Hindu Law - Action for injunction brought at the instance
of their brother on a claim that he is entitled to a joint possession of all the suit properties and also sought by means by another suit that the so-called release execute by the father 3rd
defendant, who died subsequently during the pendency of the suit, in favour of defendants No.1 and 2 through a document said to have been made on 15.5.2001, described as dastar bardarinama as
null land void - Plaintiff relief for mandatory injunction for removal of wall which brought about the division within the house was not favourably considered in favour of the plaintiff -
Plaintiff himself did not file any appeal against the relief declined to him and rest contended with the rest of the portion of the decree in the two suits - One coparcener cannot renounce
his interest except in favour of all the coparceners, if he renounces in favour of one or more of them - The renunciation enures to the benefit of all coparceners in whose favour the
renunciation is made. A.I.R. 1945 Mad. 142 referred to. (180) P.L.R.
Hindu Law - Ancestral property - Character of properties were ancestral
as stated by the plaintiffs, there is no prohibition in law for the father to allow for the properties to be taken by the sons and grandsons during his own lifetime and that can be brought
about by a mere oral assertion forsaking his right - If such a right forsaken is also recorded through a statement and a decree was passed in terms therefor, it would mean that the father
left no estate for succession by the plaintiffs. (182) P.L.R.
Hindu Law - Ancestral property - Filed suit for
foreclosure of mortgage of ancestral property and the same was decreed - Property remain ancestral and not exclusive.(182) P.L.R.
Hindu Law - Ancestral property - Once the property is
received through any other mode, except through succession, it looses its character of being ancestral - When the suit property is acquired by the act of the government, it is an acquisition
by operation of law - At the first instance, since it is self acquired property, the plaintiffs, the sons and daughters of appellant, even if acting as coparceners under Section 6 of the
amended Act of the Hindu Succession Act, do not have any right in the same - Hindu Succession Act, 1956 (30 of 1956) S. 6. (180) P.L.R.
Hindu Law - Ancestral property - Sale by Karta - Where
there is evidence against the `karta'/vendor of being a spend thrift or suffering from any vices unapproved by the society and the sale deed is speculative or fraught with risks or involves a
possibility of loss to the family, then such a sale deed cannot be considered to be an act of a good management, but once the vendor is not suffering from any vices and is a prudent man, well
versed with the worldly ways, does not want to stay at the place where the property is being sold or has migrated from that place permanently and the sale consideration has not been found to
be inadequate by court of law, then such sale cannot be termed to be an act of bad management or without any legal necessity in order to be challenged by other coparcener. (175) P.L.R.
Hindu Law - Ancestral Property - Settled preposition of
law that for a property being ancestral, it has to be inherited by male Hindu by three immediate paternal ancestors i.e. father, father's father and father's father'sfather. (182) P.L.R.
Hindu Law - Co-parcenary property - Will be wrong to
assume that a father-coparcener that acts as a Karta has no power to sell the ancestral property without joining the sons - On the other hand, the power of a Karta to sell exists even without
joining the son and limitations in the law as recognized by Mitakshara law and applied by Courts admit only of two factors: (i) the sale shall be for binding necessity and (ii) and /or shall
have family benefit.(178) P.L.R.
Hindu Law - Coparcenary - A sole surviving coparcener
will have an interest in the property which he could treat as his own without being fettered by any of the restrictions that were placed for management of joint family properties - However,
this right will immediately be curtailed on the date of the birth of a male and the property held by the sole surviving coparcener will immediately become liable for fluctuation and be
treated as a coparcenary of the father along with his son - The incident of coparcenary is such that the right obtains by birth and the nature of interest held by a coparcener would itself be
in a state of flux. (175) P.L.R.
Hindu Law - Coparcenary property -
Haveto examine the existence of the debt and the pressing need for his discharge not merely with
reference to the recitals in the sale deed but with reference to the evidence that is available for the same. (175) P.L.R.
Hindu Law - Coparcenary property - Release deed -
Validity - Share itself in totois released for the benefit of all other members of joint Hindu family and will have no claim or
any other right in the properties of the joint Hindu family - Valid. (182) P.L.R.
