Dismissed

Hinchha Ram (Dead) Through Lrs. v. Smt. Shyama Bai

Chhattisgarh HC3 Feb 2020SA/215/2004

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal by the appellants challenging a trial court decree holding that the sale of ancestral property by the first appellant was invalid for want of legal necessity and that a will by the deceased wife was invalid as she could not dispose of joint family property.

What did the court decide?

Second appeal dismissed; plaintiffs entitled to possession of ancestral property as sale deeds were invalid and will was invalid.

Hinchha Ram (Dead) Through Lrs. Vs Smt… — Succession and Inheritance | Chhattisgarh HC (2020)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 215 of 2004
Judgment reserved on 14/01/2020
Judgment delivered on 03/02/2020

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1. Hinchharam, S/o Shri Dariyav Singh (died) through Lrs.

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a. Laxmi Bai W/o Meenaram, Aged about 52 years,
R/o Village Takam, Tahsil Berla, District
Bemetara, Chhattisgarh (Daughter).

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b. Hemin @ Jamuna Bai W/o Deenbandhu, Aged about
35 years, R/o Village Kandai, Post Ninva, Tahsil
and District Bemetara, Chhattisgarh (Daughter).

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2. Churaman Singh, S/o Shri Hinchharam, Aged about 35 years.

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3. Khemraj Singh, S/o Shri Hinchharam, Aged about 31 years.

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4. Dilip Kumar, S/o shri Hinchharam, Aged about 27 years.

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All are Agriculturist, R/o Village and Tahsil
Berla, Distt. Durg, Chhattisgarh.

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 --- Appellants/Defendants

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Versus

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1.Smt. Shyama Bai, Widow of Late Guharam, Aged
about 54 years, R/o Gheevri, Tahsil Saaja, Distt.
Durg, Chhattisgarh.

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2. Pyari Bai, Aged about 33 years, W/o not known, R/o Village Khairjhitee, Tahsil Saaja, Distt. Durg, Chhattisgarh.

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3. Indrani Bai, Aged about 30 years, W/o not known, R/o Village Khairjhitee, Tahsil Saaja, Distt. Durg, Chhattisgarh.

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--- Plaintiffs

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4. Kaijabai W/o Shri Tulsi (died) through Lrs.

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a. Tulsi (husband) (died and deleted).

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b. Loop Singh S/o Tulsi, Aged about 40 years, R/o
Village Hathmudi, Tahsil Saaja, District Durg,
Chhattisgarh.

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c. Sunder S/o Tulsi, Aged about 38 years, R/o
Village Hathmudi, Tahsil Saaja, District Durg,
Chhattisgarh.

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d. Smt. Champa Bai, R/o Near Kesdebri, Village

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Kodwa, Post Deverbeeja, Tahsil Berla, Distt.
Durg, Chhattisgarh.

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5.Dheliya Bai, W/o Shri Tilakram, Aged about 59
years, Occupation Agriculturist, R/o Sonesarar,
Tahsil dhamdha, Distt. Durg, Chhattisgarh.

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6.State of Chhattisgarh, Through District
Collector, Distt. Durg, Chhattisgarh.

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--- Respondents

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For Appellants/Defendants :-

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 Mr. Shashi Bhushan Tiwari, Advocate
For Respondents/Plaintiffs :-

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 Mr. H.S. Patel, Advocate

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For Respondent No. 6/State :-

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 Mrs. Astha Shukla, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Judgment

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1.This second appeal preferred by the appellants /

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defendants herein was admitted for hearing on the
following two substantial question of law :-

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“1. Whether both the Courts below were

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justified in arriving at a finding
that Dariyavsingh was not competent to
sell his undivided share ?

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2. Whether both the Courts below were

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justified in holding that will

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executed by Phafibai was not
genuine ?”

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(For the sake of convenience, parties would be
referred hereinafter as per their status and
ranking shown in the suit before the trial
Court.)

