Hindu Succession Act Does Not Put An End To Coparcenary Rights, Sons And Daughters Shall Have Rights In Property As Coparceners: Madras High Court

Justice N Anand Venkatesh observed the above while considering a second appeal filed by S. Sampoornam claiming share in the ancestral property for himself and his three sisters, defendants 2 to 4 from his father, first defendant.

The appellant claimed that the property was ancestral in nature and was initially owned by the great grand father Thalaivirichan Reddy. On the demise of Thalaivirichan Reddy, his three sons inherited the property. One of the son Kathavaraya Reddy had three sons Munirathinam, Shanmugam and Mani. This Shanmugam is the first respondent in the appeal and father of the appellant and respondents 2 to 4.

The appellant further submitted that the respondent sold an extent of 36 cents in favour of the 5th defendant through a sale deed. He therefore filed a suit to set aside the sale deed and for the relief of partition allotting 1/5th share in the suit properties.

The respondent had submitted that according to a family arrangement between the three sons of Kathavaraya reddy each was alloted specific portion to an extent of 1.07 acres. Therefore, he claimed that he was the absolute owner with respect to this 1.07 acres.

The appellant relied on the decision of the Supreme Court in Arshnoor Singh Vs.Harpal Kaurand others (2019) where under a similar circumstance, the court had held that the property was Coparcenory property.

The court agreed with the observation made in the above case and stated as follows -

"It is clear from the above judgment that when the Hindu Succession Act, 1956 was not in force, the old Hindu Mitakshara law was governing the field. Under the Mitakshara law whenever a male ancestor inherits any property from any of his parental ancestors up to three degrees above him, then his legal heirs upto three degrees below him, will get an equal right as co- parceners in that property. This position was altered after the coming into force of Section 8 of the Hindu Succession Act, 1956. After this provision came into force, where the son inherits property belonging to the father or grandfather, he does not take it as a co-parcener and he inherits the property in his individual capacity."

Since the great great grandfather Thalaivirichan Reddy died even before coming into force of the Hindu Succession Act the property was governed under the Mitakshara law and whatever was inherited by the sons of Talaivirichan Reddy will continue to retain the character of a co-parcenary property in the hands of his sons. The first respondent could enjoy the property in his individual capacity only till the birth of his sons/daughters. This position continues even in situations where joint family properties are partitioned and allotted to each sharer.

Thus, even though the respondent claimed that he enjoyed the property in his individual capacity and his heirs could not claim share in the property during his lifetime, the same was not accepted by the court.

The court however was not in favour on disturbing the sale deed and stated that the 1^st defendant is held to have already dealt with his share in the suit property. The court thus allotted ¼ share to the plaintiff and defendants 2 to 4 in the property that remains after the extent that has already been sold.

Case Name - S. Sampoornam v. C.K Shanmugam

Case No- SA.No.729 of 2016

Citation - 2022 Livelaw (Mad) 143