Pedigree
K. Govindraj Pillai (Died 1950)
K.G. Kasavan (Died 1992) P1
K.S. Mani D1 (Died 2003) Parvathi P2
(Son of P1)
(Daughter of P1)
Born in 1943
Born in 1946
S. Madhan Raj D32
(Son of D1)
Hemavathi (Died)
(Daughter of P1)
Born in 1951
Lrs (D34 To D37)
S. Praveen Kumar D33
(Son of D1)
Emayavalli P3
(Daughter of P1)
Born in 1953
S. Vijaya D38
(wife of D1)
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Only son law
1) As per Hindu Succession Act, 1956 sec 5, Act not to apply to certain properties.
This Act shall not apply to- (ii) any estate which descends to a single heir by the term of any
enactment passed before the commencement of this Act.
P1 father died in 1950. P1 died in 1992 he was only son of his father. D1 was born in 1943
and he died in 2003 he was only son of P1 and P2 born in 1946 And P3 born in1953are
daughter of P1. P1 had a second daughter by name Hemavathi born in 1951 whose L.Rs
have come on record on their own as defendants 34 to 37. all three the daughter are married
before 1974. P1 wife and mother predeceased him. D32 and D33 are sons of D1 and
grandsons of P1 and D38 wife of D1.
D1 his only son of P1 was born in 1943 prior to commencement of Hindu Succession Act
1956. 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. as per the
mitakshara law in usage prior to the commencement of the 1956 act, once a son was born, he
acquired an interest in the coparcenary property as an incident of his birth. Hence a son
having been born prior to commencement of 1956 act would retain his share of the property
as a coparcener even after the commencement of 1956 act.
Reference to be made in In Sheela Devi and Ors vs Lal Chand and Anr. 2006 (8) SCC
581 A to C page 581 and Para 19.
2) D32 and D33 are sons of D1 and grandsons of P1. Grandson do not get right In
grandfather property. As per Hindu Succession Act 1956 sec 8 A son's son are not mentioned
as an heir under class I of the schedule, and, therefore, he could not get any right in the
property of his grandfather under the provision. Section 4 of the Hindu Succession Act
1956, clearly laid down that "save as expressly provided in the Act, 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 should cease to have effect with respect to any matter
for which provision was made in the Act". Section 8 of the Hindu Succession Act, 1956 as
noted before, laid down the scheme of succession to the property of a Hindu dying intestate.
The schedule classified the heirs on whom such property should devolve. Those specified
in class I took simultaneously to the exclusion of all other heirs. The right of a son's son in
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his grandfather's property during the lifetime of his father which existed under the Hindu
law as in force before the1956 Act, was not saved expressly by the Act, and therefore, the
earlier interpretation of Hindu law giving a right by birth in such property "ceased to have
effect". further in construing a Codification Act, the law which was in a force earlier should
be ignored and the construction should be confined to the language used in the new Act.
under the Hindu law, the property of a male Hindu devolved on his death on his sons and
grandsons as the grandsons also have an interest in the property. However, by reason of
section 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the son
alone inherits the property to the exclusion of his sons. No interest would accrue to the
grandsons of P1 in the property left by him on his death. As the effect of section 8 was
directly derogatory of the law established according to Hindu law, Further, since the existing
grandsons D32 and D33 at the time of the death of the grandfather P1 had been excluded,
will not get any interest from his grandfather P1. D1 alone took the interest of P1 by
survivorship.
As per Commissioner of wealth tax Kanpur v. Chander Sen AIR 1986 SC 1753 Refer Para
11,14,16, 16A,18,20,21,22. and As per Sheela Devi and others v. Lal Chand and Others
(2006) 8 SCC 581 Refer Para 18,19.
3) As per Hindu Succession Act, 1956 sec 5, This Act shall not apply to- (ii) any estate
which descends to a single heir by the term of any enactment passed before the
commencement of this Act. D1 is only son of P1. Interest of P1 passed on to D1 by
survivorship has a single heir As per law which stood prior 1956 act. Hindu law women’s
rights act 1933 ( Mysore act 10 of 1933)
Section 8(1) reads as follows:"8. (1)(a) At a partition of joint family property between a person and his son or sons,
his mother, his unmarried daughters and the widows and unmarried daughters of his
predeceased undivided sons and brothers who have left no male issue shall be entitled to
share with them.
(b)At a partition of joint family property among brothers, their mother, their unmarried
sisters and the widows and unmarried daughters of their predeceased undivided brothers
who have left no male issue shall be entitled to share with them;
(c)sub-sections (a) and (b) shall also apply mutatis mutandis to a partition among
other coparceners in a joint family.
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(d) Where joint family property passes to a single coparcener by survivorship, it shall so pass
subject to the right to share of the classes of females enumerated in the above subsections."
