published in http://164.100.138.36/casest/generatenew.php?path=data/judgment/2013old/&fname=RSA4822000.pdf&smflag=N
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A.No. 482 of 2000.
Judgment reserved on : 6.5.2010
Date of decision : 14.6. 2010.
Capt. Arminder Singh Bedi (Amninder Singh Bedi) ..Appellant.
Versus
Guru Nanak Dev University and another . ..Respondents.
Coram
The Hon’ble Mr. Justice Kuldip Singh, Judge.
Whether approved for reporting ?1
Yes
For the appellant : Mr. Ajay Kumar with Mr. Suneet
Goel, Advocates .
For the respondents. : Mr. K.D.Sood, Advocate for
respondent No.1.
Mr. M.A.Khan, Advocate vice
Mr. Vijay Pandit, Advocate for
respondent No.2.
Kuldip Singh , Judge
The plaintiff has come in second appeal against the
judgment, decree dated 18.7.2000 passed by learned District Judge,
Chamba in Civil Appeal No. 58 of 1999 reversing judgment, decree dated
29.7.1999 passed by the learned Sub Judge 1st Class, Dalhousie in Civil
Suit No. 69 of 1994.
2. The facts, in brief, are that the appellant had filed a suit for
declaration that sale deed dated 19.6.1993 executed by respondent No.2 in favour of respondent No.1 is illegal, void, without jurisdiction and
1
Whether reporters of Local Papers may be allowed to see the Judgment ?. yes
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inoperative on the rights of the appellant with consequential relief of possession and permanent prohibitory injunction. The respondent No.1
was defendant No.2 and respondent No.2 was defendant No.1 in the suit.
3. The further case of the appellant is that he constituted a coparcenary and joint Hindu family with respondent No. 2 and they are coparceners.
The pedigree table relied by the appellant in the plaint is as
follows:
Baba Surinder Singh
Avinder Singh (predeceased)
Harinder Singh Bedi
Gurdeep Singh Bedi
Manmohan
A.S. Bedi
Singh Bedi
(Defendant
No.1)
Sardool
Singh Bedi
Raj (Widow) Gajinder
Singh (Son)
Amninder
Singh
(Plaintiff)
4. It is the case of the appellant that Sajjad Villa more
particularly described in the plaint was recorded in the ownership of Baba Surinder Singh Karta of family and common ancestor of appellant
and respondent No.2. Baba Surinder Singh died on 19.1.1988 and after his death the suit property was inherited by joint Hindu family of
appellant and respondent No.2 and came in the hands of respondent No.2 being Karta of the joint Hindu family of the appellant and respondent No.2. They are coparceners and the suit property is coparcenary property of appellant and respondent No.2.
5. The respondent No.2 had wasteful nature.
The respondent No.2 sold the suit property on 19.6.1993 without any legal necessity of the family at throw-away price.
The sale consideration was wasted and
was not spent on the joint Hindu family. The transfer of the suit property
was a great loss to the Hindu Undivided Family. The appellant
requested the respondents not to waste the property by transfer or sale
but they refused to accede to the request of the appellant.
On 2.8.1993
the appellant requested respondent No.1 to return the possession and cancel the transfer deed but without any positive result hence the suit was filed for declaration, possession and injunction as noticed above.
6. The suit was contested by respondent No.2 by filing written
statement. He admitted the pedigree table, description of the property.
He denied that suit property was sold without legal necessity. He has also
denied that sale consideration was not spent on the joint Hindu family.
He prayed for dismissal of the suit.
7. The respondent No.1 also contested the suit by filing written
statement and took preliminary objections of maintainability, jurisdiction of the Court to try the suit, appellant all the time had been assisting his father for selling the property to respondent No.1, he was even present alongwith his mother at the time of registration of the sale deed before Sub Registrar and, therefore, on account of his conduct he is debarred from assailing the sale, the suit has been filed by appellant in collusion with respondent No.2. On merits, it has been denied that appellant and
respondent No.2 constitute co-parcenary and they are members of the
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joint Hindu Family.
The respondent No.2 was the sole owner of Sajjad
Villa after the death of late Baba Surinder Singh. The property was inherited by respondent No.2 not as Karta of the Hindu Undivided Family. It has been denied that the property was not sold for legal
necessity or sale consideration was not utilized for the benefit of the
family.
8. The respondent No.2 entered into an agreement with
respondent No.1 for sale of the property on 19.6.1991, thereafter
respondent No.1 obtained permission from Government of Himachal
Pradesh to purchase the building and after receiving the permission the
sale deed was executed by respondent No.2 in favour of respondent No.1
through his wife who was having special power of attorney to execute the
sale deed. The appellant accompanied her mother at the time of
registration of the sale deed. The suit is collusive with respondent No.2
The respondent No.1 prayed for dismissal of the suit.
9. On the pleadings of the parties, the following issues were
framed:-
1. Whether the sale deed dated 19.6.1993 executed by
defendant No.1 in favour of defendant No.2 is illegal,
void and without jurisdiction? .. OPP.
2. Whether the suit property is a co-parcenary property
as alleged? ..OPP.
3. Whether the alienation made by defendant No.1 in
favour of defendant No.2 is without legal necessity as
alleged? …OPP.
4. Whether the plaintiff is entitled to the injunction as
prayed? .. OPP
5. Whether the suit is not maintainable ? OPD-2.
6. Whether this Court has no jurisdiction ? OPD-2.
7. Whether the plaintiff is estopped by his act and
conduct? …OPD-2.
8. Whether the suit has collusively been filed as alleged?
…OPD-2.
9. Relief.
The issues No. 1 to 4 were answered in affirmative and issues No. 5 to
8 in negative and the suit was decreed by learned Sub Judge on
29.7.1999 and a decree for declaration was passed in favour of the
appellant declaring sale deed dated 19.6.1993 null and void and
respondents were restrained from alienating the suit property to
anybody. The decision dated 29.7.1999 was assailed in appeal by
respondent No.1 and learned District Judge on 18.7.2000 allowed the
appeal and set-aside judgment, decree dated 29.7.1999 passed by
learned Sub Judge. In these circumstances, the plaintiff has come in
second appeal which has been admitted on the following substantial
questions of law:
1. Whether in the facts and circumstances of the case the
property in dispute has devolved upon the heirs of Baba
Surinder Singh Bedi under proviso to Section 6 of the Hindu
Succession Act.
2. Whether in view of the proviso of Section 6 of the Hindu
Succession Act the succession of property of Baba Surinder
Singh Bedi on his heirs under Section 8 of the Hindu
Succession Act will change the nature and nomenclature of
property from ancestral/coparcenary property to that of self
acquired property.
10. I have heard Mr. Ajay Kumar, Advocate, learned counsel for
the appellant, Mr. K.D.Sood, Advocate, learned counsel for respondent
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No.1 and Mr. M.A.Khan, Advocate, learned counsel appearing on behalf
of respondent No.2 and have also gone through the record. The learned
counsel for the appellant has submitted that the suit property has been
proved to be coparcenary property which was at one point of time owned
by Baba Surinder Singh who died on 19.1.1988. Late Baba Surinder
Singh was the common ancestor of respondent No.2 and appellant who
are father and son. The suit property in the hands of respondent No.2 on
19.6.1993 at the time of sale was ancestral /coparcenary property with
appellant a member of coparcenary headed by respondent No.2. The
sale being without legal necessity, therefore, appellant has every right to
assail the sale dated 19.6.1993. He has submitted that learned Sub
Judge had rightly decreed the suit of the appellant but learned District
Judge has mis-construed, misinterpreted Sections 6, 8 of the Hindu
Succession Act, 1956 (for short ‘Act’). The learned counsel for the
appellant has submitted that respondents have failed to prove legal
necessity. He has submitted for acceptance of the appeal, setting-aside
of impugned judgment, decree and restoration of the judgment and
decree passed by learned Sub Judge.
11. The learned counsel for respondent No.1 has submitted that
the suit property in the hands of respondent No.2 on 19.6.1993 was not
ancestral / coparcenary property. The sale deed executed by respondent
No.2 in favour of respondent No.1 on 19.6.1993 is legal. He has
submitted that appellant actively participated in the execution of the sale
deed and, therefore, appellant is debarred from questioning the sale
deed. He has supported the impugned judgment, decree. The learned
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counsel for respondent No.2 has supported the impugned judgment,
decree.
12. The above substantial questions of law No.1 and 2 are interconnected, therefore, both of them can be conveniently considered and
disposed of collectively. Ex.P-1 is the copy of sale deed dated 19.6.1993
vide which respondent No.2 through his attorney has sold Sajjad Villa to
respondent No.1 for a consideration of Rs. 10,00,000/- which was
registered on 19.6.1993 before Sub Registrar, Dalhousie. As per sale
deed Ex.P-1 Sajjad Villa is situate on khasra Nos. 2127, 2128, 2129,
2130, 2132 and 2133. Ex.P-2 is the Missal Haquiat in which Surinder
Singh S/o Gurbax Singh is shown owner in possession of the suit
property. In remarks column of Ex.P-2 it has been stated that vide
mutation No. 48 of partition dated 20.9.1991 as per order of A.C. IInd
Grade khasra No. 2127 to 2131 and Khasra No. 2133, Kittas 6, total
measuring 0-54-46 hectares was attested in favour of Manmohan Singh
S/o Surinder Singh. Ex.P-3 is the copy of Jamabandi for the year 1992-
93 indicating suit property is owned and possessed by Surinder Singh S/o
Gurbax Singh. In remarks column of Ex.P-3 reference of mutation No. 48
of partition has been given. In remarks column, it has further been stated
that vide mutation No. 125 suit property has been sold by Manmohan
Singh in favour of Guru Nanak Dev University for Rs. 10,00,000/- and the
mutation was attested on 30.9.1994. Ex.DW-1/B is the application under
Section 14 of the Indian Arbitration Act for making award dated 27.6.1988
as rule of the Court. The award dated 27.6.1988 was made rule of the
court on 7.10.1988 by the learned Sub Judge, Jalandhar in arbitration
case No. 125 of 1988. There is no denial of the fact that the suit property
at one point of time was owned by Baba Surinder Singh father of
respondent No.2 and grand-father of appellant, who died on 19.1.1988.
The suit property alongwith other properties were partitioned by way of
award dated 27.6.1988 which was made rule of the Court on 7.10.1988.
The suit property fell to the share of respondent No.2.
13. The question is what was the character of suit property in
the hands of respondent No.2 when it fell to his share by way of award
dated 27.6.1988. The learned counsel for the appellant has contended
that character of suit property in the hands of respondent No.2 after
award remained ancestral qua appellant. He has every right to question
the sale dated 19.6.1993 made by respondent No.2 in favour of
respondent No.1 as the sale was without the consent of appellant and
without legal necessity. Per contra, the learned counsel for respondent
No.1 has submitted that property after the death of common ancestor
Baba Surinder Singh on 19.1.1988 and partition award dated 27.6.1988
in the hands of respondent No.2 had lost the character of
ancestral/coparcenary property and, therefore, respondent No.2 had
every right to sell the suit property to respondent No.1 for consideration.
14. Intestate succession of Hindu is provided in Chapter II of the
Act. Section 6 of the Act at the relevant time was as follows:-
“Devolution of interest in coparcenary property.- When a male
Hindu dies after the commencement of this Act, having at the time
of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the
surviving members of the coparcenary and not in accordance with
this Act:
Provided that , if the deceased had left him surviving a
female relative specified in class 1 of the Schedule or a male
relative specified in that class who claims through such female
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relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship.
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 has
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.”
The Section 8 of the Act is as follows:-
“General rules of succession in the case of males. – The property of
a male Hindu dying intestate shall devolve according to the
provisions of this Chapter –
(a) firstly, upon the heirs, being the relatives specified in class I of the
Schedule ;
(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.”
15. The appellant in para 2 of the plaint has pleaded that Baba
Surinder Singh had died on 19.1.1988. Thus, the succession regarding
the estate of Baba Surinder Singh common ancestor of appellant and
respondent No.2 had opened on 19.1.1988. There is nothing on record
how Baba Surinder Singh had acquired the property including the
property in dispute, but it is not of much significance inasmuch as it is
nobody’s case that the property of late Baba Surinder Singh was to
devolve on his successors by some mode other than succession provided
under the Act.
16. The question of interpretation of Sections 4, 6 and 8 of the
Act has come up for decision in several cases in the past. In
Shrivallabhdas Modani Vs. Commissioner of Income Tax, M.P.-1, 138
ITR 673 the question No.2 referred to the High Court for decision was as
follows:-
“Whether the property which devolved on Shri Shrivallabhdas on
the death of his father, Gokalchand, also constituted the HUF
property consisting of his own branch including his sons.”
The High Court after noticing Sections 4, 8 of the Act has held as
follows:-
“Section 8 of the Hindu Succession Act lays down the scheme of
succession to the property of a Hindu dying intestate. The
schedule classifies the heirs on whom such property shall
devolve. Those specified in class I take simultaneously to the
exclusion of all other heirs. A son’s son is not mentioned as an
heir under class I of the Schedule and, therefore, he cannot get
any right in the property of his grandfather under this provision.
