RSA No.3257 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3257 of 1987 Date of decision : 02.05.2011 Sharanjit Kaur …Appellant Versus Amarjit Singh and another …Respondents CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present : Shri Arun Jain, Sr. Advocate, with Shri Ankur Soni, Advocate, for the appellant. Shri Ashok Aggarwal, Sr. Advocate, with Shri Puneet Bali, Advocate, for the respondent-Amarjit Singh, deceased. Shri Jai Bhagwan, Advocate, for the respondent-Smt. Manjit Kaur. JITENDRA CHAUHAN, J. This appeal has been preferred by Smt. Sharanjit Kaur, the appellant, against the judgment and decree dated 14.10.1987, dismissing the appeal by the learned Additional District Judge, Ludhiana, impugning the judgment and decree dated 17.11.1984, whereby her suit was dismissed. 2. The following pedigree table will be helpful in understanding the brief facts of the case:- Attar Singh | Inder Singh | RSA No.3257 of 1987 -2- | Charanjit Singh | Fateh Singh | Santokh Singh (General Power of Attorney holder of Amarjit Singh) | Amarjit Singh- Defendant No.1 (expired on 25.01.2000) (Manjit Kaur-wife, defendant No.2, expired in 2004) | | Mandeepak Singh (allegedly murdered by his father-Amarjit Singh, on 31.10.1981) (Sharanjit Kaur- plaintiff/appellant- widow) The marriage between Sharanjit Kaur and Mandeepak Singh took place on 15.02.1981. The relations between Amarjit Singh and his wife, Manjeet Kaur, were not cordial. It is alleged that Mandeepak Singh was murdered by his father, Amarjit Singh Grewal, on 31.10.1981. Smt. Sharanjit Kaur, the widow of Mandeepak Singh filed the suit on 29.01.1982, for possession of land measuring 23 Bighas 2 Biswas 10 Biswasi, pukhta, situated in Village Tarf Gehlewal, Tehsil and District Ludhiana, as fully described in the head note of the plaint. Amarjit Singh, defendant No.1 was the owner and Karta of the Joint Hindu Family consisting of him and his son, Mandeepak Singh. The land was joint Hindu family ancestral property and the same was inherited by Amarjit Singh from his father, late Inder Singh. Amarjit Singh Grewal, defendant No.1, reserved 7 hectares of land for his son, Mandeepak Singh, as reflected in Form ‘A’, the order of Collector Agrarian, Ludhiana, passed on 25.08.1975, is Ex.P-3. In these proceedings under Section 7 of the Punjab Land Reforms Act, 1975, regarding determination of permissible area, Ex.P2 is RSA No.3257 of 1987 -3- the statement of Amarjit Singh in this regard. As per Ex.P3, the order dated 25.08.1975, passed by the Collector Agrarian, Ludhiana, in file No.254 of 1973, regarding determination of permissible area, and surplus area under Section 7 of the Punjab Land Reforms Act, 1972, that the entire land owned by him was declared as permissible area, and no part of his land was found to be surplus with him, keeping in view the fact that he had only one adult son namely Mandeepak Singh, and as such he could select 14 hectares of first quality land for himself and for his adult son. The possession of the land measuring 23 Bighas 2 Biswas 10 Biswansi, pukhta, so reserved for Mandeepak Singh was given at the spot to him during the surplus proceedings. It is alleged that defendant No.1 had surrendered proprietary rights of the said land in favour of his son. After the death of Mandeepak Singh, the defendants forcibly took possession of the land. The plaintiff- widow filed this suit for recovery of possession of land measuring 23B 2B 10B pukhta. Amarjit Singh, the defendant contested the suit and asserted that the land was not joint Hindu family coparcenary property, the land was never reserved for Mandeepak Singh, and that defendant No.1 never recognized the rights of his son. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to the suit property being widow of late Mandeepak Singh son of Amarjit Singh? OPP 2. Whether defendant No.1 and Lat Mandeepak Singh constituted Joint Hindu Family? OPP RSA No.3257 of 1987 -4- 3. Whether the suit property is Joint Hindu Family coparcenary property? OPP 4. Whether the suit is not property valid for the purpose of court fee and jurisdiction? