 Good evening one and all and amongst us we have Mr. S.S. Surinder and Rao, I would say a famous lawyer, not only for his knowledge in the courts now, but with the flux of time since he has been taking sessions, his knowledge especially on the civil side has been well received. Today, what are the conceptual changes after the judgement of the post- Your price is very low. After the judgement of post-Vanita Sharma's case, what are the changes, conceptual changes which have come forth? Mr. S.S. Surinder and Rao would be sharing his knowledge. As usual, we are quite set to send that it will go well because his sessions are always well received. Over to you sir. Good evening everybody. We are here today to discuss a few aspects of the law of partition that has suffered a chain post-Vanita Sharma's case. In order to understand what are the changes in the law after Vinita Sharma's case, we should first understand the law prior to 992005 and then try to find out what are the changes that has occurred subsequent to 992005. In view of the interpretation of the amended section 6 of the Hindu Succession Act. What is basically partition? Partition essentially means severance of joint family and consequently allotment of properties exclusively to the share of the co-partners. This is practically called as Vibhaga in colloquial terms. Partition consists of two stages. One is severance of status where the properties are not divided by meets and bounds and followed by actual division of the properties by meets and bounds. Severance of status takes place when one of the co-partners expresses his intention to separate himself from the family and communicates it to the other to other persons who would be affected thereby. So by mere communication of unequivocal intention by one of the co-partners to all those who are affected by such declaration would result in a severance of status. As soon as there is a severance of status, though there is no actual partition of the properties, the share of the person who expresses his intention to separate gets ascertained. His share will not go up by a death in the family or come down by a birth in the family. Therefore the share gets ascertained immediately after a severance of status takes place. What is the severance of status and when does it actually get affected has been very nicely put by Justice K. Subarao. In a decision reported in AIR 1964, Supreme Court 136, the famous case of Raghavamma v. Chanchamma, if you go to head note G, this is how the concept is explained by Justice K. Subarao. It is settled law that a member of a joint family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality. The Hindu law text supports the proposition that severance in status is brought about by unilateral exercise of discretion. One cannot however declare or manifest his mental state in vacuum. To declare is to make known to assert to others. Others must necessarily be those affected by this declaration. Therefore, a member of a joint family seeking to separate himself from others will have to make known his intention to other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. What form that manifestation to take would depend upon the circumstances of each case. Thus, the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member's severance from the family. So this is very important. By making an unilateral declaration, the person who makes a declaration alone gets separated from the family. It is not as if the whole family gets separated unless the others also want their share also to be separated. Therefore, it is implicit in the expression declaration that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harboring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who are affected thereby. So therefore, the most important thing is that the person affected must communicate his intention to all other persons affected by the declaration. So the other persons who are affected by the declaration are those persons who are also entitled to share in the proportionality. All those persons will have got to be intimated. In fact, this communication of intention can take place by various modes. It could be done by issue of a notice. It could be done by filing of a suit. The third mode is by even by an oral communication to all other persons who are affected by the declaration, if you are able to give proper evidence that this oral intention is communicated to the other persons who are entitled to share in these properties. Then, from what date this severance takes place is another question that arises for consideration. That question is also decided in the in Raghava Mahavarsha Chanchama case wherein it is stated, when once the knowledge of the expression of intention to separate is brought home to the persons affected, it relates back to the date when the intention was formed and expressed. So suppose the intention is expressed today, but the communication takes place to the lost of the persons affected after one month. Then the actual division in status relates back to the date on which it was first expressed. So therefore, during the interregnum between the date of first expression and the date of communication to the person affected thereby, then during that interregnum, if any transactions have taken place relating to the joint family, those transactions would be saved. But the division of status would take place on the date on which the intention was unilaterally expressed. This is what the Supreme Court has said, but between the two dates, the person expressing the intention may lose his interest in the family property. He may withdraw his intention to divide. He may die before the intention to divide is conveyed to other persons of the family with the result that his interest survives to the other members. A manager of a joint family may salve the entire family properties for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked, without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and common sense demands that the limitation which avoids the confusion of title must be placed on it. As the doctrine of relation back involves retroactivity, it cannot affect vested rights. It would follow that though the date of severance is that of the manifestation of the intention to separate, the rights accrue to others in