Second Appeal No. 241 of 2019

17th December 2019

Petitioner Counsel: Mr. Abhay Bhide
Respondent Counsel: Mr. A. M. Sudame
Act Name: Hindu Succession Act, 1956 Specific Relief Act, 1963

Section :
Section 4 Hindu Succession Act, 1956 Section 6 Hindu Succession Act, 1956 Section 8 Hindu Succession Act, 1956 Section 19 Hindu Succession Act, 1956

Cases Cited :
Paras 10, 12, 17, 18: Shyam Narayan Prasad Vs. Krishna Prasad and others, 2018 ALL SCR 1409 : (2018) 7 SCC 646
Paras 12, 19: Commissioner of Wealth Tax, Kanpur, etc. Vs. Chander Sen etc., 2013 ALL SCR (O.C.C.) 162 : AIR 1986 SCC 1753
Paras 12, 20: Uttam Vs. Saubhang Singh and others, 2016(3) ALL MR 451 (S.C.) : (2016) 4 SCC 68
Paras 12, 20: Arshnoor Singh Vs. Harpal Kaur and others, 2019 ALL SCR 1982 : AIR 2019 SC 3098

JUDGEMENT

1. By this common judgment two second appeals are being disposed of, which arise out of common set of facts.

2. The learned counsel appearing for the rival parties were heard on four substantial questions of law recorded in order dated 09/10/2019. Although the said order is recorded in Second Appeal No.241/2019, the said questions have arisen in Second Appeal No.253/2019 also and the learned counsel were heard on these questions pertaining to both the appeals.

3. The facts leading up the filing of the second appeals are that one Ramesh Krushnarao Deshmukh entered into an agreement with one Amartya s/o Surendra Deshmukh through his grand-father Haribhau on 11/11/2010 for sale of agricultural land at field survey No.49/3, admeasuring 2 H 06 R, located at Mouza Dastarpur Tah. Bhatkuli Dist. Amravati, for total consideration of Rs.22,50,000/-. On the same day, an amount of Rs.2,00,000/- was paid to the said Ramesh. On 09.12.2010, an amount of Rs. 2,20,000/- was paid and sale deed in respect of 1 H 21 R was to be executed on or before 30/6/2011. Sale deed was executed in respect of 1 H 21 R portion of the said field upon receiving further consideration of Rs.9,30,000/- and delivery of possession of the said portion was also given.

4. On 04/01/2011, daughter of the said Ramesh Deshmukh and his son Gopal sent a legal notice to the grand-father of said purchaser i.e. Haribhau as well as Ramesh, calling upon them to cancel the aforesaid sale deed, claiming that as the aforesaid property was ancestral property, the said Ramesh Deshmukh did not have any authority to alienate the same. The said Haribhau sent a reply asserting that the property was self-acquired property and that it was not ancestral property. On 06/4/2011, the respondent sent a notice to Ramesh to execute sale deed in respect of remaining portion of land as per agreement between the parties. Ramesh did not send reply to the said notice.

5. On 25/4/2011, daughter and son of the said Ramesh filed Special Civil Suit No.158/2011 (Renumbered as Regular Civil Suit No.608/2012), for declaration, permanent injunction, partition and separate possession. In this suit, the said purchaser Amartya Deshmukh through his grand-father Haribhau, Ramesh Deshmukh and Haribhau Deshmukh himself were made defendants. The declaration sought was in respect of the aforesaid sale deed dated 23/12/2010, claiming that the property in question was ancestral property.

6. On 30/5/2011, said Haribhau sent another notice calling upon Ramesh Deshmukh to execute sale deed on 04/06/2011, expressing his readiness and willingness to pay balance consideration. On 06/6/2011, the said Ramesh Deshmukh sent reply to the notice, stating that he had already received a notice from other co-sharers in the property and that the aforesaid civil suit was also filed, as a result of which he was not in a position to execute the sale deed. In this backdrop, on 15/11/2011, the said purchaser Amartya Deshmukh through his grand-father Haribhau, filed Special Civil Suit No.324/2018, for specific performance of contract against said Ramesh.

