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Case Number

Second Appeal No. 118 of 1976

Attorney(S)

S.K.Dey
M.Mishra
B.R.Rao
B.L.N.Swamy

Judges

Hon'ble Mr. Justice Sachidananda Acharya

Acts

HINDU SUCCESSION ACT 1956
provisions of Section 19(b) of that Act

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

Laxman Sahu died after the Hindu Succession Act, 1956 came into effect. Defendant No. 1 (the son) and Defendant No. 2 (the widow) inherited property that formerly belonged to Laxman. Defendant No. 1 executed a registered sale deed (Ext. 1) dated 10-01-1966 selling Ac. 2.16 of land to the plaintiff. Those facts are admitted.

The plaintiff's pleading alleged that Defendant No. 1 succeeded to the properties, acted as karta and manager of the joint family, sold the suit land for legal necessity and for the benefit of the estate, delivered possession to the plaintiff, and that the plaintiff cultivated the land. Defendant No. 2 later initiated a Section 145 Cr.P.C. proceeding in 1967 and asserted possession; Defendant No. 1 remained ex parte in the suit.

Defendant No. 2's case was that Defendant No. 1 was a minor when Ext. 1 was executed, that no consideration was paid, that the sale was not for any legal necessity or family benefit, that Defendant No. 2 became manager after Laxman's death, and that possession of the suit property was never delivered to the plaintiff.

The trial court found Defendant No. 1 to be a major, to have been the karta managing the family property, and that the sale was for consideration and for legal necessity/benefit. However, the trial court held that Defendant No. 2 was not a coparcener of Defendant No. 1 and so Defendant No. 1 could only sell his own interest; it concluded the plaintiff acquired only Defendant No. 1's undivided half interest and could recover possession of half the suit property. Mesne profits were denied.

The plaintiff appealed to the court below in Title Appeal No. 47/73; Defendant No. 2 filed Title Appeal No. 48/73. The court below heard both appeals together and, on the central issues contested at that stage, held that Defendant No. 1 was a major and the sale was for legal necessity, and declared the plaintiff entitled to right, title and interest to the entire suit property; it directed delivery of possession of the entire suit property and allowed Title Appeal No. 47/73 while dismissing Title Appeal No. 48/73.

Defendant No. 2 filed two second appeals; one (Second Appeal No. 129/76) was dismissed before admission. The present second appeal challenges the decision in respect of Title Appeal No. 47/73.

Legal Issues Presented

Whether the suit was maintainable and whether a decree could be executed though the daughters of Defendant No. 2 (daughters of Laxman) were not made parties to the suit.
Whether Defendant No. 1 was a minor at the time of the execution of the sale deed Ext. 1 and, if so, whether any title passed to the plaintiff; more broadly, whether the sale was effective to transfer title (and to what extent) given the nature of succession and the operation of the Hindu Succession Act, 1956.

Arguments of the Parties

Respondent / Plaintiff (represented by Mr. Dey)

Challenged the maintainability of the second appeal, contending that matters raised by the appellant in Title Appeal No. 47/73 had already been decided against her and that Second Appeal No. 129/76 (challenging related findings) had been dismissed, so permitting this appeal could produce conflicting decrees.
Conceded, however, that the narrower question whether the sale under Ext. 1 bound Defendant No. 2 in its entirety or only to the extent of Defendant No. 1's share could be agitated in this appeal.

Appellant / Defendant No. 2 (represented by Mr. B. R. Rao)

Conceded that the concurrent factual findings of the courts below—that Defendant No. 1 was not a minor, was the karta, and that the sale was for consideration and for legal necessity—could not be challenged in this second appeal because Second Appeal No. 129/76 had been dismissed.
Contended that the property recorded in Laxman's name was Mitakshara coparcenary property, and that on Laxman's death his heirs (son, widow and daughters) succeed only to his distinct undivided interest under Sections 6, 8, 9, 10 and by application of Section 19(b) of the Hindu Succession Act, 1956; such heirs take as tenants in common, not as coparceners.
Argued that therefore Defendant No. 1 could not, as karta, deal with the shares of the widow or daughters; possessing joint occupation, Defendant No. 1 could not validly dispose of a portion of the property (the suit land) without first partitioning and carving out his own share, because Defendant No. 2 had an interest in every portion of the property.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1971 P. Govinda Reddy & Others v. Golla Obulamma (Full Bench)	Support for the proposition that when the proviso to Section 6 of the Hindu Succession Act applies, the interest of the deceased coparcener is carved out of the coparcenary, ceases to be part of coparcenary property and vests in heirs; consequently the karta cannot exercise powers over that carved out interest.	The Court relied on this decision to hold that the deceased's distinct share is not part of the coparcenary and that Defendant No. 1 could not exercise karta powers over Laxman's carved out interest; this supported limiting the effect of any disposition to the seller's own share.
AIR 1975 Mad 51 — Veerasekhara v. Amirthavalliammal (Division Bench)	Confirms that the deceased coparcener's interest is carved out from the joint family property at death and vests in heirs under the Act, and that the karta has no right to deal with that carved out interest thereafter.	The Court applied this principle to conclude that although a karta's power ends as regards the carved out interest, that does not automatically render a sale by a son of his own distinct parcel invalid; rather disposition holds only qua his own share.

