Bench – Justice Indu Malhotra and Justice Uday Umesh Lalit
Citation- [APPEAL (CIVIL) 5124 OF 2019 (SC)]
FACTS
- To begin with, in 1951, after the demise of Lal Singh, the common ancestor, who owned large tracts of the land, the property was inherited by his only son, Inder Singh. During his lifetime, Inder Singh in 1964 affected a partition, dividing his entire property among his three sons, namely, Garu Charan, Dharam Singh, and Swaran Singh.
- The present suit is filed by Arshnoor Singh, Dharam Singh’s son from his first wife, who was born in 1985 against Dharam Singh’s second wife Harpal Kaur. The “suit property” is the share which Dharam Singh received after the partition. In 1999, before the marriage with Harpal Kaur, Dharam Singh executed two sale deeds as per which he sold his entire property to Harpal Kaur (Respondent No. 1).
- The amount of the property was highly undervalued. They were presented before the collector where he admitted receiving zero consideration and she admitted that she had paid no money to Dharam Singh. Subsequently, they got married in 1999.
- The appellant, Arshnoor Singh, attained majority in 2003 and in 2004, he filed the suit against respondent no 1, claiming the suit property as coparcenary property and asking for a permanent injunction from further alienating, transferring or creating the charge on the suit property.
- The respondent, however, further entered into the transaction with Respondent No 2 and 3 whereby she sold the suit property to them.
- During the pendency of the suit, Dharam Singh expired in 2017.
LOWER COURTS DECISIONS
The Trial Court passed a decree in the favour of the Appellant while upholding that the suit property was ancestral coparcenary property. The appellant was held entitled to joint possession of the suit property along with his father. However, on further appeal to the High Court, Punjab and Haryana High Court set aside the judgment of the Trial Court and allowed the R.S.A. filed by the respondents. Aggrieved by this impugned judgement, the present appeal is filed by the Appellant.
ISSUES RAISED
- Whether the Dharam Singh’s property or the property in the dispute is an ancestral property or not?
- Whether the sale deeds executed by Dharam Singh before the marriage in favour of Harpal Kaur (Respondent No. 1) valid or not? Furthermore, what is the validity of the sale deed subsequently executed by Respondent No. 1 during the pendency of the suit in favour of Respondent Nos. 2 & 3 in 2007?
CONTENTIONS
Appellant
- The senior counsel, Mr Manoj Swarup, appearing on behalf of the appellant before the court argued that the nature of the property which Dharam Singh inherited was a coparcenary property and the appellant i.e., Arshnoor Singh, his son had inherited the right over the property as the coparcener by birth.
- It was further submitted that Dharam Singh was wrong in alienating the ancestral property as neither there was any legal necessity nor was there any benefit directed towards the estate.
- Moreover, the property that Respondent 1 sold was during the pendency of the suit. Hence, due to the doctrine of lis pendens, the transaction was illegal, null and void.
Respondents
- The senior counsel, Mr Nitin Rai, appearing on behalf of the respondents argued that the suit was filed by the appellant at the behest of his father, Dharam Singh since the marriage between Dharam Singh and Respondent 1 had been dissolved through a decree of divorce passed in 2010.
- The senior counsel also submits that the property was not a coparcenary property when the two sales deeds were executed and that it ceases to be the coparcenary property after the petition was done in 1964.
- Furthermore, the counsel relies heavily upon the judgement of this Hon’ble court in “Uttam v Saubhag Singh” wherein it was held that as soon as the partition has taken place, the property loses the character of the Joint family property. It reads as: “On a conjoint reading of Sections 4, 8 and 19 of the H.S. Act, after JFP has been distributed in accordance with Sec. 8 on principles of intestacy, the JFP ceases to be JFP in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.”[1]
- On behalf of the respondents, it is also submitted that the appellant has no locus to file the civil suit on the contention that no consideration was there in the sale deed executed between Dharam Singh and Respondent No 1, as only the parties to the deed have the right to file a suit.
RATIONALE
To begin with, while analysing Issue 1, it was primarily held by the Apex Court that the succession which opened prior to 1956 makes the property coparcenary in nature. The court observed that “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 coparcenar property in his hands vis-à-vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956”
In the present case, the succession opened, on the demise of the common ancestor, i.e., appellant’s great-grandfather, Lal Singh and took place before the commencement of the Hindu Succession Act, 1956. Hence, the judges agreed to the view that the old Mitakshara law was applicable. This leads to the inference that the property which was devolved on Lal Singh’s demise was coparcenary property wherein the male descendants three degrees below him acquired an interest by birth. It includes Inder Singh, Dharam Singh and Arshnoor Singh.
