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CASE LAW ON THE ASPECT OF JOINT FAMILY PROPERTY/SUCCESSION

I. What is joint family property?

In V.D. Dhanwatey v. CIT: AIR 1968 SC 683 it was held:

“4. The general doctrine of Hindu law is that property acquired

by a karta or a coparcener with the aid or assistance of joint
family assets is impressed with the character of joint family
property. To put it differently, it is an essential feature of self-
acquired property that it should have been acquired without
assistance or aid of the joint family property. The test of self-
acquisition by the karta or coparcener is that it should be without
detriment to the ancestral estate. It is therefore clear that before
an acquisition can be claimed to be a separate property, it must
be shown that it was made without any aid or assistance from the
ancestral or joint family property.”

II. Merely because there is a joint family, there is no presumption that property
possessed by it’s members is joint family property.

In Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 it was held:

“The Hindu law upon this aspect of the case is well settled. Proof of
the existence of a joint family does not lead to the presumption that
property held by any member of the family is joint, and the burden rests
upon anyone asserting that any item of property was joint to establish the
fact. But where it is established that the family possessed some joint
property which from its nature and relative value may have formed the
nucleus from which the property in question may have been acquired, the
burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint
family property”.
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In Chattanatha Karayalar v. Ramachandra Iyer, AIR 1955 SC 799 it was held:

“Under the Hindu law, there is no presumption that a business standing

in the name of any member is a joint family one even when that member is
the manager of the family, and it makes no difference in this respect that the
manager is the father of the coparceners.”

III. In Satrughan Isser v. Sabujpari : AIR 1967 SC 272 the Court held:

“A Hindu coparcenary under the Mitakshara school consists of

males alone; it includes only those members who acquire by birth or
adoption interest in the coparcenary property. The essence of
coparcenary property is unity of ownership which is vested in the whole
body of coparceners. While it remains joint, no individual member can
predicate of the undivided property that he has a definite share therein.
The interest of each coparcener is fluctuating, capable of being enlarged
by deaths, and liable to be diminished by the birth of sons to
coparceners; it is only on partition that the coparcener can claim that he
has become entitled to a definite share. The two principal incidents of
coparcenary property are; that the interest of coparceners devolves by
survivorship and not by inheritance; and that the male issue of a
coparcener acquires an interest in the coparcenary property by birth, not
as representing his father but in his own independent right acquired by
birth.”
This was the legal position prior to the A.P Amendment Act of 1984 which
gave unmarried daughters share in joint family property and prior to the Hindu
Succession Amendment Act,2005 which made all daughters coparceners.

IV. What is blending/ thrown into common stock?

In Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama, AIR 1963 SC 1601 it
was held :
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“Law relating to blending of separate property with joint family

property is well-settled. Property separate or self-acquired of a member of a
joint Hindu family may be impressed with the character of joint family
property if it is voluntarily thrown by the owner into the common stock with
the intention of abandoning his separate claim therein: but to establish such
abandonment a clear intention to waive separate rights must be established.
From the mere fact that other member of the family were allowed to use the
property jointly with himself, or that the income of the separate property
was utilised out of generosity to support persons whom the holder was not
bound to support, or from the failure to maintain separate accounts,
abandonment cannot be inferred, for an act of generosity or kindness will
not ordinarily be regarded as an admission of a legal obligation.”

V. Coparcener has interest by birth in joint family property.

In Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa: AIR 1964
SC 510 it was held:
“A coparcener, whether he is natural born or adopted into the
family, acquires an interest by birth or adoption, as the case may be, in
the ancestral property of the family.
A managing member of the family has power to alienate for value
joint family property either for family necessity or for the benefit of
the estate.
An alienation can also be made by a managing member with the
consent of all the coparceners of the family.
The sole surviving member of a coparcenary has an absolute power
to alienate the family property, as at the time of alienation there is no
other member who has joint interest in the family. If another member
was in existence or in the womb of his mother at the time of the
alienation, the power of the manager was circumscribed as aforesaid
and his alienation would be voidable at the instance of the existing
member or the member who was in the womb but was subsequently
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born, as the case may be, unless it was made for purposes binding on
the members of the family or the existing member consented to it or
the subsequently born member ratified it after he attained majority. If
another member was conceived in the family or inducted therein by
adoption before such consent or ratification, his right to avoid the
alienation will not be affected.”

