REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5124  OF 2019

(Arising out of SLP (Civil) No. 6788 of 2019)

Arshnoor Singh              …Appellant

versus

Harpal Kaur & Ors.              …Respondents

J U D G M E N T

INDU MALHOTRA, J.

Leave granted.

1. The present Civil Appeal has been filed to challenge the Order

dated 13.11.2018 passed in RSA No. 1354 of 2014 by the

Punjab & Haryana High Court at Chandigarh.

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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 great­grandson of Lal Singh.

  The genealogy table of Lal Singh’s family is set out

hereinbelow for the sake of convenience:

Lal Singh

Inder Singh

Gurcharan Singh    Dharam Singh   Swaran Singh  Dharam Kaur (son)    (son)  (son)      (daughter)

    Arshnoor Singh (Appellant)

2.2. 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

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sons viz. Gurcharan Singh, Dharam Singh, and Swaran

Singh in equal shares.

   Thereafter, the three sons transferred one­fourth

share in the entire property back to their father Inder

Singh for his sustenance. As a consequence, Inder

Singh and his three sons held one­fourth share each in

the property.

   Inder  Singh  expired  on  15.04.1970,  and  his  one­

fourth share 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

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,

Punjab.

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2.4. 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 1st wife.

2.5. 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. 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 of the  Indian Stamp Act,  1999 as the Sale

Deeds were undervalued.

  Dharam Singh and Respondent No. 1 – Harpal Kaur

appeared before the Collector. Dharam Singh admitted

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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 registration.

   Respondent  No. 1 –  Harpal Kaur, the purported

vendee,  admitted that  no  money  was  paid  by  her to

Dharam Singh in exchange for the suit property.

2.7. Subsequently, on 29.09.1999, Dharam Singh got

married to Respondent No. 1.

 The 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 transaction.

2.8. The Appellant became a major on 22.08.2003.

   On 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

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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 property.

2.9. 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 30.10.2007.

  Respondent  No.  1 filed  an  Application  to Implead

Respondent Nos. 2 & 3 as co­defendants  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

rights.

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2.10. The Additional Civil Judge, Ferozepur vide Order dated

29.04.2011, decreed the Suit in favour of the

Appellant/Plaintiff.

  Dharam 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 marriage.

 The 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

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entitled to joint possession of the suit property with his

father.

2.11. 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, Ferozepur.

  The 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, Ferozepur.

  In 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 void.

2.12. Aggrieved by the aforesaid Order, Respondent Nos. 1, 2

& 3 filed RSA No. 1354 of 2014 before the Punjab &

Haryana High Court.

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2.13. During the pendency of the Regular Second Appeal

before the High Court, Dharam Singh expired on

05.01.2017.

2.14. 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 below.

  The 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 Appellant.

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2.15. Aggrieved by the impugned Judgment  & Order  dated

13.11.2018  passed  by the  High  Court, the  Appellant

has filed the present Civil Appeal.

3. We have heard learned Counsel for the parties, and perused

the pleadings and written submissions filed by the parties.

4. Mr. Manoj Swarup, Senior Counsel appearing on behalf of the

Appellant, submitted that the suit property was coparcenary

property in which the Appellant had become a coparcener by

birth.

  It was further submitted that since the suit property was

coparcenary property, Dharam Singh could not have

alienated it without legal necessity of the family, or benefit to

the estate.

   It was further submitted that the Sale Deed dated

30.10.2007 purportedly executed  by  Respondent  No. 1 in

favour of Respondent Nos. 2 & 3, during the pendency of the

Suit, was hit by  lis pendens. Hence, it was illegal, null and

void.

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5. Mr. Ritin Rai, Senior Counsel appearing for the Respondents

submitted that the Civil  Suit was filed by the Appellant in

collusion with his father Dharam Singh (Defendant No. 1), as

Dharam Singh’s marriage with Respondent No. 1 had fallen

apart, and had subsequently been dissolved through a decree

of divorce on 15.12.2010. It was contended that the Civil Suit

was filed by the Appellant at the behest of his father Dharam

Singh.

