Partition of property governed by Mitakshra Law

Supreme Court in Balmukand Vs. Kamla Wati and Others:

No doubt Pindi Dass himself was bound by the contract which he has entered into and the Plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act which runs thus.

On the basis of the same observations, the decision in Jawala Singh’s case (supra) was confirmed by the Letters Patent Bench In Balmukand’s case (supra) no question that where Mitakshra law prevailed alienation of joint Hindu family property made by the Manager or any coparcenor without any legal necessity and consent by the other coparcenors did not bind the share of the alienor, was raised before the Supreme Court and as such the observations referred to above which were made in the context of Section 15 of the Specific Relief Act would be operative in that limited sphere. By no stretch of reasoning while making the said observations, the Supreme Court can be said to have laid down the law that in the States where Mitakshra law applies, alienation would be binding qua the share of the vendor even though it was made without the consent of other coparcenors and legal necessity nor for the benefit of the estate.

Before the decision of  Balmukand Vs. Kamla Wati and Others the law was :

It was admitted between the parties that in Punjab and Haryana, the Hindus are governed by Mitakshra School of Hindu Law. According to paragraph 269 of the Hindu Law by Mulla which is a book of unquestioned authority since more than half a century, where a member of joint Hindu family, governed by Mitakshara law sells or mortgages the joint Hindu family property or any part thereof without the consent of the coparcenor the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating coparcenor. It has been further laid down in ‘this paragraph that even in the Punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. Similar is the statement of law contained in paragraph 260. The above statement of law was duly recognised and enforced by the Privy Council in Lachhman Prasad and Ors. v. Sarnam Singh and Ors. AIR 1917 P.C. 41, Anant Ram and Ors. v. Collector of Etah and Ors. AIR 1917 P.C. 188, and Manna Lal v. Karu Singh and Anr. AIR 1919 P.C. 108. The Full Bench of the Allahabad High Court in Chandradeo Singh and Ors. v. Mata Prasad and Ors. I Indian Cases 479 (F.B.), and Mathura Misra and Another Vs. Rajkumar Misra and Others, , laid down the law to the same effect. In the United Punjab also as expressed in Badam and Ors. v. Madho Ram and Ors. AIR 1922 Lah. 241 , AIR 1925 130 (Lahore) , AIR 1928 111 (Lahore) , AIR 1932 636 (Lahore) , and AIR 1933 343 (Lahore) , the established view has been the same.

Traditional position of Law :-

Section 8 governs succession of the property of a Hindu male and it implies that property must be such which is capable of devolving by succession. Under the traditional Hindu law, the Mitakshra law recognized two modes of devolution of property: (a) joint family property devolved by survivorship and (b) separate property devolved by succession. Under the Mitakshra law, when property passed into the hands of sole surviving coparcener. Then also it devolved by succession. On the other hand, under the Dayabhaga law, all properties devolved by succession. Under the traditional Hindu law, when a son inherits the property from his father, vis-a-vis sons, he takes it as joint family property. Hindu Succession Act has now made a difference. This Act has introduced a new set of heirs and when a Hindu inherits the property from his father under Section 8 , Hindu Succession Act, he takes it as his separate property and not as joint family property vis-a-vis his sons. Inherited property would lose its character of joint family property. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non-obstante provision in terms whereof 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 the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included. In the case law titled as Musini Leela Parsad versus Musinin Bhavani and others 1995(2) Civil Court Cases 94, it has been held “Ancestral property inherited by son on the death of his father shall be treated as his separate property and his son is not entitled to a share in it by birth. In the present suit, admittedly, Santa father of Hansu has died after the commencement of Hindu Succession Act and estate of Santa was inherited by his son Hansu father of the plaintiff under Section 8 being his Class-I legal heir along with Dassu Ram. Thus, Hans Raja inherited this property as separate property and not as Joint Hindu Family Coparcenary Property. In view of the above discussion, I am of the considered opinion that suit property comprised in chaser No. 23//1/5(1-1), 10/2(0-2) and khasra number 281/(0-3) and 210/2(0-19) as fully detailed in the head note of the plaint is not a Joint Hindu Family Coparcenary Property rather it was a separate property in the hands of Daya Ram.”

Place of daughter

In a Hindu family governed by the Mitakshra law, the son and the grandson acquires a right in the property along with their father. The daughter does not acquire any such right. She acquires a right in the share of her father only on the death of her father along with other heirs.