TaxTMI 
TaxTMI 
2025 (6) TMI 1504
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....of the Act 37 Section 8 of the Act 42 Order VII Rule 11 46 Non-disclosure of cause of action 47 Limitation 49 Conclusion 53 1. The present Second Appeal has been filed challenging the judgment and decree passed by the 4th Additional District Judge, Ahmedabad Rural in Civil Appeal No. 77 of 2017 confirming the judgment and decree passed in Regular Civil Suit No. 1418 of 2015 dated 06.09.2017. 2. For the sake of convenience, the parties are referred to as per their original status in the suit. Factual Matrix 3. The brief facts arising in the present suit are that the suit property was owned by Ishwarbhai Patel who died intestate on 13.01.1993 and he was survived by his wife Kashiben and five sons viz. Kantibhai Iswarbhai Patel (defendant no.1), Becharbhai Iswarbhai Patel (defendant no.2), Jayendrabhai Ishwarbhai Patel (defendant no.3), Pragneshbhai Iswarbhai Patel (defendant no.4) and Bipinbhai Iswarbhai Patel (defendant no.5) so also three daughters viz. Anandiben Iswarbhai Patel, Vinaben Iswarbhai Patel and Nirmala Iswarbhai Patel and accordingly their names were incorporated in revenue record. Thereafter three daughters of I....
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....intiffs has mainly argued that suit property being ancestral property, the Plaintiffs would have right in the suit property by birth and defendant could not have sold suit property without consent of the Plaintiffs. It has also been argued by learned Advocate for the Plaintiffs that suit property i.e. disputed property has coparcenery character and, therefore, Plaintiffs will have right by birth and the trial Court could not have rejected the plaint on the ground that the plaint is barred on the ground of limitation. 8. It has been argued that at the time when the sale transaction took place, original Plaintiffs were minor and, therefore, it has been argued that on the date of execution of sale-deed dated 21.04.1994. The Plaintiff no.2 was only aged about 6 months as his birth date is 28.12.1993 and as soon as he attained majority, the suit came to be filed which is well within the three years of attending the majority of Plaintiff No.2. 9. It has also been argued that issue of limitation is mixed question of facts and the trial Court and the appellate Court could not have rejected the plaint on the issue of limitation. It has been argued that though Plaintiff no.1 and 3 were....
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....hatically stomping on horses of their so-called right. This was never the intention of the uncodified Hindu law, which anyway, has now culminated into the present-day Hindu Succession Act, 1956 ("the Act or HSA"). 14. After the advent of the Act, position of succession in Hindus is governed by this enactment alone. As provisions of the said act would show, it has not only brought in a sea change in the method of succession but has also streamlined the methods of succession. It is unfathomable that a novel (or different) succession method or right, distinct from what has been couched in the provisions of the Act, can be adopted or claimed post 1956. 15. It is well settled that section 8 of the Act provides for the general rules of succession for a Hindu male who has died intestate. Whereas, section 6 of the said Act is an exception to the same in case of a coparcenary property. Therefore, unless and until there is a clear pleading, proof and consequential finding of fact that the property in question is a coparcenary property, the question of application of Section 6 does not arise. In such an event, the general clause, i.e., Section 8 of the Act will come into play and govern....
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....om the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity." 7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property. (emphasis supplied). 21. Therefore, once the 1956 Act was enacted, the entire succession has undergone a sea change and now it was only the 1956 which holds the field. Therefore, in order to appreciate what is the change....
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.... family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. ..." 26. The concept of Joint Hindu Family has also been explained by Bhashyam Iyenger, J. in Sudarsanam Maistri v. Narasimhulu Maistri, 1901 SCC Online Mad 91 in the following manner: The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Dhond Savant [I.L.R., 7 Bom., 467 at p. 471.] and Mayne's 'Hindu Law and Usage,' 6th edition, paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may he left put of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition, viz., the undivided state-it forms a corporate, body. Such corporate body, with its heritage, is purely a creature of law and cannot he created by act of parties, save in so far....
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....perty but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in Rukhmabai v. Lala Laxminarayan [(1960) 2 SCR 253 : AIR 1960 SC 335] wherein it was observed as follows: (SCR pp. 259-60) ... But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property." 14. Similarly, in Achuthan Nair v. Chinnamu Amma [(1966) 1 SCR 454 : AIR 1966 SC 411] their Lordships held as follows: (SCR p. 458 C-D) "Under Hindu law, when a property stands in the name of a member of a joint fami....