  It was further submitted that the suit property was not

coparcenary property when the two Sale Deeds were executed

on 01.09.1999. Inder Singh’s property ceased to be

coparcenary property after it  was divided  vide  the decree

dated 04.11.1964. Reliance was placed on the decision of this

Court in Uttam v. Saubhag Singh,1 wherein it was held that:

“18. Some other judgments were cited before us for the proposition that joint family property continues as such even  with  a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family  property

1 (2016) 4 SCC 68.

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continues as such, there being no hiatus merely by  virtue  of the fact there is  a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela  Devi  v.  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 further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act.  The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School,  prior  to  the amendment of  2005, could therefore be summarized as follows:

…

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

  It was further submitted that the Appellant had no locus to

file the Civil Suit on the ground that no sale consideration

was paid by Respondent No. 1 to Dharam Singh. The

Appellant was not a party to the Sale Deeds, and only the

executant of the Sale Deeds  viz. Dharam Singh, could have

filed such a suit.

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6. The issues that arise for consideration before us are two­fold:

(i)  whether the suit property  was  coparcenary  property  or

self­acquired property of Dharam Singh; (ii) the validity of the

Sale  Deeds executed on 01.09.1999 by  Dharam  Singh in

favour of Respondent No. 1, and the subsequent Sale Deed

dated 30.10.2007 executed by Respondent No. 1 in favour of

Respondent Nos. 2 & 3.

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 Singh’s

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 Lal’s Singh’s property in accordance with the old

Hindu Mitakshara law.

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7.1. Mulla in his commentary on Hindu Law (22nd  Edition)

has stated the position with respect to succession under

Mitakshara law as follows:

Page 129 “A son, a grandson whose father is dead, and a great­grandson  whose father and grandfather are both dead, succeed simultaneously as single heir to the separate or self­acquired property of the deceased with rights of survivorship.”

Page 327 “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 great­grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son’s sons, and son’s son’s sons, but as regards other relations, he holds it, and is entitled 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 a male  Hindu from his father, father’s father  or father’s father’s father is an ancestral property. The essential feature of ancestral property,

2 (2018) 7 SCC 646.

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according to Mitakshara Law, is that the sons, grandsons,  and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth.  The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property  in the hands of the son will continue to  be the  ancestral  property  and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.”

(emphasis supplied)

7.3. 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 property.

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

“11. This question has been considered by this Court in  Commissioner  of  Wealth  Tax,  Kanpur and Ors. v.  Chander Sen and Ors. [1986] 161 ITR 370 (SC) 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

3 (1987) 1 SCC 204.

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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. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes  it in his individual capacity.”

(emphasis supplied)

7.5. After the Hindu Succession Act, 1956 came into force,

this position has undergone a change. Post – 1956, if a

person inherits a self­acquired property from his

paternal ancestors, the said property becomes his self­

acquired  property, and  does not remain coparcenary

property.

7.6. 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

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his  hands  vis­à­vis  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, 1956.

7.7. 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

Singh’s sons would remain as coparcenary property qua

their male descendants upto three degrees below them.  

7.8. The judgment in  Uttam v.  Saubhag Singh (supra)  relied

upon by the Respondents is not applicable to the facts

of the present case. In Uttam, the appellant therein was

claiming a share in the coparcenary property of his

grandfather, who had died in 1973 before the appellant

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was born. The succession opened in 1973 after the

Hindu Succession Act, 1956 came into force.

   The  Court  was concerned  with the share of the

appellant’s grandfather  in the ancestral  property, and

the impact of  Section 8 of the Hindu Succession Act,

1956. In light of these facts, this Court held that after

property is distributed in accordance with Section 8 of

the Hindu Succession Act, 1956, such property ceases

to be joint family property in the hands of the various

persons who have succeeded to it. It was therefore held

that  the appellant  was not  a coparcener  vis­à­vis  the

share of his grandfather.

