BALHAR SINGH Vs. SARWAN SINGH AND ORS.

JUDGEMENT

(1.) SECTION 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property and postulates that when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. In terms of the proviso however 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 Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and nor by survivorship. It is common ground that Section 6, as substituted by Act 39 of 2005 w.e.f. 9th September, 2005, has made the daughter of a coparcener also entitled to claim as a male coparcener. That provision was not in existence earlier. Be that as it may the question that falls for determination in the present appeal shall have to be answered by reference to Section 6 as it stood before the said amendment.

(2.) AIR 1986 SC 1753; held that succession to the property in the case at hand shall be governed by general rule of succession as stipulated in Section 8 of the Hindu Succession Act, 1956. In Chander Sen's case (supra) while dealing with the provisions of the Wealth Tax Act and the effect of partition of joint family between the father and his only son, this Court noticed the cleavage in the judicial opinion expressed by several high courts in the country and resolved the same by accepting the view taken by the High Courts of Allahabad, Madras, Madhya Pradesh and Andhra Pradesh while overruling that taken by the High Court of Gujarat. This Court observed:

(3.) THEIR Lordships also explained the decision in the case of Gangu v. Chandrabhagabai reported in (1908) 32 Bom. 275 and held as follows: