UTTAMversusSAUBHAG SINGH & ORS.

                             [2016] 2 S.C.R. 100



A                                  UTTAM
                                       v

                        SAUBHAG SINGH & ORS.
                       (Civil Appeal No. 2360of2016)
B                             MARCH 02, 2016
            [KURIAN JOSEPH AND R. F. NARIMAN, JJ.)
          Hindu Succession Act, 1956:
          s.6 (as a111ended) -Applicability of - Suit for partition de< ,,ed
C   in 2000 - A111end111ent to s. 6 111ade in 2005 would not govern the
    rights of the parties in view of proviso (i) to s.6'of the amended
    provision.
          s.8 - Suit for partition by plaintiff-appellant against his father
  and paternal uncles on the ground that suit property was ancestral
D property and that being a coparcener, he had a right by birth in the
  said property in accordance with the Mitakshara Law - Claim. of
  defendants that suit property was not ancestral property and that
  an earlier partition had taken place by which the plaintiff's father
  had become separate - Held: On the death of the grandfather of
  the plaintiff in 1973, the proviso to s.6 wo11/d apply inasm11ch as
E
  the grandfather of the plaintiff had left behind his widow, who was
  a Class I female heir - Equally, upon the application of explanation
  1 to the said Section, a partition must be said to have been effected
  by operation of law immediately before his death - This being the
  case, the plaintiff would be entitled to a share 011 this partition taking
F place in 1973 - Ho11•eve1: plai111!ff was born only subsequent to the
  death of the grandfather and therefore no such share could be
  allotted to him - On the death of the grandfather in 1973, the joint
  fa111i/y property which was ancestral property in the hands of the
  grandfather and the other coparceners, devolved by succession 11/
  s.8 of the Act and the ancestral property ceased to be joint fa111i/y
G property and the other coparceners and his widow held the property
  as tenants in co111111on and not as joint tenants ·- This being the
  case, on the birth of the plaintW' in 1977 the said ancestral property,
  not being joint family property would render the suit for partition
  not maintainable.
H
                                      100
                UTTAM v. SAUBHAG SINGH                          101


     law applicable to joint family property governed by the     A
Mitakshara School prior to the amendment of 2005 - Discussed
     Dismissing the appeal, the Court
      HELD: 1. It is common ground between the parties that
since the present suit was filed only in 1998 and the decree in
the said ·suit was passed on 20.12.2000, that the amendment to B
Section 6, made in 2005, would not govern the rights of the parties
in the present case. This becomes clear from a reading of the
proviso (i) to Section 6 of the amended provision. A partition
having been effected by a court decree of 20.12.2000, which is
prior to 9'" September, 2005, (which is the date of commencement c
of the Amending Act), would not be affected. [Para 8] [107-B-C,
E-F]
      2. The law applicable to joint family property prior to the
amendment of 2005 is (i) When a male Hindu dies after the
commencement of the Hindu Succession Act, 1956, having at D
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 E
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 F
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 G
effected by operation of law immediately before his death. In
this partition, all 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 H
102             SUPREME COURT REPORTS                      (2016] 2 S.C.R.