Court's Reasoning and Analysis

The Court proceeded on the statutory framework provided by the Hindu Succession Act, 1956 (in particular Sections 6, 8, 9, 10 and Section 19(b)) and on the notional partition concept. It reasoned as follows:

The Act operates such that on the death of a coparcener the deceased's undivided interest must be ascertained by reference to a notional partition immediately before death. Applying that rule, Laxman's notional share would have been one-third (⅓) of the property had an actual partition occurred immediately before his death. That ⅓ is the distinct interest carved out and devolves under the Act on his heirs.
Under Section 19 (and the cited authorities), the heirs succeed to that carved-out interest as tenants in common, not as coparceners; therefore female heirs and the son are not coparceners vis-à-vis that carved-out portion. By consequence, the karta's powers do not extend to the carved-out interest.
The Court accepted precedent (Full Bench and Division Bench decisions cited) establishing that where the proviso to Section 6 applies the joint family continues but the deceased's interest ceases to form part of the coparcenary and the karta cannot deal with it.
Notwithstanding that limitation on the karta's powers, the Court emphasized that an heir may still validly dispose of his own interest in the property even if actual partition (by metes and bounds) has not yet occurred. Such a disposition, however, will only be effective qua the seller's share and the purchaser can obtain possession of the specific parcel only when partition of the property is effected or the seller's distinct share is otherwise carved out.
Applying the facts: evidence (including Defendant No. 2's own deposition and another witness) indicated about 50–60 acres existed; Defendant No. 1 had a substantial (major) share of that acreage. The suit land (Ac. 2.16 decs.) is a small portion that can be carved out of Defendant No. 1's share. Therefore Defendant No. 1 was competent to sell that parcel to the plaintiff to the extent of his own share, and by valid sale the plaintiff stepped into Defendant No. 1's shoes as to that parcel.
The Court concluded that while the plaintiff thereby acquired valid right, title and interest in the Ac. 2.16 decs., the plaintiff could not obtain immediate exclusive possession because the larger holding remained in joint possession of Defendant Nos. 1 and 2; exclusive possession would follow partition or other carving out of Defendant No. 1's distinct share.

The Court therefore upheld the lower court's declaration of title in respect of Ac. 2.16 but set aside the lower court's direction to deliver exclusive possession to the plaintiff at this stage.

Holding and Implications

The appeal is allowed only to the extent stated: the decree is modified.

Holding (core rulings):

The declaration that the plaintiff acquired right, title and interest in the suit property measuring Ac. 2.16 decs. by virtue of Ext. 1 is confirmed.
The court below's direction to deliver exclusive possession of the suit property to the plaintiff is set aside; the plaintiff cannot obtain exclusive possession until Defendant No. 1's distinct share is carved out by partition or otherwise.
All other directions and orders of the court below are confirmed. The decree is modified accordingly and there will be no order as to costs of this appeal.

Implications:

The decision clarifies (in the context of this dispute) that an heir's power to sell his own undivided share survives even if an actual partition has not been effected, but the alienee's right to exclusive possession is contingent on partition or carving out of that share.
The Court applied the principle that the interest of the deceased coparcener carved out under the Hindu Succession Act vests in heirs as tenants in common, and that the karta cannot exercise powers over that carved-out interest — limiting a karta's authority but not automatically invalidating sales by an heir of his own share.
The decision does not purport to create a broader new precedent beyond applying the cited Full Bench and Division Bench authorities and the statutory scheme; its immediate effect is the modification of the decree in this suit (title confirmed for Ac. 2.16; possession direction set aside). No costs were awarded in this appeal.

Decree modified.

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Kastura Sahuani v. Das Seth And Another

1. Defendant No. 2 has preferred this appeal against the decision of the District Judge, Bolangir-Kalahandi in so far as it relates to Title Appeal No. 47 of 1973.

