Saturday, September 26, 2009

Bhanwar Singh Versus Puran & Ors

HELD: 1. S. 6 of the Hindu Succession Act, 1956, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. S.8 of the Act lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included. S.19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants. [Para 11] [780-F, G; 781-A]

2.1. In terms of s.8 of the Act, the properties of the Appellant's paternal grandfather devolved upon Appellant's father and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record of rights. A partition had taken place amongst the heirs of the paternal grandfather of Appellant. [Para 12] [781-A, B]

2.2. Although the First Appellate Court proceeded to consider the effect of s.6 of the Act, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to s.8 as also s.19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of the Appellant's paternal grandfather would succeed to his interest as tenants in common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue. [Para 13] [781-B, C, D]

2.3. The first Court of Appeal also entered into the question of legal necessity for Appellant's father to alienate the property in favour of the contesting respondents but the said issue was considered in the alternative to the principal issue. If the First Appellate Court was correct in its opinion and there is no reason to differ therewith that s.6 of the Act was not attracted to the facts of this case, in view of the fact that Appellant's father and his sisters having partitioned their properties became owners to the extent of 1/4th share each, he had the requisite right to transfer the lands falling within his share. [Para 17] [785-D, E, F]

2.4. Furthermore, in terms of s.19 of the Act, as Appellant's father and his sisters became tenants in common and took the properties devolved upon them per capita and not per stirpes, each one of them was entitled to alienate their share, particularly when different properties were allotted in their favour. [Para 18] [785-G]

Sheela Devi & Ors. v. Lal Chand & Anr. (2006) (8) SCC 581 - held inapplicable.

Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen & Ors. (1986) 3 SCR 254; Yodhishter v. Ashok Kumar (1987) 1 SCR 516 at 523; Sunderdas Thackersay & Bros. v. Commissioner of Income-tax (1982) 137 ITR 646; Commissioner of Income Tax v. P.L. Karuppan Chettiar (1993) Supp.1 SCC 580; Additional Commissioner of Income-tax v. M. Karthikeyan (1994) Supp.2 SCC 112 - relied on.

Commissioner of Income-tax, Gujarat-I v. Babubhai Manshkhbhai (Deceased) 108 ITR 417 - referred to.

Subject
Hindu Succession Act, 1956 - ss.8, 19 & 6 - Property owned by Appellant's paternal grandfather - He died in 1972 - Partition between Appellant's father and his three sisters - Mutation in revenue records of 1973-74 - Each taking ,th share - Appellant born in 1977 - Alienations made by Appellant's father in favour of Respondents, firstly by way of mortgage and then by sale, in 1985 - Challenge to, by Appellant - Held: Having regard to s.8 as also s.19, the property ceased to be joint family property and all heirs and LRs of Appellant's paternal grandfather succeeded to his interest as tenants in common and not as joint tenants - The joint coparcenary did not continue - Appellant's father had the requisite right to transfer lands falling within his share.

The paternal grandfather of Appellant was the original owner of the property in question. He died in the year 1972, pursuant to which the said property was partitioned between Appellant's father and his three sisters. Their names were mutated in the revenue records of 1973-74 wherein their shares were shown to be ,th each. Appellant was born in the year 1977. His father made certain alienations, firstly by way of mortgage and thereafter by sale, in favour of the Respondents in the year 1985. Appellant filed suit challenging the said alienations on the ground that the property in question was a joint family property and the said alienations were not made for legal necessity. Trial Court decreed the suit. The First Appellate Court reversed the judgment holding that upon death of the original owner, Appellant's father became a co-sharer of the property and having regard to the entries of the jamabandi, it had been established that he, along with his sisters, having inherited the same in equal shares, the property lost the character of ancestral property in terms of s.8 of the Hindu Succession Act, 1956. The Court held that in any event, the Deed of Sale executed by Appellant's father having been executed for legal necessity as the suit property had already been mortgaged, the deeds of sale could not have been cancelled. Second appeal filed before the High Court was dismissed. Hence the present appeal.

Citation: 2008 AIR 1490, 2008(2   )SCR775 , 2008(3   )SCC87  , 2008(2   )SCALE355 , 2008(2   )JT486 

CASE NO.:
Appeal (civil)  1233 of 2008

PETITIONER:
Bhanwar Singh

RESPONDENT:
Puran & Ors

DATE OF JUDGMENT: 12/02/2008

BENCH:
S.B. Sinha & V.S. Sirpurkar

JUDGMENT:
J U D G M E N T

CIVIL APPEAL NO.     1233           OF 2008
(Arising out of SLP (C) No.9503 of 2007)


S.B. Sinha, J.


