 Good evening, one and all and it's always a pleasure connecting with Jay Prabhakar, an advocate from Madurai Bench, Madras High Court, and his knowledge sharing on different aspects of law has always been well appreciated by one and all. Today's topic, character and evolution of the ancestral and self acquired property, we were receiving messages in this aspect. And the endeavor of Beyond Law CLC has been to take sessions on this aspects because we keep on receiving messages especially from the south on this particular aspect. And we thought they couldn't be a better person who can match and deliver on this niche topic. But being a Sunday I would straight away ask Mr Prabhakar to take things forward. Good evening friends, three things impaled me to discuss about this topic. The one is the frequent question by the judges of even the high courts whenever a suit for partition comes up. The question is when the succession opens. The second is the decision of the Honorable Supreme Court in Uttam Vs. Shabak of a Slotship Rohin Tendharimath. The third is the interpretation of Section 6, before Vinit Selma's case where even the Supreme Court, various benches of the Supreme Court had a different view. And astonishingly the court in Pulauji's case held that the father should be alive at the time of the advent of the amended act in 2005. These three things allow one to ponder whether there was any definite shift from the well settled position of the Hindu law. Second, whether the legislature and the judiciary are the same page about the concept of the co-parsonary and the joint family. And this question arose because of the object of 39 of 2005. When the legislature enacted this law granting a co-parsonary right to the daughter and not the wife. They discussed some of the existing systems, including the abolition of the joint family systems in Kerala, which is prevalent from 1970s. And subsequently they thought it fit that even though four of the states, namely Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, came out with their own succession with the reward to conferring a right on the daughter between 1989 and 1990. Where the unmarried daughter was granted a right of a co-parsner or a right of the property and married daughter was left out. Today's world, these types of distinction cannot pass the master of the court and cannot pass the master of the public authority as well. The interpretation or the object of 39 of 2005 when you go back would show that they want to confer a right on the daughter and with an intention to move towards an idea of abolishing the joint family system in entirety. However, the discussion around the view that if you abolish the system as of today, but for the four states, including Kerala then, the others didn't confer any right to the daughter. And therefore, if abolish the entire system, the daughters won't be benefited. When you see the object of 39 of 2005, the well thought out principle was first to grant a right of a co-parsner to the daughter and then subsequently to abolish the same in the entire area after some time. I do now feel that section 61 and section 62 of the act, even though the right of a right to a daughter is that of a son. A closer reading of section 62 will give you arrive at a different conclusion namely, the right granted on a daughter on the advent of 39 of 2005 by birth may be a one-time benefit to the daughter. At the same moment, one should also understand the fact that the moment the daughter was made as a co-parsner, wittingly or unwittingly, it reduces the share of the wife over the right of her husband under section 6. Section 6 speaks about a notional partition, where if a male into dies, then his right will dwell upon his house under section 8 as it is a self-acquired property or his share in the ancestral joint family property. But the moment when the daughter becomes a co-parsner, the share of the father will be reduced to an extent which is in concern of the number of the daughters. Therefore, your right given to a daughter quite amazingly reduces the right of the wife or the share of the wife in the joint family properties if her husband passes away. But this has not been taken into account at all. Now coming to the ancestral and self-acquired properties. If one you traces before the advent of the Hindu succession act 1956, your right was given under an act called the 1929 act and then there was also a Hindu gains of learning act 1930 where even if there is an ancestral properties etc. and if education was given to a co-parsner out of the estate of the co-parsner or the joint family and on the basis of his education or learning, if a person earns money or property, it becomes his self-acquired property under the Hindu gains of learning act 1930. This act is still in force but under this act. There is one opening or a window where a person can always say that I have earned this property or acquired this property not out of the joint family estate or co-parsnery but out of my learning even though that learning is based upon or funded or funneled by the joint family nucleus or a co-parsnery nucleus still any acquisition made out of the learning assuming for a moment I was educated as a doctor out of the funds provided by the joint family and out of the proportion I earn money and acquire property. This property is quite naturally a self-acquired property because under the Hindu gains of learning act this is termed to be a property acquired by the person in his individual capacity and not out of the estate. Was there any difference between the ancestral property