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2.The following genealogical tree would demonstrate
the relationship between the parties :-

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Bharat Singh
Dariyav Singh
Wife – Phafi Bai
Guharam
HinchharamKaijabaiDheliyabai
Wife – Shyama Bai
Def. No. 1Def. No. 4Def. No. 5
Plaintiff 1
ChuramanKhemrajDilip
 Def. No. 2Def. No. 3Def. No. 6

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Pyari BaiIndrani Bai
Plaintiff 2Plaintiff 3

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3.The suit property (land as well as house)
mentioned in Schedule 'A' and 'B' annexed with
the plaint situated at Village Takam, Tahsil
Berla was originally held by Dariyav Singh. He

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and his wife Phafibai had two sons namely
defendant No. 1 – Hinchharam and Guharam; and two
daughters namely defendant No. 4 – Kaijabai and

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defendant No. 5 – Dheliyabai. The three
plaintiffs are widow and daughters of Late
Guharam. Defendants No. 2, 3 and 6 are
Hinchharam's sons namely Churaman, Khemraj and
Dilip respectively.

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4. Plaintiffs filed a civil suit only for possession and mesne profit stating inter alia that the suit property was the ancestral property of their husband/father Guharam therefore, Dariyav Singh could not have alienated the suit property in favour of defendants No. 2 and 3 vide registered sale deeds dated 18/03/1971 (Exhibits P/1 and P/2) and thereafter, Phafibai i.e. widow of Dariyav Singh was also not competent to execute Will deed dated 15/07/1979 in favour of defendant No. 6 – Dilip, as such, the plaintiffs are entitled for partition and possession of the suit property as well as mesne profit.

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5. The defendants set up a plea that the suit property fell in share of Dariyav Singh during partition, therefore, he has rightly and

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competently alienated the suit property in favour
of defendants No. 2 and 3 by sale deeds dated
18/03/1971 (Exhibits P/1 and P/2) and after his
death, his widow Phafi Bai has rightly bequeathed
the suit property in favour of defendant No. 6 by
Will dated 15/07/1979, as such, the plaintiffs
are not entitled for possession of the suit
property shown in Schedule 'A' and 'B' annexed
with the plaint.

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6. Learned trial Court, after appreciating the oral as well as documentary evidence on record, vide its judgment and decree dated 11/09/2000, decreed the suit of the plaintiffs holding that the plaintiffs are title-holders of 3/8^th share in the suit property mentioned in Schedule 'A' and 'B' annexed with the plaint and also entitled for possession of the same as well as mesne profit.

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7.On appeal being preferred by the defendants,
learned first appellate Court, by its judgment
and decree dated 25/02/2004, affirmed with the
rest of the findings recorded by the trial Court
though held that plaintiff No. 1 is entitled for
1/16th share and plaintiffs No. 2 and 3 are
entitled for 229/640 in the suit property

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mentioned in Schedule 'A' and 'B' annexed with
the plaint.

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8. Questioning the judgment and decree passed by both the Courts below, this second appeal under Section 100 of the CPC has been preferred by the defendants No. 1, 2, 3 and 6/appellants herein in which two substantial questions of law have been framed and set out in the opening paragraph of this judgment.

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9.Mr.Shashi Bhushan Tiwari, learned counsel for the
appellants/defendants would submit that the suit
property fell in share of Dariyav Singh in
partition and therefore, he has rightly alienated
it in favour of defendants No. 2 and 3 vide sale
deeds dated 18/03/1971 (Exhibits P/1 and P/2)
which was not sought to be declared illegal or
invalid by the plaintiffs while filing the suit,
as such, both the Courts below ought not to have
set aside the said sale deeds and moreover, the
Will executed by Phafi Bai in favour of defendant
No. 6 has already been proved by examining two
attesting witnesses i.e. D.W. 2 namely Damar
Singh and D.W. 5 namely Durga Prasad, thus, both
the findings recorded by the Courts below that

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Will executed by Phafi Bai in favour of defendant
No. 6 has not been proved in accordance with law
is perverse and contrary to record, as such, the
second appeal deserves to be allowed and the
plaintiffs' suit deserves to be dismissed with
cost(s).

