ARSHNOOR SINGH versus HARPAL KAUR & ORS.

[2019] 8 S.C.R. 999

ARSHNOOR SINGH

HARPAL KAUR & ORS.

(Civil Appeal No. 5124 of 2019)

JULY 01, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Family Law – Succession under Mitakshara Law – Appellantis the great-grandson of one ‘LS’, who was the owner of large tractsof agricultural land – ‘LS’ passed away in 1951, and his entireproperty was inherited by his only son ‘IS’ – This property waspartitioned between three sons of ‘IS’ – Present matter pertains tothe property (‘suit property’) which came to the share of one of hissons viz. ‘DS’, father of the appellant – ‘DS’ had only one son, theAppellant, who was born to ‘DS’ through his 1[st] wife –’DS’purportedly sold the entire suit property to Respondent No.1 videtwo registered Sale Deeds dtd. 01.09.99 – Subsequently, ‘DS’ gotmarried to Respondent No.1– Appellant filed suit against ‘DS’ andRespondent No.1, for declaration that the suit property wascoparcenary property, and hence the two Sale Deeds in favour ofRespondent No.1 were illegal, null and void – Suit decreed in favourof the appellant – Respondent No.1 along with the subsequentpurchasers, Respondent Nos. 2 & 3 filed common appeal – Dismissed– Respondent Nos.1-3 filed second appeal – High Court allowedthe appeal – Held: In the present case, the succession opened in1951 on the death of ‘LS’, prior to the commencement of the 1956Act – Nature of the property inherited by his son ‘IS’ was coparcenary– Under Mitakshara law, whenever male ancestor inherits anyproperty from any of his paternal ancestors upto three degrees abovehim, then his male legal heirs upto three degrees below him, wouldget an equal right as coparceners in that property – Even though‘IS’ had effected partition of the coparcenary property amongst hissons in 1964, the nature of the property inherited by his sons wouldremain as coparcenary property qua their male descendants uptothree degrees below them – Property allotted to ‘DS’ in partitioncontinued to remain coparcenary property qua his son, the appellant–

AAppellant became coparcener in the suit property on his birth i.e.on 22.08.85 – Respondent No.1 failed to discharge the burden ofproving that ‘DS’ had executed the two Sale Deeds in her favourout of legal necessity or for the benefit of the estate – In fact, as perrecord, the Sale Deeds were without any consideration whatsoever– Sale Deeds dtd. 01.09.99 cancelled as being illegal, null andBvoid – Consequently, subsequent Sale Deed dtd. 30.10.07 executedby Respondent No.1 in favour of Respondent Nos.2 & 3 is hit bythe 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 –CHeld: Power of Karta to sell coparcenary property is subject tocertain restrictions viz. the sale should be for legal necessity or forthe benefit of the estate – Onus for establishing the existence oflegal necessity is on the alienee.

Doctrines – Doctrine of lis pendens – Principle of – Discussed.DAllowing the appeal, the Court

