Supreme Court of India
HARDEO RAIversusSAKUNTALA DEVI AND OTHERS
- Citation
- 2008 INSC 538
- Decided
- 29 April 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The Supreme Court held that the land was not joint family property, the appellant was not a coparcener, and the admission of separate possession gave rise to a presumption of partition, thereby permitting specific performance.
Summary
In 1978 the appellant entered into a sale agreement with the respondent's father, representing that the land was already partitioned among co‑sharers and each held separate possession. The buyer paid part of the price and was given possession, but the seller failed to execute a sale deed, leading the buyer to sue for specific performance under Section 20 of the Specific Relief Act, 1963. The seller contended that he was forced to sign a blank paper and that the land was joint family (Mitakshara coparcenary) property, which would preclude specific performance. The trial court decreed in favour of the buyer; the first appellate court reversed on the ground of joint family ownership, and the High Court reinstated the trial court's decree. The Supreme Court held that there was no evidence the appellant was a coparcener or that the property was held in joint family; his own admission of separate possession created a presumption of partition, allowing specific performance. Consequently, the appeal was dismissed and the trial court decree upheld.
Issues considered
- Whether the subject land constituted joint family (Mitakshara coparcenary) property.
- Whether the appellant was a member of the coparcenary and could alienate the property.
- Whether a presumption of partition arises from separate possession of the parties.
- Whether specific performance under Section 20 of the Specific Relief Act, 1963 is available in the present facts.
Legislation cited
Subjects
Specific performanceJoint family propertyMitakshara coparcenaryPartition presumptionHindu lawSpecific Relief ActSale deed
Judgment
[2008] 7 S.C.R.1
HARDEO RAI A
v.
SAKUNTALA DEVI AND OTHERS
(Civil Appeal No. 3040 of 2008)
J., APRIL 29, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Specific Relief Act, 1963 - s. 20 - Suit for specific
performance of execution of sale deed in terms of sale
agreement - Seller's case that property was joint family c
property and sale agreement was scribed due to forcible
execution - Suit decreed by trial court, however, set aside by
appellate court - In appeal, .the Division Bench upholding the
order of trial court - Correctness of - Held: There was no
evidence to show that parties were in joint possession of the
D
property - Seller himself admitted that he and his other co-
sharers were in separate possession of the property - Also
the first appellate court did not hold that seller was member .of
Mitakhshara coparcenary- More so, suit was decreed in 1981
and the buyer was put in possession of property and thereafter,
the coparceners of seller did not file any suit - Thus, order of E
trial court calls for no interference.
Hindu law - Mitakashra Coparcenary property and Joint
Family property - Distinction between. - Held: Mitakashra
Coparcenary is a body of individuals created by law whereas F
ioint family is constituted by agreement of the parties.
The appellant and the respondent's father entered
into an agreement to sell a property. In the agreement, the
appellant made a representation that the joint family
property was partitioned and the co-sharers were in G
....,. possession of the separate properties. Respondent's
father paid certain sum out of the total amount and was
put in the possession of the property. However, the
1 H
2 SUPREME COURT REPORTS [2008] 7 S.C.R.
A appellant did not execute the sale deed. Respondent filed
suit for specific performance. Appellant contended that
he was forced to sign a blank stamped paper on which
agreement of sale was scribed later; and that the property
was a joint family property. Respondent's father was
B examined. The scribe of the agreement as also witnesses
were examined. Trial court decreed the suit. The appeal
by the appellant was allowed on the ground that the
property was a joint family property. Aggrieved,
respondent filed appeal and the DivisiOn Bench of High
C Court allowed the same. Hence, the present appeal.
Dismissing the appeal, the Court
HELD: 1.1 There exists a distinction between a
Mitakashra Coparcenary property and Joint Family
property. A Mitakashra Coparcenary carries a definite
0
concept. It is a body of individuals having been created
by law unlike a joint family which can be constituted by
agreement of the. parties. A Mitakashra Coparcenary is a
creature of law. Thus, it is necessary to determine the
status of the appellant and his brothers. [Para 17] [8-D, E]
E
1.2. For the purpose of assigning one's interest in
the property, it was not necessary that partition by metes
and bounds amon_gst the coparceners must take place.