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10.Mr.H.S.Patel,learnedcounselforthe

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respondents/plaintiffs would submit that the suit
property was the ancestral property of the
parties in hands of Dariyav Singh which Dariyav
Singh was not entitled to alienate in favour of
defendants No. 2 and 3 that too without
consideration (Exhibits D/2 and D/3) and they
have failed to have the legality necessity for
sale of that property and the Will in question
executed by Phafi Bai in favour of defendant No.
6 has not been proved in accordance with law,
therefore, both the Courts below are absolutely
justified in granting decree in favour of the
plaintiffs and the second appeal deserves to be
dismissed.

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11.I have heard learned counsel for the parties,
considered their rival submissions made herein-

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above and went through the records with utmost
circumspection.

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Answer to substantial question NO.1:-

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12.The three plaintiffs, being widow and daughters
of Guharam, instituted a suit on 07/04/1971 for
partition and possession of the suit property
(land and house) shown in Schedule 'A' annexed
with the plaint and also the property shown in
Schedule 'B' annexed with the plaint alleging the
said property to be coparcenary property in which
he had also share in the said property, which was
refused by Dariyav Singh, father of Guharam
(defendant No.1) and his brother Hinchharam (both
died during the pendency of the suit) and it was
pleaded by defendant No.1-Hinchharam that Dariyav
Singh has already transferred the suit lands by
two sale deeds dated 18/03/1971 (Exhibits P/1 and
P/2) in favour of defendant No. 2-Churaman and
defendant No. 3-Khemraj and delivered the
peaceful possession to them and Guharam and the
plaintiffs had no right and title over the suit
property. During the pendency of the suit,
Dariyav Singh's wife Phafi Bai also died and the
Will dated 15/07/1979 allegedly executed by her

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in favour of Dilip (defendant No. 6) was
introduced and it was also pleaded that the
plaintiffs have no right/title over the suit
property which the trial Court did not accept and
decreed the suit holding that though they have
partitioned the suit property of Schedule 'A' and
'B' in three parts in the year 1966 as a part of
family arrangement for the purpose of separate
residence and cultivation, but revenue records
remained uncorrected and Guharam, predecessor-in-
title of the plaintiffs, died in the year 1970
and thereafter, Dariyav Singh executed two sale
deeds dated 18/03/1971 (Exhibits P/1 and P/2)
transferring the suit property in favour of
defendants No. 2 and 3 to frustrate the claim of
the plaintiffs.

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13.A careful perusal of the records would show that
the suit property i.e. 78.46 acres along with
suit house was originally held by Bharat Singh,
father of Dariyav Singh, it was ancestral
property, which Dariyav Singh received by
inheritance, as such, the nature of property in
hands of Dariyav Singh was ancestral property.
Dariyav Singh had two sons namely Hinchharam and
Guharam. In the month of Chait-Baishakh of 1966

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Dariyav Singh separated the suit property between
his sons-Hinchharam & Guharam and wife-Phafibai
situated at two villages-Takan and Taksiva in
three shares only for the purpose of separate
residence and cultivation by way of family
arrangement, but it was not recorded in revenue
records, but it was not partition at all in metes
and bounds. Thereafter, in Kuwar month of 1970,
Guharam-predecessor-in-title of the plaintiffs
died and his widow Shyambai-plaintiff No.1 wanted
to remain possession of her husband's share, but
she was not allowed to continue in possession of
the suit property and was compelled to leave her
matrimonial house and property which was in
possession of Guharam was taken over by Dariyav
Singh, thereafter the plaintiffs filed a suit on

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7.4.71 seeking partition and possession as
Hinchharam and Dariyav Singh dispossessed
Guharam's widow after death of Guharam and
Dariyav Singh sold the suit property by
registered sale deeds dated 18/03/1971 (Exhibits
P/1 and P/2) to minor sons of Hinchharam
(defendants NO.2 and 3 herein).

