Document Fragment View
Matching Fragments
6. For better appreciation, it is worthwhile to quote Sections 6 and 8 of the Hindu Succession Act, before and after amendment in 2005. As far as Section 8 of the Hindu Succession Act, 1956 is concerned, there is no amendment in the Act 2005. Section 8 reads as follows:
"Section 8. General rules of succession in the case of males---The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule.
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:-
Provided 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 Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, --
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
13. Learned counsel for the appellant/plaintiff also relied on a decision of this Court reported in AIR 2009 Madras 86 = 2009 (2) CTC 130 (M.Revathi Vs. R.Alamelu), wherein this Court has considered the point as to whether pursuant to the amendment of the Hindu Succession Act in 2005, the Courts are right in directing the family heir to file fresh suit invoking the amendment Act and in that decision, this Court has considered that hyper-technicalities shall not stand in the way of a family heir getting the relief in seeking a partition and that Section 23 of the Amendment Act would not be a bar for a family heir to seek a partition. There is no quarrel over the said proposition of law laid down by this Court. In the case on hand, there is no joint family property available for the appellant/plaintiff to seek for partition, more particularly, after the amendment Act 2005 has come into force. The first defendant was alive and he acquired the properties as separate properties by means of partition and it has devolved upon the defendants during his lifetime. When a property has devolved upon the other heirs even prior to the demise of the first defendant, more particularly the separate property, the appellant/plaintiff has no right to seek for partition in the separate properties of the first defendant (since deceased), which has already devolved upon the other two defendants.