J. RAJESH (MINOR) THR. HIS MOTHER AND NATURAL GUARDIAN J. GOMATHI v. M. KUMARAN. (DEAD) THR. LRS. & ORS.

2026 INSC 1208 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7020 OF 2012

J. RAJESH (MINOR) THR. HIS MOTHER AND NATURAL GUARDIAN J. GOMATHI APPELLANT(S)

VERSUS

M. KUMARAN. (DEAD) THR. LRS. & ORS. RESPONDENT(S)

JUDGMENT

SUNITA AGARWAL, J

1. A short question for consideration in this appeal is as to

whether the appellant would be entitled to half share in the

property of his father who is still alive and can seek a decree of

partition on the premise of the property in question being

ancestral/joint family property.

2. The facts in brief are that the Original Suit No.1698 of 1997

was filed on behalf of the appellant as minor through his mother

being natural guardian seeking relief of partition and possession Signature Not Verified

of half share claimed by the appellant in the suit property, which Digitally signed by RAJNI MUKHI Date: 2026.11.06 18:24:00 IST Reason:

is the land admeasuring 1811 sq. ft. (described at the foot of the

Civil Appeal No.7020 of 2012 1

plaint). It was pleaded on behalf of the plaintiff/appellant that the

suit property being joint family property belonging to his

grandfather namely late N. Ramakrishnan, has been inherited by

him along with his father who was the first defendant in the suit.

3. As averred in the plaint itself, the first defendant’s sister G.

Lalitha filed a suit namely C.S. No.1728 of 1993 for partition and

possession of the divided share of N. Ramakrishnan, i.e., the

grandfather. The suit was decreed on the basis of a compromise

dated 03.02.1994, whereunder the first defendant had got his

share in a land to the extent of 1811 sq. ft.

4. Original defendant nos. 2 and 3 are purchasers of the suit

property vide sale deeds dated 03.04.1997 and 17.04.1997

executed by the first defendant. As per the plaint averments, the

plaintiff/appellant herein while seeking to establish his

entitlement to half share in the suit property would plead that the

first defendant was trying to alienate the suit property to deprive

the valuable right of the plaintiff/appellant to the same. However,

there is no challenge to the compromise decree dated 03.02.1994

or the aforementioned sale deeds executed in favour of defendant

nos. 2 and 3. Only relief sought was for partition and possession

of half share to the plaintiff/appellant herein in the suit property.

Civil Appeal No.7020 of 2012 2

5. The suit was contested by defendant nos. 2 and 3, on the

ground that the first defendant was absolute owner by virtue of the

compromise decree dated 03.02.1994 and the defendants had paid

sale consideration and had taken possession of the suit property

and are enjoying the same since the date of purchase.

6. The learned II Additional Judge, City Civil Court, Chennai

passed the preliminary decree of partition which was challenged in

the first appeal filed by the original defendant nos. 2 and 3.

7. The facts considered by the First Appellate Court in setting

aside the preliminary decree of partition granted by the Trial Court

are that the property originally belong to the father of the first

defendant by name late N. Ramakrishnan. The plaintiff/appellant

is son of the first defendant/respondent and being minor is

represented by his mother and natural guardian.

8. The plaintiff was born on 06.01.1994 and the suit for

partition and possession of properties belonging to N.

Ramakrishnan was filed by the first defendant’s sister namely G.

Lalitha in the year 1993. The first defendant did not contest the

suit filed by the appellant and had executed two sale deeds in

favour of the defendant nos. 2 and 3 with regard to the property

Civil Appeal No.7020 of 2012 3

which he obtained as a result of the partition decree under the

compromise dated 03.02.1994.

9. The question answered by the First Appellate Court is as to

whether the plaintiff acquired right by birth in the property which

fell into the share of the first defendant/his father and as such is

entitled to the decree of partition as prayed for. Considering

decisions of this Court, the First Appellate Court has held that as

per the Class I heirs listed in the Schedule under Section 8 of the

Hindu Succession Act, 1956, the son of a male dying intestate will

become an absolute owner of the property which he derives from

his father and holds the property as absolute one and his son has

no right by birth over such property.

