2017 Supreme(P&H) 918

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMOL RATTAN SINGH, J.
Amrit Lal – Appellant
Vs.
Savitri and others – Respondents
RSA-1725 OF 2016 (O&M)
Decided On : 02-06-2017

Ancestral Property--Rights of Son--Any property as comes to a person even from his father, becomes ancestral property in his hands the moment a son is born to him, if before the birth of a son he has not already disposed it off.
Ancestral Property--Family Settlement--Even any family settlement entered into by father(karta), to the detriment of his children, would not be permissible, once the property is held to be ancestral property.
Succession--Ancestral Property--Children from void marriage would be entitled to share in ancestral property of their father to the extent the ancestral property devolved on their father.

Headnote:(A) Hindu Succession Act, 1956, S.8-Ancestral Property--Legitimacy of Children-Right in Property--A child begotten in a marriage which is otherwise null and void, even for the reason that either parent had a spouse living at the time of the second marriage, would have no right to co-parcenary or other property of either parent, except that property which is of their own parents--Thus, even ancestral property falling specifically to the share of a person, would devolve upon the son (and after 2005 also to the daughter) of that person, even if his children are born in a marriage otherwise void-Hindu Marriage Act, 1955, S.16. (Para 32)

       In the present case, the suit property was not proved to be coparcenary property but was proved to be ancestral property and 18 kanals 03 marlas was the share that Rohtash inherited as his own share in the larger property held by his father, Shree Chand, which larger tract devolved as 8 shares to the 8 legal heirs of Shree Chand. Hence, in the present case, even if for any reason the marriage of respondent-plaintiff no.1 were found to have been not validly proved, the children of Rohtash, i.e. respondents no.2 to 4 herein, would be entitled to the property held by him as his own share of ancestral property.

       (B) Hindu Succession Act, 1956, S.8--Ancestral Property-Family Settlement--Even any family settlement entered into by father(karta), to the detriment of his children, would not be permissible, once the property is held to be ancestral property--Therefore, any family settlement would only be valid if it is held that the property was indeed not ancestral property. (Para 35)

       (C) Hindu Succession Act, 1956, S.8--Ancestral Property--Alienation of--Suit property was ancestral property in the hands of father of respondents, which he could not validly have alienated in the manner that he pleased--Therefore, decree in favour appellant (co-sharer) cannot be binding upon the rights of the respondents-plaintiffs, qua that property. (Para 36)

       Of course, if due consideration was received by Rohtas(father of appellant), in lieu of such property, then such consideration may have been deemed to be ancestral property, provided the ancestral land was sold for the benefit of his family. That question, however, does not arise, the Additional Civil Judge having held that there was no such consideration proved to have been passed in terms of any agreement of sale, (which otherwise also would be nullified, with the plea of a family settlement having been taken by the appellant after the agreement of sale, in the suit that he filed against Rohtash).

       (D) Hindu Succession Act, 1956, S.8--Ancestral Property--Simply the entry of a mutation on the basis of a will, would not prove that a will was actually executed and duly proved--Succession Act, 1963, S.63. (Para 37)

       (E) Hindu Succession Act, 1956, S.8--Ancestral Property--Execution of Will--If a property is otherwise not denied to be ancestral property in the hands of a person but such person still executes a will in favour of those persons who would naturally succeed to such property, such will would not change the actual nature of the property (as being ancestral), simply because the person executing the will, by way of abundant precaution wanted to ensure that it actually devolves upon those whom it would naturally devolve upon as ancestral property--Succession Act, 1963, S.63. (Para 38)

       (F) Hindu Succession Act, 1956, S.8--Ancestral Property--Rights of Son--Any property as comes to a person even from his father, becomes ancestral property in his hands the moment a son is born to him, if before the birth of a son he has not already disposed it off. (Para 40)

        In the present case, as already discussed, respondent-plaintiff no.3 herein, i.e. Pawan son of Rohtash, would have been born in the year 1986, he being 21 years old at the time of the institution of the suit in the current lis, in the year 2007. Thus he was born about nine years prior to the alienation of the land by Rohtash, vide the decree dated 15.05.1995. Therefore, the property having become ancestral in the hands of Rohtash in the year 1986 itself, he could not have alienated it, thereby depriving his legal heirs from such ancestral suit property.

       (G) Hindu Succession Act, 1956, S.8--Ancestral Property--Rights of Son--A father cannot change the character of the joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if it was the self-acquired property of the father--In the hands of the son, the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship, as joint family property-- However, an affectionate gift of his self-acquired property by a father is not ipso facto ancestral property in the hands of the son.

       (H) Hindu Succession Act, 1956, S.8-Ancestral Property-Rights of Son--Upon property found to be ancestral property, the defendant-plaintiff (as the case would be), would get an interest in it by birth and it could not be passed on by suffering a consent decree, but if it was non- ancestral property, there being no pre-existing right therein, a consent decree would not be barred. (Para 41)

       (I) Limitation Act, 1963, Article 109--Ancestral Property--Setting aside a fathers’ alienation of ancestral property--Limitation is 12 years, start running from the date when the alienee, takes possession of the suit property--Such possession at best can be deemed to have been taken by the alienee on the date that a mutation was entered in his favour qua the ownership of the suit land, on the basis of the decree in his favour--As a matter of fact, unless the contrary is specifically proved, possession would normally be taken after the entry of ownership is entered-- Especially where the land alienated is by a co-sharer, in favour of another co-sharer, the earliest date that such deemed possession can be inferred, in the absence of evidence to the contrary, would be the sanction of the mutation entry--Hindu Succession Act, 1956, S.8. (Para 43)

       The mutation entry admittedly having been made on 19.12.1995, vide mutation no.826, the limitation to institute the suit would end on 18.12.2007. Thus, the suit in the current lis having been instituted on 09.10.2007, was within limitation by about two months, no evidence having been led to the contrary to show even to this Court, that possession qua the share of Rohtash (father of respondent) was already with the appellant earlier.

       (J) Limitation Act, 1963, Article 65--Suit for Inheritance--Interest in property on basis of title--Limitation is 12 years from date of knowledge--Claim of the plaintiffs being based upon an interest in the suit property on the basis of their title to it, they having come into inheritance of the suit property upon the death of his father, there would be no limitation to institute such a suit, other than in terms of Article 65 of the Schedule to the Limitation Act. (Para 44)