The right of a son’s son in his grand father’s property during the
lifetime of his father which existed under the Hindu law as in force
before the Act, is not saved expressly by the Act and, therefore, the
earlier interpretation of Hindu law giving a right by birth in such
property “ceased to have effect”.
The High Court ultimately held as follows :-
“We, therefore, answer question No.2 as follows: The property
which devolved on the assessee, Shrivallabhdas on the death of
his father, Gokalchand, did not constitute the HUF property
consisting of his own branch including his sons. The answer is in
the negative and against the assessee.”
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17. The question before the Division Bench of Andhra Pradesh
High Court in Commissioner of Wealth Tax, A.P.-II Vs. Mukundgirji,
144 ITR 18 was as follows:-
“Whether, on the facts and in the circumstances of the case, the
properties devolved on the assessee on his father’s death are
assessable in the status of ‘Individual’ or in the status of ‘Hindu
undivided family’?”
The High Court after noticing several provisions of the Act held as
follows:
“Accordingly, we are of the opinion that the properties which
devolve upon a heir mentioned in class I of the Schedule under S.
8 constitute his absolute properties, and that his sons have no
right by birth in such properties and cannot, therefore, claim any
share or sue for partition of such properties.”
The High Court ultimately answered the question as follows:-
“For the above reasons, we answer the question referred to us in
the following words: The properties which devolved upon the
assessee on his father’s death are assessable in the status of
“individual’ and not in the status of ‘Hindu undivided family”
comprising of the assessee and his son or sons, as the case may
be. The answer shall be in favour of the Department and against
the assessee. There shall be no order as to costs.”
18. The remarks column of Ex.P-3 jamabandi for the year 1992-
93 indicates that mutation of succession No.47 on the death of Baba
Surinder Singh was attested on 31.7.1991. The estate of Baba Surinder
Singh was mutated in favour of Sardool Singh, Manmohan Singh, Anup
Singh, Harinder Singh, Gurdeep Singh sons of Surinder Singh S/o
Gurbax Singh equal share five shares, Gajinder Singh, son and Smt. Raj
widow of Abhininder Singh son of Surinder Singh equal share one share.
It is thus clear on the death of Surinder Singh, Gajinder Singh, son and
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Smt. Raj, widow of Abhininder Singh son of Surinder Singh also
succeeded to the estate of Surinder Singh.
19. In Gurupad Khandappa Magdum Vs. Hirabai Khandappa
Magdum and others, AIR 1978 S.C. 1239, Section 6 of the Act was
considered and the Court has held as follows:-
”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 S. 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 S. 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 S. 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.”
20. The devolution of coparcenary property under Section 6 was
again considered by the Apex Court in Smt. Raj Rani Vs. The Chief
Settlement Commissioner, Delhi and others, AIR 1984 S.C. 1234 and
in para 17 of the report the Court has held as follows:-
“There is no dispute that Nanak Chand died leaving behind his
widow, three sons and three daughters. Dewan Chand fraudulently
obtained an order alleging that Nanak Chand died leaving behind
only three sons. If Nanak Chand died after the enforcement of the
Hindu Succession Act, as found earlier, obviously his wodow, three
sons and three daughters would succeed to his interest in equal
shares, which would work out to 1/7th. Now, the question arises what
was the interest of Nanak Chand at the time of his death. As the
property in question was Mitakshara coparcenary property, his
interest would be determined in accordance with the provisions of
Explanation I of S.6 of the Hindi Succession Act. It would be
appropriate at this stage to read Sec. 6 insofar as it is material for
the purposes of this case:
“6. When a male Hindu dies after the commencement of this Act,
having at the time of his death an interest in a Mitakshara
coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and
not in accordance with this Act:
Provided that, if the deceased had left his surviving a female
relative specified in Class I of the Schedule or a male relative,
specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I. – 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.”
The interest of Nanak Chand 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. In view of Explanation I of Sec. 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7, that is, 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim.
When the question of determination of share among the heirs
crops up before the Court, the Court has to see that every heir gets
his due. Shri Itorora appearing for the respondents could not
successfully meet the point raised on behalf of the appellant.”
21. The Supreme Court in Commissioner of Wealth-tax,
Kanpur vs. Chander Sen AIR 1986 SC 1753 in para 17 of the report
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has noticed the following views of the Andhra Pradesh High Court in 144
ITR 18 as follows :-
“Accordingly, we are of the opinion that the properties which
devolve upon a heir mentioned in class I of the Schedule under S.
8 constitute his absolute properties, and that his sons have no
right by birth in such properties and cannot, therefore, claim any
share or sue for partition of such properties.”
The Supreme Court has further observed that aforesaid reasoning of the
High Court appearing at Pages 23 to 26 of Justice Reddy’s view in 144
ITR 18 appears to be convincing.
The Supreme Court in para 20 of the report has held as follows:
“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 S. 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 be excluded under S. 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 S. 8.
Furthermore as noted by the Andhra Pradesh High Court the Act
makes it clear by S. 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 S.8 of
the Hindu Succession Act would be HUF property in his hand vis-à-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-à-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 S. 8 of the Act included widow, mother, daughter
of predeceased son etc.”
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The Supreme Court in Commissioner of Wealth-tax (supra) has
considered 138 ITR 673, 144 ITR 18 and approved the views expressed
by Madhya Pradesh High Court and Andhra Pradesh High Court.
22. In Yudhishter Vs. Ashok Kumar AIR 1987 S.C. 558, the
Supreme Court considered the question
whether respondent was a
licensee of his father or a co-owner of the property namely ancestor
house. The Supreme Court in para 10 of the report has held as follows:-
“This question has been considered by this Court in Commr. Of
Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : (AIR 1986
SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that
under the Hindu Law, the moment a son is born, he gets a share in
father’s property and becomes part of the coparcenary. His right
accrues to him not on the death of the father or inheritance from
the father but with the very fact of his birth. Normally therefore,
whenever the father gets a property from whatever source from
the grandfather or from any other source, be it separate property
or not, his son should have a share in that and it will become part
of the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court
observed that this position has been affected by Section 8 of the
Hindu Succession Act 1956 and, therefore, after the Act, when the
son inherited the property in the situation contemplated by
Section 8, he does not take it as Kar of his own undivided family
but takes it in his individual capacity. At pages 577 to 578 (of SCC)
(at p.1760 of AIR) of the report this Court dealt with the effect of
Section 6 of the Hindu Succession Act 1956 and the commentary
made by Mulla, 15th Edn. Pages 924-926 as well as Mayne’s on
Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the
said observations of Mayne on ‘Hindu Law’, 12th Edn. At pages 918-
919. This Court observed in the aforesaid decision that the views
expressed by the Allahabad High Court the Madras High Court, the
Madhya Pradesh High Court and the Andhra Pradesh High Court
appeared to be correct and was unable to accept the views of the
Gujarat High Court. To the similar effect is the observation of
learned author of Mayne’s Hindu Law, 12th Edn. Page 919. In that
view of the matter it would be difficult to hold that property which
devolved on a Hindu under Section 8 of the Hindu Succession Act,
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1956 would be HUF in his hand vis-à-vis his own sons. If that be
the position then the property which devolved upon the father of
the respondent in the instant case on the demise of his grandfather
could not be said to be HUF property. If that is so, then the
appellate authority was right in holding that the respondent was a
licensee of his father in respect of the ancestral house.”
