This article has been written by Jaanvi Jolly. It seeks to analyse the decision of the court in the case of Commissioner of Wealth Tax vs. Chander Sen (1986). It discusses the applicability and effect of Section 8 of the Hindu Succession Act, 1956. It also examines the change in position pre and post the commencement of the HSA, 1956, in matters of devolution of interest in coparcenary property. It also assesses the opinions of various High Courts on the issue and the final opinion of the Apex Court.

This article has been published by Shashwat Kaushik.

Introduction

Hinduism is considered to be one of the oldest religions due to its roots preserved in the Vedas, along with Shrutis and smritis. One of the most novel and distinguishing aspects of Hindu law was the ‘Joint Hindu family’ or the ‘Hindu undivided family’. Jointness is considered a usual or general condition of Hindu society, and a Hindu family is ordinarily presumed to be joint not only in the property, which is ‘unity in possession’ but also in food and worship. A joint Hindu family originates from a ‘common male ancestor’ and extends to his male descendants, the children of the male descendants, the wives of the male descendants, unmarried daughters, adopted children, the widows of male descendants and the divorced daughters. Therefore, there are three ways in which a person can become a part of the joint Hindu family. First, by taking birth in such a family; second, by marrying into the family; and third, by adoption into the family. This Hindu joint family keeps on continuing until there is a partition in the family. 

The common male ancestor is only important for the origination and not for the continuation of the Hindu joint family. Within the wider component of the Hindu joint family, we find the existence of the concept of ‘coparcenary’, which consists only of the male descendants of the common male ancestor up to four degrees from the last male holder alive. For instance, if ‘F’ were the last male holder, the coparcenary would consist of F, FS, FSS, and FSSS. However, by Section 6 of the Hindu Succession (Amendment) Act 2005, even the ‘daughter of a coparcener’ has been made a coparcener by birth in her own right, like the son. 

The coparcenary was the unit that had joint ownership of the property of the joint Hindu family, which is the ‘community of interest’ that vests in the coparceners. The share of a coparcener in the joint Hindu family property after his death is determined by the process of survivorship for the surviving coparceners. However, the separate property of such a coparcener, which would include his share in the coparcenary property after partition, would pass down first upon the son, next upon the widow of the deceased and in the absence of both, on the daughter. The position of devolution of both coparcenary and separate property has been modified by the HSA 1956, which is discussed in the article.

Details of the case 

Case name – Commissioner of Wealth-Tax vs. Chander Sen, AIR (1986)

Date of judgement – July 16, 1986

Petitioner – Commissioner of Wealth-Tax

Respondent – Chander Sen

Bench- Honourable Justice Sabyasachi Mukharji and Honourable Justice R.S Pathak

Judgement, authored by – Honourable Justice Sabyasachi Mukharji

Equivalent Citations – 1986 SCR (3) 254, 1986 SCC (3) 567, 1986 SCALE (2) 75

Nature of case – Civil Appellate Jurisdiction 

Facts of Commissioner of Wealth-Tax vs. Chander Sen (1986) 

A joint Hindu family existed between Rangi Lal and his son, Chander Sen (respondent in the present proceeding). The joint family possessed some immovable property along with a family business, which was continued in the name of Khushi Ram Rangi Lal. On October 10, 1961, a partial partition was affected in the family, and only the business was divided between the father and the son. After such partition, the business was carried on in a partnership consisting of the father and the son together. In the following year, the firm’s income tax was calculated as a registered firm with two partners. The father and the son were separately assessed for the share of their income. Despite the business being partitioned, the immovable property of the family remained joint.

On July 17, 1965, the father, Rangi Lal, passed away, leaving behind his son, Chander Sen and his grandson, who was the son of Chander Sen. Chander Sen filed the return of his income for the assessment year 1966-67 (valuation date October 5, 1965), which included  the property of the family, which, on the death of Rangi Lal, devolved upon his son Chander Sen by survivorship, along with the assets of the business, which devolved upon Chander Singh after his father‘s death. At the time of Rangi Lal’s death, there was a credit balance of Rs. 1,85,043 that stood to the credit of Rangi Lal after the partition of the business and was not included by Chander Sen in the net wealth of the family. Rather, it was claimed by him as a separate property on the ground that he succeeded to such an amount in his independent capacity and not as the property of the Hindu joint family. This contention of Chandra Sen was refused by the wealth tax officer, who contended that this sum also belonged to the joint Hindu family and not to the respondent alone.

