Page 1 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

Page 2 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 25

th

of March,

1982. Plaintiff alleged that his father defendant

no. 2 executed two separate sale deeds on 19

th

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 28

th

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

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Page 3 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

3

Page 4 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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Page 5 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

5

Page 6 and Ram Kumar of 3/4

th

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

6

Page 7 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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Page 8 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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Page 9 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

25

th

of March, 1982, plaintiff acquired interest in

the property as a coparcener. Mr. Satinder S.

Gulati, learned Counsel appearing on behalf of the

9

Page 10 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

10

Page 11 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

11

Page 12 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

12

Page 13 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

13

Page 14 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.

14

Page 15 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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