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Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority, No. 18-1839 (E.D. Pa.), Final Judgment and Decree entered December 20th, 2018.
Archdiocese of Washington v. Washington Metropolitan Transit Authority, No. 17-7171 (D.C. Cir.). Order entered December 21, 2018 denying petition for rehearing en banc.
The United States District Court for the Eastern District of Pennsylvania recently entered a final judgment ordering the Southeastern Pennsylvania Transportation Authority (SEPTA) to revise its advertising guidelines to eliminate the “unfettered discretion” theretofore vested in SEPTA to make advertising decisions that the court found to be unconstitutionally overbroad in its November 28, 2018 Memorandum Opinion.
The court took it upon itself to revise SEPTA’s advertising policies to forbid political advertisements and all advertisements offering an “opinion, position, or viewpoint about “economic, political, religious, historical or social issues.” Upon rejecting an advertisement, SEPTA has been ordered to provide, on request, some form of conference with the entity proposing the advertisement deemed unsuitable.
The ability of government entities to regulate speech on transit vehicles simmers not only in the Pennsylvania district court case but also in the United States Court of Appeals for the District of Columbia Circuit, which recently rejected, with dissent, a petition for rehearing en banc of a July 31, 2018 per curiam judgment upholding rejection of a Catholic Christmas message.
Less foundational but worrisome is the contemporary notion that the public must not be exposed to messages which may, in the views of government authorities, induce distress. Political or religious messages, the authorities have concluded, are exceptionally apt to cause riders to become disquieted.
As the decisions here demonstrate, speech regulation inhibiting sources of public discomfort has been endorsed by the courts. At the same time, there exists and evolving advocacy for a ‘right’ to not meet with disfavored images: this is at the heart of litigation before the United States Supreme Court seeking to dismantle religious historic public monuments. The American Legion v. American Humanist Association, No. 17-1717, consolidated with Maryland-National Capital Parks and Planning Commission v. American Humanist Association, No. 18-18. Oral argument scheduled for February 27, 2019.
The demand that colleges and universities shied students from exposure to unsettling ideas has been reported widely. Lukianoff and Haidt, The Coddling of the American Mind (Penguin 2018) When observed through the lens of current judicial consideration of the acceptability of speech restrictions, the apparent acceptability of government intrusion in determining which messages the public may see, and which they must be spared, may itself be disquieting.
Hairston v. Franklin County Sheriff’s Office, No. 2:17-cv-581 (S.D. Ohio) November 28, 2018.
Prison officials opened mail from the courts addressed to prisoner in the mistaken belief that doing so was permissible. The official in question was tutored about the extension of the prohibition on opening prisoner’s “legal mail” to court documents, but in at least one instance repeated the behavior.
Although the county insists that it had not erroneously instructed its employees and that it took action to correct any misperceptions, its post-offense measures will not defeat the prisoner’s claim that a policy or practice operated to breach his privacy rights in receiving legal mail. Moreover, once the county employee was instructed in the scope of legal mail protections, qualified immunity could not be asserted.
Ferry v. Doohan, No. 3:18-cv-01891-HZ (D. Or.) November 28, 2018.
Petitioner cannot succeed in either his claim objecting to release to the state of mental health treatment records, as his rights of privacy are diminished in the post-prison supervision context, nor can he succeed in his demand to attend a particular church at a particular time, as the state’s failure to agree to that term does not materially impair any rights of worship he enjoys.

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INDICTMENT found and returned in the Superior Court on November 7, 1969.
The case is before us on the defendant's appeal based on one assignment of alleged error by the trial judge in finding and ruling that certain prospective jurors should be excused because they did not stand indifferent. [Note 2] The defendant also asks this court to review the case on the law and the facts as provided in G. L. c. 278, Section 33E, and to reduce the verdict to one of guilty of the crime of manslaughter.
The judge, after examining each venireman along the lines indicated in his preliminary instructions, excluded five persons from serving as jurors in the case. As to each of the five the judge found that he held opinions on capital punishment which precluded him from rendering a verdict based on the evidence which might be presented at the trial, and that he was therefore not indifferent. The evidence supports the judge's findings as to each person.
The defendant contends that it was error to exclude these persons as jurors because (a) they were excused only because they held opinions against the death penalty; (b) the crime charged was not punishable by death, as later established by the decision in Furman v. Georgia, 408 U.S. 238 (1972); and (c) the exclusion of veniremen with such opinions substantially increased the risk of the defendant's conviction. This claim is identical to that raised by the defendant in Commonwealth v. McAlister, 365 Mass. 454 , 457 (1974), of very recent date, and the same argument is offered in support thereof, counsel for the defendant being the same in both cases. In that case, after full consideration of the issue, we decided it against the defendant, and we make the same decision here. There is no need for repeating what we said in the McAlister decision.
