SC: Selling coparcenary prop. w/o legal necessity/estate’s benefit is illegal

The Hon’ble Supreme Court, on 1stJuly 2019, in the matter of Arshnoor Singh v. Harpal Kaur &  Ors. observed thatif an alienee of a coparcenary property, fails to discharge the burden of proving that the Karta of such coparcenary property had sold the coparcenary property out of legal necessity or for the benefit of the estate, then in such event, the sale shall be cancelled as being illegal, null and void.

The Hon’ble Supreme Court observed that:

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. (Para 7.3)

After the Hindu Succession Act, 1956 came into force, Post – 1956, if a person inherits a self­acquired property from his paternal ancestors, the said property becomes his self­ acquired property, and does not remain coparcenary property. (Para 7.5)

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. (Para 7.6)

If succession of property of a Hindu male was opened prior to the commencement of the Hindu Succession Act, 1956, then even if the successor effects partition of the coparcenary property amongst his sons subsequent to the commencement of the Hindu Succession Act, 1956, the nature of the property shall remain as coparcenary property qua such successor’s male descendants upto three degrees below them. (This inference has been drawn on the basis of Para 7.7)

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. [Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520]. The onus for establishing the existence of legal necessity or making bona fide enquiries on the existence of the same.is on the alienee. (This inference has been drawn on the basis of Paras 8.1 and 8.2)

If an alienee of a coparcenary property, fails to discharge the burden of proving that the Karta of such coparcenary property had sold the coparcenary property out of legal necessity or for the benefit of the estate, then in such event, the sale shall be cancelled as being illegal, null and void. Furthermore, since such alienee does not obtain a valid and legal title to such property through the sale therefore, such alienee cannot pass on a better title to subsequent purchasers either, if any.  It is so due to the underlying principle of the doctrine of lis pendens as per which 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. [T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370.] (This inference has been drawn on the basis of Paras 8.3, 8.4 and 9)

Copy of judgement: Judgement_01-Jul-2019

Tushar Kaushik

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