the joint family properties between the said manifestation and the knowledge of it by others would be saved. So therefore, the actual division of status takes place on the date when the intention is expressed. But if there is a delay in communication of this intention, if during the interignum any transactions have taken place, then those transactions are saved. And if during this interignum, the person who has expressed his intention, he has got a right to withdraw his intention to separate, then also there would be no division of status. Therefore my submission means that we have got to clearly keep in mind the date on which the severance of status would actually take place and the date on which it is communicated to the others. Then what would be the effect of the severance of status? I would say that a father will assume a position where a father has two sons, a daughter and a wife. One of the sons wants to separate himself from the family. So one of the sons has, if it is prior to 2005, one of the sons would have a one-third share in the personal properties. So therefore, by expression of this intention, his one-third share gets fixed. Suppose the other son dies later. Then the share of the son who has expressed his intention, though there is no actual division of the properties will not go up. Suppose another son is born in the family. The share of the person who has expressed his intention will not get reduced. So therefore, his share gets predicated immediately after there is a division of status. But though there is no actual partition by means and bounds, and therefore, and one other thing also happens that the person who has separated himself from the family by expression of a unilateral intention, if he should be in possession of the properties belonging to the family subsequently. And with the aid of that income, he purchases some other properties. Those properties will not become joint family properties. Those properties would be self acquired properties after the division of status. For this purpose, we will make a reference to one decision of the Supreme Court where this question is considered by the Supreme Court. That is JIR-1972 Supreme Court-1279, that is M.M. Aryamurthy v. Suparayashiti. This is what is stated in that particular decision that if a member of the joint family remains in possession of the entire properties of the family. After a severance in status, there is no presumption that the property acquired in his name is what is important. Property acquired in his name after the severance of status must be regarded as acquired for the family. Where rents and profits are received by the member in possession after division of status, he would be liable to account for the same, but the funds in the hands of that member does not get impressed with any trust in favor of the other members. Therefore, if such a member acquires property with such funds in his possession, the other members cannot claim any share in this property. So this is what happens. Suppose the manager of the family himself expresses his intention to separate himself from the family. And immediately after the expression of this intention is communicated to the other members, there is a division of status. After this division of status, there is actually no division of the property by means and bounds. He continues in possession of these properties. He remains the manager of the family properties. He gets the income from these properties also to his hands. With this fund, he purchases some other properties. Then in such a situation, that property which he has purchased with the funds belonging to the family, though technically speaking would be joint family funds. The property acquired from those funds would not be joint family property. All that the other members could ask is, we have received 10 lakhs of rupees. Give us our share in the funds, but the property acquired with these funds would not be joint family property at all. So therefore, this has got to be kept in mind. Then in 1956, when the Hindu Succession Act was brought into force, a normal idea of a notional partition was brought into operation. This is how Section 6 read. The body of Section 6 very clearly says that when a male Hindu dies, in fact prior to 2005 enactment, it was only a male who was a co-pastor. A female was not a co-pastor at all. Therefore this is how Section 6 read. When a male Hindu dies, after the commencement of this act, having at the time of his death, an interest in metaxura or co-pastory property, his interest in the property shall devolve by survivorship upon the surviving members of the co-pastory and not in accordance with this act. Therefore, if a male Hindu dies with a share in the co-pastory property and he dies, the property would go to the other members of the family by survivorship. This is subject to an exception. The exception says that where the co-pastor has left behind him, a male relative specified in clause 1 of the schedule, or a female relative climbing through such male relative, then his share in the property would not go by survivorship and that share would either go by interstate or testamentary succession only. An explanation is added. So in order to find out what is the share to which that male co-pastor was entitled to, the explanation says for the purpose of this section, the interest of a Hindu metaxura co-pastor 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 before his death, irrespective of whether he was entitled to climb a partition or not. So therefore, in order to find out what was the share that he was entitled to, if a deemed partition or a notional partition was imagined just before his death to give a simple illustration of the same father, two sons and a daughter. Let us suppose that one of the sons dies. So in a situation like this prior to 2005, the father and both the sons would be entitled to a one-third share each and the one-third share which the son who dies would only go by succession to his wife and children and the share of the person male co-pastor who died would be the share that would have been allotted to him at a partition if a partition should take place just before his death. So therefore, his one-third share goes by testamentary succession if he has executed a will or if he has not executed a will, it