Punjab-Haryana High Court
Navtej Singh And Tej Pal Singh Sons Of ... vs Balkar Singh Son Of Balraj Singh Son Of ... on 22 October, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.264 of 1986 (O&M)
Date of decision:22.10.2013
Navtej Singh and Tej Pal Singh sons of Shri Balraj son of Kartar
Singh, residents of Village Khote, Tehsil Moga, through Pritam
Kaur Brar wife of Balraj Singh
...Appellants
versus
Balkar Singh son of Balraj Singh son of Kartar Singh, c/o H.S. Gill,
SDO (PWD B&R), Samrala, now c/o Smt. Jagdish Kaur, Teachress
Government Girls High School, Barnala, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Arun Jain, Senior Advocate,
with Mr. Jaivir Chandail, Advocate,
for the appellants.
Mr. Avnish Mittal, Advocate,
for respondents 1 to 4.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. The second appeal is against the judgment of decree granted in favour of the plaintiff seeking for joint possession of the property by the plaintiff assailing gift deeds executed by the grandfather in favour of the plaintiff's brothers, who are defendants in suit. The suit was filed on the basis that the gift of joint family Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.264 of 1986 (O&M) -2- properties was void and would not bind the plaintiff's interest in the property. The two courts have held that the property is joint family property and that therefore the gift was void and the plaintiff is entitled to treat himself as in joint possession.
2. On the issue of the validity of the gifts of Hindu joint family property and the right of a grandson to question the same, the learned senior counsel appearing on behalf of the appellants would formulate three points as falling for consideration: (i) even if the ancestral joint family property which according to him was not the same as a coparcenary property, the restriction against the gifts which existed for coparcenary property did not exist for ancestral property; (ii) at the time when the grandfather executed the gift deeds on 02.04.1970 and 20.10.1977, the father of the plaintiff was still alive and if he had not challenged, the plaintiff had no locus standi to challenge the same; and (iii) the Hindu Succession Act came in the year 1956 and with its advent, the right of the plaintiff to claim a joint possession and challenge the grandfather's transaction no longer existed. The learned senior counsel would refer me to the decision of the Supreme Court in Sheela Devi and others Versus Lal Chand and another-JT 2006(12) SC 610 as supporting his plea that the plaintiff had no coparcenary interest. The Supreme Court was considering the effect of the birth of a son born prior to 1956 of which he was a coparcener and of a son born subsequent to 1956 Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.264 of 1986 (O&M) -3- who had held no coparcenary in the property that fell for devolution of interest by death of a coparcener before 1956. It must be remembered that the Supreme Court was considering the effect of the death of a male member of a coparcenary and the devolution of interest and the shares allotable to the parties. The Court made a distinction of a person, who was a member of the coparcenary, who would take a share equal to that of the father, who was a coparcener and a son, who could claim on succession by virtue of Section 6 read with Section 8 of the Hindu Succession Act. I do not think I would detain myself on this judgment, for, the Supreme Court was considering the effect of death and the nature of devolution of interest besides apportionment of shares in the property. It will be a gross violation to the understanding of the Hindu Succession Act that it abrogated any Mitakshara concept of joint family property other than for express provision mentioned in the Act itself. The significant deviation from the Mitakshara law was only in relation to issues of succession but the whole concept of joint family or coparcenary was not modified in any extent till the year 2005 where female has also been deemed to be a coparcener. Section 6 reaffirms the coparcenary principle of devolution by survivorship and the exception is brought only to a situation of the existence of female members, who were class-I heirs under Section 8 when the death did not make possible a devolution by survivorship but it ought to be Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.264 of 1986 (O&M) -4- taken that a notional partition took place on the date of death of the coparcener and the share of the deceased coparcener shall go succession as per Section 8 and not by survivorship. Other than this Section that makes a deviation, Section 30 of the Hindu Succession Act allows for a bequest of an undivided share in the joint family property. The traditional Hindu law till 1956 created a bar even against the execution of Will for an undivided joint family interest. It was recognized for the first time through Section 30 but beyond that a gratuitous gift which was barred under Hindu law was not validated by any Section of the Hindu Succession Act. Consequently, the fact that the plaintiff was born in the year 1958 did not make him any the less a coparcener or joint family member, who had a right by birth.
3. Since the learned senior counsel made an argument that the coparcenary interest is different from Hindu joint family ancestral property, I must immediately clarify that other than the fact that the joint family is a larger entity than a coparcenary, there is no distinction at all between coparcenary property and ancestral property, they are synonymous. See, Mulla Hindu Law, XXI Edition 2010, para 218, page 334, where it is stated, while explaining that a coparcenary is a smaller unit than the ancestral property, that: "The term "joint family property" is synonymous with 'coparcenary property'. 'Separate" property includes 'self-acquired' property." Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.264 of 1986 (O&M) -5- The commentary adds: "Property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property." To understand whether the plaintiff held to a coparcenary interest, Mulla Hindu Law ought to come in aid again:
"The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of a coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property. ........ The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'. The rights of each coparcener, until a partition takes place, consist in a common possession and common enjoyment of the coparcenary property."
4. The argument that coparcenary property is different from ancestral property is untenable. There is a whole body of case law that lays down that a gratuitous gift of joint family property is void and the normal rule that the donor cannot abrogate from his grant will not apply to gifts of joint family properties. The exceptions are gifts of reasonable extent at the time of marriage to daughters or for charities. In all other situations, the gift has to be only taken as wholly untenable.
Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.264 of 1986 (O&M) -6-
5. Para 256, page 402 of Mulla Hindu Law, XXI Edition, 2010, refers as follows:-
"According to Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property."
6. The point to be examined is whether the gift of joint family property could be interdicted at the instance of the grandson when the father was alive. The learned counsel would refer me to decisions which are to the effect that a son cannot challenge alienation when his own father is alive who could give a valid discharge. Alienation for consideration stands completely on a different footing to a gift of ancestral property. If the property had been sold by the grandfather without necessity, it should have been possible to contend that the grandson was not competent to sue if the father did not himself challenge the same, but as regards gift of ancestral property since the transaction is void ab initio, all that is necessary for the plaintiff is to ignore the said transaction and seek for a partition or joint possession, as the case may be, or seek for even a declaration that the gift is void ab initio. The argument therefore that the son could not have challenged the gift made by the Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.264 of 1986 (O&M) -7- grandfather when the father was alive cannot be countenanced.
7. The argument still was that the plaintiff cannot sue for joint possession. I have already observed that there is no difference between ancestral joint family property and coparcenary property and if he had therefore a right by birth, he is entitled to seek himself to be in joint possession treating the gift to be invalid and still being available to be enjoyed in common along with donees, who are the defendants. The frame of the suit for joint possession was, therefore, perfectly tenable.
8. There is no scope for interference in the second appeal. The second appeal is dismissed with costs. Counsel's fee ` 10,000/-.
(K.KANNAN) JUDGE 22.10.2013 sanjeev Kumar Sanjeev 2013.10.25 16:43 I attest to the accuracy and integrity of this document chandigarh