Arshnoor Singh v. Harpal Kaur

2.14. The High Court vide the impugned Judgment & Order dated 13.11.2018, allowed the RSA filed by the Respondents, and set aside the concurrent findings of the courts below. The High Court held that (i) the Appellant had no locus to institute the Suit, since the coparcenary property ceased to exist after Inder Singh partitioned the property between his 3 sons in 1964; (ii) the Appellant had no right to challenge the Sale Deeds executed on 01.09.1999 on the ground that the sale consideration had not been paid, since only the executant of the Sale Deeds viz. Dharam Singh (Defendant No. 1) could have made such a challenge; and (iii) Jamabandis for the years 1957 – 58 till 1970 – 71 were not produced by the Appellant.

2.15. Aggrieved by the impugned Judgment & Order dated 13.11.2018 passed by the High Court, the Appellant has filed the present Civil Appeal.

3. We have heard learned Counsel for the parties, and perused the pleadings and written submissions filed by the parties.

4. Mr. Manoj Swarup, Senior Counsel appearing on behalf of the Appellant, submitted that the suit property was coparcenary property in which the Appellant had become a coparcener by birth. It was further submitted that since the suit property was coparcenary property, Dharam Singh could not have alienated it without legal necessity of the family, or benefit to the estate. It was further submitted that the Sale Deed dated 30.10.2007 purportedly executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3, during the pendency of the Suit, was hit by lis pendens. Hence, it was illegal, null and void.

5. Mr. Ritin Rai, Senior Counsel appearing for the Respondents submitted that the Civil Suit was filed by the Appellant in collusion with his father Dharam Singh (Defendant No. 1), as Dharam Singh’s marriage with Respondent No. 1 had fallen apart, and had subsequently been dissolved through a decree of divorce on 15.12.2010. It was contended that the Civil Suit was filed by the Appellant at the behest of his father Dharam Singh. It was further submitted that the suit property was not coparcenary property when the two Sale Deeds were executed on 01.09.1999. Inder Singh’s property ceased to be coparcenary property after it was divided vide the decree dated 04.11.1964. Reliance was placed on the decision of this Court in Uttam v. Saubhag Singh,[1] wherein it was held that:

6. The issues that arise for consideration before us are two­fold:

(i) whether the suit property was coparcenary property or self­acquired property of Dharam Singh; (ii) the validity of the Sale Deeds executed on 01.09.1999 by Dharam Singh in favour of Respondent No. 1, and the subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3.

7. With respect to the first issue, it is the admitted position that Inder Singh had inherited the entire suit property from his father Lal Singh upon his death. As per the Mutation Entry dated 16.01.1956 produced by Respondent No. 1, Lal Singh’s death took place in 1951. Therefore, the succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when Inder Singh succeeded to his father Lal’s Singh’s property in accordance with the old Hindu Mitakshara law.

7.1. Mulla in his commentary on Hindu Law (22nd Edition) has stated the position with respect to succession under Mitakshara law as follows: Page 129 “A son, a grandson whose father is dead, and a great­grandson whose father and grandfather are both dead, succeed simultaneously as single heir to the separate or self­acquired property of the deceased with rights of survivorship.” Page 327 “All property inherited by a male Hindu from his father, father’s father or father’s father’s father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great­grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son’s sons, and son’s son’s sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property.” (emphasis supplied)

7.2. In Shyam Narayan Prasad v. Krisha Prasad & Ors.,[2] this Court has recently held that:

7.3. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property.

7.4. In Yudhishter v. Ashok Kumar,[3] this Court held that:

7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, if a person inherits a self­acquired property from his paternal ancestors, the said property becomes his self­ acquired property, and does not remain coparcenary property.

7.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis­à­vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.

7.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singh’s sons would remain as coparcenary property qua their male descendants upto three degrees below them.

7.8. The judgment in Uttam v. Saubhag Singh (supra) relied upon by the Respondents is not applicable to the facts of the present case. In Uttam, the appellant therein was claiming a share in the coparcenary property of his grandfather, who had died in 1973 before the appellant was born. The succession opened in 1973 after the Hindu Succession Act, 1956 came into force. The Court was concerned with the share of the appellant’s grandfather in the ancestral property, and the impact of Section 8 of the Hindu Succession Act,

1956. In light of these facts, this Court held that after property is distributed in accordance with Section 8 of the Hindu Succession Act, 1956, such property ceases to be joint family property in the hands of the various persons who have succeeded to it. It was therefore held that the appellant was not a coparcener vis­à­vis the share of his grandfather.

7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the court vide a decree of partition dated 04.11.1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition continued to remain coparcenary property qua the Appellant.

7.10. With respect to the devolution of a share acquired on partition, Mulla on Hindu Law (22nd Edition) states the following: “§ 339. Devolution of share acquired on partition. – The effect of a partition is to dissolve the coparcenary, with the result, that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs. However, if a member while separating from his other coparceners continues joint with his own male issue, the share allotted to him on partition, will in his hands, retain the character of a coparcenary property as regards the male issue [§ 221, sub­§ (4)].”

7.11. This Court in Valliammai Achi v. Nagappa Chettiar and Ors.,[4] held that: “10. … It is well settled that the share which a co­sharer obtains on partition of ancestral 4 AIR 1967 SC 1153. property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son.”

7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son – the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985. Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property.

8. The second issue which has arisen for consideration is whether the two Sale Deeds dated 01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not.

8.1. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate.[5] The onus for establishing the existence of legal necessity is on the alienee. In Rani & Anr. v. Santa Bala Debnath & Ors.,[6] this Court held that: