Chittur Service Co-operative Bank Ltd. v. Kumaran — 1991 DIGILAW 401 (KER)

Judgment :- An important question on Hindu Law arises in this appeal. The question is whether property obtained by a Hindu in partition of joint-family properties constitutes his separate and individual property or the properties of the joint-family consisting of himself, his wife, sons and daughters. 2. Plaint schedule property belongs to one Mallu, father of Pazhanimala and grand-father of first defendant. Pazhanimala died in 1963. This property along with other properties were partitioned among his sons in the year 1965. The properties were shown in the B schedule to the partition deed were set apart to the share of first defendant. Plaintiffs are the children of the first defendant born in his wife Visalakshy. The parties are Ezhavas of Chittur Taluk governed by the Hindu Mithakshara Law as modified by custom. Plaintiffs claimed four out of five shares in the property alleging that the property belongs to the joint-family constituted by the first defendant and his children. 3. No written statement was filed by the first defendant. The second defendant, the Secretary of a Co-operative Bank filed written statement contending that plaintiffs are not entitled to claim any share since the property had been set apart to the indiviual share of the first defendant. They contended that plaintiffs have no right by birth. First defendant while working as the Secretary of the Bank misappropriated large amounts and for realising the same arbitration proceedings were initiated before the Joint Registrar of Co-operative Societies, Palakkad. The properties belonging to first defendant were attached. Second defendant further contended that the remedy of plaintiffs is to file a Claim petition before the joint Registrar. According to them the suit is barred under the provisions of the Co-operative Societies Act. 4. By judgment dated 28-2-1986 the court below granted a preliminary decree for partition of the property into five equal shares and for allotment of four shares to plaintiffs. No direction was made for payment of profits. It was found that the property obtained by the first defendant in partition is joint-family property in his hands and plaintiffs who are members of joint-family are entitled to get share. Aggrieved by that decision the second defendant has come up in appeal. 5. Mithakshara Law recognises two modes of devolution of properties, survivorship and succession. The rule of survivorship applies to joint-family properties and rule of succession to properties held in absolute rights. Aggrieved by that decision the second defendant has come up in appeal. 5. Mithakshara Law recognises two modes of devolution of properties, survivorship and succession. The rule of survivorship applies to joint-family properties and rule of succession to properties held in absolute rights. The Hindu Succession Act has brought about fundamental and radical'changes in the Law of Succession applicable to the Hindus. From the preamble to the Act it is clear that the Act was intended to amend and codify the law relating to intestate succesion among Hindus. S.4 of the Act gives overriding application to the provisions of the Act and says: "(1) Save as otherwise expressly provided in this Act.- (a) 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 this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act." 6. By this provision of the Act all existing laws inconsistent with the Act are sought to be repealed with the result that any test, rule or interpretation of Hindu law or any custom or usage as part of law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in this Act. The Act intends only to effect the principles of Hindu Law to the extent to which provision has been made in the Act which abrogates or modifies the principles of Hindu Mithakshara Law. The Act does not effect the law relating to joint-family and partition of joint-family properties except to the limited extent contemplated under Ss.6 and 7. In regard to those matters the previous law continues to operate. S.6 deals with the rights of a co-parcener in a mithakshara coparcenery property dying intestate without making any testamentary disposition of his undivided share in the joint family property. It is provided that the interest in the mithakshara coparcenery property of a male Hindu shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with the Act. It is provided that the interest in the mithakshara coparcenery property of a male Hindu shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with the Act. The section contains a proviso 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 mithakshara coparcenery property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship. Under the old law a devise by a coparcener in a Mithakshara Joint family property of his undivided interest was invalid. But S.30 of the Act enables a Hindu to dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act or any other law for the time being in force and applicable to Hindus. By the explanation to that section the interest of a male Hindu in Mithakshara coparcenery property or the interest of a member of a tarwad, tavazhi, illom, kudumpa or kavaru in the property of the tarwad, tavazhi, illom, kudumpa or kavaru shall be deemed to be property capable of being disposed of by him or by her within the meaning of this section. The section therefore enables a male Hindu to dispose of by will his interest in a Mithakshara coparcenery property. 7. The rule of succession in the case of males is contained in S.8 of the Act. The section therefore enables a male Hindu to dispose of by will his interest in a Mithakshara coparcenery property. 