A     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
8
      property as tenants in common and not as joint tenants. (Para 20]
      [114-F-H; 115-A-E]
            3. Applying the law to the facts of this case, it is clear that
      on the death of the grandfather in 1973, the joint family property
      which was ancestral property in the hands of the grandfather and
c     the other coparceners, devolved by succession under Section 8
      of the Act. This being the case, the ancestral property ceased to
      be joint family property on the date of death of the grandfather,
      and the other coparceners and his widow held the property as
      tenants in common and not as joint tenants. This being the case,
o     on the date of the birth of the appellant in 1977 the said ancestral
      property, not being joint family property, the suit for partition of
      such property would not be maintainable. [Para 21) [115-E-GJ
            State of Maharashtra v. Narayan Rao Sham Rao
            Deshmukh and Ors. (1985) 3 SCR 358; Shyama Devi
 E          (Smt) and Ors. v. Manju Shukla (Mrs) and Am: (1994)
            6 SCC 342: 1994 (3) Suppl. SCR 362; Commissioner
            of Wealth Tax. Kanpur and Others i: Chander Sen and
            Others (1986) 3 SCC 567; Yudhishter v. Asl10k Kumar
            (1987) 1 SCC 204: 1987 (1) SCR 516; Bhanwar Singh
            v. Puran (2008) 3 SCC 87: '.!008 (2) SCR 775 - relied
 F          on.
            Bhanwar Singh v. Purim (2008) 3 SCC 87:2008 (2)
            SCR 775; K. Magdum v. H.K. Maf!.dum (1978) 3 S.C.R.
            761; Dharma Shamrao Agalawe v. Pan_durang Miragu
            Agalawe (1988) 2 SCC 126: 1988 (2) SCR 1077;
 G          Sheela Devi 1( Lal Chand (2006) 8 SCC 581: ·2006 (6)
             Suppl. SCR 874; Rohit Chauhan v. Surinder Singh
            (2013) 9. SCC 419: 2013 (7) SCR 897 - referred to.
                              Case Law Reference
             2008 (2) SCR 775                  relied on.      Para 7
 H           (1978) 3 S.C.R. 761               referred to.    Para 11
                     UTTAM v. SAUBHAG SINGH                                          103



       (1985) 3 S.C.R. 358                      relied on.       Para 13             A
       1994 (3) Suppl. SCR 362                  relied on.       Para 14
       (1986) 3 sec 567                         relied on.       Para 16
       1987 (1) SCR 516                         referred to.     Para 18
       2008 (2) SCR 775                         referred to.     Para 19
       1988 (2) SCR 1077                        referred to.     Para20
                                                                                     B
       2006 (6) Suppl. SCR 874                  referred to.     Para 20
       2013 (7) SCR 897                       · referred to.     Para 20
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2360
 of2016
      From the Judgment and Order dated 29. i 0.2013 of the High Court               C
 of Madhya Pradesh at Indore in Secoffd Appeal No. 206 of 2005
       Sushi! Kumar Jain, Sr. Adv., Abhinav Gupta, Manu Maheshwari,
 (For Ms. Pratibha Jain), Advs. with hiin for the Appellants
        Niraj Sharma, Sum it Kumar Sharma, Advs., for the Respondents.
        The Judgment of the Court was delivered by "                                 D

