Law Web: Whether relinquishment of self-acquired properties of a deceased by legal heirs will enure to benefit of all other legal heirs?

This Court in case of Kishore Tulshiram Mantrim (supra)

after adverting to the judgment of Supreme Court in case of Thamma

Venkata Subbamma (supra) has held that if the properties are self- acquired and not the ancestral coparcenary properties, would acquire on the death of such person in self-acquired property, they will devolve equally on all his legal heirs and therefore some of the legal heirs can definitely relinquish their share in favour of another legal heir and it should not be necessarily in favour of whole body. In my view, the

principles of law laid down by the Supreme Court in the said judgment would squarely apply to the facts of this case. Since, the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The

daughters of the said deceased thus were free to relinquish their

undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

27. In my view, such relinquishment of properties inherited by

the legal heirs of the person whose properties were self-acquired

properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed. The principles applicable to the relinquishment of undivided share by coparceners in favour of another coparcener in respect of ancestral property which relinquishment would

enure for the benefit of all the coparceners would not apply in case of the

properties inherited by legal heirs which were self-acquired properties of

the deceased. In my view, the learned Trial Judge erroneously applied the

principles applicable to relinquishment of undivided share by a

coparcener in favour of another coparcener to the properties inherited by

the legal heirs of a deceased whose properties were self-acquired.

28. In my view, since the suit properties were not inherited by

the four generations of male lineage from father, father’s father or father’s

father’s father i.e. father, grand father, the properties even otherwise

could not have been termed as ancestral property. The finding of the Trial

Court that though deed of relinquishment was executed by the four

daughters of the said deceased though in favour of the appellants, same

would act for the benefit of all the coparceners is ex-facie perverse and

contrary to the principles of law laid down by the Supreme Court and this

Court. Supreme Court in case of Arshnoor Singh (supra) has quoted a

passage from Mulla in his commentary on Hindu Law (22nd Edition) at

page 129 with approval stating the position with respect to succession

under Mitakshara and has held that after the Hindu Succession Act, 1956

came into force, if a person inherits a self-acquired property from his

paternal ancestral, the said property becomes self-acquired property and

does not remain coparcenary property. Principles laid down by the

Supreme Court in the said judgment would apply to the facts of this case.

Bombay High Court

Shri. Shashikant Shripad Pandit ... vs Shri. Kaustubh Subhash Pandit And ... on 25 February, 2020

FIRST APPEAL NO.1773 OF 2019
      ALONG WITH
INTERIM APPLICATION NO.1 OF 2019

CORAM : R.D. DHANUKA, J.

2020 SCC OnLine Bom 309 : (2020) 3 Mah LJ 302 : (2020) 2 Bom CR 678 : AIR 2020 (NOC 668) 225 : (2020) 3 AIR Bom R 384

By this First Appeal filed under Section 96 of the Code of

Civil Procedure, 1908, the appellants (original defendants) have

impugned the judgment and order dated 11th March 2019 passed in

Special Civil Suit No.1120 of 2016 by 4th Joint Civil Judge, Senior

Division, Pune thereby decreeing the said suit partly which was filed

for seeking partition and permanent injunction in respect of some of

the properties. By consent of parties, First Appeal is heard finally at the

admission stage. The appellants were the original defendants whereas the

respondents were the original plaintiffs before the Trial Court. Some of

the relevant facts for the purpose of deciding this First Appeal are as

under :-

2. The suit properties are comprising of land bearing CTS

No.1170/22 area 878.16 sq.meter within four boundaries towards east-

CTS No.1170/21 of Mr.Chiplunkar, Joshi, towards south-road, towards

west-CTS No.1170/23 of Dr.Kinikar and towards north -Government

Property comprising of building namely Hira Apartment ground plus

tow storied building and Ushashri building consisting of ground and

two storied building except first and second floor of Hira Apartment

(hereinafter referred to as “the suit properties”).