and the self-acquired property before 1956? In fact, before this platform, if I remember correctly, one Mr. Swamasekara, a retired district judge from Karnataka, dealt in detail about the decision in Arunachala counter versus Punduswami recently by the Supreme Court. The point is there is no law which prohibits that a man should own a self-acquired property before 1956. But the point is on his demise, if it is before 1956, how it will develop? Two kinds of property were available. One is the ancestral property and another is a self-acquired property. If these two properties are available before 1956, what is the mode of devolution? Insofar as the ancestral properties are concerned, before 1956 it was purely my surveyorship. But insofar as the self-acquired properties are concerned, it is not by surveyorship, but it will devolve upon the hairs of a person who has acquired it. But there is an itch, namely the property, a self-acquired property on the demise of an individual before 1956 as to devolve upon his wife if there is no son and if there is no wife on a daughter. It is not that the self-acquired property will not devolve as per the rule of survivorship as in the case of an ancestral property. Be clear that even under the old law, the collaterals are the third of the degrees, what we call as gotras, sapindas, etc. The third of the degrees, they don't get the property if the property is a self-acquired and if a man leaves behind a son, wife or a daughter. This was the issue which arose before the court in Amma Jala Kautra, I will come there later. What is an ancestral property? How you distinguish between a self-acquired property? Self-acquired property could have been a property purchased or could have been a property assigned by the government to an individual or a property which has been occupied as a first occupant, namely the right of occupancy which do exist in this part of the country, whether it is an Inam property or a Natham property, then the property which is a right of occupancy unless and until this right of occupancy made by an individual is not in his individual capacity, but in the capacity of a member of a family. The evidence in such cases is normally if the property is Natham, namely house sites, or a property assigned by the government to landless people, or a property acquired under a sale deed, the first blush is these properties are the self-acquired properties unless the purchase is made or the assignment was given to a particular person as a family manager, or the Kata, or in case of a purchase, adequate and sufficient nucleus is available in the hands of a particular individual to purchase the property. In such cases, it takes the color of a joint family. The first and foremost case which I would always like to remember because it was a decision given by his lordship Haridas, the greatest exponent of Hindu law in the 19th century, namely Moro Vishwanath v. Ganesh Vittal, reported in 1873, Bombay High Court reporter BHCR clearly pointed out that an ancestral property is a property in which the person by what is entitled to up to three generations. Once in the fourth generation, you may not have a right to ask or seek for partition. Therefore, the first and foremost according to his lordship Haridas was whether there was any copartinary property, two, whether the out of these copartinary properties have been acquired for which the nucleus is available, namely from the copartinary properties. And three, the checklist is whether within the three generation a person is or a male member at that point of time was seeking a partition. In this case, as an interesting anecdote namely, for the first time, the court has put in a nutshell by the Bombay High Court about the nature of the property. And after going through all the texts, about the right of an individual to seek a partition and when he can seek and when he cannot. Even though this aship refers to some of the earlier decision, this decision gave out the real clarity about the ancestral property and the copartinary property. Copartinary is a narrow concept than the joint family. There is a lot of difference because joint family part of the property. But in so far as copartinary is concerned, you should have a right by birth. That is a clear distinction or it's a copartinary is more a narrow air concept than that of a joint family. The second issue is the joint family under the Hindu systems of law is stated to be presumed to be every family under Hindu law is presumed to be joint. But there is no presumption that it possesses joint family property. But if a nucleus is there, sufficient nucleus or a productive nucleus is there or available. And this nucleus was available or established to be in the hands of a particular individual who went and purchased some property. Then the property purchased also will be treated as a joint family property. This is a case we can refer to the State Bank of India versus Govt. D. Ram. A.R. 1969 Supreme Court Page 1330. State Bank of India versus Govt. D. Ram. A.R. 1969 Supreme Court Page 1330. But the latest decision on that aspect also my feeling is there was a slight deviation. Adi Vepa versus Bhimapam. 