1.    Leave granted.
2.    Applicability of Section 8 of the Hindu Succession Act, 1956 (the
Act) to the facts of the present case is in question in this appeal which arises
out of a judgment and order dated 14.11.2006 passed by a learned Single
Judge of the Punjab and Haryana High Court whereby and whereunder the
second appeal preferred by the appellant herein was dismissed.
3.    One Bhima was the owner of the property.  He died in the year 1972
leaving behind his son, Sant Ram and three daughters, Shanti, Manti and
Shakuntala.  Appellant, who is son of Sant Ram was born in the year 1977. 
He attained majority in the year 1995.  The properties in suit were
partitioned between Sant Ram and his sisters.  Their names were mutated in
the revenue records of rights.  Their shares in the properties of the deceased
Bhima were shown to be 1/4th each in the revenue records of 1973-74. 
4.    Inter alia, on the premise that the properties of Bhima were joint
family properties and the same were transferred by Sant Ram, firstly by way
of mortgage and thereafter by sale in favour of the respondents herein in the
year 1985, the appellant filed a suit for setting aside the said alienations. It
was  contended that the consideration for the said transaction being a meager
sum of Rs.12,000/- and furthermore being not for legal necessity, the same
should be set aside. 
5.    The said suit was decreed by the learned Trial Judge holding that the
property was joint family one and Sant Ram being the 'Karta', could not
have transferred the same, save and except by way of legal necessity.  The
learned First Appellate Court, however, reversed the same findings, inter
alia, holding that upon the death of Bhima, Sant Ram became a co-sharer of
the property and having regard to the entries of the jamabandi for the year
1973-74, it had been established that he, along with his sisters, having
inherited the same in equal shares, the property lost the character of ancestral
property in terms of Section 8 of the Hindu Succession Act. 
6.    It was furthermore opined that even if the property was a joint
property, the interest of Sant Ram being 1/4th in the half share therein and
the other half of Bhima having been inherited by Sant Ram and his sisters,
the disputed property ceased to be a Hindu Undivided Family Property.  In
any event, the Deed of Sale executed by Sant Ram having been executed for
legal necessity as the suit property had already been mortgaged, the deeds of
sale could not have been cancelled. 
A limited notice was issued by this Court as to whether the father of
the petitioner had inherited the property from his forefathers. 
7.    Mr. Gagan Gupta, learned counsel appearing on behalf of the
appellant, would submit that the Appellate Court as also the High Court
committed a serious error in so far as they failed to take into consideration
the well settled principles of Hindu Law that transfer made by the father
after the birth of the son would be held to be illegal unless legal necessity
therefor is proved, as such transactions could be entered into by the manager
or karta of the family only for legal necessity and for no other.  The
Appellate Court, it was contended, committed a serious error in so far as it
proceeded to hold that the property in question became separate property at
the hands of Sant Ram, but, despite the same, it proceeded to determine the
question of legal necessity also.  It was furthermore submitted that only
because some entries have been made in the record of rights, the same by
itself would not lead to deprivation of the title in the property in the
appellant.
8.    Mr. Manoj Swarup, learned counsel appearing on behalf of the
respondents, on the other hand, would submit that in view of Section 8 of the
Hindu Succession Act, as the son of Bhima and his daughters inherited his
property and not the appellant as a grandson, the impugned judgment is
unassailable.
9.    The fact that the property at one point of time was a joint family
property stands admitted. 
10.    The only question arises for consideration is as to whether the
appellant had acquired any interest therein by his birth in the year 1977;
Bhima having died in 1972. 
11.    The Act brought about a sea change in the matter of inheritance and
succession amongst Hindus.  Section 4 of the Act contains a non-obstente
provision in terms whereof any text, rule or interpretation of Hindu Law or