3. It was the case of the respondents (original plaintiffs) that

the suit properties were the self-acquired properties of Late Shripad

Pandit who was the grand father of the respondents. The suit properties

were purchased in the name of Late Smt. Usha who was wife of Shripad

Pandit and grand mother of the respondents. The said Shripad Pandit

constructed Ushashri building in the year 1956 out of his own income. He

also constructed Hira Apartment and sold the tenaments except ground

floor under the provisions of Maharashtra Ownership Flats Act, 1970

to Shri Arora, Chitnis and Pandit. The appellants (original defendants)

are the uncles of the respondents (original plaintiffs). The respondents

were having paternal aunts namely Mrs.Pushpa, Mrs.Hema, Mrs.Leela,

Mrs.Anju. Mrs.Pushpa has expired. Father of the respondents Subhash

also expired in the year 1994. After the death of Subhash, mother of the respondents who was the defendant no.4 got remarried. She was however,

joined as party to the suit as one of the legal heirs of Subhash. Late

Shripad Pandit died intestate in the year 2006 at the age of 94 and his

wife Usha Pandit predeceased him and died in the year 1999.

4. It was the case of the respondents (original plaintiffs) that

the said deceased Usha Pandit and Shripad Pandit had four sons and four

daughters. After demise of deceased Usha Pandit and Shripad Pandit,

each son and daughter had 1/8th share therein. It was the case of the

respondents that sisters of the appellant nos.1 to 3 (defendant nos.1 to 3)

relinquished their undivided share in the suit property on 25th November

2006 by a registered release deed bearing No.7493/2006 and thus had no

right, title and interest of any nature whatsoever in the suit property.

5. On 2nd September 2016, the respondent nos.1 to 3 filed

Special Civil Suit no.1120 of 2016 in the Court of Joint Civil Judge,

Senior Division, Pune for partition, separate possession of their 1/4th

share in the suit property and permanent injunction and mense profit.

6. On 20th December 2016 and 5th April 2017, the appellant

nos.1 and 2 filed their written statements before the Trial Court. The

appellant no.3 died during the pendency of the suit. His legal heirs

were accordingly brought on record who adopted written statement filed

by the appellant no.1. The suit proceeded ex parte against the

respondent no.4. The appellant nos.1 to 3 admitted the relation between

the parties and contentions raised in paragraphs 4 to 6 of the plaint and

denied the rest of the contentions of the plaint. It was further contended

by the appellant nos.1 to 3 that sisters of the appellant nos.1 to 3

relinquished their right, title and interest in the suit property in favour of

the appellant nos.1 to 3 and thus the respondents were not entitled to

1/4th share in the suit property.

7. Trial Court framed six issues for determination. Both the

parties led oral and documentary evidence. On 11th March 2019, after

hearing both the parties, learned trial Judge allowed the said suit and

declared that the appellants and the respondent nos.1 to 3 were having

1/4th share each in units/apartments reserved for their joint family i.e.

ground floor, first floor and second floor of old building and ground floor

of new building situated at CTS No.1170/22, Shivajinagar, Pune. It was

further held that the respondent nos.1 to 3 (original plaintiffs) are entitled

for partition, separate possession of their 1/4th share in the suit property.

Trial Court also restrained the appellants permanently from creating

third party interest to the extent of 1/4th share of the respondent nos.1

to 3 in the suit property and directed that partition of 1/4th share of the

respondent nos.1 to 3 be effected by appointing Court Commissioner

and separate possession of their share be given to them. Being aggrieved

by the said judgment and decree dated 11th March 2019, the appellants

filed this First Appeal.

8. Mr.Agrawal, learned counsel for the appellants filed

compilation of documents comprising of pleadings/documents and

evidence led by the parties before the trial Court. Learned counsel invited

my attention to some of the averments made in the plaint, written

statements and the oral evidence led by the respondent no.2 Shri Kedar

Subhash Pandit. Learned counsel also invited my attention to Genealogy

of Shripad Pandit who died on 7th November 2006 leaving behind his

legal heirs and representatives. His wife predeceased him and died in the

year 1999. He had four sons and four daughters. Son Subhash died in

the year 1994 and predeceased the said Shripad Pandit. Subhash left

behind his wife Urmila Kulkarni and three children who were the original

plaintiffs. Shri Shirish Pandit was the original defendant no.3 and died

leaving behind his wife Chitra and two sons who were impleaded as

party-defendant nos.3A, 3B and 3C. It is not in dispute that the daughters

of the said deceased Shri Shripad Pandit namely Pushpa, Leela, Hema

and Anju executed a Release Deed on 25th November 2006 in favour

of the appellant nos.1 to 3.

9. It is submitted by the learned counsel that since those four

sisters of the appellant nos.1 to 3 had executed the said Release Deed

relinquishing their 1/4th share each in favour of the appellants, the

appellants become entitled to 7/8th share in the suit property. The

respondent nos.1 to 3 were thus entitled to remaining 1/8th share in the

suit property. Trial Court however, has held that the appellants and the

respondent nos.1 to 3 having 1/4th share each in units/apartments

reserved for their joint family and further held that the respondent nos.1

to 3 (original plaintiffs) were entitled to partition, separate possession

of their 1/4th share in the suit property.