will go by interstate succession to his wife and children. This was what was, therefore, the concept of this notional partition was dealt with by the Supreme Court in one leading decision of the Supreme Court reported in AIR 1972 Supreme Court 1279. Sorry, not one minute. AIR 1978 Supreme Court 1239. This is a decision of Justice Senior Chandrachore where this question has been dealt with in great detail. This is how the Supreme Court has said in that decision. In order to ascertain what is therefore required to be assumed is that a partition had in fact taken place between the deceased and his co-pastors and his co-pastors immediately before the death. That assumption once made is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the co-pastory property. One cannot go back on that assumption and ascertain the share of the heirs without reference fee. So therefore, the court said that you have got to assume that a partition had in fact taken place just before his death. This is what the Supreme Court has said. In fact, this decision was referred to and interpreted by the Supreme Court in another decision of a bench of three judges in 1985 Supreme Court 716. In this case, Justice ES Venkat Ramayana who has delivered the judgment has very clearly stated that by virtue of this notional partition, the family unit does not get disturbed. This is what the Supreme Court has said. We have carefully considered the above decision that is Justice Chandra's decision and we feel that this case has to be treated as an authority for the proposition that when a female member who inherits an interest in joint family property under section 6 of the Act files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited and the share which should have been notionally allotted to her as stated in explanation 1 of section 6 of the Act because under the Bombay school she also gets a share equal to a son in the Bombay school. Therefore this case arose from a Bombay school but it cannot be an authority for the proposition that she ceases to be a member of the family on the death of the male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purpose for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female here to the interest inherited by her in the family property gets fixed on the death of the male member under section 6 of the Act. But she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strong results which would not have been in the contemplation of the parties when in enacted that provision and which might also not be in the interest of such female member. So therefore the Supreme Court has said indirectly in this decision that the assertionment of the share of the deceased is only notional. It does not bring about any change in the unity of the family. The joint family is not broken but the share of the person who dies is only a certain time for trying to find out the shares which the years of the deceased co-pastors would get and nothing else. Therefore this law is also very clearly enunciated by the Supreme Court in Vinita Sharma's case to say that under this notional partition what happens is that the share is only a certain time but there is no division of the family by virtue of the death of one of the co-pastors. This is how the Supreme Court has said making a reference to the judgment of Chandrachudra. What the Supreme Court has said at paragraph 96 of the judgment in Vinita Sharma's case the only question involved in the aforesaid matter was with respect to explanation of section 6 and the determination of the widow share. In that case the question was not of fluctuation in the co-pastory body by a legal provision or otherwise. Everything remains standing. No doubt about it. The share of the deceased has to be worked out as per the statutory friction of partition created. However in the case of change of body of co-pastors by a legal provision or otherwise unless and until the actual partition is finally worked out rights have to be recognized as they exist at the time of the final degree. It is only the share of the deceased co-pastors and his heirs or a certain time under the explanation to section 6 and not that of other co-pastors which he upon changing with birth or death. So therefore in order to understand this concept I may give you a very small the same illustration father two sons father and two sons the father dies. So at the time when the father died the father had only one third share in the property. Therefore this one third share of the father would go by succession to his two sons a daughter and his wife in equal shares. So therefore this one third share is therefore split into four parts and therefore the son the two sons the daughter and the wife they get a one-twelfth share each in this property. So therefore this the remaining two-third share it continues to be co-pastor property of the family and the property in which on the day top the death of the co-pastor. If after the death of the co-pastors a few more properties are acquired subsequently then by succession the heirs of the deceased would not be entitled to any share in the property subsequently acquired. So therefore what remains after this one third share goes away is only this two-third share. So this two-third share could change by death of one of the members of the family. Suppose yes one the son himself dies unmarried then the daughter would be a co-pastor after 2005 there will be one son and one daughter only and they would be entitled to equally enjoy this two-third share and they would get one third share each in sequence. So therefore though the family does not get disrupted the only one share is taken out the remaining share continues with the surviving members of the joint family. The son takes a share by succession but the son's share which he inherits by birth that would continue as joint family property. Therefore there is no disruption in the status of the family. There is no disruption in the joint family also by virtue of the death of one of the co-pastors in the family and that is also made very clear by the Supreme Court in Vinita Sharma's case. In fact we may make a reference to section 9 paragraph 99 of the judgment in Vinita Sharma's case and this is what is stated in paragraph 99. Once the constitution of the co-pastory changes by birth or death