Subsequently for the assessment year 1967-68, a sum of Rs. 23,330 was credited to the account of Rangi Lal, which was the interest on his credit balance subsisting in the account. This sum was claimed as a deduction in the computation of the business income by Chander Sen, as this was now due to him in his individual capacity as an heir of the deceased. At the end of the year, the credit balance in the account of Rangi Lal, amounting to Rs. 1,82,742, was transferred to the account of Chander Sen. Additionally, in the assessment under the Wealth Tax Act for the years 1967-68 the respondent contended that the credit balance in the account of Rangi Lal belongs to him in his separate capacity and not to the joint Hindu family. However, in the income tax assessment, the claim relating to interest was disallowed on the ground that these were payments made by the respondent to himself. Similarly, in the wealth tax investment as well, the sum of Rs. 1,82,742 was included in the wealth of the family and not in the individual wealth of the respondent.

An appeal was filed before the Appellate Assistant Commissioner of Income Tax, who accepted the respondent’s claim that the credit standing devolved upon him in his individual capacity and directed that the income tax assessment of the sum of Rs. 23,330 on account of interest should be allowed as a deduction. 

Aggrieved by this decision, the revenue department filed three appeals before the Income Tax Appellate Tribunal, which consisted of two appeals against the assessment under the Wealth Tax Act 1957 for the years 1966-67 and 1967-68 and another appeal against the calculation under the Income Tax Act 1961 for the years 1967-68. All three appeals were dismissed by the tribunal.

Subsequently, two questions were referred to the High Court for its opinion-

1. Whether, on the facts of the case, the decision of the tribunal that the sum of Rs. 1,85,043 and Rs. 1,82,742 would not constitute the assets of the Hindu undivided family was correct?
2. Whether, on the facts and circumstances of the case, the interest of Rs. 23,330 was allowable deduction in the computation of the business profit of the Hindu joint family?

The High Court stated that the decision on these questions would depend upon the answer to the following question- Whether the amount of standing credit belonging to Rangi Lal was inherited by the respondent in his individual capacity or in the capacity of the ‘Karta’ of the Hindu joint family?

 The amount in dispute was given to Rangi Lal, which included the amassed profits earned by the firm, which fell into his share when the partial partition took place between him and his son. One thing was clear before the High Court that had Rangi Lal been alive, his share in the business would not be said to belong to the Hindu joint family and for Chander Sen and his sons, it constituted the individual property of Rangi Lal and after his demise, the amount devolved upon his son, Chandra Sen, by intestate succession. The High Court discussed the law that existed prior to HSA 1956. Under the traditional Hindu law, when any property was inherited by a son, which was the separate or self-acquired property of his father, that property assumed the character of joint Hindu family property in the hands of the son for his family, which would include his sons. However, the High Court noted that after the enactment of the HSA 1956, this position has undergone a change. Now, as per Section 8, any property of a male Hindu dying intestate is devolved to his heirs as per the provisions of Section 8-13  read with Schedule 1, and the heirs mentioned in the Act would inherit the property in their individual capacity. Thus, the High Court held that Chandra was the only heir and he inherited the property in his individual capacity and not as the Karta of the Hindu joint family and answered both questions in the affirmative in favour of the respondent –

1. That the amount of Rs. 1,83,043 and Rs. 1,82,000, which was the standing credit in the firm business on account of Ragi Lal, was not the property of the Hindu undivided family
2. The amount of Rs. 23,330 would be allowed as a deduction. 

Subsequently, three appeals were filed against the decision of the Allahabad High Court by filing a special leave under Article 136 of the Constitution before the Supreme Court. Two of these appeals were in regard to the assessment in the years 1966-67 and 1967-68, which originated out of the proceedings under the Wealth Tax Act 1957 and the third appeal was linked to the proceedings under the Income Tax Act 1961 relating to the calculation for the years 1968-69.

Issues raised 

Whether the wealth or estate that a son inherits from his father after his demise, (when it has already been divided by partition), would be included as income of the Hindu undivided family of the son or his individual property, that is, whether it would be a coparcenary property or the son’s separate property?