10. Learned counsel for the appellants placed reliance on the

following judgments :-

i) Judgment of Supreme Court in the case of Thamma Venkata

Subbamma Vs. Thamma Rattamma, AIR 1987 SC 1775;

ii) Judgment of Andhra Pradesh High Court in the case of

M.Krishna Rao and Anr. Vs. M.L.Narasikha Rao & Ors., AIR 2003

(AP) 498;

iii) Judgment of L. Sundaram and Ravichandran Vs. Lakshmanana

(died), L.Sadagopal & Ors., 2003 (1) Mh.LJ. 195;

iv) Judgment of Supreme Court in the case of State of Maharashtra

Vs. Narayan Rao Sham Rao Deshmukh & Ors., (1985) 2 SCC 321;

v) Judgment of Supreme Court in the case of Mangammal @

Thulasi & Anr. Vs.T.B. Raju & Ors., 2018 (4) ALL MR 941 (SC);

vi) Judgment of Supreme Court in the case of Cherotte Sugathan

(died) through Lrs. & Ors. Vs. Cherotte Bharathi & Ors., 2008 (3)

ALL MR 829;

vii) Judgment of this Court in the case of Sanjay Purshottam

Patankar Vs. Smt.Prjakta Pramod Patil, 2015(5) ALL MR 570;

viii) Judgment of Madras High Court in the case of Shanmugham &

Ors. Vs. Saraswathi & Ors., AIR 1997 Madras 226;

ix) Judgment of Andhra Pradesh High Court in the case of Nalla

Venkateshwarlu Vs. Porise Pullamma and Anr., AIR 1994 Andhra

Pradesh 87;

x) Unreported judgment of this Court delivered on 14th August 2018

in the case of Kishore Tulshiram Mantrim Vs. Dilip Jank Mantri &

Ors. in Second Appeal No.374 of 2018;

xi) Judgment of Punjab and Haryana High Court in the case of

Suraj Kaur & Ors. Vs. Ved Prakash and Ors., 2019 (4) R.C.R. (Civil)

661;

xii) Judgment of Supreme Court in the case of Arshnoor Singh Vs.

Harpal Kaur & Ors., 2019 ALL SCR 1982.

11. Learned counsel invited my attention to the issues framed

by the Trial Court and also to the order dated 11th March 2019 passed

by the learned Trial Judge below Exhibit-A in Special Civil Suit No.1120

of 2016 and would submit that both the parties had agreed before the

learned trial Judge that the suit properties were not the ancestral

properties of the appellants and the respondents. Learned Trial Judge has

accordingly recast the issue no.1 i.e. “Does suit property is inherited by

the plaintiffs and defendants ?”

12. Learned counsel for the appellants invited my attention to

the findings rendered by the learned trial Judge in paragraph 16 of the

impugned judgment and decree and would submit that the learned trial

Judge has erroneously proceeded on the premise that the suit properties

which were subject matter of the Release Deed executed by the four

sisters in favour of the appellants were co-parcenary properties and the

parties were the co-parceners though all the parties had admitted before

the trial Court that the properties were not ancestral properties of the

parties.

13. It is submitted by the learned counsel that the entire

judgment and decree holding that the respondent nos.1 to 3 (original

plaintiffs) would be entitled to 1/4th share is ex facie perverse and

contrary to various judgments delivered by the Supreme Court and this

Court relied upon by the learned counsel. It is submitted by the learned

counsel that since the suit properties were not the ancestral properties,

Deed of Release executed by four daughters were not in favour of the

joint family but was exclusively in favour of the appellants. The other

family members thus would not be entitled to the benefit of the said

Release Deed made by the sisters in favour of the appellants. He submits

that renunciation of the share of the sisters thus could not be for the

benefit of all other members of the family and thus the share of the sisters

would not be distributed amongst all the family members.