7. The plaintiffs and defendants in both these suits led oral and documentary evidence in support of their respective stands. It was claimed by the appellants in second Appeal No.241/2019 that the property in the hands of Ramesh Deshmukh was ancestral and that, therefore, the sale deed in question could not have been executed by him. In Second Appeal No.253/2019, the said Ramesh Deshmukh, being the original defendant, resisted the suit for specific performance on the ground that the respondent therein was not ready and willing to perform his part of the contract and that there had been a breach of the agreement. It was claimed that the respondent therein was not entitled to grant of decree of specific performance.

8. The Trial Court i.e. the Court of Civil Judge (Senior Division), Amravati, dismissed the suit filed by the appellants in Second Appeal No.241/2019 i.e. daughters and son of the said Ramesh Deshmukh, holding that the suit property in the hands of Ramesh Deshmukh was not ancestral property and that, therefore, declaration sought could not be granted. In so far as the suit for specific performance was concerned, the Trial Court held that the plaintiffs therein i.e. respondent in Second Appeal No.253/2019 had demonstrated readiness and willingness to perform his part of contract and that, therefore, he was entitled to decree of specific performance.

9. Appeals were filed by the aggrieved parties before the Court of District Judge, Amravati (Appellate Court). Both the appeals were dismissed, consequent to which the present two second appeals have been filed.

10. Heard Mr. A.V. Bhide, learned counsel appearing for the appellants in both the appeals. In Second Appeal No.241/2019, the learned counsel submitted that the two Courts below had concurrently erred in holding against the appellants because the property in the hands of Ramesh Deshmukh was ancestral property. It was submitted that even if the property was self-acquired property of Krushnarao Deshmukh i.e. father of the said Ramesh Deshmukh, since he died intestate, the said property was inherited by the said Ramesh along with brother Subhash. It was submitted that the two brothers partitioned the said property and that was how Ramesh Deshmukh acquired the suit property. It was submitted that in so far as his branch was concerned, the property in the hands of Ramesh Deshmukh was ancestral property because his son Gopal, also an appellant, was born during the life time of said Krushnarao Deshmukh. It was submitted that since the property was inherited by Ramesh Deshmukh from his father Krushnarao Deshmukh, the same was ancestral property in his hands. This aspect, according to the learned counsel, was ignored by the Courts below while dismissing the suit filed by the appellants. The learned counsel placed particular emphasis on the judgment of the Hon’ble Supreme Court in the case of Shyam Narayan Prasad Vs. Krishna Prasad and others (2018) 7 SCC 646, to contend that the property in question was ancestral property and that, therefore, Ramesh Deshmukh had no right to exclusively deal with the same to execute the sale deed in question. On this basis, it was submitted that the suit filed by the appellants ought to be decreed, by setting aside the concurrent orders passed by the two Courts below.

11. In so far as Second Appeal No.253/2019, , it was submitted by the learned counsel that since the property in question was ancestral property, the said Ramesh Deshmukh could have alienated the same only for legal necessity. It was submitted that as per settled law, it was for the purchaser i.e. the respondent to show that alienation was for legal necessity. It was further submitted that the respondent had failed to place on record sufficient material to prove the readiness and willingness to perform his part of contract and that, therefore, on these two grounds the decree granted in favour of the respondents deserved to be reversed.

12. On the other hand, Mr. A.M. Sudame, learned counsel appearing for respondents No.1 & 3 in Second Appeal No.241/2019 and for the sole respondent in Second Appeal No.253/2019, submitted that the basic premise of the contention raised on behalf of the appellants, was fallacious and not in accordance with law. It was submitted that the property in the hands of Ramesh Deshmukh could not be treated as ancestral property because it was admittedly self-acquired property of Krushnarao Deshmukh i.e. father of Ramesh Deshmukh. It was submitted that when the suit property had devolved to Ramesh and his brother Subhash, which was partitioned between them, both of them held respective properties as their self-acquired property. It was submitted that the position of law in this regard was absolutely clear, as per the judgments of the Hon’ble Supreme Court in the cases of Commissioner of Wealth Tax, Kanpur, etc. Vs. Chander Sen etc. AIR 1986 SCC 1753, Uttam Vs. Saubhang Singh and others (2016) 4 SCC 68 and recent judgment in the case of Arshnoor Singh Vs. Harpal Kaur and others, AIR 2019 SCC 3098. It was further submitted that reliance placed by the learned counsel for the appellants on the judgment of the Hon’ble Supreme Court in the case of Shyam Narayan Prasad Vs. Krishna Prasad and others (supra) was wholly misplaced because proper reading of the judgment would show that in the said case, the Court was concerned with ancestral property and not self-acquired property. It was submitted that the learned counsel for the appellant was ignoring the provisions of the Hindu Succession Act, 1956, while claiming that the property in the hands of Ramesh Deshmukh was ancestral property and, therefore, there was no substance in the contention raised on behalf of the appellant.