        R. F. NARIMAN, J. I. Leave granted.
         2. The present appeal is by the plaintiff who tiled a suit for partition,
 being Suit No.SA of 1999 beforethe Second Civil Judge, Class II Devas,
 Madhya Pradesh, dated 28. I 2. i 99S, in which the first four defendants             E
 happened to be his father (defendant No.3 ), and his father's three brothers
 i.e. defendant Nos. 1,2 and 4. He claimed a 1/8'" share in the suit property
 on the footing that the suit property was ancestral property, and that,
 being a coparcener, he had a right by birth in the said property in
 accordance with the Mitakshara Law. A joint written statement was
 filed by all four brothers, including the plaintiff's father, claiming that the      F
 suit property was not ancestral property, and that an earlier partition had
 taken place by which the plaintiff's father had become separate. The
 trial court, by its•order dated 20.12.2000 decreed the plaintiff's suit holding
 that it was admitted by OW. I Mangilal that the property was indeed
 ancestral property, and that, on the evidence, there was no earlier partition       G
 of the said property, as pleaded by the defendants in their written
 statements.
         3. The first Appellate Court, by its judgment dated 12.1.2005,
  confirmed the finding that the property was ancestral and that no earlier
· partition between the brothers had in fact taken place. However, it held           H
104               SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A      that the plaintiff's grandfather, one Jagannath Singh having died in 1973,
       his widow Mainabai being alive at the time of his death, the said Jagannath
       Singh 's share would have to be distributed in accordance with Section 8
       of the Hindu Succession Act, 1956 as if the said Jagannath Singh had
       died intestate, and that being the case, once Section 8 steps in, the joint
       family property has to be divided in accordance with rules of intestacy
B
       and not survivorship. This being so, no joint family property remained to
       be divided when the suit for partition was filed by the plaintiff, and that
       since the plaintiff had no right while his father was alive, the father alone
       being a Class I heir (and consequently the plaintiff not being a Class I
       heir), the plaintiff had no right to sue for partition, and therefore the suit
c      was dismissed and consequently the first appeal was allowed.
              4. Following the same line ofreasoning and several judgments of
       this Court, the High Court in second Appeal dismissed the said appeal,
       holding:-
              " 15. Thus in view of the provisions contained in Sections 4,6, 8
D             and Schedule of the Act as well as the law settled by the aforesaid
              judgments, it is clear that after coming into force of the Act grand-
              son has no birth right in the properties of grand-father and he
              cannot claim partition during lifetime of his father.
              16. In the present case, it is undisputed that Jagannath had died in
 E            the year 1973, leaving behind respondents No. I to 4 i.e. his four
              sons covered by Class I heirs of the schedule therefore, the
              properties had devolved upon them when succession had opened
              on the death of Jagannath. It has also been found proved that no
              partition had taken place between respondents No. I to 4. The
 F            appellant who is the grand son of Jagannath is not entitled to claim
              partition during the lifetime of his father Mohan Singh in the
              properties left behind by Jagannath since the appellant has no
              birth right in the suit properties.
              17. In view of the aforesaid, the substantial questions of law are
 G
              answered against the appellant by holding that the first appellate
              court has committed no error in dismissing the suit for partition
              filed by the appellant referring to Section 8 of the Act and holding
              that during the lifetime of Mohan Singh, the appellant has no right
              to get the suit property partitioned."
           5. It is this judgment that has been challenged before us in appeal.
 1-1
                   UTTAM v. SAUBHAG SINGH                                    105
                       [R. F. NARIMAN, J.]

        6. Shri Sushi I Kumar Jain, learned senior advocate appearing on A
behalfofthe appellant, took us through various provisions of the Hindu
Succession Act, and through several judgments of this Court, and
contended that Section 6, prior to its amendment in 2005, would govern
the facts of this case. He conceded that as Jagatinath Singh's widow
was alive in 1973 at the time of his death, the case would be governed
                                                                                B
by the proviso to Section 6, ru1d that therefore the interest of the deceased
in the Mitakshara coparcenary property would devolve by intestate
succession under Section 8 of the said Act. However, he argued that it
is only the interest of the deceased in such coparcenary property that
would devolve by intestate succession, leaving the joint family property
otherwise intact. This being the case, the plaintiff had every right to sue c
for partition while his father was still alive, inasmuch as, being a coparcener
and having a right of partition in the joint family property, which continued
to subsist as such afterthe death of Jagannath Singh, the plaintiff's right
to sue had not been taken away. He went on to argue that Section 8 of
the Act would not bar such a suit as it would apply only at the time of the
                                                                                D
death of Jagannath Singh i.e. the grandfather of the plaintiff in 1973 and
not thereafter to non suit the plaintiff, who as a living coparcener ofjoint
family property, was entitled to a partition before any other death in the
joint family occurred. He also argued that the Hindu Succession Act
 only abrogated the Hindu Law to the extent indicated, and that Sections
 6 and 8 have to be read harmoniously, as a result of which the status of E
 joint family property which is recognized under Section 6 cannot be said
 to be taken away upon the application of Section 8 on the death of the
 plaintiff's grandfather in 1973.
       7. Shri Ni raj Sharma, learned counsel appearing on behalf of the
respondents, countered these submissions, and also referred to various         F
provisions of the Hindu Succession Act and various judgments of this
Court to buttress his submission that once Section 8 gets applied by
reason of the application of the proviso to Section 6, the joint family
property ceases to be joint family property thereafter, and can only be
succeeded to by application of either Section 30 or Section 8, Section 30
applying in case a will had been made and Section 8 applying in case a         G
member of the joint family dies intestate. He, therefore, supported the
judgment of the High Court and strongly relied upon two judgments in
particular, namely Commissioner of Wealth Tax, Kanpur and Others
v. Chander Sen and Others, (1986) 3 SCC 567, and Bhanwar Singh
v. Pu ran, (2008) 3 SCC 87, to buttress his submission that once Section       H
106              SUPREME COURT REPORTS                          (2016] 2 S.C.R.