VI. There can be more than one preliminary decree in a partition suit.

In Phoolchand v. Gopal Lal, AIR 1967 SC 1470 , the Court held:

“ It is not disputed that in a partition suit the court has jurisdiction to

amend the shares suitably even if the preliminary decree has been passed
if some member of the family to whom an allotment was made in the
preliminary decree dies thereafter:

…there is nothing in the Code of Civil Procedure which prohibits the

passing of more than one preliminary decree if circumstances justify the
same and that it may be necessary to do so particularly in partition suits
when after the preliminary decree some parties die and shares of other
parties are thereby augmented. We have already said that it is not
disputed that in partition suits the court can do so even after the
preliminary decree is passed. It would in our opinion be convenient to
the court and advantageous to the parties, specially in partition suits, to
have disputed rights finally settled and specification of shares in the
preliminary decree varied before a final decree is prepared. If this is
done, there is a clear determination of the rights of parties to the suit on
the question in dispute and we see no difficulty in holding that in such
cases there is a decree deciding these disputed rights; if so, there is no
reason why a second preliminary decree correcting the shares in a
partition suit cannot be passed by the court. So far therefore as partition
suits are concerned we have no doubt that if an event transpires after the
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preliminary decree which necessitates a change in shares, the court can

and should do so; and if there is a dispute in that behalf, the order of the
court deciding that dispute and making variation in shares specified in
the preliminary decree already passed is a decree in itself which would
be liable to appeal.”
Followed in S.Sai Reddy v. S.Narayana Reddy1 and in Ganduri
Koteswaramma v. Chakiri Yanadi2.

VII. Powers of a father to alienate the joint family property.

(a) In Virdhachalam Pillai v. Chaldean Syrian Bank Ltd., : AIR 1964 SC 1425 it
was held:
“(1) A father can by incurring a debt, even though the same be
not for any purpose necessary or beneficial to the family so long as
it is not for illegal or immoral purposes, lay the entire joint family
property including the interests of his sons open to be taken in
execution proceedings upon a decree for the payment of that debt.
(2) The father can, so long as the family continues undivided
alienate the entirety of the family property for the discharge of his
antecedent personal debts subject to their not being illegal or
immoral.
In other words, the power of the father to alienate for satisfying
his debts, is co-extensive with the right of the creditors to obtain
satisfaction out of family property including the share of the sons
in such property.
(3) Where a father purports to burden the estate by a mortgage
for purposes not necessary and beneficial to the family, the
mortgage qua mortgage would not be binding on the sons unless
the same was for the discharge of an antecedent debt. Where there
is no antecedency, a mortgage by the father would stand in the
same position as an out and out sale by the father of family
property for a purpose not binding on the family under which he
receives the sale price which is utilised for his personal needs.
It need hardly be added that after the joint status of the family
is disrupted by a partition, the father has no right to, deal with the
family property by sale or mortgage even to discharge an

1
(1991) 3 SCC 647
2
(2011) 9 SCC 788
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antecedent debt, nor is the son under any legal or moral obligation
to discharge the post-partition debts of the father.
(4) Antecedent debt in this context means a debt antecedent in
fact as well as in time i.e. the debt must be truly independent and
not part of the mortgage which is impeached. In other words, the
prior debt must be independent of the debt for which the mortgage
is created and the two transactions must be dissociated in fact so
that they cannot be regarded as part of the same transaction.”

(b) This was reiterated in Manibhai v. Hemraj, (1990) 3 SCC 68, in the following words:

