advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, July 22, 2013

As per Hindu Law and Hindu Succession Act sec.6 - the property lies in the hands of father fell on him during family partition among his brothers, becomes as a joint family property after the birth of the plaintiff and as such, the father has no absolute right and title to dispose the entire property with out consent of plaintiff - so the documents not valid and not binding on the plaintiff = the property received by his father is ancestral property and, therefore, alienation of the same by him is null and void.= Whether the plaintiff is entitled to a decree for declaration to the effect that impugned release deed dt.28.5.2004 and mutation no.3365 entered and attested in lieu of impugned release deed and further two sale deeds dt.19.5.2000 bearing no.272/1 and 273/1 and mutation no.3110 and 3106 entered and attested on the basis of impugned two sale deeds and further revenue entries are wrong, illegal and not binding on the rights of the plaintiff and defendants no. 6 & 7?”= It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.”= A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father’s property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody’s case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding.- In the result, we allow this appeal, set aside the judgment and decree of the lower appellate court as affirmed by the High Court and restore that of the trial court with the liberty aforementioned. In the facts and circumstances of the case, there shall be no order as to costs.

               published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40554

                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5475 OF 2013
                        (@ SLP (C) No. 22388 of 2011)

ROHIT CHAUHAN                                     …APPELLANT
                                   VERSUS

SURINDER SINGH & ORS.                            …RESPONDENTS


                                  JUDGMENT


CHANDRAMAULI KR. PRASAD,J.

      Sole  plaintiff  Rohit  Chauhan  is  the  appellant  before  us.  
His
grandfather Budhu had three sons, namely, Gulab Singh, Zile  Singh  and  one
Ram Kumar.
Gulab Singh, father  of  the  plaintiff,  has  been  arrayed  as
defendant no. 2, whereas son of Zile Singh i.e. Surinder  Singh  figures  as
defendant no. 1 in the suit. In partition between Budhu and his three  sons,
defendant no. 2 got 1/4  share  i.e.,  72  Kanals  of  land.
 In  the  said
partition Budhu also got 72 Kanals of land and  he  bequeathed  1/4  of  his
share i.e., 18 Kanals to each of his three sons and  kept  with  himself  18
Kanals.
After the death of Budhu,  defendant  no.  2  inherited  1/3  share
i.e., 6 Kanals and in this way plaintiff’s  father  Gulab  Singh,  defendant
no. 2,got 96 Kanals  of  land.  Defendant  No.2  during  his  lifetime  also
acquired 8 Kanals of land from the income of the properties which he got  in
partition amongst his  father  and  brothers.  
At  the  time  of  partition
defendant no. 2 was unmarried.  But later on, Gulab  Singh  was  married  to
defendant no. 7, Rajesh Rani and from the  wedlock  the  plaintiff  as  also
defendant no. 6 were born. Plaintiff  was  born  on  25th  of  March,  1982.
Plaintiff alleged that his father defendant  no.  2  executed  two  separate
sale deeds on 19th of May, 2000 selling  8  Kanals  of  land  acquired  from
joint family funds to defendant nos. 3 to 5.
It is  further  allegation  of
the plaintiff that his father illegally gifted 96 Kanals of land  in  favour
of defendant no. 1 Surinder Singh, the son of his real  brother  Zile  Singh
by way of release deed dated 28th  of  May,  2004.   On  the  basis  of  the
release deed and the sale deeds, the defendants  claiming  interest  therein
got their names mutated and attested in the revenue records.
It is the  case
of the plaintiff that the property  received  by  his  father  is  ancestral
property and, therefore, alienation of the same by him  is  null  and  void.
On  the  basis  of  the  aforesaid  pleadings,  the  plaintiff  prayed   for
declaration that the release deed, sale deeds and the mutation entries  made
on that basis are illegal, null and void and  not  binding  on  him,  Varsha
(defendant no. 6) and Rajesh Rani (defendant no. 7).


