Can a Father Will Property Only to His Sons?

Lal Singh owned large tracts of agricultural land in Village Khangarh, District Ferozepur. He died in 1951, leaving his only son Inder Singh. A court decree dated 04.11.1964 divided Inder Singh’s property equally among his sons Gurcharan Singh, Dharam Singh and Swaran Singh; the three sons later transferred one-fourth share in the entire property back to Inder Singh for his sustenance, leaving Inder Singh and each son with a one-fourth share. The disputed land was Dharam Singh’s share, agricultural land of about 119 kanals 2 marlas.

Dharam Singh had one son, Arshnoor Singh, born on 22.08.1985 to his first wife. On 01.09.1999, Dharam Singh executed two registered sale deeds in favour of Harpal Kaur for an ostensible Rs. 4,87,500; the deeds covered 59 kanals 11 marlas each in Khasra Nos. 35 and 36. Because the deeds were undervalued, the Sub-Registrar sent them to the Collector, Ferozepur on 21.09.1999 under Section 47A of the Indian Stamp Act, 1999. Dharam Singh admitted before the Collector that no consideration had been exchanged and that the stated amount was mentioned only for registration, while Harpal Kaur admitted that she had paid no money; the Collector’s order dated 24.01.2000 recorded that the deeds involved no monetary transaction. Dharam Singh married Harpal Kaur on 29.09.1999, and their marriage was later dissolved by a decree dated 15.12.2010.

Arshnoor Singh became a major on 22.08.2003 and sued his father and Harpal Kaur on 23.11.2004. He sought a declaration that the land was coparcenary and that the two 1999 sale deeds were illegal, null and void, together with a permanent injunction. While the suit was pending, Harpal Kaur purported to sell the land jointly to Kulwant Singh and Jung Bahadur by a deed dated 30.10.2007.

The Additional Civil Judge, Ferozepur decreed the suit for Arshnoor Singh on 29.04.2011. Dharam Singh had deposed at trial that he executed the deeds without consideration because Harpal Kaur insisted on the transfer as a precondition for marriage. The Trial Court found the land ancestral coparcenary property and held that no legal necessity or benefit to the estate had been proved. The Additional District Judge, Ferozepur dismissed the first appeal on 13.01.2014.

The respondents in the second appeal argued that the suit was collusive because Dharam Singh’s marriage to Harpal Kaur had failed. The Punjab and Haryana High Court allowed the second appeal on 13.11.2018, holding that the coparcenary ended with the 1964 partition, that only Dharam Singh could challenge non-payment, and that the Jamabandis for 1957-58 to 1970-71 had not been produced. Dharam Singh died on 05.01.2017, while that appeal was pending.

The respondents relied on Uttam v. Saubhag Singh for the proposition that once joint-family property is distributed under Section 8 of the Hindu Succession Act, 1956, it ceases to be joint family property in the hands of the successors. In Uttam, the grandfather died in 1973, so succession opened after the 1956 Act. The Supreme Court held that decision inapplicable because Lal Singh died in 1951, before the Act commenced.

Under the old Mitakshara rule, property inherited by a male Hindu from his father, father’s father or father’s father’s father is ancestral property. Sons, grandsons and great-grandsons acquire rights in it at birth. After the 1956 Act, a person who inherits self-acquired property from paternal ancestors takes it as self-acquired property, not coparcenary property. But where succession opened before the Act, the inherited property remains coparcenary in the male heir’s hands for his male descendants up to three degrees below him, even after the Act comes into force.

The Court also held that the 1964 partition did not change that character. A share allotted to a coparcener on partition remains coparcenary for his own male descendants. Dharam Singh’s share therefore remained coparcenary for Arshnoor Singh, who became a coparcener when he was born on 22.08.1985.

The Supreme Court allowed the appeal and restored the Trial Court’s view. Arshnoor Singh was vitally affected by his father’s purported sale and therefore had the right to sue; the missing old Jamabandis did not affect title. In practical terms, a father cannot simply give coparcenary ancestral property to one son while another male descendant already holds a birthright in it.

• A post-1956 partition did not turn pre-1956 inherited land into self-acquired land; Dharam Singh’s share remained coparcenary for his male descendants, including Arshnoor Singh.
• The buyer of coparcenary land had to prove legal necessity or benefit to the estate. Harpal Kaur did neither, and the record showed that the 1999 deeds were without any consideration.

Because Harpal Kaur obtained no title from the 1999 deeds, she could not pass a better title to Kulwant Singh and Jung Bahadur. The 30.10.2007 sale was made while Arshnoor Singh’s suit was pending, so it was void under the doctrine of lis pendens. The Court ordered both sets of deeds cancelled and directed that Arshnoor Singh’s name be recorded in the Jamabandis as owner.

These scenarios answer two practical questions: can a son claim his father’s property while the father is alive, and can a father give ancestral property to one son?

• Collect the registered sale deeds, the Collector’s order showing that no monetary transaction occurred, the 04.11.1964 partition decree, available Jamabandis, and proof of birth date and lineage. In this case, those records established both the coparcenary character of the land and the absence of consideration.
• File a suit for declaration and permanent injunction in the civil court having jurisdiction over the land, as Arshnoor Singh did on 23.11.2004. If successful, ask for the owner’s name to be recorded in the Jamabandis, which is the precise relief ordered here.
• If you are the buyer of coparcenary property, gather evidence of legal necessity or benefit to the estate, including records of bona fide enquiries. The burden is on the buyer, and an ostensible sale without consideration will not meet it.
• Do not assume that a later partition, missing old Jamabandis, or the father’s position as sole surviving owner turned pre-1956 inherited land into self-acquired land. That was the High Court’s central error.