“Mulla in “Principles of Hindu Law” (15th edn.) in paragraph 295 has

dealt with the question of sale or mortgage of coparcenary property for
payment of antecedent debt as under:
“The father of a Joint Hindu Family may sell or mortgage the joint
family property including the sons’ interest therein to discharge a debt
contracted by him for his own personal benefit, and such alienation binds
the sons, provided — (a) the debt was antecedent to the alienation, and (b)
it was not incurred for an immoral purpose.
The validity of an alienation made to discharge an antecedent debt
rests upon the pious duty of the sons to discharge his father’s debt not
tainted with immorality. The more circumstance, however, of a pious
obligation does not validate the alienation. To validate an alienation so as
to bind the son, there must also be an antecedent debt. Generally, there is
no question of legal necessity in such a case. ‘Antecedent Debt’ means
antecedent in fact as well as in time, that is to say, that the debt must be
truly independent of and not part of the transaction impeached. A
borrowing made on the occasion of the grant of a mortgage is not an
antecedent debt.
To constitute a debt an “antecedent” debt it is not necessary that the
prior and subsequent creditors should be different persons. All that is
necessary is that the two transactions must be dissociated in time as well
as in fact.”
22. It is thus clear that where the sons are joint with their father, and
debts have been contracted by the father even for his own personal benefit,
the sons are liable to pay the debts provided they were not incurred for an
immoral or illegal purpose and such debts were antecedent to the
alienations impugned.
23. The liability to pay the debts contracted by the father, for his own
benefit, arises from an obligation or religion and piety which is placed
upon the sons under the Mitakshara law to discharge the father’s debt,
where the debts are not tainted with immorality. In any event an alienation
by the manager of the Joint Hindu Family even without legal necessity and
not tainted with immorality but for his personal benefit would be voidable
and not void.”
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(c) In Faqir Chand v. Harnam Kaur, AIR 1967 SC 727 it was held:
“In Brij Narain v. Mangla Prasad3 the Privy Council laid down five
propositions, of which the following three are material for the decision of
this appeal:
“(1) The managing member of a joint undivided estate cannot
alienate or burden the estate qua manager except for purposes of
necessity; but
(2) if he is the father and the other members are the sons he
may, by incurring debt, so long as it is not for an immoral purpose,
lay the estate open to be taken in execution proceeding upon a decree
for payment of that debt.
(3) If he purports to burden the estate by mortgage, then
unlessthat mortgage is to discharge an antecedent debt, it would not
bind the estate.”

Brij Narain case1 received the approval of this court in Luhar Amritlal
Nagji v. Doshi Jayantilal Jethalal42.

4. The second proposition laid down in Brij Narain case1 is founded

upon the pious obligation of a Hindu son limited to his interest in the
joint family property to pay the debt contracted by the father for his
own benefit and not for any immoral or illegal purpose. By incurring
the debt, the father enables the creditor to sell the property in
execution of a decree against him for payment of the debt. The son is
under a pious obligation to pay all debts of the father, whether secured
or unsecured. We think that the second proposition applies not only to
an unsecured debt but also to a mortgage debt which the father is
personally liable to pay.”

3
(1923) LR 51 (IA) 129,139
4
(1960) 3 SCR 840,852-853
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VIII. What is the remedy of a purchaser of undivided interest of a coparcener?

In M.V.S. Manikayala Rao v. M. Narasimhaswami, : AIR 1966 SC 470 the Court held:

“ it is well settled that the purchaser of a coparcerner’s

undivided interest in joint family property is not entitled to
possession of what he has purchased. His only right is to sue for
partition of the property and ask for allotment to him of that which
on partition might be found to fall to the share of the coparcener
whose share he had purchased. His right to possession “would date
from the period when a specific allotment was made in his favour”.

IX. In Gowli Buddanna v. CIT,: AIR 1966 SC 1523 :

“Property of a joint family therefore does not cease to belong to the

family merely because the family is represented by a single coparcener
who possesses rights which an owner of property may possess.”

X. When a coparecener of a joint Hindu Family, receives share in property after

partition, in his hands it continues to be joint family property.

(a) In N.V. Narendranath v. CWT, (1969) 1 SCC 748, at page 754 it was held that

“In the present case the property which is sought to be taxed in

the hands of the appellant originally belonged to the Hindu
Undivided Family belonging to the appellant, his father and his
brothers. There were joint family properties of that Hindu Undivided
Family when the partition took place between the appellant, his
father and his brothers and these properties came to the share of the
appellant and the question presented for determination is whether
they ceased to bear the character of joint family properties and
became the absolute properties of the appellant. As pointed out by
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the Judicial Committee in Arunachalam case5 — It is only by

