SHYAM NARAYAN PRASAD versus KRISHNA PRASAD AND ORS.

Citation: [2018] 5 S.C.R. 36 · Decided: 02-07-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

Cited by 4 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 5 S.C.R.
SHYAM NARAYAN PRASAD
v.
KRISHNA PRASAD AND ORS.
(Civil Appeal No. 5415 of 2011)
JULY 02, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Hindu Law – Mitakshara law – Property allotted to son in
partition – Whether retains character of coparcenery property –
Held: 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 – On facts,
properties acquired by son in the partition although are separate
property qua other relations but it is a coparcenary property in so
far as his sons and grandsons are concerned – Plaintiffs being his
sons and grandson have a right in the said property – It cannot be
said that the suit filed by the plaintiffs challenging the document
executed between their father and uncle was not maintainable.
Deeds and Documents – Exchange deed – Admissibility in
evidence – On facts, two brothers transferred the ownership of their
respective properties through deed of exchange – One building also
subject matter of the exchange deed, value of which exceeded Rs.
100/- and was not registered – Held: Since the exchange deed had
the effect of creating and taking away the rights in respect of an
immovable property-building, it required registration – Being an
unregistered document, it could not be taken into account to the
extent of the transfer of an immovable property – It is inadmissible
in evidence and as such can neither be proved u/s. 91 nor any oral
evidence can be given to prove its contents – Thus, the High Court
rightly discarded the exchange deed – Transfer of Property, 1882 –
ss. 118, 54 – Registration Act, 1908 – ss. 17, 49 – Evidence Act,
1872 – s. 91.
Dismissing the appeal, the Court
HELD: 1.1 The property inherited by a male Hindu from
his father, father’s father or father’s father’s father is an ancestral
[2018] 5 S.C.R. 36
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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. On
facts, the properties acquired by defendant No.2 in the partition
although are separate property qua other relations but it is a
coparcenary property insofar as his sons and grandsons are
concerned. There is a clear finding by the trial court that the
properties are ancestral properties which have been divided as
per the deed of partition. The property which had fallen to the
share of defendant No.2 retained the character of a coparcenary
property and the plaintiffs being his sons and grandson have a
right in the said property. Hence, it cannot be said that the suit
filed by the plaintiffs was not maintainable. [Paras 12, 16][42-C-
D; 44-E-F]
C. Krishna Prasad v. C.I.T, Bangalore [1975] 2 SCR
709 : (1975) 1 SCC 160; M. Yogendra and Ors. v.
Leelamma N. and Ors. [2009] 12 SCR 38 : (2009) 15
SCC 184; Rohit Chauhan v. Surinder Singh and Ors.
[2013] 7 SCR 897 : (2013) 9 SCC 419 – referred to.
1.2 The transfer of ownership of their respective properties
by defendant Nos. 1 and 2 was done through deed of exchange. It
was contended by defendant No.1 that the exchange was only of
the businesses. However, a careful perusal of the deed clearly
shows that the RCC building is also a subject matter of the deed
of exchange. The value of RCC building exceeds Rs. 100/- which
is not in dispute. It is clear from s. 118 of the Transfer of Property
Act that where either of the properties in exchange are immovable
or one of them is immovable and the value of anyone is Rs.100/-
or more, the provision of Section 54 of the TP Act relating to sale
of immovable property would apply. The mode of transfer in case
of exchange is the same as in the case of sale. It is thus clear that
in the case of exchange of property of value of Rs. 100/- and
SHYAM NARAYAN PRASAD v. KRISHNA PRASAD
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