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Partition Of HUF After Commencement Of Hindu Succession Act, 1956

The effect of Hindu Succession Act, 1956 on partition of HUF property is a debatable issue between the legal experts of Hindu Law. In my opinion, this legal position has been settled by the following judgments of the Apex Court that on partition of HUF the coparcener who receives the property will be his individual property under section - 8 of Hindu Succession Act, 1956 :

1. In the Landmark Judgments, Commissioner of Wealth Tax v. Chandra Sen, 1986 (3) SCC 567 : AIR 1986 (SC) 1753, The Supreme Court held that on partition son inherit the property as an individual and not as Karta of his own family.

Under Hindu Law, the son inherit the property of his father as Karta of his own family. But The Hindu Succession Act has modify the rule of succession. In interpreting the provisions of the act it is necessary to bear in mind the Preamble of the Hindu Succession Act. The preamble states that it was an act to amend and codify the law relating to intestate succession among Hindus.

Furthermore, Section - 4 of Act makes it clear that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. It would be difficult to hold today that the property which devolved on a Hindu under Section - 8 of Hindu Succession Act would be HUF in his hands vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class - I.

The express words of Section - 8 of Hindu Succession Act cannot be ignored and must prevail. The preamble of the Act reiterates that act is inter alia to amend the law, with that background the express language which excludes son's son but included son of predeceased son cannot be ignored.

2. In Judgment of Yudhishthir v. Ashok Kumar, 1987 (1) SCC 204 : AIR 1987 (SC) 558, it is held that property devolved on Hindu under Section - 8 would not be HUF in his hands vis-a-vis his own sons.

3. In Judgment Bhanwar Singh v. Puran & Ors, 2008 (3) SCC 87 : AIR 2008 (SC) 1490, it is held Ancestral property - Death of Hindu male in the year 1972, property inherited by the son "A" and his three daughters - Property was partitioned by all the four in equal shares - The property thus lost the character of Ancestral property in terms od Section - 8 of Hindu Succession Act - Son of "A" born in the year 1997 acquired no interest in property by birth.

4. In a Important Judgment - Uttam v. Saubhag Singh & Ors. 2016 (4) SCC 68 : 2016 AIR (SC) 1169, it is held that an Ancestral property ceases to be joint family property from the date of death of grandfather - and devolved by succession under section - 8 of Hindu Succession Act.

On a conjoint reading of Section 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

Applying the law to the facts of the case it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and other coparceners devolved by succession under Section - 8 of Hindu Succession Act. This being the case of on the date of birth of the Appellant in 1977, the said Ancestral property not being the joint family property the suit for partition of such property would not be maintainable.

{According to my opinion, In this case legal position has been made clear that after partition of the joint family property the plaintiff/grandson has no right in such property because the joint family does not continue and the property in the hands of father being his individual property under Section - 8 of Hindu Succession Act.}

5. In a recent Judgment of Apex Court Radha Bai v. Ram Narayan & Ors. 2020 (1) RCR (Civil) 326, decided on 22.11.2019, it is held that after the death of the great grandfather, ancestral property partitioned between grandsons which came in exclusive share in individual capacity - The Grandfather legitimately dispose of the same vide registered sale deed in favour of defendant - Transfer of the property upheld.

6. In an another recent Judgment of Apex court - M. Arumugam v. Ammaniammal & Ors. 2020 DNJ 80, decided on 8.01.2020, it is held that that on the death of the coparcener notional partition is deemed to have taken place immediately before his death - Property no longer can be treated as joint property - Surviving members of the coparcenary get their share each in property - Share of deceased coparcener to be inherited in terms of Section - 8 of Hindu Succession Act.

There is another reason to take this view, section - 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section - 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenery shall be deemed to be property capable of being disposed by him within the meaning of Section - 30. This means that the law markers intended that all intents and purpose the interest of a male Hindu in Mitakshara coparcenery was to be virtually like his self acquired property. Furthermore, when we conjointly read Section - 30 with Section - 19, which provides that when two or more heirs success together to the property of an interstate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement.

7. In the latest Judgment Vineeta Sharma v. Rakesh Sharma dated 11-08-2020 of Larger Bench of Apex Court, discussed the amended provisions about partition of HUF and clarified that if partition of HUF has taken place as per law before 20th Day of December 2004, the daughter/coparcener will not get any share in HUF property because of partition.

Thus, If we go through the above judgments it becomes clear that if there is a partition of HUF after the commencement of Hindu Succession Act 1956 then the property in the hands of coparcener will becomes his individual property as per the section-8 of Hindu Succession Act 1956 and In such case there cannot be revival of HUF again even on the birth of son/daughter as coparcenary ceases on partition.

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