2009 SCC page 586. That was a case where the contest was that it was a self acquired property. And the parties claim that it is a joint family property. It was established by the plaintiff that the joint family possesses some ancestral properties. And with regard to a portion of the property, the defendant took a stand that it was a self acquired property. But he has failed to place before the court that he has purchased the property. What the court there is a slight deviation from the earlier decision, namely once an ancestral nucleus is shown or a productive sufficient nucleus is shown, the property purchase would all be treated as a joint family property. But the burden in such a case is always for a person to show there was enough nucleus. What the court has said in this decision, it has been shown that there are some property. Then it has not been shown by the party who says that it is not a joint family. He has failed to produce a sale deed or any document and therefore these properties are deemed to be the property acquired by the family and not a self acquired property. There is a slight deviation. What is a self acquired property before 1956? This Arunachala counter versus Punnu Swami reported it AIR 2022, Supreme Court Page 605. Arunachala counter versus Punnu Swami AIR 2022, Supreme Court Page 605. Where in the facts of the case where father purchases the property in a court auction and he passes away in the year 1949, leaving behind a daughter. The contention of the daughter was or the parties were that this daughter, if I remember correctly was of Kuppai Amal. She passed away only in the year 1967. When father passed away in the year 1949, she passes, daughter passes away in the year 1967. And the challenge before the court was, what was the nature of the property? Even though it was a court auction purchase, an individual purchased the property. It was a self acquired property before 1956. But the moment the male who purchased the property in the year 1949 passes away, how this property will develop? Whether it will go by survivorship or your daughter is entitled to a share in the property in 1949? The two questions which arose before the honorable Supreme Court was, what is the nature of the property in 1949? If it dwells on whom it will do all, whether it will do all by survivorship? Or it will fall upon the hairs of the disease, namely the daughter. And if the daughter survives after 1956, how this property will work? The court after referring to copious Hindu law books came to a conclusion that under the even under the old Hindu law, if the male dies, his property will do all on his son, wife if he is alive, or if the wife is not alive to the daughter. Please do remember that we are talking about a self acquired property and not an ancestral property. There is a possibility that even before 1956, the property available may be a self acquired property. It's not as though all the properties or the joint family properties are a proportionary property before 1956. But they can't say whatever the source of acquiring a property before 1956. Between the acquirer and his children, if he dies before 1956, that property will be treated as a joint family property. That is the difference. In the case of Arunachala Koundar v. Spadnaswamy, the issue is between the hairs of a male, namely a daughter, and the survivors according to them, namely the brother-brother son of a deceased, whether by survivorship it will go to death. Therefore the competition in Arunachala Koundar's case was between the daughter who claimed that it is a self acquired property of my father, once he dies as his wife is also no more, I am lent it to the property, absolutely. Whereas the survivors would say that whatever the source of acquiring the property before 1956 and if the person dies before 1956, that property will also be a joint family property. But the trial court as well as the high court did not even advert to this issue of distinction between the self acquired properties of an individual, how it will evolve before 1950s and the copartinary property before 1956. It assumed that the property of the male who passed away before 1956 will necessarily go under the copartinary nature. The failure to pose a correct question may result in the wrong answer that has happened in this case before the high court. Thank God, the Honorable Supreme Court intervened and clarified the issue that once the male into dies before 1956, in respect of self acquired properties, this property will devolve upon his hands and not by service. The second issue was when the lady passes away in 1967, 68 if I remember, named Kupai Amal, how this right will go. Under 1956, this property of a female into devolve as per section 15. Section 15 says a female into dies are children and their husband will take if they are available, if they are not available to, it will go to the source, whatever from where the source came, whether it came from her father and mother or it came from her husband, it will go in those lines. But the court has held that after 1956 if a female into dies, those property will go under section 15. Why is there confusion? The opening of succession was a big issue before his lordship Arun Mishra put the nail in the coffin in Vinay Sharma's case. There are two concepts we call as obstructed heritage and unobstructed heritage. Obstructed heritage and unobstructed heritage. What is an obstructed heritage and what is an unobstructed heritage? Obstructed heritage means if a person dies, then who are all entered to the property? If a person dies and you climb right under him, then you have to check whether it is a co-cautionary property or it is a self acquired property, then you take the two routes which are correct. But the point is obstructed heritage means there was an obstruction. A person cannot climb right unless a person or a earlier person dies interstate. If excess the owner of the property and his son, daughter or even brother son, nobody can ask