      Defendant no.  1  contested  the  suit  and,  according  to  him,  the
plaintiff, his mother Rajesh  Rani  and  minor  sister  Varsha  were  living
separately from defendant No. 2 and  there  was  no  good  relation  between
them.  They were not even on talking terms.  According to defendant  no.  1,
he and his family members  were  rendering  service  and  giving  honour  to
defendant no. 2 and he was  residing  with  them  as  their  family  member.
Defendant no. 1 further averred that out  of  love,  affection  and  service
rendered by him, defendant no. 2 was pleased and, as  such,  he  executed  a
release deed in his favour and on that basis  mutation  entries  were  made.
It is the plea of defendant no.1 that the land in question became  the  self
acquired property of defendant no. 2 after partition and, therefore, he  was
competent to transfer the property in the manner he desired.  Defendant  no.
1 further alleged that the sale deed executed by defendant no. 2  in  favour
of defendant nos. 3 to 5 is legal and valid.  Defendant no. 2 supported  the
case of defendant no. 1 and adopted the  written  statement  filed  by  him.
Defendant nos. 3 to 5 filed their separate written statements and  supported
the plea of defendant no. 1 and averred that the sale deeds and the  release
deed were validly executed.  On the basis of the aforesaid pleading  of  the
parties various issues have been framed including the following issues:


             “1.Whether  the  plaintiff  is  entitled  to   a   decree   for
declaration  to  the  effect  that  impugned  release   deed dt.28.5.2004 and mutation no.3365 entered  and  attested  in
  lieu of impugned release deed and  further  two  sale  deeds
  dt.19.5.2000 bearing no.272/1 and 273/1 and mutation no.3110
  and 3106 entered and attested on the basis of  impugned  two
  sale deeds and further revenue entries  are  wrong,  illegal
  and  not  binding  on  the  rights  of  the  plaintiff   and
  defendants no. 6     & 7?”





      The trial court, on analysis of the materials placed on record and the
legal position, came to the conclusion that  the  property  which  defendant
no. 2 got by virtue of the partition decree amongst his father and  brothers
was although separate property qua  other  relations  but  it  attained  the
characteristics of coparcenary property after the  plaintiff  Rohit  Chauhan
was born.  The finding recorded by the trial court in this regard  reads  as
follows:


           “21. No doubt Gulab Singh got some of his share in the  property
           described in para no. 1(a) of  the  plaint  through  his  father
           Budhu vide mutation no. 3089 in which the father Budhu  suffered
           a decree in favour of defendant no. 1 along with Zile Singh  and
           Ram Kumar of 3/4th share but in the  year  1969  when  the  said
           decree was passed Gulab Singh  was  unmarried  and  he  had  got
           alienated the land which  had  come  to  his  share  when  Rohit
           Chauhan,  Plaintiff  came  into  existence  i.e.  on  25.3.1982.
           Meaning thereby that the property which Gulab Singh had  got  by
           the decree was although his separate property qua other relation
           but became JHF property immediately when Rohit Chauhan was  born
           thereby getting characteristic of coparcenary property.”




      Accordingly, the trial court decreed the suit.


      Defendant no. 1, aggrieved by the same, preferred appeal  and  it  was
his plea that the property received by defendant 2 on partition will  become
his separate property and requires  to  be  treated  as  his  self  acquired
property and, therefore, defendant no. 2 was free to deal with the  property
in the manner he liked.  In other  words,  according  to  defendant  no.  1,
after partition the property falling in the share of defendant  no.  2  lost
its character as a coparcenary property  and  assumed  the  status  of  self
acquired  property.   The  aforesaid  plea  found  favour  with  the   lower
appellate court and it held that the property which defendant no. 2  got  on
partition “lost the character of coparcenary property and  became  the  self
acquired property of Gulab Singh”.  The lower appellate court  further  held
that once the property is held to be self acquired property of Gulab  Singh,
he had every right to deal with the same in any manner he  liked.   Relevant
portion of  the  judgment  of  the  lower  appellate  court  reads        as
follows:


