1. Ganta Narayanaswamy who owned the suit properties died in the year 1962 leaving behind him a son (plaintiff) and daughter (2nd defendant) by his pre-deceased first wife, his second wife (the first defendant) and a daughter (3rd defendant) by the second wife. The plaintiff was divided from his father even during the latter's lifetime. The present suit relates to the properties which fell to the father's share at the time of division. The plaintiff claims that on his father's death he is entitled to a 1/4th share in the suit properties. He bases his claim on the provisions of Section 8 of the Hindu Succession Act. The second defendant supports the case of the plaintiff, while defendants 1 and 3 plead that Section 6 and not Section 8 applies and the plaintiff, a divided son, cannot succeed as an heir. The plaintiff's suit was decreed by the trail Court and dismissed by the appellate Court. He has preferred this second appeal.
2. The only question for consideration is whether Section 6 or Section 8 of the Hindu Succession Act is applicable. Now, the Hindu Succession Act is not a mere amending Act but an amending and codifying Act and it has an overriding effect over texts, rules or interpretation of Hindu Law or custom or usage in respect of matters covered by the Act the over any other law in so far as such law is inconsistent with the provisions of the Act. Sections 6 and 8 are as follows:------
Section 6. '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 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 shall devolve by testamentary or interstate succession, as the case may be, under this Act and not by survivorship.'
Explanation 1: For the purpose 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 in a partition of the property death, irrespective of whether he was entitled to claim partition or not.
Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has 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'.
Section 8. 'The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter.
(a) firstly, upon the heirs, being the relatives specified in class I 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
(d) lastly, if there is n agnate, then upon the cognates of the deceased.:'
3. A plain reading of the two sections shows that Section 8 is a general provision and Section 6 is in the nature of an exception to Section 8. Section 8, therefore, applies to all cases of intestacy of a male Hindu except those to which Sec. 6 applies. Section 6 applies to the case of a male Hindu having at the time of his death an interest in a Mitakshara coparcenary property and provides that his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. Since Section 6 contemplates devolution by survivorship of coparcenary property, it is clear that it postulates the existence of a coparcenary. Now there cannot be a coparcenary consisting of a single individual even if the property in his possession is coparcenary property. The coparcenary contemplated by Section 6 is a coparcenary consisting of more than one individual, where on the death of one coparcener the property can devolve on the others by survivorship. That is clear from the fact that Section 6 provides for devolution by survivorship upon the surviving members of the coparcenary. There can be no question of devolution by survivorship unless there are two or more members of the coparcenary. It is significant that the word used to describe the property is 'coparcenary' and not 'joint family'. That is a departure from the expression 'joint family property' used in the Hindu Women's Right to Property Act of 1937. It is well known that a coparcenary is not the same thing as a joint family. A coparcenary is a narrower body than a joint family and consists of only those persons who have a present interest in the property and who can enforce a partition, if they desire. The test of coparcenary is the right to enforce a partition. On the other hand, a joint family includes not merely coparceners but their mothers, wives or widows and unmarried daughters. The existence of a number of female relatives none of whom is entitled to claim partition does not convert a joint family into a coparcenary such as the one contemplated by Section 6 of the Hindu Succession Act.
