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 made before the birth cannot be
questioned. But, the moment a son is born, the
property becomes a coparcenary property and the son
would acquire interest in that and become a
coparcener. 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.”
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. …RESPONDENTS
Dated;JULY 15, 2013.
CHANDRAMAULI KR. PRASAD,J.
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 hisPage 2
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. At the time of partition defendant no. 2
was 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 28th
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 property received by his father is
ancestral property and, therefore, alienation of
the same by him is null and void. On the basis of
the aforesaid pleadings, the plaintiff prayed for
declaration that the release deed, sale deeds and
the mutation entries made on that basis are
illegal, null and void and not binding on 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 transfer the property in the
manner he desired. 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 no. 1, aggrieved by the same,
preferred appeal and it was his plea 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. In other
words, according to defendant no. 1, after
partition the property falling in the 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 he liked. Relevant portion of the
judgment of the lower appellate court 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 by the same, preferred
second appeal and the High Court dismissed the
second appeal in limine and, while doing 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 Rao, learned Senior Counsel
appearing on behalf of the plaintiff-appellant
submits that at the time 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 under Section 8 of the Hindu
Succession Act. 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-incommon 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 common ancestor. Coparcenary is a
narrower body than the Joint Hindu family 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 made before the birth cannot be
questioned. But, the moment a son is born, the
property becomes a coparcenary property and the son
would acquire interest in that and become a
coparcener. 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 case the issue was in relation to
succession whereas in the present case we 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 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.
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 trial court with the liberty
aforementioned. In the facts and circumstances of
the case, there shall be no order as to costs.
………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)
………..……….………………………………..J
(V.GOPALA GOWDA)
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