When an intention is expressed to partition the
F coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once the
share of a co-parcener is determined, it ceases to be a
coparcenary property. The parties in su.ch an event would
not possess the property as "joint tenants" but as
G "tenants in common". [Para 21] [10-A, B]
1.3 Even a coparcenary interest can be transferred
subject to the cond.ition that tile purchas;~r without the
consent of his other coparceners cannot get possession.
He acquires a right to sue for part:tion. Where a
H
HARDEO RA! v. SAKUNTALA DEVI AND OTHERS 3
coparcener takes definite share in the property, he is A
owner of that share and as such he can alienate the same
by sale or mortgage in the same manner as he can dispose
of his separate property. [Paras 22 and 24] [10-C, F]
....... 2.1 The first appellate court did not arrive at a
conclusion that the appellant was a member of a 8
Mitakashra co-parcenary. The source of the property was
not disclosed. The manner in which the properties were
being possessed by the appellant vis-a-vis, the other co-
owners had not been taken into consideration. It was not
held that the parties were joint in kitchen or mess. No other C
documentary or oral evidence was brought on record to
show that the parties were in joint possession of the
properties. One of the witnesses examined on behalf of
the appellant admitted that the appellant had been in
separate possession of the suit property. Appellant also D
in his deposition accepted that he and his other co-
sharers were in separate possession of the property.
[Paras 19 and 20][9-E, F, G]
2.2. The representation made by the appellant is
noticed. If the representation to the respondents' father E
was incorrect, _the appellant should have examined his
brothers. He should have shown that such a
representation was made under a mistaken belief. He did
nothing of that sort. [Para 23] [10-D]
F
2.3. In view of the admission made by the appellant
himself that the parties had been in separate possession,
for the purpose of grant of a decree o.f specific
performance of an agreement, a presumption of partition
can be drawn. The Single Judge of the High Court G
committed a serious error in so far as it failed to take into
considerati"on the essential ingredients of a Mitakshra
Coparcernary. [Paras 26 and 27] [10-G, H; 11-A, B]
2.4. The agreement was entered into in the year 1978.
H
4 SUPREME COURT HEPORTS [2008] 7 S.C.R.
A The suit had been decreed on 7 .2.1981. Respondents'
father had been put in poss•~ssion of the property. No suit
has been filed by the alleged coparceners of the
defendant/appellant so long. Therefore, there was no
reason to interfere with the judgment and decree passed
B by the trial court. [Para 31) [11-G, H; 12-A)
· State Bank of India vs, Ghamandi Ram (Dead) through
Gurbax Raf AIR 1969 SC 1330 - held inapplicable.
M. VS. Manikayala Rao vs. M. Naraisimhaswami and
c Ors. AIR 1966 SC 470; Dhanu Pathak vs. Sona Koeri (1936)
XVII Patna Law Times 380; Bageshwari Prasad Duivedi vs.
Deopati Kuer and Amr. AIR 1961 Patna 416 - referred to.
CIVIL APPELALTE JURISDICTION : Civil Appeal No.
3040 of 2008.
D "'\
From the final Judgment and Order dated 16.11.2006 of
the High Court of Judicature at Patna in Letter Patent Appeal
No. 1334 of 1997.
Nagendra Rai, Ansul Raj, Joseph Gaurav and T. Mahipal
E for the Appellant.
Gaurav Agrawal for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
F
2. Appellant is aggrieved by and dissatisfied with a
judgment and order dated 15th November, 2006 passed by a
Division Bench of the Patna High Court in LPA No.1334of1997
whereby and whereunder a judgment and order dated 15th
G September, 1997 passed by a learned Single Judge of the said
Court was set aside.
3. Appellant and the father of respondents herein had
entered into an agreement to sell a property admeasuring 18
kathas and 5 dhurs of land situate in the District of Begusarai
H on or about 10th April, 1978. In the said agreement a
~·
HARDEO RAI v. SAKUNTALA DEVI AND OTHERS 5
[S.B. SINHA, J.j
representation was made by the appellant herein that a partition A
.I.
of the joint family property had taken place and each of four co-
sharers had been in possession of separate portions of the
property allotted to them.