analysing the nature of the rights of the members of the undivided
family, both those in being and those yet to be born, that it can be
determined whether the family property can properly be described as
‘joint property of the undivided family’. Applying this test it is clear
that, though in the absence of male issue the dividing coparcener
may be properly described in a sense as the owner of the properties,
that upon the adoption of a son or birth of a son to him, it would
assume a different quality. It continues to be ancestral property in his
hands as regards his male issue for their rights had already attached
upon it and the partition only cuts off the claims of the dividing
coparceners. The father and his male issue still remain joint. The
same rule would apply even when a partition had been made before
the birth of the male issue or before a son is adopted, for the share
which is taken at partition by one of the coparceners is taken by him
as representing his branch. Again the ownership of the dividing
coparcener is such “that female members of the family may have a
right to maintenance out of it and in same circumstances to a charge
for maintenance upon it”. (See Arunachalam case). It is evident that
these are the incidents which arise because the properties have been
and have not been ceased to be joint family properties. It is no doubt
true that there was a partition between the assessee, his wife and
minor daughters on the one hand and his father and brothers on the
other hand. But the effect of partition did not affect the character of
these properties which did not cease to be joint family properties in
the hands of the appellant. Our conclusion is that when a coparcener
having a wife and two minor daughters and no son receives his share
of the joint family properties on partition, such property in the hands
of the coparcener belongs to the Hindu Undivided Family of himself,
his wife and minor daughters and cannot be assessed as his

5
1957 Appeal Cases 540 (Privy Council)
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individual property. It is clear that the present case falls within the
ratio of the decision of this Court in Gowali Buddanna6 case and the
Appellate Tribunal was right in holding that the status of the
respondent was that of a Hindu Undivided Family and not that of an
individual.”

(b) In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, AIR 1986 SC 79 :

“The character of any joint family property does not change with
the severance of the status of the joint family and a joint family
property continues to retain its joint family character so long as the
joint family property is in existence and is not partitioned amongst
the co-sharers. By a unilateral act it is not open to any member of the
joint family to convert any joint family property into his personal
property.”

XI. Case law on Sec.14 of the Hindu Succession Act,1956.

In V. Tulasamma v. Sesha Reddy, AIR 1977 SC 1944 :

“(1) that the provisions of Section 14 of the 1956 Act

must be liberally construed in order to advance the object
of the Act which is to enlarge the limited interest possessed
by a Hindu widow which was in consonance with the
changing temper of the times;
(2) it is manifestly clear that sub-section (2) of Section
14 does not refer to any transfer which merely recognises a
pre- existing right without creating or conferring a
new title on the widow. This was clearly held by this Court
in Badri Pershad case.

6
(1960)60 ITR 293
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(3) that the Act of 1956 has made revolutionary and

far-reaching changes in the Hindu society and every
attempt should be made to carry out the spirit of the Act
which has undoubtedly supplied a long felt need and tried
to do away with the invidious distinction between a Hindu
male and female in matters of intestate succession;
(4) that sub-section (2) of Section 14 is merely a
proviso to sub-section (1) of Section 14 and has to be
interpreted as a proviso and not in a manner so as to
destroy the effect of the main provision.”
31. We have given our anxious consideration to the
language of Section 14(1) and (2) and we feel that on a proper
interpretation of Section 14(2) there does not appear to be any
real inconsistency between Section 14(1), the explanation
thereto and sub-section (2). To begin with, Section 14(1) does
not limit the enlargement of the estate of a Hindu widow to any
particular interest in the property. On the other hand the
Explanation to Section 14(1) brings out the real purpose of
Section 14(1) by giving an exhaustive category of cases where
principle of Section 14(1) has to operate i.e. to cases where a
Hindu female would get an absolute interest. The argument of
the learned Counsel for the appellant is that as the right of
maintenance was a pre-existing right, any instrument or
transaction by which the property was allotted to the appellant
would not be a new transaction so as to create a new title but
would be only in recognition of a pre-existing right, namely,
the right of maintenance. On the other hand Mr Natesan
appearing for the respondents submitted that the object of the
proviso was to validate rather than to disturb the past
transactions which had placed certain restrictions or curbs on
the power of a Hindu female and as the language of the proviso
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is very wide there is no warrant for not applying it to cases

where pre-existing rights are concerned. In the alternative. Mr
Natesan argued that the Hindu women’s right to maintenance is
not a legal right unless an actual charge is created in respect of
the property and is, therefore, not enforceable by law. It is,
therefore, not correct to describe a claim of a Hindu female’s
right to maintenance simpliciter as a pre-existing right because
all the necessary indicia of a legal right are wanting.