shares have to be worked out at the time of actual partition shares don't get worked out completely at the time of death of one of the co-pastors. It will have to be worked out at the time when an actual partition takes place. The shares will have to be determined in the changed scenario. The severance of status cannot come in the way to give effect to statutory provision and changes by subsequent event. The statutory fiction of partition is for short of actual partition. It does not bring about the disruption of the joint family and that of the co-pastory is settled position of law. For the reasons mentioned above we are also the opinion that mere severance of status by filing a suit does not bring about the partition till the date of the final decree change in law and changes due to subsequent event can be taken into consideration. So this is what the Supreme Court has stated but there is one situation which has not taken note of by the Supreme Court with rendering this decision. Suppose prior to 2005 there is a division of status by filing a suit for partition or by issue of a notice by one of the co-pastors of his intention to stay away from the family. The decision in Raghavanma v. Chanchamma's case clearly says that when once this unilateral intention reaches the other persons for entitled to a share, a division of status takes place immediately and the share of the person who walks out of the family gets predicated. That is what the Supreme Court has said. Suppose in a situation like this a division of status has actually taken place prior to 2005 by virtue of the amendment of this section 6. Does this get reversed? See by virtue of this division of status, rights have accrued to the co-pastor about his share in the properties which does not go up or come down by birth or death in the family. Therefore, and if a reference is made to section 60, paragraph 64 of the judgment in Vinitha Sharma's case, if a reference is made to section 64, this is what section 64 states. In section 64, what is stated is that the joint family should be in existence for the application of the amended provisions of section 6 of the Hindu Succession Act. This is what section 60, paragraph 64 of the judgment in Vinitha Sharma's case reads, the effect of the amendment is that a daughter is made a co-pastor with effect from the date of amendment and she can climb partition also which is a necessary concomitant of the co-pastory. Section 61 recognizes a joint family governed by Hindu law. This is what is important. The co-pastory must exist all 99 2005 to enable the daughter of a co-personal to enjoy rights conferred on her. So therefore the co-pastory must exist. Suppose if a unilateral intention is addressed to all the other sharers by one of the co-pastors by issue of a notice or by filing a Pesu and the other co-pastors have also said that we also want to have a partition of the family properties. Then the entire family unit is broken. If the entire family unit is broken on the date when the Hindu Succession Act came into force on 99 2005, the family unit itself is not in existence and therefore the amended provisions cannot be made applicable in such situations. But the Supreme Court has said that even if there is a division of status that has got to be ignored and the rights of the parties including the female co-pastor will have to be worked out as it is on the date when an actual partition takes place. Not on the date of filing of the Pesu or when there is actual clearance of status. So therefore there is little confusion in trying to understand whether the concept of this division of status itself has been given a go by to the Supreme Court in Vinita Sharma's case or whether this concept of division of status has some relevance even after Vinita Sharma's case or not. This area is one grey area which requires to be cleared by the Supreme Court in probably the subsequent decisions. If the entire decision is looked into it would be as if the concept of division of status is given a go by. A partition is a partition by meets and bounds and a partition takes place in only one situation where there is a partition by meets and bounds and not otherwise. And if the question of severance of status is completely given a go by then if properties are acquired subsequent to division of status whether in such a situation the decision of the Supreme Court in 1972 Supreme Court 169 that those properties acquired by the divided member in his name with the income of the joint family would be joint family properties or a self-acquired property would certainly require a relook. And that law also will have got to be specifically met with in order to clear the grey area that has occurred on account of this decision. So therefore these are few areas which have got to be clearly kept in mind. Then one other thing has happened post Vinita Sharma's case if the amended section of section 6 is read with care then there are two portions of the amended act which require to be specifically taken care of. See if you should go to section 6 class 4 of the amended act and it is co-personalized after 2005 then what happens is there is no question of survivorship at all how the property should go is dealt within section 6 class 4. This is how section 6 class 4 reads in fact after the commencement of the Hindu Succession Act 2005 that is 99 2005 no I'm sorry I made a mistake references got to be made to section 6 class 3 of the amended act. This is how that provision reads when a Hindu dies after the commencement of the Hindu Succession Amendment Act 2005. His interest in the property of a joint Hindu family governed by Mithakshara law shall devolve by testamentary or interstate succession as the case may be under the act and not by survivorship. So therefore the concept of survivorship has been taken away. In fact under the old act survivorship would not apply when the deceased copers that had left behind him a female heir or a male heir climbing to such a female heir and the class 1 of the schedule. But here there is no such exemption says the property will not go by survivorship and the co-personary property shall be deemed to have been divided as if the partition had taken place. Therefore there is a division of the entire co-personary which has got to be imagined whereas in the earlier