.-L, 4. Father of the respondents had paid a sum ofRs.16,000/
- out of the total consideration of Rs.25,000/-. They were put in B
possession of 16 kathas and 5 dhurs of land. The balance
amount of Rs.9,000/-togetherwith interest of Rs.4,000/-was to
be paid within 4 months from the date of agreement of sale i.e.
1oth August, 1978.
c
5. Admittedly the said agreement was scribed by PW-14,
Ram Gulam Pandit;, PW-11, Garib ~ath Chaudhary & PW-12,
Narayan Singh were witnesses to the said agreement.
6. A.s despite notice, the appellant failed and/or neglected
to execute a sale deed in terms of the said agreement a suit D
praying for specific performance thereof, which was registered
as Title Suit No . 79 of 1978, was filed in the Court of the
Subordinate Judge, Begusarai.
7. In his writt~n statement, the appellant raised two E.
defences:
a) he was forcibly mad~ to sign blank stamped papers
whereon the purported agreement of sale was
scribed later on.
b) that the said property was a joint family property. F
8. Respondents' father in support of his case examined
himself as a witness. The scribe of the agreement as also the
witnesses were also examined in the said suit.
9. Appellant also examined 7 witnesses to prove his case. G
DW-2, Geeta Rai, admitted that the appellant had been in
possession of the land in dispute. Even appellant in his
deposition before the learned trial Judge, although stated in the
examination-in-chief that he and his brothers had not been in
separate possession of the land, in the cross-examination H
6 SUPREME COURT REPORTS [2008] 7 S.C.R.
A stated as under:-
"Bhiku Rai is my uncle. He has Yi share on the south of the
said property. My 4 kathas and 19 dhurs is measured with
15 kathas of land on which there is my house. I have Yi
share in that there is no plot of 3 kathas and 6 dhurs.
B Brajkishore does not have possession over any plot
Khasra No.1971 is measuring 1 bigha and 17 dhurs. There
is my share as well as shar e of Bhiku Rai in the south of
0
the said property. There is no plot of 4 kathas. No part in
possession of Brajkishsore Rai. I have possession over
c the land over which there is brick kiln Khasra No.2526 is
as measuring 17 kathas. My share is from the east."
10. Appellant, however, failed to explain the stipulation
contained in the said agreement that a partition of the joint family
property had already taken place. 13rothers ofthe appellant were
0
not examined to prove joint possession. Existence of the
coparcenary had not been established. The learned trial court
keeping in view the nature of the 1~vidences brought on record,
decreed the suit, dis-believing the defence of the appellant that
the said agreement was an outcome of a forcible execution. It,
E however, did not enter into the question in regard to jointness of
the property.
11. On an appeal having been preferred therefrom, the
appellate court allowed the appeal of the appellant by a judgment
F and decree dated 15th September, 1997 on the sole ground
that the suit property was a joint family property.
The first appellate court in its judgment held :-
"11. In his evidence the defendant has explained his alleged
admission of private partition in the family in the. Mahda in
G
q1,.1estion. According to him his signature and left thumb
impression was forcibly, on the point of gun, obtained by
th.e plaintiff on blank papers and later on a forged and
fabricated Mahdanama was scribed over those papers.
H 12. I find that even in the Mahdanama (Ext.1 ), it stood
HARDEO RAI v. SAKUNTALA DEVI AND OTHERS 7
[S.B. SINHA, J.]
recited that rent receipt of entire joint family lands were A
issued only in the name of Ram Autar Rai, the father of the
defendant. I further find that DWs 2, 5 and 6 and the
defendant himself as OW 7 have supported jointness in
the family of the defendant at the time of execution of the
alleged Mahdanama and till date. Even after the death of B
his father in the year 1986. Nothing in their cross-
examination has been taken by the plaintiff to discredit
their testimony in the regard. The defendants' case that
the lands shown is schedule A to the plaint have no separate
identification and it stood amalgamated on the spot with c
other lands belonging to the family is supported by the
report (Ext.8) of the Advocate Commissioner (DW-3). In .
such situation not1mly jointness of the defendant with his
brothers and father was proved, the plaintiffs claim for
being put in possession over 16 kathas 5 dhurs, including D
the brick kiln (schedule B) on 10.4.1978 was also falsified."