XII. Possession of joint family property by a member is not adverse to other

members.

In Annasaheb Bapusaheb Patil v. Balwant, AIR 1995 SC 895 =(1995) 2 SCC 543, it was
held:

“16. In the case of a Hindu joint family, there is a community of interest

and unity of possession among all the members of the joint family and every
coparcener is entitled to joint possession and enjoyment of the coparcenary
property. The mere fact that one of the coparceners is not in joint possession
does not mean that he has been ousted. The possession of the family
property by a member of the family cannot be adverse to the other members
but must be held to be on behalf of himself and other members. The
possession of one, therefore, is the possession of all. The burden lies heavily
on the member setting up adverse possession to prove adverse character of
his possession by establishing affirmatively that to the knowledge of other
member he asserted his exclusive title and the other members were
completely excluded from enjoying the property and that such adverse
possession had continued for the statutory period. Mutation in the name of
the elder brother of the family for the collection of the rent and revenue does
not prove hostile act against the other.
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XIII. Case law under Sec.8 of the Hindu Succession Act:

Joint Family Property inherited by son from father after 1956 is his
self acquired property.

(a) In CWT v. Chander Sen, (1986) 3 SCC 567 the Court declared:

“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 judgments, 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 taken the contrary view.
…
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The Andhra Pradesh High Court in the case of CWT v.

Mukundgirji7 had also to consider the aspect. It held that a perusal of
the Hindu Succession Act, 1956 would disclose that Parliament
wanted to make a clear break from the old Hindu law in certain
respects consistent with modern and egalitarian concepts. For the
sake of removal of any doubts, therefore, Section 4(1)(a) was
inserted. The High Court was of the opinion that it would, therefore,
not be consistent with the spirit and object of the enactment to strain
provisions of the Act to accord with the prior notions and concepts
of Hindu law. That such a course was not possible was made clear
by the inclusion of females in Class I of the Schedule, and according
to the Andhra Pradesh High Court, to hold that the property which
devolved upon a Hindu under Section 8 of the Act would be HUF
property in his hands vis-a-vis his own sons would amount to
creating two classes among the heirs mentioned in Class I. viz. the
male heirs in whose hands it would be joint family property vis-à-vis
their sons: and female heirs with respect to whom no such concept
could be applied or contemplated. The intention to depart from the
pre-existing Hindu law was again made clear by Section 19 of the
Hindu Succession Act which stated that if two or more heirs succeed
together to the property of an intestate, they should take the property
as tenants-in-common and not as joint tenants and according to the
Hindu law as obtained prior to Hindu Succession Act two or more
sons succeeding to their father’s property took as joint tenants and
not tenants-in-common. The Act, however, has chosen to provide
expressly that they should take as tenants-in-common. Accordingly
the property which devolved upon heirs mentioned in Class I of the
Schedule under Section 8 constituted the absolute properties and his
sons have no right by birth in such properties. This decision,
however, is under appeal by certificate to this Court. The aforesaid

7
(1983) 144 ITR 18(AP)
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reasoning of the High Court appearing at pp. 23 to 26 of Justice

Reddy’s view in CWT v. Mukundgirji appears to be convincing.

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 though the son of a predeceased son and not the son
of a son who is intended to he 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 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 and 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.
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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.
25. In the aforesaid light the views expressed by the Allahabad
High Court, the Madras High Court, the Madhya Pradesh High
Court, and the Andhra Pradesh High Court, appear to us to be
correct.”

This has been reiterated in Yudhishter Vs. Ashok Kumar8, Sheel Devi v. Lal
Chand and another9 and in Uttam v. Saubhag Singh and others10.

