Uttam v. Saubhag Singh (2016)

Chander Sen decided what the heir takes — his own separate property. Uttam decides what happens to the property itself: once distributed under s. 8, it ceases to be joint family property in the hands of everyone who succeeded to it.

The practical consequence is severe and is exactly what problem questions test. A person born after such a devolution has no coparcenary to join and nothing to partition. Sequence the events correctly and the answer is mechanical; sequence them wrongly and it is entirely wrong.

The appellant was born in 1977.

His grandfather died in 1973, leaving joint family property. On that death, succession opened under the Hindu Succession Act, so the property devolved under s. 6 with its proviso and s. 8 upon his heirs, including the appellant's father.

In due course the appellant sued for partition of that property, claiming a coparcenary share in it.

1. After joint family property has been distributed on the principles of intestacy under s. 8, does it remain joint family property in the hands of those who take it?
2. Can a person born after such a devolution claim a share in it by birth?

The suit for partition was not maintainable. On the date of the appellant's birth in 1977 the property was no longer joint family property, so there was nothing to partition.

On a conjoint reading of ss. 4, 8 and 19 of the Hindu Succession Act, after joint family property has been distributed in accordance with s. 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it, as they hold the property as tenants in common and not as joint tenants.

The three sections do distinct work and the answer needs all three.

Section 4 gives the Act overriding effect: any text, rule or interpretation of Hindu law, or any custom or usage, ceases to have effect with respect to any matter for which provision is made in the Act. So the classical rules about survivorship and ancestral property cannot be used to supplement or contradict what the Act provides.

Section 8 provides for the devolution itself: the property of a male dying intestate devolves on the Class I heirs simultaneously.

Section 19 provides how two or more heirs take — save as otherwise expressly provided, per capita and not per stirpes, and as tenants in common and not as joint tenants, with their shares defined and ascertained.

Those last words are decisive. A coparcenary is a joint tenancy with fluctuating and unascertainable interests. Tenancy in common with defined and ascertained shares is its opposite. The Act's own machinery therefore converts what passes, and the classical rules that would have kept it joint are displaced by s. 4.

On the facts, the succession opened in 1973 and was worked out under the Act. On the date of the appellant's birth in 1977 the property was not joint family property, and a suit for partition of such property was not maintainable.

Bhanwar Singh v. Puran had already held that after a s. 8 devolution the properties ceased to be joint family property.

Uttam also digests Narayan Rao Sham Rao Deshmukh on the notional partition: because the partition effected by Explanation I to s. 6 is a partition by operation of law and not a voluntary act of the female Hindu, she does not cease to be a member of the family. The fiction ascertains a share; the devolution under s. 8 is what dissolves jointness. Keep the two apart.

The boundary was drawn in Arshnoor Singh v. Harpal Kaur. There the Court expressly held Uttam inapplicable, because in Uttam the succession opened in 1973, after the Act, whereas in Arshnoor Singh it opened in 1951, before it. Where the succession opened before 17 June 1956, the old Mitakshara law governs, the property is coparcenary in the heir's hands as against his male descendants within three degrees, and it keeps that character notwithstanding the Act's later commencement — as does the share such a coparcener takes on a subsequent partition, as against his own male issue.

Do the deaths first. Given a chain of death, birth and partition suit, work chronologically and ask at each death: did a s. 8 succession intervene? If yes, the coparcenary is over as to that property and everyone thereafter takes as a tenant in common.

Then ask the date question. Was the death before or after 17 June 1956? Before, and the classical rule survives and Arshnoor Singh governs. After, and Chander Sen and Uttam govern.

And check what is being partitioned. The appellant in Uttam failed because the fund he sued on had already been distributed. He would not have failed as to property that was still coparcenary — for instance a share his father had taken on a pre-1956 partition, which would have remained coparcenary as against him.

State the ratio in the Court's own structure. Sections 4, 8 and 19 read together; tenants in common, not joint tenants; therefore no joint family property, therefore no suit for partition by a later-born plaintiff.