Family Law – Succession under Mitakshara Law – Appellant is the great-grandson of one ‘LS’, who was the owner of large tracts of agricultural land – ‘LS’ passed away in 1951, and his entire property was inherited by his only son ‘IS’ – This property was partitioned between three sons of ‘IS’ – Present matter pertains to the property (‘suit property’) which came to the share of one of his sons viz. ‘DS’, father of the appellant – ‘DS’ had only one son, the Appellant, who was born to ‘DS’ through his 1 st wife –’DS’ purportedly sold the entire suit property to Respondent No.1 vide two registered Sale Deeds dtd. 01.09.99 – Subsequently, ‘DS’ got married to Respondent No.1– Appellant filed suit against ‘DS’ and Respondent No.1, for declaration that the suit property was coparcenary property, and hence the two Sale Deeds in favour of Respondent No.1 were illegal, null and void – Suit decreed in favour of the appellant – Respondent No.1 along with the subsequent purchasers, Respondent Nos. 2 & 3 filed common appeal – Dismissed – Respondent Nos.1-3 filed second appeal – High Court allowed the appeal – Held: In the present case, the succession opened in 1951 on the death of ‘LS’, prior to the commencement of the 1956 Act – Nature of the property inherited by his son ‘IS’ was coparcenary – Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property – Even though ‘IS’ had effected partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by his sons would remain as coparcenary property qua their male descendants upto three degrees below them – Property allotted to ‘DS’ in partition continued to remain coparcenary property qua his son, the appellant– Appellant became coparcener in the suit property on his birth i.e. on 22.08.85 – Respondent No.1 failed to discharge the burden of proving that ‘DS’ had executed the two Sale Deeds in her favour out of legal necessity or for the benefit of the estate – In fact, as per record, the Sale Deeds were without any consideration whatsoever – Sale Deeds dtd. 01.09.99 cancelled as being illegal, null and void – Consequently, subsequent Sale Deed dtd. 30.10.07 executed by Respondent No.1 in favour of Respondent Nos.2 & 3 is hit by the doctrine of lis pendens – Judgment of the Single Judge, set aside – Hindu Succession Act, 1956 – Doctrine of lis pendens. Family Law – Power of Karta to sell coparcenary property – Held: Power of 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 – Onus for establishing the existence of legal necessity is on the alienee.
Doctrines – Doctrine of lis pendens – Principle of – Discussed. Allowing the appeal, the Court
HELD:1.1 ‘IS’ had inherited the entire suit property from his father ‘LS’ upon his death. The succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when ‘IS’ succeeded to his father ‘LS’s property in accordance with the old Hindu Mitakshara law. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, 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. 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 coparcenary property in his hands vis-à-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956. [Paras 7, 7.3, 7.5 and 7.6] [1009-F; 1011-F-H; 1012-A-B]
1.2 In the present case, the succession opened in 1951 on the death of ‘LS’. The nature of the property inherited by his son ‘IS’ was coparcenary in nature. Even though ‘IS’ had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by ‘IS’s sons would remain as coparcenary property qua their male descendants upto three degrees below them. In the present case, the entire property of ‘LS’ was inherited by his son ‘IS’ as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of ‘IS’ 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 ‘DS’ in partition continued to remain coparcenary property qua the Appellant. The suit property which came to the share of late ‘DS’ through partition, remained coparcenary property qua his son – the Appellant, who became a coparcener in the suit property on his birth i.e. on 22.08.1985. [Paras 7.7, 7.9, 7.10 & 7.12] [1012-B, C, G-H; 1013-A, G-H]
1.3 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. 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 ‘DS’ 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, it has come on record that the Sale Deeds were without any consideration whatsoever. ‘DS’ had deposed before the Trial Court that he sold the suit property to Respondent No.1 without any consideration. Respondent No.1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without consideration. Hence, the ground of legal necessity or benefit of the estate falls through. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. ‘DS’ could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds. [Paras 8-8.4] [1014-B, G; 1015-A-D]
1.4 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. The subsequent Sale Deed dated 30.10.2007 executed by Respondent No.1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property. The Sale Deed dated 30.10.2007 executed by Respondent No.1 in favour of Respondent Nos.2 & 3 being null and void, is hereby cancelled. The Appellant being a male coparcener in the suit property, was vitally affected by the purported sale of the suit property by his father. The Appellant therefore had the locus to file the Suit for a Declaration that the suit property being coparcenary property, could not have been sold by his father without legal necessity, or for the benefit of the estate. The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show that the suit property was sold without any legal necessity. Being coparcenary property, it could not have been sold without legal necessity, or for the benefit of the estate. Judgment passed by the Single Judge of the High Court vide the Impugned Order dated 13.11.2018, being contrary to law, is set aside. The Sale Deeds dated 01.09.1999 executed by ‘DS’ in favour of Respondent No. 1 are hereby cancelled and set aside. Consequently, the subsequent Sale Deed dated 30.10.2007 executed by Respondent No.1 in favour of Respondent Nos. 2 &
3 during the pendency of proceedings is illegal, and hereby cancelled and set aside. The name of the Appellant is to be recorded in the Jamabandis as the owner of the suit property. [Paras 9, 10-10.2 11] [1015-E-G; 1016-A-F]
Shyam Narayan Prasad v. Krisha Prasad & Ors. (2018)
7 SCC 646 : [2018] 5 SCR 36 ; Yudhishter v. Ashok Kumar (1987) 1 SCC 204 : [1987] 1 SCR 516 ;
Valliammai Achi v. Nagappa Chettiar and Ors. AIR 1967 SC 1153 : [1967] SCR 448 ; Rani & Anr. v. Santa Bala Debnath & Ors. (1970) 3 SCC 722 : [1971] 2 SCR
603 ; Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors. (2019) 3 SCC 520 : [2019]
2 SCR 507 ; T.G. Ashok Kumar v. Govindammal & Ors. (2010) 14 SCC 370 : [2010] 14 SCR 560 – relied on.
Uttam v. Saubhag Singh (2016) 4 SCC 68 – held
inapplicable.
Mulla on Hindu Law (22nd Edition) Pg. 372 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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