him, ask the partition of the properties during his lifetime called as an obstructed heritage. What is an unobstructed heritage? It is called as a right by birth. What is a right by birth? Unobstructed heritage means a moment a person is born. If there is a co-cautionary already in existence, he becomes a co-cautioner by birth. A daughter becomes a co-cautioner by birth from Act 39 of 2005. Earlier it was only the sons of the male hares. Please do remember in many of the schools, the Mithakshanath school does not recognize the right of a wife as a right over a co-cautionary property. In fact, five judges of the Andhra Pradesh High Court, if I remember 2002 Andhra Pradesh, discussed the matter by 3 to 2, the court held that the wife is not entitled to share in the ancestral joint family properties. The doctor is entitled to certain circumstances after the 1819. The point is the confusion started because slowly the courts never started discussing the issue as obstructed heritage and an unobstructed heritage. Whenever the issue for partition comes up, the first two questions which are posed were when the succession opens. The reason is this. Before 1956, the devolution is different. After 1956, the devolution is something else. Therefore, the first two questions the courts naturally put forth to the lawyers or the litigants is when the succession opens. But the point is the succession, when the succession opens is depends upon the right from whom you claim. If you say that I have got a right by birth, the question of succession being open or when it opens doesn't arise the moment I born succession opens. But in case if you claim a right under a person, then the date of his death is relevant and obstructed heritage. If it is before 1956, then the rule of survivorship of the country. If it is after 1956, the notional partition under section 6 will apply. But slowly the courts started asking this question, creating one confusion over the other. The confusion reached the flashpoint if I remember in Pulao this case. What has happened was in Shila Devi versus Lal Chen reported in 2006, page 581. Shila Devi versus Lal Chen, 2006, page 581. In that case is Lashiv S.B. Shrinna known for his erudition in Hindu law. Discuss in detail about the opening of the succession, but that opening of the succession was only in respect of a right claim under the disease. But what happened was from 2006, every court started using this judgment and asking for when the succession opened even in case of a co-parsner who has got a right by birth. That creature of flashpoint in Pulao Devi, where the Honorable Supreme Court came to the conclusion that the right conferred on a daughter is available to her only when the father and the daughter are available. On the date of the advent of the act, namely 39 of 2005, one is stunned. The reason is it is based upon a misconception. This was also followed in two cases, Danama and Mangamal of the Supreme Court. The point is co-parsner never dies. If a person dies, co-parsner doesn't die. Co-parsner will be there till such a time no co-parsner is there. Assuming for a moment that the father has got two sons and father dies before act 39 of 2005. Two sons continue to hold the property or enjoy the property jointly as a co-parsner property. And the moment the act 39 of 2005 comes, whether the daughter can climb or not. My view was that so long as the co-parsner is in existence or capable of being revived even in case of a soul surviving co-parsner, it can be revived. Therefore, capable of being revived or if it is alive, then a daughter is entitled to share in the property irrespective of the date of the death of her father. If you go through section 61 of the amended act, it does not speak about the death of the father at all. I don't know where the court got that. For 10 years, we got stuck. Namely, so many courts came out of this, so many decisions. I am not sure how many of them failed to get a share of the property, not to stand in the fact that the parliament gave them the right. But fortunately, this issue came up before his lordship, Arun Mishra, in a 3JG decision. Vinay Charma versus Rakesh Charma, where the lordship took into consideration, discussed in detail about the obstructed irritation and the unobstructed irritation. It came to the conclusion that the succession opening is in respect of a share of the Hindu in his share in the co-parsner property. And succession need not even open in respect of a share for a daughter or a son by birth. The simple question is this. Under section 61, daughter has been conferred a right as the daughter of a son in respect of a co-parsner property. The question is whether a son can claim a share in the co-parsner property after the death of his father. Can the co-parsner continue after the death of his father if there are male issues available? The answer is yes. Then why the daughter should not? I am not sure why three benches of the Honourable Supreme Court fault on that score. But ultimately, the matter has been restored. The interpretation given by the Honourable Supreme Court in Vinay Charma is all pervading as of today. But the point is, under section 62 and 63 of the Act, which is largely also discussed in Vinay Charma, it gives a clue under 62 that whatever the property a female gets under section 61, she is entitled to dispose of my testamentary succession. I am not sure the wording in 63 also, at one point it says interest and another her right in the property. Not tested before the courts, yet section 62 and section 63, even though Vinay Charma, the court