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief. The trial Court decided the Issue No.1, against the plaintiff holding that although Mandeepak Singh had been cultivating land, yet that will not confer title upon him. The Issues Nos.2 and 3, were decided by holding that the land in dispute is not proved to be the ancestral property of Amarjit Singh. The Issue No.4 was decided in favour of the plaintiff and the Issue No.5, against the defendant, holding that the plaintiff had no locus standi to claim the land in dispute. The suit of the plaintiff was dismissed by the learned trial Court on 17.11.1984. The plaintiff preferred first appeal before the learned Additional District Judge, Ludhiana, which was also dismissed 14.10.1987. Aggrieved by the judgments of the Courts below, the plaintiff- appellant has filed this regular second appeal No.3257 of 1987 in which this Court on 09.11.1987 issued notice of motion for 04.12.1987 and it was ordered that the respondents would not alienate the disputed land till then. This regular second appeal was admitted on 04.12.1987 and it was further ordered that the respondents shall not alienate the disputed lands till the final disposal of this appeal. The Regular Second Appeal No. 3257 of 1987 and the Regular Second Appeal No. 351 of 1988, are being heard together as the common RSA No.3257 of 1987 -5- question of law and facts involved therein in view of the rival claims of the parties regarding the same property. The learned counsel for the appellant submits that the judgments and decrees of the courts below are perverse as the same are occasioned by misreading of the documents on record. Mandeepak Singh, since deceased, was in possession of the suit land as fully described in jamabandi Ex.P.4. It is argued that the certified copy of the order dated 25.8.1975, Ex.P.3, and the statement of Amarjit Singh, Ex.P.2, and Form ‘A’, Ex.PW4/A, submitted by his father, Amarjit Singh, go to prove that the plaintiff is entitled to recover the possession of the land reserved for his son being the wife of Mandeepak Singh. The counsel vehemently assailed the findings of the courts below on issue no.1. The learned counsel also assails the findings of the courts below that Amarjit Singh, the father and Mandeepak Singh did not constitute the joint Hindu family. The learned counsel further argued that that land in suit is ancestral property as admitted by Santokh Singh, the General Power of Attorney holder of Amarjit Singh, respondent no.1, whose testimony goes unrebutted and unchallenged. On the other hand, the learned counsel for the respondents submit that the judgments and decrees of both the courts below do not suffer from any defect. There are concurrent findings of facts by both the courts below. Normally, the High Court will not interfere in the concurrent findings of facts. Learned counsel for the respondents submits that statement Ex.PW6/A, made by Sanotkh Singh, is inadmissible in evidence and cannot be read in this case as it was not put to Santokh Singh. Learned counsel for the respondent further argued that it is not proved that the property in dispute is Joint Hindu Family coparcenary property. The learned RSA No.3257 of 1987 -6- counsel submitted that admission by way of statement, Ex.PW6/1, made on 19.10.1983 by Santokh Singh, Attorney of Amarjeet Singh, in Civil Suit No.144/313 of 11.6.1982/15.6.1983, titled as Amarjeet Singh Vs. Manjeet Kaur and another, could not be read in evidence in this case. The learned counsel for the respondent cites Molar vs Santo 1968 PLR 510; M. Monoharan Chetti vs C.Coomaraswamy Naidu AIR 1980 Madras 212; Sita Ram, Bhau vs Ram Chander AIR 1977 SC 1712; 2008(1) RCR Civil 08; and AIR 1956SC593. He also cites Matu Ram vs Kartar Singh; Smt Brij Kaur vs Smt Vinok 1998 (3) CCC 597; Sarojani vs Chandrakant vs Yamunabai 2007 (4) CCC 159; Mehar Singh vs Baltej Singh AIR 2006 Punjab 55; Makhan Singh vs Kulwant Singh 2007(2) Civil Court cases 471; Babu Ram vs Kundan Singh 1997(1) Civil Court cases 437; Chhaju Ram vs Kapuria Ram1987 Simla Law Journal 727; and Gurjant Singh vs Surjit Singh 2004(3) Punjab Law Report 469. I have heard the learned counsel for the parties and have carefully gone through the record with their able assistance. The learned counsel for the appellant proposed the following substantial question of law: (i) Whether the property in the hands of Amarjit Singh was ancestral coparcenary property with Mandeepak Singh. If so, its effect? (ii) Whether the selection of area in surplus proceedings for the son amounts to transferring ownership. RSA No.3257 of 1987 -7- In D.R. Rathna Murthy Vs. Ramappa, (2011) 1 Supreme Court Cases 158, the Hon’ble Supreme Court, relying upon various judicial pronouncements in para No.9, held as under:- “Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances.” First of all this court is dealing with the first point. Para 212 of Mulla’s Hindu Law reads that “A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters.” The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Mere