Sunday, 19 January 2014

Partitioned share of ancestral property held by single person When it again becomes coparcenary property



Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419;AIR2013SC3525,
Decided on;JULY 15, 2013.
Hindu Law
Coparcenary property or separate/self-acquired property - Partition of ancestral property - Property falling in share of a
single coparcener would be treated as his separate property vis--vis his relatives and he would be competent to
alienate/deal with it in any manner he would like - But upon his marriage subsequently when a son is born (and after the
2005 Amendment to Hindu Succession Act, 1956, also a daughter), property in his hand would be treated as
coparcenary property in which son(s)/daughter(s) as coparceners would get shares - Hence after birth of a child, he
could dispose of such property only as karta for legal necessity - Suit filed by son for declaration that alienations of such
property by way of sale and gift after he was born, having not been made by his father as karta for any legal necessity,

were null and void, deserved to be decreed - However, in respect of property which would have fallen in share of his
father at the time of execution of sale and release deeds, parties can work out their remedies in appropriate proceedings,

Coparcener - Coparcenary property - Meaning - Partitioned share of ancestral property held by single person again
becomes coparcenary property as soon as child is born to such holder of the partitioned share of ancestral property,

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5475 OF 2013
(@ SLP (C) No. 22388 of 2011)
ROHIT CHAUHAN
...APPELLANT
VERSUS
SURINDER SINGH & ORS.

Sole plaintiff Rohit Chauhan is the appellant
before us.
His grandfather Budhu had three sons,
namely, Gulab Singh, Zile Singh and one Ram Kumar.
Gulab
Singh,
father
of
the
plaintiff,
has
been
arrayed as defendant no. 2, whereas son of Zile
Singh i.e. Surinder Singh figures as defendant no.
1 in the suit. In partition between Budhu and his
three sons, defendant no. 2 got 1/4 share i.e., 72
Kanals of land.
In the said partition Budhu also
got 72 Kanals of land and he bequeathed 1/4 of his

share i.e., 18 Kanals to each of his three sons and
kept with himself 18 Kanals.
After the death of
Budhu, defendant no. 2 inherited 1/3 share i.e., 6
Kanals and in this way plaintiff’s father Gulab
Singh,
defendant
no.
2,got
96
Kanals
of
land.
Defendant No.2 during his lifetime also acquired 8
Kanals of land from the income of the properties
which he got in partition amongst his father and
brothers.
was
At the time of partition defendant no. 2
unmarried.
But
later
on,
Gulab
Singh
was
married to defendant no. 7, Rajesh Rani and from
the wedlock the plaintiff as also defendant no. 6
were
born.
Plaintiff
was
born
on
25th
of
March,
1982. Plaintiff alleged that his father defendant
no. 2 executed two separate sale deeds on 19th of
May, 2000 selling 8 Kanals of land acquired from
joint family funds to defendant nos. 3 to 5.
It is
further allegation of the plaintiff that his father
illegally gifted 96 Kanals of land in favour of
defendant no. 1 Surinder Singh, the son of his real
brother Zile Singh by way of release deed dated 28 th
of May, 2004.
On the basis of the release deed and

the sale deeds, the defendants claiming interest
therein got their names mutated and attested in the
revenue records. It is the case of the plaintiff
that
the
ancestral
property
property
received
and,
by
his
therefore,
the same by him is null and void.
father
is
alienation
of
On the basis of
the aforesaid pleadings, the plaintiff prayed for
declaration that the release deed, sale deeds and
the
mutation
illegal,
null
entries
and
void
made
and
on that
basis
not binding
on
are
him,
Varsha (defendant no. 6) and Rajesh Rani (defendant
no. 7).
Defendant
no.
1
contested
the
suit
and,
according to him, the plaintiff, his mother Rajesh
Rani and minor sister Varsha were living separately
from defendant No. 2 and there was no good relation
between them.
They were not even on talking terms.
According to defendant no. 1, he and his family
members were rendering service and giving honour to
defendant no. 2 and he was residing with them as
their
family
member.
Defendant
no.
1
further