23. The learned counsel for the appellant has relied Ruli Ram
(deceased) through L.R. and others Vs. Amar Singh AIR 1994 H.P.
102 and has submitted that character of the property after partition in
the hands of respondent No.2 shall remain ancestral. He has relied para
23 of the report wherein the learned Single Judge has observed that
there is no doubt with the legal proposition that the share which a coparcener obtains on partition in an ancestral property is, in fact,
ancestral property as regards his male issues, they take an interest in it
by birth. The learned Single Judge in para 24 of the report has
observed:-
“This position now stands affected after the Succession Act
became operative in 1956. The Succession Act has brought about
some fundamental and radical changes in law of succession,
which applied to Hindus by virtue of any text rule or interpretation
of Hindu Law or any custom or usage having the force of law prior
to 1956, which ceased to have any effect with respect to all matters
expressly dealt with in the Succession Act. In Chander Sen’s case
(supra) and in the subsequent decision in Yudhister Vs. Ashok
Kumar, AIR 1987 SC 558, the Supreme Court dealt with the
overriding effect of the express provisions of the Succession Act.
In Chander Sen’s case the apex court approved the view
expressed by the Allahabad High Court in Commissioner of Income
Tax U.P. Vs. Ram Rakshpal Ashok Kumar (1968) 67 ITR 164 (All)
and Khudi Ram Laba v. Commissioner of Income Tax, U.P. (1968)
67, ITR 364 (All) that the income from the assets inherited by son
from his father from whom he has separated by partition can be
assessed as income of the son individually since under S.8 of the
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Succession Act, the property of the father, who dies intestate
devolve on his son in his individual capacity and not as Karta of
his own family.”
24. The para 23 of Ruli Ram supra is of no help to appellant
inasmuch as in para 24 of the judgment, the learned Single Judge has
held that position now stands affected after the Succession Act became
operative in 1956. The learned Single Judge in Ruli Ram supra in para
25 of the report has held as follows:-
“In the instant case, the ratio of the aforementioned judgment of
Chander Sen’s case will not apply, since what is claimed by the
learned counsel for the tenant herein is that prior to the coming
into force of the Succession Act, in the final decree passed in the
year 1951, Ruli Ram got a share in the coparcenary property, which
in his hand as Karta of the Joint Hindu Family property was
ancestral qua his sons, who got a right in coparceners,
possession of the residential portions were obtained by Ramesh
Chand and Suresh Kumar and not by the tenant Ruli Ram. This
submission made by the learned counsel for the tenant deserves
acceptance in view of the fact that the share which Ruli Ram got,
prior to coming into force of the Succession Act, in partition of
the ancestral property in the year 1951 was ancestral property as
regards his male issues. In the year 1980, during the life time of
Ruli Ram, possession was sought by one of his male issues as
coparcener, which was made a ground seeking eviction of the
tenant Ruli Ram. There is no evidence that he himself got vacant
possession of a residence.”
In Ruli Ram the rights were crystallized in the year 1951 before the
commencement of the Act whereas in the present case the appellant is
claiming his right in the property of his grand father after the death of
grand father which took place after the commencement of the Act. The
succession to the estate of Baba Surinder Singh common ancestor
opened on 19.1.1988 when he died, the mutation of his estate was
attested on 31.7.1991. The partition mutation was attested on 20.9.1991.
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The partition did not take place during the life time of Baba Surinder
Singh. In these circumstances, Ruli Ram supra does not support the plea
of appellant that property in dispute after the death of his grand father in
the hands of father of appellant will be ancestral / coparcenary property
qua appellant.
25. In Hari Singh Vs. Kishan Singh, 2001 (2) S.L.C. 56, the
learned Single Judge after noticing several judgments of the High Courts
and Supreme Court in para 32 of the report has held that the suit
property though ancestral but having come to the defendant under the
provisions of Section 8 of the Hindu Succession Act, would be individual
and separate property of the defendant and not joint with his son Kulbir
Singh.
26. The Section 4 of the Act gives over-riding effect over any
text, rule or interpretation of Hindu law or any custom or usage having
force of law immediately before the commencement of the Act. The
Section 6 of the Act as existed on 19.1.1988 when succession to the
estate of late Baba Surinder Singh opened provided that when a male
Hindu dies after the commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act. But the proviso to
Section 6 further provides that if the deceased had left him surviving a
female relative specified in class 1 of the Schedule or a male relative
specified in that class who claims through such female relative, the
interest of the deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship.
27. The estate of Baba Surinder Singh was mutated in favour of
several persons including respondent No.2 and Smt. Raj vide mutation
No. 47 dated 31.7.1991. The mutation No. 47 has not been assailed by
the appellant. The bare perusal of Section 6 of the Act makes it clear that
in this situation the estate of Baba Surinder Singh would devolve under
Section 8 and not under Section 6 of the Act. In view of law laid down by
the Supreme Court in the aforesaid judgments, respondent No.2 would
inherit his share in the estate of late Baba Surinder Singh in his individual
capacity and not alongwith his son appellant. Once this is the position
then the appellant has no right to assail the sale dated 19.6.1993 made
by respondent No.2 in favour of respondent No.1.
28. DW-1 Baljeet Singh, Director Youth Welfare Service of Guru
Nanak Dev University, Amritsar has stated that at the time of registration
of sale deed, Registrar of Guru Nanak Dev University, he, wife of Colonel
Manmohan Singh were present. Capt. Amninder and his wife were also
present. Nobody objected at that time. This evidence has not been
rebutted by the appellant. This indicates that the appellant even
otherwise accepted the sale deed dated 19.6.1993 made by respondent
No.2 in favour of respondent No.1. The learned District Judge has rightly
appreciated the material on record. There is no perversity in the
impugned judgment, decree. The substantial questions of law No. 1 and 2
are decided against the appellants.