10. It was held that when property devolved upon the divided

sons and daughters per capita and not per stripes, each one of

them was entitled to alienate their shares, particularly when

different properties were allotted in their favour and in a case of

this nature, joint coparcenary does not survive. It was held that

Section 6 of the Hindu Succession Act was not attracted to the

facts of the case as partition has taken place and the

heirs/successors of the original owner N. Ramchandran became

owners to the extent of the properties falling within their shares.

Civil Appeal No.7020 of 2012 4

11. It was held that when a divided son or daughter has got the

property belonging to their father in a partition, whether it is

ancestral or self-acquired property of the father, they became

absolute owners of their respective shares and they can deal with

the property exclusively excluding their sons. The son of a divided

son (grandson) does not get right from his father by birth who is

excluded by virtue of Section 8 of the Hindu Succession Act and

he cannot become a coparcener in the property in question.

12. The suit property is an ancestral property belonging to N.

Ramkrishnan and the divided share in the said property reached

the hands of his son who became absolute owner therefore and his

grandson, the appellant herein does not get interest in the

property.

13. Following the proposition of law laid down by this Court in

the judicial pronouncements discussed therein, it was held that as

per Class I heirs of the Schedule under Section 8 of the Hindu

Succession Act, upon a Hindu dying intestate, the first class heirs

namely, the heirs mentioned in Class I (Schedule-I) son, daughter,

widow and brother shall take shares equally to the exclusion of the

other heirs, including son’s son. The High Court has held that the

plaintiff/appellant herein did not acquire right by birth in the

Civil Appeal No.7020 of 2012 5

property which came in the hands of his father by partition after

the death of his grandfather and, hence he is not entitled to seek

partition in the property.

14. By placing Section 29-A of the Hindu Succession (Tamil Nadu

Amendment) Act, 1989, it was urged by Mr. K. Paari Vendhan,

learned Counsel for the appellant herein that in a Joint Hindu

Family governed by Mitakshara Law, son of a coparcener shall

become a coparcener in his own right by birth, inclusive of the

right to claim by survivorship. The submission is that by virtue of

Section 29-A inserted in the Hindu Succession Act, 1956 by the

Tamil Nadu Amendment Act, 1989, the right of daughter of a

coparcener to inherit in a coparcenary property by birth has been

recognised, notwithstanding anything contained in Section 6 of the

Hindu Succession Act, 1956. The significance of Section 29-A is

that in a subsisting Mitakshara coparcenary governed by the Tamil

Nadu amendment, a daughter/female member who qualifies the

provision holds a coparcenary interest. The statutory protection

preserves eligible daughters’ coparcenary rights and leaves a son’s

existing right by birth intact.

15. It was submitted that due to operation of Section 29-A, the

compromise decree dated 03.02.1994, as aforesaid, will not turn

Civil Appeal No.7020 of 2012 6

the nature of shares of coparcener determined therein into “self-

acquired property”, as by virtue of Clause (iii) of Section 29-A, the

suit property continued to have incidents of “coparcenary”

ownership. Accordingly, the appellant’s father’s share did not

become his self-acquired property.

16. The contention is that Section 29-A of the Hindu Succession

(Tamil Nadu Amendments) Act, 1989 inserted as Chapter II-A of

the Hindu Succession Act, 1956 substituted Section 6 (1) so to

provide coparcenary rights to daughters by birth and in the same

manner as sons. The amendments passed by Tamil Nadu

Legislature in 1989 effectively make daughters equal coparceners

from 1989 onwards and this position has been affirmed by the

Madras High Court in Shanmugha Udayar Vs. Sivanandam and

others1.

17. The learned counsel for the appellant would submit that the

appellant was born on 06.01.1994 and as such became a

coparcener in the ancestral property of his grandfather with his

birth only. Although the partition suit was instituted in 1993, but

the decree came to be passed only on 03.02.1994 (after the

appellant’s birth) and his father was allotted the subject property.

1 1993 SCC OnLine Mad 99

Civil Appeal No.7020 of 2012 7

The appellant was not made a party in the partition proceedings

despite the suit having been decreed only after his birth and after

he acquired coparcenary right in the subject property by birth.

Mere fact of partition or separation from other branches does not

destroy the coparcenary character as against the first respondent’s

own son.