averred that out of love, affection and service
rendered by him, defendant no. 2 was pleased and,
as such, he executed a release deed in his favour
and on that basis mutation entries were made.
It
is the plea of defendant no.1 that the land in
question
became
the
self
acquired
property
of
defendant no. 2 after partition and, therefore, he
was
competent
to
manner he desired.
transfer
the
property
in
the
Defendant no. 1 further alleged
that the sale deed executed by defendant no. 2 in
favour of defendant nos. 3 to 5 is legal and valid.
Defendant no. 2 supported the case of defendant no.
1 and adopted the written statement filed by him.
Defendant nos. 3 to 5 filed their separate written
statements and supported the plea of defendant no.
1 and averred that the sale deeds and the release
deed were validly executed.
On the basis of the
aforesaid pleading of the parties various issues
have been framed including the following issues:
“1.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?”
The trial court, on analysis of the materials
placed on record and the legal position, came to
the conclusion that the property which defendant
no. 2 got by virtue of the partition decree amongst
his
father
and
brothers
was
although
separate
property qua other relations but it attained the
characteristics of coparcenary property after the
plaintiff
Rohit
Chauhan
was
born.
The
finding
recorded by the trial court in this regard reads as
follows:
“21. No doubt Gulab Singh got some of
his share in the property described in
para no. 1(a) of the plaint through
his father Budhu vide mutation no.
3089
in
which
the
father
Budhu
suffered
a
decree
in
favour
of
defendant no. 1 along with Zile Singh

and Ram Kumar of 3/4th share but in the
year 1969 when the said decree was
passed Gulab Singh was unmarried and
he had got alienated the land which
had come to his share when Rohit
Chauhan, Plaintiff came into existence
i.e. on 25.3.1982.
Meaning thereby
that the property which Gulab Singh
had got by the decree was although his
separate property qua other relation
but became JHF property immediately
when Rohit Chauhan was born thereby
getting characteristic of coparcenary
property.”
Accordingly, the trial court decreed the suit.
Defendant
preferred
no.
appeal
1,
and
aggrieved
it
was
his
by
plea
the
same,
that
the
property received by defendant 2 on partition will
become his separate property and requires to be
treated
as
his
self
acquired
property
and,
therefore, defendant no. 2 was free to deal with
the property in the manner he liked.
words,
according
partition
the
to
property
defendant
falling
no.
in
the
In other
1,
after
share
of
defendant no. 2 lost its character as a coparcenary
property and assumed the status of self acquired

property.
The aforesaid plea found favour with the
lower appellate court and it held that the property
which defendant no. 2 got on partition “lost the
character of coparcenary property and became the
self acquired property of Gulab Singh”.
The lower
appellate court further held that once the property
is
held
to
be
self
acquired
property
of
Gulab
Singh, he had every right to deal with the same in
any
manner
judgment
of
he
liked.
the
lower
Relevant
portion
appellate
court
of
the
reads
as follows:
“13. In the light of above said
precedents it can be readily concluded
that only when the property which is
received
by
a
person
from
his
ancestors by survivorship can be held
to be ancestral/coparcenary property
and any other property which although,
might have been received from the
ancestors by means of will or consent
decree or a father partitioned the
property, will loose its character as
that of coparcenary property and will
become self acquired property in the
hands
of
person
receiving
it.
Applying these precedents to the facts
of the present case, this Court will
conclude that approximately 96 Kanals
of land was received by Gulab Singh
from his father Budhu on the basis of
consent decree or on the basis of will

and not by survivorship and this
property
lost
the
character
of
coparcenary property and was self
acquired property of Gulab Singh. The
version of plaintiff/respondent no. 1
in the present case is that rest of
the property was acquired by Gulab
Singh with the funds originated from
joint Hindu family property and the
said
property
also
assumed
the
character
of
joint
Hindu
family
property, also cannot be sustained
because the major chunk of land in the
hands of Gulab Singh has been held to
be non-ancestral property and rather
self acquired property of Gulab Singh.
14. Once the property involved in the
suit has been held to be self acquired
property of Gulab Singh then Gulab
Singh was having every right to deal
with the same in any manner he liked
and no embargo can be put on the
rights of Gulab Singh as well as his
rights to alienate the suit property
are concerned and thus neither release
deed nor sale deeds executed by Gulab
Singh can be questioned by anyone much
less by son of Gulab Singh............”
Accordingly, the lower appellate court allowed
the appeal and set aside the judgment and decree of
the trial court and dismissed the suit.