HELD:1.1 ‘IS’ had inherited the entire suit property fromhis father ‘LS’ upon his death. The succession in this case openedin 1951 prior to the commencement of the Hindu Succession Act,E1956 when ‘IS’ succeeded to his father ‘LS’s property inaccordance with the old Hindu Mitakshara law. Under Mitaksharalaw, whenever male ancestor inherits any property from any ofhis paternal ancestors upto three degrees above him, then hismale legal heirs upto three degrees below him, would get an equalright as coparceners in that property. After the Hindu SuccessionFAct, 1956 came into force, this position has undergone change.Post – 1956, if person inherits self-acquired property from hispaternal ancestors, the said property becomes his self-acquiredproperty, and does not remain coparcenary property. If successionopened under the old Hindu law, i.e. prior to the commencementGof the Hindu Succession Act, 1956, the parties would be governedby Mitakshara law. The property inherited by male Hindu fromhis paternal male ancestor shall be coparcenary property in hishands vis-à-vis his male descendants upto three degrees belowhim. 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 onthe death of ‘LS’. The nature of the property inherited by his son‘IS’ was coparcenary in nature. Even though ‘IS’ had effected apartition of the coparcenary property amongst his sons in 1964,the nature of the property inherited by ‘IS’s sons would remainas coparcenary property qua their male descendants upto threedegrees below them. In the present case, the entire property of‘LS’ was inherited by his son ‘IS’ as coparcenary property priorto 1956. This coparcenary property was partitioned between thethree sons of ‘IS’ by the court vide decree of partition dated04.11.1964. The shares allotted in partition to the coparceners,continued to remain coparcenary property in their hands qua theirmale descendants. As consequence, the property allotted to‘DS’ in partition continued to remain coparcenary property quathe Appellant. The suit property which came to the share of late‘DS’ through partition, remained coparcenary property qua hisson – the Appellant, who became coparcener in the suit propertyon 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 Karta to sell coparcenary property issubject to certain restrictions viz. the sale should be for legalnecessity or for the benefit of the estate. The onus for establishingthe existence of legal necessity is on the alienee. In the presentcase, the onus was on the alienee i.e. Respondent No. 1 to provethat there was legal necessity, or benefit to the estate, or thatshe had made bona fide enquiries on the existence of the same.Respondent No.1 has completely failed to discharge the burdenof proving that ‘DS’ had executed the two Sale Deeds dated01.09.1999 in her favour out of legal necessity or for the benefitof the estate. In fact, it has come on record that the Sale Deedswere without any consideration whatsoever. ‘DS’ had deposedbefore the Trial Court that he sold the suit property toRespondent No.1 without any consideration. Respondent No.1had also admitted before the Collector, Ferozepur that the SaleDeeds were without consideration. Hence, the ground of legalnecessity or benefit of the estate falls through. As consequence,

Athe Sale Deeds dated 01.09.1999 are hereby cancelled as beingillegal, null and void. ‘DS’ could not have sold the coparcenarysuit property, in which the Appellant was coparcener, by theaforesaid alleged Sale Deeds. [Paras 8-8.4] [1014-B, G;1015-A-D]B1.4 Since Respondent No. 1 has not obtained valid andlegal title to the suit property through the Sale Deeds dated01.09.1999, she could not have passed on better title toRespondent Nos. 2 & 3 either. The subsequent Sale Deed dated30.10.2007 executed by Respondent No.1 in favour of RespondentNos. 2 & 3 is hit by the doctrine of lis pendens. The underlyingCprinciple of the doctrine of lis pendens is that if property istransferred pendente lite, and the transferor is held to have noright or title in that property, the transferee will not have anytitle to the property. The Sale Deed dated 30.10.2007 executedby Respondent No.1 in favour of Respondent Nos.2 & 3 beingDnull and void, is hereby cancelled. The Appellant being malecoparcener in the suit property, was vitally affected by thepurported sale of the suit property by his father. The Appellanttherefore had the locus to file the Suit for Declaration that thesuit property being coparcenary property, could not have beensold by his father without legal necessity, or for the benefit of theEestate. The very fact that the Sale Deeds dated 01.09.1999 wereexecuted without any consideration, would itself show that thesuit property was sold without any legal necessity. Beingcoparcenary property, it could not have been sold without legalnecessity, or for the benefit of the estate. Judgment passed byFthe Single Judge of the High Court vide the Impugned Orderdated 13.11.2018, being contrary to law, is set aside. The SaleDeeds dated 01.09.1999 executed by ‘DS’ in favour ofRespondent No. 1 are hereby cancelled and set aside.Consequently, the subsequent Sale Deed dated 30.10.2007executed by Respondent No.1 in favour of Respondent Nos. 2 &G3 during the pendency of proceedings is illegal, and herebycancelled and set aside. The name of the Appellant is to berecorded 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. AshokKumar (1987) 1 SCC 204 : [1987] 1 SCR 516 ;Valliammai Achi v. Nagappa Chettiar and Ors. AIR 1967SC 1153 : [1967] SCR 448 ; Rani & Anr. v. Santa BalaDebnath & 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 – heldinapplicable.

Mulla on Hindu Law (22[nd] Edition) Pg. 372 – referredto.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5124of 2019.

From the Judgment and Order dated 13.11.2018 of the High Courtof Punjab and Haryana at Chandigarh in RSA No. 1354 of 2014.

Manoj Swarup, Sr. Adv., Ankit Swarup, Dr. Mansi Jain,Ms. Vidisha Swarup, Advs. for the Appellant.

Anuj Bhandari, Abhinav Srivastava, Siddhartha Jha, Advs. forthe Respondents.

AThe Judgment of the Court was delivered by

INDU MALHOTRA, J. Leave granted.

