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2008(2) Supreme 285
Supreme Court of india
S.B. Sinha & V.S. Sirpurkar, JJ.
Bhanwar Singh— Petitioner
versus
Puran & Ors. — Respondents
Appeal (civil) 1233 of 2008
Decided on : 12-02-2008
(1986) 3 SCR 254 relied upon, (108 ITR 417) Distinguished, (1987)1 SCR 516 at 523 relied upon, 1982(137) ITR 646 relied upon, 1993 SUPP(1) SCC 580 relied upon, 1994 supp(2) SCC 112 relied upon, 2006(8) SCC 581 relied upon.
Facts of the case:-
1.Death of Original owner of property in year 1972 leaving behind his son “S” and three daughters. Appellant, son of ‘S” was born in year 1977. Properties in suit partitioned between “S” and his sisters and their shares in properties of deceased “B” was shown to be 1/4th each in revenue records. Suit filed by appellant for setting aside alienation on premises that properties of “B” being joint family properties same were transferred by “S” firstly by way of mortgage and there after by sale in favour of Respondents. Plea of appellant that consideration for said transaction being a meagre sum of Rs. 12,000\- and not being for legal necessity, same should be set aside. Said suit was decreed by Trial Judge holding that property was joint family one and “S” being the ‘Karta’, could not have transferred the same, save and except by way of legal necessity. First Appellate Court, however, reversed same findings, inter alia, holding that upon death of “B”, “S” became a co-sharer of property and having regard to entries of jamabandi for year 1973-74, it had been established that he, along with his sisters, having inherited same in equal shares, property lost character of ancestral property in terms of Section 8 of Hindu Succession Act.
2.Present Appeal has been filed against said order of High Court.
Findings of the Court : –
The Court held that a partition had taken place amongst the heirs of “B”. Although Appellate Court proceeded to consider effect of Section 6 of Act, same was not applicable in facts and circumstances of case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of “B” 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. No Reason to differ therewith that Section 6 of the Hindu Succession Act was not attracted to facts of case in view of the fact that “S” 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. Again in terms of Section 19 of the Act, as “S” and his sisters became tenants in common and took 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. No infirmity found in impugned judgment. Appeal was dismissed.
Result : Appeal dismissed.
judgment
S.B. 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 14.11.2006 passed by a learned Single Judge of the Punjab and Haryana High Court 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 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 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 Bhima were joint family properties and the same were transferred by Sant Ram, firstly by way of mortgage and thereafter by sale in favour of the respondents herein in the year 1985, the appellant filed a suit for setting aside the said alienations. It was 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 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 Bhima, Sant Ram became a co-sharer of the property and having regard to the entries of the jamabandi 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 a joint property, the interest of Sant Ram being 1/4th in the half share therein and the other half of Bhima 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 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 father of the petitioner had inherited the property from his 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 failed to take into consideration the well settled principles of Hindu 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 could be entered into by the manager or karta of the family only for legal necessity and for no other. The Appellate Court, it was contended, committed a serious error in so far as it proceeded to hold that the property 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 furthermore submitted that only because some entries have been made in the record 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 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 admit
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