12. The first appellate court, however, failed to determine
the issue as to whether the signatures of the appellant were
. forcibly obtained. In fact it did not enter into the said question at
all. E
13. The Division Bench of the High Court, as noticed
hereinbefore, allowed the appeal preferred by the respondents
herein.
14. Mr. Nagendra Rai, learned senior counsel appearing F
on behalf of the appellant, would submit that keeping in view the
specific defence raised by the appellant herein that the property
in question was a joint family property, it was obligatory on the
part of the trial court as also the Division Bench of the High
Court to go into the said question.
G
15. The Division Bench, Mr. Rai would contend, wrongly
proceeded on the basis that the suit of the respondents could
be decreed only on the basis of the representation made by the
appellant herein.
H
8 SUPREME COURT REPORTS [2008] 7 S.C.R.
'
A 1!). Mr. Gaurav Agrawal, learned counsel appearing on
behalf of the respondents, on the other hand, would submit:-
i) Jointness of a family must be established having
regard to jointness of kitchen and mess, which having
not been proved and on the contrary, separate
B possession of the appellant in the property having
been admitted, ther1e is no infirmity in the impugned
judgment.
ii) . Main defence of the! appellant in the $Uit being that
c he had not executed the document, and the same
having been found to be incorrect by the learned "trial
court there is no infirmity in the impugned judgment
particularly when no finding contrary thereto was
arrived at by the firnt appellate court.
D 17. There exists a distinction between a Mitakashra
Coparcenary property and Joint Family property. A Mitakashra
Coparcenary carries a definite concept. It is a body of
individuals having been created by law unlike a joint family which
can be constituted by agreement of the parties. A Mitakashra
E Coparcenary is a creature of law. It is, thus, necessary to
determine the status of the appellant and his brothers.
18. We may at the outseit notice the characteristics of a
Mitakakashra Coparcenary from the decision of this Court
whereupon Mr. Rai has placed strong reliance being State Bank
F of India vs. Ghamandi Ram (Dead) through Gurbax Rai : AIR
"'-
1969 SC 1330.
Therein this Court was concerned with a notification
issued by the Government of Pakistan in terms of Section 45 of
the Pakistan (Administration of Evacuee Property) Ordinance,
G
1949. We may, however, notice the dicta laid down therein :
"7. According to the Mitakshara School of Hindu Law all
the property of a Hindu joint family is held in collective
ownership by all the coparceners in a quasi-corporate
H capacity. The textual authority of the Mitakshara lays down
HARDEO RAI v. SAKUNTALA DEVI AND OTHERS 9
[S.B. SINHA, J.]
- in express terms that the joint family property is held in A
trust for the joint family members then living and thereafter
to be born (See Mitakshara, Chapter I. 1-27). The incidents
of co-parcenership under the Mitakshara law are: first, the
lineal male descendants of a person up to the third
.....; generation, acquire on birth ownership in the ancestral B
properties of such persqn; secondly that such descendants
can at any time work ou.t their rights by asking for partition;
thirdly, that till partition each member has got ownership
extending over the entire property conjointly with the rest;
fourthly, that as a result of such co~ownership the c
possession and enjoyment of the properties is common;
fifthly, that no alienation of the property is possible unless
it be for necessity, without the concurrence of the
coparceners, and sixthly, that the interest of a deceased
member lapses on h.is deatn to the survivors. A coparcenery
D
7' under the Mitakshara School is a creature of law and
cannot arise by act of parties except in so far that on
adoption the adopted son becomes a co-parcener with
his adoptive father as regards the ancestral properties of
the latter."
E
19. The first appellate court did not arrive at a conclusion
that the appellant was a member of a Mitakashra co-parcenary.
The source of the property was not disclosed. The manner in
which the properties were being possessed by the appellant
vis-a-vis, the other co-owners had not been taken into F
consideration. It was not held that the parties were joint in kitchen
or mess. No other documentary or oral evidence was brought
on record to show that the parties were in joint possession of
the properties.
