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31.Section 6 of the Hindu Succession Act, 1956 provided for devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of the Act having interest in the Mitakshara coparcenary property, his interest shall be devolved by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

32.Section 6 unamended read as under:

6. 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 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS surviving members of the coparcenary and not in accordance with this Act: Devolution ol interest In coparcenary property 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.

33.Section 6 (unamended) thus, dealt with devolution of interest in coparcenary property and it makes it clear that when a male Hindu dies after the commencement of the 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 the Act. The proviso indicates 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 Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. From the proviso of the unamended PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS section itself it is evident that if the coparcerner is survived by a female heir, the inheritance then also would be by succession and not survivor ship. This implies that even before Amendment, 2005 the rights of female heirs were protected and they were not ousted and had a defined share by way of succession.

42.The Madhya Pradesh High Court had occasion to consider this aspect in Shrivallabhdas Modani vs. Commissioner of Income-Tax, M.P.-I, 138 I.T.R. 673 , and the Court held that Section 8 of the Hindu Succession Act, 1956 laid down the scheme of succession to the property of a Hindu dying intestate. The schedule classified the heirs on whom such property should devolve. The right of a son's son in his grandfather's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect". The Court observed that in construing a Codification Act, the law which was in a force earlier should be ignored and the construction should be confined to the language used in the new Act. Section 8 should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons.

PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS

43.The Andhra Pradesh High Court in the case of Commissioner of Wealth-Tax, A.P.-II vs. Mukundgirji, 144 I.T.R. 18 , had also held that a perusal of the Hindu Succession Act, 1956 would disclose that Parliament wanted to make a clean break from the old Hindu law in certain respects consistent with modern and egalitarian concepts. For the sake of removal of any doubts section 4(1) (a) was inserted. Therefore, it would not be consistent with the spirit and object of the enactment to strain provisions of the Act to accord with the prior notions and concepts of Hindu law. That such a course was not possible was made clear by the inclusion of females in Class-I of the Schedule, and to hold that the property which devolved upon a Hindu under section 8 of the Act would be HUF property in his hands vis-a-vis his own sons would amount to creating two classes among the heirs mentioned in Class-I, viz., the male heirs in whose hands it would be joint family property vis-a-vis their sons; and female heirs with respect to whom no such concept could be applied or contemplated. The intention to depart from the pre-existing Hindu law was again made clear by Section 19 of the Hindu Succession Act which stated that two or more heirs succeed together to the property of an intestate, they should take the property as tenants-in-common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father's property took a joint tenants and not tenants-in-common. Accordingly, the property which PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS devolved upon heirs mentioned in Class-I of the Schedule under Section 8 constituted the absolute properties and his sons have no right by birth in such properties.