XIV. Law applicable to joint family property governed by the Mitakshara school prior
to the amendment in 2005 by Act 39 of 2005 is set out in Anar Devi v. Parmeshwari Devi,
(2006) 8 SCC 656 in the following terms:
“11. … we hold that according to Section 6 of the Act when a
coparcener dies leaving behind any female relative specified in Class I
of the Schedule to the Act or male relative specified in that class
claiming through such female relative, his undivided interest in the
Mitakshara coparcenary property would not devolve upon the surviving
coparcener, by survivorship but upon his heirs by intestate succession.
Explanation 1 to Section 6 of the Act provides a mechanism under
which undivided interest of a deceased coparcener can be ascertained
and i.e. that 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. It
means for the purposes of finding out undivided interest of a deceased
8
(1987) 1 SCC 204
9
(2006) 8 SCC 581
10
(2016) 4 SCC 68
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coparcener, a notional partition has to be assumed immediately before

his death and the same shall devolve upon his heirs by succession which
would obviously include the surviving coparcener who, apart from the
devolution of the undivided interest of the deceased upon him by
succession, would also be entitled to claim his undivided interest in the
coparcenary property which he could have got in notional partition.”

Recently, in Uttam Vs. Saubhag Singh and others .. (2016) 4 SCC 68 also the
Court summed up in the following terms:

“(i) When a male Hindu dies after the commencement of the Hindu
Succession Act, 1956, having at the time of his death an interest in
Mitakshara coparcenary property, his interest in the property will
devolve by survivorship upon the surviving members of the
coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be disposed of
by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in
the proviso to Section 6, which states that if such a male Hindu had
died leaving behind a female relative specified in Class I of the
Schedule or a male relative specified in that class who claims
through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by testamentary
or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener
who is governed by Section 6 proviso, a partition is effected by
operation of law immediately before his death. In this partition, all
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the coparceners and the male Hindu’s widow get a share in the joint
family property.
(v) On the application of Section 8 of the Act, either by reason of the
death of a male Hindu leaving self-acquired property or by the
application of Section 6 proviso, such property would devolve only
by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after
joint family property has been distributed in accordance with Section
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.”

XV. Section 6 of the Hindu Succession Act, 1956 after its amendment in 2005 by
amending Act 39 of 2005.

According to the new Section 6, daughter of a coparcener becomes a coparcener

by birth in her own right and liabilities in the same manner as the son w.e.f. 09-09-2005
except (a) where the dispossession or alienation including any partition has taken place
before 20-12-2004 and (b) where testamentary dispossession of property has been made
before 20-12-2004.

In Ganduri Koteswaramma and another Vs. Chakiri Yanadi… (2011) 9 SCC

788, where a preliminary decree was passed in a partition suit prior to the coming into
effect of the Hindu Succession (Amendment) Act, 2005 and after it came into force, the
daughters filed application invoking Section 6 (as amended) for passing another
preliminary decree so as to include coparcenery properties in their share, which had been
excluded by operation of law existing prior to 2005 Act, the Supreme Court held that the
trial Court shall do so and amend the preliminary decree. It observed that the suit for
partition is not disposed of by passing of the preliminary decree, that only by a final
decree, joint family property is partitioned by metes and bounds, that after passing of a
preliminary decree, the suit continues until the final decree is passed, and if in the
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interregnum events occur necessitating change in shares, the Court can amend the
preliminary decree or pass another preliminary decree re-determining the rights and
interests of the parties having regard to the changed situation.

In Danamma Vs. Amar .. (2018) 3 SCC 343, the Supreme Court held that clause
(a) of sub-Section (1) of Section 6 which states that the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner as the son would be
prospective in operation whereas clause (b) which states that they would have same rights
in the coparcenery as she would have if she had been a son and clause (c) which states
that they would be subject to the same liabilities in respect of the said coparcenery
property as that of a son and other parts of sub-section (1) of Section 6 as well as sub-
section (2) would be retro-active in operation and amended Section 6 applied to
daughters born prior to 17-06-1956 or thereafter (between 17-06-1956 and 08-09-
2005) provided they are alive on 09-09-2005, the date when the Amendment Act of
2005 came into force. The Court held that the partition suit was filed in 2002, since
during its pendency, the 2005 Amendment came into force, though preliminary decree
was passed in 2007, it requires to be amended taking into account the change in law
brought by 2005 Amendment.