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     REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5475 OF 2013 (@ SLP (C) No. 22388 of 2011)

ROHIT CHAUHAN      …APPELLANT  

VERSUS

SURINDER SINGH & ORS.     …RESPONDENTS  

JUDGMENT  

CHANDRAMAULI KR. PRASAD,J.

Sole plaintiff Rohit Chauhan is the appellant  

before us.  His grandfather Budhu had three sons,  

namely, Gulab Singh, Zile Singh and one Ram Kumar.  

Gulab  Singh,  father  of  the  plaintiff,  has  been  

arrayed as defendant no. 2, whereas son of Zile  

Singh i.e. Surinder Singh figures as defendant no.  

1 in the suit. In partition between Budhu and his  

three sons, defendant no. 2 got 1/4 share i.e., 72  

Kanals of land.  In the said partition Budhu also  

got 72 Kanals of land and he bequeathed 1/4 of his

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share i.e., 18 Kanals to each of his three sons and  

kept with himself 18 Kanals.  After the death of  

Budhu, defendant no. 2 inherited 1/3 share i.e., 6  

Kanals  and  in  this  way  plaintiff’s  father  Gulab  

Singh,  defendant  no.  2,got  96  Kanals  of  land.  

Defendant No.2 during his lifetime also acquired 8  

Kanals of land from the income of the properties  

which he got in partition amongst his father and  

brothers.  At the time of partition defendant no. 2  

was  unmarried.   But  later  on,  Gulab  Singh  was  

married to defendant no. 7, Rajesh Rani and from  

the wedlock the plaintiff as also defendant no. 6  

were  born.  Plaintiff  was  born  on  25th of  March,  

1982. Plaintiff alleged that his father defendant  

no. 2 executed two separate sale deeds on 19th of  

May, 2000 selling 8 Kanals of land acquired from  

joint family funds to defendant nos. 3 to 5.  It is  

further allegation of the plaintiff that his father  

illegally gifted 96 Kanals of land in favour of  

defendant no. 1 Surinder Singh, the son of his real  

brother Zile Singh by way of release deed dated 28th  

of May, 2004.  On the basis of the release deed and  

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the  sale deeds,  the  defendants  claiming interest  

therein got their names mutated and attested in the  

revenue records. It is the case of the plaintiff  

that  the  property  received  by  his  father  is  

ancestral  property  and,  therefore,  alienation  of  

the same by him is null and void.  On the basis of  

the aforesaid pleadings, the plaintiff prayed for  

declaration that the release deed, sale deeds and  

the  mutation  entries  made  on  that  basis  are  

illegal,  null  and  void  and  not  binding  on  him,  

Varsha (defendant no. 6) and Rajesh Rani (defendant  

no. 7).   

Defendant  no.  1  contested  the  suit  and,  

according to him, the plaintiff, his mother Rajesh  

Rani and minor sister Varsha were living separately  

from defendant No. 2 and there was no good relation  

between them.  They were not even on talking terms.  

According to defendant no. 1, he and his family  

members were rendering service and giving honour to  

defendant no. 2 and he was residing with them as  

their  family  member.   Defendant  no.  1  further  

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averred  that  out  of  love,  affection  and  service  

rendered by him, defendant no. 2 was pleased and,  

as such, he executed a release deed in his favour  

and on that basis mutation entries were made.  It  

is  the  plea  of  defendant  no.1  that  the  land  in  

question  became  the  self  acquired  property  of  

defendant no. 2 after partition and, therefore, he  

was  competent  to  transfer  the  property  in  the  

manner he desired.  Defendant no. 1 further alleged  

that the sale deed executed by defendant no. 2 in  

favour of defendant nos. 3 to 5 is legal and valid.  

Defendant no. 2 supported the case of defendant no.  

1 and adopted the written statement filed by him.  

Defendant nos. 3 to 5 filed their separate written  

statements and supported the plea of defendant no.  

1 and averred that the sale deeds and the release  

deed were validly executed.  On the basis of the  

aforesaid  pleading of  the  parties various issues  

have been framed including the following issues:

“1.Whether the plaintiff is entitled  to a decree for declaration to the  effect  that  impugned  release  deed  

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dt.28.5.2004  and  mutation  no.3365  entered  and  attested  in  lieu  of  impugned  release  deed  and  further  two sale deeds dt.19.5.2000 bearing  no.272/1  and  273/1  and  mutation  no.3110  and  3106  entered  and  attested on the basis of impugned  two sale deeds and further revenue  entries are wrong, illegal and not  binding  on  the  rights  of  the  plaintiff  and  defendants  no.  6  & 7?”  