Arguments of the parties

Petitioners 

The petitioners claimed that any property that a male Hindu inherits from his father, ‘father’s father’ (grandfather) or from ‘father’s father’s father’ (great grandfather), would be a coparcenary property vis-a-vis his branch, which would include his sons. Therefore, they claim that the property that the respondent inherited after the demise of his father was in the capacity of Karta of the Hindu undivided family and not in his individual capacity.

Respondent  

The respondent claimed that after the enactment of the Hindu Succession Act, 1956, the method and process of succession had been overhauled, and since his father died after the commencement of the Act, he would inherit the property as per Section 8 read with Schedule 1. Which mentions only the ‘son’ and not the ‘son’s son’ as a class 1 heir. Consequently, he claims that any property that he has inherited from his father would constitute his separate property inherited in his individual capacity, and he would not inherit it in the capacity of the Karta of the Hindu joint family, which would give his sons a birthright in such property.

Laws/concepts involved in this case

Section 4 of the Hindu Succession Act 1956

This Section provides an overriding effect to the provisions of the Act over ‘any text, rule or interpretation’ of traditional Hindu law or any other law, ‘custom or usage’ that was in force before the commencement of the Act. By effect of this section, the provisions of HSA 1956 would prevail over any contradictory rules provided in traditional Hindu law. 

Section 6 of the HSA, 1956 (prior to the Hindu Succession (Amendment) Act, 2005)

This Section brought about a landmark change in the process of inheritance in Hindu law. Prior to the commencement of the HSA 1956, the rule that was followed was that of survivorship, according to which when a coparcener died with an undivided interest in the joint Hindu family property, after his death, his share passed on to the remaining coparceners. However, after the HSA 1956,  Section 6 introduced the concept of ‘notional partition’ as per that where a male Hindu coparcener dies with an undivided share in the coparcenary property, it shall be deemed that he sought a partition immediately before his death, and whatever share he would have gotten at that time would be deemed to be a separate share and can be inherited by the class 1 heirs in succession. However, this rule of succession would only apply if the male Hindu had left behind surviving him a female relative in class 1 of the schedule or a male relative who claims to be such a female and has been mentioned in the class 1 schedule. In this case, the rule of survivorship would give way to the rule of succession.

Section 8 of the HSA, 1956

This section provides the general rules for intestate succession in the case of a male Hindu who died intestate. His estate would first devolve upon the class 1 heirs provided in the schedule, in the absence of heirs in class one, then to the heirs mentioned in class two of the schedule. In case there is no heir provided in any of the two classes, then upon the ‘agnates’ (related to the deceased by blood or adoption via male line of descent) of the deceased and in the absence of agnates, upon the ‘cognates’ (related to the deceased by blood or adoption not wholly via line of male descendants) of the deceased, and if there is a failure of heirs, it would devolve upon the government by the ‘doctrine of escheat’ provided under Section 29 of the HSA 1956.

Section 19 of the HSA, 1956

Section 19 describes the mode of succession wherein multiple heirs are entitled to succeed to the property. It provides that where numerous heirs succeed together, they shall take the estate as ‘tenants in common’ and not as ‘joint tenants’. Further, unlike the position in the case of partition, wherein the share is first divided per stripe and subsequently per capita, Section 19 clarifies that heirs inheriting under the Act would be inheriting per capita and not per stripe.

Section 30 of the HSA, 1956

Section 30 deals with the provision of testamentary succession. It allows any Hindu to dispose of his property by Will. The only condition is that he must be competent to dispose of such property as per the provisions of the  Indian Succession Act, 1925. As per the explanation, the interest of a male Hindu in the mitakshara coparcenary property is deemed by legal fiction to be property capable of being disposed of by him.

Relevant judgements referred to in Commissioner of Wealth-Tax vs. Chander Sen (1986)

The First view-

Gujarat High Court 

Commissioner of Income Tax, Gujarat vs. Dr. Babubhai Mansukhbhai (deceased) (1975) – In this case, the Gujarat High Court opined that under the Mitakshra law, wherever the son inherits the self-acquired property of his father, he takes it not as a separate property but rather as a joint family property for himself and his sons and thus, the correct way for assessment of the income of the son in respect of such property was as a part of the Hindu undivided family property and not as his individual property. The Gujarat High Court refused to accept the approach adopted by the Allahabad High Court mentioned below.

