Property Lawyer: Succession opened prior to 1956 makes the property coparcenary; SC.

Supreme Court of India

Justice Indu Malhotra and Justice U U Lalit

The Supreme Court {Arshnoor Singh vs Harpal Kaur and others} holds that if succession opened under the old Hindu law, that is, prior to the commencement of the Hindu Succession Act 1956, the parties would be governed by mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-a-vis his main descendants up to 3 degree below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act 1956.

It was held in the said case that as the succession opened in 1951, the property inherited was coparcenary in nature. The partition affected by Inder Singh among the sons in 1964 would not change the nature of the property, that is, coparcenary qua their male descendants up to three degrees below them.

Further held that it is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regard his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently.

In view of the said legal position, it was held in the said case that the suit property which came to the share of Late Dharam Singh, through partition dated 4 November 1964, remained coparcenary property, qua his son -appellant - who became coparcener in the suit property on his birth i.e. 22nd August 1985.

It was held that power of a Karta to sell coparcenary property is subject to restrictions. And the onus to prove that there was a legal necessity, or benefit to the estate, or the purchaser had made bonafide enquiries on the existence of the same is on alinee / purchaser. The respondent no. 1, in the said case, the purchase had failed to discharge the onus, and even the sale deeds in addition to that were without consideration.

Therefore, in the said case, the sale deeds executed were set aside by the Supreme Court. And subsequent sale deeds executed by Respondent no. 1 in favour of Respondent no. 2 and Respondent No. 3 were also set aside, being illegal, due to doctrine of Lis pendens. The appeal was accordingly allowed.