TMI Blog2013 (7) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... r Gulab Singh, defendant no. 2,got 96 Kanals of land. Defendant No.2 during his lifetime also acquired 8 Kanals of land from the income of the properties which he got in partition amongst his father and brothers. At the time of partition defendant no. 2 was unmarried. But later on, Gulab Singh was married to defendant no. 7, Rajesh Rani and from the wedlock the plaintiff as also defendant no. 6 were born. Plaintiff was born on 25th of March, 1982. Plaintiff alleged that his father defendant no. 2 executed two separate sale deeds on 19th of May, 2000 selling 8 Kanals of land acquired from joint family funds to defendant nos. 3 to 5. It is further allegation of the plaintiff that his father illegally gifted 96 Kanals of land in favour of defendant no. 1 Surinder Singh, the son of his real brother Zile Singh by way of release deed dated 28th of May, 2004. On the basis of the release deed and the sale deeds, the defendants claiming interest therein got their names mutated and attested in the revenue records. It is the case of the plaintiff that the property received by his father is ancestral property and, therefore, alienation of the same by him is null and void. On the basis of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracteristics of coparcenary property after the plaintiff Rohit Chauhan was born. The finding recorded by the trial court in this regard reads as follows: 21. No doubt Gulab Singh got some of his share in the property described in para no. 1(a) of the plaint through his father Budhu vide mutation no. 3089 in which the father Budhu suffered a decree in favour of defendant no. 1 along with Zile Singh and Ram Kumar of 3/4th share but in the year 1969 when the said decree was passed Gulab Singh was unmarried and he had got alienated the land which had come to his share when Rohit Chauhan, Plaintiff came into existence i.e. on 25.3.1982. Meaning thereby that the property which Gulab Singh had got by the decree was although his separate property qua other relation but became JHF property immediately when Rohit Chauhan was born thereby getting characteristic of coparcenary property. Accordingly, the trial court decreed the suit. Defendant no. 1, aggrieved by the same, preferred appeal and it was his plea that the property received by defendant 2 on partition will become his separate property and requires to be treated as his self acquired property and, therefore, defendant no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed nor sale deeds executed by Gulab Singh can be questioned by anyone much less by son of Gulab Singh Accordingly, the lower appellate court allowed the appeal and set aside the judgment and decree of the trial court and dismissed the suit. Plaintiff, aggrieved by the same, preferred second appeal and the High Court dismissed the second appeal in limine and, while doing so, observed as follows: Finding of the lower appellate court that the suit land is not proved to be ancestral or coparcenary property is fully justified by the documentary evidence and admitted facts . This is how the plaintiff is before us. Leave granted. Mr. L.Nageshwar Rao, learned Senior Counsel appearing on behalf of the plaintiff-appellant submits that at the time when the plaintiff s father Gulab Singh got the property in partition, it was his separate property vis- -vis his relations but after the birth of the plaintiff on 25th of March, 1982, plaintiff acquired interest in the property as a coparcener. Mr. Satinder S. Gulati, learned Counsel appearing on behalf of the defendant-respondents, however, submits that once the property fell into the share of the plaintiff s father G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orn, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. The view which we have taken finds support from a judgment of this Court in the case of M. Yogendra v. Leelamma N., (2009) 15 SCC 184, in which it has been held as follows: 29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid. Now referring to the decision of this Court in the case of Bhanwar Singh (supra), relied on by respondents, the same is clearly distinguishable. In the said case the issue was in relation to succession whereas in the present case we are concerned with the status of the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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