Is Partitioned Property Still Ancestral Property?

Rohit Chauhan's suit grew out of a partition among Budhu and his three sons: Guiab Singh, Zile Singh and Ram Kumar. In that partition, Guiab Singh received a 1/4 share, that is, 72 Kanals. Budhu also received 72 Kanals. He bequeathed 1/4 of it, 18 Kanals, to each of his three sons and kept 18 Kanals for himself. After Budhu died, Guiab Singh inherited a 1/3 share, that is, 6 Kanals. The judgment records that in this way Guiab Singh got 96 Kanals of land. He also acquired 8 more Kanals from the income of the properties he got in the partition among his father and brothers.

At the time of partition, Guiab Singh was unmarried. He later married Rajesh Rani, and Rohit and his sister Varsha were born from that marriage. Rohit was born on 25 March 1982. On 19 May 2000, long after Rohit's birth, Guiab Singh executed two sale deeds selling the 8 Kanals to three buyers. On 28 May 2004, he executed a release deed in favour of Surinder Singh, the son of his brother Zile Singh, releasing the 96 Kanals. Mutation entries were made in the revenue records on the basis of those deeds. Rohit sued to have the release deed, the sale deeds and the mutations declared illegal, null and void and not binding on him, Varsha or Rajesh Rani.

Surinder Singh offered two excuses. First, he said Rohit, his mother and his sister lived separately from Guiab Singh, that relations were bad and that they were not even on talking terms. He said he and his family had served and honoured Guiab Singh, who was pleased and executed the release deed out of love, affection and service. His second excuse went to the heart of the law. He argued that ancestral property after partition becomes self-acquired, so Guiab Singh could transfer the land as he desired. The buyers under the sale deeds said those deeds were validly executed.

The trial court found that the property was Guiab Singh's separate property as against his other relations, but that it took on the characteristics of coparcenary property when Rohit was born. It decreed the suit.

The first appellate court reversed that decree. It held that the 96 Kanals, received through a consent decree or a will, lost their coparcenary character and became Guiab Singh's self-acquired property, which he could deal with as he liked. The High Court dismissed Rohit's second appeal at the outset (in limine), saying the lower appellate court's finding was fully justified. The Supreme Court allowed Rohit's appeal.

The fight turned on a clash between two ideas. One is the coparcenary rule on devolution of interest under Section 6 of the Hindu Succession Act. The other is the general rule of succession under Section 8. Surinder Singh's lawyer argued that once the property fell into Guiab Singh's share, it lost its coparcenary character, and that this would not change on Rohit's birth. He added that even if Rohit had been born at the time of partition, he would not have got a share under Section 8. For this he relied on Bhanwar Singh v. Puran.

The Supreme Court found substance in Rohit's submission. This is the core of the Supreme Court's judgment on ancestral property partition. It said coparcenary property means property consisting of ancestral property, and a coparcener is a person who shares equally with others in inheritance in the estate of a common ancestor. It also noted that before the Hindu Succession (Amendment) Act, 2005 commenced, only male members of the family acquired by birth an interest in coparcenary property. A coparcener has no definite share, but he has an undivided interest, and that interest enlarges by deaths and diminishes by births in the family. It is not static.

The Court relied on M. Yogendra v. Leelamma N. and distinguished Bhanwar Singh. Bhanwar Singh was about succession. Rohit's case was about his status against his father, who had received property on partition of ancestral property.

The Supreme Court resolved the deadlock by tying the property's character to the birth of a son. Until that birth, the person holding the partition share can dispose of it as if it were separate property. After it, the son's interest exists.

On the effect of the birth, the Court said:

The Court added that the son would then acquire an interest in the property and become a coparcener.

• The Court rejected the lower courts' view that a share received on partition became self-acquired property for good. Guiab Singh was the sole surviving coparcener before Rohit was born. The moment Rohit was born, he got a share in his father's property and became a coparcener.
• The Court also closed the door on free alienation after that birth. Guiab Singh could then alienate the property only as Karta (head of the family) for legal necessity, and it was nobody's case that he had acted for any legal necessity. The deeds were held void to the extent of the entire coparcenary property. For the property that would have fallen in Guiab Singh's own share when the deeds were executed, the Court left the parties free to work out their remedies in an appropriate proceeding.

• The records the case turned on. The judgment shows a dispute built on the partition between Budhu and his sons, the two sale deeds dated 19 May 2000, the release deed dated 28 May 2004, and the mutation entries made on their basis (numbers 3365, 3110 and 3106). It was admitted that the land Guiab Singh got on partition was ancestral. The son's date of birth, 25 March 1982, was the fact on which the outcome depended.
• The forum route in this case. Rohit filed a suit for a declaration that the release deed, the sale deeds and the mutation entries were illegal, null and void and not binding on him. He won in the trial court, lost in the first appeal and the High Court's second appeal, and succeeded in the Supreme Court. For the portion that would have fallen in Guiab Singh's own share when the deeds were executed, the Court said the parties can work out their remedies in an appropriate proceeding.
• The legal-necessity test. After the son's birth, the judgment recognises alienation only as Karta for legal necessity. In this case, no one claimed that Guiab Singh had acted for any legal necessity.
• The error the Supreme Court corrected. The lower appellate court treated a partition share as permanently self-acquired property. The Supreme Court held that view erroneous in law. The release deed, which Surinder Singh said was given out of love, affection and service, was still held void to the extent of the entire coparcenary property.