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Wednesday, June 17, 2015

When the property in the hands of a sole coparcener allotted to him in partition revives as coparcenary Property ?

When the property in the hands of a sole coparcener allotted to him in partition revives as coparcenary Property ?
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.”

so long, on partition an ancestral property remains in the hands of a single person, it has to be treated as separate property and such person shall be entitled to dispose of the co-parcenery property treating it to be his separate property, but if a son is subsequently born, the property becomes co-parcenery property and the son would acquire interest in that and become co-parcener.
The son would now include daughter also . 
The Central Act was amended only in the year 2005 and came in to force on 09.09.2005. 
There was a State amendment in the year 1989, thereby section 6 was amended by Tamil Nadu State Amendment Act. 
The daughter was recognised as a coparcenar. However the Central Act supersede the State amendment and from 9.9.2005 the daughter is a coparcenar along with the son.
The dates are crucial to decide whether the petitioners/appellants are entitled a share in the property of their grandfather along with their father. Another aspect is the right of disposal after partition by the coparcenar to whom it was allotted. 

  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.

- 2015 S.C.(2013)msklawreports

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