has discussed those issues, but not in an issue where whether the daughter is entitled to dispose of the property, which has been allotted to her as a co-partner, or whether her son and daughter will take the property along with her jointly. The problem will be complicated again. Assuming for a moment a daughter gets a property under 39 of 2005 by devolution and this property is to be a co-partnery property and she had a son and a daughter. And this son and daughter inherits the property, assuming for a moment the mother becomes a co-partner. This son and daughter will become a co-partner or a grandson and a daughter will become a co-partner in their mother's co-partnery as well as in their father's co-partnery. These children will become a co-partner in two families. This is the intention of the legislature I am not sure, but we are only on to the daughters side. Probably this will get evaporated in another decade or so. Thereafter the issue may raise about the sons and daughters or the grandsons and daughters through daughter and how they will get the property as a member of a joint family or it is only a one-time benefit where the daughter can alienate the property or it will do all upon her children under section 15 or as a joint family property. My view is that the property which a daughter gets under section 61 if he dies interstate will develop upon her children under section 15 and not under section 6. We will see that the problem is otherwise there will be a two co-partneries which has to be solved. This Shila Devi case with regard to the co-partnery or the succession open really opened the floodgates namely the court started looking differently or unsettling and settled the position of law. Even in 1966 Supreme Court Yaramma v. Srirappa, a 1966 Supreme Court page 1879 it has been held that the there is no retrospective operation if a male Hindu dies before the commencement of the act against the succession open if the male Hindu dies before the commencement of the act then it will go by survivorship if there is a co-partnery property and if there is a co-partnery. Arunajala counter made a distinction because it was a self acquired property and irrespective of the date of death whether before even before 56 his wife and daughter alone are entitled to because the question of survivorship or the collateral stake in the properties doesn't arise because it was a self acquired property. Now coming to the issue which shocked us namely the decision in Uttam was a showboxing reported in 2016 for SCC page 68 2016 for SCC page 68 there was a case where the partition was sought in respect of a grandfather's share of the ancestral property after the demise of the grandfather somewhere in 1973 the grandson father assumed that this property has to be treated as a joint family property and I am entered to this share the court went ahead and took a clue from section 4, 6 and 8 of the succession act and as hill drawing inspiration wrongly from commission of wealth tanks was Chandarsan reported in 1986 SCP page 1753 commission of wealth tanks was Chandarsan in 1986 SCP 1753 which was immediately followed by the very same Sabayatsachi Mukherjee's lordship in another case in Udhishtir was Ashok Kumar very same year 87 SCP where the lordship came to conclusion by an interpretation of section 6 that what has been granted there was a notional partition if a male into dice and then the property will do all upon is as under section 8 so far is property is concerned assuming for a moment he has got a wife B and two children two male has C and D C and D and A are jointly entered to the property in respect of a co-partner but if a dice is share in the co-partnery will be divided between B C and D namely one third of the ancestral properties which will do all upon A would go to wife and two children namely one nine to go to the wife that was the decision in 1986 SCP what Muktam was a showback thing took into account while under section 4 of the into succession act the opening words would say that not for standing contained in any other law for any time in force this will have a overriding effect therefore the entire law or the Hindu law has gone to the dustbin the it is an unmistakable terms the decision take it from me that very many high courts as well as the subordinate judiciary are unable to grapple with the observation made in Muktam's case with regard to how section 4, 6 and 8 would defeat the right in respect of a co-partnery property but however the court has held the moment a person dies the co-partnery comes to an end the someone substance of the last three or four paragraphs in the judgment shocking to say the least namely it says that the moment a person dies the co-partnery after 90 if he dies after 1956 you can't apply the old law the new law says that there are only possibility if a male into dies under section 8 female into dies under section 15 therefore under section 8 it has to be divided and there is no question of co-partnery but if I remember correctly in 2018 his lordship Aad Subramanyama of the Madhava cycle in his own majesty made a distinction that this Muktam's case confined to the share of the grandfather and not of the father in case of a share of the father it is still a co-partnery property between himself and his sons the share allotted to the grandfather becomes his absolute property then this nicity was bold enough to come to a conclusion that the Muktam's case he didn't say that it has been wrongly decided but say that it has to be confined to the facts so the case namely it is in respect of the share of