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14.The fact remains that the suit property was
coparcenary property in the hands of Dariyav

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Singh as it is well settled that all property
inherited by a male Hindu from his father,
father's father or father's father, 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 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 sons, sons sons,
and sons son and sons sons sons, but as regards
other relations, he holds it, and is entitled to
hold it as his absolute property. Mulla's Hindu
Law, 22nd Edition, page 327 states as under:-

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“All property inherited by a made Hindu
from his father, father's father, father's
father's father is ancestral propriety. The
essential feature of ancestral property
according to Mitakshara law is that the
son's, grandson's and great-grandson's of
the person who inherits it, acquire an
interest, and the rights attached to such
property at the moment of their birth.

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A person inheriting property from his three
immediate paternal ancestors holds it, and
must hold it, in coparcenary with his sons,
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.”

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15.The aforesaid principle of law has been followed
recently by the Supreme Court in the matter of
Arshnoor Singh v. Harpal Kaur and others1.

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16.The question for consideration would be, whether
two sale deeds executed by Dariyav Singh in
favour of defendants NO.2 and 3 (minor sons of
Hinchharam) were valid or not ?

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17.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 alinee.

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18.In the matter of Smt.Rani and another v.
Smt.Santa Bala Debnath and others2 the Supreme
Court held as under:-

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“10. Legal necessity to support the sale
must however be established by the
alienees. Sarala owned the land in dispute
as a limited oner. She was competent to
dispose of the whole estate in the property
for legal necessity or benefit to the
estate. In adjudging whether the sale
conveys the whole estate, the actual
pressure on the estate, the danger to be
averted, and the benefit to be conferred
upon the estate in the particular
insistence must be considered. Legal

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1 AIR 2019 SC 3098

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2 1970(3) SCC 722

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necessity does not mean actual compulsion:
it means pressure upon the estate which in
law may be regarded as serious and
sufficient. The onus of proving legal
necessity may be discharged by the alinee
by proof of actual necessity or by proof
that he made proper and bona fide enquiries
about the existence of the necessity and
that he did all that was reasonable to
satisfy himself as to the existence of the
necessity.”

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19.The principle of law laid down in Smt.Rani
(supra) has been recently followed by the Supreme
Court inArshnoor Singh (supra).

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20.The Supreme Court, in the matter of Vallimmai
Achi v. Nagappa Chethiar3, has held that a father
cannot convert joint family property into
absolute property of his son by merely making a
Will, depriving sons of son and held as under :-

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“10. But even assuming that there was some
kind of election by Pallaniappa we cannot
see how the nature of the property left by
Pallaniappa's father would change merely
because Pallaniappa's father made a will
givingtheresidueabsolutelyto
Pallaniappa and Pallaniappa took out
probate of the will. The property being
joint family property Pallaniappa's father
was not entitled to will it away and his
making a will would make no difference to
the nature of the property when it came
into the hands of Pallaniappa. A father
cannot turn joint family property into
absolute property of his son by merely
making a will, thus depriving sons of the
son who might be born thereafter of their
right in the joint family property. It is

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3 AIR 1967 SC 1158

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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 : [see Hindu Law by Mulla,
Thirteenth Edition p. 249, para 223 (2)
(4)]. If that is so and the character of
the ancestral property does not change so
far as -sons are concerned even after
partition, we fail to see how that
character can change merely because the
father makes a will by which he gives the
residue of the joint family property (after
making certain bequests) to the son. A
father in a Mitakshara family has a very
limited right to make a will and
Pallaniappa's father could not make the
will disposing of the entire joint family
property, though he gave the residue to his
son. We are therefore of opinion,that
merely because Pallanappa's father made the
will and Pallaniappa probably as a dutiful
son took out probate and carried out the
wishes of his father, the nature of the
property could not change and it will be
joint family property in the hands of
Pallaniappa so far as his male issues are
concerned.

