The Supreme Court reaffirmed that upon partition, a coparcener’s share in the ancestral property is ancestral property as regards his male issue in which such male issue will have an interest by birth. As regards other relations, it is separate property.
The judgement was delivered by the Supreme Court in the matter of Shyam Narayan Prasad vs. Krishna Prasad, Civil Appeal No. 5415 OF 2011 decided on 02.07.2018.
The factual matrix of the present case was as follows: Gopalji was the common male ancestor of the Plaintiffs and the Defendants. The family property was partitioned on 31.7.1987 between Gopalji and his five sons, two out which were Defendants in the suit, namely, Laxmi Prasad and Shyam Narayan Prasad. Laxmi Prasad’s share of property consisted of shop situated at Singtam Bazar, East Sikkim, wherein a liquor shop is being run, while Shyam Narayan Prasad was allotted a shoe shop at Manihari, along with other properties.
Laxmi Prasad executed an agreement dated 30.1.1990 with his brother Shyam Narayan Prasad exchanging the liquor shop at Singtam Bazar, East Sikkim with the shoe shop at Manihari. The plaintiffs, who are the sons of Laxmi Prasad and Shyam Narayan Prasad and grandsons of Gopalji filed the aforesaid suit against the defendants for a declaration that the document dated 30.1.1990 is null and void.
It was the contention of the Plaintiffs that the subject matter of the deed of settlement dated 30.1.1990 is a joint family property. The plaintiffs, being the lineal descendants of Gopalji, are the members of the coparcenary. On the other hand, it was the case of the Defendants that the entire property of Gopalji was the self-acquired property and he had divided the property amongst his five sons by a deed of partition.
Having regard to the contentions urged, the primary question for consideration before the Court was whether the property in question retained the character of a coparcenary property.
The Court held that it is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property is that the sons, grandsons, and great grandsons of the person who inherit it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession. A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten.
The court held that the properties acquired by the Defendants in the partition, although are separate property qua other relations but it is a coparcenary property insofar as their sons and grandsons are concerned and the plaintiffs being their sons and grandson have a right in the said property.