severance in food and worship does not operate as a separation. Sub para (3) says that a Joint or undivided Hindu family may consist of a single male member and widows of deceased male members. The property of a joint family does not cease to be joint family property belonging to any such family merely because the family is represented by a single male member (coparcener) who possesses rights which an absolute owner of a property may possess. Property inherited by a Hindu from his father, father’s father or father’s father’s father, is ancestral property. The essential feature of ancestral property is that if the person RSA No.3257 of 1987 -8- inheriting it has sons, grandsons or great grandsons, they become joint owner’s coparceners with him. They become entitled to it due to their birth. A coparcenary is purely a creature of law, it cannot be created by act of parties. There is a presumption of jointness in the absence of strong proof of division and severance of status or partition. Mere separate living will not severe the tie of jointness so long as the family is joint in food, worship and estate. Mere mutation entries in the name of eldest male member of the family may not by themselves be evidence of severance of status of Joint Hindu Family. In the present appeal, there is positive evidence on record that the land in the hands of Amarjit Singh is ancestral Joint Hindu Family property as the aforesaid property was inherited by Amarjit Singh from his father Inder Singh, and thus qua Mandeepak Singh, the husband of the appellant, it was ancestral property. On 3.10.1973, vide Ex.PW4/A, Amarjit Singh, father in law of the appellant, submitted the Form ‘A’ in terms of Rules 5 of the Punjab Land Reforms Rules 1973 as under: “Name of adult son for whom separately permissible area is selected is Mandeepak Singh.” On 25.8.1975, the Collector Agrarian, Ludhiana, vide Ex.P.3 recorded in the presence of Amarjit Singh, the land owner and on the basis of Form ‘A’ submitted before the competent authority, recorded in para 2 as under:- “2. That the statement of the land owner and evidence produced by him shows that he had only one adult son namely Mandeepak Singh age 25 years and as such he can select 14 hectares of first quality land for himself and for his adult son under the provisions of sub section (i) of the section 5 of RSA No.3257 of 1987 -9- Punjab Land Reforms Act 1972. The total ownership of this land owner is equivalent to 13.54 hectares of first quality land which is much below the permissible area. Therefore, entire land owned by the land owner is permissible area and no part of his land is surplus with him. Accordingly this case is filed.” The aforesaid factual position was recorded in the revenue record and evidenced by jamabandi for the year 1978-79 Ex.P.4 which in the cultivation column shows 35 Bighas 11 biswas 9 Biswansis in possession of Amarjit Singh as khudkashat, and 23 bigha 2 biswa 10 biswansi in possession of Mandeepak Singh, his son. On 20.4.1981, vide Ex.PW5/1 and Ex.PW5/2, Amarjit Singh withdrew his application No.2 of 1980-81, titled as Amarjeet Singh Vs. Mandeepak Singh, from the Court of Tehsildar, Ludhiana, for correction of khasra girdawari from 1978 to 1981. Ex.PW5/1 is reproduced as under:- “Statement of Amarjeet Singh, applicant, on SA. States that I have effected a compromise with the respondent and withdraw my application” Ex.PW5/2 is reproduced as under:- “Statement of Mandeepak Singh, respondent, on SA. I have read the statement of the applicant, which is correct.” Meaning thereby, Amarjit Singh admitted possession of Mandeepak Singh on the land kept reserved for him in surplus proceedings. The plaintiff-appellant namely Sharanjit Kaur came in the family as bride of Mandeepak Singh on 15.2.1981, with new hopes and expectations, but she was not aware that the good days would come to an end after few months. As the fate would have it, on 31.10.1981, Mandeepak RSA No.3257 of 1987 -10- Singh was allegedly murdered by Amarjit Singh, her father-in-law. The relations between her mother-in-law and father in law were not cordial. Though Manjit Kaur and Mandeepak Singh were living separately from Amarjit Singh, but there was no intention of the parties to permanently severe the status of jointness from each other. Amarjit Singh, the father in law of the appellant was prosecuted under section 302 IPC read with section 27 of the Arms Act, for the murder of his son Mandeepak Singh, and was sentenced for life imprisonment vide judgment dated 