The Hindu Succession Act, 1956: The Determinative Criteria Is “THE DATE OF OPENING OF SUCCESSION”

In the matter of: Arshnoor Singh V/s Harpal Kaur & Ors, Civil Appeal No. 5124/ 2019, Supreme Court of India, Date of Decision: 01.07.2019:

Facts:

1. ‘L’ was the owner of large tracts of agricultural land in Village Khangarh, District Ferozepur, Punjab.
2. ‘L’ was survived by one son, namely, ‘I’; that, ‘I’ was survived by three sons, namely, ‘G’, ‘D1’ and ‘S’, and one daughter, namely, ‘D2’.

• ‘D1’ was survived by one son, namely, ‘A’. Thus, ‘A’ was great-grandson of ‘L’.

1. ‘L’ passed away in the year 1951 and his entire property was inherited by his only son, that is, ‘I’.
2. In 1964, ‘I’ during his lifetime, effected partition of the entire suit property and thus, accordingly, gave 1/3^rd share in the entire suit property to ‘G’, ‘D1’ and ‘S’ respectively.
3. That ‘G’, ‘D1’ and ‘S’ transferred back a total of 1/4^th of the entire suit property to ‘I’ for his sustenance. Thus, ‘I’, ‘G’, ‘D1’ and ‘S’ held 1/4^th share each in the entire suit property.

• ‘I’ expired on 15.04.1970 and his 1/4^th share in the entire suit property was inherited by his heirs, that is, his widow, three sons and his daughter.
• That, as already stated, ‘D1’ was survived by one son, namely, ‘A’; and, ‘A’ was born to ‘D1’ on 22.08.1985.

1. ‘D1’ sold the portion of the suit property falling to his hands, post the death of ‘I’, to ‘R1’ vide two sale deeds dated: 01.09.1999 for Rs. 4, 87, 500/-.
2. On 29.09.1999, ‘D1’ got married to ‘R1’, and ‘A’ attained majority on 22.08.2003.
3. On 23.11.2004, ‘A’ filed a suit for declaration against ‘D1’ and ‘R1’ for declaration that the portion of suit property falling to the hands of ‘D1’ was in fact “coparcenary property”, and hence, the two sale deeds dated: 01.09.1999, executed by ‘D1’ in favour of ‘R1’ were illegal, null and void.

• During the pendency of the aforenoted suit, ‘R1’ entered into a transaction whereby she sold the portion of the suit property transferred to her by ‘D1’ to ‘R2’ and ‘R3’ vide sale deed dated: 30.10.2007.
• Later, ‘R1’ moved an application to implead ‘R2’ and ‘R3’ in the aforenoted suit filed by ‘A’ against ‘D1’ and ‘R1’ for the portion of the suit property falling in the hands of ‘D1’ after the death of ‘I’. That the aforesaid application was disposed of by the court with liberty granted to ‘R1’ to defend her rights.

Decision rendered by the Additional Civil Judge:

29. The Additional Civil Judge, Ferozepur vide order dated: 29.04.2011, decreed the suit in favour of ‘A’.
30. The Ld. Trial Court held that the portion of suit property falling to the hands of ‘D1’ after death of ‘I’ was in fact “coparcenary property”, ‘D1’ and ‘A’ being coparceners.

• The Ld. Trial Court further held that two sale deeds dated: 01.09.1999 executed by ‘D1’ in favour of ‘R1’ were illegal, null and void.

1. The Ld. Trial Court, lastly held that, ‘A’ was entitled to joint possession of the property with his father, ‘D1’.

Appeal before the Additional District Judge:

29. ‘R1’ along with ‘R2’ and ‘R3’ filed a common appeal before the Additional District Judge, Ferozepur against the order dated: 29.04.2011 passed by the Additional Civil Judge, Ferozepur.
30. That the Additional District Judge vide judgment and order dated: 13.01.2014 dismissed the appeal.

Second Appeal before the High Court of Punjab & Haryana:

13. That against the judgment and order dated: 13.01.2014, ‘R1’, ‘R2’ and ‘R3’ preferred regular second appeal before the High Court of Punjab & Haryana.
14. During the pendency of the regular second appeal, ‘D1’ expired on: 05.01.2017.

• That the Hon’ble High Court vide the judgment and order dated: 13.11.2018, allowed the regular second appeal by ‘R1’, ‘R2’ and ‘R3’ and set aside the concurrent findings of the courts below.

1. The Hon’ble High Court in its judgment and order observed that:

• ‘A’ had no locus to institute the suit against ‘D1’ and ‘R1’, since the coparcenary property ceased to exist after ‘I’ partitioned the property between his three sons in 1964.
• Jamabandis for the years 1957-58 till 1970-71 were not produced by ‘A’.

13. Against the judgment and order of the Hon’ble High Court, ‘A’ filed Special Leave Petition before the Hon’ble Supreme Court challenging the judgment and order dated: 13.11.2018.