enactment what was imagined was a notional share allotted to the co-personal. But under the amended act what it says is an actual partition of the entire family will have got to be imagined. So the notional partition is not merely for the purpose of finding out the share to which the deceased co-personary is entitled to. What happens under these clauses that the entire co-personary is subject to an imaginary division and the co-personary shall be deemed to have been divided as if the partition had taken place. And the daughter is allotted the same share as the son. Share is given to the daughter share is also given to the son. So therefore the notional partition imagined prior to the act and subsequent to the act where it got to be taken care of. In fact the same explanation given to section 6 with regard to the notional partition had the very same explanation is also repeated after section 6 class 3. For the purpose of this subtraction the interest of a Hindu metakshara co-personary shall be deemed to be a share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he is entitled to climb a partition or not. Therefore for purpose of allotment of a share the entire family unit is broken for the purpose of finding out the share to which the deceased co-personary is entitled to the same explanation has also been added subsequently. So therefore the explanation to section 6-3 and also the provision for giving up survivorship and a partition of the entire family is also to be imagined while allotting a share to a daughter under section 6 class 3 of the amended act. So therefore the provisions will have got to be read with utmost care. Then the other area which the Supreme Court has dealt with in Vinita Sharma's case is that whatever transactions that have taken place prior to a particular cutoff rate or saved under the amended section to not section 6 class 3. So whatever transactions that have taken place prior to 20th December 2004 they are saved. In fact see the statute very clearly says that for the purpose of finding out whether there is a partition prior to 20th December 2004 or not. The only partition which is under a registered document or by a decree of the court would only be recognized that is what the statute itself says. So therefore though the word final decree has not been used in the explanation the court has said that the word decree in the explanation has got to be looked into as a final decree. So therefore if a final decree is not passed prior to 20th December 2004 or a partition is affected prior to 2004 but it is not by a registered instrument then such partition would not be saved strictly according to the terms of the amended section 6 of the Hindu Success Act. But the Supreme Court has said in fact we may make a reference to section the paragraph 129 of the judgment in Vinita Sharma's case where in their lordships have made one exception to what is contained in the section itself. That is we may go to paragraph 129 sub paragraph 4 the Statutory Fiction of Partition created by Prabhupāda Goa to section 6 of the Hindu Succession Act 1956 as originally enacted did not bring about the actual partition or desert front of the prophecy. Then coming to the explanation this is what is stated in the sub paragraph 5 in view of the rigor of the provision of explanation to section 6 clause 5 of the Act of 1956 a plea of oral partition cannot be accepted as the statutory recognized mode of partition affected by deed of partition duly registered under the provisions of the registration act are affected by a decree of the court. So therefore the Supreme Court makes an exception and however in exceptional cases so the Supreme Court creates an exception to the exception already created under the statute. However in exceptional cases where plea of oral partition is supported by public documents and partition is finally evidenced in the same manner as if it had been affected by a decree of the court it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly so therefore in exceptional cases where the plea of oral partition is supported by public documents. Public documents normally means by mutation entries in the revenue records either in the record of rights or in the mutation register and payment of separate supported by payment of separate and I'm separate possession events by the RTC. If all these things are there though there is no registered partition deed though the decree is not by though it is not by a decree of the court the same could be recognized by the court. So therefore the Supreme Court has created an exception to the exception already created under the statute and this is bothersome practically a little legislation by the Supreme Court itself. So therefore this is how we have got to look into Vinita Sharma's case so therefore the primary grey area is with regard to the division of status whether that concept has been completely given a go by or not is one thing which has got to be made clear by the Supreme Court in subsequent decisions. Where this question arises for consideration then see we have entered into lot of discussion with regard to section six both in the number of decisions of the High Court and the Supreme Court. So the basis for applying this decision is twofold that is a co-personary must be in existence on 992005 number two that there should be co-personary property there may be a co-personary without co-personary property. If co-personary property itself is not in existence then the question of applying section six would not arise at all therefore if we can carefully look into section 19 see it would appear as if factually in more than 90% of the cases where a climb is made by a person that the property is co-personary property and therefore he is entitled to a share the primary attack by the defendants is that the property is not co-personary property at all and therefore section six would not apply. In fact most of the properties could be taken out of the purview of co-personary property by primarily depending upon section eight, section 15 and section 19 of the Hindu succession act. In fact the law prior to 2005 has been very nicely summarized by the Supreme Court in a case reported in year-to-year 2016 Supreme Court 1169 that is Uttam v. Subhatsi. In fact the Supreme Court has laid down six principles