437 J P 1m 1 Reqular Second Aopeal Noe 1365 of 2011 lOSMI IN THE HIGH COURT FOR THE STATES OF PUNJAB S HARYANA AT CHANDIGARH een Date of Decisions April 1 1 2011 1 Reclular Second Aopeal Noe 1365 of 2011 OSMI 0 0 Jagwant Singh and others Appellants 0 I VERSUS C5 I Tirath Singh and others Respondents Z a2 r CORAM HONBLE MReJUSTICE MOHINDER PALe I 1 Whether Reportersof Local papers may be allowed to see Z the judgment7 2e To be referred to the Reportersor not7 3e Whether the judgmentshould be reportedin the Digest2 Cll m7 Z Presentl Mr Sumeet MahajanSenior Advocate with Mr Vaibhav SehgaIAdvocate a for the appellants MsPooja ChopraAdvocate for the caveatorsrespoodents MOHINDER PAL Ja This is plaintiffs second appeal whose suit for declaration and permanentinjunctionin respectof the property Itl dispute fully described in the head note of the plaint has been dismissed by both the Courts below Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 4 38 4e ReqularSecond Apoeal Noe 1365 of 2011 lOSMI I have heard Mr Sumeet Mahajan Senior Advocate assisted by Mr Vaibhav Sehgal Advocate appearing for the and Ms PoojaChopra Advocate appearing for the and have gone throughthe records of the case tr ShamsherSingh predecessormirnterestof the plaintiffsm 0 0 appellants Harnek Singh since deceased and representedby I his Iegai representative 1e son Tirath Singh defendante t5 I Major Singh defendantrespondent Nazar Singh and Saudagar Z werelare brothers being the sons of Gurdial Singh deceasec C Gurdial Singh was the son of Harnam Singh since deceasedl I Harnam Singh was the son of Mehtaba lce decease The r Z instant suit was filed by the for a m declaration to the effect that they are owners of the Iand 32 Kanals 3215 Marlas as 115th share of the total 2 Z Iand measuring 160 Kanals 17 Marlas and for joint possessionof Iand measuring 20 Kanals 3215 Marlas out of the suit Iand fully described in the head note of the plaint and for permanent injunctionrestrainingthe from alienating the suit Iand in any manner The claim ofthe plaintiffs was based on the plea that Gurdial Singh constituted a Joint Hindu Family coparcenary with his father Harnam Singh and grandm father Mehtaba Shamsher Singh predecessoreininterestof the Harnek Singh Major Singh Nazar Singh and n e Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 39 f 1 m3 Reqular Second Appeal Noe 1365 of 2011 08M1 Saudagar Singh became members of the Joint Hindu Familyand coparceners on their birth and acquiredinterest in the Joint Hindu Family ancestral property Further plea of the plaintiff appellants was that after the death of Shamsher Singh his 1 share in the Joint Hindu FamilyProperty was inherited by the Q plaintiffsin equalshares Further that the defendants had given 0 U Iand measuring 12 Kanals out of the abovmentioned total Iand I measunng 160 Kanals 17 Marlas to plaintiffappellant No l C I JagwantSingh about two years priorto the filing of the instant suit and thus No l was in possessionof said Iand Z being its owner It was further pleaded that althoughall the C five brothers namely Harnek Singh Shamsher Singh MajorSingh I Nazar Singhand SaudagarSingh owned one share each in the Joint C3 Z Hindu Family ancestral coparcenary property but the entries in the m revenue record remained in the name of Gurdial Singh Taking advantageof the wrong entries in the revenue record the defendants 7 Z threatened to aienate the suit propertywithout any Iegalnecessity which accordingto the necessitated the filingof the instant suit n the other hand the defendants denied that the suit property was Joint Hindu Family ancestral coparcenaryproperty It was also denied that Gurdial Singh constituted a Joint Hindu FamiIy with his father Harnam Singh and grandfather Mehtaba and for that reason the suit property was not Joint Hindu Family ancestrai coparcenary property The pleaof the plaintiffsappellantsdid not find favour with both the Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 4 40 1 1 4 Reqular Second Aopeal No 1365 of 2011 08M1 Courts below The only questioninvolved in this appeal IS as to whether the suit property IS Joint Hindu Family AncestraI CoparcenaryProperty or not This questionhas to be answered m in the negativefor the reasons to be givenhereinafter Q JagwantSinghis the son of Shamsher 0 CAO Singh since deceasec ParamjitKaur and Parminder Kaur are the daughtersof Shamsher Singh whereas C5 I BhupinderKaur IS the widow of Shamsher Singh Shamsher Singh Harnek Singh Since deceased MajorSingh Z Nazar Singh and SaudagarSingh defendantsrespondentsl are L the sons of Gurdial Singh leceasedJ Tirath Singh defendant I respondent IS the son of Harnek Singh Gurdial Singhwas the Z son of Harnam Singh since deceasedl Harna m Singh was the OO son of Mehtaba since deceasec The plaintiffappellants on the one hand are seeking declaration that they are owners of 7 Z the Iand measuring 32 KanaIs 3215 Marias being 115th Om share of the total Iand measuring 160 Kanals 17 Marlas and for joint possessionof Iand measuring 20 Kanals 3e215 Marlas out of the suit Iand on the ground that theyhave become members of the Joint Hindu Family and coparceners on their birth and acquiredinterest Ill the Joint Hindu Family ancestral property on the other hand it has been pleadedby them that Gurdial Singh 1 had given Iand measuring 12 KanaIs out of the aboveamentioned total Iand measuring 160 Kanals 17 MarIas to plaintiffJpellant Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 441 8a Reaular Second Appeal Nos 1365 of 2011 lOaMl No l JagwantSingh about two years priorto the filing of the instant suit JagwantSingh is the son of Shamsher Singh who had pre deceased his father Gurdial Singh It shows that Gurdial Singh had partitioned the suit property which as will be discussed 1 hereinafter was his Gurdial SinghsJself acquiredproperty during l his Iife time When under a partition by