Plaintiff,
aggrieved
second appeal and
second appeal 
the
in
by
the
High
limine
same,
Court
and,
preferred
dismissed
while
doing
the
so,
observed as follows:
“.........Finding of the lower appellate
court that the suit land is not proved
to
be
ancestral
or
coparcenary
property is fully justified by the
documentary
evidence
and
admitted
facts.......”
This is how the plaintiff is before us.
Leave granted.
Mr.
L.Nageshwar
appearing
submits
on
that
Rao,
learned
behalf of
at time
the
the
Senior
Counsel
plaintiff-appellant
when
the
plaintiff’s
father Gulab Singh got the property in partition,
it
was
his
separate
property
vis-à-vis
his
relations but after the birth of the plaintiff on
25th of March, 1982, plaintiff acquired interest in
the
property
as
a
coparcener.
Mr.
Satinder
S.
Gulati, learned Counsel appearing on behalf of the

defendant-respondents, however,
submits that once
the property fell into the share of the plaintiff’s
father
Gulab
Singh,
it
lost
the
character
of
a
coparcenary property and the said status will not
change on the birth of the plaintiff.
He points
out that even if plaintiff Rohit Chauhan was born
at the time of partition between defendant no. 2,
his father and brothers, plaintiff would not have
got
any
share
Succession Act.
under
Section
8
of
the
Hindu
In support of the submission he
has placed reliance on a judgment of this Court in
the case of Bhanwar Singh v. Puran, (2008) 3 SCC 87
and our attention has been drawn to the following
passage from the said judgment:
“13. Section 6 of the Act, as it stood
at the relevant time, provided for
devolution
of
interest
in
the
coparcenary property.
Section 8 lays
down the general rules of succession
that the property of a male dying
intestate devolves according to the
provisions of the Chapter as specified
in Clause (1) of the Schedule. In the
Schedule appended to the Act, natural
sons and daughters are placed as Class
I heirs but a grandson, so long as
father
is
alive,
has
not
been
included.
Section
19
of
the
Act

provides
that
in
the
event
of
succession by two or more heirs, they
will take the property per capita and
not per stripes, as also tenants-in-
common and not as joint tenants.”
We have bestowed our consideration to the rival
submission and we find substance in the submission
of Mr. Rao. In our opinion coparcenary property
means
the
property
which
consists
of
ancestral
property and a coparcener would mean a person who
shares equally with others in inheritance in the
estate
of
narrower
common
body
than
ancestor.
the
Joint
Coparcenary
Hindu
is
family
a
and
before commencement of Hindu Succession (Amendment)
Act, 2005, only male members of the family used to
acquire by birth an interest in the coparcenary
property.
A coparcener has no definite share in
the coparcenary property but he has an undivided
interest in it and one has to bear in mind that it
enlarges by deaths and diminishes by births in the
family.
It is not static. We are further of the
opinion that so long, on partition an ancestral
property remains in the hand of a single person, it

has to be treated as a separate property and such a
person
shall
be
entitled
to
dispose
of
the
coparcenary property treating it to be his separate
property but if a son is subsequently born, the
alienation
questioned.
made
before
the
birth
cannot
be
But, the moment a son is born, the
property becomes a coparcenary property and the son
would
acquire
coparcener.
interest
in
that
and
become
a
The view which we have taken finds
support from a judgment of this Court in the case
of M. Yogendra v. Leelamma N., (2009) 15 SCC 184,
in which it has been held as follows:
“29. 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.”
Now referring to the decision of this Court in
the case of Bhanwar Singh (supra), relied on by
respondents, the same is clearly distinguishable.
In
the
said
succession
case
whereas
the
in
issue
the
was
in
present
relation
case
we
to
are
concerned with the status of the plaintiff vis-à-
vis his father who got property on partition of the
ancestral property.
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 Chauhan,
the
competent
birth
to
of plaintiff
sell, mortgage
Rohit
and
deal
with
was
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.

In view of what we have observed above, the
view taken by the lower appellate court as affirmed
by the High Court is erroneous in law.
In the result, we allow this appeal, set aside
the
judgment
and
decree
of
the
lower
appellate
court as affirmed by the High Court and restore
that
of
the
aforementioned.
trial
court
with
the
liberty
In the facts and circumstances of
the case, there shall be no order as to costs.
........................................................................J
(CHANDRAMAULI KR. PRASAD)
...........................................................J
(V.GOPALA GOWDA)
NEW DELHI,
JULY 15, 2013.



Print Page

No comments:

Post a Comment