2. One Laxman Sahu died after coming into effect of the Hindu Succession Act, 1956. Defendant No. 1 is the son and defendant No. 2 is the widow of the said Laxman Sahu. Defendant No. 1 executed the registered sale deed Ext. 1 dated 10-1-1966 in favour at the plaintiff in respect of Ac. 2.16 of land out of the properties which devolved on him and his mother, defendant No. 2 on the death of his father. The above facts are not disputed. The plaintiff's case in short is that:

3. Defendant No. 1 succeeded to the properties of his father after the death of Laxman and he (D. 1) remained in possession of the same and was functioning as the karta and manager of the said joint family properties. Defendant No. 1, for legal necessity of the family as well as for the benefit of the estate, sold the suit land (Ac. 216), described in the schedule attached to the plaint, by a registered sale deed dated 10-1-1966 for a consideration of Rs. 3,500/- to the plaintiff. Since after the execution of the sale deed possession of the suit land was delivered to the plaintiff and he continued to cultivate the same on his own right. In 1967 defendant No. 2 initiated a proceeding under Section 145 of the Cr PC and in accordance with the incorrect decision, in that proceeding she is in possession of the suit land. Hence this suit.

4. Defendant No. 1 did not contest the suit and he has been set ex parte.

5. The case put forward by defendant No. 2 is that:

6. Defendant No. 1 was a minor on the date of the execution of the sale deed Ext. 1 in favour of the plaintiff; no consideration was paid by the plaintiff to defendant No. 1 for the said sale; the said sale was not for any legal necessity or benefit of the family or the estate; after the death of Laxman, defendant No. 2 became the manager of the joint family; defendant No. 1 was not managing the family affairs or the properties of Laxman; possession of the suit property was never delivered to the plaintiff and that defendant No. 2 was and is all through in possession of the entire family property including the suit property as the manager of the family and its properties.

7. The trial court held that defendant No. 1 was not a minor at the time he executed the sale deed Ext. 1; defendant No. 1 was the karta of the family and he was managing the family properties and its affairs at the time of the execution of the sale deed Ext. 1 : the said sale deed was executed on receipt of due consideration and that the said sale was for legal necessity and benefit of the estate. Having arrived at the aforesaid findings that court however held that as defendant No. 2 was not a coparcener of defendant No. 1, the question of legal necessity or benefit of the estate in respect of the said sale would not arise in this case, and so defendant No 1 could validly sell his own interest in the suit property without even any legal necessity or benefit of the estate. But it held that defendant No. 1 was not competent to sell away defendant No. 2's interest in the joint properties and so the plaintiff under the sale deed Ext. 1 could acquire title to the suit property only to the extent of defendant No. 1's undivided half interest in the suit property and to no more. It also decided that as the plaintiff acquired half interest in the undivided suit property he could recover possession of half of the suit property from defendant No. 2. The plaintiff's prayer for mesne profits was disallowed.

8. Against the aforesaid findings and decision of the trial court, the plaintiff preferred Title Appeal No. 47/73, and defendant No. 2 preferred Title Appeal No. 48/73 in the court below. Both these two appeals were heard together, and at that stage only the following two points were agitated for decision:

(i) Whether the suit is maintainable and whether the decree can be executed, though admittedly the daughters of defendant No. 2 were not made parties; and

(ii) Whether defendant No. 1 was minor at the time of the suit sale deed, and if so, whether any title passed to the plaintiff ?

9. The first question was not allowed to be agitated in view of that court's earlier decision dated 4-7-1975 by which defendant No. 2's prayer for amending the written statement by adding the daughters of Laxman Sahu as parties to the suit and the appeal was disallowed on contest.

10. With regard to the second question, the court below has decided that defendant No. 1 was not a minor but was a major at the time of the execution of the sale deed Ext. 1; he was the Karta of the joint family consisting of defendants Nos. 1 and 2 at the time of the said transaction; the sale was for legal necessity, and hence the plaintiff acquired good right, title and interest to the entire suit property covered by the sale deed Ext. 1. The plaintiff's title in the entire suit property has been declared and his suit has been decreed with costs. It has also directed that the plaintiff would recover possession of the entire suit property without any partition suit, and that he could institute a separate suit against defendant No. 2 for mesne profits. Accordingly Title Appeal No. 47/73 was allowed and Title Appeal No. 48/73 was dismissed.

11. Against the decision of the court below, two second appeals, being the present one and Second Appeal No. 129/76, were filed by defendant No. 2. Second Appeal No. 129/76, which was in respect of the matters agitated in Title Appeal No. 48/73, was dismissed before its admission. The present second appeal, therefore, is in respect of only the questions agitated in Title Appeal No. 47/73 and the findings thereon.

