Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba.

The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother having agreed to sell one of the suit properties being Survey No. 42/B to respondent 2, was arrayed as defendant 2.

Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.

The above-said judgment was challenged by the step mother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed.

Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.

Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents.

Analysis, Law and Decision

High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act.

With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.

The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand.

Bench stated that by virtue of the above-stated mode of succession by the widow and four daughters of Dajiba receiving the suit properties as heirs, they take their individual shares as tenants in common.

Since the suit properties were not joint, there was no question of the stepmother acting as a manager or karta of the family. Therefore, she had no right to deal with the suit properties even for legal necessity.

High Court relied upon the decision of Supreme Court in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara Nagpur v. Seth Govindram Sugar Mills, AIR 1966 SC 24.

Bench added that it has been held that,

under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. Conspicuously, this was a position even prior to the coming into force of the Hindu Succession Act. By virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in estate, they take the property as tenants in common and not as a joint tenants.

With regard to the present matter, the Bench held that, once it was established that the step mother was not entitled to act as a manager or karta of the family, there was no question of her having any power to deal with suit properties to the detriment of the stepdaughters.

Hence, the second appeal was allowed. [Kamalabai v. Darubai, 2022 SCC OnLine Bom 686, decide don 31-3-2022]


Advocates before the Court:

Mr. D.R. Shelke, Advocate for the appellant

Mr. P.G. Godhamgaonkar h/f. Mr. M.D. Godhamgaonkar, Advocate for respondent nos.1 and 2

Mrs. S.D. Shelke, Advocate for respondent nos.3a, 4 and 5

Case BriefsSupreme Court

Supreme Court: In a suit where the Karta of a Joint Hindu Family, consisting of himself, his wife and his son, had alienated a property due to legal necessity without the signature of his son, the bench of MR Shah and Sanjiv Khanna*, JJ that the Karta was entitled to execute the agreement to sell and even alienate the suit property and the absence of signature of a coparcener would not nullify the rights and liabilities arising from the agreement to sell.

Factual Background

In the case at hand, one K. Veluswamy, as a Karta of the joint Hindu family, executed the agreement to sell of the suit property for Rs.29 lakhs and had received Rs.4 lakhs in advance from the appellant. His son, V. Manjunath, challenged the alienation and the Karnataka High Court gave him a favourable verdict.

While accepting that K. Veluswamy did execute the agreement to sell for the suit property for Rs.29 lakhs and had received Rs.4 lakhs as advance, the Karnataka High Court held that the agreement to sell is unenforceable as the suit property belongs to the joint Hindu family consisting of three persons, K. Veluswamy, his wife V. Manimegala and his son V. Manjunath and, therefore, could not have been executed without the signatures of V. Manjunath.

Analysis

The Supreme Court took note of the agreement to sell which stated that the subject property is a joint Hindu family property, enjoyed jointly and that the Katha is in the joint names. The executants were in need of funds to meet the domestic necessities and, consequently, had agreed to sell the suit property. As per the agreement, if any dispute arose with regard to the sale transaction, it would be solved by the executants personally at their own risk and cost. Furthery, if there was any loan, mortgage, revenue arrears, etc. over the property, the same shall be cleared by the executants so as to execute and register the sale deed in favour of the appellant. However, the agreement to sell does mention that it would be also executed by V. Manjunath.

Important rulings on right of the Karta to execute agreement to sell or sale deed of a joint Hindu family property

Sri Narayan Bal v. Sridhar Sutar, (1996) 8 SCC 54

A joint Hindu family is capable of acting through its Karta or adult member of the family in management of the joint Hindu family property. A coparcener who has right to claim a share in the joint Hindu family estate cannot seek injunction against the Karta restraining him from dealing with or entering into a transaction from sale of the joint Hindu family property, albeit post alienation has a right to challenge the alienation if the same is not for legal necessity or for betterment of the estate. Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows. There are no specific grounds that establish the existence of legal necessity and the existence of legal necessity depends upon facts of each case. The Karta enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the Karta on fulfilling the requirement of legal necessity or betterment of the estate is valid and binding on other coparceners.

Kehar Singh (D) v. Nachittar Kaur, (2018) 14 SCC 445

Once the factum of existence of legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to challenge the sale made by the karta of his family. The plaintiff being a son was one of the co-coparceners along with his father Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all.

Ruling on facts

Considering the settled legal position, the Court held that signatures of V. Manjunath, son of Karta – K. Veluswamy, on the agreement to sell were not required. K. Veluswamy being the Karta was entitled to execute the agreement to sell and even alienate the suit property. Absence of signatures of V. Manjunath would not matter and is inconsequential. 

[Beereddy Dasaratharami Reddy v. V. Manjunath, 2021 SCC OnLine SC 1236, decided on 13.12.2021]


*Judgment by: Justice Sanjiv Khanna

Know Thy Judge | Justice Sanjiv Khanna

Case BriefsHigh Courts

Delhi High Court: Allowing the petition wherein the petitioner had sought reissuance of her daughter’s passport without insisting upon the father’s name being mentioned in the application form, the Bench of  Manmohan, J. held that “mother’s name is sufficient in certain cases like the present one to apply for passport, especially as a single woman can be a natural guardian and also a parent”.

The petitioner had contended that after her divorce, she had raised her daughter as a single parent since her birth on August 24, 1997 as the biological father had completely abdicated his responsibilities towards her daughter. The respondents’ insistence upon her daughter mentioning her father’s name in the application violated her rights to determine her name and identity. She pointed out that the entire record of Petitioner 2 (daugther) which included her educational certificates and aadhar card, etc. did not bear the name of her father. She submitted that if the directions sought for in the present petition are not issued,  her daughter would be compelled to alter her identity that she had been using since her birth as daughter of Petitioner 1 rather than of her biological father. According to her, through the malafide, arbitrary and discriminatory decision of the respondents, Petitioner 2 was being compelled to mention the name of her biological father who had refused to accept her because she is a female child. She emphasised that the respondents had originally in the year 2005 and subsequently in 2011 issued a passport without insisting upon Petitioner 2’s father.

The Court was of the opinion that “the respondents can insist upon the name of the biological father in the passport only if it is a requirement in law, like standing instructions, manuals etc. In the absence of any provision making it mandatory to mention the name of one’s biological father in the passport, the respondents cannot insist upon the same. In the present case, there is no legal requirement for insisting upon the father’s name”.

As regards the respondent’s contention that the computer does not accept the application form without the name of the father being filled up, the Court was informed by the learned Amicus Curiae Shri Amit Bansal that the online passport application as updated on 29th January, 2016 provides that in the column of Family Details, only one detail out of the details of father/mother/legal guardian, is mandatory and required to be filled. The Court observed that technology is intended to ease and facilitate transactions and cannot be the basis for creating and defeating anybody’s legal rights. If the only impediment, in way of granting the relief sought by the petitioners, is the software, the same ought to be suitably modified to accept the application of Petitioner 2, if she is otherwise entitled for re-issuance of the passport.

The Court observed that the fact that the respondents had on previous two occasions, in 2005 and 2011 issued passport to Petitioner 2, without insisting on father’s name, makes it evident that the said requirement is not a legal necessity, but only a procedural formality, which cannot be the basis of rejecting her case. Consequently, legally and factually there was no impediment in issuing the passport to Petitioner 2, without mentioning her father’s name. The respondents were directed to modify their software and accept her application and issue her a passport without insisting upon mentioning her father’s name. [Shalu Nigam v. Regional Passport Officer, Writ Petition (C) No. 155 of 2016 and CM Appls. Nos. 684-685 of 2016, decided on May 17, 2016]