18. Reference was made to Rohit Chauhan Vs. Surinder Singh

and others,2 and Arshnoor Singh Vs. Harpal Kaur,3 to submit

that this Court has distinguished partition of ancestral property

from succession under Section 8 and recognized son’s interest

upon birth and that on partition, the ancestral coparcenary

property allotted to a coparcener remains a coparcenary property

qua the allottee’s son.

19. In light of the said legal proposition, the appellant’s half share

recognised by the trial court must be protected and the High Court

has erred in treating the mere allotment under a family partition

as conclusive proof of the first respondents being the individual

owner without addressing the pleaded ancestral character, the

appellant’s birth and the statutory scheme applicable in the State

of Tamil Nadu.

2 (2013) 9 SCC 419 3 (2020) 14 SCC 436

Civil Appeal No.7020 of 2012 8

20. In view of the above, it was contended that the purchasers

namely the original defendant nos. 2 and 3 cannot acquire greater

right than their vendor namely the first respondent. Their plea of

absolute ownership must therefore be tested against the

appellant’s independent coparcenary claim and the trial Court’s

finding that the property was ancestral, not controverted by the

first respondent (father of the appellant), is to be upheld.

21. It was urged that the first respondent was not competent to

transfer the entire suit property without determining/demarcating

the share of the appellant coparcener, the property obtained by the

first respondent through partition, held by him as karta of a

coparcenary property. The first respondent remained ex parte in

the trial court, the High Court and before this Court until his death

in the year 2024. The onus of proving the legal necessity for sale

of a coparcenary property has not been discharged by the first

respondent. In the result, the trial court’s preliminary decree for

partition of half share of the appellant is liable to be restored and

the sale deeds dated 03.04.1997 and 17.04.1997 are to be held as

not binding on the share of the appellant by setting aside the

judgment and order dated 11.08.2010 of the High Court.

Civil Appeal No.7020 of 2012 9

22. Mr. K.K. Mani, learned counsel for the respondent, on the

other hand, would submit that the present is a case of a male, i.e.,

grandson seeking succession in the property of his grandfather

which would be governed by Section 8 of the Hindu Succession Act

and heirs mentioned in Class I of the Schedule to Section 8 would

be attracted. Section 6 of the Hindu Succession Act, 2005 or

Section 29-A of the Hindu Succession (Tamil Nadu Amendment)

Act, 1989 are not attracted.

23. The consistent view of this Court in the case of succession of

a grandson has been that the grandson is clearly excluded from

the heirs mentioned in Class I Schedule and the divided son gets

absolute right with full power of alienation. Section 8 of the Hindu

Succession Act, 1956 lays down the scheme of succession to the

property of a Hindu dying intestate. The schedule classifies the

heirs on whom such property should devolve as those specified in

Class I who took simultaneously to the exclusion of all other heirs.

A son’s son is not mentioned as an heir under Class I of the

Schedule, and, therefore he cannot get any right in the property of

his grandfather under the said provision. The suit property which

devolve on the first respondent upon the death of his father

intestate after coming into force of the Hindu Succession Act, 1956

Civil Appeal No.7020 of 2012 10

did not constitute HUF property consisting of his own branch

including his sons.

24. Reliance is placed on the decisions of this Court in C.W.T.

and others Vs. Chander Sen and others4, Vimalben Ajitbhai

Patel Vs. Vatslabeen Ashokbhai Patel and others5 and Radha

Bai Vs. Ram Narayan and others.6

25. It was further submitted that the appellant though is

aggrieved by the partition/compromise decree but he has not

challenged the same so far. The suit property is no more an

ancestral property and moreover the appellant’s father being alive

when suit was filed, the appellant has no right to claim any share

in the same. The original defendant nos. 2 and 3 namely

respondent no.1 and 2 herein are innocent purchaser of the suit

property and the suit filed by the appellant is a collusive suit with

his father who had not turned up to contest the proceedings.