1. The present Civil Appeal has been filed to challenge the Orderdated 13.11.2018 passed in RSA No. 1354 of 2014 by the Punjab &Haryana High Court at Chandigarh.B

2. The background facts in which the present Civil Appeal hasbeen filed are briefly stated as under:

2.1.Lal Singh was the owner of large tracts of agricultural landin Village Khangarh, District Ferozepur, Punjab. TheAppellant herein is the great-grandson of Lal Singh.

The genealogy table of Lal Singh’s family is set out hereinbelowfor the sake of convenience:

Arshnoor Singh (Appellant)

2.2.Lal Singh passed away in 1951, and his entire property wasinherited by his only son Inder Singh. In 1964, Inder SinghFduring his lifetime, effected partition of the entire propertyvide decree dated 04.11.1964 passed in Civil Suit No. 182of 4.11.1962 between his three sons viz. Gurcharan Singh,Dharam Singh, and Swaran Singh in equal shares.

Thereafter, the three sons transferred one-fourth sharein the entire property back to their father Inder Singh forhis sustenance. As consequence, Inder Singh and his threesons held one-fourth share each in the property.

Inder Singh expired on 15.04.1970, and his one-fourthshare was inherited by his heirs i.e. his widow, three sons,and his daughter.

2.3.The present matter pertains to the property which came tothe share of one of his sons viz. Dharam Singh (hereinafterreferred to as the “suit property”), which was agriculturalland comprised of about 119 kanals 2 marlas, situated inVillage Khangarh, District Feozepur, Punjab.

2.4.Dharam Singh had only one son viz. Arshnoor Singh – theAppellant herein. The Appellant was born on 22.08.1985to Dharam Singh through his 1[st] wife.

2.5.Dharam Singh purportedly sold the entire suit property toRespondent No. 1 viz. Harpal Kaur vide two registeredSale Deeds dated 01.09.1999 for an ostensible saleconsideration of Rs. 4,87,500/-.

The first Sale Deed bearing Wasika No. 1075 pertainsto land admeasuring 59 kanals 11 marlas situated in KhasraNo. 35; the second Sale Deed bearing Wasika No. 1079pertains to land admeasuring 59 kanals 11 marlas in KhasraNo. 36.

2.6.On 21.09.1999, the two Sale Deeds were sent by the SubRegistrar to the Collector, Ferozepur for action u/S. 47A ofthe Indian Stamp Act, 1999 as the Sale Deeds wereundervalued.

Dharam Singh and Respondent No. 1 – Harpal Kaurappeared before the Collector. Dharam Singh admitted thatno consideration was exchanged in lieu of the two SaleDeeds, and the amount of Rs. 4,87,500/- was mentionedonly for the purpose of registration.

Respondent No. 1 – Harpal Kaur, the purported vendee,admitted that no money was paid by her to Dharam Singhin exchange for the suit property.

2.7.Subsequently, on 29.09.1999, Dharam Singh got married toRespondent No. 1.

The Collector, Ferozepur vide Order dated 24.01.2000,held that the two Sale Deeds executed by Dharam Singh infavour of Respondent No. 1 were without any monetarytransaction.

2.8.The Appellant became major on 22.08.2003.

On 23.11.2004, the Appellant filed Suit for Declarationagainst his father Dharam Singh as Defendant No. 1, andHarpal Kaur as Defendant No. 2 (Respondent No. 1 herein)for declaration that the suit property was coparcenaryproperty, and hence the two Sale Deeds dated 01.09.1999executed by his father Dharam Singh in favour ofRespondent No. 1 herein were illegal, null and void. TheAppellant further prayed for permanent injunctionrestraining Respondent No. 1 from further alienating,transferring, or creating charge on the suit property.

2.9.During the pendency of the Suit, Respondent No. 1 enteredinto transaction whereby she purportedly sold the suitproperty jointly to Respondent Nos. 2 & 3 viz. KulwantSingh and Jung Bahadur vide Sale Deed dated 30.10.2007.

Respondent No. 1 filed an Application to ImpleadRespondent Nos. 2 & 3 as co-defendants in the Suit.However, the said Application was disposed of vide Orderdated 25.09.2010, with liberty granted to RespondentNo. 1/Defendant No. 2 to defend their rights.

2.10. The Additional Civil Judge, Ferozepur vide Order dated29.04.2011, decreed the Suit in favour of the AppellantPlaintiff.

