CLIENT COUNCELLING NO. 4

SUBMITTED BY: UTPAL KUMAR

ROLL NO. 635

SECTION B (5th YEAR)

Petitioner: Sachidanand Pandey, Aged 80.

S/O Late Chhedi Prasad Pandey

Resident of –Lohapatti Sujaganj, Thana – Kotwali, P.O. Sujaganj, Dist-

Bhagalpur.

Contact: 7549847493

P.P.No.- wife of Sachidanand Pandey or Nidhi, the granddaughter of Sachitanand

Pandey.

Dispute related to:- The entire property of the joint family during the life time of father of

Sachidanand Pandey namely Late Chhedi Prasad Pandey, was divided 8 anna in his name and 4

anna in name of Sachidanand Pandey and 4 anna in name of Shiv Shanker Pandey.

The relation between Chhedi Lal Pandey, Sachidanand Pandey & Shiv Shanker Pandey are that

they are coparceners and geonological table of the family is as follows:-

Chhedi Lal Pandey

Sachidanand Pandey Shiv Shanker Pandey

This division of him was made by him by the registered deed of gift in the year about 1975. The

total plot in the dispute in 5 kattha of land. The total plot of 5 kattha of land consists of 2

temples. On the said land 2 different temples situated one was Ramjanki Mandir which was later

on destroyed. The statue of the mandir had been broken and there after the father of Sachidanand

Pandey had established his own “ kul devta” and “ shaligram” at the place of Ramjanki statue.

From the premises of the temple adjacent to Ramjanki was on rent and it is still on rent. By the

earning of the rent ragbhog, poojapath, aarti etc is used to take place.

So far as the second temple is concerned it is a shivalay, i.e. Lord Shiva and his family were

established there. The area adjacent to shivala was given to Sachidanand Pandey and the area

which was little bit separate from Shivala was given to Shiv Shanker and the temple and rest

was with Chhedi Nath Pandey.

Late Chhedi Nath Pandey created a document in which he had indicated that Sachidanand

Pandey shall look after the idols. The said statement he has made in the Court of law.

In this background the family was going on but Shiv Shanker Pandey the younger brother of

Sachidanand Pandey filed a title suit of 131/2005 with the relief:-

1) It be declared that the plaintiff is entitled to ½ in 8 anna property in the schedule property.

2) Separate “takhta” should be carved out.

NATURE OF CASE: Civil – partition

PROVISION OF LAW APPLICABLE: 1) The Hindu Disposition of Property Act, 1916

2) The Hindu Succession Act, 1956.

3) The Transfer of Property Act, 1882.

LEGAL QUESTIONS RAISED:

1) Does the 8 anna of land which Late Chhedi Nath Pandey got after partion is his separate

or coparcener property?

2) Can Late Chhedi Nath Pandey could transfer his property to his son Sachidanand Pandey

alone without giving any share to the second son namely Shiv Shanker Pandey?

3) Can just asking to take care of the idol amounts to transfer of ownership in the name

Sachidanand Pandey?

4) Can Shiv Shanker Pandey’s claim of ½ of the 8 anna land which was transferred to

Sachidanand Pandey valid in the eyes of law?

REMEDY:

1) Does the 8 anna of land which Late Chhedi Nath Pandey got after partion is his separate or

coparcener property?

In the above case the joint family property during the life time of Late Chhedi nath

pandey was divided 8 anna in his name, 4 anna in the name of Shiv Shanker Pandey and

4 anna in the name Sachidanand Pandey. Under the traditional hindu law when a son inherits the

property from his father , he takes it as joint hhindu property. If a hindu inherits his father’s

property under section 8 of The

Hindu Succession Act and he cannot inherit his father’s separate property in any other manner he

holds his property as his separate property.

Here as in this case the plaintiff is a domicile of Bihar so he would be governed by the rules of

Mitakshara joint hindu family. Thus after inheriting the property no new joint hindu property is

created as per the laws of The Hindu Succession Act.

In the present case it was a partition through which Late Cheddi Nath Pandey acquired the

ownership of the 8anna of the joint property land. Thus in respect of his own son, son’s son, and

son’s son’s son it will continue to be a joint hindu property. But in respect of all others it will be

a separate property. It may be illustrated thus: A coparcenary consists of A and his two sons B

and C and if they partition the properties obtained by each will be his separate property. Even

A’s share will be his separate property in the sense that his sons B and C have no interest, no

birth right in it. But the moment any one of them gets a son his share will again become a join

hindu property. This will be so even

if A gets another son D ; A and D will constitute a new coparcenary.

