TaxTMI 
TaxTMI 
2025 (6) TMI 1504
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....esent Second Appeal has been filed challenging the judgment and decree passed by the 4th Additional District Judge, Ahmedabad Rural in Civil Appeal No. 77 of 2017 confirming the judgment and decree passed in Regular Civil Suit No. 1418 of 2015 dated 06.09.2017. 2. For the sake of convenience, the parties are referred to as per their original status in the suit. Factual Matrix 3. The brief facts arising in the present suit are that the suit property was owned by Ishwarbhai Patel who died intestate on 13.01.1993 and he was survived by his wife Kashiben and five sons viz. Kantibhai Iswarbhai Patel (defendant no.1), Becharbhai Iswarbhai Patel (defendant no.2), Jayendrabhai Ishwarbhai Patel (defendant no.3), Pragneshbhai Iswarbhai Patel (defendant no.4) and Bipinbhai Iswarbhai Patel (defendant no.5) so also three daughters viz. Anandiben Iswarbhai Patel, Vinaben Iswarbhai Patel and Nirmala Iswarbhai Patel and accordingly their names were incorporated in revenue record. Thereafter three daughters of Iswarbhai Patel relinquished their rights in the suit property and there is no dispute to the said fact. 4. Thereafter by registered sale-deed No. 692 dated 21.04.1994, the suit property ....
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....of the Plaintiffs. It has also been argued by learned Advocate for the Plaintiffs that suit property i.e. disputed property has coparcenery character and, therefore, Plaintiffs will have right by birth and the trial Court could not have rejected the plaint on the ground that the plaint is barred on the ground of limitation. 8. It has been argued that at the time when the sale transaction took place, original Plaintiffs were minor and, therefore, it has been argued that on the date of execution of sale-deed dated 21.04.1994. The Plaintiff no.2 was only aged about 6 months as his birth date is 28.12.1993 and as soon as he attained majority, the suit came to be filed which is well within the three years of attending the majority of Plaintiff No.2. 9. It has also been argued that issue of limitation is mixed question of facts and the trial Court and the appellate Court could not have rejected the plaint on the issue of limitation. It has been argued that though Plaintiff no.1 and 3 were major at the time of execution of sale-deed, Plaintiff no.2 was minor and, therefore, the suit can be said to have been filed within the time period of limitation and since there are substantial quest....
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....). 14. After the advent of the Act, position of succession in Hindus is governed by this enactment alone. As provisions of the said act would show, it has not only brought in a sea change in the method of succession but has also streamlined the methods of succession. It is unfathomable that a novel (or different) succession method or right, distinct from what has been couched in the provisions of the Act, can be adopted or claimed post 1956. 15. It is well settled that section 8 of the Act provides for the general rules of succession for a Hindu male who has died intestate. Whereas, section 6 of the said Act is an exception to the same in case of a coparcenary property. Therefore, unless and until there is a clear pleading, proof and consequential finding of fact that the property in question is a coparcenary property, the question of application of Section 6 does not arise. In such an event, the general clause, i.e., Section 8 of the Act will come into play and govern the succession. 16. Amongst all these also, cases of the present kind need to be examined with more scrutiny. Grandfather passed away in the year 1993. Property was sold by all the heirs around the year 1994. Afte....
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.... it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity." 7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property. (emphasis supplied). 21. Therefore, once the 1956 Act was enacted, the entire succession has undergone a sea change and now it was only the 1956 which holds the field. Therefore, in order to appreciate what is the change in the position of law post 1956, one must first see the original position under the uncodified regime. 22. The concepts of Hindu law, in my opinion, cannot be considered in isolation or vacuum. For instance, an understanding of what is an ancestral prope....
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.... 1901 SCC Online Mad 91 in the following manner: The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Dhond Savant [I.L.R., 7 Bom., 467 at p. 471.] and Mayne's 'Hindu Law and Usage,' 6th edition, paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may he left put of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition, viz., the undivided state-it forms a corporate, body. Such corporate body, with its heritage, is purely a creature of law and cannot he created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family. Persons, who by birth or adoption are not members of a Hindu family, cannot, in the absence of a custom having the force of law, by mere agreement, become or he made members of a joint family. 27.....
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....was observed as follows: (SCR pp. 259-60) ... But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property." 14. Similarly, in Achuthan Nair v. Chinnamu Amma [(1966) 1 SCR 454 : AIR 1966 SC 411] their Lordships held as follows: (SCR p. 458 C-D) "Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the ....