Dharam Singh in his deposition had stated that heexecuted the Sale Deeds without any monetaryconsideration since Respondent No. 1 insisted on transferof the suit property in her name as pre-condition formarriage.

The Trial Court held that the suit property was ancestralcoparcenary property of Dharam Singh and the Appellant.Respondent No. 1 failed to prove that Dharam Singh hadsold the suit property to Respondent No. 1 for either legalnecessity of the family, or for the benefit of the estate.Consequently, the two Sale Deeds dated 01.09.1999purportedly executed by Dharam Singh in favour ofRespondent No. 1/Defendant No. 2 were illegal, null and

void. The Appellant was held entitled to joint possession ofthe suit property with his father.

2.11. Respondent No. 1 along with the subsequent purchasers –Respondent Nos. 2 & 3 filed common Civil Appeal RBTNo. 130 of 3.6.2011/7.9.2013 before the Additional DistrictJudge, Ferozepur.

The ADJ vide Judgment & Order dated 13.01.2014dismissed the Appeal. The Appellate Court held that thetwo Sale Deeds dated 01.09.1999 were executed withoutany consideration as per the admission of Dharam Singh,and Respondent No. 1 in their statements recorded by theCollector, Ferozepur.

In the absence of any legal necessity, or benefit to theestate of the joint Hindu family, the Sale Deeds dated01.09.1999 were illegal, null and void.

2.12. Aggrieved by the aforesaid Order, Respondent Nos. 1, 2 &3 filed RSA No. 1354 of 2014 before the Punjab & HaryanaHigh Court.

2.13. During the pendency of the Regular Second Appeal beforethe High Court, Dharam Singh expired on 05.01.2017.

2.14. The High Court vide the impugned Judgment & Order dated13.11.2018, allowed the RSA filed by the Respondents, andset aside the concurrent findings of the courts below.

The High Court held that (i) the Appellant had no locusto institute the Suit, since the coparcenary property ceasedFto exist after Inder Singh partitioned the property betweenhis 3 sons in 1964; (ii) the Appellant had no right to challengethe Sale Deeds executed on 01.09.1999 on the ground thatthe sale consideration had not been paid, since only theexecutant of the Sale Deeds viz. Dharam Singh (DefendantNo. 1) could have made such challenge; and (iii)GJamabandis for the years 1957 – 58 till 1970 – 71 were notproduced by the Appellant.

2.15. Aggrieved by the impugned Judgment & Order dated13.11.2018 passed by the High Court, the Appellant hasfiled the present Civil Appeal.

A3. We have heard learned Counsel for the parties, and perusedthe pleadings and written submissions filed by the parties.

4. Mr. Manoj Swarup, Senior Counsel appearing on behalf of theAppellant, submitted that the suit property was coparcenary property inwhich the Appellant had become coparcener by birth.B

It was further submitted that since the suit property wascoparcenary property, Dharam Singh could not have alienated it withoutlegal necessity of the family, or benefit to the estate.

It was further submitted that the Sale Deed dated 30.10.2007purportedly executed by Respondent No. 1 in favour of RespondentCNos. 2 & 3, during the pendency of the Suit, was hit by lis pendens.Hence, it was illegal, null and void.

5. Mr. Ritin Rai, Senior Counsel appearing for the Respondentssubmitted that the Civil Suit was filed by the Appellant in collusion withhis father Dharam Singh (Defendant No. 1), as Dharam Singh’s marriageDwith Respondent No. 1 had fallen apart, and had subsequently beendissolved through decree of divorce on 15.12.2010. It was contendedthat the Civil Suit was filed by the Appellant at the behest of his fatherDharam Singh.

It was further submitted that the suit property was not coparcenaryEproperty when the two Sale Deeds were executed on 01.09.1999. InderSingh’s property ceased to be coparcenary property after it was dividedvide the decree dated 04.11.1964. Reliance was placed on the decisionof this Court in Uttam v. Saubhag Singh,[1]wherein it was held that:

“18. Some other judgments were cited before us for theFproposition that joint family property continues as such evenwith sole surviving coparcener, and if son is born to suchcoparcener thereafter, the joint family property continues assuch, there being no hiatus merely by virtue of the fact thereis sole surviving coparcener. Dharma Shamrao Agalawe v.Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela DeviGv. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v.Surinder Singh (2013) 9 SCC 419, were cited for this purpose.None of these judgments would take the appellant any furtherin view of the fact that in none of them is there anyconsideration of the effect of Sections 4, 8 and 19 of the