the grandfather this aspect of the Muktam's case was watered down by the honorable supreme code if I remember correctly by our lordship Indu Malhotra in the latest of the decision Arsha Noor Singh v. Harpal Kaur reported in 2019 AIR Supreme Court 3098 Arsha Noor Singh v. Harpal Kaur AIR 2019 Supreme Court page 3098 what has been echoed by lordship Aad Subramanyama of the Madhava cycle or lordship Indu Malhotra came to the conclusion that Muktam's case is confined only to the share of the father which is a share of the grandfather and not in respect of the share between the son and his sons that put the nail in the coffin now we are back to the original position that under section 6 if a male Indu dies his share alone will do all under section 8 the coparsnary will be intact this soul surviving coparsnary theory just to make a passing reference Rohit Chauhan v. Sridhar Singh reported in 2013-9 SCC page 419 where the lordship reiterated the principle that if the coparsnary has come to a single unit and the one person alone is alive he is entitled to alienate the property as though it is a self-acquired property but the moment a coparsnary comes into existence either by birth, blood or law then the property again becomes a coparsnary property if I remember this has been initiated by the Privy Council reported in AIR 1943 which has been subsequently followed in 1966 Supreme Court in Gowli-Buddha-Naskal and thereafter Narendra Naskal in 1970 Supreme Court 1970 Supreme Court page 12 which has now been reiterated in Rohit Chauhan case in 2013 the point is even if there is a soul surviving coparsnary the coparsnary will not come to an end but he is entitled to sell the property as his self-acquired property but if he keeps the property and the moment a coparsnary comes into existence either by birth, blood or law then the property again becomes a coparsnary property devolution under a bill or a gift this is an interesting point how to interpret a bill or a gift if a person executes a bill because they think the property whether the beneficiary will take the property as his self-acquired property or the property will be treated as a joint family property so that the beneficiary and his children will get a share in the property a nice question was raised in C.N.Armachala Mughaliyar versus Burulananda Mughaliyar reported in A.I.R.1953 Supreme Court page 495 C.N.Armachala Mughaliyar versus Burulananda Mughaliyar reported in A.I.R.1953 Supreme Court page 495 where the lawship would say that it all depends upon the recital in the bill or a gift no doubt a person who has got a right to be to the property or a transfer of property by way of a gift can determine the course of devolution either he can say that the beneficiary will take the property absolutely or he can say that the beneficiary shall treat the property as a joint family property between himself and his sons even though the court has laid down that there is nothing wrong in a test or a doda to devise namely to give the property to a particular beneficiary to treat the property as a self-accompanied property or to treat the property as a joint family property the point is the recital in the document are important the court after considering the issue came to conclusion on facts that it was not intended to be a benefit of the as a joint family property it was confirmed a comfort only for the beneficiary to be enjoyed by him absolutely and therefore the property is only a self-accompanied property the second care where it has been considered the very recent one Govinda by Chota by Patel versus Patel Raman by Madhur by 2019 3 SCR 152 2019 3 SCR 152 this decision which I have cited is from the latest Supreme Court app this SCR is the Supreme Court reporter of the neutral citation by the Honourable Supreme Court which has kicked in Delhi and I hope that Madhavasai Court is also coming out of the neutral citation this neutral citation is 2019 3 SCR page 152 where it has been again proper namely whether under a device a property was given to the beneficiary to enjoy as a self-accompanied property or absolute property but the court again came to the conclusion on the basis of an interpretation of the document that what has been conferred is a conferment of or the two things the property absolutely to be enjoyed by him as a self-accompanied property but if I remember correctly after the decision and see an Arunachalam over there in 1923 Supreme Court there was a decision in 1998 law weekly of the Madhavasai Court where the court on an interpretation of the bill came to the conclusion that what has been given is not to be enjoyed as a self-accompanied property but for the beneficiary to enjoy treat and hold the property as a joint family property that is the devolution then the last point is to go to throwing into the hatch part what is the throwing into a hatch part suppose I have got a joint family we are in a member of a joint family I am out of my learning I have purchased some property but voluntarily out of my own volition I have thrown this property and treated the property as a joint family property and for which whether it does require any document law says that it does not require any document if I remember correctly somewhere in the decision of the Kerala High Court this has been trashed out that no document is required but if there is evidence to show that even though at the time of acquisition the property is a self-accompanied property there is no bar under law to throw this property into a common hatch part treating the property as a joint family property enjoying the