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....stral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. 32. However, this connotation "ancestral property" is often misunderstood in the post 1956 era. Of course, according to the pre-codified Mitakshara law, son would inhere a right in the property by birth (due to creation of coparcenary). However, after 1956, merely because a property is ancestral, would give birth to no right title or interest of any person in the said property. That is to say, merely because a property is ancestral, the son, grandson or great grandson (or daughters, respectively) would acquire no right over the same. 33. Only if a property (naturally, being ancestral) has the character of a coparcenary property, is such right created by operation of law. That right as created before 1956, is also preserved by way of Section 6 and continues as such post enactment of the HSA 1956. Coparcenary and Coparcenary Property 34. Having seen the nature and legal position on Joint Hindu Family as well as ancestral property, it would be apposite to discuss what is a coparcenary and how the same is formed. From the pleadings across cases, it appea....
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....enary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. 40. However, what is more important to be noted....
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.... family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement where under it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognised by it. ..." 43. Therefore, before 1956, a coparcenary was created in the following manner as laid down in Mulla on Hindu Law (24th Edition) states as follows: Genesis of Coparcenary - A coparcenary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or great- grandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the self- acquired property of A during A's lifetime, but on A's death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the property by reason of his birth, and the property inherited by B from his father A, becomes ancestral property in his (B's) hands, and B and C are coparceners as r....
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....coming into operation of the Hindu Succession Act, 1956. 10. This question has been considered by this Court in CWT v. Chander Sen [MANU/SC/0265/1986 : 1986:INSC:143 : (1986) 3 SCC 567: 1986 SCC (Tax) 641] where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. At p. 577 to 578 of the Report, this Court ....
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....Section 6 of the Act. However, if the property was not a coparcenary property before commencement of the 1956 Act and succession opened after 1956 Act of a self-acquired property, it would be transferred only as an individual property and no coparcenary would be created thereafter of such property. Doctrine of Blending 48. There is one more important concept as regards coparcenary property. This phenomenon is doctrine of blending. Simply put, it refers to the phenomenon by which a property is blended with the existing common hotchpotch of coparcenary properties for the common use of the coparcenary. After such deliberate blending, the newly introduced property also partakes the character of coparcenary property in the common hotchpotch. 49. Therefore, this is one exception by which a coparcenary property can be created. However, this is subject to certain conditions which have been well laid down and defined by Hon'ble Apex Court. 50. One important nuance of this is also that one can mix in a hotchpotch only when a hotchpotch exists. Without the same having existed, there is no hotchpotch with which the individual property can be blended with. Hon'ble Supreme Court in M....
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....obviously be no blending or throwing of self-acquired property into the common stock. The doctrine of blending of properties cannot be stretched, so as to include properties inherited by a male coparcener from his relations on the maternal side. Such properties would be his separate properties and cannot therefore form a part of the corpus of the coparcenary property, unless, by evidence, it is established that such separate property has been thrown into the common stock and has been treated as joint property. 52. Moreover, such blending of property must be deliberate and with a clear intention of doing so. Mere permitting use of the property for the family or coparcenary will not attract any presumption of blending. 53. In Angadi Chandranna v. Shankar and Ors., MANU/SC/0528/2025, the Hon'ble Apex Court held as follows: 20. Regarding the doctrine of blending of self-acquired property with joint family, it is settled law that property separate or self- acquired of a member of joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separa....
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....y nucleus that was available. That apart, while considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. This Court in R. Deivanai Ammal (Died) v. G. Meenakshi Ammal MANU/TN/2417/2004: AIR 2004 MADRAS 529, dealt with the concept of Hindu Law, ancestral property and the nucleus existing therein. ..." 57. Therefore, it is clear that unless and until there is a nucleus which has been used for purchase of the property, every property cannot be termed to be a property of the HUF merely because the same exists. Therefore, in absence of such presumption, it is necessary that exact pleadings with material particulars must be averred in the Plaint (or respective pleading) for a property to be construed as a joint family or ancestral property. 58. This can be examined from one more angle. Order VI Rule 4 of the Civil Procedure Code, 1908 ("CPC") provides that all material particulars are required to be given in a Plaint. In fact, Courts have also held that averment of the nature of property cannot be averred as a mere man....
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....uming there is an averment that the property belonged to joint family, the same cannot be made in abstract and bereft of material particulars. Therefore, the statement cannot be a mere ipse dixit. 61. Moreover, in Ved Prakash v. Naresh Kumar and Ors. MANU/DE/0188/2023 the Delhi High Court held as under: It was further explained in Sunny (Minor) (Supra) that it is not enough to simply aver in the plaint that the subject property belongs to Hindu Joint Family or that there exists a HUF. The detailed facts as required by Order VI Rule 4 CPC as to when and how the properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is a known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu ....