Hindu Succession Act. The law, therefore, insofar as it appliesto joint family property governed by the Mitakshara School,prior to the amendment of 2005, could therefore besummarized as follows:

(vi) On conjoint reading of Sections 4, 8 and 19 of the Act,after joint family property has been distributed in accordancewith section 8 on principles of intestacy, the joint familyproperty ceases to be joint family property in the hands ofthe various persons who have succeeded to it as they holdthe property as tenants in common and not as joint tenants.”

It was further submitted that the Appellant had no locus to file theCivil Suit on the ground that no sale consideration was paid by RespondentNo. 1 to Dharam Singh. The Appellant was not party to the SaleDeeds, and only the executant of the Sale Deeds viz. Dharam Singh,could have filed such suit.

6. The issues that arise for consideration before us are two-fold:(i) whether the suit property was coparcenary property or self-acquiredproperty of Dharam Singh; (ii) the validity of the Sale Deeds executedon 01.09.1999 by Dharam Singh in favour of Respondent No. 1, and thesubsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1in favour of Respondent Nos. 2 & 3.

7. With respect to the first issue, it is the admitted position thatInder Singh had inherited the entire suit property from his father LalSingh upon his death. As per the Mutation Entry dated 16.01.1956produced by Respondent No. 1, Lal Singh’s death took place in 1951.Therefore, the succession in this case opened in 1951 prior to thecommencement of the Hindu Succession Act, 1956 when Inder Singhsucceeded to his father Lal’s Singh’s property in accordance with theold Hindu Mitakshara law.

7.1.Mulla in his commentary on Hindu Law (22[nd] Edition) hasstated the position with respect to succession underMitakshara law as follows:

Page 129

“A son, grandson whose father is dead, and great-grandson whose father and grandfather are both dead,

succeed simultaneously as single heir to the separate-or selfacquired property of the deceased with rights ofsurvivorship.”

Page 327

“All property inherited by male Hindu from his father,father’s father or father’s father’s father, is ancestralproperty. The essential feature of ancestral propertyaccording to Mitakshara law is that the sons, grandsons-and greatgrandsons of the person who inherits it,acquire an interest, and the rights attached to suchproperty at the moment of their birth.

person inheriting property from his three immediatepaternal ancestors holds it, and must hold it, incoparcenary with his sons, son’s sons, and son’s son’ssons, but as regards other relations, he holds it, and isentitled to hold it as his absolute property.”

(emphasis supplied)

7.2.In Shyam Narayan Prasad v. Krisha Prasad & Ors.,[2]this Court has recently held that :

“12. It is settled that the property inherited by maleEHindu from his father, father’s father or father’s father’sfather is an ancestral property. The essential feature ofancestral property, according to Mitakshara Law, is thatthe sons, grandsons, and great grandsons of the personwho inherits it, acquire an interest and the rightsFattached to such property at the moment of their birth.The share which coparcener obtains on partition ofancestral property is ancestral property as regards hismale issue. After partition, the property in the hands ofthe son will continue to be the ancestral property andthe natural or adopted son of that son will take interestGin it and is entitled to it by survivorship.”

(emphasis supplied)

2 (2018) 7 SCC 646H

[INDU MALHOTRA, J.]

7.3.Under Mitakshara law, whenever male ancestor inheritsAany property from any of his paternal ancestors upto threedegrees above him, then his male legal heirs upto threedegrees below him, would get an equal right as coparcenersin that property.

7.4.In Yudhishter v. Ashok Kumar,[3] this Court held that :

“11. This question has been considered by this Court inCommissioner of Wealth Tax, Kanpur and Ors. v.Chander Sen and Ors. [1986] 161 ITR 370 (SC) whereone of us (Sabyasachi Mukharji, J) observed that underthe Hindu Law, the moment son is born, he gets ashare in father’s property and become part of thecoparcenary. His right accrues to him not on the deathof the father or inheritance from the father but with the

very fact of his birth. Normally, therefore whenever thefather gets property from whatever source, from thegrandfather or from any other source, be it separatedproperty or not, his son should have share in that andit will become part of the joint Hindu family of his sonand grandson and other members who form joint Hindufamily with him. This Court observed that this positionhas been affected by Section 8 of the Hindu SuccessionAct, 1956 and, therefore, after the Act, when the soninherited the property in the situation contemplated bySection 8, he does not take it as Kar of his ownundivided family but takes it in his individual capacity.”

