Article – Law of partition of property in India

INTRODUCTION

 ‘PARTITION’ needs no introduction, as meaning thereof is all too well-known in law. However, it assumes significance when ‘Partition of Property’ is involved, as the topic itself generates significant amount of interest in individual(s), looking to receive their share of inheritance from their predecessors. A ‘simple’ issue of fact however a ‘complex’ question in law.

Under the Hindu Law prior to 1956, the moment a son was born, he acquired a share in his father’s property and became part of the ‘Coparcenary’. A right in his favour over the property accrued upon him not upon the death of his father, but upon his ‘own’ birth. Normally, therefore whenever the father gets a property from whatever 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 Hindu Undivided Family (‘HUF’) with him.

 

HINDU SUCCESSION ACT, 1956

The Hindu Law is based on Shruti, Smriti, Digest and Commentaries and Custom, however the same varied as all over India there were different laws like Mitakshara, Dayabhaga laws of Inheritance and the Marumakkattayam, and Nambudri systems of Hindu law which were prevalent in certain parts of Southern India. In order to bring uniformity in application of the Hindu Law of Inheritance, the same was codified after Independence of India, which came to be known as the Hindu Succession Act, 1956 (‘HSA’). Another important reason leading to codification of the Hindu law of Succession was to bring equality between male and female in regard to rights to property. The limited Estate to a female under the old Hindu law was completely abolished by ‘HSA’ and the property inherited by a Hindu female was inherited by her, with complete ownership rights.

Whereas, Section 8 of the ‘HSA’ reversed the scenario, as far as Inheritance by a male descendant was concerned. While dealing with the issue, Andhra Pradesh High Court in Commissioner of Wealth-Tax V/s. Mukundgirji^[1] held that – “It is relevant to notice that Class I of the Schedule mentions the son but not son’s son. The son of a predeceased son is mentioned but not the son of a son who is alive. It is true that this was also the position even prior to the ‘HSA’; but what makes the difference is the following features: (a) Section 4(1)(a) declares that with respect to any matter for which provision is made by this Act, 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 the HSA shall cease to have effect; (b) Class I contains not only male members but also female members; and (c) According to S. 19, if two sons succeed to the Estate of their father under S. 8, they take the property as tenants-in-common and not as joint-tenants. We shall elaborate. A look at the ‘HAS’ would disclose that Parliament wanted to make a clean break from the old Hindu Law in certain respects consistent with modern and egalitarian concepts. For the sake of removal of any doubt, therefore, S. 4(1)(a) declared that, in so far as a matter is provided for by the Act, one should look only to the Act but not to the pre-existing Hindu Law. It would, therefore, be not consistent with the spirit and object of the enactment to seek to strain the provisions of the Act to accord with the prior notions and concepts of Hindu Law. That such a course is not possible is made clear by the inclusion of the females in Class I of the Schedule. To hold today that the property which devolves upon a Hindu under S. 8 of the Act would be ‘HUF’ property in his hands vis-a-vis his own sons would amount to creating two classes among the heirs mentioned in Class I, viz., the male heirs in whose hands it would be joint family property vis-a-vis their sons; and female heirs with respect to whom no such concept can be applied or contemplated”.

SIGNIFICANCE OF SECTION 8

After coming into force of the ‘HSA’, the concept of ‘HUF’ has undergone a significant change and now as per S. 8 of the ‘HSA’ the property of a male Hindu dying intestate devolves:

(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.

 Schedule to the ‘HSA’ mentions Class I heirs, are:

1. 1. Son;
   2. Daughter;
   3. Widow;
   4. Mother;
   5. Son of a predeceased son;
   6. Daughter of a predeceased son;
   7. son of a predeceased daughter;
   8. Daughter of a predeceased daughter;
   9. Widow of a predeceased son;
   10. Son of a predeceased son of a predeceased son;
   11. Daughter of a predeceased son of a predeceased son;
   12. Widow of a predeceased son of a predeceased son.

It is clarified that only son, daughter, widow and mother succeed to the property of the deceased and only in the event either son or daughter predeceased their father that predeceased daughter’s/ son’s son, daughter, widow become entitled to the share which daughter/ son was entitled to inherit from the property left behind by the deceased.

