SHEELA DEVI AND ORS. versus LAL CHAND AND ANR.

Citation: [2006] SUPP. 6 S.C.R. 874 · Decided: 29-09-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

A 
SHEELA DEVI AND ORS. 
v. 
LAL CHAND AND ANR. 
SEPTEMBER 29, 2006 
B 
[S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
Hindu Law: 
C 
Hindu Succession Act, 1956; Ss. 6 and 8: 
Intestate succession-Property in dispute owned by a person belonging 
to Mitakshara coparcenary-The owner died after 1956 Act came into force 
leaving behind two sons and three daughters-In terms of Revenue records, 
each child was entitled to I/5th share in the property-Challenged by the 
D sons-Decreed by trial Court-Appeal against dismissed by first appellate 
Court-Second appeal dismissed by the High Court-On appeal, Held: In 
terms of Section 6 of the Act, if a person died leaving behind surviving female 
members specified in Class I of the Schedule his interest in Mitakshra 
Coparcenary property shall devolve upon heirs by intestate succession and 
not by survivorship-So long as the property remains in the hands of a single 
E person, the property could be disposed of by him-But once a son is born, 
he would acquire interest in the co-parcenary property-Since the succession 
in the present case having opened in I989 after the death of the owner/father 
of the parties in dispute, provision of Amendment Act, 2005 not attracted-
Section 6 of the Act governs the law relating to succession on the death of 
F a coparcener in the event the heirs are only male descendants but proviso 
to Section 6(I) creates an exception to the general rules-Though first son 
was a co-parcener but no evidence furnished by them to show that second 
son of the deceased was also born prior to coming into force of the 1956 
Act-Hence, it was the half share in the property of the deceased which 
would devolve upon all his heirs in terms of the provisions of the Act-Decree 
G modified accordingly. 
H 
One 'B', owner of the property in dispute, died in the year 1989 leaving 
behind two sons (Plaintiffs-Respondents) and three daughters (Appellants). 
One of his sons was born in the year t 938 whereas other son was born in the 
874 
.. 
SHEELADEVI~LALCHAND 
875 
year 1956. The names of the parties were shown in the revenue records having A 
I/5th share each in the property, which was challenged by plaintiffs-
respondents, sons of 'B'. The trial Court decreed the suit holding that 'B' 
and his sons constituted a joint Hindu family and I/5th share in the property 
· was their sepa•te property and 4/5th share was ancestral property of 'B' 
qua plaintiffs. The decree was affirmed by the appellate Court. Appeal tiled by B 
appellants/daughters of'B' was dismissed by the High Court holding that the 
nature of the property must be recorded as Hindu Coparcenary and ancestral 
property; it was stated that the law applicable before the Act came into force 
would govern the rights of the parties. Hence the present appeal. 
Appellants-daughters of the deceased 'B' contended that the High Court C 
committed a manifest error in arriving at the findings, in total disregard of 
the provisions of the Hindu Succession Act, 1956; that keeping in view the 
fact that the succession opened only in the year 1989 when 'B' died, the 
question of applying the law as was obtaining prior to coming into force of 
the Act did not arise; and that the provisions contained in Section 8 of the 
Act are clear and explicit and in that view of the matter the succession of the D 
parties would be governed in terms of the Schedule appended thereto. 
Respondents submitted that having regard to the provisions contained 
in Section 6 of the Act, the concept of Mitakshara coparcenary having been 
saved, the parties would be governed thereby. 
• Partly allowing the appeal, the Court 
E 
HELD:l.1. Section 6 of the Hindu Succession Act would clearly show 
that where the deceased had left him surviving a female relative specified in 
class I of the Schedule, his interest in the Mitakshara coparcenary property F 
shall devolve by intestate succession and not by survivorship. (879-G-HJ 
1.2. The principle of law applicable in this case is that so long a property. 
remains in the hands of a single person, the same was to be treated as his 
separate property and thus, he would be entitled to disposeoft~e eoparcenary . 
property as the same were his separate property, but, if a son is subsequently G 
born to him or adopted by him, the alienation whether it is by way of sale, 
mortgage or gift, will nevertheless stand, for a son cannot object to alienations 
so made by his father before he was born or begotten. (880-B-CJ 
C. Kris

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