A critique of the Supreme Court’s judgment in Uttam v. Saubhag Singh & Ors.

Nikhil Rohatgi

In this article, the author respectfully disagrees with the judgment of their Lordships in Uttam v. Saubhag Singh & Ors. [AIR 2016 SC 1169] and attempts to critique the same insofar as it effectively holds that once there’s a notional partition upon the death of a coparcener, the coparcenary comes to an end and all the Joint Family property gets converted into separate property.

The Facts in Uttam’s Case

The Appellant/Plaintiff’s grandfather, Jagannath Singh, had died in 1973. His widow, Mainabai and 4 children (including the father of the Appellant) survived him. The Appellant had been born in 1977, after the death of his grandfather. The Appellant sought partition to isolate his 1/8^th share in the joint family property. The Appellant filed a suit against his father and three of his father’s brothers (Respondents).

 Supreme Court Judgment

The Supreme Court relied upon its own judgment in Gurupad Khandappa Magdum v. Hirabhai Khandappa Magdum [(1978) 3 SCC 383] (“Gurupad”) to rule that in cases of succession which are covered under the Proviso to Section 6 of the Hindu Succession Act, it is necessary to carry out a fictional partition just before the deceased’s death, to determine the deceased’s share in the joint family property.

Para 14 of the Uttam judgment also shows that if upon a partition, there are people who are only coparceners and not otherwise entitled to a share upon intestate succession (such as a Plaintiff, being a grandson of the deceased with the deceased’s son alive- if the Plantiff were alive at the death of his grandfather), then they will get only the share which they would upon notional partition just before the deceased’s death and not any portion of the deceased’s share.

The Court then relied upon its decisions in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors., Yudhishter v. Ashok Kumar, and Bhanwar Singh v. Puran to hold that when succession takes place under Section 8 of the Act, the entire joint family property loses its nature and the heirs succeed the deceased’s interests as tenants in common in accordance with Section 19 of the Act.

The Court summarized the legal position saying that a conjoint reading of Sections 4, 6, 8 and 19 shows that if succession takes place in accordance with Section 8, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they now hold the property as tenants in common and not as joint tenants as provided under Section 19.

The Supreme Court rejected the appeal holding that the Appellant cannot sue for partition. When his grandfather died in 1973, his share in the joint family property was divided between his sons as individual shares and no longer remained joint family property. Thus according to the Supreme Court’s interpretation, the Appellant’s father and uncles (sons of Jagannath) did not jointly own any family property that could be made subject to partition.

Analysis of Judgments referred and Critique of Uttam

I will now proceed to analyze the cases relied upon/referred to in Uttam, in order to argue that none of those lend support for the conclusion reached or reasoning employed in Uttam.

See the Gurupad judgment – There, Khandappa (“K”) died in 1960, leaving behind a widow, 2 sons and 3 daughters. In 1962, his widow filed a suit for partition claiming 7/24^th share, on the basis that upon notional partition just before K’s death, K, his widow and 2 sons each would have got a 1/4^th share and dividing K’s 1/4^th share between 6 family members (since Proviso to S.6 would apply as there were female heirs), each would get 1/24^th and therefore widow would get 1/4^th + 1/24^th = 7/24^th share.

It was held that there was no prior partition and that the property was HUF property and that the S.6 proviso, and therefore, S.8 would apply. The Supreme Court allowed the widow’s suit and gave her 7/24^th share.

The observations in Gurupad have been relied on in Uttam to mean that even upon a notional partition (in contradistinction to an actual partition), all the joint family property (in contradistinction to only the deceased’s share in the property) gets converted into separate property. However, Mulla on Hindu Law, 21^st Edition, 2010 at Page 1107 after referring to Para 13 of Gurupad has observes as follows:

“The above observations…The decision of the Supreme Court does not say that the fiction and notional partition must bring about total disruption of the joint family… It is submitted that notional partition need not result in total disruption of the joint family. Nor would it result in the cessation of coparcenary.”

Thereafter, on Page 1108, it is further stated as follows:

“In State of Maharashtra vs Narayan Rao AIR 1985 SC 1234, the Supreme Court carefully considered the above decision in Gurupad’s case and pointed out that Gurupad’s case ‘has been treated as authority (only) for the position that when a female member who inherits an interest in the joint family property under s 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation I to s 6 of the Act.”

Therefore, even as per Mulla and as held in Narayan Rao, the decision in Uttam would be open to criticism, as Uttam carries the legal fiction of notional partition beyond its logical end viz. to simply calculate the distribution of the share of the deceased person and not to bring an end to the coparcenary.

In its landmark judgment in CWT v. Chander Sen (1986) 3 SCC 567 (relied upon in Uttam), the Supreme Court held that after coming into force of the Hindu Succession Act, the legal position was that when a son inherits property under Section 8 (i.e. intestate succession of his father’s self-acquired property), he takes it as his individual property and not as Karta of his own HUF.

In Chander Sen, there was a partition of the business carried on by Chander and his father, Rangi Lal. The father and son carried on the business even after the partition and the father died, leaving Rs. 1,85,043/- in his account. It was this amount that was the bone of contention as Chander’s own HUF  in its wealth tax return claimed it was his individual property and not that of his HUF. It is clear from a reading of inter alia, para 2 of the judgment that the said amount of Rs. 1,85,043/- was treated as individual property of Rangi Lal and therefore it was ultimately held by the Supreme Court that this amount devolved upon Chander in his individual capacity as per Section 8.

