9911796707
TMI Blog2018 (7) TMI 2364X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits 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. Therefore, the properties acquired by defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of defendant No. 2 retained the character of a coparcenary property a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act.
Conclusion - i) The properties acquired in partition retain their ancestral character concerning male descendants. ii) The High Court's decision upheld, confirming the ancestral nature of the property, the inadmissibility of the unregistered exchange deed, and the inapplicability of Section 53A to the appellant.
Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... dant No. 1 has filed the written statement stating that the suit properties are not ancestral properties. He has denied the contention of the plaintiffs that the document dated 30.1.1990 is not a valid document. It was further contended that the said document has already been given effect from the date of its execution. 6. Defendant No. 2 has filed the written statement contending that for the alleged exchange deed, defendant No. 1 had approached him for exchanging only the business of liquor shop at Sikkim with that of shoe shop at Gangtok for convenience and that he had signed the document in good faith believing that the exchange deed was only for the two businesses, and further, admitted that exchange deed was made and executed behind the back of the plaintiffs. 7. On the basis of the pleadings of the parties, the trial court has framed relevant issues. Parties have led evidence in support of their respective contentions. On appreciation of the materials on record, the trial court had come to the conclusion that the property in question is an ancestral property and that the plaintiffs being the sons and grandson of defendant No. 2, they have also equal sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged, the first question for consideration is whether the property allotted to defendant No. 2 in the partition dated 31.07.1987 retained the character of a coparcenary property. Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31.07.1987. It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of defendant No. 2 who is the father of plaintiff Nos. 1 to 3 and grandfather of plaintiff No. 4. Certain properties had fallen to the share of the first defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. We do not find any ground to disagree with this finding of the courts below. 12. 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, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orn to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid." (emphasis supplied) 15. In Rohit Chauhan v. Surinder Singh and Ors. 2013 (9) SCC 419, a contention was raised by the defendant No. 1 that after partition of the joint Hindu family property, the land allotted to the share of defendant No. 2 became his self acquired property and he was competent to transfer the property in the manner he desired. It was held that the property which defendant No. 2 got by virtue of partition decree amongst his father and brothers was although separate property qua other relations but it attained the characteristics of coparcenary property the moment a son was born to defendant No. 2. It was held thus: "A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 was done through Exhibit P2 deed of exchange. It was contended by defendant No. 1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange. The value of RCC building exceeds Rs. 100/- which is not in dispute. Section 118 of the TP Act defines 'exchange' as under: "118. "Exchange" defined.- When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange". A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale". 18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs. 100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2. 23. The last contention of the learned counsel for the appellant is in relation to application of Section 53A of the T.P Act. It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