           “13. In the light of above said precedents  it  can  be  readily
           concluded that only when the property which  is  received  by  a
           person from his ancestors by survivorship  can  be  held  to  be
           ancestral/coparcenary property  and  any  other  property  which
           although, might have been received from the ancestors  by  means
           of will or consent decree or a father partitioned the  property,
           will loose its character as that  of  coparcenary  property  and
           will become self  acquired  property  in  the  hands  of  person
           receiving it.  Applying these precedents to  the  facts  of  the
           present case, this Court will  conclude  that  approximately  96
           Kanals of land was received by Gulab Singh from his father Budhu
           on the basis of consent decree or on the basis of will  and  not
           by  survivorship  and  this  property  lost  the  character   of
           coparcenary property and was self  acquired  property  of  Gulab
           Singh.  The version of plaintiff/respondent no. 1 in the present
           case is that rest of the property was acquired  by  Gulab  Singh
           with the funds originated from joint Hindu family  property  and
           the said property also assumed  the  character  of  joint  Hindu
           family property, also cannot  be  sustained  because  the  major
           chunk of land in the hands of Gulab Singh has been  held  to  be
           non-ancestral property and  rather  self  acquired  property  of
           Gulab Singh.


           14. Once the property involved in the suit has been held  to  be
           self acquired property of  Gulab  Singh  then  Gulab  Singh  was
           having every right to deal with the same in any manner he  liked
           and no embargo can be put on the rights of Gulab Singh  as  well
           as his rights to alienate the suit property  are  concerned  and
           thus neither release deed nor sale deeds executed by Gulab Singh
           can be questioned by anyone much less by son of Gulab Singh…………”




      Accordingly, the lower appellate court  allowed  the  appeal  and  set
aside the judgment and decree of the trial court and dismissed the suit.




      Plaintiff, aggrieved by the same, preferred second appeal and the High
Court dismissed the second appeal in limine and, while  doing  so,  observed
as follows:


           “………Finding of the lower appellate court that the suit  land  is
           not proved to be ancestral  or  coparcenary  property  is  fully
           justified by the documentary evidence and admitted facts…….”


      This is how the plaintiff is before us.


      Leave granted.


      Mr. L.Nageshwar Rao, learned Senior Counsel appearing on behalf of the
plaintiff-appellant submits that at the time  when  the  plaintiff’s  father
Gulab Singh got the property in partition, it was his separate property vis-
à-vis his relations but after the birth of the plaintiff on 25th  of  March,
1982, plaintiff acquired interest in the  property  as  a  coparcener.   Mr.
Satinder S. Gulati, learned Counsel appearing on behalf  of  the  defendant-
respondents, however, submits that once the property fell into the share  of
the plaintiff’s father Gulab Singh, it lost the character of  a  coparcenary
property and the said status will not change on the birth of the  plaintiff.
 He points out that even if plaintiff Rohit Chauhan was born at the time  of
partition between defendant no. 2, his father and brothers, plaintiff  would
not have got any share under Section 8 of  the  Hindu  Succession  Act.   In
support of the submission he has placed  reliance  on  a  judgment  of  this
Court in the case of Bhanwar Singh  v.  Puran,  (2008)  3  SCC  87  and  our
attention has been drawn to the following passage from the said judgment:


           “13. 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  stripes,  as
           also tenants-in-common and not as joint tenants.”