26. Section 6 and 8 of Hindu Succession Act, 1956 prior to 2005

amendment, and Section 29-A of the Hindu Succession (Tamil

Nadu) Act, 1989 relevant for this case are extracted hereinunder :-

The Hindu Succession Act, ‘1956’

4 (1986) 3 SCC 567 5 (2008) 3 SCC 87 6 (2020) 19 SCC 513

Civil Appeal No.7020 of 2012 11

“6. Devolution of interest in coparcenary property.― When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.- For the purposes of this 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. Explanation 2.- Nothing contained in the proviso to this section shall be constructed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim or intestay a share in the interest referred to therein.”

8. General rules of succession in the case of males. ― The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter: ― (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is not heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.

Section 29-A of the Hindu Succession (Tamil Nadu

Amendment) Act, 1989, as contained in Chapter II-A of the

Tamil Nadu Act, inserted after Chapter II of the Hindu

Succession Act, 1956:-

Civil Appeal No.7020 of 2012 12

29-A. Equal rights to daughter in coparcenary property.-

Notwithstanding anything contained in section 6 of this Act,-

(i) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre- deceased child of a predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the predeceased son or of the pre- deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.

Civil Appeal No.7020 of 2012 13

In Commissioner of Wealth Tax, Kanpur and others Vs.

Chander Sen and others7, the question considered by this Court

was – whether the income or asset which a son inherits from his

father when separated by partition, could be assessed as income

of Hindu undivided family of son or his individual income?

27. While answering the said question, it was noted that though

under the Hindu Law the moment a son is born he gets a share in

the father’s property and becomes part of the coparcener. His right

accrued to him not on the death of the father or inheritance from

the father but with the very fact of his birth. Normally, therefore,

whenever the father gets a property from whatever source, from

the grandfather or from any other source, be it separated property

or not, his son should have a share in that and it will become part

of the Hindu joint family of his son and grandson and other

members who form joint Hindu family with him.

28. However, this position is affected by Section 8 of the Hindu

Succession Act, 1956. The Hindu Succession Act, 1956 lays down

the scheme of succession to the property of a Hindu dying intestate

male. The first rule is that the property of a male Hindu dying

intestate shall devolve according to the provisions of Chapter II and

7 (1986) 3 SCC 567

Civil Appeal No.7020 of 2012 14

upon the heirs in Class I of the Schedule being relatives mentioned

in Class I which reads as follows:-

“Son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son.”

The heirs mentioned in Class I of the Schedule are son,

daughter etc. including the son of a predeceased son but does not

include specifically the grandson, being a son of son living. The

question, thus was, when the son as heir of Class I of the Schedule

inherits a property, (“as first respondent in the present case”), does

he do so in his individual capacity or does he do so as karta of his

own undivided family?

29. Having noted the divergent views expressed by different High

Courts, it was observed and held in paragraphs 21, 22, 23 and 24

as under :-

21. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

22. In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that

Civil Appeal No.7020 of 2012 15

though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore, as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre- existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.

23. Before we conclude we may state that we have noted the observations of Mulla's “Commentary on Hindu law” 15th Edn. dealing with Section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on “Hindu Law”, 12th Edn. pages 918-919.

24. The express words of section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored.

30. In Bhanwar Singh Vs. Puran and others,8 this Court has

dealt with the applicability of Section 8 of the Hindu Succession

Act, 1956, the properties in suit therein were partitioned between

son and three daughters of the original owner. After partition the

properties inherited in the share of son was mortgaged and later

sold by him. The fact that the suit property at one point of time

was a joint family property was admitted and the question which

8 (2008) 3 SCC 87

Civil Appeal No.7020 of 2012 16

arose for consideration was as to whether the appellant had

acquired any interest therein by his birth in the property of his

grandfather died prior to his birth.

31. Having regard to Section 8 as also Section 19 of the Hindu

Succession Act, 1956, it was held that the property ceased to be

joint family property with the partition having taken place amongst

the heirs of the grandfather/appellant therein. In such a case, a

joint coparcenary did not continue. The interpretation of Section 8

of the Hindu Succession Act which came up for consideration in

C.W.T Vs. Chandrasen (supra) was noted to further record that the

principles evolved therein were reiterated by this Court in

Yudhisthir Vs. Ashok Kumar,9 and C.I.T Vs. M. Karthikeyan.10

It was held that Section 6 of the Hindu Succession Act, 1956,

was not attracted to the facts of the said case in view of the fact

that son and daughters having partitioned their properties became

owners to the extent of one-fourth share each and son had the

requisite right to transfer the lands falling within his share.