13. In so far as Second Appeal No.253/2019, it was submitted that the two Courts below had concurrently found that the respondent had placed on record sufficient material to prove his readiness and willingness. It was submitted that some part of the consideration had been already paid to the appellant and further that notice was issued by the respondent asserting that he was ready and willing to pay the balance consideration and that, therefore, on this aspect no error could be attributed to the findings rendered by the two Courts below. In so far as the question of legal necessity was concerned, it was submitted that at the stage of second appeal, the appellant could not be permitted to raise the said issue since it was not raised at any stage before the two Courts below. Even otherwise, it was submitted that the said issue was contingent upon the property in the hands of Ramesh being ancestral, which was not the case as per the correct position of law and, therefore, there was no substance in the said contention.

14. In the backdrop of contentions raised on behalf of rival parties, the following substantial questions of law were framed by this Court for consideration in the two appeals.
i. Whether the suit property in the present case could be said to be self acquired property of respondent No.2 Ramesh, so as to justify the claim of the purchaser that the said respondent was entitled to dispose of the property as per his desire?
ii. Whether the plaintiffs could claim right in the suit property despite the fact that it was self acquired property in the hands of Krushnarao by contending that the moment it devolved upon Ramesh after the death of Krushnarao it became an ancestral property or joint family property insofar as the plaintiffs were concerned?
iii. Whether in the facts and circumstances of the present case, the Courts below were justified in holding that the original plaintiff was always ready and willing to perform his part of the contract?
iv. Whether in the light of the first issue framed by the Trial court regarding the nature of the property being ancestral or otherwise, an additional issue pertaining to legal necessity was required to be framed in the facts and circumstances of the present case?

15. The learned counsel for rival parties were heard on the aforesaid substantial questions of law and their contentions have been recorded herein above. The learned counsel for the rival parties also submitted notes of arguments in support of their respective contentions.

16. The questions No. (i) and (ii) framed by this Court pertain to the aspect which goes to the very root of the matter in the present appeals. While the appellants have claimed that the property in the hands of Ramesh Deshmukh was ancestral property, due to which he could not have dealt with the suit property, the respondents have claimed that the Courts below correctly held the property in the hands of Ramesh Deshmukh as self-acquired property. In order to examine the rival contentions on this aspect, a few admitted facts will have to be appreciated. It is an admitted position that the property in the hands of Krushnarao Deshmukh i.e. father of said Ramesh Deshmukh was his self-acquired property. In fact, a belated challenge raised to the said fact by the appellant at the stage of appeal before the Appellate Court stood negated. It is at the stage of pendency of the appeal before the Appellate Court that the appellant sought to add pleadings by way of amendment in the plaint, to claim that the suit property was inherited by Krushnarao Deshmukh and, therefore, it was ancestral property. In the first instance, the amendment application was allowed by the Appellate Court, but, the same was set aside by this Court in the Writ Petition filed by the respondent and the matter was remanded to the Appellate Court. On remand, the Appellate Court again allowed the application for amendment, but, the respondents filed Writ Petition before this Court, which was allowed and the order passed by the Appellate Court was set aside. Therefore, it was an established fact in the present case that the suit property was self-acquired property of Krushnarao Deshmukh. It is also an admitted fact that the said Krushnrao Deshmukh died intestate on 19/4/1993 and his sons Ramesh and Subhash succeeded to the property. They partitioned the property amongst themselves and the suit property came into the hands of Ramesh Deshmukh. It is the contention of the appellants that even if the property was self-acquired property of Krushnarao Deshmukh, the moment Ramesh Deshmukh acquired the same, it became an ancestral property in his hands in respect of his branch, particularly because appellant Gopal i.e. son of Ramesh Deshmukh was already born during the life time of his grand-father Krushnarao Deshmukh. This contention based on admitted facts needs to be examined to arrive at the conclusion as to whether the appellants are justified in claiming that the suit filed by them for declaration in respect of said sale deed ought to have been decreed.