The trial court, on analysis of the materials  

placed on record and the legal position, came to  

the  conclusion that  the  property  which  defendant  

no. 2 got by virtue of the partition decree amongst  

his  father  and  brothers  was  although  separate  

property qua other relations but it attained the  

characteristics of coparcenary property after the  

plaintiff  Rohit  Chauhan  was  born.   The  finding  

recorded by the trial court in this regard reads as  

follows:

“21. No doubt Gulab Singh got some of  his share in the property described in  para no.  1(a)  of  the plaint  through  his  father  Budhu  vide  mutation  no.  3089  in  which  the  father  Budhu  suffered  a  decree  in  favour  of  defendant no. 1 along with Zile Singh  

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and Ram Kumar of 3/4th share but in the  year  1969  when  the  said  decree  was  passed Gulab Singh was unmarried and  he had  got alienated  the land  which  had  come  to  his  share  when  Rohit  Chauhan, Plaintiff came into existence  i.e.  on  25.3.1982.   Meaning  thereby  that  the  property  which  Gulab  Singh  had got by the decree was although his  separate  property  qua  other  relation  but  became  JHF  property  immediately  when  Rohit  Chauhan  was  born  thereby  getting characteristic of coparcenary  property.”

Accordingly, the trial court decreed the suit.  

Defendant  no.  1,  aggrieved  by  the  same,  

preferred  appeal  and  it  was  his  plea  that  the  

property received by defendant 2 on partition will  

become  his  separate  property  and  requires  to  be  

treated  as  his  self  acquired  property  and,  

therefore, defendant no. 2 was free to deal with  

the  property  in  the  manner  he  liked.   In  other  

words,  according  to  defendant  no.  1,  after  

partition  the  property  falling  in  the  share  of  

defendant no. 2 lost its character as a coparcenary  

property and assumed the status of self acquired  

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property.  The aforesaid plea found favour with the  

lower appellate court and it held that the property  

which defendant no. 2 got on partition “lost the  

character  of coparcenary property and became  the  

self acquired property of Gulab Singh”.  The lower  

appellate court further held that once the property  

is  held  to  be  self  acquired  property  of  Gulab  

Singh, he had every right to deal with the same in  

any  manner  he  liked.   Relevant  portion  of  the  

judgment  of  the  lower  appellate  court  reads  

as follows:

“13.  In  the  light  of  above  said  precedents it can be readily concluded  that only when the property which is  received  by  a  person  from  his  ancestors by survivorship can be held  to  be  ancestral/coparcenary  property  and any other property which although,  might  have  been  received  from  the  ancestors by means of will or consent  decree  or  a  father  partitioned  the  property, will loose its character as  that of coparcenary property and will  become self acquired property in the  hands  of  person  receiving  it.  Applying these precedents to the facts  of the present case, this Court will  conclude that approximately 96 Kanals  of land was  received  by  Gulab  Singh  from his father Budhu on the basis of  consent decree or on the basis of will  

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and  not  by  survivorship  and  this  property  lost  the  character  of  coparcenary  property  and  was  self  acquired property of Gulab Singh.  The  version of plaintiff/respondent no. 1  in the present case is that rest of  the  property  was  acquired  by  Gulab  Singh with the funds originated from  joint  Hindu  family  property  and  the  said  property  also  assumed  the  character  of  joint  Hindu  family  property,  also  cannot  be  sustained  because the major chunk of land in the  hands of Gulab Singh has been held to  be  non-ancestral  property  and  rather  self acquired property of Gulab Singh.

14. Once the property involved in the  suit has been held to be self acquired  property  of  Gulab  Singh  then  Gulab  Singh was having every right to deal  with the same in any manner he liked  and  no  embargo  can  be  put  on  the  rights of Gulab Singh as well as his  rights to alienate the suit property  are concerned and thus neither release  deed nor sale deeds executed by Gulab  Singh can be questioned by anyone much  less by son of Gulab Singh…………”  

Accordingly, the lower appellate court allowed  

the appeal and set aside the judgment and decree of  

the trial court and dismissed the suit.   

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Plaintiff,  aggrieved  by  the  same,  preferred  

second  appeal  and  the  High  Court  dismissed  the  

second  appeal  in  limine  and,  while  doing  so,  

observed as follows:

“………Finding  of  the  lower  appellate  court that the suit land is not proved  to  be  ancestral  or  coparcenary  property  is  fully  justified  by  the  documentary  evidence  and  admitted  facts…….”

This is how the plaintiff is before us.  

Leave granted.

Mr.  L.Nageshwar  Rao,  learned  Senior  Counsel  

appearing  on  behalf  of  the  plaintiff-appellant  

submits  that  at  the  time  when  the  plaintiff’s  

father Gulab Singh got the property in partition,  

it  was  his  separate  property  vis-à-vis  his  

relations but after the birth of the plaintiff on  

25th of March, 1982, plaintiff acquired interest in  

the  property  as  a  coparcener.   Mr.  Satinder  S.  

Gulati, learned Counsel appearing on behalf of the  

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defendant-respondents,  however,  submits  that  once  

the property fell into the share of the plaintiff’s  

father  Gulab  Singh,  it  lost  the  character  of  a  

coparcenary property and the said status will not  

change on the birth of the plaintiff.  He points  

out that even if plaintiff Rohit Chauhan was born  

at the time of partition between defendant no. 2,  

his father and brothers, plaintiff would not have  

got  any  share  under  Section  8  of  the  Hindu  

Succession Act.  In support of the submission he  

has placed reliance on a judgment of this Court in  

the case of Bhanwar Singh v. Puran, (2008) 3 SCC 87  

and our attention has been drawn to the following  

passage from the said judgment:

“13. 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  devolves  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 as Class  I  heirs  but  a  grandson,  so  long  as  father  is  alive,  has  not  been  included.  Section  19  of  the  Act  

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provides  that  in  the  event  of  succession by two or more heirs, they  will take the property per capita and  not per stripes, as also tenants-in- common and not as joint tenants.”

