Ratio of Supreme Court Judgment in “Uttam vs Soubhag Singh & others” on Hindu Law (2016) 4 SCC 68.
S.Basavaraj, Daksha Legal, Bangalore
- Please note. Amended Section 6 of the Hindu Succession Act, dated 9:9:2006 has NO application to this judgment. This is clear from para 8 of the judgment which says *“the amendment to Section 6, made in 2005, would not govern the rights of the parties in the present case”*. Therefore the judgments of the Supreme Court in (1) Prakash & Ors. Vs. Phulavati & Ors, (2) Danamma @ Suman Surpur vs Amar and (3) Mangamal @ Thulasi and anr. vs T.B.Raju and Ors have NO application to this case.
- The question is only as to *“Whether a son born AFTER the succession opens can sue for partition even in respect of ancestral property”*. This means suppose if Mr. A owner of ancestral properties died, say in 1980, the succession opens at that point of time. The ancestral properties would fall to the share of his sons Mr.B, Mr. C and Mr. D. If Mr. B’s son C is born before 1980, only then he can ask for partition of the ancestral properties. This is because he was alive when the succession. However, if he is born after 1980, the ancestral property is already vested in his father by virtue of Section 8 of the Hindu Succession Act and he can NOT sue his father for partition of even ancestral properties.
- Many experts on Hindu Law do not agree with ratio in Uttam case since the Supreme Court says even the joint Hindu family will sever the moment succession opens. Severance of joint family status is individual members of joint Hindu family and death of the original owner of ancestral will not automatically end the joint family status.
- Hence, the ratio of “Uttam vs Soubhag Singh & others” is that the son of a person (who got ancestral property by succession upon the death original owner) can NOT seek partition of ancestral properties if he is born AFTER the succession opens (after the death of original owner i.e example grandfather. The property would vest absolutely with his father. He can seek partition only if he was born before the date of succession being opened.
This appears to be the ratio of the judgment according to me. If you have contrary view or questions, please post them.
Hindu Succession Act, 1956 — Ss. 6 proviso (as it stood prior to amendment in 2005), 8, 4, 19 and 30 — Succession to joint family property prior to 2005 amendment: When male Hindu, having interest in Mitakshara coparcenary property, died intestate after commencement of HSA, leaving behind a Class I female heir (his widow in present case) and sons, then by operation of proviso to S. 6 deceased’s interest in coparcenary property would devolve by intestate succession under S. 8 and not by survivorship under S. 6. After devolution of joint family property as per S. 8 HSA upon death of male Hindu intestate, property would cease to be joint family property and said female heir and other coparceners succeeding to the same would hold their respective share in property as tenants-in-common and not as joint tenants. Therefore, grandson born after death of the male Hindu cannot maintain suit for partition claiming his share by division of alleged joint family property. [Uttam v. Saubhag Singh, (2016) 4 SCC 68]
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