Case study: Arshnoor Singh v. Harpal Kaur and others

By Anish Sinha 12 Minutes Read

Citation: 2019 Indlaw SC 594

Date of Judgement: 1^st July, 2019

Bench: J. Indu Malhotra, J. Uday Umesh Lalit

Facts:

• Lal Singh, owner of agricultural land in Ferozepur, Punjab passed away in 1951 and his entire property was inherited by his only son Inder Singh.
• Inder Singh effected partition of the entire property (dated 04.11.1964) between his three sons viz. Gurcharan Singh, Dharam Singh, and Swaran Singh. For sustenance of Inder Singh all the three sons transferred one-fourth share of the entire property back to Inder Singh. After his death his property was transferred back to his hires i.e. his widow, three sons, and his daughter.
• The present matter pertains to the property (suit property) which came to the share of one of Inder Singh’s son Dharam Singh. Appellant herein is Dharam Singh’s only one son viz. Arshnoor Singh from his 1^st wife.  Dharam Singh purportedly sold the entire suit property to Harpal Kaur (Respondent no. 1) and two sale deeds dated 01.09.1999 were registered without any monetary consideration, this was admitted before the collector, Ferozepur. Later Dharam Singh got married to Harpal Kaur.
• The Appellant filed a suit for declaration against his father Dharam Singh and Harpal Kaur (Respondent no.1 herein), for the declaration that the suit property was coparcenary property and hence the two sale deeds were illegal, null, and void. During the pendency of the suit, Respondent no. 1 sold the suit property jointly to Kulwant Singh (Respondent no.2) and Jung Bahadur (Respondent no.3). Sale deed dated on 30.10.2007.

Trial Court’s decision:

The Trial Court held that the property was ancestral coparcenary property of Dharam Singh and Respondent no.1 failed to prove that Dharam Singh had sold the suit property to Respondent no.1(as admitted to collector, Ferozepur) for either legal necessity of the family, or for the benefit of the estate of the joint Hindu family and consequently the two sale deeds dated 01.09.1999 purportedly executed by Dharam Singh in favour of Respondent no.1 were illegal, null and void. The appellant was held entitled to joint possession of suit property with his father. Appeal was made before the Additional District Judge, Ferozepur and Appellant Court held same as that of the Trial Court.

High Court’s decision:

The High Court held that

• 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;
• 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 could have made such a challenge;
• Jamabandis for the years 1957 – 58 till 1970 – 71 were not produced by the Appellant.

Issues:

• Whether the suit property was coparcenary property or self-acquired property of Dharam Singh?
• Whether the two sale deeds dated 01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not?

Judgement:

The court held that the suit property was coparcenary property, so the sale deeds dated 01.09.1999 are cancelled as being illegal, null and void. Since Respondent No.1 has not obtained a valid and legal titled to the suit property through the sale deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 either. Subsequently sale deeds dated 30.10.2007 is hit by the doctrine of lis pendens hence the sale deed executed was null and void and was cancelled. And that the name of the appellant is to be recorded in the Jamabandis as the owner of the suit property.

Reasoning:

• Whether the suit property was coparcenary property or self-acquired property of Dharam Singh?

Coparcenary Property

As Lal Singh passed away in 1951, so Inder Singh inherited the property in accordance with the old Hindu Mitakshara law.

In Shyam Narayan Prasad v. Krisha Prasad & Ors.[1], it was held that:

“It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the 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.

The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.”

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

In Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors.[2], it was observed

that under the Hindu Law, the moment a son is born, he gets a share in father’s property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. However, this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act if a person inherits a self-acquired property

from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property.

In Valliammai Achi v. Nagappa Chettiar and Ors.[3], court observed that It is well settled that the share which a co-sharer obtains on partition of ancestral 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, so the character of the ancestral property does not change so far as sons are concerned even after partition.

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 his son – the Appellant

• Whether the two sale deeds dated 01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not?

Not valid

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.[4] The onus for establishing the existence of legal necessity is on the alienee.

In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same.

Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, the Sale Deeds were without any consideration whatsoever.

Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 either.

[1] (2018) 7 SCC 646.

[2] [1986] 161 ITR 370.

[3] AIR 1967 SC 1153.

[4] Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520.

Anish Sinha