the first Defendant had the right to dispose of the property, including attachment for debts.Issue 2: Maintainability of the Suit under the Co-operative Societies ActThe second Defendant contended that the suit was barred by Section 100 of the Co-operative Societies Act, which excludes civil court jurisdiction over matters provided for in the Act, and that the Plaintiffs' remedy was before the Joint Registrar of Co-operative Societies.The Court examined Section 69(1) of the Act, which enumerates disputes within the Registrar's jurisdiction, and found that the present suit for partition of property claimed as joint-family property does not fall within any sub-clauses of Section 69(1). Therefore, Section 100's bar does not apply, and the suit is maintainable in civil court.Significant Holdings'The plaint schedule property which has been allotted to the first Defendant in partition of joint family properties has to be treated as his separate property over which he has right of disposition.''Plaintiffs who are his sons cannot therefore lay any claim over the property except as heirs coming under Class-I of the Schedule to the Act.''The property is therefore liable to be attached in execution of the decree obtained by the bank against the first Defendant. That attachment is not liable to challenge.''The finding of the court below that the property belongs to the joint family consisting of Plaintiffs and first Defendant is therefore set aside and the relief of partition is denied.''Section 6 of the Hindu Succession Act permits coparcenary property to devolve on heirs by survivorship. Where Section 6 applies Section 8 would have no application. The devolution of the property of a male Hindu dying intestate has to take place in accordance with the provisions contained in Section 8 of the Act.''The Hindu Succession Act has thus radically changed or modified the prior law governing intestate succession among Hindus... the provisions contained in the Act shall override the established provisions in the text of Hindu Law.''The suit is for partition of a property claiming the same to be one belonging to the joint family consisting of Plaintiffs and first Defendant... This contention is therefore without any substance.'The Court ultimately reversed the lower court's decree granting partition in favor of the Plaintiffs and dismissed the suit, holding that the property allotted by partition is the separate property of the first Defendant and not joint-family property subject to birthright claims of his children.