17. The learned counsel for the appellants has relied upon the judgment of Shyam Narayan Prasad Vs. Krishna Prasad and others (supra) particularly paragraph No.12 thereof, to contend that as per the law recognized in the said judgment, the property in the present case was ancestral property in the hands of Ramesh Deshmukh. The said paragraph No.12 of the aforesaid judgment reads as follows :
“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 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.”

18. To counter the said reliance placed by the appellants on the said judgment of the Hon’ble Supreme Court, the learned counsel appearing for the respondent invited attention of this Court to the contents of the entire judgment, particularly paragraph Nos.11 and 16 thereof to point out that in the aforesaid case before the Hon’ble Supreme Court, the properties were ancestral properties, which had been divided later by partition. A perusal of the paragraph Nos.11 and 16 indeed shows that the Trial Court in the said case had rendered a positive finding that the properties were ancestral properties and the Hon’ble Supreme Court did not find any reason to interfere with the same. Thus, it becomes clear that the observations made by the Hon’ble Supreme Court in the paragraph No.12 of the said judgment, quoted above, are in the backdrop of the fact that the properties in that case were ancestral properties. Hence, this Court finds it difficult to agree with the learned counsel appearing for the appellants that the said observations of the Hon’ble Supreme Court in the case of Shyam Narayan Prasad Vs. Krishna Prasad and others (supra) covered the case completely in favour of the appellants.

19. The question regarding status of the property in the hands of Ramesh Deshmukh on admitted facts needs to be ascertained on the basis of the position of law clarified by the Hon’ble Supreme Court in various judgments. In the case of Commissioner of Wealth Tax, Kanpur, etc. Vs. Chander Sen etc. (supra) the Hon’ble Supreme Court had an occasion to consider divergent views of various High Courts in the context of a similar question, in the backdrop of Section 8 of the Hindu Succession Act, 1956. After considering the conflicting views, the Hon’ble Supreme Court held that enactment of Hindu Succession Act, 1956, had brought about change in the old Mitakshara Hindu Law. It was held that when property devolved on a Hindu under Section 8 of the aforesaid Act, it could not be held that such property was still Hindu undivided family property, particularly in the backdrop of the Class I heirs specifically stated in the schedule to the said Act.

20. In the case of Uttam Vs. Shubhang Singh and others (supra) the Hon’ble Supreme Court considered the effect of the aforesaid Act on the nature of property to which a Hindu succeeded, with particular reference to Sections 4, 6, 8 and 19 of the said Act. In the case of Arshnoor Singh Vs. Harpal Kaur and others (supra), the Hon’ble Supreme Court considered the position of law under the old Mitakshara law and impact of the aforesaid Act on the same. It was held in the said judgment by the Hon’ble Supreme Court as follows :
“7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a chage. 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.
7.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-a-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.”

21. Thus, it becomes clear that when a Hindu obtains partition of an ancestral property then it is an ancestral property in his hands qua his own branch, but, if he inherits self-acquired property from his predecessor under Section 8 of the aforesaid Act, it becomes his own self-acquired property and it cannot be treated as ancestral property. The pivotal fact in the present case becomes the admitted position that the suit property was self-acquired property of Krushnarao Deshmukh, which then came into the hands of said Ramesh Deshmukh by succession and, therefore, there was no question of appellant Gopal, being the son of said Ramesh Deshmukh, acquiring any right in the said property by birth. The fact that the said Kurshnrao Deshmukh died on 19/04/1993 i.e. after enactment of the said Act of 1956, is also crucial because the succession to his self-acquired property after enactment of the said Act was in terms of Section 8 thereof. It is significant that Class I heirs specified in Schedule to the said Act, include son and son of a predeceased son but not the son of a living son. Thus, in any case, the appellant Gopal did not acquire any right in the property in the hands of Ramesh Deshmukh, which was his self-acquired property.