29. No other point was urged.
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30. The result of the above discussion, the appeal fails and is
accordingly dismissed with no order as to costs.
H.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A.No. 482 of 2000.
Judgment reserved on : 6.5.2010
Date of decision : 14.6. 2010.
Capt. Arminder Singh Bedi (Amninder Singh Bedi) ..Appellant.
Versus
Guru Nanak Dev University and another . ..Respondents.
Coram
The Hon’ble Mr. Justice Kuldip Singh, Judge.
Whether approved for reporting ?1
Yes
For the appellant : Mr. Ajay Kumar with Mr. Suneet
Goel, Advocates .
For the respondents. : Mr. K.D.Sood, Advocate for
respondent No.1.
Mr. M.A.Khan, Advocate vice
Mr. Vijay Pandit, Advocate for
respondent No.2.
Kuldip Singh , Judge
The plaintiff has come in second appeal against the
judgment, decree dated 18.7.2000 passed by learned District Judge,
Chamba in Civil Appeal No. 58 of 1999 reversing judgment, decree dated
29.7.1999 passed by the learned Sub Judge 1st Class, Dalhousie in Civil
Suit No. 69 of 1994.
2. The facts, in brief, are that the appellant had filed a suit for
declaration that sale deed dated 19.6.1993 executed by respondent No.2 in favour of respondent No.1 is illegal, void, without jurisdiction and
1
Whether reporters of Local Papers may be allowed to see the Judgment ?. yes
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inoperative on the rights of the appellant with consequential relief of possession and permanent prohibitory injunction. The respondent No.1
was defendant No.2 and respondent No.2 was defendant No.1 in the suit.
3. The further case of the appellant is that he constituted a coparcenary and joint Hindu family with respondent No. 2 and they are coparceners.
The pedigree table relied by the appellant in the plaint is as
follows:
Baba Surinder Singh
Avinder Singh (predeceased)
Harinder Singh Bedi
Gurdeep Singh Bedi
Manmohan
A.S. Bedi
Singh Bedi
(Defendant
No.1)
Sardool
Singh Bedi
Raj (Widow) Gajinder
Singh (Son)
Amninder
Singh
(Plaintiff)
4. It is the case of the appellant that Sajjad Villa more
particularly described in the plaint was recorded in the ownership of Baba Surinder Singh Karta of family and common ancestor of appellant
and respondent No.2. Baba Surinder Singh died on 19.1.1988 and after his death the suit property was inherited by joint Hindu family of
appellant and respondent No.2 and came in the hands of respondent No.2 being Karta of the joint Hindu family of the appellant and respondent No.2. They are coparceners and the suit property is coparcenary property of appellant and respondent No.2.
5. The respondent No.2 had wasteful nature.
The respondent No.2 sold the suit property on 19.6.1993 without any legal necessity of the family at throw-away price.
The sale consideration was wasted and
was not spent on the joint Hindu family. The transfer of the suit property
was a great loss to the Hindu Undivided Family. The appellant
requested the respondents not to waste the property by transfer or sale
but they refused to accede to the request of the appellant.
On 2.8.1993
the appellant requested respondent No.1 to return the possession and cancel the transfer deed but without any positive result hence the suit was filed for declaration, possession and injunction as noticed above.
6. The suit was contested by respondent No.2 by filing written
statement. He admitted the pedigree table, description of the property.
He denied that suit property was sold without legal necessity. He has also
denied that sale consideration was not spent on the joint Hindu family.
He prayed for dismissal of the suit.
7. The respondent No.1 also contested the suit by filing written
statement and took preliminary objections of maintainability, jurisdiction of the Court to try the suit, appellant all the time had been assisting his father for selling the property to respondent No.1, he was even present alongwith his mother at the time of registration of the sale deed before Sub Registrar and, therefore, on account of his conduct he is debarred from assailing the sale, the suit has been filed by appellant in collusion with respondent No.2. On merits, it has been denied that appellant and
respondent No.2 constitute co-parcenary and they are members of the
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joint Hindu Family.
The respondent No.2 was the sole owner of Sajjad
Villa after the death of late Baba Surinder Singh. The property was inherited by respondent No.2 not as Karta of the Hindu Undivided Family. It has been denied that the property was not sold for legal
necessity or sale consideration was not utilized for the benefit of the
family.
8. The respondent No.2 entered into an agreement with
respondent No.1 for sale of the property on 19.6.1991, thereafter
respondent No.1 obtained permission from Government of Himachal
Pradesh to purchase the building and after receiving the permission the
sale deed was executed by respondent No.2 in favour of respondent No.1
through his wife who was having special power of attorney to execute the
sale deed. The appellant accompanied her mother at the time of
registration of the sale deed. The suit is collusive with respondent No.2
The respondent No.1 prayed for dismissal of the suit.
9. On the pleadings of the parties, the following issues were
framed:-
1. Whether the sale deed dated 19.6.1993 executed by
defendant No.1 in favour of defendant No.2 is illegal,
void and without jurisdiction? .. OPP.
2. Whether the suit property is a co-parcenary property
as alleged? ..OPP.
3. Whether the alienation made by defendant No.1 in
favour of defendant No.2 is without legal necessity as
alleged? …OPP.
4. Whether the plaintiff is entitled to the injunction as
prayed? .. OPP
5. Whether the suit is not maintainable ? OPD-2.
6. Whether this Court has no jurisdiction ? OPD-2.
7. Whether the plaintiff is estopped by his act and
conduct? …OPD-2.
8. Whether the suit has collusively been filed as alleged?
…OPD-2.
9. Relief.
The issues No. 1 to 4 were answered in affirmative and issues No. 5 to
8 in negative and the suit was decreed by learned Sub Judge on
29.7.1999 and a decree for declaration was passed in favour of the
appellant declaring sale deed dated 19.6.1993 null and void and
respondents were restrained from alienating the suit property to
anybody. The decision dated 29.7.1999 was assailed in appeal by
respondent No.1 and learned District Judge on 18.7.2000 allowed the
appeal and set-aside judgment, decree dated 29.7.1999 passed by
learned Sub Judge. In these circumstances, the plaintiff has come in
second appeal which has been admitted on the following substantial
questions of law:
1. Whether in the facts and circumstances of the case the
property in dispute has devolved upon the heirs of Baba
Surinder Singh Bedi under proviso to Section 6 of the Hindu
Succession Act.
2. Whether in view of the proviso of Section 6 of the Hindu
Succession Act the succession of property of Baba Surinder
Singh Bedi on his heirs under Section 8 of the Hindu
Succession Act will change the nature and nomenclature of
property from ancestral/coparcenary property to that of self
acquired property.
