R.S.A.No. 811 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 811 of 1996 Date of decision: 28.11.2009 Jai Gopal ......Appellant Versus Sarita Rani and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ashish Aggarwal, Advocate, Mr.Vijay S.Kajla, Advocate and Mr.Kulwnt Singh, Advocate for the appellant. Mr.R.C.Setia, Sr.Advocate with Mr.Vishal Ranjan, Advocate and Mr.Vikas Bahl, Advocate, for respondent No.1. Mr.G.S.Punia, Advocae, for respondents No. 2 to 5. **** SABINA, J. Plaintiff Jai Gopal filed a suit for declaration, which was dismissed by the Sub Judge Ist Class, Phillaur vide judgment and decree dated 23.11.1987. Aggrieved by the same, plaintiff preferred R.S.A.No. 811 of 1996 2 an appeal and the same was dismissed by the Additional District Judge, Jalandhar vide judgment and decree dated 09.09.1995. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower Appellate Court in paras 3 to 5 of its judgment read as under:- “3. Plaintiff Jai Gopal filed a suit against Sarita Rani etc., defendants for declaration to the effect that plaintiffs and defendants no.2 to 6 are owners of the land house certificate bearing No.152244/13/79 as has been detailed in the head note of the plaint. He has also challenged the sale deed dated 1.7.80 executed by defendant no.6 in favour of defendant no.1 and claimed jointed possession with regard to the properties as detailed in Para No.(iii) and (iv) of the head note. The brief facts of the case as advanced by the plaintiff are that he as well as defendants no.2 to 5 are sons of defendant no.6, while defendant no.1 is he wife of defendant no.3. The plaintiff alleged that he along with defendants no.2 to 6 constituted a Joint Hindu Family and defendant no.6 is the Manager/Karta of the Joint Hindu Family. Property in dispute is coparcenary/Joint Hindu Family property and it has devolved from Ram Rakha son of Milkhi Mal, who was the common ancestor of the plaintiff and defendants no.2 to 6 upon Harbans Lal, defendant no.6. Regarding agricultural land, mutation No.3484 dated R.S.A.No. 811 of 1996 3 7.8.59 in favour of Harbans Lal was also sanctioned after the death of Ram Rakha. The house as detailed in para No.(ii) and (iv) in the head note of the plaint was built by defendant No.2 from his own income. The plot was purchased by defendant no.6 from the income of landed property, while the money on the construction of the houses was spent from the income of Joint Hindu Family property. These properties were always being treated as Joint Hindu Family properties of the parties and defendant no.6. The fixed deposit amount as mentioned in sub-para (v) of the head note of the plaint was deposited by defendant no.6 in favour of defendant no.1 out of the income of the landed property as well as out of the Joint Hindu Family coparcenary property and hence that amount was also the joint property of plaintiff and defendant no.6. Defendant No.6 Harbans Lal, as such had no right to alienate any portion of the said Joint Hindu Family properties except for legal necessity, but he transferred some agricultural land in favour of defendant no.1 and also executed a bogus sale deed in her favour in respect of the houses mentioned at Sr. No.(ii) and (iv) in the head note for a nominal consideration of Rs.15,000/-. He and other co-parceners are not bound by such alienations. Defendant No.1 is divorced wife of defendant no.3 and as such defendant no.6 was pressurize R.S.A.No. 811 of 1996 4 to alienate adequate assets in the name of defendant no.1 to avert divorce. These alienations are malafide and have been done under coercion and fraud. Since the right of the plaintiff in the suit properties was not recognized by defendant no.1, the suit was filed in the lower court. 4. Notice of the suit was given to the defendants. Defendants No.2 to 6 did not appear nor did they file the written statement. So they were proceeded against ex parte. 5. Defendant No.1 only contested the suit. Written statement was filed by her. Preliminary objections were taken that the suit is not maintainable; that the plaintiff has no locus standi to file the present suit; that the suit has been filed by the plaintiff in collusion with defendants no.2 to 6; that she is not divorced wife of Charanjit, but is the existing wife of the said Charanjit; that the suit is not properly valued for the purposes of court fee and jurisdiction. On merits, it was alleged that defendants no.2 to 6 are separate in food, lodging and estate the actually they are separate in family status also. She alleged that the suit properties are not Joint Hindu Family property of the plaintiff and defendants no.2 to 6. She also pleaded that properties mentioned at Sr.No.