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Judgment
K. Kannan, J.—The substantial questions of law that arise for consideration in this second appeal are: 1. Whether the property held by maternal uncle Arjan Singh of the plaintiff will devolve on succession or by survivorship to the defendants as male coparceners being brother''s sons of Arjan Singh?
Whether right of sale or mortgage exercised by a coparcener consistent only with a case of divided status or whether undivided property could be subject to alienation?
The plaintiffs suit for joint possession of 5/7th share in the property claimed to be the estate of one Arjan Singh was resisted by Arjan Singh''s brother''s sons. The contention was that the property in specific khasra numbers belonged to Arjan Singh and the plaintiff relied on jamabandi entries that showed entitlement of Arjan Singh to half share in some items and to whole of the property in some items. The defendants.. pleaded that the properties did not belong separately to Arjan Singh but they belonged to joint family consisting of Arjan Singh and Chanan Singh. Chanan Singh had pre-de-ceased Arjan Singh and the properties were enjoyed in common by Arjan Singh and the defendants as members of a Hindu undivided family. It was elicited in evidence and admitted by the plaintiff that there had been no partition of the properties between Arjan Singh and Chanan Singh by metes and bounds and that they were ancestral properties. The trial Court decreed the suit holding that the reference to half share of some items arid execution of sales and mortgages by Arjan Singh and Chanan Singh''s children proved separate enjoyment of the property and therefore, the property in suit must only be taken to be the separate properties to which the plaintiffs were entitled to stake the claim as heirs under the Hindu Succession Act. The Appellate Court reversed the judgment and made pointed reference to the admission of the plaintiffs that there had been no partition between Arjan Singh and Chanan Singh and that both of them obtained properties from their ancestors. The Court found that sale or mortgage by one or the other coparceners ought not to be taken as proof of partition and the property on the death of Arjan Singh on 14.12.1998 would go only by devolution of interest by survivorship u/s 6 of the Hindu Succession Act and not by succession.
The point which is urged before this Court is that the alleged admissions made by the plaintiff ought not to prevail over the jamabandi entries themselves which show clearly the entitlement of Arjan Singh to half share in specified items and full entitlement for some items while the defendants have been shown as having half share only in some items and there were also reference to mortgages and sales of some of the items which dealt with by the defendants. If these entries would show a separate enjoyment, then it should only be taken that brothers had divided the properties during the life time and the provisions of Section 8 of the Hindu Succession Act alone will operate to provide for a per capita distribution in the light of Section 8 read with Schedule I part IV and Section 10 of the Hindu Succession Act which provides for an equal distribution for Class II heirs.
In my view, there is a fundamental issue of whether right of sale would be available to any coparcener in an undivided status. The right of alienation of undivided coparcenary interest followed different systems of law across India. Bombay, Madras, Madhya Pradesh allowed for an undivided share in the coparcenary to be alienated. The Mitakshara Law as administered in some portions of Bengal and Uttar Pradesh provided for a different system that no coparcener could alienate even for value an undivided share without consent of other coparceners (para 257, 258 in Muila''s Hindu Law 25th Edition PP 402-403). The same rule regarding impermissibility of alienation applied also in the unified State of Punjab, Orissa and Oudh. In a judgment of a Division Bench of Lahore High Court in AIR 1933 343 (Lahore) , the challenge had been made by one coparcener that mortgage of joint family property effected by other coparcener was not valid and the Court referring a still earlier ruling in 1917 (19) BOMLR 646 (Privy Council) held that in Punjab, it was not open to a coparcener to alienate his undivided share in the joint family property under Hindu Law without the consent of other coparceners and if he alienated joint family property, it would be liable to be set aside as a whole. In this case, the learned Senior Counsel wanted to contend that there had been reference to some sales by one or the other of the brothers, which itself would show that the property had been partitioned. I find no scope, for such an argument in the light of clear evidence by each one of the plaintiffs'' witnesses admitting to the undivided status of both the brothers Arjan Singh and Chanan Singh. P.W.1, who is the son of their sister and one of the plaintiffs admitted in his cross-examination thus:
It is correct that khata of land of Arjan Singh and Chanan Singh is joint. No partition had been effected between them. It is correct that Chanan Singh (and) Arjan Singh got the land in question from Harnam Singh and Bala Singh their ancestors.
P.W.2 gave a different version that there had been a partition between two brothers but when pressed further in the cross-examination, he had admitted that he did not know when they had partitioned P.W.-3 also admitted in the evidence that "it is correct that the land of Arjan Singh and Chanan Singh and his descendants has not been partitioned and is joint one." This is only to bring home the point that the family remained joint and if there were references to any sales by one or the other of the coparceners, it could not have bound the non-alienating coparceners. The sales or mortgages did not refer to any specific items of property but they referred to a fractional share. It was also another way of saying that there had been no partition. Punjab Custom (Power to Contest) Act, 1920 was passed recognizing this custom and gave a power to interdict a sale to ancestral property and provided for an exception only to non ancestral property through Section 7. This was amended in the year 1973 and Section 7 was applied also to non-ancestral property, meaning thereby that the right to contest a sale of both ancestral property or separate property was lost.
Again the reference to half share ought not to mean that there was a partition, for if there had been a partition by metes and bounds, there was no need for even referring to a fractional share. It is only in situation of a jointness of interest where parties were enjoying for convenience some portions that the properties could still be shown as properties held in half share by Arjan Singh and half share by the sons of Chanan Singh. If there was also an admission by the plaintiffs themselves that properties had not been partitioned, they were not making an admission against the entries in jamabandi but they were admitting to an actual status of how their family lived. If Arjan Singh had not separated from his brother''s sons and it is also admitted that their entire holding came from their own male ancestors, then the inevitable consequence on death of the member of the family without leaving any heir under Class I of Schedule 1, would be that the property would go only by survivorship and not by succession. Section 6 as it was before 2005 Amendment made an exception for a succession in terms of Section 8 only in case where the deceased coparcener left behind a heir specified in Class I. The plaintiffs and the defendants were Class II heirs to the deceased Arjan Singh and therefore, the exception provided u/s 6 was not applicable. The relevant provision of Section 6 in the unamended provision along with proviso read as follows:--
Devolution of interest of coparcenary property.-
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
If the succession would not, therefore, operate and it would devolve by survivorship, the property would devolve only on the brother''s sons to the exclusion of the sister''s sons and daughters, the former being coparceners, while the latter being the daughter''s children could not have been deemed to be members of the Hindu undivided family. It must be remembered that all these observations are in relation to a case where the devolution of interest is brought before coming to the force of the Hindu Succession Amending Act, 2005 which mentions a different position in the manner of devolution of interest. The 2005 Amendment introduces the concept deemed coparceners to include the female heirs as well. We are not addressing the situation under the amended provisions and therefore, the decision taken by the Court below dismissing the plaintiffs'' suit was justified.
In view of the above discussion, I would hold that right of alienation to a coparcener in undivided status was not available till the year 1973 but by the Amendment Act, 1973 to the Punjab Custom (Power to Contest) Act, 1920 made possible even a right of alienation of an undivided share of a coparcener. If the property was undivided then the devolution of property of an undivided member would go only by survivorship and not by succession and consequently, the plaintiffs were not entitled to any share in the properties. They were excluded by the defendants. The second appeal is dismissed.