10. I have heard Mr. Ajay Kumar, Advocate, learned counsel for
the appellant, Mr. K.D.Sood, Advocate, learned counsel for respondent
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No.1 and Mr. M.A.Khan, Advocate, learned counsel appearing on behalf
of respondent No.2 and have also gone through the record. The learned
counsel for the appellant has submitted that the suit property has been
proved to be coparcenary property which was at one point of time owned
by Baba Surinder Singh who died on 19.1.1988. Late Baba Surinder
Singh was the common ancestor of respondent No.2 and appellant who
are father and son. The suit property in the hands of respondent No.2 on
19.6.1993 at the time of sale was ancestral /coparcenary property with
appellant a member of coparcenary headed by respondent No.2. The
sale being without legal necessity, therefore, appellant has every right to
assail the sale dated 19.6.1993. He has submitted that learned Sub
Judge had rightly decreed the suit of the appellant but learned District
Judge has mis-construed, misinterpreted Sections 6, 8 of the Hindu
Succession Act, 1956 (for short ‘Act’). The learned counsel for the
appellant has submitted that respondents have failed to prove legal
necessity. He has submitted for acceptance of the appeal, setting-aside
of impugned judgment, decree and restoration of the judgment and
decree passed by learned Sub Judge.
11. The learned counsel for respondent No.1 has submitted that
the suit property in the hands of respondent No.2 on 19.6.1993 was not
ancestral / coparcenary property. The sale deed executed by respondent
No.2 in favour of respondent No.1 on 19.6.1993 is legal. He has
submitted that appellant actively participated in the execution of the sale
deed and, therefore, appellant is debarred from questioning the sale
deed. He has supported the impugned judgment, decree. The learned
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counsel for respondent No.2 has supported the impugned judgment,
decree.
12. The above substantial questions of law No.1 and 2 are interconnected, therefore, both of them can be conveniently considered and
disposed of collectively. Ex.P-1 is the copy of sale deed dated 19.6.1993
vide which respondent No.2 through his attorney has sold Sajjad Villa to
respondent No.1 for a consideration of Rs. 10,00,000/- which was
registered on 19.6.1993 before Sub Registrar, Dalhousie. As per sale
deed Ex.P-1 Sajjad Villa is situate on khasra Nos. 2127, 2128, 2129,
2130, 2132 and 2133. Ex.P-2 is the Missal Haquiat in which Surinder
Singh S/o Gurbax Singh is shown owner in possession of the suit
property. In remarks column of Ex.P-2 it has been stated that vide
mutation No. 48 of partition dated 20.9.1991 as per order of A.C. IInd
Grade khasra No. 2127 to 2131 and Khasra No. 2133, Kittas 6, total
measuring 0-54-46 hectares was attested in favour of Manmohan Singh
S/o Surinder Singh. Ex.P-3 is the copy of Jamabandi for the year 1992-
93 indicating suit property is owned and possessed by Surinder Singh S/o
Gurbax Singh. In remarks column of Ex.P-3 reference of mutation No. 48
of partition has been given. In remarks column, it has further been stated
that vide mutation No. 125 suit property has been sold by Manmohan
Singh in favour of Guru Nanak Dev University for Rs. 10,00,000/- and the
mutation was attested on 30.9.1994. Ex.DW-1/B is the application under
Section 14 of the Indian Arbitration Act for making award dated 27.6.1988
as rule of the Court. The award dated 27.6.1988 was made rule of the
court on 7.10.1988 by the learned Sub Judge, Jalandhar in arbitration
case No. 125 of 1988. There is no denial of the fact that the suit property
at one point of time was owned by Baba Surinder Singh father of
respondent No.2 and grand-father of appellant, who died on 19.1.1988.
The suit property alongwith other properties were partitioned by way of
award dated 27.6.1988 which was made rule of the Court on 7.10.1988.
The suit property fell to the share of respondent No.2.
13. The question is what was the character of suit property in
the hands of respondent No.2 when it fell to his share by way of award
dated 27.6.1988. The learned counsel for the appellant has contended
that character of suit property in the hands of respondent No.2 after
award remained ancestral qua appellant. He has every right to question
the sale dated 19.6.1993 made by respondent No.2 in favour of
respondent No.1 as the sale was without the consent of appellant and
without legal necessity. Per contra, the learned counsel for respondent
No.1 has submitted that property after the death of common ancestor
Baba Surinder Singh on 19.1.1988 and partition award dated 27.6.1988
in the hands of respondent No.2 had lost the character of
ancestral/coparcenary property and, therefore, respondent No.2 had
every right to sell the suit property to respondent No.1 for consideration.
14. Intestate succession of Hindu is provided in Chapter II of the
Act. Section 6 of the Act at the relevant time was as follows:-
“Devolution of interest in coparcenary property.- When a male
Hindu dies after the commencement of this Act, having at the time
of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the
surviving members of the coparcenary and not in accordance with
this Act:
Provided that , if the deceased had left him surviving a
female relative specified in class 1 of the Schedule or a male
relative specified in that class who claims through such female
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relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship.
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 has
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.”
The Section 8 of the Act is as follows:-
“General rules of succession in the case of males. – The property of
a male Hindu dying intestate shall devolve according to the
provisions of this Chapter –
(a) firstly, upon the heirs, being the relatives specified in class I of the
Schedule ;
(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.”
15. The appellant in para 2 of the plaint has pleaded that Baba
Surinder Singh had died on 19.1.1988. Thus, the succession regarding
the estate of Baba Surinder Singh common ancestor of appellant and
respondent No.2 had opened on 19.1.1988. There is nothing on record
how Baba Surinder Singh had acquired the property including the
property in dispute, but it is not of much significance inasmuch as it is
nobody’s case that the property of late Baba Surinder Singh was to
devolve on his successors by some mode other than succession provided
under the Act.
16. The question of interpretation of Sections 4, 6 and 8 of the
Act has come up for decision in several cases in the past. In
Shrivallabhdas Modani Vs. Commissioner of Income Tax, M.P.-1, 138
ITR 673 the question No.2 referred to the High Court for decision was as
follows:-
“Whether the property which devolved on Shri Shrivallabhdas on
the death of his father, Gokalchand, also constituted the HUF
property consisting of his own branch including his sons.”
The High Court after noticing Sections 4, 8 of the Act has held as
follows:-
“Section 8 of the Hindu Succession Act lays down the scheme of
succession to the property of a Hindu dying intestate. The
schedule classifies the heirs on whom such property shall
devolve. Those specified in class I take simultaneously to the
exclusion of all other heirs. A son’s son is not mentioned as an
heir under class I of the Schedule and, therefore, he cannot get
any right in the property of his grandfather under this provision.
