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