Civil Appeal before the Supreme Court of India:

1. Before the Hon’ble Supreme Court, ‘A’ contended that:

• The suit property that fell in the hands of ‘D1’ post the demise of ‘I’ was coparcenary property, in which ‘A’ became the coparcener by birth.
• Since the afornoted property was coparcenary property, ‘D1’, as Karta of the Hindu Joint Family, could not have alienated it without necessity of the family, or benefit to the estate.
• Sale deed dated: 30.10.2007 was executed by ‘R1’ in favour of ‘R2’ and ‘R3’, during the pendency of the suit filed by ‘A’ against ‘D1’ and ‘R1’, and thus, the sale deed was hit by doctrine of lis pendens, and hence, the sale transaction was illegal, null and void.

1. Before the Hon’ble Supreme Court, ‘R1’, ‘R2’ and ‘R3’ contended that:

• Property that fell in the hands of ‘D1’ post the death of ‘I’ was to be treated as self-acquired property of ‘D1’.
• Sale deeds executed by ‘D1’ in favour of ‘R1’ were valid and not illegal.
• Issues for adjudication before the Hon’ble Supreme Court:
• Whether the property that fell in the hands of ‘D1’ post the death of ‘I’ was to be treated as coparcenary property in which ‘A’ also had a right and/or interest?
• Whether the sale deeds dated: 01.09.1999 executed by ‘D1’ in favour of ‘R1’ are valid?

1. That the Hon’ble Supreme Court observed that:

• ‘I’ inherited the entire suit property from his father ‘L’ upon his death. ‘L’ died in 1951. Thus, succession in this case opened in the year 1951, that is, before the commencement of the Hindu Succession Act, 1956.
• ‘I’ succeeded to his father’s property (property of ‘L’) in accordance with the old Hindu Mitakshara
• According to the Hindu Mitakshara law (position before the commencement of the Hindu Succession Act, 1956):
• All property inherited by a male Hindu from his father, father’s father or father’s father’s father, is ancestral property.
• The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights get attached to such property at the moment of their birth.
• A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his son, son’s son, and son’s son’s son, but as regards other relations, he holds it, and is entitled to hold it as his absolute property.
• In the matter of: Shyam Narayan Prasad V/s Krisha Prasad & Ors, (2018) 7 SCC 646, it was observed that:

“… The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.”

• After the Hindu Succession Act, 1956 came into force, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property.
• If succession gets opened under the old Hindu law, that is, prior to the commencement of the Hindu Succession Act, 1956, the parties are governed by Hindu Mitakshara Here, the property inherited by the male Hindu from his paternal male ancestor is coparcenary property in his hands vis-à-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.
• In the present case, the succession opened in the year 1951 on the death of ‘L’. Thus, the nature of the property inherited by ‘I’ was coparcenary in nature. Hence, the property that came in hands of ‘D1’ was coparcenary property, in which ‘A’ had a valuable right/ interest.
• In the matter of: Valliammai Achi V/s Nagappa Chettiar & Ors, AIR 1967 SC 1153, it was observed that:

“… It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards 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 …”

• The portion of the entire suit property that came in hands of ‘D1’ remained coparcenary property qua his son, that is, ‘A’, who became a coparcener on his birth on: 22.08.1985. Thus, ‘D1’ executed the two sale deeds in favour of ‘R1’ on: 01.09.1999, that is, after ‘A’ became a coparcener in the aforesaid property.
• ‘D1’ could not have sold the coparcenary suit property unilaterally, in which ‘A’ was a coparcener along with ‘D1’, by the alleged sale deeds dated: 01.09.1999. That the sale deeds dated: 01.09.1999 are illegal, null and void. Since, the title to the aforesaid property that came to ‘R1’ was not legal; ‘R1’ could not have passed a valid title to the aforesaid property to ‘R2’ and ‘R3’ respectively.
• That the underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property. The sale deed executed by ‘R1’ in favour of ‘R2’ and ‘R3’ on: 30.10.2007 is, therefore, null and void.

1. Result:

• Whether the property that fell in the hands of ‘D1’ post the death of ‘I’ was to be treated as coparcenary property in which ‘A’ also had a right and/or interest? Yes.
• Whether the sale deeds dated: 01.09.1999 executed by ‘D1’ in favour of ‘R1’ are valid? No.

Takeaway:

The position of law that existed before the enactment of the Hindu Succession Act, 1956 can be summarized as follows:

1. Under the Hindu Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property.
2. Under the Hindu Mitakshara law, the moment a son is born, he gets a share in father’s property and becomes part of the coparcenary.

Therefore, what is to be seen in each case is the date of opening of succession, in order to determine whether the old Hindu Mitakshara law will be applicable or the Hindu Succession Act, 1956 will be applicable.