This article, written by Arnisha Das, discusses the partition of a joint family property under Hindu law, specifically before the advent of Hindu law of succession in 1956. It details the inheritance of property in case it is intestated by the original owner to pacify the needs of lawful successive owners of family property in enjoying the rights.
Table of Contents
Introduction
Hindu law of succession has been revolutionised through various modifications of old texts and juridical authorities. In Mitakshara School of Law, inheritance is acquired as a birthright, whereas in Dayabhaga School of Law, inheritance is acquired by the death of the predecessor in coparcenary rights. Succession, hence, is governed primarily either through the birth of a son in a joint Hindu family or the death of a prior ancestor to whom the rights of the original owner were devolved. However, in extended ties of families, there are often critical aspects with regards to dividing property between coparceners equally.
In the case of Moro Vishvanath vs. Ganesh Vithal (1873) 57 Bom. H.C. 444, the Hon’ble bench of the Bombay High Court shed a light on the ambivalence of distributing property among the successive heirs beyond four degrees from the original owner or last known acquirer of the property to smoothly accomplish the division of ancestral family assets.
Details of the Case
- Name of the Case: Moro Vishwanath vs. Ganesh Vithal
- Equivalent Citation: (1873) 57 Bom. H.C. 444
- Appellants: Moro Vishwanath & Others
- Respondents: Ganesh Vithal & Others
- Court: Bombay High Court
- Bench: West J, Nanabhai Haridas, J
- Date of judgement: 29th October 1873
Facts of the case
It was a regular appeal from Suit No. 905 to 1866 in the bench of the First Class Subordinate Judge, Chintaman S. Chitnis of Ratnagirh Court. The plaintiffs and the defendants were the successors of the property owned by Uddhav. Plaintiffs were beyond the fourth degree ancestry, while the defendants were within the fourth degree ancestry of the property of Uddhav. The main contention between the parties was whether the plaintiffs should be entitled to acquire the property of the Joint Hindu Family, being of fifth-degree ancestry from the original acquirer. The defendants here argued that they were legally barred from acquiring the property for reasons such as improper valuation of the property and statutory limitations, and the plaintiffs were apart from the family for apparently fifty years.
The First Class Subordinate Judge, Chintaman S. Chitnis of Ratnagirh, gave its decision in favour of the plaintiff pronouncing their rights over the ancestral property. Now, the decision was challenged by the defendants and brought to the civil appellate jurisdiction of the Bombay High Court. Following the original plaintiff’s death, the plaintiff’s two sons were represented as the respondents in the appeal.
Issues
The main issues identified by the judges of the Bombay High Court in this appeal were as below:
- Whether the plaintiffs have the right to demand a partition of the ancestral property as the members of a joint Hindu family?
- Whether the claim is barred by the law of limitation?
- What share, if any, are the plaintiffs entitled to if they are the members of an undivided family?
Arguments by parties
Appellant
The appellants, on behalf of counsel Rav Sahab Vishvanath Narayan Mandlik, submitted that:
- The descendants are beyond three steps of succession after the original or common ancestor, according to Viramitordaya in the passage of Devala. The special Sapinda relationship clarifies the right to claim for partition ceases beyond the great grandson from the true owner of the property.
- The appellants asserted that the plaintiff’s claim is barred by the law of limitation (which is usually 12 years from the date of right to sue accrued) as the plaintiffs were living separately from the defendants for a long time.
- Among the defendants, three admitted to the partition and were not contrary to the rights of the respondents at all. In fact, the defendants who opposed clarified that one of the defendants conspired with the plaintiff to initiate the suit against the defendants.
Respondent
The counsel for the respondents, Dhirajlal Mathuradas, argued that
- The plaintiffs fell in the fifth and sixth generations of the original ancestor of the Hindu undivided family; thus, they were entitled to claim for partition as per Mitakshara law from their father.
- The decree held on 4th September, 1972, by the Subordinate Judge of Ratnagirh, on remand from the High Court, was precise to bring about that the partition was not legally barred by any law, thus the plaintiffs were rightful owners of the part of their claim for partition.
- Moreover, both the divided and reunited and undivided families are deemed as coparceners in the ‘Comments of Devala’. Thus, the plaintiffs were living as a joint family after partition, which could be ruled out in the given circumstance.