The defendant also raises a question about the empanelling of the jury which was not raised in the McAlister case. In Commonwealth v. McNeil, 328 Mass. 436 , 441-442 (1952), we held that a jury verdict finding a defendant guilty of murder in the first degree "has its usual consequence of death, unless the jury join in a unanimous recommendation of mitigation." That rule was reviewed and reaffirmed by this court in Commonwealth v. Stewart, 359 Mass. 671 , 676 (1971), judgment vacated per curiam, 408 U.S. 845 (1972). The judge in this case instructed the veniremen in accordance with the rule of the McNeil and Stewart cases.
that the death penalty not be imposed. He then argues that this rule is unconstitutional and that he was therefore prejudiced by the judge's instruction relating to it. We do not agree.
The defendant's argument rests entirely on the United States Supreme Court reversal of the death penalty in the Stewart case which was handed down simultaneously with that court's decision in Furman v. Georgia, 408 U.S. 238 (1972). Stewart v. Massachusetts, 408 U.S. 845 (1972). He contends that this reversal must be read to have declared unconstitutional our rule requiring unanimity for a recommendation against the death penalty. The total statement of that court in disposing of the Stewart case was the following: "The appellant in this case was sentenced to death. The imposition and carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, . . . [supra] 238. The motion for leave to proceed in forma pauperis is granted. The judgment is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings." We do not read this language as having the effect which the defendant contends it has on the rule of our McNeil and Stewart decisions. The defendant is entitled to no relief on this claim.
2. Consideration under G. L. c. 278, Section 33E. As noted, the defendant requests that in the exercise of our powers under Section 33E we order that the jury verdict of guilty of murder in the first degree be reduced to a verdict of guilty of voluntary manslaughter and that the defendant be resentenced accordingly. [Note 4] After reviewing the law and the evidence we have concluded that the defendant is not entitled to relief under Section 33E.
The homicide at issue in this case arose out of a dispute between the defendant and the victim Parker over a $10 bet made at a game of dice on June 6, 1969. The defendant testified that after arguing with Parker over the money, he left the game, took a taxicab to the house where he had left a gun and some bullets he had purchased a few weeks earlier, and returned to the dice game, the round trip taking twenty to thirty minutes; that on his return he and Parker resumed their argument until a third person gave him $10; that he started to move away when further words were spoken, whereupon he shot Parker; that on the next day he learned that Parker had died from the shooting; and that he fled to Indiana where he lived under an assumed name until apprehended by the police and returned to Boston in June, 1970.
There was more testimony from the defendant which, if believed, tended to prove that he shot Parker in self-defence. The jury were not required to, and obviously did not, believe this testimony. There was extensive testimony from eyewitnesses to the shooting which, if believed, would support the jury verdict of guilty of murder in the first degree.
time to obtain weapons, then returned to the scene and committed the homicides. In each case there appears to have been a period of reflection and premeditation after the original difficulties between the parties and before the ultimate homicide.
We conclude that the defendant is entitled neither to a new trial nor to a reduction in the degree of guilt found by the jury.
[Note 1] The verdict was returned on April 16, 1971, thus preceding Furman v. Georgia, 408 U.S. 238 (1972).
[Note 2] We note that although the defendant claims there was error in excluding five prospective jurors, his trial counsel (who is not his counsel on appeal), saved an exception on his behalf to the exclusion of only one of the five. The saving of an exception is essential to an appeal under G. L. c. 278, Sections 33A-33G. Commonwealth v. McCauley, 355 Mass. 554 , 558 (1969). Commonwealth v. Underwood, 358 Mass. 506 , 508-510 (1970), and cases cited. We consider the question concerning the exclusion of the jurors as to whom no exception was saved only because this is a "capital case," c. 278, Section 33E, bringing into play our power of extraordinary review under that section. Compare Commonwealth v. McAlister, 365 Mass. 454 , 457, fn.1 (1974).
[Note 3] These questions were intended to determine (a) whether the venireman had an opinion on capital punishment; (b) whether such opinion, if any, would preclude him from finding the defendant guilty of a crime punishable by death; (c) whether such opinion, if any, when coupled with his knowledge that it would require a unanimous verdict to recommend that the death penalty not be imposed on a conviction for murder in the first degree, would preclude him from convicting a person of such a crime; and (d) whether he had any opinion which would preclude him from voting to recommend that the death penalty not be imposed in such a case. G. L. c. 278, Section 3.
[Note 4] Although the defendant assigned as an alleged error the denial of his separate motions for directed verdicts of not guilty of murder in the first degree and murder in the second degree, he expressly waived that assignment in his brief stating as the reason therefor that there was "evidence warranting a finding of premeditation." The sufficiency of the evidence to support the jury verdict is thus conceded, but that is not necessarily decisive of the result to be reached in this court's consideration of the case under Section 33E.