Furthermore, in terms of Section 19 of the Act as son and

daughters became tenants in common and took the property

9 (1987) 1 SCC 204 10 1994 Supp. (2) SCC 112

Civil Appeal No.7020 of 2012 17

devolve upon them as per capita and not per stripes, each one of

them was entitled to alienate their share.

32. Recently in Radha Bhai Vs. Ram Narayan and others11,

the question was as to whether the suit land inherited by late

Janakram from his father Sukhdeo, the sole owner, became the

ancestral property of the plaintiff on the date of death of Sukhdeo

in 1965 and on the date of death of Janakram in 1982. According

to the plaintiff/appellant therein, the suit property was admittedly

ancestral property in the hands of Sukhdeo after coming into force

of Hindu Succession Act, 1956 with effect from 17.6.1956.

Invoking Section 6 of 1956 Act, the appellant/plaintiff, the great

granddaughter of Sukhdeo claimed the entire share of her father

being the sole surviving heir of the son of Janakram. It was urged

that the sale deed executed by Janakram in the year 1979 was ex

facie illegal and not binding on the appellant/plaintiff as

Janakram had no authority to sell the ancestral property which

had settled in the coparceners after the death of Sukhdeo. The

respondent/defendant therein on the other hand contended that

the ancestral property was succeeded by two surviving sons of

Sukhdeo namely Janakram and Pilaram equally when the

Civil Appeal No.7020 of 2012 18

succession had opened after the death of Sukhdeo in 1965. The

appellant/plaintiff was not an heir in Class I at the relevant time

being the great granddaughter of Sukhdeo, and, as such, she had

no claim in the suit property in 1965. The reason being that the

father of the appellant could not have succeeded to the property

during the lifetime of his father Janakram.

33. After the death of Sukhdeo, the suit property came to the

exclusive share of Janakram and he had become absolute owner

thereof. As Janakram held the suit property in his individual

capacity and not as a coparcener on behalf of his family members,

he could alienate the same as per his volition to anyone. In such a

situation, as per the settled law, the granddaughter of Janakram

cannot be treated as an heir of Class I, or a coparcener so as to

have a share in the suit property. Section 6 of the 1956 Act as

applicable at the relevant time was taken into consideration and

the decision in C.W.T Vs. Chandra Sen and others was noted in

paragraphs 19, 20 and 21 as under:-

“19. In Chander Sen, this Court considered the interplay between Sections 4, 6 and 8 of the 1956 Act including Chapter II and heirs in Class I of the Schedule. The Court noted as follows: (SCC pp. 572-73, paras 10-12)

"10. The question here, is, whether the income or asset which a son inherits from his father when separated by

Civil Appeal No.7020 of 2012 19

partition the same should be assessed as income of the Hindu Undivided Family of son or his individual income. There is no dispute among the commentators on Hindu law nor in the decisions of the court that under the Hindu law as it is, the son would inherit the same as karta of his own family. But the question is, what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of the Schedule provides that if there is a male heir of Class I then upon the heirs mentioned in Class I of the Schedule. Class I of the Schedule reads as follows: 'Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son."

11. The heirs mentioned in Class 1 of the Schedule are son, daughter, etc. including the son of a predeceased son but does not include specifically the grandson, being, a son of a son living. Therefore, the short question, is, when the son as heir of Class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family?

12. Now the Allahabad High Court has noted that the case of CIT v. Ram Rakshpal10 after referring to the relevant authorities and commentators had observed at p. 171 of ITR that there was no scope for consideration of a wide and general nature about the objects attempted to be achieved by a piece of legislation when interpreting the clear words of Mulla's Commentary on Hindu Law and the provisions of Section 6 of the Hindu Succession Act, that in the case of assets of the business left by father in the hands of his son will be governed by Section 8 of the Act and also made before us to Section 4 of the Hindu Succession Act. Section 4 of the said Act provides for overriding effect of Act. Save as otherwise expressly provided in the Act, 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 the Act and any other law in force immediately before the commencement of the Act shall cease to apply to Hindus insofar it is inconsistent with any of the provisions contained in the Act. Section 6 deals with

Civil Appeal No.7020 of 2012 20

devolution of interest in coparcenary property and it makes it clear that when a male Hindu dies after the commencement of the Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The proviso indicates that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."