The right of a son’s son in his grand father’s property during the
lifetime of his father which existed under the Hindu law as in force
before the Act, is not saved expressly by the Act and, therefore, the
earlier interpretation of Hindu law giving a right by birth in such
property “ceased to have effect”.
The High Court ultimately held as follows :-
“We, therefore, answer question No.2 as follows: The property
which devolved on the assessee, Shrivallabhdas on the death of
his father, Gokalchand, did not constitute the HUF property
consisting of his own branch including his sons. The answer is in
the negative and against the assessee.”
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17. The question before the Division Bench of Andhra Pradesh
High Court in Commissioner of Wealth Tax, A.P.-II Vs. Mukundgirji,
144 ITR 18 was as follows:-
“Whether, on the facts and in the circumstances of the case, the
properties devolved on the assessee on his father’s death are
assessable in the status of ‘Individual’ or in the status of ‘Hindu
undivided family’?”
The High Court after noticing several provisions of the Act held as
follows:
“Accordingly, we are of the opinion that the properties which
devolve upon a heir mentioned in class I of the Schedule under S.
8 constitute his absolute properties, and that his sons have no
right by birth in such properties and cannot, therefore, claim any
share or sue for partition of such properties.”
The High Court ultimately answered the question as follows:-
“For the above reasons, we answer the question referred to us in
the following words: The properties which devolved upon the
assessee on his father’s death are assessable in the status of
“individual’ and not in the status of ‘Hindu undivided family”
comprising of the assessee and his son or sons, as the case may
be. The answer shall be in favour of the Department and against
the assessee. There shall be no order as to costs.”
18. The remarks column of Ex.P-3 jamabandi for the year 1992-
93 indicates that mutation of succession No.47 on the death of Baba
Surinder Singh was attested on 31.7.1991. The estate of Baba Surinder
Singh was mutated in favour of Sardool Singh, Manmohan Singh, Anup
Singh, Harinder Singh, Gurdeep Singh sons of Surinder Singh S/o
Gurbax Singh equal share five shares, Gajinder Singh, son and Smt. Raj
widow of Abhininder Singh son of Surinder Singh equal share one share.
It is thus clear on the death of Surinder Singh, Gajinder Singh, son and
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Smt. Raj, widow of Abhininder Singh son of Surinder Singh also
succeeded to the estate of Surinder Singh.
19. In Gurupad Khandappa Magdum Vs. Hirabai Khandappa
Magdum and others, AIR 1978 S.C. 1239, Section 6 of the Act was
considered and the Court has held as follows:-
”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 S. 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 S. 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 S. 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.”
20. The devolution of coparcenary property under Section 6 was
again considered by the Apex Court in Smt. Raj Rani Vs. The Chief
Settlement Commissioner, Delhi and others, AIR 1984 S.C. 1234 and
in para 17 of the report the Court has held as follows:-
“There is no dispute that Nanak Chand died leaving behind his
widow, three sons and three daughters. Dewan Chand fraudulently
obtained an order alleging that Nanak Chand died leaving behind
only three sons. If Nanak Chand died after the enforcement of the
Hindu Succession Act, as found earlier, obviously his wodow, three
sons and three daughters would succeed to his interest in equal
shares, which would work out to 1/7th. Now, the question arises what
was the interest of Nanak Chand at the time of his death. As the
property in question was Mitakshara coparcenary property, his
interest would be determined in accordance with the provisions of
Explanation I of S.6 of the Hindi Succession Act. It would be
appropriate at this stage to read Sec. 6 insofar as it is material for
the purposes of this case:
“6. When a male Hindu dies after the commencement of this Act,
having at the time of his death an interest in a Mitakshara
coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and
not in accordance with this Act:
Provided that, if the deceased had left his surviving a female
relative specified in Class I of the Schedule or a male relative,
specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I. – 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.”
The interest of Nanak Chand 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. In view of Explanation I of Sec. 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7, that is, 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim.
When the question of determination of share among the heirs
crops up before the Court, the Court has to see that every heir gets
his due. Shri Itorora appearing for the respondents could not
successfully meet the point raised on behalf of the appellant.”
21. The Supreme Court in Commissioner of Wealth-tax,
Kanpur vs. Chander Sen AIR 1986 SC 1753 in para 17 of the report
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has noticed the following views of the Andhra Pradesh High Court in 144
ITR 18 as follows :-
“Accordingly, we are of the opinion that the properties which
devolve upon a heir mentioned in class I of the Schedule under S.
8 constitute his absolute properties, and that his sons have no
right by birth in such properties and cannot, therefore, claim any
share or sue for partition of such properties.”
The Supreme Court has further observed that aforesaid reasoning of the
High Court appearing at Pages 23 to 26 of Justice Reddy’s view in 144
ITR 18 appears to be convincing.
The Supreme Court in para 20 of the report has held as follows:
“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 S. 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 be excluded under S. 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 S. 8.
Furthermore as noted by the Andhra Pradesh High Court the Act
makes it clear by S. 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 S.8 of
the Hindu Succession Act would be HUF property in his hand vis-à-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-à-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 S. 8 of the Act included widow, mother, daughter
of predeceased son etc.”
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The Supreme Court in Commissioner of Wealth-tax (supra) has
considered 138 ITR 673, 144 ITR 18 and approved the views expressed
by Madhya Pradesh High Court and Andhra Pradesh High Court.
22. In Yudhishter Vs. Ashok Kumar AIR 1987 S.C. 558, the
Supreme Court considered the question
whether respondent was a
licensee of his father or a co-owner of the property namely ancestor
house. The Supreme Court in para 10 of the report has held as follows:-
“This question has been considered by this Court in Commr. Of
Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : (AIR 1986
SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that
under the Hindu Law, the moment a son is born, he gets a share in
father’s property and becomes part of the coparcenary. His right
accrues to him not on the death of the father or inheritance from
the father but with the very fact of his birth. Normally therefore,
whenever the father gets a property from whatever source from
the grandfather or from any other source, be it separate property
or not, his son should have a share in that and it will become part
of the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court
observed that this position has been affected by Section 8 of the
Hindu Succession Act 1956 and, therefore, after the Act, when the
son inherited the property in the situation contemplated by
Section 8, he does not take it as Kar of his own undivided family
but takes it in his individual capacity. At pages 577 to 578 (of SCC)
(at p.1760 of AIR) of the report this Court dealt with the effect of
Section 6 of the Hindu Succession Act 1956 and the commentary
made by Mulla, 15th Edn. Pages 924-926 as well as Mayne’s on
Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the
said observations of Mayne on ‘Hindu Law’, 12th Edn. At pages 918-
919. This Court observed in the aforesaid decision that the views
expressed by the Allahabad High Court the Madras High Court, the
Madhya Pradesh High Court and the Andhra Pradesh High Court
appeared to be correct and was unable to accept the views of the
Gujarat High Court. To the similar effect is the observation of
learned author of Mayne’s Hindu Law, 12th Edn. Page 919. In that
view of the matter it would be difficult to hold that property which
devolved on a Hindu under Section 8 of the Hindu Succession Act,
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1956 would be HUF in his hand vis-à-vis his own sons. If that be
the position then the property which devolved upon the father of
the respondent in the instant case on the demise of his grandfather
could not be said to be HUF property. If that is so, then the
appellate authority was right in holding that the respondent was a
licensee of his father in respect of the ancestral house.”