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....r, after 1956, merely because a property is ancestral, would give birth to no right title or interest of any person in the said property. That is to say, merely because a property is ancestral, the son, grandson or great grandson (or daughters, respectively) would acquire no right over the same. 33. Only if a property (naturally, being ancestral) has the character of a coparcenary property, is such right created by operation of law. That right as created before 1956, is also preserved by way of Section 6 and continues as such post enactment of the HSA 1956. Coparcenary and Coparcenary Property 34. Having seen the nature and legal position on Joint Hindu Family as well as ancestral property, it would be apposite to discuss what is a coparcenary and how the same is formed. From the pleadings across cases, it appears that there is some confusion in the minds of litigants regarding a coparcenary and the way it comes into existence. 35. There is often a loose ended pleading that there was a joint family of the parties and hence, the property of the family belonged to HUF. Similarly, a pleading that a property is coparcenary property without any basis is prevalent in many pleadings. ....
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....coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. 40. However, what is more important to be noted at this juncture is that coparcenary cannot be created by any agreement or Act of the parties. The formation of a coparcenary is by birth of the coparceners in the permissible degree. (See: Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 - Para 80). Therefore, formation of a coparcenary is only by way of operation of law and not by Act of parties by any means. 41. Further, this coparcenary can b....
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.... ..." 43. Therefore, before 1956, a coparcenary was created in the following manner as laid down in Mulla on Hindu Law (24th Edition) states as follows: Genesis of Coparcenary - A coparcenary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or great- grandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the self- acquired property of A during A's lifetime, but on A's death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the property by reason of his birth, and the property inherited by B from his father A, becomes ancestral property in his (B's) hands, and B and C are coparceners as regards the property. If B and C continue joint, and a son D is born to C, he enters the coparcenary by the mere fact of is birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener. (Emphasis Supplied) Coparcenary Property - Pre and Post 1956 44. After 1956 (w.e.f. 17th June 1956), this position has changed. Merely inheritance gives no vested interest in the grandson (or grandchild after 20....
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.... the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. At p. 577 to 578 of the Report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 924-26 as well as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied on the said observations of Mayne on Hindu Law, 12th Edn., at p. 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhr....
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.... to the phenomenon by which a property is blended with the existing common hotchpotch of coparcenary properties for the common use of the coparcenary. After such deliberate blending, the newly introduced property also partakes the character of coparcenary property in the common hotchpotch. 49. Therefore, this is one exception by which a coparcenary property can be created. However, this is subject to certain conditions which have been well laid down and defined by Hon'ble Apex Court. 50. One important nuance of this is also that one can mix in a hotchpotch only when a hotchpotch exists. Without the same having existed, there is no hotchpotch with which the individual property can be blended with. Hon'ble Supreme Court in Mallesappa Bandeppa Desai v. Desai Mallappa, MANU/SC/0377/1961 has held as follows: 11. This doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separ....
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....oint property. 52. Moreover, such blending of property must be deliberate and with a clear intention of doing so. Mere permitting use of the property for the family or coparcenary will not attract any presumption of blending. 53. In Angadi Chandranna v. Shankar and Ors., MANU/SC/0528/2025, the Hon'ble Apex Court held as follows: 20. Regarding the doctrine of blending of self-acquired property with joint family, it is settled law that property separate or self- acquired of a member of joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support persons whom the holder was either bound or not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness, will not ordinarily be reg....
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.... which has been used for purchase of the property, every property cannot be termed to be a property of the HUF merely because the same exists. Therefore, in absence of such presumption, it is necessary that exact pleadings with material particulars must be averred in the Plaint (or respective pleading) for a property to be construed as a joint family or ancestral property. 58. This can be examined from one more angle. Order VI Rule 4 of the Civil Procedure Code, 1908 ("CPC") provides that all material particulars are required to be given in a Plaint. In fact, Courts have also held that averment of the nature of property cannot be averred as a mere mantra. 59. In Surendra Kumar v. Dhani Ram, (2016) 227 DLT 217, the Delhi High Court has held as follows: I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order 6 Rule 4, CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF prop....
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....o when and how the properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is a known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratio in the cases of Chander Sen (Supra) and Yudhishter (Supra), there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario, a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties. It must be specifically stated that as to whether the HUF came into existence b....
