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Ancestral property retains coparcenary nature even after partition

In Shyam Narayan Prasad vs Krishna Prasad, one Gopalji Prasad was the common male ancestor of the parties. The appellant is the sons of Gopalji Prasad. The family property was partitioned on 31.7.1987 between Gopalji and his five sons, namely, Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh Kumar. In the partition Gopalji has retained some of the properties for his personal use till his death. Laxmi Prasad got his share of property along with half portion of existing two-storey RCC building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is being run. Shyam Narayan Prasad was allotted a shoe shop at Manihari which is run on a rented premises owned by Gouri Shankar Prasad. He was also allotted other properties in the partition.

After the partition, the sons of Gopalji were put in possession of their share of the properties. However, Laxmi Prasad and his brother Shyam Narayan Prasad (defendant No.1) executed an agreement dated 30.1.1990 exchanging the liquor shop at Singtam Bazar, East Sikkim with the shoe shop at Manihari. This transaction was objected to by the defendants who are sons and grandson of :Laxmi Prasad. It is their contention that since the property is an ancestral property, they also have a share in the property which had fallen to the share of defendant No.2 and that he has no legal right to exchange the property with defendant No.1. It was further contented that the deed of exchange dated 30.1.1990 entered into between defendant Nos.1 and 2 is in relation to an immovable property. Since the said document has not been registered, it has no legal effect.

The trial court accepted this argument, the District Judge rejected while the High Court reinstated the order of the trial court.

The Supreme Court referring to judgments of the Supreme Court in C. Krishna Prasad v. C.I.T, Bangalore, M. Yogendra and Ors. v. Leelamma N. and Ors, Rohit Chauhan v. Surinder Singh and Ors., agreed with the High Court held 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. Therefore, the properties acquired by defendant No.2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned.


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