Take another example : A coparcenary consists of A, his two sons, B and C and two sons

each of B and C, BS, BS1 CS and CS1. A, B and C partitioned, B and C remaining joint

with their sons. Then the partition will be that A will acquire separate property while the

shares of the two sons remain to be join property.

Thus, basing the above discussion it can be stated that it was his separate property.

2) Can Late Chhedi Nath Pandey could transfer his property to his son Sachidanand

Pandey alone without giving any share to the second son namely Shiv Shanker

Pandey?

Property received in gift: Gift of the following properties may be considered.

1) Gift of self acquired property by father to his son.

2) Gift of join hindu family property.

By father-karta

By father

If father gives his self acquired property by gift inter vivos or by will to one of his son whether

he will take it as his separate property or whether he will take it as ancestral property.

The difficulty arises on the two principles of hindu law: i) every hindu has full power of disposal

over his separate property. ii) when self acquired property of a hindu devolves on his son by

inheritance, the son take it as ancestral property.

Thus in the present case as the property acquired by Late Chedi Nath Pandey is through partition

of a joint hindu family property and thus has a separate interest in the 8 anna of the land thus he

is very much competent to gift that property to any of his two sons.

Thus gifting of his land consisting of temples to his eldest son is very much valid and the claim

of his younger son in the property is baseless.

Thus it can be said that if A who has three sons, B, C and D makes a gift of his self acquired

property to C to the exclusion of Band D then they cannot challenge the gift.

3) Can just asking to take care of the idol amounts to transfer of ownership in the name

Sachidanand Pandey?

The client in the present case stated that his father Late Chhedi Nath Pandey asked his son to

take of the idols and do puja path. Also the land and the temple was since then was looked after

by the client. He also made this disposition before the Court of law that is father Late Chhedi

Nath Pandey wants to give the temple to his eldest son Sachidanand Pandey so that hhe could

take care of the idols and do puja path regulary and on the basis of this disposition made in the

Court the client started doing the same.

Basing this fact the most important legal question which arises here is that where just asking his

eldest son to take care of the idols amount o transfer the land along with the temple to his son.

In order to decide whether such a statement amounts to gift it is important to see the provisions

related to execution of a valid gift.

Chapter: VII of The Transfer of Property Act, 1882 deals with “Gifts”.

Section 122 defines gift as a transfer of certain existing movable or immovable property made

voluntarily and without consideration by one person called the donor, to another called the done

and accepted by or on behalf of the done. The acceptance of such gift should be made during the

lifetime of the donor.

Section 123 talks about how transfer made. The transfer must be effected through a registered

instrument signed by or on behalf of the donor and attested by at least two witnesses.

Thus as far as the facts of the case is concerned the disposition made by Late Chhedi Nath

Pandey before the Court of law regarding the temple and the land on which the temple is situated

amounts to a valid gift to the client Sachidanand Pandey.

4) Can Shiv Shanker Pandey’s claim of ½ of the 8 anna land which was transferred to

Sachidanand Pandey valid in the eyes of law?

Basing the facts stated by the client and after referring the provisions concerned it is very much

clear that the demand of ½ of the 8 anna of land initially belonging to Late Sachidanand

Pandey, by his younger brother Shiv Shanker Pandey is baseless.

The property which Cheddi Nath Pandey acquired after the partion was his separate property as

during partion his two sons Sachidanand Pandey and Shiv Shanker Pandey also got their separate

share of 4 annas each.

Thus Chhedi Nath Pandey could transfer his separate property to any of his son or to any other

third person as it his own personal will. Also the disposition made before the Court of law by

Late Chhedi Nath Pandey regarding the taking care of the idols and the temple by his eldest son

Sachidanan Pandey shows his intention that he wanted to transfer the interest attached to the\

temple to his eldest son and thus the land on which the temple is erected also automatically

stands transferred in the name of the client Mr. Sachidanand Pandey.

REMEDY:

The remedy in this case claimed is that Shiv shanker Pandey shall be asked to compensate the

client who is approx 80 years of age as he has been regularly subjected to torture and humiliation

by his younger brother. Also keeping in mind the tender age of the client it is expedient to

mention here that he is not in a position to come to the court regularly and present himself in the

case every now and then thus it can be requested to the court to grant the appropriate relief as

soon as possible.

It is also important to mention here that the client has been regularly taking of the temple, idols

and the premises. His younger brother has no more claim attached to the land nor in the temple

which has already been transferred to the client Mr Sachidanand Pandey through a registered gift

deed.