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....by the overriding clause as couched in Section 4 of the Act in the following terms: 4. Overriding effect of Act. ―(1) Save as otherwise expressly provided in this Act,― (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; 66. Hence, a given concept of Hindu law as prevalent before codification of the law, shall be (i) codified (ii) amended and (iii) have overriding effect over its previous connotation. In view of the clear provisions of law, it is mandatory to give effect to the provisions in the manner and method as provided in the law without more. Section 6 of the Act 67. I have already discussed above in detail what is the nature and characteristics of a coparcenary. (See: State Bank of India v. Ghamandi Ram, (1969) 2 SCC 33). Bearing the same in mind, one important aspect to be reiterated is that there can be no creation of a coparcenary by conduct or agreement of parties but simply by operation of law. 68. That being the case, there can be no creation of coparcenary aft....
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....to Section 6 of the amended provision which states as follows:- "Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004." The explanation to this Section also states thus: "Explanation.-For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." From a reading of the aforesaid provision it becomes clear that a partition having been effected by a court decree of 20.12.2000, which is prior to 9th September, 2005, (which is the date of commencement of the Amending Act), would not be affected. 70. Therefore, the following would apply in the present situation: i. In accordance with the proviso, since the deceased Mr. Ishwar Patel left his widow surviving, the devolution of property would be by intestate succession and not survivorship. In other words, the succession will be in accordance with Section 8. ii. By virtue of Explanation 1, property shall b....
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.... would be by intestate succession (under Section 8) and not by survivorship. iii. Otherwise also, by virtue of Explanation 1 to unamended Section 6, there is a deemed partition between the heirs as if had taken place before death of the deceased. 75. Hence, when Section 8 of the 1956 Act applies to the present case, the inheritance of self-acquired property would partake the character of a self- acquired property of the heir and not joint family property. This position has been amply made clear in Yudhishter (supra), CWT v. Chander Sen (supra) and Ashnoor (supra) amongst many other judgments. 76. Moreover, even the Delhi High Court in several judgments has categorically laid down that once Section 8 applies to the fact of a case, there is no question of it being a joint family property. In Sunny and Ors. vs. Raj Singh and Ors. MANU/DE/3560/2015 the Court held as under: As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestor....
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.... person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self- acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to his paternal ancestor. (ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc. to a share in such H....
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....e is no cause of action to file the present Plaint and hence, it is required to be rejected on this count alone. In a similar case of Sushant vs. Sunder Shyam Singh, MANU/DE/6206/2012 the Delhi High Court while rejecting the Plaint under Order VII Rule 11 held as under: 2. Prior to passing of the Hindu Succession Act, 1956 if any person inherited ancestral properties, the ancestral properties in his hands automatically were HUF properties and to which the successors by four degrees automatically took a share. However, after passing of the Hindu Succession Act, 1956 merely because a person receives property from his paternal ancestors, the property in his hands is not an HUF property but the inheritance is as self-acquired property unless at the time of devolution there existed an HUF. The Supreme Court has specifically laid down this ratio in the judgments in the cases of Commissioner of Wealth Tax Etc. Vs. Chander Sen Etc. MANU/SC/0265/1986 : AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar MANU/SC/0525/1986 : AIR 1987 SC 558 by observing that merely because a person who receives ancestral properties after passing of the Hindu Succession Act, 1956, the person who inherits will no....
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....s. When the facts entitling the plaintiff to have the To cancel or set aside an instrument or decree or for the rescission of a contract. Three Years. When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 88. Therefore, present case is a classic case where the plaintiff, by way of clever drafting, has made a ground of cause of action to bring the suit within a period of limitation. The fact remains that the sale-deed has been executed in the year 1994 and the suit has been filed to challenge the said sale-deed. Therefore, as the said sale-deed is registered document, the date of registration becomes the date of deemed knowledge and therefore also the plaintiff's suit is hopelessly time barred. The plaintiff in the plaint has not given any particulars with respect to the said fact and in the present suit the sale-deed were executed on 21.04.1994 and 13.05.1996 and the suit has been filed on 11.09.2012 i.e. after more than 18 years from the execution of the first sale-deed. Moreover, at the time of execution of the sale-deed, plaintiff nos.1 and 3 were adult. 89. Therefore also the plai....
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....unction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law. 91. Therefore, it is clear that the Plaintiff has sought other reliefs as a mere consequential relief, which cannot sustain once the main relief of cancellation of sale deed has been held to be not maintainable. Therefore, there is no question of the suit being sent for trial when there was no cause of action to seek the main relief of cancellation of the sale deed. 92. Since the main relief of cancellation of the Registered Sale Deed is barred ....