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Showing contexts for: coparcenary in M.Arumugam vs Ammaniammal And Ors. on 8 January, 2020Matching Fragments
Deepak Gupta, J.
1. One Moola Gounder along with his two sons Palanisamy (defendant no. 1) and Arumugam (defendant no. 2) formed a coparcenary which owned the suit property. Moola Gounder died intestate on 28.12.1971 leaving behind no Will. On his death, 1/3 of the property went to each son and remaining one third which was the share of Moola Gounder in the coparcenary was to be inherited by his wife (defendant no.5), two sons, (defendant nos. 1 and 2) and three daughters viz., the plaintiff and defendant nos. 3 and 4.
…” Section 4(b), Section 6, Section 19 and Section 30 of the Hindu Succession Act, 1956 (the Succession Act for short), as it stood at the relevant time read as follows: “4(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.” “6. Devolution of interest in coparcenary property. 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:
9. On the other hand, Mr. Jayanth Muth Raj, learned counsel for the appellant submits that when the death of Moola Gounder took place, a notional partition is deemed to have taken place immediately before his death wherein two surviving members of the coparcenary i.e., defendant nos. 1 and 2, got 1/3 share each in the property and the remaining 1/3 belonging to Moola Gounder was to be inherited in terms of Section 8 of the Succession Act.
10. When we read Section 6 of the Succession Act the opening portion indicates that on the death of a male Hindu, his interest in the coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. That would mean that only the brothers would get the property. However, the Proviso makes it clear that if the deceased leaves behind a female heir specified in ClassI of the Schedule, the interest of the deceased in the coparcenary property shall devolve either by testamentary or by intestate succession under the Succession Act and not by survivorship. The opening portion of Section 6, as it stood at the relevant time, clearly indicates that if male descendants were the only survivors then they would automatically have the rights or interest in the coparcenary property. Females had no right in the coparcenary property at that time. It was to protect the rights of the women that the proviso clearly stated that if there is a ClassI female heir, the interest of the deceased would devolve as per the provisions of the Act and not by survivorship. The first Explanation to Section 6 makes it absolutely clear that the interest of the Hindu coparcener shall be deemed to be his share in the property which would have been allotted to him if partition had taken place immediately before his death. In the present case, if partition had taken place immediately before the death of Moola Gounder then he and defendant nos. 1 and 2 would have been entitled to 1/3 share each in the property. Nothing would have gone to the female heirs as per the law as it stood at that time. However, since partition had not actually taken place, and there were ClassI female heirs, 1/3 share of Moola Gounder was to devolve on the ClassI legal heirs in accordance with Section 8 of the Succession Act.
14. Applying the principles laid down in the aforesaid cases, it is apparent that after the death of Moola Goundar, his interest in the coparcenary property would devolve as per the provisions of Section 8 since he left behind a number of female ClassI heirs.
15. 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 3 (2002) 10 SCC 342 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 coparcenary shall be deemed to be property capable of being disposed of by him within the meaning of Section 30. This means that the law makers intended that for all intents and purposes the interest of a male Hindu in Mitakshara coparcenary was to be virtually like his selfacquired property. Furthermore, when we conjointly read Section 30 with Section 19, which provides that when two or more heirs succeed together to the property of an intestate, 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.