Case: ARSHNOOR SINGH Vs. HARPAL KAUR

2. The background facts in which the present Civil Appeal has been filed are briefly stated as under:2.1. Lal Singh was the owner of large tracts of agricultural land in Village Khangarh, District Ferozepur, Punjab. The Appellant herein is the great-grandson of Lal Singh2.2. Lal Singh passed away in 1951, and his entire property was inherited by his only son Inder Singh. In 1964, Inder Singh during his lifetime, effected a partition of the entire property vide decree dated 04.11.1964 passed in Civil Suit No. 182 of 4.11.1962 between his three sons viz. Gurcharan Singh, Dharam Singh, and Swaran Singh in equal sharesThereafter, the three sons transferred one¬fourth share in the entire property back to their father Inder Singh for his sustenance. As a consequence, Inder Singh and his three sons held one-fourth share each in the propertyInder Singh expired on 15.04.1970, and his one¬ fourth share was inherited by his heirs i.e. his widow, three sons, and his daughter2.3. The present matter pertains to the property which came to the share of one of his sons viz. Dharam Singh (hereinafter referred to as the suit property), which was agricultural land comprised of about 119 kanals 2 marlas, situated in Village Khangarh, District Feozepur, Punjab2.4. Dharam Singh had only one son viz. Arshnoor Singh – the Appellant herein. The Appellant was born on 22.08.1985 to Dharam Singh through his 1 st wife2.5. Dharam Singh purportedly sold the entire suit property to Respondent No. 1 viz. Harpal Kaur vide two registered Sale Deeds dated 01.09.1999 for an ostensible sale consideration of Rs. 4,87,500/¬The first Sale Deed bearing Wasika No. 1075 pertains to land admeasuring 59 kanals 11 marlas situated in Khasra No. 35; the second Sale Deed bearing Wasika No. 1079 pertains to land admeasuring 59 kanals 11 marlas in Khasra No. 362.6. On 21.09.1999, the two Sale Deeds were sent by the Sub-Registrar to the Collector, Ferozepur for action u/S. 47A of the Indian Stamp Act, 1999 as the Sale Deeds were undervaluedDharam Singh and Respondent No. 1 – Harpal Kaur appeared before the Collector. Dharam Singh admitted that no consideration was exchanged in lieu of the two Sale Deeds, and the amount of Rs. 4,87,500/¬ was mentioned only for the purpose of registrationRespondent No. 1 – Harpal Kaur, the purported vendee, admitted that no money was paid by her to Dharam Singh in exchange for the suit property2.7. Subsequently, on 29.09.1999, Dharam Singh got married to Respondent No. 1The Collector, Ferozepur vide Order dated 24.01.2000, held that the two Sale Deeds executed by Dharam Singh in favour of Respondent No. 1 were without any monetary transaction2.8. The Appellant became a major on 22.08.2003On 23.11.2004, the Appellant filed a Suit for Declaration against his father Dharam Singh as Defendant No. 1, and Harpal Kaur as Defendant No. 2 (Respondent No. 1 herein) for a declaration that the suit property was coparcenary property, and hence the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1 herein were illegal, null and void. The Appellant further prayed for a permanent injunction restraining Respondent No. 1 from further alienating, transferring, or creating a charge on the suit property2.9. During the pendency of the Suit, Respondent No. 1 entered into a transaction whereby she purportedly sold the suit property jointly to Respondent Nos. 2 & 3 viz. Kulwant Singh and Jung Bahadur vide a Sale Deed dated 30.10.2007Respondent No. 1 filed an Application to Implead Respondent Nos. 2 & 3 as co¬defendants in the Suit. However, the said Application was disposed of vide Order dated 25.09.2010, with liberty granted to Respondent No. 1/Defendant No. 2 to defend their rights2.10. The Additional Civil Judge, Ferozepur vide Order dated 29.04.2011, decreed the Suit in favour of the Appellant/PlaintiffDharam Singh in his deposition had stated that he executed the Sale Deeds without any monetary consideration since Respondent No. 1 insisted on transfer of the suit property in her name as a pre¬ condition for marriageThe Trial Court held that the suit property was ancestral coparcenary property of Dharam Singh and the Appellant. Respondent No. 1 failed to prove that Dharam Singh had sold the suit property to Respondent No. 1 for either legal necessity of the family, or for the benefit of the estate. Consequently, the two Sale Deeds dated 01.09.1999 purportedly executed by Dharam Singh in favour of Respondent No. 1/Defendant No. 2 were illegal, null and void. The Appellant was held entitled to joint possession of the suit property with his father2.11. Respondent No. 1 along with the subsequent purchasers – Respondent Nos. 2 & 3 filed a common Civil Appeal RBT No. 130 of 3.6.2011/7.9.2013 before the Additional District Judge, FerozepurThe ADJ vide Judgment & Order dated 13.01.2014 dismissed the Appeal. The Appellate Court held that the two Sale Deeds dated 01.09.1999 were executed without any consideration as per the admission of Dharam Singh, and Respondent No. 1 in their statements recorded by the Collector, FerozepurIn the absence of any legal necessity, or benefit to the estate of the joint Hindu family, the Sale Deeds dated 01.09.1999 were illegal, null and void2.12. Aggrieved by the aforesaid Order, Respondent Nos. 1, 2 & 3 filed RSA No. 1354 of 2014 before the Punjab & Haryana High Court2.13. During the pendency of the Regular Second Appeal before the High Court, Dharam Singh expired on 05.01.20172.14. The High Court vide the impugned Judgment & Order dated 13.11.2018, allowed the RSA filed by the Respondents, and set aside the concurrent findings of the courts belowThe High Court held that (i) the Appellant had no locus to institute the Suit, since the coparcenary property ceased to exist after Inder Singh partitioned the property between his 3 sons in 1964; (ii) the Appellant had no right to challenge the Sale Deeds executed on 01.09.1999 on the ground that the sale consideration had not been paid, since only the executant of the Sale Deeds viz. Dharam Singh (Defendant No. 1) could have made such a challenge; and (iii) Jamabandis for the years 1957 – 58 till 1970 – 71 were not produced by the Appellant2.15. Aggrieved by the impugned Judgment & Order dated 13.11.2018 passed by the High Court, the Appellant has filed the present Civil Appeal.

Reasoning:
7. With respect to the first issue, it is the admitted position that Inder Singh had inherited the entire suit property from his father Lal Singh upon his death. As per the Mutation Entry dated 16.01.1956 produced by Respondent No. 1, Lal Singhs death took place in 1951. Therefore, the succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when Inder Singh succeeded to his father Lals Singhs property in accordance with the old Hindu Mitakshara law7.3. 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 property7.5. 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 property7.6. 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, 19567.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singhs sons would remain as coparcenary property qua their male descendants upto three degrees below them7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh 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 Dharam Singh in partition continued to remain coparcenary property qua the Appellant7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son – the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property8.2. 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 same8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh 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 whatsoeverDharam Singh 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 considerationHence, the ground of legal necessity or benefit of the estate falls through8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds9. 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 eitherThe 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. (T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370 ) 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 cancelled10. The Plaintiff/Appellant being a male coparcener in the suit property, was vitally affected by the purported sale of the suit property by his father Dharam SinghThe 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 Dharam Singh without legal necessity, or for the benefit of the estateAs a consequence, the Appellant was entitled to move the Court for a Declaration that the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1 were illegal, null and void10.1. 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 estate10.2. The non¬production of the Jamabandis would make no difference, as it did not affect the title/ownership of the suit property.