The Second view- 

Allahabad High Court

In the case of Commissioner of Income Tax, Uttar Pradesh vs. Ram Rakahpal (1966)– In this case, the High Court held that after the coming up of the HSA, 1956, the wealth or estate which a son inherits from his deceased father, from whom he had already been divided by a partition, would not be assessed as the income of the Hindu undivided family of the son. The act of partition takes away the coparcenary character of the property in reference to the people between whom the partition took place. However, the property remains coparcenary for his unseparated issue. In this case, Ram Rakshpal constituted a Hindu undivided family with his father, but in 1948, he separated from his father by partition. Thereafter, Ram Rashpal and his father both started their own businesses separately. The father died in 1958, leaving behind him his widow, his married daughter, his son, Ram Rashpal, and his grandson, who is the son of Ram Rashpal, as his survivors. As per the provisions of Section 8, read with Schedule 1, the property of the propositus devolved upon his wife, his daughter and his son Ram Rashpal in equal shares. The widow of the father, Ram Rashpal, continued the business inherited by them in a partnership. The nature of the profit share of Ram Rashpal in the business was in issue. It was contended before the income tax officers that this profit was the personal income of Ram Rashpal and could not be considered the property of the Hindu joint family of Ram Rashpal. The income tax officer held that Ram Rashpal contributed his ancestral funds to the partnership business, and hence, the income would be taxable as the income of his Hindu undivided family. This decision was not accepted by the High Court, which finally held that the assets of a business that was inherited by Ram Rashpal would be governed by Section 8 of the Hindu Succession Act and thus would constitute his separate property. 

Madras High Court 

In the case of Additional Commissioner of Income Tax, Madras vs. P.L. Karappan Chettiar (1978), a partition of the Hindu joint family was effected on March 22, 1954, which was recognised by the revenue department as per the Indian Income Tax Act, 1922. The family consisted of P, his wife, their son K and their daughter-in-law. P was assigned certain property on the partition, and he got separated after taking his share. The son ‘K’, along with his wife and afterborn children, constituted a Hindu joint family. ‘P’ died on September 9, 1963, leaving behind his widow and his son K as his legal heirs. As per the provisions of Section 8 of the HSA 1956, read with Schedule 1 of the Act, both the widow and K succeeded to the property left behind by the deceased P. The property that K received on succession was included in the income tax assessment as the property of the Hindu undivided family. On an appeal, the tribunal held that such property received in inheritance was not the joint family property but rather the separate property belonging to K. In reference proceedings, the High Court opined that under Hindu law, where a male Hindu dies and his property is inherited by his son, the grandsons also get a birthright in the estate. This position underwent a change after the 1956 Act, and as per the language of Section 8 read along with the class 1 heir schedule, the ‘son’s son’ gets excluded as he does not form a part of the class 1 heir enumerated in the class 1 schedule, and the son solely succeeds to the estate to the exclusion of the son. As the intent and the effect of Section 8 of the Act are contradictory to the traditional Hindu law, the express provision must prevail in view of the clear intention of the legislature as per Section 4(1) of the Act. It seeks to give an overriding effect to the provisions in the Act over the text of traditional Hindu law. Therefore, in this case, ‘K’, the son, alone inherits the properties in his individual capacity, and his son or grandson would have no right to that property. Therefore, the income therefrom was to be considered his independent property and was not to be assessed in the hands of the Hindu undivided family. This view is in agreement with the view of the Allahabad High Court above.