A     8 is applied to the facts of a given case, the property thereafter ceases
      to be joint family property, and this being the case, no right to partition a
      property which is no longer joint family property continues to subsist in
      any member of the coparcenary.
              8. Having heard learned counsel for the parties, it is necessary to
B     set out the relevant provisions of the Hindu Succession Act. 1956. The
      Act, as its long title states, is an Act to amend and codify the law relating
      to intestate succession among Hindus. Section 4 overrides the Hindu
      Law in force immediately before the commencement of this Act insofar
      as it refers to any matter for which provision is made by the Act. Section
      4 reads as follows:
c
             "4. Overriding effect of Act.-Save as otherwise expressly
             provided in thisAct,-
             (a) 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 this Act, shall cease to have effect with respect
D
             to any matter for which provision is made in this Act;
             (b) any other law in force immediately before the commencement
             of this Act shall cease to apply to Hindus in so far as it is
             inconsistent with any of the provisions contained in this Act."
      Section 6 prior to its amendment in 2005 reads as follows:
E
              "6. Devolution of interest in coparcenary property.-When
             a male Hindu dies after the commencement of this 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
 F           accordance with this Act :
             Provided that, 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
 G           shall devolve by testamentary or intestate succession, as the case
             may be, under this Aci a11d not by survivorship.
             Explanation 1.-For the purposes of this section, 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 befo1'e his death,
 H
                   UTTAM v. SAUBHAG SINGH                                       107
                       [R. F. NARIMAN, J.]

      irrespective of whether he was entitled to claim partition or not.        A
      Explanation 2 .-Nothing contained in the proviso to this section
      shall be construed as enabling a person who had separated himself
      from the coparcenary before the death of the deceased or any of
      his heirs to claim on intestacy a share in the interest referred to
      therein."                                                                 B
It is common ground between the parties that since the present suit was
filed only in 1998 and the decree in the said suit was passed on 20.12.2000,
that the amendment to Section 6, made in 2005, would not govern the
rights of the parties in the present case. This becomes clear from a
reading of the proviso (i) to Section 6 of the amended provision which
states as follows:-
                                                                                c
       " Provided that nothing contained in this sub-section shall affect or
       invalidate any disposition or alienation including any partition or
       testamentary disposition of property which had taken place before
       the 20th day of December, 2004."
                                                                                 D
The explanation to this Section also states thus:
       "Expla11ation.~Forthe purposes oftl1is section "partition" means
       any partition made by execution of a deed of partition duly registered
       under the Registration Act, 1908 ( 16 of 1908) or partition effected
       by a decree of a court."                                                  E
From a reading of the aforesaid provision it becomes clear that a partition
having been effected by a court decree of20. I 2.2000, which is prior to
9'" September, 2005, (which is the date of commencement of the
Amending Act), would not be affected.
     9. The next important Section from our point of view is Section 8,          F
which reads as follows:-
       "8. General rules of succession in the case of males.-The
       property ofa male Hindu dying intestate shall devolve according
       to the provisions of this Chapter-
       (a) firstly, upon the heirs, being the relatives specified in Class 1 G
       of the Schedule;
       (b) secondly, if there is no heir of Class I, then upon the heirs,
       being the relatives specified in Class II of the Schedule;
       (c) thirdly, if there is no heir of any of the two classes, then upon
       the agnates of the deceased; and                                          H
108             SUPREME COURT REPORTS                          [2016] 2 S.C.R.