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....ct and its effect on succession after 1956. Preamble and Section 4 of the Act 64. A bare perusal of the Preamble of the 1956 Act would show that it was infact codifying and amending the law relating to intestate succession amongst the Hindus. Therefore, two important conclusions follow: i. The law now stands codified and hence, there can be no other mode of succession save for the ones provided in the Act. ii. The law is amended and hence, apart from the mode provided in the Act, all other and previous connotations stand amended. 65. This is further fortified by the overriding clause as couched in Section 4 of the Act in the following terms: 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; 66. Hence, a given concept of Hindu law as prevalent before codification of the law, shall be (i) codified (ii) amended and (iii) have overriding effect over its previou....
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.... he was entitled to claim partition or not. Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein." It is common ground between the parties that since the present suit was filed only in 1998 and the decree in the said suit was passed on 20.12.2000, that the amendment to Section 6, made in 2005, would not govern the rights of the parties in the present case. This becomes clear from a reading of the proviso (i) to Section 6 of the amended provision which states as follows:- "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." The explanation to this Section also states thus: "Explanation.-For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition....
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....and all the heirs receive the property in their share as their property. Therefore also, in the present case, the Plaintiffs cannot claim the same, even if the property is assumed to be a coparcenary one. Section 8 of the Act 74. Section 8 of the Hindu Succession Act applies to the present case for three reasons: i. There is no pleading with particulars that the suit property was a coparcenary property. In every other case, property would devolve by intestate succession under Section 8. ii. Even on assuming that the suit property was a coparcenary property, since the deceased had left a female Class I heir, by virtue of proviso to unamended Section 6, the inheritance would be by intestate succession (under Section 8) and not by survivorship. iii. Otherwise also, by virtue of Explanation 1 to unamended Section 6, there is a deemed partition between the heirs as if had taken place before death of the deceased. 75. Hence, when Section 8 of the 1956 Act applies to the present case, the inheritance of self-acquired property would partake the character of a self- acquired property of the heir and not joint family property. This position has been amply ....
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.... is if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties...." 77. Further, in Ved Prakash v. Naresh Kumar and Ors., 2023 SCC Online Del 213 the following is held: 21. The above judgments were referred in the case of Sunny (Minor) v. Sh. Raj Singh, CS(OS) No. 431/2006 decided on 17.11.2015 by this Court which arrived at the following conclusions: "(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self- acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to his paternal ancestor. (ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family d....
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.... Sen (supra) Para 24, Radha Bai v. Ram Narayan MANU/SC/1608/2019 Para 20] Order VII Rule 11 80. In the present case as pointed out above, the following is clear. Non-disclosure of cause of action 81. There is no cause of action for the Plaintiffs to sue the Defendants on the following counts i. Since in the present case, succession has opened after 1956, the property is vested in the heirs as their self-acquired property. ii. There are no pleadings to show as to how is the suit property a joint family or HUF or coparcenary property. iii. Admittedly, inheritance in the present case is covered by Section 8 of the 1956 Act and hence, no cause of action arises on part of grandchildren to seek partition in grandfather's property. 82. Therefore, there is no cause of action to file the present Plaint and hence, it is required to be rejected on this count alone. In a similar case of Sushant vs. Sunder Shyam Singh, MANU/DE/6206/2012 the Delhi High Court while rejecting the Plaint under Order VII Rule 11 held as under: 2. Prior to passing of the Hindu Succession Act, 1956 if any person inherited ancestral properties, the ancestral properties....
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....use for the grandchildren to seek partition in property of the grandfather or seek cancellation of the sale thereof. [See: Rahul Behl v. Ichayan Behl (1991) 21 DRJ 205] 84. I respectfully agree with the view taken by the Delhi High Court. Limitation 85. Even assuming if the Plainitff's had any right to seek such declaration, the same has been sought after a period of over 18 years. Therefore, seeking cancellation of sale deed after a period of 18 years is clearly barred by the law of limitation. 86. The present suit comes across as an abuse of process of law having challenged the sale deed of the year 1994 after 18 years. Hence, on this count also, the Plaint is required to be rejected. 87. Article 59 of the Limitation Act reads as under: To cancel or set aside an instrument or decree or for Three Years. When the facts entitling the plaintiff to have the To cancel or set aside an instrument or decree or for the rescission of a contract. Three Years. When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 88. Therefore, present case is a classic case where the pl....
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....ng her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the Plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the Plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the Plaintiff is "not legal or authorised by the law", the Plaintiff shall not be entitled to any permanent injunction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must al....