12. Mr. Dey, the learned counsel for the respondent No. 1 (plaintiff in the suit), at the outset challenged the maintainability of this appeal by saying that the questions agitated by the appellant (defendant No. 2) in Title Appeal No. 47/73 having been decided against her and her Second Appeal No. 129/76 against the findings in that first appeal having been dismissed by this Court, this appeal was not maintainable, as any decision in this appeal might give rise to two conflicting decrees in the same suit. In course of hearing on this point. Mr. Dey, however, concedes that in this appeal the question, as to whether the sale of the suit property as per Ext. 1 was binding on defendant No. 2 in its entirety or only of a portion thereof, can be agitated and decided in this appeal.

13. Mr. B.R Rao, the learned counsel for the appellant, concedes that the concurrent findings of fact of the courts below that defendant No. 1 was not a minor at the time of the execution of the sale deed Ext. 1; that he was the Karta of the family and was managing the family affairs at the time of the said sale; that the said sale deed was for consideration and it was for legal necessity and benefit of the estate, cannot be challenged in this appeal in view of the dismissal of Second Appeal No. 129/76, Mr. Rao, however, contends that the property recorded in the name of Laxman, of which the suit property is only a portion, was admittedly Mitakshara coparcenary property of Laxman and defendant No. 1, and Laxman died leaving behind him his son (D. 1), widow (D. 2) and daughters. So the entire property devolved by succession on the said heirs under the provisions of the Hindu Succession Act, 1956 - (hereinafter referred to as the ‘Act’), and under the provisions of Section 19(b) of that Act heirs succeed to that property as tenants in common and not as joint tenants. Therefore, defendant No. 1 was not entitled to deal with the said coparcenary property as Karta thereof from the moment of Laxman's death. It is further submitted that as defendants 1 and 2 were and are in joint possession of the said property, defendant No. 1 was not entitled to dispose of a portion thereof, which the suit property, without carving out his share in the same by partition as defendant No. 2 has interest equivalent to her share in every bit of the said property.

14. It is not correct to say that the son (D. 1), the widow (D. 2), and daughters, if any, succeeded to the entire property as tenants in common. On the rules laid down in Sections 6, 8, 9 and 10 of the Act, only the undivided interest or share of Laxman devolved by succession on his son, widow and daughters, if any. The undivided interest or share of the deceased-coparcener in a case of this nature has to be ascertained on the footing of a notional partition immediately before the death of the deceased. The persons who would be entitled to a share on the notional partition would be ascertained according to the Hindu law of joint family and partition in force on the date of the death of the coparcener, and their share has to be computed according to the law of partition applicable to the parties on the date of the death of the deceased. In the, present case, if a partition had in fact taken place immediately before the death of Laxman, he would have been entitled to ⅓rd share in the said property, as defendant No. 2 would have become entitled to get a share equal to that of defendant No. 1, and so the property would have been divided in three equal shares. On the coming into effect of the Hindu Succession Act, only the said ⅓rd interest of Laxman shall be deemed to have been carved out of the entire property and that distinct share would cease to form a part of the coparcenary property from the moment of the death of Laxman. That distinct share only will devolve by succession on Laxman's son (D. 1), widow (D. 2) and other heirs under the Act, if any. By the application of Section 19, such heirs of Laxman succeed together only to the said ⅓rd interest of Laxman, and they take that property as tenants in common and not as joint tenants. On the application of the proviso to Section 6 of the Act, the joint family may continue but the interest of the deceased in the coparcenary property is carved out of the entire property, and that distinct share ceases to form a part of the coparcenary property from the moment of the death of the coparcener, and that separate and carved out interest vests in the different heirs of the deceased coparcener as per the provisions of the Act from the time of the death of the coparcener.

15. My above view gets direct support from the Full Bench decision reported in AIR 1971 P. Govinda Reddy & Others.… (Plaintiffs);* v. Golla Obulamma… (Defendant).) and the Division Bench decision reported in AIR 1975 Mad 51 (Veerasekhara v. Amirthavalliammal). Therefore, it is not correct to say that defendants 1 and 2 and the daughters of Laxman if any succeed together as tenants in common to the entire property recorded in the name of Laxman.

16. However, Mr. Rao's contention, that after the death of Laxman defendant No. 1 could not exercise the power of a Karta in relation to the share of defendant No. 2 and her daughters in the aforesaid property, has some force and substance. Defendant No. 2, or her daughters if any were not coparceners along with defendant No. 1, and they succeed to Laxman's distinct ⅓rd interest in the aforesaid property along with defendant No. 1 as tenants in common. So, though defendant No. 1 was the Karta of the family he could not exercise the powers of a Karta in respect of that ⅓rd share of deceased Laxman, as the heirs under the Act would succeed to that portion of the property as tenants in common and there is no coparcenary between the son and the female heirs of Laxman.

