UTTAM versus SAUBHAG SINGH & ORS.

Citation: [2016] 2 S.C.R. 100 · Decided: 02-03-2016 · Supreme Court of India · Bench: KURIAN JOSEPH

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Judgment (excerpt)

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[2016] 2 S.C.R. 100 
UTT AM 
v 
SAUBHAG SINGH & ORS. 
(Civil Appeal No. 2360of2016) 
MARCH 02, 2016 
[KURIAN JOSEPH AND R. F. NARIMAN, JJ.) 
Hindu Succession Act, 1956: 
s.6 (as a111ended) -Applicability of - Suit for partition de< ,,ed 
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in 2000 - A111end111ent to s. 6 111ade in 2005 would not govern the 
rights of the parties in view of proviso (i) to s.6'of the amended 
provision. 
s.8 - Suit for partition by plaintiff-appellant against his father 
and paternal uncles on the ground that suit property was ancestral 
D property and that being a coparcener, he had a right by birth in the 
said property in accordance with the Mitakshara Law - Claim. of 
defendants that suit property was not ancestral property and that 
an earlier partition had taken place by which the plaintiff's father 
had become separate - Held: On the death of the grandfather of 
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the plaintiff in 1973, the proviso to s.6 wo11/d apply inasm11ch as 
the grandfather of the plaintiff had left behind his widow, who was 
a Class I female heir - Equally, upon the application of explanation 
1 to the said Section, a partition must be said to have been effected 
by operation of law immediately before his death - This being the 
case, the plaintiff would be entitled to a share 011 this partition taking 
place in 197 3 - Ho11•eve1: plai111!ff was born only subsequent to the 
death of the grandfather and therefore no such share could be 
allotted to him - On the death of the grandfather in 197 3, the joint 
fa111i/y property which was ancestral property in the hands of the 
grandfather and the other coparceners, devolved by succession 11/ 
s.8 of the Act and the ancestral property ceased to be joint fa111i/y 
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property and the other coparceners and his widow held the property 
as tenants in co111111on and not as joint tenants ·- This being the 
case, on the birth of the plaintW' in 1977 the said ancestral property, 
not being joint family property would render the suit for partition 
not maintainable. 
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UTTAM v. SAUBHAG SINGH 
101 
law applicable to joint family property governed by the 
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Mitakshara School prior to the amendment of 2005 - Discussed 
Dismissing the appeal, the Court 
HELD: 1. It is common ground between the parties that 
since the present suit was filed only in 1998 and the decree in 
the said ·suit was passed on 20.12.2000, that the amendment to 
Section 6, made in 2005, would not govern the rights of the parties 
in the present case. This becomes clear from a reading of the 
proviso (i) to Section 6 of the amended provision. A partition 
having been effected by a court decree of 20.12.2000, which is 
prior to 9'" September, 2005, (which is the date of commencement 
of the Amending Act), would not be affected. [Para 8] [107-B-C, 
E-F] 
2. The law applicable to joint family property prior to the 
amendment of 2005 is (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 
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SUPREME COURT REPORTS 
(2016] 2 S.C.R. 
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proviso, such property would devolve only by i

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