Arshnoor Singh v. Harpal Kaur (2019)

The case does three jobs at once, and each is examinable on its own.

It states the date rule that decides whether inherited property is coparcenary at all: if the succession opened before the Hindu Succession Act 1956, the old Mitakshara law applies and the property is coparcenary in the heir's hands as against his male descendants; if it opened after, s. 8 makes it the heir's separate property. That reconciles Uttam v. Saubhag Singh with the classical rule instead of letting them collide.

It states the rule about a share taken on partition — that it retains the character of coparcenary property in the taker's hands as regards his male issue, who take an interest by birth whether born before or after the partition.

And it shows what happens when the alienee cannot discharge the burden of proving legal necessity: the sale is set aside, and a further sale by the first purchaser is caught by lis pendens.

Lal Singh owned large tracts of agricultural land in Village Khangarh, District Ferozepur, Punjab. He died in 1951, and his entire property was inherited by his only son, Inder Singh.

In 1964 Inder Singh partitioned the entire property between his three sons — Gurcharan Singh, Dharam Singh and Swaran Singh — in equal shares, by a decree in a civil suit. The three sons then transferred a one-fourth share back to their father for his sustenance, so that Inder Singh and each of his three sons held one fourth. Inder Singh died in 1970 and his one-fourth share was inherited by his widow, three sons and daughter.

The suit property was the land that came to Dharam Singh on that partition — about 119 kanals 2 marlas.

Dharam Singh's only son, Arshnoor Singh, the appellant, was born on 22 August 1985.

On 1 September 1999 Dharam Singh purportedly sold the entire suit property to Harpal Kaur by two registered sale deeds for an ostensible consideration of Rs. 4,87,500. The Sub-Registrar referred the deeds to the Collector as undervalued. Dharam Singh deposed at the trial that he had sold the property without any consideration whatever, and the purchaser had admitted the same before the Collector. In 2007 the purchaser executed a further sale deed in favour of two other respondents.

The son sued for a declaration that the property was coparcenary property that his father could not sell without legal necessity or benefit of the estate.

1. Was the suit property coparcenary property, or Dharam Singh's self-acquired property?
2. Were the sale deeds of 1999, and the further sale deed of 2007, valid?
3. Had the son locus standi to sue?

The property was coparcenary. The sale deeds of 1999 were cancelled as illegal, null and void, and the 2007 sale deed was cancelled as hit by lis pendens. The son had locus to sue.

First, on inherited property. Under Mitakshara law, where a male ancestor inherits property from a paternal ancestor within three degrees above him, his male heirs within three degrees below him take an equal right as coparceners in it by birth. But after the Hindu Succession Act 1956 came into force this position changed: if a person inherits self-acquired property from his paternal ancestors after the Act, it becomes his own self-acquired property and does not remain coparcenary property. The decisive question is therefore when the succession opened.

Here Lal Singh died in 1951, before the Act. Inder Singh took as coparcenary property under the old law, and that character was not altered by the Act's commencement.

Second, on a share taken on partition. The effect of a partition is to dissolve the coparcenary, so that the separating members hold their shares as separate property passing on death to their heirs. But if a member separating from his other coparceners remains joint with his own male issue, the share allotted to him retains the character of coparcenary property as regards that male issue. The Court adopts Valliammai Achi v. Nagappa Chettiar: the share a co-sharer obtains on partition of ancestral property is ancestral as regards his male issue, who take an interest in it by birth whether in existence at the partition or born afterwards.

So Dharam Singh's share remained coparcenary property as against his son, and Arshnoor Singh became a coparcener in it on his birth in 1985 — fourteen years before the sale.

Third, on the alienation. The karta's power to sell coparcenary property is subject to the restriction that the sale be for legal necessity or benefit of the estate, and the onus of establishing legal necessity is on the alienee. Legal necessity does not mean actual compulsion; it means pressure on the estate that the law may regard as serious and sufficient, judged by the actual pressure, the danger to be averted and the benefit to be conferred in the particular instance. The onus may be discharged by proof of actual necessity or by proof that the alienee made proper and bona fide enquiries into its existence and did all that was reasonable to satisfy himself.

Here the purchaser failed entirely. The sale deeds were without any consideration at all — on the seller's own deposition and the purchaser's own admission — which by itself showed the absence of legal necessity.

Fourth, on the further sale. Having no valid title, the first purchaser could pass none. The 2007 deed was hit by lis pendens: property transferred pendente lite by a transferor later held to have no title carries no title to the transferee.

The Court took the point head on, and an answer that misses it will get the two cases the wrong way round.

In Uttam the grandfather died in 1973, after the Act. The succession therefore opened under s. 8; the property was distributed under s. 8 and ceased to be joint family property in the hands of those who succeeded to it; and the appellant, born in 1977, was not a coparcener as to his grandfather's share.

In Arshnoor Singh the succession opened in 1951, before the Act. The old law governed, the property was coparcenary in Inder Singh's hands, and neither the Act nor the 1964 partition changed that character as against male descendants.

The distinguishing question is therefore always: on what date did the succession open?

Take any problem about ancestral property in three steps.

1. When did the person from whom it came die? Before 17 June 1956 the old Mitakshara law applies; after it, s. 8 applies and Chander Sen and Uttam make what passes the heir's separate property.
2. Has there been a partition since? If so, the share taken keeps its coparcenary character as against the taker's own male issue, who take by birth even if born later.
3. Was there an alienation? Put the burden where the Court puts it — on the alienee — and ask for proof of necessity, of benefit, or of proper and bona fide enquiry. A sale without consideration answers itself.