a father unequal 0 0 sharesare given to the sons the transaction will be binding on the I sons as a familyarrangement The partition will be gooduntil it IS 0 I set asidee No l JagwantSingh is the grandson of Gurdial Singh In this casethe plaintiffappellants did not Z challengethe partition Learnedcounsel for the appellantsduringthe course of I arguments by referring to the excerpts of the revenue record Z Exhibits P l and P21 argued that some of the Iand out of the total suit Iand had been inherited by Gurdial Singh from his father m Harnam Singh in 1962 and therefore accordingto the Iearned 7 Z counsel the suit Iand was Joint Hindu FamiIyancestral coparcenary property Itl the hands of Gurdial Singh However after giving my careful thoughtto the argumentraised by Iearned counsel for the appeilantsI do not find any force therein A perusalof excerpt of the revenue record Exhibit P lJ reveals that Gurdial Singh had Iater on purchased some of the suit Iand from MagharSingh A perusalof Exhibit P2 an excerpt from the revenue record further shows that GurdiaI Singhhad purchased certain Iand out of the suit Iand from different persons vide mutation Nos2204 Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 442 r 6 1 ReciularSecond Appeal No365 of 2011 OSMl 2207 2233 2236 and 2543 Howeverthere is no evidence on the file which could show that Gurdial Singhhad purchased the said Iand out of the funds of the Joint Hind u Family property It shows that GurdialSinghhad purchased j some of the suit Iand in his individual capacity and not as a 0 Karta of the Joint Hindu FamilyProperty and some Iand out of 0 0 the suit Iand had been inherited by him Gurdial Singhl from his I father Harnam Singhe Since there is no evidence whatsoever to C5 I show that the aforesaid propertyhad been purchased by Gurdial Singh from the income of the joint Hindu Family property the Z plaintiffs have failed to dischargethe onus of proving the suit Iand to be a Joint Hindu Family ancestral coparcenary property In the I case of DeSeLakshmaiah and another Vsn L Balasubramnvam Z and another 2003 21 Apex Court Judgments 562 S12 C2003 10 SCC 3 10 it has been observed by the Honble m SupremeCourt that a propertycould not be presumed to be a 7 Z joint Hindu Family property merelybecause of the existence of a Joint Hindu Family and In this case an anciliaryquestion had been raised in the followingtermsl Il The question to be determined in the present case is as towhoisrequired toprove the nature of property whether it is joint Hindu Family property or self acquiredproperty of the first appellant Il Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 443 m7 Reqular Second Appeal Noe 1365 of 2011 1O8MI This query was answered by the Honble SupremeCourt in paragraph18 ofthe judgment Iil the followingtermsl 1 Il The Iegal principletherefore IS that there is no presumptionof a propertybeing 0 0 joint family property only on account of I existenceof a joint Hindu family The one who C5 I asserts has to prove thatthe propertyis a jointfamilyproperty If however the person Z SO assertingproves that there was nucleus with which the joint family property could be I acquiredthere would be presumptionof the r Z propertybeingjoint and the onus would shift f on the person who claims it to be self acquired propertyto prove that he purchased the 7 Z propertywith his own funds and not out of joint famiiythat was availablee As noticed above the have not been able to Iead any evidence on record to show that Gurdial Singhhad purchasedthe suitland out of the funds ofthe Joint Hindu Fami Iy coparcena ry property No doubt Gu rdial Singh had purchasedsome of the suit iand in his individualcapacity and some Iand out of the suit Iand had been inherited by him Irdial Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 444 r 1 8 Reciular Second Appeal Noa 1365 of 2011 O8MI Singhfrom his father Harnam Singh but Ill the absence of any evidence to the effect that the suit Iand was joint Hindu Family Propertyit cannot be held that Gurdiai Singh had inherited the suit Iand from his father as a Karta of the Hindu Undivided 1 family In the case of Commissioner of Wealth Tax Kanpur Ct and others Vse Chander Sen and others19861 3 SCC 567 it 0 0 was held by the Honble SupremeCourt that there could be no I that if the property purchasedby a father fell to his C5 son by inheritance it was deemed to be in his possession as a Karta of a Hindu Undivided Family It was further held that a Z son who inherits his fathers assets under Section 8 of the Hindu SuccessionAct does so in his individual capacityand not as a I Karta of the Hindu Undivided Family Z In view of the above the q uestion raised in this m appeal Ie as to whether the suit propertyis Joint Hindu Family Ancestral Coparcenary Property or not has to be answered V7 Z irl the negative Iee Itl favourof the defendantsrespondentsand Qm against the Resuitantlyit is held that the suit Iand was the self acquiredpropertyof Gurdial Singh During the course of arguments Iearned counsel for the appellantsalso arguedthat the gift deeds dated 1881994 Exhibits PX and P0 wherebyGurdial Singh had gifted some portionof the suit Iand to hls sons Harnek Singh and MajorSlngh were not binding upon the plaintiffappellants However this argumentof the Iearned counsel for the appellantsis without any Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 445 J a Reqular Second Appeal Noa 1365 of 2011 lOSMI force Since the suit property has been held to be not Joint Hindu Family Ancestral Coparcenary Propertyand was the self acquiredproperty of GurdiaI Singh he lrdial Singhohad every rightto execute the gift deeds i For the aforesaid reasonsI do not find any meritinthis lr appeal which is herebydismissed 0 0 I 2 C5 1 C 1 April 2011 JUDGE 1 I ak Z 1090 00 7 Z Anita 2012.11.29 12: 18 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document