20. Again in para 15: (Chander Sen case, SCC pp. 573-74) "15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is: is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments10, 11 we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken12 the contrary view."

21. After considering the divergent views expressed by the Allahabad High Court12,13 the Full Bench14 of the Madras High Court, Madhya Pradesh14 and Andhra Pradesh High Courts15 on one side and the Gujarat High Court on the

12 CIT v. Ram Rakshpal, 1966 SCC OnLine All 429 : (1968) 67 ITR 164 13 Khudi Ram Laha v. CIT, 1966 SCC OnLine All 435 : (1968) 67 ITR 364 14 CIT v. Babubhai Mansukhbhai, 1975 SCC OnLine Guj 77 : (1977) 108 ITR 417 15 CWT v. Mukundgirji, 1983 SCC OnLine AP 288 : (1983) 144 ITR 18

Civil Appeal No.7020 of 2012 21

other, it proceeded to opine as follows: (Chander Sen case, SCC pp. 577-78, paras 21-24)

"21. It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

22. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law. In our opinion it is not possible when Schedule indicates heirs in Cłass I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view12 noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore, as noted by the Andhra Pradesh High Court15 that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today that the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis- à-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son, etc.

23. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu Law, 15th Edn. dealing with Section 6 of the Hindu Succession Act at pp. 924-26 as well as Mayne's on Hindu Law, 12th Edn., pp. 918-19.

24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to "amend" the law, with that background the express language which excludes son's son but includes son of a predeceased son cannot be ignored."

Civil Appeal No.7020 of 2012 22

Another decision of this Court in Yudhisthir case (supra)

wherein Chander Sen was quoted with approval, has also been

noted in paragraph 22 as under:-

22. This decision has been quoted with approval in Yudhishter case. In para 10 of the said decision, the Court observed thus: (SCC pp. 110-11) "10. This question has been considered by this Court in CWT v. Chander Sen where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be It separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. At pp. 577 to 578 of the Report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 924-26 as well as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied on the said observations of Mayne’s Hindu Law, 12th Edn., at pp. 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court10, 11, the Madras High Court13, the Madhya Pradesh High Court14 and the Andhra Pradesh High Court15 appeared to be correct and unable to accept the views12 of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn., p. 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-à-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."

Civil Appeal No.7020 of 2012 23

In the facts of the said case, having noticed that Sukhdeo had

inherited ancestral property and was alive till 1965, whereas,

father of the appellant (son of Janakram) predeceased Sukhdeo

(his grandfather) in 1957 and Janakram, son of Sukhdeo had died

in 1982, and that during the lifetime of Janakram, in terms of

Section 6 of 1956 Act, the father of the appellant could not have

succeeded to the property as he could claim only through

Janakram who was alive till 1982, it was held that when father of

the appellant had no claim in his own rights, hence the question

of the appellant (being his daughter), succeeding to the property

does not arise. It was thus noted in paragraphs 25 and 26 and held

in paragraph 27 that :-

“25. The consistent view of this Court, including of the three- Judge Bench, is that the grandson or granddaughter is clearly excluded from heirs in Class I. Saheblal himself was grandson of Sukhdeo, who predeceased Sukhdeo. After the demise of Sukhdeo in 1965, therefore, the ancestral suit property could be and came to be partitioned between Janakram and Pilaram in 1967. As a result of that partition, the suit property came to the exclusive share of Janakram in his individual capacity. He could, therefore, legitimately dispose of the same in the manner he desired and which he did in favour of his grandsons (Defendants 1 to 3, respectively) vide registered sale deed dated 21-7-1979. Neither the stated partition of 1967 nor the registered sale deed in favour of the respondents (Defendants 1 to 3) dated 21-7-1979 has been challenged. The relief sought in the suit as filed by the appellant-plaintiff is only for partition and awarding share to the appellant-plaintiff along with possession. Suffice it to observe that the granddaughter of Janakram (appellant herein) could not have claimed a higher right than the right of her father Saheblal.

