(1) AO 1145/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk APPEAL FROM ORDER NO. 1145 OF 2010 Shankar Gopaldas Jagwani .. Appellant Vs. Chandan Shankar Jagwani & Ors. .. Respondents Mr. A. V. Doijode a/w. M. Sharma for the Appellant. Ms. Harsha Y. Shah i/b. Mr. Yatin R. Shah for the Respondents. Respondent No.1 present in person. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Order : 30 th September, 2011 Date of pronouncing the Order : 7 th October, 2011 ORDER 1. The parties are father and son. The father sued the son in the Bombay City Civil Court at Mumbai restraining him from entering upon the Suit flat which stands in the name of the father. The learned Judge dismissed the Notice of Motion of the father under the impugned order dated 30th January, 2010. 2. All the facts relating to the Suit property as well as the parties are admitted except the fact of harassment of the son alleged by the father. 3. It is important to set out the admissions. (a) Defendant No.1, Chandan is the Plaintiff’s son. (2) AO 1145/10 Defendant No.1 has a son, Samarth, Defendant No.3. (b) The Plaintiff-father has another son Prakash and one daughter, Jyoti @ Neha. Prakash is settled in London. His daughter is married and settled elsewhere. (c) The Defendant lives along with the Plaintiff in the Suit flat together with his family. (d) Chandan has two children, Chirag and Mihir; the daughter has no issue. The Plaintiff, the Defendant and his son, the other son and his two children and the daughter form a HUF of seven co-parceners. (e) The flat was purchased by the father of the Plaintiff on 09.12.1950. (f) The share certificate of the Suit premises, which is a flat in the Co-operative society stands in the joint names of the Plaintiff and his wife, since deceased. (g) After the death of his father the Suit flat devolved upon the Plaintiff. (h) The Plaintiff has four sisters who released their shares in favour of the Plaintiff. 4. Since the flat was the self-acquired property of the father of the Plaintiff, it devolved by intestate succession upon his children. He had four daughters and one son. The Plaintiff was the only son. The four daughters released their share in the estate of their father in favour of their brother, the Plaintiff. That is how the Plaintiff inherited the Suit flat by way of intestate succession from his (3) AO 1145/10 father under Section 8 of the Hindu Succession Act. However the share certificate shows the joint names of the Plaintiff and his wife from 10.04.2003 when the flat was transferred to their names. Hence the name of the wife is seen to be added not upon payment of consideration as a joint owner with the Plaintiff; It is added for the sake of convenience. 5. She has since expired. The husband, who is the first holder continues to hold the flat singly. 6. Upon the aforesaid admitted facts the Plaintiff claims full ownership of the flat and seeks to oust the Defendant, his son. 7. The Defendant claims his rights in the flat under two contradictory pleas; he claims as one of the beneficiaries of his mother as a joint owner of the Suit flat. He also claims as a coparcener upon the premise that the flat is coparcenary property. Both these cases are questions of law and have to be seen upon the aforesaid admitted facts. 8. A joint Hindu family consists of all persons lineally descended from a common ancestor including wives and unmarried daughters. In a Hindu family, the fact that it is joint is presumed. The members of a joint Hindu family constitute a Hindu coparcenary. In Mulla’s Hindu Law, Volume-1, 18th Edition of S.A. Desai in paragraph 213 at page 367 a Hindu coparcenary is (4) AO 1145/10 explained thus: 213. HINDU COPARCENARY A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. Hence a coparcenary consists of four generations including the propositus. After the amendment to Section 6 of Hindu Succession Act by the Hindu Succession (Amendment) Act 39 of 2005 which came into effect from 09.09.2005, a daughter is also included in a Hindu coparcenary and becomes a coparcener by virtue of her birth. Consequently not only the sons, grand sons and great grand sons would form a coparcenary but all the children, grand children and the great grand children would form a Hindu coparcenary. 9. The property of a Hindu coparcenary would devolve by survivorship upon the other members of the coparcenary upon the death of a coparcener; it would not devolve by succession. However a self-acquired property of a member would devolve by succession under Section 8 of the Hindu Succession Act. That is how the self-acquired property of the father of the Plaintiff devolved upon him by intestate succession upon his sisters releasing their shares. It would have to be seen whether the title to the property succeeded to the Plaintiff or whether the Plaintiff (5) AO 1145/10 only had a devolution of the coparcenary interest in the property upon the death of his father. The Plaintiff became the sole owner to the exclusion of his sisters. Of course, he became the owner along with his wife. Neither the Plaintiff nor the wife paid any consideration for the flat. The Plaintiff succeeded to the property upon the intestacy of his father. His wife did not succeed to the property at all; she was not the heir of the Plaintiff’s father. She did not even purchase the Suit flat jointly with the Plaintiff; she did not contribute any consideration for the acquisition of the Suit flat. Hence her name was added only for the sake of convenience. 