The Supreme Court on 01 July 2019, delivered a judgement on the appeal of a great grandson, whose father has, as a precondition to his Marraige with another, sold certain ancestral property, without any consideration, and the receiver has further sold the property to yet another.
The father in his deposition had stated
that he executed the Sale Deeds without any monetary consideration since Respondent No.1 insisted on transfer of the suit property in her name as a pre-condition for marriage.
The Trial Court held that the suit property was ancestral coparcenary property of the
father and the Appellant.
Respondent No.1 failed to prove that the father of the appellant had sold the suit
property to her for either legal necessity of
the family, or for the benefit of the estate.
"In the absence of any legal necessity, or
benefit to the estate of the joint Hindu family, the Sale Deeds dated were illegal, null and void" the court held.
Furthermore, are the following excerpts from the judgment:
"Under 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."
"After the Hindu Succession Act, 1956 came into force, this position has undergone a
change. Post–1956, 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 opened under the old Hindu law, i.e. 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 visàvis
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 in1951 on the death of" the great grand father..
"It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. The onus for establishing the existence of legal necessity is on the alienee."
As a consequence, the Sale Deeds effected by Respondent 1 were "cancelled as being
illegal, null and void."
The father of the appellant "could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds."
"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."
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The father in his deposition had stated
that he executed the Sale Deeds without any monetary consideration since Respondent No.1 insisted on transfer of the suit property in her name as a pre-condition for marriage.
The Trial Court held that the suit property was ancestral coparcenary property of the
father and the Appellant.
Respondent No.1 failed to prove that the father of the appellant had sold the suit
property to her for either legal necessity of
the family, or for the benefit of the estate.
"In the absence of any legal necessity, or
benefit to the estate of the joint Hindu family, the Sale Deeds dated were illegal, null and void" the court held.
Furthermore, are the following excerpts from the judgment:
"Under 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."
"After the Hindu Succession Act, 1956 came into force, this position has undergone a
change. Post–1956, 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 opened under the old Hindu law, i.e. 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 visàvis
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 in1951 on the death of" the great grand father..
"It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. The onus for establishing the existence of legal necessity is on the alienee."
As a consequence, the Sale Deeds effected by Respondent 1 were "cancelled as being
illegal, null and void."
The father of the appellant "could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds."
"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."
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