4. Sri Surya Rao, learned counsel for the respondents relied on a decision of a Full Bench of the Andhra Pradesh High Court in Venkata Rao v. Raja Rao, (1967) 2 Andh WR 141 (FB) and urged that property falling to the share of a coparcener at the time of partition is not separate property in his hands but joint family or coparcenary property. In that case the learned Judge were dealing with Section 3(2) of the Hindu Women's Right to Property Act which provided that on the death of a Hindu having at the time of his death an interest in a joint Hindu family property, his widow would have in that property the same interest as he himself had. Section 3 (1) of the 1937 Act provided that on the death of a Hindu leaving separate property, his widow would be entitled to the to the same share in the property as his son. The Full Bench held that the property falling to the share of a member of a joint family on partition between himself and the other members of the family would not be his separate property but would be joint family property. The antithesis there was between 'separate property' as mentioned in Section 3 (1) and 'joint family property' as mentioned in Section 3 (2) and there was no question of any property devolving by survivorship. Under the Hindu Succession Act no special provision is made for the devolution of the separate property of a member of a joint Hindu family. All property devolves in accordance with the provisions of Section 8 of the Act. Section 8 does not qualify the word 'property' either by the words 'separate' or 'self-acquired' or by the words 'coparcenary' or 'joint family'. Section 6, however, provides for an exception in the case of coparcenary property which is to devolve by survivorship on other coparceners. Where there are no coparceners to whom the property can go by survivorship, Section 8 will hold the filed and succession has to be in accordance with the provisions of Section 8. In this connection, I may refer to the judgment of a Division Bench of the Madras High Curt in Arunachalathamma v. Rama Chandran, AIR 1963 Mad 225. IN that case the learned Judges pointed out:
'................ It must be taken that Section 8 is intended to apply to all kinds of separate property possessed by a Hindu , whether it be self-acquired or not obtained on partition from his family when he has no sons himself. Section 6 being in the nature of an exception, should be strictly construed and will only apply to a case where a member thereof dies undivided and without leaving any female heirs mentioned in class I. We are therefore of opinion that Section 6 will not apply to property held by a person as a sole surviving coparcener or to a separate property obtained at a partition in the family, when that person has left no undivided sons of his own.'
5. Explanation 2 to Section 6 also does not help the defendants in the present case. According to the proviso to Section 6 the interest of a male Hindu in coparcenary property shall not devolve by survivorship if there is a female relative specified in class '1' of the Schedule or a male relative specified in that class who claims through such female relative. That is to say, even though the property is coparcenary property which should devolve on the surviving coparceners in accordance with the main provision of Section 6, it shall not so devolve if there is a female relative specified in class (1) etc. In such an event, the property shall devolve by testamentary or intestate succession as the case may be. Explanation 2 provides that a separated member of the coparcenary cannot take advantage of the proviso to claim a share in property. An example will make the position clear. Suppose A dies leaving a divided son B, an undivided son C and a widow D. At the time of his death A and C alone are members of a coparcenary. On A's death his half share in the coparcenary property shall not go by survivorship to C since there is a female relative specified in Class I. It shall devolve by intestate succession. The two sons and the widow will be heirs but Explanation 2 excludes the divided son B. The result therefore is that the half share of A in the coparcenary property shall devolve by intestate succession on C., his undivided son and D, his widow. That is all the effect of the explanation. Where property which ought to devolve by survivorship on an undivided coparcener under the main provision of Section 6 devolves on the heirs as if on intestacy because of the existence of the female relative etc., mentioned in the proviso to Section 6, the explanation provides that the divided coparcener, nonetheless, shall not claim as an heir. The explanation does not however prevent a divided son from claiming succession on intestacy if there is no person on whom the property can devolve by survivorship in accordance with the provisions of Section 6. Section 8 applies to every case of a Hindu dying intestate leaving no one on whom the property can devolve by survivorship.
6. Sri Surya Rao, urges that the trial Court had no pecuniary jurisdiction to entertain the suit. The plaintiff's suit as laid was for partition of Ac. 6-25 cents of wet land and Ac. 8-06 cents of dry land. The plaintiff's share was valued for the purposes of Court fee and jurisdiction at Rs. 4,655/-. Defendants 1 and 3 pleaded that an extent of Ac. 3-00 of land was in the possession of the 2nd defendant and if a decree was to be granted that land also should be made available for partition and included in the decree. The trial Court held that the three acres in the possession of 2nd defendant should also be included in the partition decree. Defendants 1 and 3 now contend that if the three acres are included, the suit would be beyond the pecuniary jurisdiction of the District Munsif's Court. Assuming so, I am not satisfied that the under valuation has prejudicially affected the result of the suit on merits. I, therefore, decide the case on merits in accordance with the provisions of Section 51 (2) of the Andhra Pradesh Court-fees and Suits Valuation Act.
7. The result therefore is that the Second Appeal is allowed and the suit is decreed as prayed for. The appellant is entitled to his costs. Leave refused.
8. Appeal allowed.