A           (d) lastly, if there is no agnate, then upon the cognates of the
            deceased."
                                     THE SCHEDULE
                                        Class I
            Son; daughter; widow; mother; son of a pre-deceased son; daughter
B           of a pre-deceased son; son of a pre-deceased daughter; daughter
            of a pre-deceased daughter; widow of a pre-deceased son; son
            of a pre-deceased son of a pre-deceased son; daughter of a pre-
            deceased son of a pre-deceased son; widow of a pre-deceased
            son of a pre-deceased son, son of a pre-deceased daughter of a
            pre-deceased daughter; daughter of a pre-deceased daughter of
c           a pre-deceased daughter; daughter of a pre-deceased son of a
            pre-deceased daughter; daughter of a pre-deceased daughter of
            a pre-deceased son."
           10. Also of some importance are Sections 19 and 30 of the said
      Act which read as follows:-
D
            " 19. Mode of succession of two or more heirs.-lf two or
            more heirs succeed together to the property of an intestate, they
            shall take the property,-
            (a) save as otherwise expressly provided in this Act, per capita
            and not per st i1pes: and
 E
            (b) as tenants-in-common and not as joint tenants.
            30. Testamentary succession.- Any Hindu may dispose of
            by will or other testamentary disposition any property, which is
            capable of being so disposed of by him or by her, in accordance
            with the provisions of the Indian Succession Act, 1925 (39 of
 F          1925), or any other law for the time being in force and applicable
            to Hindus.
            Explanation.- The interest of a male Hindu in a Mitakshara
            coparcenary property or the interest of a member of a tani·ad,
            /avazhi, i//0111, kutumba or kavaru in the property of the tanmd,
 G          tavazhi, i/10111, kutumba or kavaru shall, notwithstanding anything
            contained in this Act, or in any other law for the time being in
            force, be deemed to be property capable of being disposed of by
            him or by her within the meaning of this section."
              11. Before analysing the provisions of the Act, it is necessary to
      refer to some of the judgments of this Court which have dealt, in particular,
 H
                   UTTAM v. SAUBHAG SINGH                                      109
                       [R. F. NARIMAN, J.]