Madhya Pradesh High Court

In the case of Shreevallabh Das Modani vs. Commissioner of Income Tax, M.P.-I,(1981)– The court held that where there was no coparcenary that existed between a Hindu male and his sons at the time of the death of the father, the property that he received on his father‘s death could not be so blended with the property that had been allotted to his sons on a partition effected prior to the death of the father. This means that once the coparceners are separated, any property that the son subsequently acquires on the death of his father would constitute his separate property, and his sons and grandsons would have no share in it. The court relied on Section 4 of HSA 1956, which provides an overriding effect to the Hindu Succession Act over the Hindu texts that existed prior to the commencement of the Act on a subject that has been expressly dealt with in the Act. Section 8 is clearly a provision dealing with male succession, which is to be read along with the Class 1 schedule. Under Schedule 1, only the son is mentioned, and ‘son’s son’ does not find a place. Therefore, he would not get any right to the property of his grandfather under the provision if his father were alive. The right that a ‘son’s son’ has in his grandfather‘s property during the lifetime of his father under the traditional Hindu law has been repealed after the commencement of the Hindu Succession Act 1956. The High Court felt that Section 8 of the HSA 1956 should be taken as a self-contained code, providing the scheme of devolution of property for a Hindu dying intestate. According to this, the property devolving on a Hindu on the death of his father, after the coming up of the HSA 1956, would not constitute a HUF property for his branch, including his sons. Thus, the Madhya Pradesh High Court followed the full-bench decisions of the Madras High Court and the Allahabad High Court in the above cases.

Andhra Pradesh High Court.

In the case of the Commission of Wealth Tax, Andhra Pradesh vs. Mukundgirji (1983)– the Andhra Pradesh High Court also had an opportunity to consider this aspect and held that by enacting the Hindu Succession Act 1956, the Parliament wanted to make a clear break from the old Hindu law and to bring it in line with the modern and egalitarian concepts of New India. For the removal of any doubts, Section 4(1)(a) was also inserted to provide an overriding effect to the provisions of the Act. The court believed that it would not be right to construe the provisions of the Act in order to uphold the pre-existing concepts of Hindu law, and such interpretation was not possible because of the clear inclusion of females in class one in schedule one. Therefore,  if it were held that the property that devolves upon a Hindu male under Section 8 of the Act would be a coparcenary property in his hands in reference to his own sons, that would amount to the creation of two classes among the heirs mentioned in the class 1 schedule. That means the males in whose hands such inherited property would be coparcenary property and the females in whose hands such property would be a separate property, as no concept of coparcenary property could be applied to them. Further, the court also examined Section 19 of the HSA 1956, which states that where two or more heirs succeed together to the property of the interstate, they take the property as tenants in common and not as joint tenants, whereas according to the traditional Hindu law, where two or more sons succeed to their father‘s property, they hold it as a joint tenant. Therefore, the property that devolves upon the heirs mentioned in class 1 of the schedule read with Section 8 will constitute their separate property, and the sons of the person inheriting it will have no right by birth to own such properties. This view is in line with the decisions of the Allahabad High Court, Madras High Court, and Madhya Pradesh High Court.

Judgement of the case

The Court noted the numerous conflicting decisions that existed on this question of law, with Allahabad High Court, Madras High Court, Madhya Pradesh High Court and Andhra Pradesh High Court on one side, which held that the property devolving by Section 8 of the Hindu succession Act to be separate property of the person inheriting and the Gujarat High Court on the other hand, which held that any property that a Hindu inherits from his father would be as a karta of his branch of the Hindu joint family and not as his separate property. The court accepted the opinions of the Allahabad High Court, Madras High Court, Madhya Pradesh High Court and Andhra Pradesh High Court and rejected the opinions of the Gujarat High Court.

The Court commenced the discussion with reference to the preamble of the HSA 1956, which states that this Act was legislated to ‘amend’ wherever necessary and to ‘codify’ the law relating to succession among Hindus. In light of Section 8, the court stated that where the first schedule enumerates the class one heirs, it is exhaustive. It includes the ‘son’ and also the ‘son of a predeceased son’, but not the ‘son of a living son’. It clearly manifests the intention of the legislature that when the son inherits the property from his father or grandfather as per Section 8, he does not take it as the Karta of his undivided family. Rather, he takes it in his individual capacity.  The court stated that acceptance of the view discussed by the Gujarat High Court would lead to absurdity. It would lead to the conclusion that to say that the son of a living son would, by application of the old Hindu law, have a birthright in such property. We cannot ignore the presence of the new Section 8 read with Section 4 of the HSA 1956, which is clear in its intent. They only seek to devolve the share to the class one heirs as per the schedule. The court also affirmed the reasoning of the Andhra Pradesh High Court. Wherein it was stated that if we consider the property received by virtue of Section 8 by a son to be a coparcenary property in his hands in reference to his branch, it would amount to the creation of two classes among class 1 heirs. First, male heirs who would inherit it as coparcenary property vis-a-vis their sons and second, female heirs who inherit in their individual capacity as separate property. Thus, the court held that the express words of Section 8 would prevail and that all heirs under the Class 1 schedule would inherit in their individual capacity. Thus, the credit standard of Rangi Lal inherited by Chander Sen would be his separate property.

