Survivorship Vs Intestate Succession

The Hindu Succession Act, 1956 came into force on 17th June, 1956. The section 4 of the Hindu Succession Act, 1956 reads as follows:

         “4. Over-riding effect of Act. —

(1) Save as otherwise expressly provided in this Act, —

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(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.”

Thus, any text, rule or interpretation of Hindus law including customs and usage ceased to have effect if same is contrary to the Hindu Succession Act, 1956. Past case law including few cited below has been rendered ineffective if its interpretation is contrary to provision of the Hindu Succession Act, 1956. However, few of cases is cited below to give reader a flavor of classical cases:

In case of Girja Bai vs Sadashiv Dhundiraj, (1916) 18 BOMLR 621, the privy council held following:

“Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co- sharers.”

In case of Suraj Narain and another vs. Iqbal Narain and others, (1913) ILR 35 All 80, following was held:

“10. The principle applicable to cases of separation from the joint undivided family has been clearly enunciated by this Board in Rewun Persad v. Mussumat Radha Beebyi (1846) 4 M.I.A. 137 and the well-known case of Appovier v. Rama Subba Aiyani (1866) 11 M.I.A. 75. What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and. to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. In the present case that element appears to their Lordships to be wholly wanting. “

In case of Soundararajan vs. T.R.M.A.R.R.M. Arunachalam Chetty, (1916) ILR 39 Mad 159, cited various Hindu text for arriving at following decision:

“In the result, I would give the following answer to the reference, namely, that a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition and by the unequivocal declaration made in the plaint in that suit when such unequivocal declaration has been clearly expressed to the other coparcener or coparceners through the Court or otherwise. “

The section 6 of the Hindu Succession Act, 1956 provides for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants. The “Explanation Clause” to subsection 3 of section 6 provides following:

“Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

This explanation provides for legal fiction with regard to deemed partition immediately before the death of deceased coparcener. In case of Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum and Ors, 1978 SCR (3) 761, following was held by Supreme Court:

“Explanation 1 to section 6 resorts to   the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be “the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place  between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through     all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle.”

In State of Maharashtra vs Narayan Rao Sham Rao Deshmukh & Ors, 1985 SCR (3) 358, following was stated by the Supreme Court, while distinguishing it from Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum and Ors:

“A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. “

In Uttam vs Saubhag Singh & Ors, Civil Appeal No.2360 of 2016, the Supreme Court laid following guidelines with regard to to joint family property governed by the Mitakshara School, prior to the amendment of 2005 :        

“(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. 

(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. 

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. 

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

In G.Sekar vs Geetha & Ors, Civil Appeal No. 2535 of 2009, the Supreme Court emphasized following:

“20. We may in the aforementioned backdrop notice the relevant portion of the Statement of Objects and Reasons of the 2005 Act, which reads as under: 

“3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the same section so as to remove the disability on female heirs contained in that section.”

21. It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act. “

In case of Prakash & Ors. Vs Phulavati & Ors, Civil Appeal No.7217 Of 2013, the Supreme Court stated following with regard to birth of daughter for the purpose of the Hindu succession (Amendment) Act, 2005:

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.

Thus, above decision of the Supreme Court overruled, Vaishali Satish Ganorkar & Anr vs Mr. Satish Keshaorao Ganorkar & Anr, AIR 2012, BOM 101, where the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment.

Rajni Sinha,

Advocate Bombay High Court,



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