(emphasis supplied)

7.5.After the Hindu Succession Act, 1956 came into force, thisposition has undergone change. Post – 1956, if personinherits self-acquired property from his paternal ancestors,the said property becomes his self-acquired property, anddoes not remain coparcenary property.

7.6.If succession opened under the old Hindu law, i.e. prior tothe commencement of the Hindu Succession Act, 1956, theparties would be governed by Mitakshara law. The property

1012SUPREME COURT REPORTS

inherited by male Hindu from his paternal male ancestorshall be coparcenary property in his hands vis-à-vis his maledescendants upto three degrees below him. The nature ofproperty will remain as coparcenary property even afterthe commencement of the Hindu Succession Act, 1956.

7.7.In the present case, the succession opened in 1951 on thedeath of Lal Singh. The nature of the property inherited byhis son Inder Singh was coparcenary in nature. Even thoughInder Singh had effected partition of the coparcenaryproperty amongst his sons in 1964, the nature of the propertyinherited by Inder Singh’s sons would remain as coparcenaryproperty qua their male descendants upto three degreesbelow them.

7.8.The judgment in Uttam v. Saubhag Singh (supra) reliedupon by the Respondents is not applicable to the facts ofthe present case. In Uttam, the appellant therein wasDclaiming share in the coparcenary property of hisgrandfather, who had died in 1973 before the appellant wasborn. The succession opened in 1973 after the Hindu

Succession Act, 1956 came into force.

The Court was concerned with the share of theappellant’s grandfather in the ancestral property, and theimpact of Section 8 of the Hindu Succession Act, 1956. Inlight of these facts, this Court held that after property isdistributed in accordance with Section 8 of the HinduSuccession Act, 1956, such property ceases to be joint familyproperty in the hands of the various persons who havesucceeded to it. It was therefore held that the appellantwas not coparcener vis-à-vis the share of his grandfather.

7.9.In the present case, the entire property of Lal Singh wasinherited by his son Inder Singh as coparcenary propertyprior to 1956. This coparcenary property was partitionedbetween the three sons of Inder Singh by the court vide adecree of partition dated 04.11.1964. The shares allotted inpartition to the coparceners, continued to remaincoparcenary property in their hands qua their male

descendants. As consequence, the property allotted toADharam Singh in partition continued to remain coparcenaryproperty qua the Appellant.

7.10. With respect to the devolution of share acquired on partition,Mulla on Hindu Law (22[nd] Edition) states the following:

“§ 339. Devolution of share acquired on partition. –The effect of partition is to dissolve the coparcenary,with the result, that the separating members thenceforthhold their respective shares as their separate property,and the share of each member will pass on his death tohis heirs. However, if member while separating fromhis other coparceners continues joint with his own maleissue, the share allotted to him on partition, will in hishands, retain the character of coparcenary property

as regards the male issue[§ 221, sub-§ (4)].”

(emphasis supplied)

7.11. This Court in Valliammai Achi v. Nagappa Chettiar andOrs.,[4]held that:

“10. … It is well settled that the share which co-sharerobtains on partition of ancestral property is ancestralproperty as regards his male issues. They take an interestin it by birth whether they are in existence at the time ofpartition or are born subsequently: [see Hindu Law byMulla, Thirteenth Edition p. 249, para 223 (2)(4)]. Ifthat is so and the character of the ancestral propertydoes not change so far as sons are concerned evenafter partition, we fail to see how that character canchange merely because the father makes will by whichhe gives the residue of the joint family property (aftermaking certain bequests) to the son.”

(emphasis supplied)

7.12. The suit property which came to the share of late DharamSingh through partition, remained coparcenary property quahis son – the Appellant herein, who became coparcener inthe suit property on his birth i.e. on 22.08.1985.

4 AIR 1967 SC 1153

ADharam Singh purportedly executed the two Sale Deedson 01.09.1999 in favour of Respondent No. 1 after theAppellant became coparcener in the suit property.

8. The second issue which has arisen for consideration is whetherthe two Sale Deeds dated 01.09.1999 executed by Dharam Singh inBfavour of Respondent No. 1, were valid or not.

