The Madhya Pradesh High Court at Gwalior has dismissed a second appeal filed by a woman and her two sons, who wanted to stop the sale of land that her husband had received in a family partition. Justice Ashish Shroti ruled that the land was the husband’s self-acquired property and that the sons could not claim any share in it while he was alive.
Background
The plaintiffs approached a Guna court seeking a declaration of title and possession, along with a permanent injunction, over 13 survey numbers totalling 5.908 hectares. They said the land was ancestral and recorded in the names of the husband and his brothers. According to them, he threatened on 21 July 2010 to sell it without giving them any share.
While the suit was pending, he sold part of the land to a third defendant through a sale deed dated 20 April 2011. The plaintiffs amended their plaint to challenge that sale as well. The husband said he and his brothers had already partitioned the land and that his family had no right in it during his lifetime. The buyer argued that the land she bought was not part of the original plaint, so Section 52 of the Transfer of Property Act, which restricts transfers of property under litigation, did not apply.
The trial court dismissed the suit on 17 May 2012, relying on an earlier High Court ruling that birth right in ancestral property no longer exists after the Hindu Succession Act, 1956. The first appellate court upheld this on 16 May 2015.
The appellants’ counsel accepted that they could not demand a share during the husband’s lifetime. He argued, however, that the husband could not sell land in a way that defeats their right to inherit after his death.
The Court first noted that the wife is not a coparcener, meaning a member of the joint family with a birth right in its property. Only the two sons could fall in that category. It then pointed to Section 4 of the 1956 Act, which overrides older Hindu law rules, and relied on Uttam v. Saubhag Singh, which the Supreme Court affirmed in 2016. The Court said:
“It is thus clear that after coming into force of the Hindu Succession Act, the theory of birth right does not exist, and son gets share in the property only after death of his father. It is only when the coparcener was born prior to coming into force of Hindu Succession Act, the property will devolve by survivorship upon the surviving members of the coparcenary vide Section 6.”
All the plaintiffs were born after 1956. The Court also noted that the plaint itself said the husband received the land in partition from his father. On this, it observed:
“In the case in hand, the plaintiffs themselves have averred in para 2 of the plaint that defendant no.1 got the suit land in partition from his father. Meaning thereby, the property was received by defendant no.1 and became his self-acquired property on partition. Consequently, during the lifetime of father i.e. defendant no.1, the plaintiffs could not have claimed any share in the property.”
The High Court upheld the appellate court’s view that the land was not coparcenary property, though on different reasoning. Finding no substantial question of law, it dismissed the appeal.