20. One of the witnesses examined on behalf of the G
appellant admitted that the appellant had been in separate
possession of the suit property. Appellant also in his deposition
accepted that he and his other co-sharers were in separate
possession of the property.
H
10 . SUPREME COURT REPORTS [2008] 7 S.C.R.
A 21. For the purpose .of assigning one's interest in the
property, it was not necessary that partition by metes and bounds
amongst the coparceners must take place. When an intention
is expressed to partition the coparcenary property, the share of
each of the coparceners becomes clear and ascertainable.
s Once the share of aco-parcener is determined, it ceases to be
a coparcenary property. The parties in such an event would not
possess the property as "joint tenants" but as "tenants in
common". The decision of this Court in State Bank of India
(supra), therefore is not applicable to the present case.
C 22. Where a coparcener takes definite share in the
property, he is owner of that share and as such he can alienate
the same by sale or mortgage in the same manner as he can
dispose ofhis separate property.
23. We have noticed the representation made by the
D
appellant.. If the representation to the respondents' father was
incorrect, the appellant should have examined his brothers. He
should have shown that such a representation was made under
·a mistaken belief. He did nothin:~ of that sort.
E 24. In M. VS. Manikayala Rao vs. M. Naraisimhaswam;,
and others: AIR 1966 SC 470 tlJis Court stated the law thus:-
"It is well settled that the purchaser of a coparcener's
undivided interest in joint family property is not entitled to
possession of what he has purchased."
F
Thus, even a coparcenary interest can be transferred
subject to the condition that the purchaser without the consent
of his other coparceners cannot get possession. He acquires a
right to sue for partition.
G 25. It does not appear that in State Bank of India (supra)
binding precedent in M. V.S. Manikayala Rao (supra) was
noticed.
i26. However, in view of the admission made by the
H appellant himself that the parties had been in separate
HARDEO RAJ v. SAKUNTALA DEVI AND OTHERS 11
[S.S. SINHA, J.]
possession, for the purpose of grant of a decree of specific A
performance of an agreement, a presumption of partition can
be drawn.
27. The learned Single Judge of the High Court, with
respect, committed a serious error in so far as it failed to take
into consideration the essential ingredients of a Mitakshra 8
Coparcernary.
28. We may also notice that the Patna High Court in Ohanu
Pathak vs. Sona Koeri : ( 1936) XVI I Patna Law Times 380 had
held thus:- c
"It is hardly necessary to add that there would have been
no estoppel, if there had been any collusion between the
plaintiffs and the defendant, and if it had been established
that the former had deliberately misrepresented
themselves to_be tenure-holders to the knowledge of the D
latter to defeat the provisions of the Chota Nagpur Tenancy
Act."
29. The decision of the Patna High Court in Bageshwari
Prasad Duivedi vs. Oeopati Kuer and another: AIR 1961 Patna
416 whereupon reliance has been placed by Mr. Rai was E
rendered on a finding that the family was governed by
Mitakashara School of Hindu Law and the parties thereto was
joint and in that view of the matter the share of defendant No.2
therein not having been defined, no decree could be passed
against him for. the. execution of the mukarrari patta. In the F
aforementioned situation it was held that agreement of sale
cannot be enforced against the defendant No.1 therein. Such is
not the position here.
30. The question which now arises for consideration is as
G
to whether in a situation of this nature the Court shall exercise
its discretionary jurisdiction under Section 20 of the Specific
--<
Relief Act, 1963.
31. The agreement was entered into in the year 1978. The
suit had been decreed on 7th February, 1981. Respondents' H
'1'
12 SUPREME COURT REPORTS [2008] 7 S.C.R.
A father had been put in possession of the property. No suit has
been filed by the alleged coparceners of the defendant/appellant
so long; There was, therefore, in our opinion, no reason as to
why the judgment and decree passed by the learned trial court
should be interfered with.
B 32. For the reasons abovementioned the appeal fails
and is dismissed with costs. Counsel's fee assessed at
Rs. 10,000/-.
N.J. Appeal dismissed.
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