property and the fruits of the property as a joint family property as a member of a family then this property will also be part of a joint family nucleus two decisions on that aspect would also suffice Narayana Raja v. Chenna Raja year 1968 Supreme Court page 1276 then Malle Sapa Sandapa Desai v. Desai Mallapa year 1961 Supreme Court page 1268 in fact in detail it has been the honorable Supreme Court considered whether how to treat a self-accompanied property as a joint family property if a particular property at the time of acquisition was only a self-acquisition but if it has been thrown into the family nucleus and treated by the members of the family or held, treated and enjoyed as such a joint family property then this property will also become a joint family property in such a case how it will do all if it is a self-accompanied property it will do all under section 8 if it is a male Hindu under section 15 if it is a female Hindu but if this property is thrown into a hot spot, common hot spot treated as a joint family property then again the property will go under section 6 apply the notional partition and then treated whether the property of the disease is the self-accompanied property the joint family property is different from a joint family business even though joint family property arises a presumption that presumption cannot apply in case of a business which requires a strong evidence to show that the family as a whole runs a particular business for which it requires some strong evidence to show that the entire family was involved in the business because there are two things in case of a joint family business namely the corpus or the fund for starting a particular business two, who are running the business suppose the corpus is very negligible and the business has grown leaps and bounds can we say that only this mini school of the corpus was the nucleus and from which alone these properties have been acquired by the business and therefore this business has grown up and therefore this business has to be treated as a joint family property and it has to evolve Madanlal v. Yoga by 2004-5 SCC page 89 Madanlal v. Yoga by 2004-5 SCC page 89 the last issue which I would like to take up with regard to the character please do remember that a property can be a self acquired property before 1956 there is no harm in that but if there is a self acquired property before 1956 it will develop on its wife in the absence of the wife it will go to the daughter there is another old Hindu law but if the devolution has to happen after 1956 then section 8 and section 15 will apply but in the case of an ancestral property and property acquired out of the ancestral nucleus and whatever the source from which these properties have been acquired it will be treated as a joint family property why this Arunachala counter case came out with so much of discussion in the media is that it came to conclusion that it is a self acquired property even before 1956 when father Arunachala was helped to be passed away in 1949 even though his stand was taken that he was passed away in 57 there was no evidence and both the courts below came to conclusion that he passed away in 1949 the point is what is the difference between a devolution of a property acquired before 1956 if there is an ancestral property available or ancestral nucleus available and a co-parsonary in existence and what is the nature of the devolution in respect of a self acquired property in case of whatever the source which acquired the property before 1956 if you are able to show that these properties could have been acquired only out of the joint family co-parsonary nucleus then the question of Arunachala counter doesn't apply Arunachala counter will apply because it was applied because the court came to conclusion that it was the absolute property as it was purchased in a court auction and admitted by parties that it was the absolute property of the deceased who passed away in 1949 the point is therefore there is a clear cut distinction and this distinction can be applied at any point of time the last of the issue is about the gift of an undivided interest in a co-parsonary property the law is well settled that in case of a co-parsonary property it cannot be be good or gifted without the consent of the other co-parsonary if no consent is obtained what is the effect of the document Thamma Venkada Subbanna versus Thangarathana 100 law weekly page 1125 Supreme Court and then another decision is State of Maharashtra versus Nava and Aral Deshmukh 1985 2 SCC page 321 1985 2 SCC page 321 where the lawsuit has come to a conclusion that a father family manager has got a right to gift a property on the eve of a marriage of a daughter he can give some property but it should be a reasonable gift if it is not a reasonable gift father even is a family manager he cannot give the property without the consent of the other co-parsoners in such a cases the document is void one issue is if a settlement deed has been executed by the father without the consent of the other co-parsoners will it bind his share in 2003 one MLJ slatship Nagapan when you are sitting as a high court judge of Maharas came to conclusion that once the document has been created or executed without the consent of the other co-parsoners it is void if it is void then for it is void for all purposes then it cannot even operate in respect of the share of the other co-parsoners therefore in case of undivided interest a person has got a right to trust but this right is circumscribed by the consent which is mandatory if it is not done by the