7. The rule of succession in the case of males is contained in S.8 of the Act. The section reads: "The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) firstly, upon the heirs, being the relative 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 no agnate, then upon the cognates of the deceased." From this seelion it is clear that the property of a male Hindu who dies intestate first devolved on his heirs being the relatives specified in Class I of the Schedule and in the absence of any of the heirs in that Schedule on the relatives in Class II and then on the agnates and the cognates of the deceased. 8. After reading Ss.4,6 and 8 of the Hindu Succession Act we have now to see whether the property obtained by first defendant under Ext. Al partition deed devolves on his personal heirs consequent to his death under S.8 of the Act or whether plaintiffs have obtained right by birth. 9. It is argued on behalf of the respondent that S.4 of the Act does not affect the law relating to joint-family and joint-family properties except to the extent to which provision has been made in Ss.6 and 7. The Hindu Mithakshara Law continues to operate in such matters, according to the counsel. It is also pointed, out that the acquisition of right by birth has not been put an end to by S.6 of the Act. Mulla in his principles of Hindu Law, fifteenth edition at page 949 points out the conflict of judicial opinion on the question as to whether a son who inherits the self-acquired or separate property of his father under S.4 takes it as his separate property or holds it as the joint-family property of himself and his son by virtue of the doctrine of succession of right by birth operating in favour of his son. After noticing the conflict of judicial opinion on this-question, the High Courts of Gujarat and Punjab being of the view that such property would be considered joint-family property and that the High Courts of Allahabad and Madras being of the contrary view, the learned author states that the view of Gujarat and Punjab High Courts is the correct one. We will now refer to the various judicial pronouncements cited at the bar. 10. In the decision in Brij Lai v. Daulat Ram (1977) 79 Punjab Law Reporter 27) it was held that sections 6 and 8 of the Hindu Succession Act only postulates as to how the properly left by a male Hindu will be inherited by the surviving heirs. It is observed that the sections do not in any manner say as to how the property will be treated in the hands of the heirs. It was further held that the Act being silent in this matter, S.4 of the Act cannot be interpreted to have abrogated the established principles of Mithakshara Law. It was held further that S.8 of the Hindu Succession Act which deals with the succession to the property of a Hindu male dying intestate has modified the Mithakshara Law to this extent only that after his death the property shall devolve not only on the son as a member of the coparcenery or otherwise but also on the widow and daughters. On an interpretation of S.4 of the Act it was held that the entire Mithakshara Law has not been abrogated by the Act but only to the extent the same is inconsistent with the provisions of the Act. If there is a conflict between the Mithakshara Law and the Act, the provisions of the Act will prevail. Where any field has been left uncovered by the provisions of the Act, the Mithakshara Law will still continue to hold the field. 11. Gujarat High Court in the decision in Commissioner of Income-tax v. Babubhai Mansukhbhai (108ITR 417) held that in the case of Hindus governed by the Mithakshara Law, where a son inherits the self-acquired property of his father, the son takes it as the joint-family property of himself and his son and not as his separate property. 11. Gujarat High Court in the decision in Commissioner of Income-tax v. Babubhai Mansukhbhai (108ITR 417) held that in the case of Hindus governed by the Mithakshara Law, where a son inherits the self-acquired property of his father, the son takes it as the joint-family property of himself and his son and not as his separate property. It is observed that it is obvious that what has been provided for in S.6 and S.30 of the Hindu Succession Act can in no way affect the character of the property in the hands of the son when the son gets the property by inheritance from his father. The Gujarat High Court disagreed with the view of the Allahabad High Court in Commissioner of Income-tax v. Ram Rakshpal (67 ITR 164). The division bench also referred to an earlier decision of the same court in Commissioner of Wealth-tax v. Harshadlal Manilal (97 ITR 86) where it was held that under ordinary Hindu law when the property passes by intestate succession from father to son even though it was c elf-acquired property of the father, in the hands of the son the property would be stamped with the character of joint-family property. It is observed that no difference is made to that legal position by any of the provisions of the Hindu Succession Act. 12. A contrary view is seen taken by the Allahabad and the Madras High Courts. The former High Court in the decision in 67 ITR 168 (supra) held that in view of the provisions of the Hindu Succession Act, 1956 the income from assets inherited by a son from his father from whom he has separated by partition cannot be assessed as the income of the Hindu undivided family of the son. After referring to the authorities and the commentaries on Hindu Law by Mulla the Division Bench observed that the provisions of S.6 of the Act cannot be appropriately used in interpreting S.8 of the Act at all. It was held: "S.6 of the Act contains the extent to which sentiment in favour of the retention of the original Hindu law relating to succession to or devolution of the Mitakshara coparcenary property found legislative expression. It was held: "S.6 of the Act contains the