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11.Further it is equally well settled that
under the Mitakshara law each son upon his
birth takes an interest equal to that of
his father in ancestral property, whether
it be movable or immovable. It is very
important to note that the right which the
son takes at his birth in the ancestral
property is wholly independent of his
father. He does not claim through the
father...." (see Mulla's Hindu Law,
Thirteenth Edition, p. 251, para 224). It
follows therefore that the character of the
property did not change in this case
because of the will of Pallaniappa's father
and it would still be joint family property
in the hands of Pallaniappa so far as his
male issue was concerned. Further as soon
as the respondent was adopted he acquired
interest in the joint family property in

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the hands of Pallaniappa and this interest
of his was independent of his father
Pallaniappa. In such circumstances even if
Pallaniappa could be said to have made an
election there can be no question of the
respondent being bound by that election,
for he is not claiming through his father.”

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21.Similarly, in the matter of V.K. Surendra v. V.K.

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Thimmaiah and Ors.4, the Supreme Court has
clearly held that in absence of any division in
the family, joint family continues as joint
family, and karta has no right to change the
character of the joint family properties by
transferring the same under a Will or gift
without consent of other co-percerner and
pertinently observed as under :-

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“18...In absence of any division in the
family of Kunnaiah and his sons, we hold
that the family of Kunnaiah continued to
be the joint family. If a co-parcener of a
joint family claims that properties are
his self-acquired properties, the burden
is on him to prove that the same are the
self-acquiredproperties.Inthat
background the High Court has rightly held
that Kunnaiah had no right to change the
character of the joint family properties
by transferring the same either under a
Will or a gift to any party without the
consent of the other co-parceners.”

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22.Reverting to the facts of the present in light of

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the principles of law relating to transfer of
joint family property by karta/one of the co-

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parcener, it is quite vivid that suit property 4 (2013) 10 SCC 211

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was the joint family property at the hands of
Dariyav Singh and Guharam – husband/father of
plaintiff was one of the co-parcener in that
property was one of the co-parcener in that
property. There was no partition or division of
joint family property during the lifetime of
Dariyav Singh except for the purpose of separate
residence/agricultural operation in the year
1966, but after the death of Guharam –
plaintiffs' predecessor-in-title, Dariyav Singh
possessed all the properties which were joint
family properties and transferred them by two
sale deeds in favour of defendants No. 2 and 3
without legal necessity and that too, without
payment of any consideration; since the suit
property was joint family property/co-parcenery
property and there were no partition or division
of the suit property, it could not have been
alienated without legal necessity as it is,
therefore, sale deeds dated 18/03/1971 (Exhibits
P/1 and P/2) would have no effect and it will not
be binding on the plaintiffs. It is quite
apparent from the records that sale deeds were
executed without any consideration as they have
failed to prove legal necessity. Accordingly, the

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substantial question of law No.1 is answered in
favour of the plaintiffs and against the
defendants.

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Answer to substantial question of No.2 :-

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23.Since, the suit properties were the joint family
properties of Dariyav Singh and his son with no
division, Phafi Bai could not have made a Will
dated 15/07/1979 in favour of defendant No. 6
Dilip and could not have changed the character of

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the joint family property by making a Will
without the consent of other co-parceners. Even
otherwise, both the Courts below have rejected
the theory of Will holding that defendant No. 6
has failed to establish the execution and
attestation of the Will in accordance with
Section 63(c) of the Hindu Succession Act read
with Section 68 of the Indian Evidence Act. I do
not find any illegality or perversity in said
finding. Accordingly, the substantial question of
law No.2 is answered in favour of the plaintiffs
and against the defendants.

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24.Consequently, the second appeal being devoid of
merit is liable to be and is hereby dismissed
leaving the parties to bear their own cost(s).

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25.Decree be drawn-up accordingly.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

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HIGHIGH COURT OF CHHATTISGARH, BILASPUR

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Order Sheet

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SA No. 215 of 2004

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Hinchharam (died) through Lrs. & Ors. Versus Smt. Shyama Bai & Ors.

