Decided on April 21,1971



- (1.) Ganta Narayanaswamy who owned the suit properties died in the year 1962 leaving behind him a son (plaintiff) and daughter (2nd defendant) by his pre-deceased first wife, his second wife (the first defendant) and a daughter (3rd defendant) by the second wife. The plaintiff was divided from his father even during the latters lifetime. The present suit relates to the properties which fell to the fathers share at the time of division. The plaintiff claims that on his fathers death he is entitled to a 1/4th share in the suit properties. He bases his claim on the provisions of Section 8 of the Hindu Succession Act. The second defendant supports the case of the plaintiff, while defendants 1 and 3 plead that Section 6 and not Section 8 applies and the plaintiff, a divided son, cannot succeed as an heir. The plaintiffs suit was decreed by the trail Court and dismissed by the appellate Court. He has preferred this second appeal.
(2.) The only question for consideration is whether Section 6 or Section 8 of the Hindu Succession Act is applicable. Now, the Hindu Succession Act is not a mere amending Act but an amending and codifying Act and it has an overriding effect over texts, rules or interpretation of Hindu Law or custom or usage in respect of matters covered by the Act the over any other law in so far as such law is inconsistent with the provisions of the Act. Sections 6 and 8 are as follows:------ Section 6. "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 interstate succession, as the case may be, under this Act and not by survivorship." Explanation 1: For the purpose 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 in a partition of the property death, irrespective of whether he was entitled to claim partition or not. Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein". Section 8. "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 no 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 n agnate, then upon the cognates of the deceased.:"
(3.) A plain reading of the two sections shows that Section 8 is a general provision and Section 6 is in the nature of an exception to Section 8. Section 8, therefore, applies to all cases of intestacy of a male Hindu except those to which Sec. 6 applies. Section 6 applies to the case of a male Hindu having at the time of his death an interest in a Mitakshara coparcenary property and provides that his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. Since Section 6 contemplates devolution by survivorship of coparcenary property, it is clear that it postulates the existence of a coparcenary. Now there cannot be a coparcenary consisting of a single individual even if the property in his possession is coparcenary property. The coparcenary contemplated by Section 6 is a coparcenary consisting of more than one individual, where on the death of one coparcener the property can devolve on the others by survivorship. That is clear from the fact that Section 6 provides for devolution by survivorship upon the surviving members of the coparcenary. There can be no question of devolution by survivorship unless there are two or more members of the coparcenary. It is significant that the word used to describe the property is coparcenary and not joint family. That is a departure from the expression joint family property used in the Hindu Womens Right to Property Act of 1937. It is well known that a coparcenary is not the same thing as a joint family. A coparcenary is a narrower body than a joint family and consists of only those persons who have a present interest in the property and who can enforce a partition, if they desire. The test of coparcenary is the right to enforce a partition. On the other hand, a joint family includes not merely coparceners but their mothers, wives or widows and unmarried daughters. The existence of a number of female relatives none of whom is entitled to claim partition does not convert a joint family into a coparcenary such as the one contemplated by Section 6 of the Hindu Succession Act.;

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