3.4.1984, of the Additional Sessions Judge, Ludhiana. Amarjit Singh was acquitted in Criminal appeal No.261 DB of 1984 on 28.2.1985 by this Court holding that Amarjit Singh acted in self defence After the murder of Mandeepak Singh on 31.10.1981, the appellant was dispossessed from the land measuring 23B 2B 10B, which was in actual physical possession of Mandeepak Singh, as per jamabandi for the year 1978-79 Ex.P.4. The lis in hand was brought by Sharanjit Kaur, plaintiff appellant on 23.1.1982, claiming that the land in question being ancestral Joint Hindu Family property was reserved by Amarjit Singh for Mandeepak Singh during the course of surplus proceedings and she had been illegally and forcibly dispossessed from the land by the defendants. This suit as well as the appeal were dismissed by the courts below. Now she is in this Regular Second Appeal No.3257 of 1987, which was admitted on 4.12.1987. The plaintiff-appellant, while appearing as PW2, stated that Amarjit Singh is his father in law and the disputed land is ancestral Joint Hindu Family property. There is no cross examination on this point nor RSA No.3257 of 1987 -11- there is any suggestion about it. Thus, it is established on record, as referred above, that Amarjit Singh, during the surplus proceedings, reserved the land for his son Mandeepak Singh and he made statement to this effect before the competent authority. These proceedings are not denied. Now, this court is dealing with another important piece of evidence which both the courts below have misread and caused miscarriage of justice to the plaintiff appellant by recording perverse findings on the points. An admission made by an agent for and on behalf of the principal not only binds the maker thereof but the principal as well. The statement, Ex.PW6/1, dated 19.1.1981 was made by Santokh Singh, the Attorney of Amarjit Singh, defendant in Civil Suit No.114/313 of 1982-83, decided on 6.2.1987, titled Amarjit Singh vs Manjeet Kaur and others, by Additional Senior Sub Judge, Ludhiana, which record is also before this court for scrutiny in Regular Second Appeal No.351 of 1998, titled as Amarjit Singh vs Manjit Kaur, and is being heard with this Regular Second Appeal No.3257 of 1987. On 9.8.1984, when Santokh Singh appeared as DW1, as Attorney of Amarjit Singh, defendant, in this case, i.e., Civil Suit No.21 of 1982 decided on 17.11.1984 titled as Sharanjeet Kaur Vs. Amarjit Singh and another, a specific question was put to him in cross examination to which he replied that he did not remember if his statement was recorded in that suit on 19.10.1983. He states that he is the General Attorney of his real younger brother, Amarjeet Singh, Defendant No.1, who was confined in Central Jail, Patiala. He further states that he is his General Attorney and conversant with all facts of the present case. In statement Ex.PW6/1, Santokh Singh, as Attorney of Amarjit Singh made three material admissions in his cross examination. Firstly, Inder Singh had four sons RSA No.3257 of 1987 -12- namely Amarjit Singh, Charanjit Singh, Santokh Singh and Fateh Singh. All the four brothers inherited the land from their father. Secondly, the disputed land was allotted to them in lieu of the land left by them in Pakistan. After inheriting the property from their father Inder Singh, all the four brothers had equal land. Thirdly, no other land had been purchased by Amarjit Singh. This statement is sufficient for holding that the land in dispute is Joint Hindu Family coparcenary property. It is settled law that the facts admitted need not be proved. Admissions of the parties are best piece of evidence. Some times if a person want to tell lie but his conscious does not allow him to do so. There is no evidence on record to suggest that Amarjit Singh acquired this property by some other mode. So, there is no alternative except to believe this factual aspect. Regular Second Appeal No. 351 of 1988, filed by Amarjit Singh against his wife Manjeet Kaur is being heard simultaneously with this appeal, which arose out of judgment of Civil Suit No. 114/313 of 1982/1983 decided on 6.2.1987 passed by the Additional Senior Sub-Judge, Ludhiana. This Court cannot shut its eyes from the facts that in Civil Suit No. 114/313 of 1982/1983, Bhagat Singh, DW1, the Attorney of Manjeet Kaur, stated in his examination-in-chief that Amarjit Singh and Mandeepak Singh constituted the Joint Hindu Family and suit land was their co-parcenary property, and no partition took place between father and son during their life time. This statement remained