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SB Hon'ble Shri Justice Sanjay K. Agrawal

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10.02.2020

In final judgment dated 03/02/2020 passed in this second
appeal, respondent No. 5 namely Dheliya Bai had already died
and substituted by her legal representatives who were brought on
record, but inadvertently, they were omitted from being included
in the cause title of the final judgment, therefore, this order be
read as a part of the final judgment and the following be read in
the said judgment as legal representatives of deceased
respondent No. 5 :-
5. Dheliya Bai (died) through Lrs. :-
(a). Kapur Lodhi, Aged about 56 years, S/o Late Shri Tilak
Lodhi.
(b). Seva Ram Lodhi, Aged about 54 years, S/o Late Shri
Tilak Sahu.
(c). Rajkumar Lodhi, Aged about 50 years, S/o Late Tilak
Sahu.
All are sons of Dheliya Bai and R/o Village Sonesarar,
Tahsil Dhamdha, Distt. Durg, Chhattisgarh.
(d). Pramin, Aged about 58 years, W/o Geeta Lodhi, R/o
Village Hardi, Post Nandani, Tahsil Dhamdha, District Durg,
Chhattisgarh.
(e). Usha, Aged about 53 years, W/o Dinesh R/o Village
Kanharpuri, Post and Tahsil Dhamdha, District Durg,
Chhattisgarh.

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(f). Amrika, Aged about 52 years, W/o Babala, R/o Village
Harneet Surujpura, Post Chikhla, Tahsil Berla, District Bemetara, Chhattisgarh. (g). Munni, Aged about 48 years, W/o Premlal, R/o Village Bagledi, Post Beeja, Tahsil Saja, District Bemetara, Chhattisgarh. (h). Sumitra, Aged about 46 years, W/o Govind R/o Village Bijetala, Post Mulmunda, Tahsil and District Durg, Chhattisgarh. (i). Renka, Aged about 35 years, W/o Sanat, R/o Village Murmunda, Tahsil and District Rajnandgaon, Chhattisgarh. (j). Jamvati, Aged about 32 years, W/o Ghanshyam R/o Village Kanharpuri, Tahsil Dhamdha, District Durg, Chhattisgarh. (k). Annpurna, Aged about 30 years, W/o Ashwani R/o Village Surajpura, Post Chikhla, Tahsil Berla, District Bemetara, Chhattisgarh. (l) Gajendra, Aged about 28 years, S/o Surendra, R/o Village Latiya, Post Mulmula, Tahsil and District Durg, Chhattisgarh. A copy of this order be given to the parties along with the final judgment and decree. Certified copy, as per rules. Sd/- (Sanjay K. Agrawal) Judge

(f). Amrika, Aged about 52 years, W/o Babala, R/o Village

Harneet
Surujpura, Post Chikhla, Tahsil Berla, District Bemetara,
Chhattisgarh.
(g). Munni, Aged about 48 years, W/o Premlal, R/o Village
Bagledi, Post Beeja, Tahsil Saja, District Bemetara, Chhattisgarh.
(h). Sumitra, Aged about 46 years, W/o Govind R/o Village
Bijetala, Post Mulmunda, Tahsil and District Durg, Chhattisgarh.
(i). Renka, Aged about 35 years, W/o Sanat, R/o Village
Murmunda, Tahsil and District Rajnandgaon, Chhattisgarh.
(j). Jamvati, Aged about 32 years, W/o Ghanshyam R/o
Village Kanharpuri, Tahsil Dhamdha, District Durg, Chhattisgarh.
(k). Annpurna, Aged about 30 years, W/o Ashwani R/o
Village Surajpura, Post Chikhla, Tahsil Berla, District Bemetara,
Chhattisgarh.
(l) Gajendra, Aged about 28 years, S/o Surendra, R/o
Village Latiya, Post Mulmula, Tahsil and District Durg,
Chhattisgarh.
A copy of this order be given to the parties along with the
final judgment and decree.
Certified copy, as per rules.
Sd/-
(Sanjay K. Agrawal)
Judge

Hinchha Ram (Dead) Through Lrs. v. Smt. Shyama Bai

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Hinchha Ram (Dead) Through Lrs. v. Smt. Shyama Bai

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