--,

[2008] 2 S.C.R. 775

BHANWAR SINGH A

II.

PURAN AND ORS. (Civil Appeal No. 1233 of 2008)

FEBRUARY 12, 2008

[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

--4 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 - c Mutation in revenue records of 1973-74 - Each taking '!4th 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 D property ceased to be joint family property and all heirs and .,..

LRs of Appellanfs paternal grandfather succeeded to his interest as tenants in common and not as joint tenants - The ioint coparcenary did not continue - Appellant's father had the requisite right to transfer lands falling within his share.

E 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 F j 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 i

1985. Appellant filed suit challenging the said alienations G

on the ground that the property in question was a joint family property and the said alienations were not made for legal nec.essity. Trial Court decreed the suit. The First Appellate Court reversed the judgment holding that upon ! 775 -....

-A 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 B terms of s:8 of the Hindu Succession Act, 1956. The Court

held that in, any eer.it, the Deed of Sale exe~-uted by Appellant's. father 'havi.ng been e.xecuted for legal . necessity as the suit property had already been

mortaged, the eed~ Of sale C()Lil 1d not have been c cancelled. Second appeal filed before the .High Court was

di!>missed. Hence te present appea~.

Dismissing theappeal, the Court:

HELD: 1. S. 6 of the Hindu Su.ccession Act, 1956, as D it stood at the relevant time, provided for devolution .. of. interest in the coparcenary property. S.8 ,Qf the Act lays down the general rules of succession ttit 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 appen'ded to the Act, natral E sons and daughters are placed: in Class.-!' hirs but a grandson, so long as father i~ alive, hs 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- ..

F in-common and not as joint tenants. [Par.a 11] [780-F, G;

781-A] ..

I ...

. 2.1. In terms of s.8 of the Act, the properties of the Appellan't's paternal grandfather devolved .upon f G .Appellant's father and his three sisters. Each had 1/4th . share in the property. Apart from the legal po'sitin, factually the same was also reflected in the rec:ord of ·~ rights. A partition had taken place amongst the heirs of . the paternal grandfather of Appell.ant. [Para 12] [781-A, Bj

H 2.2. Although th~ First Appellate Court proceeded to

BHANWAR SINGH v. PURAN AND ORS. 777

consider the effect of s.6 of the Act, the same was not A 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 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] [781-8, C, D]

2.3. The first Court of Appeal also entered into the C 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 D 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.

E [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 F 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 SCR516 at 523; Sunderdas Thackersay & Bros. v.

Commissioner of Income-tax (1982) 137 ITR 646; Commissioneroflncome Tax v. P.L. Karuppan Chettiar(1993) H

A Supp.1 SCC 580; Additional Commissioner of Income-tax v. t M. Karthikeyan (1994) Supp.2 sec 112 - relied on.

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

B CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1233 of 2008.

From the Judgment and final Order dated 14.11.2006 of the High Court of Punjab and Haryana at Chandigarh in RS.A.

No. 3924 of 2006. c

Gagan Gupta for the Appellant.

Manoj Swarup and Roh it Sohgaura for the Respondents.

The Judgment of the Court was delivered by

D S.8. 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

E 14.11.2006 passed by a learned Single Judge of the Punjab and Haryana High Co.urt 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 F 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

G 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 Shima were joint family properties and the same were transferred by Sant Ram, firstly by way of mortgage and thereafter by sale in H favour of the respondents herein in the year 1985, the appellant

t---

.._

1 filed a suit for setting. aside the said alienations. It was A 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 B 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 Shima, Sant Ram became a co-sharer of the property and having regard to the entries of the jamabandi c

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 D + a joint property, the interest of Sant Ram being 1 /4th in .the half share therein and the other half of Shima 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 E 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

; rl

fathr of the petitioner had inherited the property from his F 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 f;:tiled to take into consideration the well settled principles of Hindu . G __, 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 co.uld be entered into by the manager or karta of the family only for legal necessity and for '

I no other. The Appellate Court, it was contended', committed a/ H

A serious error in so tar as it proceede~ to hold that the property r 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 furthrmore submitted that only because some entries have been made in the record

B 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 c 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; Shima having died in 1972.

11. The Act brought about a sea change in the matter of

E 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

F 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

G property of a male dying intestate devolve according to the provisions of the Chapter as specif(ed in clause (1) of the ) Schedule. In the Schedule appended to the Act, natural sons t-- Iand daughters are placed in Class-I heirs but a grandson, so

long as father is alive, has not been included. Section 19 of the

H Act provides that in the event of succession by two or more

''1

heirs, they will take the property per capita and not per stirpes, A as also tenants-in-common and not as joint tenants.

12. Indisputably, Shima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the . properties of Shima devolved upon Sant Ram and his three S 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 Shima, ..

13. Although the learned First Appellate Court proceeded to consider the effect of Section 6 of the Act, in our opinion, the c 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 ?S also Section 19 of the Act, . the properties ceased to be joint family property and all the heirs and legal representatives of Shima would succeed t<? his interest D 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 E & 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 F " as also Madras High Court on the one hand and the Gujarat High Court on the other, opined :

I "In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it ii; not possible when Schedule indicates heirs in class I and G

-); 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 c'ontemplated by Section 8 he takes it as karta of his own undivided family . . The Gujarat High Court's view noted ove, if accepted, H

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 Mu Ila's Commentary on Hindu law 15th E 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 /ncometax, 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 l~W; where a son inherited the selfacquired property of his father, he took it as a H joint family property of himself and his son and not as his

; separate property. The said view, as indicated hereinbefore was A 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.

B Commissioner of Income-tax [1982 (137) ITR 646]; Commissioner of Income Tax v. PL. 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: c

"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 D + 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 pr from any other E 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 F

'-J

&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 G 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 thaAmendment Act, H

A 2005 would have no application. Sub-section (1) of Section r 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 B 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 L to show that apart from Lal Chand, Sohan Lal will also ~. derive the benefit thereof. So far as the second son, Sohan c 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 ofTulsi Ram,.

D 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 E 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 F Succession Act an-d the parties would be governed thereby under .the provisions thereof. It w9s in th~ 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:

G "12.The principle of law applicable in this case is. that so long a property remains in the hands of a single person, lthe same was to be treated as a separate property, and thus such a person would be entitled to dispose of the

coparcnary property as the same were his separate H property; but, "if a son is subsequently born to him or

; adopted by him, the alienation whether it is by way of sale, A 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 B 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, Schan Lal, was born in 1956. It was in the aforementioned situation, this Court held that a joint C 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.

D + 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 . E 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 F 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 G 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 H

A -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 8 cas~. however, there shall be no order as to costs.

B.B.B.

Appeal dismissed.