8.1.It is settled law that the power of Karta to sell coparcenaryproperty is subject to certain restrictions viz. the sale shouldbe for legal necessity or for the benefit of the estate.[5] Theonus for establishing the existence of legal necessity is onthe alienee.

In Rani & Anr. v. Santa Bala Debnath & Ors.,[6] thisCourt held that :

“10. Legal necessity to support the sale must howeverbe established by the alienees.Sarala owned the landDin dispute as limited owner. She was competent todispose of the whole estate in the property for legalnecessity or benefit to the estate. In adjusting whetherthe sale conveys the whole estate, the actual pressureon the estate, the danger to be averted, and the benefitEto be conferred upon the estate in the particular instancemust be considered. Legal necessity does not meanactual compulsion: it means pressure upon the estatewhich in law may be regarded as serious and sufficient.The onus of providing legal necessity may be dischargedby the alienee by proof of actual necessity or by proofFthat he made proper and bona fide enquires about theexistence of the necessity and that he did all that wasreasonable to satisfy himself as to the existence of thenecessity.”

(emphasis supplied)

8.2.In the present case, the onus was on the alienee i.e.Respondent No. 1 to prove that there was legal necessity,

5 Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520;Mulla on Hindu Law (22[nd] Edition), Pg. 372.H6 (1970) 3 SCC 722.

or benefit to the estate, or that she had made bona fideenquiries on the existence of the same.

8.3.Respondent No. 1 has completely failed to discharge theburden of proving that Dharam Singh had executed the twoSale Deeds dated 01.09.1999 in her favour out of legalnecessity or for the benefit of the estate. In fact, it hascome on record that the Sale Deeds were without anyconsideration whatsoever.

Dharam Singh had deposed before the Trial Court thathe sold the suit property to Respondent No. 1 without anyconsideration. Respondent No. 1 had also admitted beforethe Collector, Ferozepur that the Sale Deeds were withoutconsideration.

Hence, the ground of legal necessity or benefit of theestate falls through.

8.4.As consequence, the Sale Deeds dated 01.09.1999 arehereby cancelled as being illegal, null and void. Dharam Singhcould not have sold the coparcenary suit property, in whichthe Appellant was coparcener, by the aforesaid allegedSale Deeds.

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

The subsequent Sale Deed dated 30.10.2007 executed byRespondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by thedoctrine of lis pendens. The underlying principle of the doctrine of lispendens is that if property is transferred pendente lite, and thetransferor is held to have no right or title in that property, the transfereewill not have any title to the property.[7] The Sale Deed dated 30.10.2007executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3being null and void, is hereby cancelled.

10. The Plaintiff/Appellant being male coparcener in the suitproperty, was vitally affected by the purported sale of the suit propertyby his father Dharam Singh.

7 T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370.

AThe Appellant therefore had the locus to file the Suit for aDeclaration that the suit property being coparcenary property, could nothave been sold by his father Dharam Singh without legal necessity, orfor the benefit of the estate.

As consequence, the Appellant was entitled to move the CourtBfor Declaration that the two Sale Deeds dated 01.09.1999 executedby his father Dharam Singh in favour of Respondent No. 1 were illegal,null and void.

10.1. The very fact that the Sale Deeds dated 01.09.1999 wereexecuted without any consideration, would itself show thatCthe suit property was sold without any legal necessity. Beingcoparcenary property, it could not have been sold withoutlegal necessity, or for the benefit of the estate.

10.2. The non-production of the Jamabandis would make nodifference, as it did not affect the title/ownership of the suitDproperty.

11. In view of the aforesaid discussion on law, the judgment passedby the learned Single Judge of the High Court vide the Impugned Orderdated 13.11.2018, being contrary to law, is set aside.

The Sale Deeds dated 01.09.1999 bearing Wasika Nos. 1075 andE1079 executed by Dharam Singh in favour of Respondent No. 1 arehereby cancelled and set aside.

Consequently, the subsequent Sale Deed dated 30.10.2007executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3during the pendency of proceedings is illegal, and hereby cancelled andFset aside.

The name of the Appellant is to be recorded in the Jamabandisas the owner of the suit property.

The Civil Appeal is allowed in the aforesaid terms. All pendingApplications, if any, are accordingly disposed of.G

Ordered accordingly.

Divya Pandey