Pertaining to its decision on the devolution of property, the court referred to the book of Mulla on Hindu Law, whereby it is laid down that the effect of the partition to dissolve the coparcenary property is such that the members hold their respective shares as their separate property, which on their demise will be passed onto their heirs. However, in the scenario “where the member continues the joint with his own male issue, the share allotted to him on the partition will retain the character of a coparcenary property as regards the male issue.”[2] Moreover, it is“well-settled law that the right of coparceners accrues from the moment of birth and the child gets shares in his father’s property.” [3]
The court also emphasizes upon the ruling of Shyam Narayan Prasad v Krisha Prasad & Ors. 2018 which states the share that a coparcener receives following the division of ancestor property is ancestral property, will remain ancestor property in the hands of the coparcener’s son, and that son will be entitled to it under the doctrine of survivorship whether he is adopted or natural. [4]
Furthermore, the judgment of Uttam v Saubhag Singh referred to by the Respondents is not applicable as it is the post-1956 situation. As far as the post-1956 situation is concerned, it is imperative to note that under Section 8 of the Hindu Succession Act, 1956, the property is inherited in the individual capacity which means that the self-acquired property that the male acquires from his paternal ancestors, relinquishes its status of a coparcenary property and becomes self-acquired property.
Hence, the property which was inherited by Inder Singh was coparcenary and regardless of the fact that the partition occurred in 1964 whereby the property was distributed amongst his sons, the nature of the property remains coparcenary. Eventually, the legal position of the suit property in regards to Dharam Singh was also coparcenary which the Appellant inherited qua his son since his birth in 1985.
Moving further towards the second issue, the court laid down that “The legal necessity means the pressure upon the estate which in law can be regarded as serious and sufficient.” Hence, the power of the Karta to sell the property is based on restrictions, i.e., legal necessity or the benefit of the estate. “The onus for establishing the existence of legal necessity is on the alienee.” [5]Nonetheless, the fact that the sale deeds of 1999 executed between Dharam Singh and Respondent 1 was free from any pecuniary consideration, means that the property was sold in the absence of any legal necessity and no benefits arose out of the same. Taking into cognizance that it was coparcenary property the sale deeds were set aside.
Subsequently, Respondent 1 held no legal title to transfer the property, the property that was further transferred is bogus and not in accordance with the law. Moreover, as earlier contended by the appellant, due to the applicability of the doctrine of lis pendens, the further sale deed executed between Respondent 1 and Respondent 2 and 3 was also declared to be invalid, null and void. Hence, based on the given reasoning, the appeal was accordingly allowed.
DEFECTS OF LAW
I agree as well as appreciate the decision of the hon’ble court, however, more jurisprudence could have been incorporated in the above judgement delving into the nuances or the reasoning behind the differential treatment of the self-acquired property from the paternal ancestors before and after the commencement of the Hindu Succession Act, 1956.
INFERENCE
The judgement reflects on the essentials of Mitakshara Law and how it will be applicable in the cases where the succession has been opened before the commencement of the Hindu Succession Act, 1956. “According to Mitakshara Law, sons, grandsons, and great-grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth.”[6] Subsequently, the doctrine of survivorship prevailed in that scenario. In contrast,if there is a partition of Hindu Undivided Family (HUF) after the commencement of the Hindu Succession Act, 1956, then the property in the hands of a coparcenar, will become his individual property as per Section 8 of H.S. Act, 1956. Moreover, in such a scenario, the chances of the revival of HUF are obliterated even on the birth of the son/daughter as the coparcenary ceases on the partition. To simplify, for instance, if in the present case, the succession had opened after 1956, the case would have been in the favour of Respondents, as the property, would have been treated as individual property under Section 8 and Arshnoor Singh, despite being his legal heir, could claim no right over the property in the name of ancestral property. In that scenario, the judgment of Uttam v Saubhag Singh would have been taken into cognizance. Before the effective division of the property, it becomes imperative that the adjustment of the claims must be made prior to the partition. Moreover, it also reflects on Karta and his right of alienation of the property that he can exercise without the consent of other coparcenars but only if there is a legal necessity and it benefits the estate.
SUBMITTED BY – DRISHTI KOCHHAR
STUDENT AT: LAW CENTRE 2, FACULTY OF LAW, UNIVERSITY OF DELHI
[1] Uttam v. Saubhag Singh & Ors. AIR 2016 SC 1169
[2] Mulla’s Hindu Law
[3] Yudhishter v Ashok Kumar (1987) 1 SCC 204.
[4] Shyam Narayan Prasad v Krishna Prasad & Ors., (2018) 7 SCC 646.
[5] Vijay A. Mittal v Kulwant Rai (Dead) through LRs (2019) 3 SCC 520.
[6] Mulla’s Hindu Law, 129 (22 ed )