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Uttam Vs. Saubhag Singh & Ors.
2. The present appeal is by the plaintiff who filed a suit for partition, being Suit No.5A of 1999 before the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened to be his father (defendant No.3), and his father's three brothers i.e. defendant Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law.
A joint written statement was filed by all four brothers, including the plaintiff's father, claiming that the suit property was not ancestral property, and that an earlier partition had taken place by which the plaintiff's father had become separate. The trial court, by its order dated 20.12.2000 decreed the plaintiff's suit holding that it was admitted by DW.1 Mangilal that the property was indeed ancestral property, and that, on the evidence, there was no earlier partition of the said property, as pleaded by the defendants in their written statements.
3. The first Appellate Court, by its judgment dated 12.1.2005, confirmed the finding that the property was ancestral and that no earlier partition between the brothers had in fact taken place. However, it held that the plaintiff's grandfather, one Jagannath Singh having died in 1973, his widow Mainabai being alive at the time of his death, the said Jagannath Singh's share would have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in accordance with rules of intestacy and not survivorship.
This being so, no joint family property remained to be divided when the suit for partition was filed by the plaintiff, and that since the plaintiff had no right while his father was alive, the father alone being a Class I heir (and consequently the plaintiff not being a Class I heir), the plaintiff had no right to sue for partition, and therefore the suit was dismissed and consequently the first appeal was allowed.
"15. Thus in view of the provisions contained in Sections 4,6, 8 and Schedule of the Act as well as the law settled by the aforesaid judgments, it is clear that after coming into force of the Act grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father.
16. In the present case, it is undisputed that Jagannath had died in the year 1973, leaving behind respondents No. 1 to 4 i.e. his four sons covered by Class I heirs of the schedule therefore, the properties had devolved upon them when succession had opened on the death of Jagannath. It has also been found proved that no partition had taken place between respondents No. 1 to 4. The appellant who is the grand son of Jagannath is not entitled to claim partition during the lifetime of his father Mohan Singh in the properties left behind by Jagannath since the appellant has no birth right in the suit properties.
17. In view of the aforesaid, the substantial questions of law are answered against the appellant by holding that the first appellate court has committed no error in dismissing the suit for partition filed by the appellant referring to Section 8 of the Act and holding that during the lifetime of Mohan Singh, the appellant has no right to get the suit property partitioned."
5. It is this judgment that has been challenged before us in appeal.
6. Shri Sushil Kumar Jain, learned senior advocate appearing on behalf of the appellant, took us through various provisions of the Hindu Succession Act, and through several judgments of this Court, and contended that Section 6, prior to its amendment in 2005, would govern the facts of this case. He conceded that as Jagannath Singh's widow was alive in 1973 at the time of his death, the case would be governed by the proviso to Section 6, and that therefore the interest of the deceased in the Mitakshara coparcenary property would devolve by intestate succession under Section 8 of the said Act.
However, he argued that it is only the interest of the deceased in such coparcenary property that would devolve by intestate succession, leaving the joint family property otherwise intact. This being the case, the plaintiff had every right to sue for partition while his father was still alive, inasmuch as, being a coparcener and having a right of partition in the joint family property, which continued to subsist as such after the death of Jagannath Singh, the plaintiff's right to sue had not been taken away. He went on to argue that Section 8 of the Act would not bar such a suit as it would apply only at the time of the death of Jagannath Singh i.e. the grandfather of the plaintiff in 1973 and not thereafter to non suit the plaintiff, who as a living coparcener of joint family property, was entitled to a partition before any other death in the joint family occurred.
He also argued that the Hindu Succession Act only abrogated the Hindu Law to the extent indicated, and that Sections 6 and 8 have to be read harmoniously, as a result of which the status of joint family property which is recognized under Section 6 cannot be said to be taken away upon the application of Section 8 on the death of the plaintiff's grandfather in 1973.
7. Shri Niraj Sharma, learned counsel appearing on behalf of the respondents, countered these submissions, and also referred to various provisions of the Hindu Succession Act and various judgments of this Court to buttress his submission that once Section 8 gets applied by reason of the application of the proviso to Section 6, the joint family property ceases to be joint family property thereafter, and can only be succeeded to by application of either Section 30 or Section 8, Section 30 applying in case a will had been made and Section 8 applying in case a member of the joint family dies intestate.
He, therefore, supported the judgment of the High Court and strongly relied upon two judgments in particular, namely Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, (1986) 3 SCC 567, and Bhanwar Singh v. Puran, (2008) 3 SCC 87, to buttress his submission that once Section 8 is applied to the facts of a given case, the property thereafter ceases to be joint family property, and this being the case, no right to partition a property which is no longer joint family property continues to subsist in any member of the coparcenary.