We have bestowed our consideration to the rival  

submission and we find substance in the submission  

of  Mr.  Rao.  In  our  opinion  coparcenary  property  

means  the  property  which  consists  of  ancestral  

property and a coparcener would mean a person who  

shares equally with others in inheritance in the  

estate  of  common  ancestor.  Coparcenary  is  a  

narrower  body  than  the  Joint  Hindu  family  and  

before commencement of Hindu Succession (Amendment)  

Act, 2005, only male members of the family used to  

acquire  by  birth  an  interest  in  the  coparcenary  

property.  A coparcener has no definite share in  

the coparcenary property but he has an undivided  

interest in it and one has to bear in mind that it  

enlarges by deaths and diminishes by births in the  

family.  It is not static. We are further of the  

opinion  that  so  long,  on  partition  an  ancestral  

property remains in the hand of a single person, it  

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has to be treated as a separate property and such a  

person  shall  be  entitled  to  dispose  of  the  

coparcenary property treating it to be his separate  

property but if a son is subsequently born, the  

alienation  made  before  the  birth  cannot  be  

questioned.  But, the moment a son is born, the  

property becomes a coparcenary property and the son  

would  acquire  interest  in  that  and  become  a  

coparcener.  The view which we have taken finds  

support from a judgment of this Court in the case  

of M. Yogendra v. Leelamma N., (2009) 15 SCC 184,  

in which it has been held as follows:

“29. It is now well settled in view of  several decisions of this Court that  the property in the hands of a sole  coparcener  allotted  to  him  in  partition  shall  be  his  separate  property  for  the  same  shall  revive  only when a son is born to him. It is  one  thing  to  say  that  the  property  remains a coparcenary property but it  is  another  thing  to  say  that  it  revives.  The  distinction  between  the  two  is  absolutely  clear  and  unambiguous. In the case of former any  sale or alienation which has been done  by the sole survivor coparcener shall  be  valid  whereas  in  the  case  of  a  

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coparcener any alienation made by the  karta would be valid.”

Now referring to the decision of this Court in  

the case of  Bhanwar Singh (supra), relied on by  

respondents, the same is clearly distinguishable.  

In  the  said  case  the  issue  was  in  relation  to  

succession  whereas  in  the  present  case  we  are  

concerned with the status of the plaintiff vis-à-

vis his father who got property on partition of the  

ancestral property.

A person, who for the time being is the sole  

surviving coparcener as in the present case Gulab  

Singh was, before the birth of the plaintiff, was  

entitled to dispose of the coparcenary property as  

if it were his separate property.  Gulab Singh,  

till  the  birth  of  plaintiff  Rohit  Chauhan,  was  

competent  to  sell,  mortgage  and  deal  with  the  

property as his property in the manner he liked.  

Had he done so before the birth of plaintiff, Rohit  

Chauhan,  he  was  not  competent  to  object  to  the  

alienation made by his father before he was born or  

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begotten.   But,  in  the  present  case,  it  is  an  

admitted position that the property which defendant  

no. 2 got on partition was an ancestral property  

and till the birth of the plaintiff he was sole  

surviving coparcener but the moment plaintiff was  

born, he got a share in the father’s property and  

became a coparcener. As observed earlier, in view  

of the settled legal position, the property in the  

hands  of  defendant  no.  2  allotted  to  him  in  

partition was a separate property till the birth of  

the  plaintiff  and,  therefore,  after  his  birth  

defendant no. 2 could have alienated the property  

only as Karta for legal necessity.  It is nobody’s  

case that defendant no. 2 executed the sale deeds  

and release deed as Karta for any legal necessity.  

Hence, the sale deeds and the release deed executed  

by Gulab Singh to the extent of entire coparcenary  

property are illegal, null and void.  However, in  

respect of the property which would have fallen in  

the share of Gulab Singh at the time of execution  

of  sale-deeds  and  release  deed,  the  parties  can  

work out their remedies in appropriate proceeding.

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In view of what we have observed above, the  

view taken by the lower appellate court as affirmed  

by the High Court is erroneous in law.   

In the result, we allow this appeal, set aside  

the  judgment  and  decree  of  the  lower  appellate  

court as affirmed by the High Court and restore  

that  of  the  trial  court  with  the  liberty  

aforementioned.  In the facts and circumstances of  

the  case,  there  shall  be  no  order  as  to  costs.  

………………………………………………………………J   (CHANDRAMAULI KR. PRASAD)

………..……….………………………………..J                  (V.GOPALA GOWDA)

NEW DELHI, JULY 15, 2013.  

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