The very important aspects of Hindu Law relating to their Personal Law is still uncodified, the most important being the concept of Joint Family, Hindu Undivided Family (“HUF”), the HUF Property, the customs prevailing amongst various sects of Hindus, etc. are yet to be codified.
Mulla’s Hindu Law Digest states that a Joint Hindu family under the ‘Dayabhaga’ is like a ‘Mitakshara’ family, normally joint in food, worship and estate. In both systems, the property of Joint Family may consist of ancestral property, joint acquisitions and of self-acquisitions thrown into the common stock. A Hindu coparcenary is a much narrower body than the joint family. Coparcenary Property is the property which is inherited through three degree i.e. sons, grandsons, great grandsons. In other words, it includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons, great grandsons of the holder of the joint property for the time being. Since, under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage cannot be coparceners.
Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But, it is there from the ancient times perhaps, as a social necessity. A Hindu joint family consists of male members descend lineally from a common male ancestor together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution.
The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees.
A distinction must be drawn between two classes of cases in respect of ancestral property held by a person (1) where property not originally joint is received by the person and the question has to be asked whether it has acquired the character of a joint family property in the hands of the person and (2) where the property already impresses with the character of joint family property comes into the hand of the person as a single coparcener and the question required to be considered is whether it has retained the character of the joint family property in the hands of the person or is converted into absolute property of the person.
The aforesaid was taken into consideration by Hon’ble R.D. Dhanuka J, in an Order dated 5th February, 2020 which was pronounced on 25th February, 2020 in the First Appeal No.1773 of 2019 along with Interim Application No. 1 of 2019 filed before the Hon’ble High Court of Bombay.
Facts of the Case
- The Appellants (original defendants) impugned the judgment and order passed by the Trial Court thereby decreeing the Suit partly which was filed for seeking partition and permanent injunction in respect of some properties. The Appellants were the original defendants whereas the Respondents were the original plaintiffs before the Trial Court. The Appellants (original defendants) are the uncles of the Respondents (original plaintiffs).
- The Suit properties as was admitted by the Appellants and Respondents were the self acquired properties of the grandfather of the Respondents and purchased in the name of the wife of the grandfather. It was the case of the Respondents (original plaintiffs) that the grandfather had 4 (four) sons and 4 (four) daughters and that each of them had 1/8th share therein. The 4 (four) daughters being the sisters relinquished, released, surrendered and transferred their undivided share in the suit property by a registered release deed in favour of the 4 (four) sons being their brothers. Thus, they had no right, title and interest of any nature whatsoever in the suit property.
- The grandfather died intestate and his wife predeceased him. The Respondents filed for a partition, separate possession of their 1/4th share in the suit property and permanent injunction and mesne profit before the Trial Court. It was contended by the Appellants that the sisters had relinquished their right, title and interest in the suit property in favour of the Appellants and thus the Respondents were not entitled to 1/4th share in the suit property.
- Trial Court framed six (6) issues for determination and after hearing both the parties the learned trial Judge declared that the Appellants and Respondents were having 1/4th share each in units/apartments reserved for their joint family. It was further held that the Respondents are entitled for partition, separate possession of their 1/4th share in the suit property. The Trial Court also restrained the Appellants from permanently creating third party interest to the extent of 1/4th share of the Respondents in the suit property. Being aggrieved by the said judgment and decree, the Appellants filed the First Appeal.
- It was submitted by the learned counsel of the Appellant that both the parties had agreed before the learned trial Judge that the suit property was not the ancestral property of the Appellants and Respondents. The entire judgment and decree holding that the Respondents would be entitled to 1/4th share is ex facie perverse. It was also submitted that since the suit property was not the ancestral property, the learned trial Judge has erroneously proceeded on the premise that the suit property which was subject matter of Release Deed was coparcenary property. The Release Deed executed by the 4 (four) daughters were not in favour of the joint family but was exclusively in favour of the Appellants and that the other family members thus would not be entitled to the benefit of the Release Deed made in favour of the Appellants and the Appellants became entitled to 7/8th share in the suit property.
- It was also submitted that a Hindu coparcenary is a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. Male members of joint family of sons, grandsons and great grandsons constitute a coparcener who acquire the right in coparcenary property by birth but his rights can be definitely ascertained only when a partition takes place.
- Strong reliance was placed on the judgment of the Supreme Court in the case of Mangammal Thulasi and another v/s. T.B. Raju and Others and submitted that any property inherited upto 4 (four) generations of male lineage from father, father’s father or father’s father’s father etc. is termed as ancestral property. The entire property is held upto 4 (four) generations of male members constitutes a coparcenary property. None of these conditions were satisfied by the Respondents to constitute the suit property as coparcenary property.
- The learned counsel for the Respondents did not dispute that the suit property was self-acquired property of the grandfather and also did not dispute the Release Deed executed by the 4 (four) daughters relinquishing their 1/4th share each in favour of the Appellants.
- The impugned order and judgment passed by the Trial Court holding the plaintiffs and defendants as having 1/4th share in suit property and that the plaintiffs were entitled for partition, separate possession of their 1/4th share was set aside. The impugned judgment and decree granting permanent injunction against the Appellants from creating third party interest to the extent of 1/4th share was also set aside.
- It was declared that the Plaintiffs would be entitled to 1/8th share jointly in the suit property and will be entitled for partition, separate possession in respect of such undivided 1/8th share and also permanent injunction against the Appellants from creating third party interest to the extent of 1/8th share. It was declared that the Defendants would be entitled to 7/8th share in suit property and for partition in respect of their 7/8th share.
- As per the views of Hon’ble R.D. Dhanuka J, since the suit property was not inherited by the four generations of male lineage from father, father’s father or father’s father’s father etc. the property otherwise could not have been termed as ancestral property. Supreme Court in case of Arshnoor Singh has quoted a passage from Mulla Hindu Law Commentary stating the position with respect to succession under Mitakshara and has held that after the Hindu Succession Act, 1956 came into force, if a person inherits a self-acquired property from his paternal ancestral, the said property becomes self-acquired property and does not remain coparcenary property.
- It was further stated that Hon’ble High Court of Bombay in the case of Kishore Tulshiram Mantrim held that if the properties are self-acquired and not ancestral coparcenary properties, would acquire on the death of such person in self-acquired property, they will devolve equally on all his legal heirs and therefore, some of the legal heirs can definitely relinquish their share in favour of another legal heir and it should not be necessarily in favour of the whole body. Thus, the 4 (four) daughters were free to relinquish their undivided share in suit property in favour of the other legal heirs of the said deceased exclusively and that the learned trial Judge erroneously applied the principles applicable to relinquishment of undivided share by a coparcener in favour of the another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.
- Property inherited upto 4 generations of male lineage is an ancestral property.
- A Hindu coparcenary is narrower concept than joint family.
- If properties are self-acquired by deceased and not ancestral than the legal heirs can relinquish their share in favour of another specific legal heir and not in favour of the whole body.
- Shares relinquished in case of an ancestral property would endure to the benefit of the whole body of coparceners and not specific legal heirs as in the case of self acquired properties.
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