23. The learned counsel for the appellant has relied Ruli Ram
(deceased) through L.R. and others Vs. Amar Singh AIR 1994 H.P.
102 and has submitted that character of the property after partition in
the hands of respondent No.2 shall remain ancestral. He has relied para
23 of the report wherein the learned Single Judge has observed that
there is no doubt with the legal proposition that the share which a coparcener obtains on partition in an ancestral property is, in fact,
ancestral property as regards his male issues, they take an interest in it
by birth. The learned Single Judge in para 24 of the report has
observed:-
“This position now stands affected after the Succession Act
became operative in 1956. The Succession Act has brought about
some fundamental and radical changes in law of succession,
which applied to Hindus by virtue of any text rule or interpretation
of Hindu Law or any custom or usage having the force of law prior
to 1956, which ceased to have any effect with respect to all matters
expressly dealt with in the Succession Act. In Chander Sen’s case
(supra) and in the subsequent decision in Yudhister Vs. Ashok
Kumar, AIR 1987 SC 558, the Supreme Court dealt with the
overriding effect of the express provisions of the Succession Act.
In Chander Sen’s case the apex court approved the view
expressed by the Allahabad High Court in Commissioner of Income
Tax U.P. Vs. Ram Rakshpal Ashok Kumar (1968) 67 ITR 164 (All)
and Khudi Ram Laba v. Commissioner of Income Tax, U.P. (1968)
67, ITR 364 (All) that the income from the assets inherited by son
from his father from whom he has separated by partition can be
assessed as income of the son individually since under S.8 of the
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Succession Act, the property of the father, who dies intestate
devolve on his son in his individual capacity and not as Karta of
his own family.”
24. The para 23 of Ruli Ram supra is of no help to appellant
inasmuch as in para 24 of the judgment, the learned Single Judge has
held that position now stands affected after the Succession Act became
operative in 1956. The learned Single Judge in Ruli Ram supra in para
25 of the report has held as follows:-
“In the instant case, the ratio of the aforementioned judgment of
Chander Sen’s case will not apply, since what is claimed by the
learned counsel for the tenant herein is that prior to the coming
into force of the Succession Act, in the final decree passed in the
year 1951, Ruli Ram got a share in the coparcenary property, which
in his hand as Karta of the Joint Hindu Family property was
ancestral qua his sons, who got a right in coparceners,
possession of the residential portions were obtained by Ramesh
Chand and Suresh Kumar and not by the tenant Ruli Ram. This
submission made by the learned counsel for the tenant deserves
acceptance in view of the fact that the share which Ruli Ram got,
prior to coming into force of the Succession Act, in partition of
the ancestral property in the year 1951 was ancestral property as
regards his male issues. In the year 1980, during the life time of
Ruli Ram, possession was sought by one of his male issues as
coparcener, which was made a ground seeking eviction of the
tenant Ruli Ram. There is no evidence that he himself got vacant
possession of a residence.”
In Ruli Ram the rights were crystallized in the year 1951 before the
commencement of the Act whereas in the present case the appellant is
claiming his right in the property of his grand father after the death of
grand father which took place after the commencement of the Act. The
succession to the estate of Baba Surinder Singh common ancestor
opened on 19.1.1988 when he died, the mutation of his estate was
attested on 31.7.1991. The partition mutation was attested on 20.9.1991.
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The partition did not take place during the life time of Baba Surinder
Singh. In these circumstances, Ruli Ram supra does not support the plea
of appellant that property in dispute after the death of his grand father in
the hands of father of appellant will be ancestral / coparcenary property
qua appellant.
25. In Hari Singh Vs. Kishan Singh, 2001 (2) S.L.C. 56, the
learned Single Judge after noticing several judgments of the High Courts
and Supreme Court in para 32 of the report has held that the suit
property though ancestral but having come to the defendant under the
provisions of Section 8 of the Hindu Succession Act, would be individual
and separate property of the defendant and not joint with his son Kulbir
Singh.
26. The Section 4 of the Act gives over-riding effect over any
text, rule or interpretation of Hindu law or any custom or usage having
force of law immediately before the commencement of the Act. The
Section 6 of the Act as existed on 19.1.1988 when succession to the
estate of late Baba Surinder Singh opened provided that when a male
Hindu dies after the commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act. But the proviso to
Section 6 further provides that if the deceased had left him surviving a
female relative specified in class 1 of the Schedule or a male relative
specified in that class who claims through such female relative, the
interest of the deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship.
27. The estate of Baba Surinder Singh was mutated in favour of
several persons including respondent No.2 and Smt. Raj vide mutation
No. 47 dated 31.7.1991. The mutation No. 47 has not been assailed by
the appellant. The bare perusal of Section 6 of the Act makes it clear that
in this situation the estate of Baba Surinder Singh would devolve under
Section 8 and not under Section 6 of the Act. In view of law laid down by
the Supreme Court in the aforesaid judgments, respondent No.2 would
inherit his share in the estate of late Baba Surinder Singh in his individual
capacity and not alongwith his son appellant. Once this is the position
then the appellant has no right to assail the sale dated 19.6.1993 made
by respondent No.2 in favour of respondent No.1.
28. DW-1 Baljeet Singh, Director Youth Welfare Service of Guru
Nanak Dev University, Amritsar has stated that at the time of registration
of sale deed, Registrar of Guru Nanak Dev University, he, wife of Colonel
Manmohan Singh were present. Capt. Amninder and his wife were also
present. Nobody objected at that time. This evidence has not been
rebutted by the appellant. This indicates that the appellant even
otherwise accepted the sale deed dated 19.6.1993 made by respondent
No.2 in favour of respondent No.1. The learned District Judge has rightly
appreciated the material on record. There is no perversity in the
impugned judgment, decree. The substantial questions of law No. 1 and 2
are decided against the appellants.
29. No other point was urged.
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30. The result of the above discussion, the appeal fails and is
accordingly dismissed with no order as to costs.
H.