Class II heirs constitute, as under:

I.     Father

II.    (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.

III.   (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s  daughter.

IV.    (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.

V.     Father’s father; father’s mother. 654

VI.    Father’s widow; brother’s widow.

VII.   Father’s brother; father’s sister.

VIII.  Mother’s father; mother’s mother.

IX.    Mother’s brother; mother’s sister.

After Amendment of ‘HSA’ in the year 2005^[2], the daughter, irrespective of her marital status has been added as a Coparcener in the Hindu Undivided family, after which four categories of people has been added to be Class I heir, which are as below:

XIII.  Son of a pre-deceased daughter of a pre-deceased daughter;

XIV.  Daughter of a pre-deceased daughter of a pre-deceased daughter

XV.   Daughter of a pre-deceased son of a pre-deceased daughter and

XVI.  Daughter of a pre- deceased daughter of a pre- deceased son”

In the matter of  Commissioner of Wealth Tax, Kanpur & Others V/s. Chander Sen and Others^[3] the Supreme Court after going through the provisions of ‘HSA’ held that the son’s son has been expressly excluded to be an heir, hence the son who inherits the property of his father under S. 8, inherits the property as his self-acquired property and son’s son does not have any right in the property as the concept of acquiring interest in the property by birth as was in pre-existing Hindu Law has been done away with. It was further held that in terms of S. 4 of ‘HSA’, in case of any doubt one should look at the provisions of the ‘HSA’ and not to pre-existing Hindu Law.

INHERITANCE BY WOMEN

 Herein, we are not dealing with the Right of Hindu Women to Property, as the said aspect has been extensively dealt by us in our other Article titled – ‘Right of Hindu Women in Property’.

ANCESTRAL PROPERTY

The concept of the ancestral property has been done away with after coming into force of the ‘HSA’. Under the old Hindu Law, whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. The property so inherited was termed as Ancestral Property. However, now under ‘HSA’, the HUF property received by a person after Partition of the Joint Family Property is deemed to be his exclusive property, having absolute ownership rights and there is no concept of automatic formation of a new ‘HUF’.

The Supreme Court in the case of Yudhishter V/s. Ashok Kumar^[4] , reiterating the earlier view as expressed in Chander Sen’s Case held that the legal position after coming into force of S. 8 of ‘HSA’ is that inheritance of ancestral property after 1956 does not create nor result in creation of a ‘HUF’ property.

 

DEVOLUTION OF INTEREST

 Putting all ambiguity to rest, the Delhi High Court in the case of Sunny (Minor) & Another Vs. Raj Singh & Others^[5] has held – “if a person after 1956 inherits a property from his paternal ancestors, the said property is not a HUF property in his hands and the property is to be taken as a self-acquired property of the person, who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either a HUF and its properties was existing even prior to the passing of the ‘HSA’ and which ‘HUF’ continued even after passing of the ‘HSA’, and in which case since ‘HUF’ existed and continued before and after 1956, the property inherited by a member of a ‘HUF’ even after 1956 would be ‘HUF’ property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self-acquired property but an ‘HUF’ property 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. In order to claim the properties in this second exception, position as being HUF/Joint Hindu Family properties, a Plaintiff has to establish to the satisfaction of the Court that when (i.e date and year) was a particular property or properties thrown into common hotchpotch and hence HUF/Joint Hindu Family created”. This view of the Delhi High Court has been affirmed by Supreme Court in the case of Uttam Vs. Saubhag Singh & Others^[6].

However, after coming into force the Amendment to ‘HSA’ in 2005, the concept of survivorship as mentioned in S. 6 has been done away with.

 

CONCLUSION

While the Hindu Succession Act has made profound changes in the inheritance of HUF and self-acquired properties amongst Hindus post 1956, it is worth pondering over if these changes are going to create a duty conscious society or one that is obsessed with rights over property. Further, the Amendment in 2005 giving coparcenary rights to females has only opened floodgates for innumerous claims; which shall be for ‘better’ or ‘worse’ as a Society, time will tell, for the Jury is out to decide the larger question of ‘Right to Inheritance’.

Whereas, as for the present we can safely conclude that any kind of property which is Inherited by a Hindu upon division of either self-acquired property of his ancestor(s) or Hindu Undivided Property, is deemed to be self-acquired property of the individual and the concept of the ancestral property as was existing prior to Hindu Succession Act, 1956 has been completely done away with. Further, the concept of acquisition of property by survivorship has also been completely done away with and any property of a Hindu either self-acquired property or Hindu Undivided Family Property can be partitioned only as per the provisions of Section 8 of the Hindu Succession Act, 1956.