Following the succession rule of Mitakshara as under Hindu Succession Act 1956, that 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, the Supreme Court recently followed this in recent judgment.
The bench comprising of Justices U U Lalit and Indu Malhotra in a case allowed appeal with regard to same. In that case one Arshnoor Singh filed an appeal to set aside a sale deed executed by his father Dharma Singh in 1999. The sale deed was done by Dharam Singh in favor of his second wife Harpal Kaur, who is respondent to suit. The property of Dharam Singh was inherited by him from his father in Inder Singh in 1964 as per partition deed and by Inder Singh through his father Lal Singh in 1951.
Arshnoor Singh attained majority in 2003 and thus challenged the sale deed by filing a suit in 2004. It was put forth by him that his father received the property was coparcenary, as it was transferred to him from his father without any legal necessity and without receiving any consideration from the respondent.
The trial courts decreed the suit. This was confirmed in appeal filed by respondent. It was held by Punjab and Haryana High Court that in 1964 when Inder Singh executed partition deed the property ceased to be coparcenary and hence the appeal filed by Arshnoor was set aside by reasoning that he had no locus to challenge the sale deeds.
The order of High was also challenged by him before Supreme Court. The apex court held that as the succession opened in 1951 after death of Lal Singh, great grandfather of appellant, and as this was before the time when Hindu Succession Act came in force hence Mitakshara laws will apply to this case. So here property devolved from Lal Singh will be termed as coparcenary and will be alienated till three degree of male descendants below him- Inder Singh, Dharam Singh and Arshnoor Singh.
Thus , after the commencement of Hindu Succession Act,1956 the position changed and later it was the rule that if any person acquires property by himself then it will be termed as self-acquired property and it will not be considered as coparcenary.
The court further added that, in present case the succession was opened in 1951 on the death of Lal Singh and later Inder Singh affected partition amongst his sons but nature of property remained the same as coparcenary property qua their male descendants up to three degrees below them.
Also it was stated by court that the suit property which came to the share of late Dharam Singh through partition was coparcenary and will remain the same as his son Arshnoor Singh, who became a coparcener in the suit property on his birth.
The respondent stated the case of Uttam vs. Saubhag Singh (2016) 4 SCC 68, in which it was held that after partition, property will lose character of joint family property. But the judges pointed out that succession was opted in that case after 1956.
It was brought to light by Apex Court that power of Karta to sell Coparcenary property will be subject to certain restrictions such as it must be done only for legal necessity or for benefit of estate.
In the present case it was found out that the deed which was executed by Dharam Singh to his second wife had no monetary consideration.
The court finally held that, in the sale deed dated 01.09.1999, it was done without any legal consideration which clears the fact that the sale was not done for any legal necessity and as it was a coparcenary property it must have done only for legal necessity or for benefit of estate. And hence appeals were allowed.
Courtesy/By: Renu Kathale
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04 Jul 2019