Rationale behind this judgement

Position of law pre- Hindu Succession Act 1956 

In the book ‘Treatise’ on the Hindu Law of Inheritance by Standish Grove Grady, he discusses the line of descent. In the case of self-acquired property, which is acquired in whatever way, whether by a grant of a gift, via sale-purchase or by own exertion, mental or physical or in any other way, it would devolve in the same manner as the partitioned share in the ancestral property. In the absence of a male issue, the widow of the deceased would take the self-acquired property of her husband and on the failure of the son and the widow, the daughter would inherit it. 

In the commentary titled ‘Hindu law and judicature’- from the Dharam Shastra of Yajnavalkya, it is stated that- if a man departs this life without a male issue, then (1) his wife, (2) his daughter, (3) his parents, (4) his brother, and (5) the sons of his brother would succeed to the inheritance each class would inherit upon the failure of the preceding one.

Mulla, in his book Hindu Law, the 22nd edition, discusses the law that existed prior to the HSA 1956. He says that there were two systems of inheritance among the Hindus in India: the Dayabhaga system and the Mitakshara system. The difference between the two systems arises from the fact that the doctrine of religious efficacy was the guiding principle under the Dayabhaga school, and no such guiding principle was found under the Mitakshara school. Sometimes consanguinity and, at other times, religious efficacy were regarded as the guiding principles. Under the Mitakshara law, the right to inherit arises from propinquity, which is the proximity of relationships; it recognises two modes of devolution of property, which are survivorship and succession. The rules of survivorship would apply to joint family property, and the rules of succession would apply to property held in an individual capacity by the last owner.

In N.R Raghavachariars’s Hindu Law Principles and precedents, 8th edition, 1987, a brief description of the nature of property has been explained as follows- 

If the property is inherited from a paternal ancestor who is beyond the 3 degrees, then the property is not ancestral against the sons of the inheritor, and he inherited it as his absolute property. If the person inheriting the property has neither a son nor a ‘son’s son’ nor a ‘son’s son’s son’, that is, no male descendant in the three generations below him exists,. The property would be his absolute property until a male descendant is born to him within 3 degrees below him. A property that comes to an inheritor from one of his three lineal male paternal ancestors would be his absolute property till the time he has no sons, grandsons, or great-grandsons, and the moment any of the male descendants mentioned is born, it would become an ancestral property with reference to them, and they would have a birthright in it.

The character of ancestor property would not be taken away by the effect of a partition in the family. Although a share in the property that is allotted to a coparcener on a partition will be his separate property with reference to the people who participated in the partition, it would be ancestral property for the sons, grandsons and great-grandsons, whether born before or after the partition. 

However, when a son inherits such property from his father, grandfather or great-grandfather, it would remain his separate property till the time he has no issues, but the moment the son is born to him, he would take a birthright in that property, and it would be considered a coparcenary property for him.

Position of law post-Hindu Succession Act 1956 

HSA 1956 intended to ‘amend and codify’ the law governing intestate succession of Hindus. In reference to the property, which was inherited by a son from three generations of paternal ancestors in the male lineage,. The law has clearly established that it would be a coparcenary property in his hands with reference to his male descendants, up to 3 generations, who would acquire a birthright in that property and would be entitled to seek a partition. But after the enactment of the HSA 1956, the law of inheritance with regard to a Hindu male intestate was laid down under Sections 8 to 13 along with Schedule 1. These provisions retained some basic principles of Hindu law, modified others and totally abrogated some of the rules.