Hindu Law - Coparcenary property - Sale of - Burden of
proof is on the purchaser, the purchaser is required to prove that he made enquiries and found that at the relevant time, the manager had contracted a debt and there was a need for sale of
the property to raise a consideration to discharge that debt - How the debt is really applied may not be an obligation that the purchaser would take but he is bound to show that the debt
existed as a matter of fact at the time when the sale was effected and there was a need to discharge the same- A recital in the sale deed could only be corroborative and will not by itself be taken as proof
of existence of a debt or pressing need for discharge of the said debt.(175) P.L.R.
Hindu Law - Coparcenary property - Sales of - Set aside -
Plaintiffsshall have the right of recovery of the properties from the respective purchasers through a decree
for recovery of possession on condition that the respective sale consideration is deposited by the plaintiffs for the credit of the respective purchasers - Interest for the consideration is
set off by the benefit of enjoyment of the properties - The restoration of benefit by way of refund follows the principle enunciated under Section 31 of the Specific Relief Act, 1963 (47 of
1963). (175) P.L.R.
Hindu Law - Evidence Act, 1872 (1 of 1872) - Ancestral property - If
the son and the grandson had a right in the property as members of a coparcenary, then it would be competent for the karta to forsake his own claim and allow for the sons and grandson to take
the whole of the property - If the father had, therefore, filed a written statement admitting to the claim of the son and grandsons, it would constitute an estoppel for the father to claim
the right in the property. (182) P.L.R.
Hindu Law - Family Partition - Only person, who would be
competent to effect the family settlement without the concurrence of other co-parceners is the karta and any such settlement even without the concurrence of junior coparceners would be
binding - The said authority does not belong to any other member of the joint family. (174) P.L.R.
Hindu Law - Family settlement are not on record - As mentioned above,
the family settlement could relate to the ancestral as well as self-acquired property or only the ancestral property - Property related only to the ancestral property and not the self
acquired property - Does not require compulsory registration - Self acquired property - Notwithstanding the decree in the first suit, requires compulsory registration since it created, for
the first time, right, title or interest in immovable property of a value greater than Rs.100/- - Gift - Gift of self acquired ancestral property - Registration Act, 1908 (16 of 1908) S. 17.
Hindu Law - Joint Hindu Family - Onus of proof - In case
of a joint Hindu family property, sale deed propounded by the defendants is to be proved by them to be one which is for legal necessity and that it was for consideration and not otherwise.
Hindu Law - Suit filed by minor son of the petitioner
defendant no. 1 for declaration that the plaintiff was the joint owner to the extent of 1/3rd share alongwith brother of the father - Sale deed executed by grand father was challenged -
Property has been alienated by the grand father to one of his sons title of the property has already changed hands - Suit at preliminary stage - Application for deciding the issue of
maintainability - Dismissed - Order upheld - Civil Procedure Code, 1908 (V of 1908), Order 14, Rule 2. (178) P.L.R.
Hindu Law - Suit of the quondam minor on attaining
majority challenges the compromise decree entered on his behalf by his guardian on the ground that the guardian had been negligent in his act in entering into a compromise that gave up his
viable claims to the property - Plaintiff had a competency to institute the suit to challenge the sale made by the father. (175) P.L.R.
Hindu Law - The father (karta) of Hindu joint family has
no unlimited right of sale of joint family property - The sales of immovable property could be sustained to bind a coparcener only if it is supported by the legal necessity or for family
benefit - The proof of legal necessity is always on the purchaser whose evidence must be cogent and consistent with the recitals in the sale deed about thenecessity - Burden which was on the purchaser has clearly not been established and with a skeletal
evidence of the parties referring to the cash as having been applied for the medical expenses, the court could not have upheld the sales. (174) P.L.R.
Hindu Law - To prove any property to be joint Hindu family coparcenary,
the party claiming as such has to prove that it was inherited from father, father's father and father's father's father without intervention of a female in the chain - As the appellant failed
to prove that land in the hands of S was inherited by him from his father and his father inherited it from his (S) grandfather - Held not coparcenary property. (183) P.L.R.