unchallenged. The rules and procedure are framed to dispense justice and not to dispense with justice. So, at this stage, it does not lie in the mouth of Smt.Manjeet Kaur that the property is not Joint Hindu Family coparcenary property. RSA No.3257 of 1987 -13- The learned first Appellate Court has not taken into consideration the Ex.PW6/1, observing that this statement of Santokh Singh should have been put to Santokh Singh. While appearing as DW1, in the connected civil suit Amarjit Singh vs Manjit Kaur, Santokh Singh in his reply stated that he does not remember if he had made any statement on 19.10.1983. This evasive reply of Santokh Singh is clearly admissible in view of section 18 of the Evidence Act. The statement Ex.PW6/1 is a valuable piece of evidence and has to be given weight as the truth came from the mouth of Santokh Singh. In Sheela Devi vs Lal Chand, 2006(1) Civil & Rent Judicial Reports 374 while determining the question as to whether the provisions of section 8 of the Hindu Succession Act, 1956 would apply or the law as applicable prior to the enforcement of 1956 Act would apply, held that the law applicable to pre 1956 Act would govern the rights of the parties. In Mallappa Girimallappa vs R. Yellappagouda AIR 1959 Supreme Court 906, it was held as under: “Where the manager of a joint Hindu Family acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and apart from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties by the joint family. Unless that presumption was rebutted, it must prevail.” In Sher Singh vs Gamdoor Singh, 1997(1) Apex Court Journal 290 (SC), it has been held that once the existence of Joint Family is RSA No.3257 of 1987 -14- not in dispute, necessarily the property held by the family assumed the character of a coparcenary property and every member of the family is entitled by birth to a share in the coparcenary property unless it is proved that it is a self acquired property and could not be blended in the coparcenary property.” In Surinder Singh vs Anoop Singh- 2002(2) Punjab Law Reporter 5, it was held that unless it is established that the Joint Hindu Family had divided, it is deemed to be joint and its ancestral property is deemed to be coparcenary and will devolve in equal shares upon its eligible members. Ex.P.5 is the certified copy of jamabandi of the land owned by Amarjit Singh in Pakistan, while Ex.P.4 is the jamabandi of the land owned and possessed by the Joint Hindu Family, though it is in exclusive name of Amarjit Singh, being karta of the family. But there is no evidence that this is self acquired property of Amarjit Singh. It is admitted fact that this land was alotted in lieu of the land left by him in Pakistan. So, this land is deemed to be Joint Hindu Family coparcenary property. An admission of fact clinches the issue and need not to be proved by other evidence unless and until it is shown that admission was erroneous. This court will not insist upon the documentry evidence regarding coparcenary nature of the land because the documentry evidence in this case could not be made available, as Santokh Singh admitted that Inder Singh father of Amarjit Singh died in Pakistan. It is impossible for a widow to go to Pakistan and collect the pre- partition record pertaining to the land. While deciding coparcenary nature of the land the statement of Santokh Singh in the connected case who is the real brother and Attorney of Amarjit Singh, and fully conversant with the RSA No.3257 of 1987 -15- facts, cannot be ignored on hyper technical ground. Amarjit Singh himself did not step into the witness box. Satnokh Singh states that they are two brothers, but they were four brothers in all. Their names are Fateh Singh, Charanjit Singh, Santokh Singh and Amarjit Singh. He admits that all the brothers had equal area of land in Pakistan and this land was inherited by all the brothers from their father. He admits that the disputed land and other land was allotted to them in lieu of the land left by them in Pakistan. Even in Pakistan all the four brothers had equal land after division in the family. Amarjit Singh did not purchase the disputed land. Keeping in view the clear admissions, it is apparent that Mandeepak Singh and Amarjit Singh were coparceners and it was a Joint Hindu Family property. The finding of both the courts below on the point is perverse, as the same is based on misreading of evidence, which is hereby reversed holding that the land owned and possessed by Amarjit Singh was ancestral Joint Hindu Family property and that Amarjit Singh and