      We have bestowed our consideration to the rival submission and we find
substance in the submission of Mr. Rao. In our opinion coparcenary  property
means the property which consists of ancestral  property  and  a  coparcener
would mean a person who shares equally with others  in  inheritance  in  the
estate of common ancestor. Coparcenary is a narrower  body  than  the  Joint
Hindu family and before commencement of Hindu  Succession  (Amendment)  Act,
2005, only male members of the family used to acquire by birth  an  interest
in the coparcenary property.  A coparcener has  no  definite  share  in  the
coparcenary property but he has an undivided interest in it and one  has  to
bear in mind that it enlarges by deaths and  diminishes  by  births  in  the
family.  It is not static. We are further of the opinion that  so  long,  on
partition an ancestral property remains in the hand of a single  person,  it
has to be treated as  a  separate  property  and  such  a  person  shall  be
entitled to dispose of the  coparcenary  property  treating  it  to  be  his
separate property but if a son is subsequently  born,  the  alienation  made
before the birth cannot be questioned.  But, the moment a son is  born,  the
property becomes a coparcenary property and the son would  acquire  interest
in that and become a  coparcener.   The  view  which  we  have  taken  finds
support from a judgment of  this  Court  in  the  case  of  M.  Yogendra  v.
Leelamma N., (2009) 15 SCC 184, in which it has been held as follows:


           “29. It is now well settled in view of several decisions of this
           Court that 
the property  in  the  hands  of  a  sole  coparcener
allotted to him in partition shall be his separate property  for
 the same 
shall revive only when a son is born to him. 
It is  one thing to say that the property remains  a  coparcenary  property but it is another thing to say that it revives. 
The  distinction
 between the two is absolutely clear and unambiguous. 
In the case
of former any sale or alienation which has been done by the sole
 survivor coparcener shall be valid 
whereas  in  the  case  of  a coparcener any alienation made by the karta would be valid.


      Now referring to the decision of this Court in  the  case  of  Bhanwar
Singh  (supra),  relied   on   by   respondents,   the   same   is   clearly
distinguishable.  In the said case the issue was in relation  to  succession
whereas in the present  case  we  are  concerned  with  the  status  of  the
plaintiff vis-à-vis  his  father  who  got  property  on  partition  of  the
ancestral property.


      A person, 
who for the time being is the sole surviving  coparcener  as
in the present case Gulab Singh was, 
before the birth of the plaintiff,  was
entitled to dispose of the coparcenary property as if it were  his  separate property.  
Gulab Singh, till the  birth  of  plaintiff  Rohit  Chauhan,  was
competent to sell, mortgage and deal with the property as  his  property  in the manner he liked.  
Had he done so before the birth  of  plaintiff,  
Rohit Chauhan, he was not competent to  object  to  the  alienation  made  by  his father before he was born or begotten.  
But, in the present case, 
it  is  an
admitted position that the property which defendant no. 2 got  on  partition was an ancestral property and till the birth of the plaintiff  he  was  sole surviving coparcener but the moment plaintiff was born, he got  a  share  in the father’s property and became a coparcener. 
As observed earlier, in  view
of the settled legal position, the property in the hands of defendant no.  2 allotted to him in partition was a separate property till the birth  of  the plaintiff and, therefore,  after  his  birth  defendant  no.  2  could  have alienated the property only as Karta for legal necessity.  
 It  is  nobody’s
case that defendant no. 2 executed the sale deeds and release deed as  Karta for any legal necessity.   
Hence,  the  sale  deeds  and  the  release  deed
executed by Gulab Singh to the extent of  entire  coparcenary  property  are illegal, null and void.  
However, in respect of  the  property  which  would
have fallen in the share of Gulab Singh at the time of  execution  of  sale-deeds and  release  deed,  the  parties  can  work  out  their  remedies  in appropriate proceeding.






      In view of what we have observed above, the view taken  by  the  lower
appellate court as affirmed by the High Court is erroneous in law.


      In the result, we allow this appeal, set aside the judgment and decree
of the lower appellate court as affirmed by the High Court and restore  that
of the trial court with  the  liberty  aforementioned.   In  the  facts  and
circumstances of the case, there shall be no order as to costs.




                                  ………………………………………………………………J
                                                             (CHANDRAMAULI
                                  KR. PRASAD)




                                                    ………..……….………………………………..J
                                       (V.GOPALA GOWDA)


NEW DELHI,
JULY 15, 2013.

-----------------------
17


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.