HARDEO RAI versus SAKUNTALA DEVI AND OTHERS

Citation: [2008] 7 S.C.R. 1 · Decided: 29-04-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 7 S.C.R.1 
HARDEO RAI 
A 
v. 
SAKUNTALA DEVI AND OTHERS 
(Civil Appeal No. 3040 of 2008) 
J., 
APRIL 29, 2008 
B 
[S.B. SINHA AND V.S. SIRPURKAR, JJ.] 
Specific Relief Act, 1963 - s. 20 - Suit for specific 
performance of execution of sale deed in terms of sale 
agreement - Seller's case that property was joint family c 
property and sale agreement was scribed due to forcible 
execution - Suit decreed by trial court, however, set aside by 
appellate court - In appeal, .the Division Bench upholding the 
order of trial court - Correctness of - Held: There was no 
evidence to show that parties were in joint possession of the D 
property - Seller himself admitted that he and his other co-
sharers were in separate possession of the property - Also 
the first appellate court did not hold that seller was member .of 
Mitakhshara coparcenary- More so, suit was decreed in 1981 
and the buyer was put in possession of property and thereafter, 
E 
the coparceners of seller did not file any suit - Thus, order of 
trial court calls for no interference. 
Hindu law - Mitakashra Coparcenary property and Joint 
Family property - Distinction between. - Held: Mitakashra 
Coparcenary is a body of individuals created by law whereas 
F 
ioint family is constituted by agreement of the parties. 
The appellant and the respondent's father entered 
into an agreement to sell a property. In the agreement, the 
appellant made a representation that the joint family 
property was partitioned and the co-sharers were in G 
....,. 
possession of the separate properties. Respondent's 
father paid certain sum out of the total amount and was 
put in the possession of the property. However, the 
1 
H 
2 
SUPREME COURT REPORTS 
[2008] 7 S.C.R. 
A appellant did not execute the sale deed. Respondent filed 
suit for specific performance. Appellant contended that 
he was forced to sign a blank stamped paper on which 
agreement of sale was scribed later; and that the property 
was a joint family property. Respondent's father was 
B examined. The scribe of the agreement as also witnesses 
were examined. Trial court decreed the suit. The appeal 
by the appellant was allowed on the ground that the 
property was a joint family property. Aggrieved, 
respondent filed appeal and the DivisiOn Bench of High 
C Court allowed the same. Hence, the present appeal. 
Dismissing the appeal, the Court 
HELD: 1.1 There exists a distinction between a 
Mitakashra Coparcenary property and Joint Family 
0 
property. A Mitakashra Coparcenary carries a definite 
concept. It is a body of individuals having been created 
by law unlike a joint family which can be constituted by 
agreement of the. parties. A Mitakashra Coparcenary is a 
creature of law. Thus, it is necessary to determine the 
status of the appellant and his brothers. [Para 17] [8-D, E] 
E 
1.2. For the purpose of assigning one's interest in 
the property, it was not necessary that partition by metes 
and bounds amon_gst the coparceners must take place. 
When an intention is expressed to partition the 
F coparcenary property, the share of each of the 
coparceners becomes clear and ascertainable. Once the 
share of a co-parcener is determined, it ceases to be a 
coparcenary property. The parties in su.ch an event would 
not possess the property as "joint tenants" but as 
G "tenants in common". [Para 21] [10-A, B] 
H 
1.3 Even a coparcenary interest can be transferred 
subject to the cond.ition that tile purchas;~r without the 
consent of his other coparceners cannot get possession. 
He acquires a right to sue for part:tion. Where a 
HARDEO RA! v. SAKUNTALA DEVI AND OTHERS 
3 
coparcener takes definite share in the property, he is A 
owner of that share and as such he can alienate the same 
by sale or mortgage in the same manner as he can dispose 
of his separate property. [Paras 22 and 24] [10-C, F] 
....... 
2.1 The first appellate court did not arrive at a 
conclusion that the appellant was a member of a 8 
Mitakashra co-parcenary. The source of the property was 
not disclosed. The manner in which the properties were 
being possessed by the appellant vis-a-vis, the other co-
owners had not been taken into consideration. It was not 
held that the parties were joint in kitchen or mess. No other C 
documentary or oral evidence was brought on record to 
show that the parties were in joint possession of the 
properties. One of the witnesses examined on behalf of 
the appellant admitted that the appellant had been in 
sepa

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