any custom or usage as part of that law in force immediately before the
commencement of the Act, ceased to have effect with respect to any matter
for which provision is made therein save as otherwise expressly provided. 
Section 6 of the Act, as it stood at the relevant time, provided for
devolution of interest in the coparcenary property.  Section 8 lays down the
general rules of succession that the property of a male dying intestate
devolve according to the provisions of the Chapter as specified in clause (1)
of the Schedule.  In the Schedule appended to the Act, natural sons and
daughters are placed in Class-I heirs but a grandson, so long as father is
alive, has not been included.  Section 19 of the Act provides that in the event
of succession by two or more heirs, they will take the property per capita and
not per stirpes, as also tenants-in-common and not as joint tenants. 
12.    Indisputably, Bhima left behind Sant Ram and three daughters.  In
terms of Section 8 of the Act, therefore, the properties of Bhima devolved
upon Sant Ram and his three sisters.  Each had 1/4th share in the property. 
Apart from the legal position, factually the same was also reflected in the
record of rights.  A partition had taken place amongst the heirs of Bhima.
13.    Although the learned First Appellate Court proceeded to consider the
effect of Section 6 of the Act, in our opinion, the same was not applicable in
the facts and circumstances of the case.  In any event, it had rightly been
held that even in such a case, having regard to Section 8 as also Section 19
of the Act, the properties ceased to be joint family property and all the heirs
and legal representatives of Bhima would succeed to his interest as tenants
in common and not as joint tenants.  In a case of this nature, the joint
coparcenary did not continue.
14.    Interpretation of Section 8 of the Hindu Succession Act came up for
consideration before this Court in Commissioner of Wealth Tax, Kanpur &
Ors. v. Chander Sen & Ors. [(1986) 3 SCR 254].  Mukherjee, J. (as the
learned Chief Justice then was) upon considering the changes effected by the
Hindu Succession Act as also the implication thereof and upon taking into
consideration the decisions of Calcutta High Court, Madhya Pradesh High
Court, Andhra Pradesh High Court as also Madras High Court on the one
hand and the Gujarat High Court on the other, opined :
"In view of the preamble to the Act, i.e., that to
modify where necessary and to codify the law, in
our opinion it is not possible when Schedule
indicates heirs in class I and only includes son and
does not include son's son but does include son of
a predeceased son, to say that when son inherits
the property in the situation contemplated by
Section 8 he takes it as karta of his own undivided
family. The Gujarat High Court's view noted
above, if accepted, would mean that though the son
of a predeceased son and not the son of a son who
is intended to be excluded under Section 8 to
inherit, the latter would by applying the old Hindu
law get a right by birth of the said property
contrary to the scheme outlined in Section 8.
Furthermore as noted by the Andhra Pradesh High
Court that the Act makes it clear by Section 4 that
one should look to the Act in case of doubt and not
to the pre-existing Hindu law. It would be difficult
to hold today the property which devolved on a
Hindu under Section 8 of the Hindu Succession
would be HUF in his hand vis-a-vis his own son;
that would amount to creating two classes among
the heirs mentioned in class I, the male heirs in
whose hands it will be joint Hindu family property
and vis-a-vis son and female heirs with respect to
whom no such concept could be applied or
contemplated. It may be mentioned that heirs in
class I of Schedule under Section 8 of the Act
included widow, mother, daughter of predeceased
son etc.
Before we conclude we may state that we
have noted the obervations of Mulla's Commentary
on Hindu law 15th Edn. dealing with Section 6 of
the Hindu Succession Act at page 924-26 as well
as Mayne's on Hindu Law, 12th Edition pages 918-
919.
The express words of Section 8 of The
Hindu Succession Act, 1956 cannot be ignored and
must prevail. The preamble to the Act reiterates
that the Act is, inter alia, to 'amend' the law, with
that background the express language which
excludes son's son but included son of a
predeceased son cannot be ignored."