14. It is submitted by the learned counsel that the trial Court has

totally misinterpreted and wrongly applied the principles laid down by

the Andhra Pradesh High Court in the case of M.Krishna Rao and Anr. Vs. M.L.Narasikha Rao & Ors. (supra) wherein it has been held that Release Deed made in favour of some of co-parceners would enure to benefit of all other co-parceners and not only in favour of those coparceners in whose favour release deed was made. It is submitted by the

learned counsel that the trial Court also misinterpreted and wrongly

applied the ratio enumerated by the Madras High Court in the case of L. Sundaram and Ravichandran Vs. Lakshmanana (died), L.Sadagopal

& Ors.,(supra) wherein it has been held that in the Release Deed

executed releasing interest in the suit property in favour of some of coparceners,

such release by any co-parcener could be in favour of co-

parcener as body and not in favour of one or more of them.

15. It is submitted by the learned counsel that a Hindu coparcenary

is a narrower body than the joint family. Only males who

acquire by birth an interest in the joint or co-parcenary property can be

members of the co-parcenary or co-parceners. Male members of a joint

family of his sons, grandson and great grandsons constitute a co-parcener

who acquire right in the co-parcenary property by birth but his rights can

be definitely ascertained only when a partition takes place. When the

family is joint, the extent share of a co-parcener cannot be definitely

predicated since it is always capable of fluctuating. Such share would

increase by the death of a co-parcener and decreases on the birth of coparcener.

16. It is submitted by the learned counsel that a joint family,

however, may consist of female members. It may consist of male

member, his wife, his mother and unmarried daughters. The property of

a joint family does not cease to belong to the family merely because there

is only a single male member in family. A joint family may consist of a

single male member and his wife and daughter. It is not necessary that

there should be two male members to constitute a joint family.

17. Learned counsel for the appellants strongly placed reliance

on the judgment of the Supreme Court in the case of Mangammal @

Thulasi & Anr. Vs.T.B. Raju & Ors., (supra) and would submit that

any property inherited upto four generations of male lineage from

father, father’s father or father’s father’s father i.e. father, grand father

etc. is termed as ancestral property. It is submitted that the entire property

is held upto four generations of male members constitutes a co-parcenary

property. He submits that in this case, none of these conditions were

satisfied by the respondent nos.1 to 3 to consitute the suit property as

co-parcenary property.

18. Mr.Deo, learned counsel for the respondent nos.1 to 3, on

the other hand, does not dispute that Shri Shripad Pandit expired on 7th

November 2006 leaving behind four sons and four daughters. He

submits that the suit properties were the self-acquired property of the

said deceased Shri Shripad Pandit. He does not dispute that the said

Release Deed dated 25th November 2006 was executed by four daughters of Shripad Pandit i.e. Pushpa, Leela, Hema and Anju in favour of the

appellants relinquishing their 1/4th share each in favour of the

appellants. Learned counsel fairly invited my attention to Clause 1 of

the said Release Deed which was duly registered and would submit that

by the said Release Deed, those four sisters had released, relinquished,

surrendered and transferred their undivided share in favour of the

appellants exclusively.

19. Learned counsel for the respondent nos.1 to 3 did not deny

that the suit properties were not the ancestral properties and that the

parties had jointly made a statement before the trial Court on 11th March

2019 that the suit properties were not ancestral properties of the parties.

He submits that the trial Court had accordingly recast the issue no.1.

Learned counsel for the respondent nos.1 to 3 could not distinguish the

judgments relied upon by Mr.Agrawal, learned counsel for the appellants.

REASONS AND CONCLUSIONS :-

20. It is not in dispute that suit properties were self-acquired

properties of the said Shri Shripad Pandit who was the father of four sons

viz. Subhash, Shashikant, Sharad, Shirish and four daughters viz.Pushpa,

Leela, Hema and Anju. Subhash predeceased his father Shripad Pandit

and died in the year 1994. It is also not in dispute that parties jointly

had made a statement before the Trial Court on 11th March 2019 that the

suit properties were not the ancestral properties of the parties to the suit.

Trial Court had accordingly recast the issue no.1 which reads as under : -

“Does suit property is inherited by the plaintiffs and defendants ?”

Trial Court recorded a finding on the said issue no.1 in affirmative.

21. A perusal of the judgment and decree passed by the trial

Court indicates that the trial Court though had rendered a finding that

the suit properties were inherited by the parties had rendered perverse

finding that the suit properties were co-parcenary properties and Release

Deed executed by the sisters of the appellants were for the benefit of all

the members of the family and not only the appellants. There was no

dispute about the execution of the said Release Deed which was produced

on record by the appellants.