Civil Appeal No.7020 of 2012 24

26. Reliance placed by the appellant on the decision of this Court in Gurupad Khandappa Magdum2, is inapposite. In that case, the plaintiff, being heir in Class 1, claimed to have share in the interest of her husband which he had at the time of his death in the coparcenary property. In that view of the matter, in terms of the proviso to Section 6 of the 1956 Act, the interest of her husband in the coparcenary property would devolve by succession under the 1956 Act. Similarly, in Raj Rani8, the Court was called upon to consider the dispute between the widow, three sons and three daughters of the deceased who being heirs in Class I had succeeded to interest in equal shares, as the property in question was Mitakshara coparcenary property, by virtue of Explanation I of Section 6 of the 1956 Act. That analysis can be discerned from para 17 of the reported judgment. Even the recent decision of this Court in Ramesh Verma3, does not take the matter any further for the appellant. Inasmuch as, even in that case, the dispute was between the heirs concerned in Class I after the demise of Bhagwan Das. Before commencement of the 1956 Act, the notional partition had taken place and as per Section 82 of the Madhya Bharat Land Code, his sons and wife became entitled to get 1/3rd share in the property. On partition, share had fallen to one of the sons which became his separate property and no longer remained a Mitakshara property. This factual position could be discerned from para 11 of the reported judgment.

27. A priori, we uphold the view taken by the High Court that after the death d of Sukhdeo in 1965, the property devolved upon his two sons Janakram and Pilaram. They succeeded to the ancestral property equally. They later effected partition in 1967, as a result of which, the property came to the exclusive share of Janakram. The father of appellant, Saheblal, had predeceased his father Janakram and even his grandfather Sukhdeo. During the lifetime of Janakram, Saheblal could not have succeeded to the property and for the same reason, the appellant being his daughter cannot be heard to claim any right higher than that of Saheblal. Applying the settled legal position to the present case, the grounds urged by the appellant need to be rejected.”

34. Reverting to the factual matrix of the present case, it is

noticed that the heirs of N. Ramakrishnan inherited his property

being Class I Schedule heirs having right of succession under

Civil Appeal No.7020 of 2012 25

Section 8 of the Hindu Succession Act, 1956. Section 8 of Hindu

Succession Act, 1956 lays down the scheme of succession to the

property of a Hindu male dying intestate. The schedule classified

the heirs on whom such property should devolve, those specified

in Class I took simultaneously to the exclusion of all other heirs. A

son’s son is not mentioned as an heir under Class I of the

Schedule, and, therefore he could not get any right in the property

of his grandfather under the provision. In the codified Hindu Law

of the Hindu Succession Act, 1956, the right of a son’s son in his

grandfather’s property during the lifetime of his father which

existed under the personal Hindu Law as enforced before the Act

1956, was not saved expressly by the legislature while enacting the

Hindu Succession Act, 1956. Section 8 of the Hindu Succession

Act, 1956 is to be read as a self-contained provision laying down

the scheme of devolution of the property of the Hindu male dying

intestate.

35. Consequently, upon death of N. Ramakrishnan, the

grandfather of the appellant herein, the property devolved on his

Class I Schedule heirs as per Section 8 of the Hindu Succession

Act, 1956 and did not constitute HUF property of son consisting of

his own branch including the grandson. The surviving sons and

Civil Appeal No.7020 of 2012 26

daughters of N. Ramakrishnan, the Hindu male dying intestate,

shall each take one share being Class I Schedule heirs. The

partition among the Class I heirs was opened upon the death of N.

Ramakrishnan, (whose date of death has not been disclosed), with

the filing of the partition suit in 1993 by one of the coparceners

wherein settlement had been arrived between the heirs. Under the

compromise decree in terms of the settlement dated 03.02.1994,

each of the heir became exclusive owner of the property falling

within his/her share. The father of the appellant whose shares are

divided in terms of the compromise decree pursuant to the

settlement dated 03.02.1994, became exclusive owner of the

property falling in his share. With the partition, the property of N.

Ramakrishnan the grandfather of the appellant ceased to be joint

family property, inasmuch as, all heirs succeeded the same as

tenant in common and not as joint tenant, and joint coparcenary

did not continue.