other co-parsoners the document is void and unenforceable it will not even bind the share of a person who has contributed the document to some of the self-acquired property which can be traced to two acts in 1929 where it converse some right and 1930 into Bates of Learning Act which has not been widely spoken to or applied by the courts as of today gives something to ponder namely there can be a self-acquired property before 1956 once it is shown that there is a self-acquired property and even if a person dies before the act it will not devolve by survivorship as in the case of an ancestral joint family property I leave it to my friend because of my questions thank you for checking it on the YouTube there is no question the only questions are on the chat box this is by Deepak Mehta whether sons and whether the sons and daughters of a married daughter who is a co-parsner or also co-parsner after 2005 amunded the in fact it was discussed by me today that under section 6-2 it says that she is engaged with daughter who gets a property as a co-parsner under section 6-1 is entitled to dispose off by a testamentary disposition normally under section 30 of the act even in respect of an undivided interest there can be a testamentary disposition in case of a male but apart from that section when section 6-2 says that she is entitled to dispose off the moot question is whether it becomes her absolute property or she will take the property along with her children as a joint family or a co-parsnery property if 6-2 wording is not happily worded or happily worded the point is again whether the conferment of a right to a daughter under section 6-1 is a one time benefit or creating a co-parsnery which will create more problems in my personal view because that her son and daughter will become a co-parsner in two co-parsners namely a co-parsnery of her mother and a co-parsnery of her father I am not sure whether it was intended but as of today there is no decision on the point and only the daughters are fighting the grandsons and daughters probably waiting in the wings we will see await some decision next question is once a joint family property undergoes partition whether the property becomes individual property or still it retains the joint family property just check section 6 under section 6 of the succession act there will be a notional partition which was initiated by the supreme court for the first time in common belt attack, commission of belt attacks under Chandra's son in 1986 supreme court which I have referred where the lordship would say that if father and sons have divided the property then the property of the father will become an absolute property of the father and the property allotted to the son will be still a joint family property between himself and his sons who have not joined the partition the point is therefore this notional partition assuming for a moment that father father has got a five sons father and five sons will take one sixth of the property father will get a major chunk of the property the sons will get to 168 and this one sixth will go to their son and daughter as well therefore unbitingly or wittingly once this notional partition has been applied father who has a party to the partition will get a larger property and this property if he dies interstated will go to the sons the share of the grandsons will come down but this is the law as of today section A son of a pre-disease alone is found hence whether a son claim right when the father is alive section 8 speaks about the self-acquired properties of the father therefore he cannot claim any right from the father during his lifetime but if it is under section 6 the interpretation is that the son will get a share in the property by birth and this share will be left untouched and notwithstanding the partition I leave it to you the podium because Mr. Vikas one of the only Tamil Nadu government has recently stated that father is being included as a legal heir of the deceased son I think they have no other questions that was the mistake which has been corrected by the full bench it is in respect of issuing a legal asships at the game where a GO she should by the government of Tamil Nadu stating that father is also a legal heir but the full bench of his lordship P. N. Prakash has held that this was wrong and directed the government because there is an Hindu succession act which governs the parties and also said that there is other religious people who's right do all upon their personal law named the moment or not you can't put it that father is entered into the share and the property and ask them to issue a fresh G. O. so thank you friends for remaining connected with us and as usual we will be indebted to Mr. Prabhakar for sharing his knowledge I'm just checking whether it's a thanks or some questions yeah once the ancestral property is partitioned father and son the nature of ancestral property becomes end or the partitioned property in the hands of a son is still continued as an ancestral property that was the problem with Uttam's case that was the observation made unmitingly by Slakship Govindan Nareeman that once there is a partition between the father and son the co-partner will come to an end but kindly see the latest decision of our lordship Inder Mallotra reported in 2019 AIR Supreme Court page 3098 where our lordship would say that partition between father and son would not terminate the co-partnery the co-partnery will be alive between the son and his sons thank you and it's always enriching learning from Mr. Prabhakar stay safe stay connected thank you