17. In the Full Bench decision reported in AIR 1971 Andh Pra 363 it has been held that (at p. 374):—

“xx xx xx if the proviso of

18. Section 6 of the Act applied on account of the existence of the heirs referred to therein, there will be of course no disruption of joint family status but the coparcenary property will not include the interest of the deceased coparcener by reason of succession under the Act and it will not then be available to the coparceners and heirs as coparcenary property and the Kartha in relation thereto therefore cannot exercise his powers as a Kartha. The interest having devolved on various heirs in specified shares and such heirs being tenants in common in relation to that property, the Kartha of the joint family property to which the coparceners belong cannot represent the female heirs who are not coparceners.”

19. In the decision reported in AIR 1975 Mad 51 a Division Bench of that Court held (at p. 57):—

“xx xx xx the joint family or coparcenary continues, but the interest of the deceased coparcener in the coparcenary property is carved out from the entire joint family property and it ceases to form part of the coparcenary property from the moment of the death of the coparcener concerned and that separate and carved out interest vests in different heirs of the deceased coparcener as per the provisions of the Act at the moment of the death of the coparcener, Consequently, the kartha will have no right to deal with that property thereafter. Since the right of the Kartha to deal with the property is dependent upon the property being joint family property, once the particular interest ceases to be part of the joint family or the coparcenary property, the right of the Kartha with reference thereto automatically and inevitably comes to an end.

20. In the present case though defendant No. 1 has no right to act as a Karta in respect of Laxman's interest in aforesaid property, in the facts and circumstances of this case the sale of suit property (which is only Ac. 2.16 out of the said entire lands) by him cannot, as urged by Mr. Rao, be decaled to be illegal or invalid.

21. True it is that actually there has been no partition of the entire property by metes and bounds between defendants 1 and 2, and so defendant No. 1's distinct portion that property has not as yet been carved out. But merely because of that the right of disposition of one of the heirs of his or her own interest in the said property is not affected or fettered. But such disposition will hold good only to extent of his or her share in that property, and the alienee can have possession of the same only when partition of the property is effected.

22. In this case, from the deposition of defendant No. 2 herself and D.W 2, her another witness, it is evident that Laxman has left behind about 50 to 60 acres of land. Defendant No. 1 has certainly a major share out of the said 50 to 60 acres of land. So, undoubtedly defendant No. 1 could sell only Ac. 2.16 decs. of land out of his aforesaid share in the said property. This sale of course will not affect in any way the interest or share of the other heirs in the property.

23. By the sale deed Ext. 1 defendant No. 1 has of course sold distinct parcels of land out of the said property though his portion out of the same has not yet been carved out by partition and the entire property is in the joint possession of defendants 1 and 2. There is also nothing on record to show that the suit property was or is somehow in the exclusive possession of defendant No. 1. But merely because of that, the sale of only Ac. 2.16 decs. of the suit land by defendant No. 1 in favour of the plaintiff cannot be declared invalid. in view of the fact that defendant No. 1 has a major share in the said 50 to 60 acres of land, and the suit land being only a small fraction of the same, can easily be carved out of his portion. By purchasing the said property by a valid sale deed on payment of consideration the plaintiff has stepped into the shoe of defendant No. 1 in respect of the suit property. That being so, the plaintiff has acquired valid right. title and interest in the suit property, but he cannot obtain exclusive possession of the same at present as the entire property is till in joint possession of defendants 1 and 2. The plaintiff can recover possession of the suit property when defendent No. 1's distinct share in the entire property is carved out by partition or otherwise. Mr. Dey, the learned counsel for the respondents, is not able to contest the above conclusion.

24. On the above considerations, the ultimate conclusion of the court below that the plaintiff has acquired right, title and interest in the suit property, measuring Ac. 2.16 decs. is confirmed. But the direction of the court below to deliver possession of the suit property in favour of the plaintiff has to be and is hereby set aside. The other directions and orders of the court below are confirmed.

25. The appeal is allowed only to the extent stated above. The decree be modify accordingly. In the circumstances, there will be no order as to costs of this appeal.

26. Decree modified.

Kastura Sahuani v. Das Seth And Another

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent / Plaintiff (represented by Mr. Dey)

Appellant / Defendant No. 2 (represented by Mr. B. R. Rao)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kastura Sahuani v. Das Seth And Another

Comments