15.    The Gujarat High Court in Commissioner of Income-tax, Gujarat-I v.
Babubhai Manshkhbhai (Deceased) [108 ITR 417], however, it may be
noticed, had taken the view that in the case of the Hindus governed by
Mitakshara law, where a son inherited the self- acquired property of his
father, he took it as a joint family property of himself and his son and not as
his separate property.  The said view, as indicated hereinbefore was not
accepted by this Court. 
The principle evolved in Chander Sen (supra) was reiterated by this
Court in Yodhishter v. Ashok Kumar [(1987) 1 SCR 516 at 523]; Sunderdas
Thackersay & Bros. v. Commissioner of Income-tax [1982 (137) ITR 646];
Commissioner of Income Tax v. P.L. Karuppan Chettiar [1993 Supp.(1)
SCC 580]; and  Additional Commissioner of Income-tax v. M. Karthikeyan
[1994 Supp.(2) SCC 112].
In Yodhishter (supra), this Court observed:
"This question has been considered by this
Court in Commissioner of Wealth Tax, Kanpur
and Ors. v. Chander Sen and Ors. [(1987) 1 SCR
516] where one of us (Sabyasachi Mukharji, J)
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."

16.    Moreover, recently in Sheela Devi & Ors. v. Lal Chand & Anr. [(2006
(8) SCC 581], a Bench of this Court of which one of us was a member, held:
"21. The Act indisputably would prevail over the
old Hindu law.  We may notice that Parliament,
with a view to confer right upon the female heirs,
even in relation to the joint family property,
enacted the Hindu Succession Act, 2005.  Such a
provision was enacted as far back in 1987 by the
State of Andhra Pradesh.  The succession having
opened in 1989, evidently, the provisions of the
Amendment Act, 2005 would have no application. 
Sub-section (1) of  Section 6 of the Act governs
the law relating to succession on the death of a
coparcener in the event the heirs are only male
descendants.  But, the proviso appended to sub-
section (1) of Section 6 of the Act creates an
exception.  First son of Babu Lal viz. Lal Chand,
was, thus, a coparcener.  Section 6 is an exception
to the general rules.  It was, therefore, obligatory
on the part of the respondent-plaintiffs to show that
apart from Lal Chand, Sohan Lal will also derive
the benefit thereof.  So far as the second son,
Sohan Lal is concerned, no evidence has been
brought on record to show that he was born prior
to coming into force of the Hindu Succession Act,
1956."

In that case, the properties in question were joint family properties. 
They were copercenars.  After the death of Tulsi Ram, Babu Ram, whose
heirs were the appellants therein, inherited 1/5th share in the property.  The
relationship between the parties was not in dispute.  Tulsi Ram was the
owner of the property. He died in the year 1889 leaving behind five sons,
namely, Waliwati, Babu Ram, Charanji Lal, Hukam Chand and Uggar Sain.
On the death of  Uggar Sain 1/20th share of Tulsi Ram was also devolved on
him. The High Court arrived at a finding of fact that the properties were
coparcenary and ancestral property.  It was held that the law which was
applicable in the case would be the one which was prevailing before coming
into force of the Hindu Succession Act and the parties would be governed
thereby under the provisions thereof.  It was in the aforementioned situation
and having regard to the fact that the succession of the property was
governed in terms of Section 6 of the Act, it was held :
"12.The principle of law applicable in this case is
that so long a property remains in the hands  of a
single person, the same was to be treated as a
separate property, and thus such a person would be
entitled to dispose of the coparcenary property as
the same were his separate property, but, if a son is
subsequently born to him or adopted by him, the
alienation whether it is by way of sale, mortgage or
gift, will nevertheless stand, for a son cannot
object to alienations so made by his father before
he was born or begotten {See C. Krishna Prasad v.
CIT [(1975 1 SCC 160]}.  But once a son is born,
it becomes a coparcenary property and he would
acquire an interest therein."
 
In that case, as noticed hereinbefore, Babu Ram had no son in the year
1922 but a son, Lal Chand, was born to him in the year 1938 and another
son, Sohan Lal, was born in 1956.  It was in the aforementioned situation,
this Court held that a joint family revived on the birth of Lal Chand.  This
Court, in that view of the matter also opined that as there was no proof as to
whether the second son was born after the coming into force of the Hindu
Succession Act, it was held that his heirs were not entitled to take the benefit
of the coparcenary interest.
Sheela Devi, therefore, is not applicable to the fact of the present case. 
17.    It is true that the first Court of Appeal also entered into the question of
legal necessity for Sant Ram to alienate the property in favour of the
contesting respondents but the said issue was considered in the alternative to
the principal issue.  If the First Appellate Court was correct in its opinion
and we do not see any reason to differ therewith that Section 6 of the Hindu
Succession Act was not attracted to the facts of this case in view of the fact
that Sant Ram and his sisters having partitioned their properties became
owners to the extent of 1/4th share each, he had the requisite right to transfer
the lands falling within his share. 
18.    Furthermore, in terms of Section 19 of the Act, as Sant Ram and his
sisters became tenants in common and took the properties devolved upon
them per capita and not per stirpes, each one of them was entitled to alienate
their share, particularly when different properties were allotted in their
favour.  It is, therefore, not correct to contend that the Court of First Appeal
arrived at a self-contradictory or inconsistent finding, as was submitted by
Mr. Gupta. 
19.    For the reasons aforementioned, there is no infirmity in the impugned
judgment.  There is no merit in the case.  It is dismissed accordingly.  In the
facts and circumstances of the case, however, there shall be no order as to
costs.

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