7.9. 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,

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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

Appellant.

7.10. With respect to the devolution of a share acquired on

partition, Mulla on Hindu Law (22nd Edition) states the

following:

“§ 339. Devolution of share acquired on partition. – The effect of a partition is to dissolve the coparcenary, with the result, that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs.  However, if a member while separating from his other coparceners continues joint with his own male issue, the share allotted to him on partition, will in his hands, retain the character of a coparcenary property as regards the male issue [§ 221, sub­§ (4)].”

(emphasis supplied)

7.11. This Court in Valliammai Achi v. Nagappa Chettiar and

Ors.,4 held that:

“10. … It  is well settled that the share which a co­sharer obtains on partition of ancestral

4 AIR 1967 SC 1153.

19

property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or  are  born  subsequently: [see  Hindu Law by Mulla,  Thirteenth Edition p.  249,  para 223 (2)(4)]. If that is so and the character of the ancestral property  does not change so far  as sons are concerned even after partition, we fail to see  how  that character can change  merely because  the father  makes a will  by which  he gives the residue of the joint family property (after making certain bequests) to the son.”

(emphasis supplied)

7.12. 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 22.08.1985.

  Dharam 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

property.

8. The second issue which has arisen for consideration is

whether the two Sale Deeds dated 01.09.1999 executed by

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Dharam Singh in favour of Respondent No. 1, were valid or

not.

8.1. It is settled law that the power of a  Karta  to sell

coparcenary property  is  subject  to certain restrictions

viz. the sale should  be for legal  necessity  or for the

benefit of the estate.5  The onus for establishing the

existence of legal necessity is on the alienee.

  In  Rani & Anr.  v.  Santa Bala Debnath & Ors.,6  this

Court held that :

“10.  Legal  necessity to support the  sale  must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the  particular instance  must  be  considered. Legal necessity does not mean actual compulsion:  it  means pressure upon the estate which in law may be regarded as serious and sufficient.  The onus of providing legal necessity may be discharged by  the  alienee by proof  of actual necessity or by proof that he made proper and bona  fide  enquires about the  existence  of the necessity and that he did all that was

5 Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520; Mulla on Hindu Law (22nd Edition), Pg. 372. 6 (1970) 3 SCC 722.

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reasonable to satisfy himself as to the existence of the necessity.”

(emphasis supplied)

8.2. 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 same.

8.3. 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 whatsoever.

  Dharam 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 consideration.

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   Hence, the ground of legal necessity or benefit of the

estate falls through.

8.4. 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 Deeds.

9. 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 either.

  The 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

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the property.7  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 cancelled.  

10. 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 Singh.

   The 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 estate.

  As 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 void.

10.1. 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

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

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been sold without legal necessity, or for the benefit of

the estate.

10.2. The non­production of the Jamabandis would make no

difference, as it did not affect the title/ownership of the

suit property.

11. In view of the aforesaid discussion on law, the judgment

passed by the learned Single Judge of the High Court vide the

Impugned Order dated 13.11.2018, being contrary to law, is

set aside.

  The Sale  Deeds dated 01.09.1999 bearing  Wasika  Nos.

1075 and 1079 executed by Dharam Singh in favour of

Respondent No. 1 are hereby cancelled and set aside.

  Consequently, the subsequent Sale Deed dated 30.10.2007

executed by Respondent No. 1 in favour of Respondent Nos. 2

& 3 during the pendency of proceedings is illegal, and hereby

cancelled and set aside.

 The name of the Appellant is to be recorded in the

Jamabandis as the owner of the suit property.

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The Civil Appeal is allowed in the aforesaid terms. All

pending Applications, if any, are accordingly disposed of.

Ordered accordingly.

.....................................J. (UDAY UMESH LALIT)

.…...............………………J. (INDU MALHOTRA)

New Delhi, July 1, 2019.

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