with Section 6 before its amendment in 2005, and with Section 8. In A
GK. Magdum v. H.K. Magdum, ( 1978) 3 S.C.R. 761, the effect of
the old Section 6 was gone into in some detail by this Court. A Hindu
widow claimed partition and separate possession of a 7/24'" share in
joint family property which consisted of her husband, herself and their
two sons. If a partition were to take place during her husband's lifetime B
between himself and his two sons, the widow would have got a 1/4'"
share in such joint family property. The deceased husband's 1/4'" share
would then devolve, upon his death, on six sharers, the plaintiff and her .
five children, each having a 1/24'" share therein. Adding 1/4'" and !/
24th, the plaintiff claimed a 7/24"' share in the joint family prope1ty. This
Court held:-                                                                  C
      "The Hindu Succession Act came into force on June 17, 1956.
      Khandappa having died after the commencement of that Act, to
      wit in 1960, and since he had at the time of his death an interest in
      Mitakshara coparcenary property, the pre-conditions of Section 6
      are satisfied and that section is squarely attracted. By the              D
      application of the normal rule prescribed by that section,
      Khandappa's interest in the coparcenary property would devolve
      by survivorship upon the surviving members of the coparcenary
      and not in accordance with the provisions of the Act. But, since
      the widow and daughter are amongst the fomale relatives specified
      in class I of the Schedule to the Act and Khandappa died leaving          E
      behind a widow and daughters, the proviso to Section 6 comes
      into play and the normal rule is excluded. Khandappa 's interest in
      the coparcenary property would therefore devolve, according to
      the proviso, by intestate succession under the Act and not by
      survivorship. Testamentary succession is out of question as the           F
      deceased had not made a testamentary disposition though, under
      the explanation to Section 30 of the Act, the interest of a male
      Hindu in Mitakshara coparcenary property is capable of being
      disposed of by a will or other testamentary disposition.
       There .is thus no dispute thatthe nonnal rule provided for by Section    G
       6 does not apply, that the proviso to that section is attracted and
       that the decision of the appeal must turn on the meaning to be
       given to Explanation I of Section 6. The interpretation of that
       Explanation is the subject-matter of acute controversy between
       the parties."
                                                                                H
110             SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A             12. This Court, in dealing with the proviso and explanation I of
      Section 6, held that the fiction created by explanation I has to be given
      its full effect. That being the case, it was held:-
            "13. In order to ascertain the share of heirs in the property of a
            deceased coparcener it is necessary in the very nature of things,
B           and as the very first step, to ascertain the share of the deceased
            in the coparcenary property. For. by doing that alone can one
            determine the extent of the claimant's share. Explanation I to
            Section 6 resorts to the simple expedient, undoubtedly fictional,
            that the interest of a Hindu Mitakshara coparcener "shall be
            deemed to be" the share in the property that would have been
c           allotted to him if a pa1tition of that property had taken place
            immediately before his death. What is therefore required to be
            assumed is that a partition had in fact taken place between the
            deceased and his coparceners immediately before his death. That
            assumption, once made, is irrevocable. In other words, the
D           assumption having been made once forthe purpose of ascertaining
            the share of the deceased in the coparcenary property, one cannot
            go back on that assumption and ascertain the share of the heirs
            without reference to it. The assumption which the statute requires
            to be made that a partition had in fact taken place must permeate
            the entire process of ascertainment of the ultimate share of the
 E          heirs, through al I its stages. To make the assumption at the initial
            stage for the limited purpose of ascertaining the share of the
            deceased and then to ignore it for calculating the quantum of the
            share of the heirs is truly to permit one's imagination to boggle.
            All the consequences which flow from a real partition have to be
 F           logically worked out, which means that the share of the heirs
             must be ascertained on the basis that they had separated from
             one another and had received a share in the partition which had
            taken place during the lifetime of the deceased. The allotment of
             this share is not a processual step devised merely for the' purpose
            of working out some other conclusion. It has to be treated and
 G           accepted as a concrete reality, something that cannot be recalled
             just as a share allotted to a coparcener in an actual partition cannot
             generally be recalled. The inevitable corollary of this position is
             that the heir will get his or her share in the interest which the
             deceased had in the coparcenary property at the time of his
             death, in addition to the share which he or she received or must
 H
             be deemed to have received in the notional partition."
                    UTTAM v. SAUBHAG SINGH                                         III
                        [R. F. NARIMAN, J.]