which emanate from the application of the unamended section six of the Hindu succession act. This is what the Supreme Court has stated. The first principle is when a male Hindu dies after the commencement of the Hindu succession act 1956 having at the time of his death an interest in metakshara or co-personary property. His interest in the property will devolve by survivorship upon the surviving members of the co-personary. That is the first principle. The second to proposition one the an exception is contained in section 30 explanation of the act making it clear that not withstanding anything contained in the act the interest of a male Hindu in metakshara or co-personary property is property that can be disposed of by will or testamentary succession. So in respect of this property a testament would be executed. The second exception and crafted to proposition one is contained in proviso to section six which states that if such a male Hindu had died leaving behind a female relative specified in clause one of the schedule or a male relative specified in that clause who claims through such female relative surviving him. Then the interest of the deceased in the co-personary would devolve by testamentary or interstate succession and not by survivorship. That is the exception. In order to determine the share of the Hindu male co-personer who is governed by section six proviso a partition is affected. In fact, this law has suffered a change by virtue of V.I.H.T.A.K.Sherma's case. This principle four is no longer valid. In order to determine the share of a Hindu male co-personer who is governed by section six proviso a partition is affected by operation of law immediately before his death. In this partition all the co-personers and the male Hindu widow gets a share in the joint family property. So therefore this law the Supreme Court has said that this position that in this partition all the co-personers and the Hindu widow would get a share in the joint family property would no longer be good law. Because at this notional partition it is only the share of the deceased that is determined and the share of the others that is not determined at all. Then on application of section eight either by reason of the death of a male Hindu living self acquired property or by the application of section six proviso such property would devolve only by interstacy and not by survivorship. Then the last principle is on a conjoined reading of section four, eight, nineteen of the act after joint family property has been distributed in accordance with section eight on principles of interstacy the joint family property sees us to be joint family property. So therefore when a partition takes place and shares are allotted to individual co-personers the individual co-personers take the property not as tenants in joint not as joint tenants but as tenants in common. Therefore whatever property they get by virtue of an allotment at a partition would be the self acquired property the consent of their sons would not be required for alienation of such property. Therefore when once a partition takes place in the family subsequent to 1956 the joint family property gets converted itself into self acquired property and it would no longer remain as co-person property. And in fact this question came up before the Supreme Court in 2008 Supreme Court 2489 Haridio Roy versus Sekuntala Devi. In this decision this is what their lordships have said where an intention is expressed to partition co-personary property that is a division of status even by division of status. Co-personary property the share of each one of the co-personers becomes clear when once the share of the co-personer is determined the property sees us to be co-personary properties that is by a division of status the property sees us to be co-personary property. In such event the property the parties would not possess property as joint tenants but as tenants in common. Then in fact this question has also been this position has also been subsequently affirmed by another decision of the Supreme Court where their lordships have said that is 2020 SAR civil page 127 this is what their lordships have said once the share of a co-person that is they affirm Haridio Roy's case and this is what their lordships have said once the share of a co-person is determined he sees us to be co-personary property the parties in such event does not possess the property as tenant joint tenants but as tenants in common. The decision of this court in the SBI therefore is not applicable to the present case when a co-personer this is what is important when a co-personer takes definite share in the property. He is the owner of that share and as such he can alienate the same by sale market in the same manner as if he can dispose of his separate property so therefore if there should be a partition. After 1956 or if there is a separation of status prior to 1956 then in such an event the joint family property or co-personary property gets itself converted into separate property and therefore section 6 would not be applicable. The other situation is there are a number of cases where in the Supreme Court has said that where the property belongs to the grandfather and which is his self acquired property the grandfather dies. If the grandfather dies by virtue of section 8 the father acquires the property from the grandfather on succession if the father acquires the property of the grandfather on succession then section 19 applies so whenever a succession takes place the persons who succeed to the property they take the property not as joint tenants but as tenants in common. So the father who acquires the self acquired property of the grandfather subsequent to 1956 takes the property as his self acquired property and therefore his son the grandson would not get any right by birth in these properties. Therefore if somebody dies if the grandfather dies after 1956 who are owning self acquired properties that gets converted into self acquired property in the hands of the father because it is self acquired property in the hands of the father it would be self acquired property in the hands of the grandson also therefore it would not be co-personary property at all. So therefore if succession takes place either by partition or by testamentary succession or by interstate