Concepts involved in Moro Vishvanath vs. Ganesh Vithal (1873)
Mitakshara school of Hindu law
Mitakshara School of Hindu Law is the form of Hindu inheritance law that is founded on the principle of the right to inheritable property that appears just after birth. The son is entitled to partition or be the co-owner even without the father’s will. In this school, the father cannot absolutely devolute the right over ancestral property and cannot alienate the property on his own. The law is predominantly practised in the whole part of India except West Bengal and Assam.
Apart from that, Mitakshara School has five sub-schools under it, viz., Banaras School, Mithila School, Maharashtra School, Andhra School, and Dravida School based on the region. Usually, other than Mithila School, daughter’s rights in coparcenary property are not common here.
Dayabhaga school of Hindu law
The Dayabhaga school of Hindu law is another form of law that addresses the difficulty of cognates in getting inherited property from the original owner of the family. It disregards birthright and recognises the legacy only after the death of the previous owner. In this school of law, the son cannot inherit or sue for partition without the consent of his father. The father can have the absolute right to alienate the property. This kind of law is mainly in operation in West Bengal and Assam.
This school is further divided as: Bengal School, Mayukha School, Vyavahara Matrika, Dattaka Mimansa, and Nirnaya Sindhu School, based on commentaries and smritis. Daughter’s right to property is considered equal to that of the male of the family in this school of law.
Karta
Karta is known as the head of the family, who is the original owner of the ancestral property. A karta can decide the rights of the family members in the family property and the value of the property. He is entitled to represent any suit or legal challenge with regards to the familial property. After the 2005 amendment of the Hindu Succession Act, 1956, a woman of a family can be a Karta too.
Sapinda Relationship
Section 3(f) of the Hindu Marriage Act, 1955, prohibits the marriage of two Sapindas. A Sapinda relationship is a relationship between two members of a family who are linked by the same person or ancestor. According to Oblation (Jimutavahana) theory, if two persons are related in a way where one can offer pinda (food offering) to the other after death, they are said to be in a Sapinda relationship. In Vijaneswara theory, when individuals are connected by the same body particle or blood relation, they are Sapindas to each other. A Sapinda relationship stops after fifth in the mother’s line and after seventh in the father’s line.
Clause 13, Section 1 of the Limitation Act, 1859
The Limitation Act, 1859, for partition suits is usually fixed at 12 years from the date when the claim for the property first accrues. In this case, the contention was that the plaintiffs were far beyond the limitation of filing suit for partition, which was later ruled out by the High Court.
Judgement in Moro Vishvanath vs. Ganesh Vithal (1873)
The bench consisting of justices West J. and Nanabhai Haridas adjudged that the plaintiffs were only able to acquire the ancestral property when they were more than four degrees removed from the last owner of the property, regardless of how many degrees the owner was separate from the original acquirer of the property.
The enigmatic texts of Hindu dharma state that the coparceners of a joint Hindu family should not extend greater than the fourth degree or nearer descendants from the original owner of a property. In Sapinda relationships, individuals are connected through the sharing of food offerings (pinda). Thus, in Jimutavahana, the husband or Karta of the family gets the pindas from brothers, sons, or the same folks. Thereby, the right to ownership is granted to the linear possessors of the pedigree according to the Sapinda connection. Here the rights are stopped in the fifth generation through the mother and the seventh generation through the father, inclusively.
In the first issue, interpreting the ‘Comments in Devala’ as represented by the appellant’s counsel, the Court found that Devala urged that inheritance by law applied to undivided as well as divided and reunited families as opposed to Nilkantha, who regarded the word ‘Avibhahtavibhatamas’ as those being undivided after being divided instead of merely divided or undivided families. Thus, it did not support the argument of the appellants.
Secondly, acknowledging that the joint family property, which was divided and then undivided as currently held by both the appellants and respondents, could not be barred by the law of limitation (specifically Clause 13, Section 1, Limitation Law (Act XIV of 1859). Citing the case of Sakho Narayan vs. Narayan Bhikhaji, the Court decided that the descendants were still considered members of the undivided family. On the other hand, under the specific conditions for a divided family where the plaintiffs and defendants are no longer part of the undivided family, the suit could not proceed.
In essence, the Court pointed out that the law of limitation was unnecessary as the family was not divided, making the question of limitation immaterial.
With respect to the valuation of the family property, the Court provided the following illustrations:
- In a family estate, A is the original acquirer. If A died, his sons, grandsons, and great-grandsons, and any such defendants below the fourth, would be the proprietors of the undivided family estate. However, A dies, leaving B (son), E (grandson), G (great-grandson), and J (great-great-grandson), with intermediate persons having predeceased A. J, the fifth descendant of the property from A, could not demand a partition according to vested rights in the prevailing laws.
