RSA No.2134 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2134 of 1982 Date of Decision: 20.10.2008 Mohinder Singh .....Appellant Vs. Sohan Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.S.D. Sharma, Sr.Advocate with Ms.Bindu Goel, Advocate for the appellant. Mr.P.N. Aggarwal, Advocate for respondent no.1 .... RAJIVE BHALLA, J (Oral) This Regular Second Appeal has been filed to challenge the judgements and decrees dated 24.2.1979 and 22.4.1982, passed by the Sub Judge, IInd Class, Ludhiana and the Additional District Judge, Ludhiana, decreeing the suit filed by respondent no.1 and dismissing the appeal filed by the appellant. One Chanan Singh, admittedly had seven sons, namely Mohinder Singh (defendant-appellant), Sohan Singh (respondent no.1), Amar Singh, Joginder Singh, Surjit Singh, Amrik Singh and Teja Singh (defendants-respondents no.2 to 6). Chanan Singh suffered a collusive decree dated 4.7.1972, whereby he transferred his entire property to the appellant and respondents no.2 to 6 in equal shares to the exclusion of respondent no.1. Respondent no.1 (plaintiff) filed a suit for declaration and joint possession alleging that as the land in suit was ancestral, Chanan RSA No.2134 of 1982 2 Singh had no right to suffer the collusive decree in favour of his other sons or enter into a family settlement. The appellant and respondents no.2 to 6 contested the suit by denying that the property in dispute was ancestral and went to the extent of denying that plaintiff-respondent no.1 was a son of Chanan Singh. On the basis of the pleadings, the evidence adduced and the arguments addressed, the learned trial Court decreed the suit by holding that as the property in suit was ancestral, it could not be transferred by Chanan Singh to the appellant and respondents no.2 to 6, by way of a collusive decree. The learned trial Court rejected the assertion by the appellant that respondent no.1 was not the son of Chanan Singh. Aggrieved by the judgement and decree, the appellant filed an appeal. Vide judgement and decree dated 22.4.1982, the first appellate Court dismissed the appeal. Counsel for the appellant submits that the parties are sikh jats and governed by custom in matters of alienation. The concept of ancestral or Joint Hindu Family property is alien to sikh jats and, therefore, a male holder of property is entitled to treat the property, received from his ancestors, as his sole and exclusive property. As Chanan Singh was the sole and exclusive owner of the property in dispute, he had every right to deal with the property in any manner, he deemed appropriate. The findings returned by the Courts below that the property is ancestral and could, therefore, not be made the subject matter of the collusive decree is incorrect as it is not supported by any evidence nor any clear and cogent pleadings. It is, therefore, submitted that as the judgements and decrees have been passed by the Courts below disregarding the status of the parties as jats, the appeal be accepted and the suit be dismissed. RSA No.2134 of 1982 3 Counsel for the respondent no.1, on the other hand, submits that under the Hindu Succession Act, 1956 in matters of succession, sikhs whether jats or otherwise, are governed by the provisions of Hindu Succession Act. Even otherwise, neither in the written statement nor in their evidence has the appellant alleged, the existence of any particular custom, much-less an established custom that would entitle Chanan Singh to alienate the suit land as its sole proprietor. It is further submitted that as both the Courts namely, the trial Court and the first appellate Court have held the property in dispute is ancestral and respondent no.1 is a co-sharer, the appeal be dismissed. It is further submitted that even if it is presumed that Chanan Singh had any right in custom, though it is not so conceded, to alienate the entire suit property by ignoring the rights of other co-sharers, this assertion would have to be negatived, in view of a Full Bench judgement of this Court rendered in RSA No.528 of 1977 (Mihan and another V. Inder and another) decided on 27.2.2008. I have heard learned counsel for the parties, perused the impugned judgements and decrees, appraised the record, as also the Full Bench judgement pressed into service by counsel for respondent no.1 Admittedly, Chanan Singh was reflected as owner of the suit land. Both the trial Court, as also the first appellate Court are concurrent in their opinion that the property in dispute was received by Chanan Singh, from his ancestors and is, therefore, ancestral qua the appellant and respondents no.1 to 6, his sons. These findings of fact are, in consonance with the evidence on record and the law obtaining with respect to ancestral property and, therefore, do not call for interference, in the exercise of jurisdiction under Section 100 of the Code. Even otherwise, counsel for the RSA No.2134 of 1982 4 appellant, has failed, in his attempt to refer to any pleadings or evidence that has been misread, disregarded or any error or perversity in the process of reasoning adopted by the Courts below. As regards the collusive decree suffered by Chanan Singh, suffice it to say that as Chanan Singh received the property from his ancestors, he had no right in law or in custom to suffer a collusive decree in favour of other co-sharers, to the exclusion of respondent no.1, who as held by both the Courts below is his son. The appellant has failed to plead or establish any custom. The assertions that the collusive decree reflects a prior family settlement and, therefore, should have been upheld, cannot be accepted. A family settlement that has the effect of depriving a co-sharer, who is not associated therewith, of his rights as a co-sharer, would necessarily be ineffective qua the pre-existing rights of such a co-sharer/coparcener. The next assertion is that Chanan Singh had a customary right to alienate the property. Neither before the trial Court nor before the first appellate Court, was any such point raised or urged nor do the pleadings or the evidence suggest the existence of any such custom. Even if, such a custom existed, it stands abrogated in view of the Full Bench judgement in Mihan's case (supra), which has held that custom stands abrogated and such an alienation would be governed by Hindu law, as opposed to any customary law. As the impugned judgements do not suffer from any error of law and as no question of law much-less a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. 20.10.2008 (RAJIVE BHALLA) GS JUDGE RSA No.2134 of 1982 5