TaxTMI 
TaxTMI 
1991 (9) TMI 374
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....avas of Chittur Taluk governed by the Hindu Mithakshara Law as modified by custom. Plaintiffs claimed four out of five shares in the property alleging that the property belongs to the joint-family constituted by the first Defendant and his children. 3. No written statement was filed by the first Defendant. The second Defendant, the Secretary of a Co-operative Bank filed written statement contending that Plaintiffs are not entitled to claim any share since the property had been set apart to the individual share of the first Defendant. They contended that Plaintiffs have no right by birth. First Defendant while working as the Secretary of the Bank mis-appropriated large amounts and for realising the same arbitration proceedings were initiated before the Joint Registrar of Co-operative Societies, Palakkad. The properties belonging to first Defendant were attached. Second Defendant further contended that the remedy of Plaintiffs is to fire a claim petition before the Joint Registrar. According to them the suit is barred under the provisions of the Co-operative Societies Act. 4. By judgment dated 28th February 1986 the court below granted a preliminary decree for partition of the ....
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....of his undivided share in the joint family property. It is provided that the interest in the mithakshara coparcenary property of a male Hindu shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The Section contains a proviso 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 mithakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship. Under, the old law a devise by a coparcener in a Mithakshara joint family property of his undivided interest was invalid. But Section 30 of the Act enables a Hindu to dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act or any other law for the time being in force and applicable to Hindus. By the explanation to that Section the interest of a male Hindu in Mithakshara coparcenary property or the interest of a member of a ta....
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.... birth operating in favour of his son. After noticing the conflict of judicial opinion on this question, the High Courts of Gujarat and Punjab being of the view that such property would be considered joint-family property and that the High Courts of Allahabad and Madras being of the contrary view, the learned author States that the view of Gujarat and Punjab High Courts is the correct one. We will now refer to the various judicial pronouncements cited at the bar. 10. In the decision in Brij Lal v. Daulat Ram (1977) 79 PLR 27 it was held that Section 6 and 8 of the Hindu Succession Act only postulates as to how the property left by a male Hindu will be inherited by the surviving heirs. It is observed that the Section do not in any manner say as to how the property will be treated in the hands of the heirs. It was further held that the Act being silent in this matter, Section 4 of the Act cannot be interpreted to have abrogated the established Principles of Mithakshara Law. It was held further that Section 8 of the Hindu Succession Act which deals with the succession to the property of a Hindu male dying intestate has modified the Mithakshara Law to this extent only that after his....
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....in interpreting Section 8 of the Act at all. It was held: Section 6 of the Act contains the extent to which sentiment in favour of the retention of the original Hindu Law relating to succession to or devolution of the Mitakshara coparcenary property found legislative expression. It confines the operation of the original law of Mitakshara coparcenary property to cases where the deceased governed by the Mitakshara law had an interest in a Mitakshara coparcenary property and regulates only the devolution of such interest in that property. We do not think that any support can be sought from the provisions of Section 6 of the Act in interpreting the very different provisions of Section 8 of the Act. The two Section deal with different subject-matter. One deals with the devolution of an 'interest' in Mitakshara coparcenary property and the other with the devolution of 'property' itself of a male Hindu, falling outside the purview of Section 6 of the Act upon the death of a male Hindu intestate. 13. In that case one Durga Prasad and his son Ram Rakshpal and his grand son Ashok Kumar constituted a Hindu undivided family. Partition of that family took place on 11....
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....he effect of the statutory provision, no interest will accrue to the grandson. It is further observed that this position is directly derogatory of the law established according to the principle of the Hindu Law and this provision in the statute must prevail in view of the unequivocal expression of the intention in the statute itself which says that to the extent to which provisions had been made in the statute, those provisions shall override the established provisions in the texts of Hindu Law. It is further observed that it is impossible to visualise or envisage any Hindu undivided family in regard to the property which Karuppan in that case got in partition. Irrespective of tire question whether it was ancestral property in the hands of Karuppan or not he would exclude his son. Since the existing grandson at the time of the death of the grandfather has been excluded it was held that an after-born son of Karuppan will also not get any interest which Karuppan inherited from his father. The Full Bench held that the principles of Hindu Law are not therefore applicable. 16. On a consideration, of the differing views on this matter I am inclined to agree with the Full Bench decisio....
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....ee if the words of the enactment will bear an interpretation in conformity with this view. If a Statute, intended to embody in a code a particular branch of the law, it to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.... 18. The position therefore is that the earlier law cannot be invoked in respect of matters specifically dealt with in the Hindu Succession Act. The overriding effect of the Act in respect of matters dealt with in the Act is provided for in Section 4 of the Act which lays down that any law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is in consistent with any of the provisions contained in this Act and any text, Rule or interpretation of Hindu Law or custom or usage a....