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
"Explanation.-For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." From a reading of the aforesaid provision it becomes clear that a partition having been effected by a court decree of 20.12.2000, which is prior to 9th September, 2005, (which is the date of commencement of the Amending Act), would not be affected.
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased."
daughter of a pre-deceased daughter of a pre-deceased son."
30. Testamentary succession.- Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.-The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section."
11. Before analysing the provisions of the Act, it is necessary to refer to some of the judgments of this Court which have dealt, in particular, with Section 6 before its amendment in 2005, and with Section 8. In G.K. Magdum v. H.K. Magdum, (1978) 3 S.C.R. 761, the effect of the old Section 6 was gone into in some detail by this Court. A Hindu widow claimed partition and separate possession of a 7/24th share in joint family property which consisted of her husband, herself and their two sons.
"The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, the pre-conditions of Section 6 are satisfied and that section is squarely attracted. By the application of the normal rule prescribed by that section, Khandappa's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to Section 6 comes into play and the normal rule is excluded.
Khandappa's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorship. Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to Section 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition.
There is thus no dispute that the normal rule provided for by Section 6 does not apply, that the proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be given to Explanation 1 of Section 6. The interpretation of that Explanation is the subject- matter of acute controversy between the parties."
"13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share.
Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.
What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.
The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion.
It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition."
13. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors., (1985) 3 S.C.R. 358, this Court distinguished the judgment in Magdum's case in answering a completely different question that was raised before it. The question raised before the Court in that case was as to whether a female Hindu, who inherits a share of the joint family property on the death of her husband, ceases to be a member of the family thereafter. This Court held that as there was a partition by operation of law on application of explanation 1 of Section 6, and as such partition was not a voluntary act by the female Hindu, the female Hindu does not cease to be a member of the joint family upon such partition being effected.
14. In Shyama Devi (Smt) and Ors. v. Manju Shukla (Mrs) and Anr., (1994) 6 SCC 342, this Court again considered the effect of the proviso and explanation 1 to Section 6, and followed the judgment of this Court in Magdum's case (supra). This Court went on to state that explanation 1 contains a formula for determining the share of the deceased on the date of his death by the law effecting a partition immediately before a male Hindu's death took place.
15. On application of the principles contained in the aforesaid decisions, it becomes clear that, on the death of Jagannath Singh in 1973, the proviso to Section 6 would apply inasmuch as Jagannath Singh had left behind his widow, who was a Class I female heir. Equally, upon the application of explanation 1 to the said Section, a partition must be said to have been effected by operation of law immediately before his death. This being the case, it is clear that the plaintiff would be entitled to a share on this partition taking place in 1973.
We were informed, however, that the plaintiff was born only in 1977, and that, for this reason, (his birth being after his grandfather's death) obviously no such share could be allotted to him. Also, his case in the suit filed by him is not that he is entitled to this share but that he is entitled to a 1/8th share on dividing the joint family property between 8 co-sharers in 1998. What has therefore to be seen is whether the application of Section 8, in 1973, on the death of Jagannath Singh would make the joint family property in the hands of the father, uncles and the plaintiff no longer joint family property after the devolution of Jagannath Singh's share, by application of Section 8, among his Class I heirs. This question would have to be answered with reference to some of the judgments of this Court.
16. In Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, (1986) 3 SCC 567, a partial partition having taken place in 1961 between a father and his son, their business was divided and thereafter carried on by a partnership firm consisting of the two of them. The father died in 1965, leaving behind him his son and two grandsons, and a credit balance in the account of the firm. This Court had to answer as to whether credit balance left in the account of the firm could be said to be joint family property after the father's share had been distributed among his Class I heirs in accordance with Section 8 of the Act.
17. This Court examined the legal position and ultimately approved of the view of 4 High Courts, namely, Allahabad, Madras, Madhya Pradesh and Andhra Pradesh, while stating that the Gujarat High Court's view contrary to these High Courts, would not be correct in law. After setting out the various views of the five High Courts mentioned, this Court held: "It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family.
The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to he excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law.
It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-�-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-�-vis son and female heirs with respect to whom no such concept could be applied or contemplated.
It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu Law, 15th Edn. dealing with Section 6 of the Hindu Succession Act at pp. 924-26 as well as Mayne's on Hindu Law, 12th Edn., pp. 918-19. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail.
18. In Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 at page 210, this Court followed the law laid down in Chander Sen's case.
19. In Bhanwar Singh v. Puran, (2008) 3 SCC 87, this Court followed Chander Sen's case and the various judgments following Chander Sen's case.
This Court held:- "The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule.
In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record-of- rights.
A partition had taken place amongst the heirs of Bhima. Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants-in-common and not as joint tenants.
20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose.
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is affected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
21. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act.
This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs.