ROHIT CHAUHANversusSURINDER SINGH & ORS.

                      [2013] 7 S.C.R. 897


                        ROHIT CHAUHAN                                   A
                                 v,
                  SURINDl;R SINGH & ORS.
                (Civil Appeal No.5475 of 2013)
                          JULY 15_, 2013
                                                                        B
            [CHANDRAMAULI KR. PRASAD AND
                 ~- GOPALA GOWDA, JJ.]


     HIND,/:! LAW:
                                                                        c
        'Cpparcenary property' - 'Coparcener' - Held:
· Copajcenary 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 - So long, on partition, an ancestral                 0
·property remains in the hand of a single person, it t.as 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 and if a son is subsequently bom,
  the alienation made before the birth cannot be questioned -           E
  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 - Therefore, in the instant case,
  sale deeds and release deed executed by the father after the
  birth of his son, to the extent of the entire property are illegal,
  null and void.                                                        F

     The plaintiff-appellant filed a suit for declaration that
 the alienation of suit property, ~iz. 8 Kanals of land by
 sale deed executed by his father (defendant no. 2) on
 19.05.2000 in favour of defendant nos. 3 to 5 and of 96                G
 Kanals of land by release deed dated 28.05.2004 in favour
 of defendant no. 1 was null and void in as much as the
 property under the release, deed was the ancestral
 property received by defendant no. 2 under a family
                             897                                        H
    898      SUPREME COURT REPORTS            [2013) 7 S.C.R.


A partition and the property under the sale deeds was
  purchased by him from the joint family funds. The trial
  court decreed the suit, but the first appellate court
  reversed the decree holding that the property received by
  defendant no. 2 on partition lost the character of
B coparcenary property and became the self-acquired
  property of defendant no. 2. Plaintiffs second appeal was
  dismissed in limine.

          Allowing the appeal, the Court

C       HELD: 1.1 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
D 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
E 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.
  [Para 8) [905-C-E]

       1.2 So long, on partition, an ancestral property
  remains in the hand of a single person, it has to be
F 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 and if a son is
  subsequently born, the alienation made before the birth
  cannot be questioned. But, the moment a son is born, the
G property becomes a coparcenary property and the son
  would acquire interest in that and become a coparcener.
  [Para 8) [905-E-G]

      M. Yogendra v. Leelamma N. 2009 (12) SCR 38           =
H (2009) 15 sec 184 - relied on.
   ROHIT CHAUHAN v. SURINDER SINGH & ORS.             899


   Bhanwar Singh v. Puran, 2008 (2) SCR 775 = (2008) 3 A
sec 87 - distinguished.
     1.3 In the instant 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
                                                              8
was sole surviving coparcener but the moment plaintiff
was born, he got a share in the father's property and
became a coparcener. In view of the settled legal position,
therefore, after the birth the plaintiff, defendant no. 2
could have alienated the property only as Karta for le,gal
necessity, which contingency did not arise in the instant C
case. Therefore, the sale deeds and the release deed
 executed by defendant no. 2 to the extent of entire
coparcenary property are illegal, null and void. The
judgment and decree of the lower appellate court as
affirmed by the High Court is set aside and that of the trial D
 court restored. [Para 10 and 12) (906-G-H; 907-A-B, DJ
                    Case Law Reference:
    2009 (12) SCR 38           relied on          Para 8
                                                             E
    2008 (2) SCR 775           distinguished      Para 7
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5475 of 2013.

    From the Judgment and Order dated 04.05.2011 of the      F
High Court of Punjab and Haryana at Chandigarh in RSA No.
1992 of 2011.
    L. Nageshwar Rao, Mishra Saurabh for the Appellant.

      Satinder S. Gulati, Kamaldeep Gulati and Gaurav Sharma G
for the Respondents.

    The Judgment of the Court was delivered .bY

                                                             H
    900      SUPREME COURT REPORTS                     [2013) 7 S.C.R.


A         CHANDRAMAULI KR. PRASAD, J. 1. Sole plaintiff
    Rohit Chauhan is the appellant before us. His grandfather
    Budhu had three sons, namely, Guiab Singh, Zile Singh and
    one Ram Kumar. Guiab Singh, father of the plaintiff, has been
    arrayed as defendant no. 2, whereas son of Zile Singh i.e.
B 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 share i.e.,
    18 Kanals to each of his three sons and kept with himself 18
c Kanals. After the death of Budhu, defendant no. 2 inherited 1/
    3 share i.e., 6 Kanals and in this way plaintiff's father Guiab
    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
0   father  and brothers. At the time of partition defendant no. 2 was
    unmarried. But later on, Guiab 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 25th of March,
    1982. Plaintiff alleged that his father defendant no. 2 executed
E two separate sale deeds on 19th 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 28th of May, 2004. On the basis of the release
F deed and 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, alienatio,n of
    the same by him is null and void. On the basis of the aforesaid
G pleadings, the plaintiff prayed for dedaration 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).

H
   ROHIT CHAUHAN v. SURINDER SINGH & ORS.                   901
        [CHANDRAMAULI KR. PRASAD, J.]

