A Sole Surviving Coparcener Can Dispose Of Coparcenary Property As His Separate Property, Even Without Legal Necessity: Karnataka HC
The Karnataka High Court held that a sole surviving coparcener can sell, mortgage, or gift coparcenary property as his separate property, even without legal necessity, as long as he remains the sole surviving coparcener.
The Court set aside the order of the Trial Court which rejected an application sought to restrain the Respondents from interfering, alienating and putting up of construction over the schedule property. The Bench stated that Section 8 of the Hindu Succession Act, 1956 (HSA) applied in cases of a sole surviving coparcener, but when sons and grandchildren are born to the family, then automatically by birth they acquire the right over the ancestral and joint family property and cannot dispose of the same.
A Single Bench of Justice H.P. Sandesh explained, “The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property.”
Senior Advocate D.L. Jagadeesh represented the Appellants, while Advocate K.R. Krishnamurthy appeared for the Respondents.
The High Court noted that the Trial Court failed to take note of the material on record, particularly the facts of the case and the acquisition of the property by the great-grandfather. “The Trial Court ought to have granted the relief of temporary injunction not to alienate the suit schedule property, since the defendants have categorically admitted that they have taken up construction and it is in completion stage. Even though the plaintiffs are not entitled for the relief as sought in I.A.Nos.1 and 3, the Trial Court ought to have granted the relief of temporary injunction as sought in I.A.No.2 restraining defendant Nos.2 to 6 from alienating the suit schedule property. If such an interim relief is not granted, it leads to multiplicity of proceedings,” it remarked.
The Court referred to the decision in Shyam Narayan Prasad v. Krishna Prasad (2018), wherein the Apex Court observed, “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 plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten.”
Referring to this decision, the Bench held, “The principles laid down in the judgments referred supra is very clear that the surviving sole coparcener can dispose of, but when the sons and grandsons are born, they become coparceners and they cannot sell it.”
Consequently, the Court held, “The order of the Trial Court…is set aside and consequently granted the relief of temporary injunction restraining defendant Nos.2 to 6 from alienating the suit schedule property, till the disposal of the suit.”
Accordingly, the High Court partly allowed the Appeal.
Cause Title: Parth Ghorpade & Anr. v. Indrajeet D. Ghorpade & Ors.
Appearance:
Appellants: Senior Advocate D.L.Jagadeesh; Advocate Murtuza Ali Baig
Respondents: Advocate K.R.Krishnamurthy