22. Learned trial Judge strongly placed reliance on the judgment

of the Andhra Pradesh High Court in the case of M.Krishna Rao and

Anr. Vs. M.L.Narasikha Rao & Ors.(supra) & L. Sundaram and

Ravichandran Vs.Lakshmanana (died), L.Sadagopal & Ors. (supra)

and has held that relinquishment of the right and interest by the daughters

of Shri Shripad Pandit and Usha was in favour of the entire family and

not in favour of the appellants only. Trial Court accordingly held that the

respondent nos.1 to 3 were entitled for equal share i.e. 1/4th share each in

the family unit reserved for the family of the appellants and the

respondent nos.1 to 3. Mr.Deo, learned counsel for the respondent nos.1

to 3 could not support the said finding rendered by the trial Court and

could not dispute before this Court that the suit properties were selfacquired

properties of Shripad Pandit. A perusal of the record indicates

that the learned trial Judge erroneously proceeded on the premise that

the Deed of Release by four daughters of Shripad Pandit in favour of the

appellants were co-parcenary properties and not his self-acquired

properties.

23. Supreme Court in case of Thamma Venkata Subbamma

(supra) has adverted to a passage from Mulla’s Hindu Law Fifth Edition,

Article 264 i.e. “Renunciation or relinquishment of his share” with

approval and has held that a renunciation in favour of one of the

coparcener by another is for the benefit of all other coparceners and not or the sole benefit of the coparcener in whose favour the renunciation was made. It is thus clear that the principles laid down by the Supreme Court in the said judgment would apply only if the renunciation in respect of the coparcenary property is made by one of the coparceners in favour of another which would enure for the benefit of all other coparceners and not for the sole benefit of the coparceners or coparceners in whose favour the renunciation is made. In this case, the suit properties were admittedly

not coparcenary properties nor the parties were coparceners. Andhra

Pradesh High Court in case of M. Krishna Rao and Anr. (supra) and

High Court in case of L. Sundaram and Ravichandran (supra) has taken

the similar view.

24. Supreme Court in case of State of Maharashtra v/s.

Narayan Rao Sham Rao Deshmukh and Ors. (supra) has held that a

joint family may consist of female members, it may consist of a male

member, his wife, his mother and his unmarried daughters. The property

of a joint family does not cease to belong to the joint family merely

because there is only a single male member in the family. A Hindu

coparcenary is however, a narrower body than the joint family. Only

males who acquire by birth an interest in the joint or coparcenary

property can be members of the coparcenary or coparceners. A male

member of a joint family and his sons, grandsons and great grandsons

constitute a coparcenary.

25. Supreme Court in case of Mangammal @ Thulasi and Anr.

(supra) has held that any property inherited upto four generations of male

lineage from father, father’s father or father’s father’s father i.e. father,

grand father etc. is termed as ancestral property. A perusal of the

genealogy of Shripad Pandit produced on record does not indicate that the

parties to the proceedings are members of the coparceners. They also did

not fall under four generations. Suit properties thus even otherwise cannot

be considered as ancestral properties. The principles of law laid down by

the Supreme Court in case of State of Maharashtra v/s. Narayan Rao

Sham Rao Deshmukh and Ors. (supra) and in case of Mangammal @

Thulasi and Anr. (supra) squarely apply to the facts of this case.

26. This Court in case of Kishore Tulshiram Mantrim (supra)

after adverting to the judgment of Supreme Court in case of Thamma

Venkata Subbamma (supra) has held that if the properties are self-

acquired and not the ancestral coparcenary properties, would acquire on

the death of such person in self-acquired property, they will devolve

equally on all his legal heirs and therefore some of the legal heirs can

definitely relinquish their share in favour of another legal heir and it

should not be necessarily in favour of whole body. In my view, the

principles of law laid down by the Supreme Court in the said judgment

would squarely apply to the facts of this case. Since, the suit properties

were self-acquired properties of the deceased Shripad Pandit, all the legal

heirs of the said deceased were entitled to equal share including the four

daughters of the said deceased who were sisters of the appellants. The

daughters of the said deceased thus were free to relinquish their

undivided share in the suit property in favour of the other legal heirs of

the said deceased exclusively.

27. In my view, such relinquishment of properties inherited by

the legal heirs of the person whose properties were self-acquired

properties would not enure for the benefit of all the legal heirs of the said

deceased but would enure only for those persons in whose favour such

deed of relinquishment/release was executed. The principles applicable to

the relinquishment of undivided share by coparceners in favour of another

coparcener in respect of ancestral property which relinquishment would