extent to which sentiment in favour of the retention of the original Hindu law relating to succession to or devolution of the Mitakshara coparcenary property found legislative expression. It confines the operation of the original law of Mitakshara coparcenary property to cases where the deceased governed by the Mitakshara law had an interest in a Mitakshara coparcenary property and regulates only the devolution of such interest in that property. We do not think that any support can be sought from the provisions of S.6 of the Act in interpreting the very different provisions of S.8 of the Act. The two sections deal with different subject-matter. One deals with the devolution of an "interest" in a Mitakshara coparcenary property and the other with the devolution of "property" itself of a male Hindu, falling outside the purview of S.6 of the Act upon the death of a male Hindu intestate". 13. In that case one DurgaPrasad and his son Ram Rakshpal and his grandson Ashok Kumar constituted a Hindu undivided family. Partition of that family took place on 11-10-1948, Durga Prasad carried on his own business and Ram Rakshpal and his son Ashok Kumar carried on their own separate business. Durga Prasad left behind a widow and a daughter. The daughter takes her one-third share left by Durga Prasad but his widow and son entered into a partnership with respect to the remaining two-third. The question arose whether the income from one-third which had come to the son should be assessed as part of the income of the Hindu undivided family of the son. The Allahabad High Court held that the assets of the business left by DurgaPrasad in the hands of his son would be governed by S.8 of the Act. 14. This question was again considered by the same High Court in the decision in C.W.T. v. Chander Sen (961.T.R.634). In that case a Hindu undivided family consisting of Rand his Son C owned immovable property and a business. They divided the business and thereafter carried it on as a partnership. Regarding a sum which was standing to the credit of R not included in the income-tax return filed by C. The question arose whether deduction of this amount can be claimed. The income-tax officer disallowed the deduction. They divided the business and thereafter carried it on as a partnership. Regarding a sum which was standing to the credit of R not included in the income-tax return filed by C. The question arose whether deduction of this amount can be claimed. The income-tax officer disallowed the deduction. The High Court held that under S.8 of the Hindu Succession Act the property of R who died intestate devolved on his son C in individual capacity and not as the Karta of a joint family. The amount in respect of the deduction of claim did not constitute an asset of the Hindu undivided family of C and his sons. After observing that under the Hindu law when a son inherits separate and self acquired property of his father, it assumes the character of joint Hindu family property in his hands qua the members of his own family, it was held that this principle has been modified by S.8 of Hindu Succession Act which governed in that case. Under that provision the property of a male Hindu dying intestate devolves firstly upon the heirs being the relatives specified in Class I of the Schedule. 15. A full bench of the Madras High Court in Addl. I.T. Commr. v. P.L.K. Chettiar (AIR 1979 Madras 1) is also of the same view. Speaking for the bench Govindan Nair, CJ. observed that sons of sons are not mentioned in Class I of the Schedule though the son of a deceased son was mentioned. It was held that on an application of S.8 the son alone will inherit the property to the exclusion of the grandson. This being the effect of the statutory provision, no interest will accrue to the grandson. It is further observed that this position is directly derogatory of the law established according to the principles of the Hindu Law and this provision in the statute must prevail in view of the unequivocal expression of the intention in the statute itself which says that to the extent to which provisions had been made in the statute, those provisions shall override the established provisions in the texts of Hindu Law. It is further observed that it is impossible to visualise or envisage any Hindu undivided family in regard to the property which Karuppan in that case got in partition. It is further observed that it is impossible to visualise or envisage any Hindu undivided family in regard to the property which Karuppan in that case got in partition. Irrespective of the question whether it was ancestral property in the hands of Karuppan or not he would exclude his son. Since the existing grandson at the time of the death of the grandfather has been excluded it was held that an after-born son of Karuppan will also not get any interest which Karuppan inherited from his father. The full bench held that the principles of Hindu Law are not therefore applicable. 16. On a consideration of the differing views on this matter I am inclined to agree with the full bench decision of the Madras High Court in P.LK. Chettiar's case (supra). S.6 of the Hindu Succession Act permits coparcenery property to devolve on heirs by survivorship. Where S.6 applies S.8 would have no application. The devolution of the property of a male Hindu dying intestate has to take place in accordance with the provisions contained in S.8 of the Act. The position therefore is that S.8 of the Act has to be applied in the case of devolution of the separate property of Hindu male and the share of a Hindu male in the joint family property dying intestate and governed by the Mithakshara Law leaving a female heir mentioned in Class-I of the Schedule or a male in Class-I through such female heir. As far as the separate property of a Hindu male is concerned there cannot thus be any doubt that the devolution has to take place in accordance with the provisions in Chapter II of the Act and upon heirs in the order mentioned in S.B. In other words, the property shall first devolve jointly upon the relatives specified in Class-I of the Schedule. As observed by the full bench in Chettiar's case (supra) Sons' sons are not mentioned in Class-I of the Schedule though the son of a deceased son was mentioned. That is an indication to exclude grandsons from inheriting the property of a male Hindu dying intestate. 