10. The next aspect to consider is whether the Suit property becomes the ancestral property of the Plaintiff and if it is the ancestral property, what would be the result. Mulla’s Hindu Law on the aforesaid page shows the formation of the coparcenary thus : To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father’s father or father’s father’s father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owners or coparceners with him. They become entitled to it due to their birth. (6) AO 1145/10 11. The Suit flat is, therefore, stated to be the ancestral property of the Plaintiff. The son, therefore, claims an interest in it. That is coparcenary interest. He has claimed that interest along with his brother and sister as also the Plaintiff. He would be a member of an undivided Hindu family. He would get a separate interest in the Suit flat upon claiming partition. The other members of the coparcenary would have a similar interest. They could also similarly claim partition. Their children, if any, would also be coparceners. The Plaintiff’s sisters would also be a coparceners pursuant to the amendment to Section 6 of the Hindu Succession Act under the Amendmend Act 39 of 2005 which came into effect on 09.09.2005 as a coparcenary. The shares of all these coparceners would be equal. This would comprise of three generations of coparcenary. 12. Mulla’s Hindu Law, Volume-1, 18th Edition of S. A. Desai in paragraph 223 at page 380 sets out the incidents of ancestral property thus : (1) Property inherited from paternal ancestor.- All property inherited by a male Hindu from his father, father’s father or father’s father’s father, is 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, acquires an interest, and the rights attached to such property at the moment of their birth. Thus, if A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’s father, it is ancestral (7) AO 1145/10 property as regards his male issue. 13. In the case of Commissioner of Income-Tax, Gujarat-I Vs. Dr. Babubhai Mansukhbhai (1977) 108 ITR 417, to which my attention has been drawn by Counsel on behalf of the son, it is also held that where son inherited the self-acquired property of his father, the son takes it as joint family property of himself and his son and not as his separate property. Consequently it was held that the assessment of the son to Income Tax in respect of such property would be representing his HUF. 14. However the son has also taken an entirely contradictory plea. That is the plea upon the intestate succession of his mother. Upon the aforesaid fact it can be seen that his mother had not acquired any part of the Suit flat herself by payment of any consideration. Her name was added only for the sake of convenience. 15. However the Defendant son claims to succeed to the share of his mother by intestate succession under Section 15(1)(a) of the Hindu Succession Act. He would share in the property along with his brother, sister and the Plaintiff. Each would then have 1/4th share in the 50% share of his mother at best. 16. Upon the aforesaid contradictory pleas, the Plaintiff father, who is the Appellant herein, has offered to pay his son or deposit in Court 1/8th of the (8) AO 1145/10 value of the Suit flat to claim the relief sought by him in his Notice of Motion. 17. It can be seen that upon the intestate succession of his mother, the son would be entitled to 1/8th of the Suit flat. 18. Whilst considering this question of law upon the aforesaid admitted facts, the question of harassment or lack of harassment becomes wholly redundant. Aside from denying the harassment, the son has not shown any malafides or collusion on the part of the father; he has only contended that the father is a drunkard. Of course, judicial notice is required to be taken of the fact that an old father would not sue his son for an injunction restraining him from entering into his flat unless there is a certain element of harassment. 19. Even the learned Judge in the impugned order has considered both the aforesaid contradictory pleas of the son but has not made any reference to any case of malafides or collusion even prima facie shown by the son or even alleged by him. 20. The Notice of Motion has been disposed of under the impugned order. Written Statement has been filed. The trial has to commence. I am told that it is not commenced in view of the pendency of this Appeal. I do not see any reason why it should not (9) AO 1145/10 have commenced and even concluded in the normal course. No stay of the trial has been applied for or granted. In fact, it is seen that oral evidence at least for the above mentioned facts is not even necessary to determine the legal rights of the parties in the Suit property. 21. Consequent upon the query of the Court the Plaintiff’s Counsel has produced the reasonable market value of the Suit flat as reflected in the ready reckoner. The Respondent’s Counsel has not shown any other market value. The Respondent son has not sued for partition or for administration of the estate of his deceased mother upon which he claims a share in the Suit premises. It would be for the Plaintiff father to work out and pay off the share of the Defendant son to be able to obtain the relief claimed in the Suit. 22. The trial, with regard to the necessary disputed facts, if any, shall proceed by way of oral evidence. The trial Judge shall consider the legal rights of the parties as per law to determine other final entitlement. 23. With these observations, the Appeal is dismissed. (ROSHAN DALVI, J.)