      2. Defendant no. 1 contested the suit and, according to       A
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                 B
defendant no. 2 and he was residing with them as their family
member. Defendant no. 1 further 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     c
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.       D
 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    E
 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
     dt.28.5.2004 and mutation no.3365 entered and attested         F
     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    G
     the plaintiff and defendants no. 6 & 7?"

    3. 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
                                                                    H
    902      SUPREME COURT REPORTS                   [2013] 7 S.C.R.


A   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:
B
          "21. No doubt Guiab 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 and Ram Kumar of 3/4th share but in the
c         year 1969 when the said decree was passed Guiab 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 Guiab Singh had got by the decree was
D         although his separate property qua other relation but
          became JHF property immediately when Rohit Chauhan
          was born thereby getting characteristic of coparcenary .
          property."

E         Accordingly, the trial court decreed the suit.

       4. 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
F 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
G the status of self acquired 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 Guiab Singh". The lower appellate court further held that once
  the property is held to be self acquired property of Guiab Singh,
H
   ROHIT CHAUHAN v. SURINDER SINGH & ORS.                  903
        [CHANDRAMAULI KR. PRASAD, J.]

he had every right to deal with the same in any manner he liked.   A
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
                                                                  8
    by a person from his ancestors by survivorship can be held
    to be ancestral/coparcen_ary 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 C
    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 Guiab Singh from his father Budhu on the basis
    of consent decree or on the basis of will and not by D
    survivorship and this property lost the character of
    coparcenary property and was self acquired property of
     Guiab Singh. The version of plaintiff/respondent no. 1 in
    the present case is that rest of the property was acquired
     by Guiab Singh with the funds originated from joint Hindu E
     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 Guiab Singh has been held to be non-ancestral property
     and rather self acquired property of Guiab Singh.            F

     14. Once the property involved in the suit has been held
     to be self acquired property of Guiab Singh then Guiab
     Singh was having every right to deal with the same in any
     manner he liked and no embargo can be put on the rights G
     of Guiab Singh as well as his rights to alienate the suit
     property are concerned and thus neither release deed nor
     sale deeds executed by Guiab Singh can be questioned
     by anyone much less by son of Guiab Singh:........... "

     5. Accordingly, the lower appellate court allowed the         H
    904      SUPREME COURT REPORTS                    [2013] 7 S.C.R.


A   appeal and set aside the judgment and decree of the trial court
    and dismissed the suit.

         6. Plaintiff, aggrieved by the same, preferred second
    appeal and the High Court dismissed the second appeal in
8   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 ....... "
c
          This is how the plaintiff is before us.

          Leave granted.

        7. Mr. L.Nageshwar Rao, learned Senior Counsel
D appearing on behalf of the plaintiff-appellant submits that at the
  time when the plaintiffs father Guiab Singh got the property in
  partition, it was his separate property vis-a-vis his relations but
  after the birth of the plaintiff on 25th of March, 1982, plaintiff
  acquired·interest in the property as a coparcener. Mr. Satinder
E S. Gulati, learned Counsel appearing on behalf of the
  defendant-respondents, however, submits that once the
  property fell into the share of the plaintiffs father Guiab 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
F 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
G Bhanwar Singh v. Puran, (2008) 3 sec 87 and our attention
  has been drawn to the following passage from the said
  judgment:

          "13. Section 6 o( the Act, as it stood at the relevant time,
          provided for devolution of interest in the coparcenary
H
   ROHIT CHAUHAN v. SURINDER SINGH & ORS.                      905
        ~HANDRAMAULI KR. PRASAD, J.]

    property. 'Section 8 lays down the general rules of                A
    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          B
    is alive, has not been included. Section 19 of the Act
    provides that in the event of succes~ion 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."                                                          c
      8. 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            D
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           E
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 has to be treated as        F
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               G
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
~~~:                                                                   H
    906       SUPREME COURT REPORTS                     [2013] 7 S.C.R.


A         "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
B         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
c         coparcener any alienation made by the karta would be
          valid."

          9. Now referring to the decision of this C9urt in the case
    of Bhanwar Singh (supra), relied on by respondents, the same
    is clearly distinguishable. In the said case the issue was in
D   relation to succession whereas in the present case we are
    concerned with the status of the plaintiff vis-a-vis his father who
    got property on partition of the ancestral property.

         10. A person, who for the time being is the sole surviving
E   coparcener as in the present case Guiab Singh was, before
    the birth of the plaintiff, was entitled to dispose of the
    coparcenary property as if it were his separate property. Guiab
    Singh, till the birth of plaintiff Rohit Chauhan, was competent
    to sell, mortgage and deal with the property as his property in
F 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 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
G 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
H
   ROHIT CHAUHAN v. SURINDER SINGH & ORS.                  907
        [CHANDRAMAULI KR. PRASAD, J.]
defendant no. 2 could have alienated the property only as Karta    A
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 Guiab Singh to the extent of entire coparcenary
property are illegal, ·null and void. However, in respect of the   B
property which would have fallen in the share of Guiab Singh
at the time of execution of sale-deeds and release deed, the
parties can work out their remedies in appropriate proceeding.

      11. In view of what we have observed above, the view         C
taken by the lower appellate court as affirmed by the High Court
is erroneous in law.

      12. In the result, we aUow 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     D
liberty aforementioned. In the facts and circumstances of the
case, there shall be no order as to costs.

R.P.                                          Appeal allowed.