        13. In State of Maharashtra v. Narayan Rao Sham Rao                        A
Deshmnkh and Ors., ( 1985) 3 S.C .R. 358, this Court distinguished the
judgment in Magdum 's case in answering a completely different question
that was raised before it. The question raised before the Court in that
case was as to whether a female Hindu, who inherits a share of the joint
family property on the death of her husband, ceases to be a member of
                                                                                   8
the family thereafter. Th is Cou1t held that as there was a partition by
operation of law on application of explanation I of Section 6, and as
such partition was not a voluntary act by the fe111ale Hindu, the fe111ale
 Hindu does not cease to be a 111ember of the joint family upon such
paitition being effected.
        14. In Shyanrn Devi (Smt) and Ors. v. Manju Shukla (Mrs)                   C
and Anr., ( 1994) 6 SCC 342, this Court again considered the effect of
the proviso and explanation I to Section 6. and followed the judgment of
this Cour't in Magdum's case (supra). This Court went on to state that
explanation I contains a for111ula for deter111ining the share of the deceased
on the date of his death by the law effecting a pa1tition immediately               0
 before a male Hindu's death took place.
        I 5. On application of the principles contained in the aforesaid
decisions, it becomes clear that. on the death of Jagannath Singh in I 'J73,
 the proviso to Section 6 would apply inasmuch as Jagannath Singh had
 left behind his widow, who was a Class I female heir. Equally. upon the
 application of explanation I to the said Section, a partition must be said         E
 to have been effected by operation oflaw immediately before his death.
 This being the case. it is clear that the plaintiff would be entitled to a
 share on th is partition taking place in I973. We were informed. however.
 that the plaintiff was born only in 1977, and that, for this reason. (his
 birth being after his grnnd father's death) obviously no such share could
 be allotted to him. !\!so, his case in the suit filed by him is not that he is
 entitled to this share but that he is entitled to a 1/8'" share on dividing the
 joint family property between 8 co-sharers in 1998. What has therefore
 to be seen is whether the application of Section 8. in 1973, on the death
 of Jagannath Singh would make the joint family property in the hands of
 the father, uncles and the plaintiff no longer joint family property after         G
 the devolution of Jagannath Singh's share, by application of Section 8,
 among his Class I heirs. This question would have to be answered with
 reference to some of the judgments of this Court.
       16. In Commissioner of Wealth Tax, Kanpur and Others v.
Chander Sen and Others, (1986) 3 SCC 567, a partial partition having                H
112              SUPREME COURT REPORTS                        [2016] 2 S.C.R.



A     taken place in 1961 between a father and his son, their business was
      divided and thereafter carried on by a partnership firm consisting of the
      two of them. The father died in 1965, leaving behind him his son and
      two grandsons, and a credit balance in the account of the firm. This
      Court had to answer as to whether credit balance left in the account of
      the firm could be said to be joint family property afterthe father's share
B
      had been distributed among his Class I heirs in accordance with Section
      8 of the Act.
             17. This Court examined the legal position and ultimately approved
      of the view of 4 High Courts, namely, Allahabad, Madras, Madhya
      Pradesh and Andhra Pradesh, while stating that the Gujarat High Court's
c     view contrary to these High Courts, would not be correct in law. After
      setting out the various views of the five High Courts mentioned, this
      Court held:
            "It is necessary to bear in mind the preamble to the Hindu
            Succession Act, 1956. The preamble states that it was an Act to
 D          amend and codify the law relating to intestate succession among
            Hindus.
             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 1 and only includes son
 E           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
 F           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
 G           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-a-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-a-vis son and female heirs with respect to whom
 H            no such concept could be applied or contemplated. It may be
                 UTTAM v. SAUBHAG SINGH                                     113
                     [R. F. NARIMAN, J.]

     mentioned that heirs in Class I of Schedule under Section 8 of the     A
     Act included widow, mother, daughter of predeceased son etc.
     Before we cone! ude we may state that we have noted the
     observations of Mui/as Commentmy on Hindu Lall', 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.                B
     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.
     In the aforesaid light the views expressed by the Allahabad High
                                                                            c
     Court, the Madras High Court, t_he Madhya Pradesh High Court,
     and the Andhra. Pradesh High Court, appear to us to be correct.
     With respect we are unable to agree with the views of the Gujarat
     High Court noted hereinbefore." [at paras 21-25]
                                                                            D
       18. In Yudhishter v. Ashok Kumar, ( 1987) I SCC 204 at page
210, this Court followed the law laid down in Chander Sen 's case.
      19. In Bhanwar Siu~h v. Purau, (2008) 3 SCC 87, this Court
followed Chander Sen's case and the various judgments following
Chander Sen 's case. This Couit held:-
                                                                             E
      "The Act brought about a sea change in the matter of inheritance
      and succession amongst Hindus. Section 4 of the Act contains a
      non obstante provision in terms whereof 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, ceased to have effect with respect to any matter for which        F
      provision is made therein save as otherwise expressly provided.
       Section 6 of the Act, as it stood at the relevant time, provided for
       devolution of interest in the coparcenary property. Section 8 lays
     . down the general rules of succession that the property of a male
       dying intestate devolves accordingtothe provisions of the Chapter G
       as specified in Clause (I) of the Schedule. In the Schedule
       appended to the Act, natural sons and daughters are placed as
       Class I heirs but a grandson, so long as father is alive, has not
       been included. Section 19 oftheAct provides that in the event of
       succession by two or more heirs, they will take the property per H
114              SUPREME COURT REPORTS                        [2016] 2 S.C.R.