Hence, in this case, the demand of partition is limited to those who have direct or immediate interest in the ancestral property.
- A (original ancestor)
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- B, C, D (sons)
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- E, F, H (grandson)
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- G, I (great-grandsons)
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- J (great-great-grandson)
- If A, the original common ancestor, dies, leaving B, a son, and C, a grandson; thereafter, B dies, leaving C and D, the great grandson of A; after that, C dies, leaving D and two great-great-grandsons of A, E & F. E & F can be equally interested in the share of the property from their father, D. Now, suppose B & C die, leaving A & D as the owners, and A dies subsequently, then D would be the sole owner of the undivided family. So, E & D are entitled to sue D for partition of the ancestral property.
- Also, suppose three members are left, respectively, A, D, and D1, after the deaths of B and C in the family; thereafter, A dies, and the property is automatically delegated to D and D1. If D dies, leaving two sons E & F, they can sue D1 for partition as well as F & G (son of F) if E dies without any suit.
- A (Common Ancestor)
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- B (Son)
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- C (grandson)
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- D, D1 (great-grandsons)
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- E, F (great-great-grandsons)
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- G (son of F)
Thus, partition can also take place in a retrospective manner.
The court, hence, came to the conclusion that, considering all the facts and evidence presented before it, it was clear that partition in a Hindu undivided (or divided and reunited) family can be made more than four degrees, not from the original ancestor but from the last known owner of the property. It was irrespective of the fact that the last known owner is remotely connected to the original ancestor.
Analysis of the case
The case centred around whether a descendant beyond the fourth generation from the original owner could claim partition of ancestral property under the Mitakshara school of Hindu law. The Bombay High Court ruled that the right to partition extends to the descendants within four degrees from the last owner of the property and not the original acquirer. The Court further interpreted the concept of coparceners within a Joint Hindu Family (HUF) to be limited to four generations from the last owner who held the property. The approach aimed to balance the rights of descendants with the need for clarity in ownership over time. In the recent judgement of Vineeta Sharma vs. Rakesh Sharma (2020), the apex court held that a daughter or a woman would be equally entitled to inherit a father’s ancestral property. Overall, the present case served as a guiding light to provide clarity and predictability amongst the descendants of a Hindu Joint Family so that the coparceners of an extended family get the ownership lineages over an extended period of time.
Conclusion
In conclusion, partition of property is a complex task to deal with in the case of extended family property. The above-mentioned case poses as the landmark case that provided some clarifications in the happening of disputes in executing a decree of partition. Whenever a party claims a part in the ancestral property, he must consider the criteria as to the fourth degree of ancestry as well as lineal relation from the last owner of the ancestral property to avoid any disadvantage. He must consider whether the claim is within the specified value added to the property or whether the share must be equitable for distribution. The judgement set a balance between honouring the concept of ancestral property and rational management of assets. In conclusion, it provides a clear understanding of generational limits of property after a specific point of time to establish common benefits amongst the successors.
FAQs
What are the criteria for evaluating partition in an ancestral property?
A partition of an ancestral property depends on a varied degree of criteria for correct evaluation. One must remember the share must be devoluted from the rightful ancestor, who gives the power to a descendant to have the ultimate share of a property.
Can a sixth-degree member of a HUF claim for partition of the property?
The question of whether a sixth-degree HUF can claim for property partition depends on the fact that he is in line of ancestry from the last owner of the joint family property.
Can a daughter be a coparcener beyond the fourth degree of a family line?
Yes, a daughter can be a coparcener beyond the fourth degree of a family property according to Section 6 of the Hindu Succession (Amendment) Act, 2005. The amendment grants daughters the same rights as sons in coparcenary property. The Supreme Court in Vineeta Sharma vs. Rakesh Sharma (2020) ruled that daughters have coparcenary rights by birth and these rights are not dependent on the father’s status at the time of the amendment.
References
- https://www.scribd.com/presentation/329728892/Family-Law-Case-Presentation
- https://lawfaculty.du.ac.in/userfiles/downloads/LLBCM/IInd%20Term_Family%20Law-%20II_LB202_2022%20.pdf
- https://districts.ecourts.gov.in/sites/default/files/sucession.pdf