It is submitted therefore, that Chander Sen has been wrongly relied on in Uttam to support the proposition that even ancestral property will devolve upon the son in his individual capacity.

In Bhanwar Singh v Puran (also cited in Uttam), one Bhima died in 1972, leaving behind a Son, S and 3 daughters (no widow). In 1977 S’s son, SS was born and in 1985 SS filed a suit for partition. Its crucial to note that in Para 3 and 24 of the judgment, its recorded that partition had already happened between S and his sisters in 1973 and the revenue records reflect the same. From a reading of Para 14, it is obvious that this is the reason that the Supreme Court said in Para 15 that S.6 will not be applicable and S.8 will only apply. Therefore, the property ceased to be joint family property, and the suit was dismissed.

The alternative holding by the appellate court, upheld by the Supreme Court, that even if S.6 applied, then u/S.8 the property would cease to be joint property, is therefore obiter and incorrect. Para 16 and 17 of this judgment make it clear that CWT v. Chander Sen is only an authority for the proposition that when a son inherits his father’s self-acquired property, he does not take it as his joint family property but as his separate property.

Yudhishter v. Ashok Kumar (1987) 1 SCC 204 is also cited in para 16 of Uttam, on the basis that it follows the law laid down in Chander Sen. In Yudhishter, the Respondent before the Supreme Court was the landlord, who had filed a petition for eviction against the Appellant/tenant on the ground of bona fide requirement, amongst other grounds. The Rent Controller rejected the petition on the ground that the Respondent had not been able to prove bona fide requirement. The Appellate authority held that the Respondent and his joint family were living in the house that belonged to the grandfather of the Respondent and therefore, since the respondent was living there as a licensee of the father, he was not a co-owner and therefore, it could not be said that the Respondent was “occupying another residential house” in terms of Section 13(3)(a)(1) of the Rent Control Act.

It is important to note therefore, that in Yudhishter, on facts the property in question was found to be self-acquired and not ancestral property and therefore Section 8 was applied and not section 6 of the HSA.  The Court further states that even if the chamber/big room is considered as available, it is inadequate for the landlord and therefore to decide this question is unnecessary .

If one only reads the judgment in Bhanwar, without reading Yudhishter, then at first blush, Yudhister, discussed in para 19 of Bhanwar, seems to be contrary to Chander Sen, as in the first half of para 10 of Yudishter, it says “whether separated or not”- while Chander Sen says separated property is taken as such and not as joint. However, only a part of the relevant para 10 of Yudhister is quoted in Para 19 of Bhanwar, which makes it misleading. The remaining relevant part of para 10 of Yudhister, after what has been quoted in  Para 19 of Bhanwar makes the position clear and in line with Chander Sen.

Sheela Devi is discussed in Para 20-23 of Bhanwar. In Sheela Devi, Tulsi Ram died in 1889 (before coming into force of the HSA) leaving behind 5 sons including Babu Ram. It was firstly held (relying on various judgments of the Apex Court as well as Mayne’s) that it is settled law that when a partition happens, the property that comes to the share of a coparcener is only separate property qua the other coparceners whereas qua his sons it continues as ancestral property. It was further held following Chander Sen that where S.8 applies then it will cease to be ancestral and the inheritor will take as separate even qua his own sons.  T

his not being the issue in Uttam, it was not necessary for deciding it. Therefore the court’s opinion that Sheela Devi would not help the appellant since there was no discussion of Sections 4,8 and 19 (which itself is debatable as S.8 specifically and S.4 by language, is clearly discussed in Sheela Devi and the judgments it cites) would be of no consequence.

Conclusion

In light of the foregoing discussion, the author with utmost respect and humility concludes as follows:

• The error in Uttam lies in assuming that the entire coparcenary property is to be divided by succession (as opposed to survivorship) in the notional partition upon the death of the deceased in a case covered by the Proviso to S.6 (i.e. a female heir being alive). This effectively means that if a female heir also exists at the time of the death of any coparcener, the coparcenary comes to an end.
• Whichever coparcenary the Plaintiff claims to be a coparcener in, he will get at least some share in the suit property- either the overall coparcenary of his father and his uncles (and their children) or only with his father. In neither case can it be said that there is no ancestral property left.
• The conclusions in Para 18(i) to (v) of Uttam are absolutely correct, in that they speak exclusively of the deceased’s share in the coparcenary and not the entire coparcenary. Then suddenly and inexplicably there is a jump to talking about the entire coparcenary, which does not, contrary to what the judgment says, arise from “a joint reading of Sections 4,8 and 19. The judgment fails to consider the true effect of S.6 and particularly the words “… not in accordance with this Act.”
• This last expression in S.6 must mean that S.8 can never apply to coparcenary property. The situation of son’s son not being able to get a share on partition if the son of the deceased is alive, only applies in case S.8 applies. It cannot apply to devolution of coparcenary property left over after taking out the share of the deceased which has converted into self-acquired by reason of one of the exception to the normal rule of S.6.

It is therefore hoped that this rather discordant note struck by the Supreme Court is corrected in an appropriate case sooner rather than later, as it has already resulted in confusion as well as judgments of various High Courts rendered that follow the judgment in Uttam, which are, it is submitted, incorrect for the same reasons as Uttam is.

The author is an advocate of the Supreme Court of India.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.