Prior to the commencement of HSA 1956, the undivided interest of a coparcener in the Hindu joint family upon his death was survived by the other coparceners. However, after the commencement of the HSA in 1956, the position underwent a change. In case the deceased left behind a female heir specified in the class 1 schedule or any male heir claiming via such female. The share of the interstate in the coparcenary property would not devolve by the principle of survivorship. Rather, a legal fiction by way of a ‘notional partition’ would be performed to calculate the share of the deceased in the coparcenary property, and subsequently, such share would be given in succession. In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum (1978), the process of ‘Notional Partition’ was elaborated. To ascertain the share that would devolve upon the heirs, as per the provisions of the Act. The first step is to ascertain the share of the deceased in the coparcenary property. Explanation 1 to Section 6 of the Hindu Succession Act prior to the 2005 amendment provided for a fictional expedient. According to which his share is deemed to be the share in the property that would have been allotted to him had a partition taken place immediately before his death. This share would then be inherited by the heirs as per the class one schedule read with Section 8 by the process of succession.

The position of the son and his interest in the father’s property as the primary heir are still retained, but the only question remains as to what would be the character of this property in his hands with reference to his male issue. If it is considered the separate property of the son, it will exclude the rights of all his descendants, but if it is considered ancestral property, his male descendants up to 3 generations would have a birthright in it.

A son inheriting property from his father, ‘father’s father’ or ‘father’s father’s father’ under HSA 1956, would take it in his independent capacity as his sole property with no right of his male descendants in it. The only situation where classical Hindu law in this respect would be applicable would be where the first inheritance had taken place before 1956, as was discussed in the case of Arshnoor Singh vs. Harpal Kaur (2019), wherein the first inheritance had opened prior to the commencement of HSA 1956. It was held that where the succession opens prior to June 17, 1956, which is the commencement date of the HSA 1956, the parties would be inheriting as per the traditional Hindu law and any property that a son inherits on the death of his father would be a coparcenary property with reference to the male descendants up to 3 degrees below him, and they would have a birthright in that property. So the only question to be asked is, ‘when did the succession open?’ 

Further, in the case of C.N. Arunachalam vs. C.A. Mudaliar (1953), the question was if the separate property of the father is received by the son by testamentary succession, that is, by a will, what would be the status of that property for the branch of that son. The Supreme Court held that, as a general rule, any property that a person receives by will is his separate property unless an intention appears from the language of the testament, intending it to be treated as ancestral property in the hands of the son. Thus, the separate property is passed on by the father not to his son but to some other individual. In such a situation, it could not be treated as a coparcenary property for that person’s branch. Applying the same logic to the case of intestate succession, we cannot say that if the son receives property from his father via succession, it would be a coparcenary property for his branch. However,  if any other person, for example, the widow or the daughter, inherits the same property, it would be their separate property. There has been no provision that creates grounds for such an interpretation.

Analysis of the case 

The Apex Court, in the case at hand, clarified the position of the law of succession and the nature of the property that is received in succession as per Section 8, read with Schedule 1 of the HSA 1956. The separate property of the intestate (including his share in the coparcenary property), which any heir, including the son, inherits on his death after the commencement of the HSA 1956, would be taken in their individual capacity, bereft of any birthright of the branch of the son. This position is further manifested by the provision of Section 19, which declares that the property inherited under the Act by the heirs would be per-capita and not per-stripe. Further,, all the heirs who simultaneously succeed to the property of the deceased would hold the property as ‘tenants in common’ and not as ‘joint tenants’. Thus, any inheritance of property under HSA 1956 would be as a separate property only.

Conclusion 

If a person dies after the commencement of the HSA 1956 and there is no Hindu joint family in existence at the time of the demise of such person, the succession of the estate of the deceased to his successors indubitably is the inheritance of coparcenary property. However, with reference to the successor, it will be considered his separate property, and his branch would have no right to such property. A HUF can exist if the ancestral property was inherited prior to HSA 1956, and such status has continued even after the commencement of the Act.

Frequently Asked Questions (FAQs)

What is the doctrine of Escheat?

The doctrine of escheat finds a place under Section 29 of HSA 1956. Where an intestate leaves behind no heir either under class 1, class 2, agnates or cognates and a situation of failure of heirs arises, the property would devolve upon the government, subject to all the obligations and liabilities to which an heir would have been liable. A very heavy burden is cast upon the government to prove that there has been a failure of heirs.

References

• Hindu Law Principles & Precedents, 8th Edn. 1987
• Mulla on Hindu Law, 22nd edition