36. The succession having been opened with the death of N.

Ramakrishnan, evidently before the appellant was born, inasmuch

as partition suit was filed in the year 1993, there is no question of

devolution of interest in the suit property upon the appellant.

Civil Appeal No.7020 of 2012 27

37. From the averments made in the memo of appeal, it seems

that parents of the appellant got married on 01.03.1993 and the

partition suit namely C.S. No. 1728 of 1993 seeking partition and

separate possession of the properties of N. Ramakrishnan, the

grandfather of the appellant (father of the first respondent herein)

was filed in 1993. The appellant was born on 06.01.1994 and the

settlement was arrived on 03.02.1994. The father of the appellant

was still alive and was impleaded as a first defendant in the suit

filed through the mother in the year 1997 on the premise of the

appellant having inherited coparcenary rights in the property of

his grandfather by birth.

38. As noted hereinbefore this Court in C.W.T Vs. Chandrasen

(supra) has considered the interplay between Section 4, 6 and 8 of

the Act 1956 including Chapter II and heirs in Class I of the

Schedule and has held that as per the codified Hindu law when

schedule indicates heirs in Class I and only includes son and does

not include son’s son but does include son of a predeceased son,

to say that when son inherits the property in the situation

contemplated by Section 8 he takes it as Karta of his own

undivided family, would be impossible. It would be difficult to hold

that the property which devolved on a Hindu under Section 8 of

Civil Appeal No.7020 of 2012 28

the Hindu Succession Act would be HUF in his hand vis-à-vis his

own son as that would amount to creating two classes among the

heirs mentioned in Class I, the male heirs in whose hands it will

be joint Hindu family property and vis-à-vis son and female heirs

with respect to whom no such concept could be applied or

contemplated. The express words of Section 8 of the Hindu

Succession Act, 1956 cannot be ignored and must prevail.

39. To the contention of the appellant that he got share in his

grandfather’s property and became part of the coparcenary with

his birth, it is to be seen that the unamended Section 6, as noted

before, as it originally stood prior to 2005, provided for devolution

of interest in the Mitakshara coparcenary property, at the time of

death of a male Hindu after commencement of 1956 Act, by

survivorship, upon the surviving members of the coparcenary. In

the instant case, the date of death of N. Ramakrishnan, the

grandfather has not been indicated and the suit for partition

among Class I heirs was filed in the year 1993, evidently the

provisions of Section 6 of the Hindu Succession Act, 1956 or

Section 29(A) inserted by the Tamil Nadu Amendment Act, 1989

would have no application in the facts and circumstances of the

present case. From this perspective as well, the appellant cannot

Civil Appeal No.7020 of 2012 29

become a coparcener as he was not a “surviving coparcener” on

the death of N. Ramakrishnan.

40. Much after the partition of the property devolved upon Class

I heirs of N. Ramakrishnan when each of the divided shares

became exclusive property of the cosharers and sold by father of

the appellant, without challenging the partition decree or the sale

deeds executed by father of the appellant, during the lifetime of

father, the suit for partition has been filed in the year 1997 on

behalf of the minor on the premise of inheritance as coparcener by

birth.

41. Finally, in view of the general rule of succession in the case

of property of a male dying intestate, under the provisions of

Chapter II of the Hindu Succession Act, 1956, the property of N.

Ramakrishnan (grandfather of the appellant) devolved upon the

Class I heirs in the order of succession specified therein, and they

shall take the property simultaneously to the exclusion of all other

heirs. With the partition decree, the property of N. Ramachandran

falling in the share of the father of the appellant became his

exclusive property in his individual capacity and cannot be said to

be coparcenary. There is no question of devolution of the property

once partitioned and became exclusive individual property of the

Civil Appeal No.7020 of 2012 30

first respondent upon the appellant herein so as to recognise his

right on the premise of attaining coparcenary rights with his birth.

For the reasons aforementioned, there is no infirmity in the

impugned judgment.

42. The appeal, thus, failed and hence stands dismissed with no

order as to costs. All pending applications are also disposed of in

the above terms.

..……………….…………………..J. [AUGUSTINE GEORGE MASIH]

..……………………..J. [SUNITA AGARWAL]

NEW DELHI, November 06, 2026

Civil Appeal No.7020 of 2012 31