/\          capita and not per stirpes, as also tenants-in-co111111on and not as
            joint tenants.
            Indisputably, Bhima left behind Sant Ram and three daughters. In
            terms of Section 8 of the Act, therefore, the properties of Bhima
            devolved upon Sant Ram and his three sisters. Each had I/4th
B           share in the property. Apart from the legal position, factually the
            same was also retlected in the record-of-rights. A partition had
            taken place amongst the heirs of Bhima.
            Although the learned first appellate court proceeded to consider
            the effect of Section 6 of the Act, in our opinion, the same was
            not applicable in the facts and circumstances of the case. In any
c           event, it had rightly been held that even in such a case, having
            regard to Section 8 as also Section 19 of the Act, the properties
            ceased to be joint family property and all the heirs and legal
            representatives ofBhima would succeed to his interest as tenants-
            in-common and not as joint tenants. In a case of this nature, the
D           joint coparcenar) did not continue." (at paras 12-15)
              20. Some otherjudgmeuts were cited before us for the proposition
      tlrntjoint family property continues as such even with a sole surviving
      coparccner, and if a son is born to such coparcener thereafter, the joint
      family property continues as such. there being no hiatus merely by vi1tue
      of the fact there is a sole survi,·ing coparcener. Dhar111a Shamrao -
 E
      /\gala we v. Pandurang Miragu /\galawe ( 1988) 2 SCC 126. Sheela
      Devi v. Lal Chand. (2006) 8 SCC 581. and Rohil Chauhan v. Surinder
      Singh (2013) 9 SCC 419. were cited for this purpose. None of these
      judgments would lake the appellant any further in view of the fact that in
      none of them is there any consideration of the effect of Sections 4, 8 and
 F     19 of the Hindu Succession Act. The law, therefore, insofar as it applies
      to joint family propc1ty governed by the Mitakshara ScJ!_ool, prior to the
      amendment of2005. could therefore be summarized as follows:-
      (i) When a male Hindu dies aller the cuinmencement of the Hindu
      Succession Act, 1956, having at the time of his death an interest in
G     Mitakshara coparccna1y property, his interest in the prope1ty 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 ofa male Hindu in Mitakshara coparcenary property is
 H
                     UTTAM v. SAUBHAG SINGH                                        115
                         [R. F. NARIMAN, J.]

  property that can be. disposed of by him by will or other testamentary           A
  disposition.
  (iii) Asecond 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             8
  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 the coparceners         C
  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
  ofSectio~ 6 proviso, sucl) property would devolve only by intestacy and
  not survivorship.                                                                D
  (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.         E
        21. Applying the law to the facts of this case, it is clear that on the
 death of Jagannath Singh in 1973, the joint family property which was
 ancestral property in the hands of Jagannath Singh and the other
 coparceners, devolved by succession under Section 8 of the Act. This
 being the case, the ancestral property ceased to be joint family property
                                                                                    F
 on the date of death of Jagannath Singh, and the other coparceners and
 his widow held the property as tenants in common and not as joint tenants.
 This being the case, on the date of the birth of the appellant in 1977 the
 said ancestral property, not beingjoint family property, the suit for partition
 of sucl1 property would not be maintainable. The appeal is consequently
 dismissed with no order as to costs.                                              G
  Devika Gujral                                               Appeal dismissed.