22. Therefore, it becomes clear that the findings rendered by the two Courts below about the suit property not being ancestral property are in terms of the position of law and no interference is warranted. The effect of the said Act on the old Mitakshra Hindu Law and the scheme of the aforesaid Act clearly demonstrate that since it is an admitted position on facts that the property in the hands of Krushnarao Deshmukh was his self-acquired property, when it came into the hands of his son Ramesh through partition, it became the self-acquired property of Ramesh Deshmukh. No other interpretation can be made on the facts of the present case, by applying the position of law as clarified by the Hon’ble Supreme Court. Therefore, the questions (i) and (ii) are answered against the appellants and in favour of the respondents in Second Appeal No.241/2019.

23. In so far as the question Nos. (iii) and (iv) are concerned, they pertain to Second Appeal No. 253/2019, concerned with the grant of decree of specific performance against the appellant therein. In so far as question No.(iv) is concerned, the question of legal necessity does not arise in the present case at all because this Court has found that the property in the hands of Ramesh Deshmukh was his self-acquired and not his ancestral property. Once this finding is reached the question of legal necessity does not arise at all. Consequently, this Court is not called upon to examine the contention raised on behalf of the respondent in the said appeal that the issue of legal necessity could not be raised at the stage of Second Appeal, since the same was not raised on the part of the appellant before the two Courts below. Hence, question No.(iv) is answered accordingly.

24. In so far as question No. (iii) pertaining to readiness and willingness on the part of the respondent in the said appeal is concerned, the two Courts below have concurrently held that the respondent had proved the same as a result of which he was entitled to the grant of decree of specific performance. The material on record shows that the appellants had received substantial amount of consideration amounting to Rs.13,50,000/- by 23/10/2012. As noted above, the sale deed in respect of part of the property was already executed by Ramesh and sale deed in respect of balance portion pertaining to the agreement remained to be executed. The record shows that when the respondent received notice dated 04/01/2011,from the daughters and son of the appellant claiming that the appellant was not entitled to sell the property as it was ancestral property, the respondent No.1 through his grand-father Haribhau replied to the notice asserting that it was self-acquired property of Ramesh Deshmukh (appellant) as it had devolved under Section 8 of the said Act. On 06/04/2011,the said respondent through his grand-father Haribhau had sent a notice calling upon the respondent to perform his part of the contract and on 30/5/2011, the respondent through his grand-father Haribhau sent another notice to the appellant asking him to remain present in the office of Sub-Registrar on 04/06/2011, for executing sale deed. In these notices and reply sent on behalf of the respondent through his grand-father, it was specifically stated that he was ready and willing to pay the balance amount to the appellant for execution of sale deed. At this stage, on 06/06/2011, the respondent received reply from the appellant stating that it was not possible for the appellant to execute the sale deed, in view of the suit for declaration, partition and separate possession filed by his daughters and son against him.

25. The pleadings before the Trial Court, in the light of the documents on record, demonstrated that the respondent specifically asserted about his being ready and willing to perform his part of the contract. The specific pleadings required under the provisions of the Specific Relief Act and forms No.47 and 48 of Appendix A to the Code of Civil Procedure, 1908, are found to be existing in the present case. It is an admitted position that the suit was filed within the period of limitation of three years from the date fixed by the parties to perform the agreement i.e. 30/6/2011. Therefore, the pleadings as well as oral and documentary evidence on record sufficiently prove readiness and willingness on the part of the respondent to perform his part of the contract. Hence, no error can be attributed to the findings rendered by the two Courts below in favour of respondent on this aspect while granting decree of specific performance. Thus, question No. (iii) is also answered in favour of respondent and against the appellant in Second Appeal No.253/2019.

26. In view of above, this Court finds that there is no substance in these two appeals, which were taken up for consideration together.

27. Accordingly, the appeals are dismissed with no order as to costs.

Decision : Appeals dismissed.