17. The Hindu Succession Act has thus radically changed or modified the prior law governing intestate succession among Hindus. That is an indication to exclude grandsons from inheriting the property of a male Hindu dying intestate. 17. The Hindu Succession Act has thus radically changed or modified the prior law governing intestate succession among Hindus. It is clear from the preamble of the Act that it is intended not merely to amend but to amend and codify the law relating to intestate succession among Hindus. Having said so the court cannot go outside the provisions of the Act and look into the law that prevailed before the introduction of the enactment. In this connection it is apposite to refer to the observations of Lord Herschell in Bank of England v. Vagliano -1891 AC. 107 quoted with approval by the Privy Council in Norendra Nath v. Kamalbasini Das - 23 Cal. 563. "The proper course is in the first instance to examine the language of the Statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a Statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions". 18. The position therefore is that the earlier law cannot be invoked in respect of matters specifically dealt with in the Hindu Succession Act. 18. The position therefore is that the earlier law cannot be invoked in respect of matters specifically dealt with in the Hindu Succession Act. The overriding effect of the Act in respect of matters dealt with in the Act is provided for in S.4 of the Act which lays down that any law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act and any text, rule or interpretation of Hindu Law or custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provisions has been made in the Act. In other words, the Act supersedes all existing laws in the matter of intestate succession among Hindus and the procedure to be followed in the matter of succession has been laid down in that enactment. Only matters affecting succession expressly saved from the operation of the Act continue to be governed by the previous law. S.6 of the Act deals only with the share of a co-parcener in a Mithakshara co-parcenery dying intestate. To a limited extent the section purports to affect the law relating to joint family property. It does not abrogate the right of succession by birth. But that Section only deals with Mithakshara coparcenery property and the devolution of the rights of a male Hindu over such property. As far as separate or self acquired property is concerned the devolution can only be under S.8 of the Act which lays down the rule of succession in respect of the property of a male Hindu dying intestate. As observed by the Madras High Court in Chettiar's case (supra) this position is directly derogatory of the law established according to the principles of Hindu Law. But this provision must prevail in view of the expression of intention in the statute that the provisions contained in the Act shall override the established provision in the text of Hindu Law. 19. In the light of the principles enunciated above the plaint schedule property which has been allotted to the first defendant in partition of joint family properties has to be treated as his separate property over which he has right of disposition. 19. In the light of the principles enunciated above the plaint schedule property which has been allotted to the first defendant in partition of joint family properties has to be treated as his separate property over which he has right of disposition. Plaintiffs who are his sons cannot therefore lay any claim over the property except as heirs coming under Class-I of the Schedule to the Act.' First defendant was therefore competent to deal with the property in any manner he liked. The property is therefore liable to be attached in execution of the decree obtained by the bank against the first defendant. That attachment is not liable to challenge. Having found that the property is the separate property of the first defendant the claim for partition is unsustainable. The finding of the court below that the property belongs to the joint family consisting of plaintiffs and first defendant is therefore set aside and the relief of partition is denied. 20. Learned counsel for the appellant has questioned the maintainability of the suit on account of the bar contained in S.100 of the Co-operative Societies Act. That section stipulates that no civil or revenue court shall have any jurisdiction in respect of any matter for which provision is made in the Act. A feeble attempt was made by the counsel to bring the dispute within S.69 of the Act. Evidently the dispute is not one coming within sub-clauses (a) to (h) of S.69(I) of the Act and S.100 is therefore not attracted. The suit is for partition of a property claiming the same to be one belonging to the joint family consisting of plaintiffs and first defendant. One fails to understand as to how the dispute comes within the purview of S.69 of the Act. This contention is therefore without any substance. , For the reasons stated above the appeal is allowed and in reversal of the judgment and decree of the court below the suit for partition is dismissed but in the circumstances parties are directed to suffer their respective costs.