As per sec 8 (1) d when joint family property passes to a single coparcener by
survivorship, the right to shares is vested in all the females enumerated in all the
three clauses (a), (b) and (c). Clauses (a) and (b) refer to four classes of females viz. the
mother, the widow, the unmarried daughter and the unmarried sister. All these four
classes of females are within Clause (d). Clauses (a), (b), (c) and (d) of sub-section (1)
of Section 8 deal with four separate situations. Clause (a) deals with a partition of joint
family between a person and his sons. Clause (b) deals with the partition of joint
family
property among br
who have been entitled to shares are the mother of the concerned coparcener, his
unmarried daughters and widows and unmarried daughters of pre-deceased sons. when
they are one or more female heirs in any of the four classes of females viz the mother,
the widow, the unmarried daughter and the unmarried sister assumed partition take place
between those coparceners. joint family property does not passes to a single coparcener
by survivorship. When P1 wife and mother predeceased him and when they are on
female heirs in any of the four classes of females viz the mother, the widow, the
unmarried daughter and the unmarried sister assumed partition does not take place
between those coparceners. joint family property passes to a single coparcener by
survivorship. D1 alone took the interest of P1 by survivorship as per sec 8 (1) d Hindu
law women’s rights act 1933. Married daughter are not heir in any of three clauses (a),
(b) and (c) as per sec 8 (1) Hindu law women’s rights act 1933 . P2 born in 1946 And P3
born in 1953 are daughters of P1 and P1 had a second daughter by name Hemavathi she
was born in 1951 whose L.Rs have come on record on their own as defendants 34 to 37.
all the three daughter are born prior to 1956 act and all the three daughter married
before 1974. D1 in their written statement have stated P2 and P3 are not the members
of the coparcenary and P2 and P3 are not entitled to claim any share in the said
properties in Para 2,5,9 and D32 , D33 in their written statement have also stated P2
and P3 are not the members of the coparcenary and P2 and P3 are not entitled to claim
any share in the said properties in Para 2,5,9,14,15.
Nagendra Prasad Vs. Kempananjamma AIR 1968 SC 209 Refer Para 14 and 22
Thimmaiah v Ningamma AIR 2000 sc 3529 Refer Para 23
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4) P1 died in 1992 he was only son of his father. D1 was born in 1943 and he died in 2003
he was only son of P1 and P2 born in 1946 And P3 born in 1953 are daughters of P1 and P1
had a second daughter by name Hemavathi she was born in 1951 whose L.Rs have come on
record on their own as defendants 34 to 37. all the three daughter are born prior to 1956 act
and married before 1974. Married daughter are not heir in any of three clauses (a), (b) and
(c) as per sec 8 (1) Mysore act 1933. P1 wife and mother predeceased him. D32 and D33 are
sons of D1 and grandsons of P1. D38 wife of D1. Grandson do not get right In grandfather
property. As per Hindu Succession Act 1956 sec 8 A son's son are not mentioned as an heir
under class I of the schedule, and, therefore, he could not get any right in the property of
his grandfather under the provision. The right of a son's son in his grandfather's property
during the lifetime of his father which existed under the Hindu law as in force before
the1956 Act, was not saved expressly by the Act, and therefore, the earlier interpretation of
Hindu law giving a right by birth in such property "ceased to have effect". However, by
reason of section 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the
son alone inherits the property to the exclusion of his sons. No interest would accrue to
the grandsons of P1 in the property left by him on his death., Further, since the existing
grandson D32 and D33 at the time of the death of the grandfather P1 had been excluded, will
not get any interest from his grandfather P1. D1 alone took the interest of P1 by
survivorship as per sec 8 (1) d Hindu law women’s rights act 1933.
As per Commissioner of wealth tax Kanpur v. Chander Sen AIR 1986 SC 1753 Refer Para
11,14,16, 16A,18,20,21,22. and As per Sheela Devi and others v. Lal Chand and Others
(2006) 8 SCC 581 Refer Para 18,19.
Nagendra Prasad Vs. Kempananjamma AIR 1968 SC 209. Refer Para 14 and 19
5) As per Hindu Succession Act, 1956 sec 5, This Act shall not apply to- (ii) any estate
which descends to a single heir by the term of any enactment passed before the
commencement of this Act. . D1 is only son of P1. D32 and D33 are sons of D1 and D38
wife of D1. D1 alone took the interest of P1 by survivorship as per sec 8 (1) d Hindu law
women’s rights act 1933. When new section 6 of Hindu Succession act 2005 has been
substituted for section 6 of Hindu Succession Act, 1956. When law which stood prior to
1956 act apply. Then 1956 act does not apply. Evidently the provision of Hindu Succession
act 2005 Would Have No Application.
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