succession subsequent to 1956 by operation of section 19 of the Hindu succession act the property would not be co-personary property at all. Therefore the area of operation of section 6 is very much diminished by operation of section 19 and therefore any wide discussion in regard to co-personary property under section 6 is primarily academic and would not be of practical importance either to male or female co-personers. Therefore the change in the law by virtue of section 19 and the interpretation of the Supreme Court in Vinita Sharma's case and the effect of Vinita Sharma's case on the question of the division of status. These things will have got to be kept in mind while trying to find out whether a joint family in fact existed on 992005 or whether co-personary property was in existence on 992005 in order to find out the applicability of the amended section 6 by virtue of the 2005 amendment. Therefore my submission is still there are lot of areas on which there could be lot of debate in respect of various observations made by the Supreme Court in Vinita Sharma's case. It is a very long judgment. It requires a very careful study to understand the judgment clearly. Therefore I have tried to put before you my views on what is contained with regard to the law relating to partition and the changes that are affected first Vinita Sharma's case and therefore I am thankful to you for having given me a very patient hearing. Thank you. Thank you. Thank you sir. So there's only one question as of today. If a final decree has been ordered for some of the parties but is pending with regard to the other parties as they haven't applied for the final decree. I'm not hearing you. I am not hearing you. Sir just read it on one of the question is on the chat box. Please, please, please. I'm not able to read here. The property stands in the name of two brothers, both right. One brother has three LRs, each had three LRs. One of the LR sells one sixth of the share by a registered deed. Is this a lead value? See, if two brothers have acquired the property, it is joint property of the two brothers. Therefore, both the brothers are entitled to an equal share in the properties. The half share of one of the brothers goes to his wife and children in equal shares. The other half goes to his wife and children in equal shares. No question of interpretation of section six is involved in this case. It is a question of application of section eight and not section six. And therefore if one brother has a half share, if he has two children and a wife, all of them get one third of one sixth, they get a one sixth share. If the other brother has no children and only wife, the wife gets the entire half share. So therefore, here the question of interpretation of section six is not involved. It is only an application of section eight and not section six. So like you have explained in extensive, if for a common man or for a student you just have to explain, what do you mean by the oral partition? Sir, I am not hearing you. Sir, I am saying if simplicity because we are ending up the session. What do you mean by oral partition for a common man to understand? A oral partition actually means that all the persons assembled together, they decide that these properties should, that particular property who should go to particular persons are one portion of one property. If there is only one property, this portion will go to this person, that portion will go to the other person. So therefore, at the time when this division is affected, it is not supported by any document. The division is oral. Subsequently, they can make an application to the revenue authorities to get their particular portions mutated. But where the division is oral, by an oral argument of the parties and it is not supported by any document on the date when the division is affected, that is called oral partition. If the oral partition is supported by a document, then it would not be oral partition, it would be a partition supported by an instrument, either by a registered instrument or by a decree of the court. Now, in which cases the registration of the ultimate partition deed is required? Pardon? In which cases the registration of the partition is required? See, a partition could be affected either orally or by a registered document. It is not compulsorily for a partition always being supported by a registered or an unregistered instrument. Why we insist upon a registered instrument is that you clearly know by evidence as to what properties are given to the share of a particular man, number one. Number two, suppose the original is lost, you can take a certified copy of the document and say that these are the properties which my father has got. If there is an oral partition, suppose they say there is one property and if there is an oral partition of this property and your father gets the property which is to the west and another person gets the property to the east. Suppose in the eastern portion of the property you have built a palatial building, the other person is a poor man and he has not built anything at all on that property. Then there will be nothing to show that you have got the eastern share and the other person has got the western share. It takes quite a lot of effort to show that your father got the eastern share. So in order to avoid these complications at a later stage, it is always better to insist upon a registered partition deed being executed. In order to see that there is a proper document to show and identify the properties which are allotted to a share of a particular person. Otherwise, it would involve a lot of litigation if you can prove an oral partition specifically without difficulty by oral evidence. So suppose, how it can be proved? Suppose there are four properties and four brothers partition. Four brothers take these four properties separately. Mutations are affected in respect of these four properties. Parties go on paying taxes in respect of these four properties separately. Then it is capable of proof. But if there is one property is divided, what portion is given to you? What portion is not given to you? And if those things are involved, then the question of proof would be very difficult. The question is always one of proof. And therefore, though a oral partition is legally a valid partition, it is incapable of being proved specifically. And therefore, we insist upon a registered partition deed being executed. And there is also one other possibility. That is, suppose a partition is affected today. And say after a few months or a few years, you want the katha to be changed. For the purpose of affecting this katha, you enter into a list of properties. You only say that a schedule consisting of list of property, one brother, B schedule to another brother, C schedule to another brother. And the discussion of the properties are contained in these documents. And these documents clearly reside that they only record a previous oral partition. In such a situation, these lists of properties also would not require registration. And therefore, an oral partition followed by a subsequent record of a previous partition would also be proof of oral partition. And such a document would neither require registration nor require to be stamped. And those documents could also be used. Suppose those documents are destroyed, then there will be no proof of partition also. Therefore, in that view of the matter, we have got to look at the matter positively in order to have some document incapable of being destroyed. And that could be only done by registered instrument. And therefore, a registered document of partition is always advised by lawyers. So the next question is, let's assume there is a registered will and the property is to be devolved. Sir, your voice is very low and not able to behave. Sir, I just wanted to ask, there is a registered will and on the basis of a registered will, can the shares and bank FTS etc. can be transferred or do you require a probate? There is. See, if a registered will is there, see this does not really refer to a partition as said. Suppose there is a registered will. A registered will by itself is no proof of the document itself. So therefore, some banks insist upon either a letters of administration or a probate in respect of the will. Some banks, they take an indemnity bond. They take a prima facie view that a registered will is valid and they insist upon an indemnity bond and release the money also. It depends upon the internal rules of the bank and we cannot say with certainty in law that the registered will has got to be accepted without a probate and money has got to be released. No such legal view can be given and if it is probated or a letters of administration is granted, you can insist upon payment. If probate or letters of administration are not there, you cannot insist upon payment. It depends upon the discretion of the manager and the rules of that particular bank and not otherwise. This is grandfather's property had not been divided since 1956. Can the partition not take place? There is no difficulty. It can certainly take place. There is no difficulty at all. See, if the partition has not taken place even for 200-300 years also, in fact, there are cases where I have found great grandfathers, the property is not divided. And the only thing is each branch consists of 50-60 people. All those persons will have got to assemble to have a proper division of the properties because all the persons for entire share will have to be made parties to the partition. Otherwise, the partition would be invalid. In a partition suit for a rented house, can means profit be asked or the rented portion rent be deposited in the court until the decree? See, it depends upon if the property is admittedly joint property and your right to share in the joint family property is not disputed. And if only one of the persons who is receiving the rent is receiving the rent, then you can ask for appointment of a receiver in respect of the property. Or you can ask for even a direction be given to the tenants for deposit of the rents into court. That possibility is there. And the court in its discretion can certainly grant an order directing the tenants deposit the renting court. It depends upon how you can make out a prima facie case to show that you have a rightful share in these properties. This is effect of Vinita Sharma on her Karnataka amendment. See, Vinita Sharma's case would apply only if the daughter is alive on 992005 and the co-parsonary is not divided prior to 992005. As far as the Karnataka amendment is concerned, if there is a lady who remained unmarried, I think from 30, it is 30-12-1994. I am not very clear about the date. That's some date in 1994 where she remained unmarried from the date. Then she would be entitled to a share as a co-parsner. And I will give one minute. I will give that particular clarification. See, there are two conditions under which, under the Karnataka amendment, a female can climb a share as a co-parsner. See, it says the daughter who climbs a share as a co-parsner should remain unmarried as on the date of the amending act, that is 37-1994. Or by inference, she should have been barren during the continuance of the operation of the amendment. So, if she is barren between 37-1994 and 992005 and she has remained unmarried. If she is barren earlier and if she remains unmarried on 37-1994, then she can climb a share as a co-parsner at a partition of the land-family properties. In fact, the word used in the Karnataka amendment has some relevance. In the Karnataka amendment, at a partition she can climb a share, that is what is used. So, if the brothers don't partition at all, then the daughter cannot climb a share. So, if the brothers make a partition, at such a partition, a lady who had remained unmarried after 37-1994 or barren after 37-1994 and between 37-1994 and 992005, she can climb a share and not otherwise. So, therefore, the two dates will have got to be kept in mind. The 37-1994 to 992005, she should remain unmarried and there should be a partition during that period. Then only she will be entitled to a share and not otherwise. So, thank you for sharing your knowledge. And tomorrow, friends, we will be having a session on cases instituted. Otherwise, they are not a police report procedure. This is by Venkat Sudarshan, DR, who is a former principal district judge from Bangaluru. Stay connected with us tomorrow at 6 p.m. And thank you, Mr. Suryanarayan Rao. We are always indebted to you for sharing your knowledge. Thank you. Thank you very much, sir. Thank you. Please permit me to leave the meeting.