(ii) and (iv) of the headnote were purchased by her for a R.S.A.No. 811 of 1996 5 consideration of Rs.15,000/- through a valid sale deed and hence it was not without consideration. She also contended that fixed deposit amount of Rs.16,000/- was jointly owned by defendants no.1 to 6 and it is incorrect that whole of this amount was deposited by defendant no.6 in her name. She pleaded also that there was a family settlement in between the parties and in that settlement, she was given a portion of the agricultural land through a decree dated 29.7.80. All other allegations were emphatically denied by her. On the pleadings of the parties, the following issues were framed by the trial court: 1. Whether the plaintiff and defendants no.2 to 6 constitute a Joint Hindu Family, if so, whether defendant no.6 is the Karta of the same?OPP. 2. Whether the suit property was the co- parcenary property as alleged in the plaint?OPP. 3. Whether the alienation was made by defendant No.6 in favour of defendant no.1 is the result of pressure and coercion as alleged in para no.6 and 11 of the plaint?OPP. 4. Whether the decree dated 29.7.80 is the result of fraud and is thus void?OPP. R.S.A.No. 811 of 1996 6 5. Whether the sale deed dated 1.7.80 is the result of fraud and gratuitous transaction?OPP. 6. If issue No.2 is proved, whether the sale deed dated 1.7.80 is for consideration and for legal necessity or act of good management?OPD-1. 7. Whether the suit in the present form is legally maintainable?OPP. 8. Whether the suit regarding certificate of Rs.16000/-(F.D.) is legally maintainable in the face of Section 281-A of the Income Tax Act?OPP. 9. Whether the suit is properly valued for the purposes of Court fee and jurisdiction?OPP 10. Whether defendant No.1 is the divorced wife of defendant no.3, if so,its effect?OPP. 11. Whether the suit is collusive and has been filed at the instance of defendant no.6, if so, its effect?OPD. 12. Relief.” Learned counsel for the appellant has submitted that Harbans Lal could not suffer a decree in favour of Sarita Rani, his daughter-in-law nor could sell the land to Sarita Rani as the suit property in the hands of Harbans Lal was his ancestral property. The plaintiff as well as the other legal heirs of Harbans Lal had interest in the suit property by birth. Sarita Rani was divorced wife of Charanjit R.S.A.No. 811 of 1996 7 Sijngh, son of Harbans Lal. The decree had been suffered by Harbans Lal with a view to save the marriage between Sarita Rani and Charanjit Singh. However, no family settlement had been arrived at between the parties with regard to the transfer of land by Harbans Lal in favour of Sarita Rani. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Vidya Wanti vs. Gopi Chand, 1999 (2) PLJ 211, wherein it was held that daughter-in-law could not claim coparcenary property on the basis of a family settlement. Learned counsel for the appellant has further placed reliance on the decision of this Court in Krishan Kumar Sharma vs. Ashok Kumar Sharma and another 1997 (Suppl) Civil Court Cases 633(P&H), wherein it was held that member of the coparcenary property, if not impleaded as a party to the suit wherein it was alleged that in a family settlement the property had fallen to his share of partition then the decree in the previous suit land has no effect on the rights of the members who were not impleaded as a party in the said suit. Learned counsel for the appellant has also placed reliance on the decision of this Court in Rajni Bajaj and others vs. Ram Piari 2006(1) Civil Court Cases 711 (P&H), wherein it was held that if family settlement was not proved then adverse inference had to be drawn that no such family settlement was in existence. Learned counsel for the appellant has next placed R.S.A.No. 811 of 1996 8 reliance on the decision of the Apex Court in M.N.Aryamurthi and another vs. M.L.Subbaraya Setty (dead) by his legal representatives and others AIR 1972 Supreme Court 1279, wherein it was held as under:- “ I) There must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family, (ii) the agreement should be wit the object either of compromising doubtful or disputed rights or for preserving the family property, or the peace and security of the family by avoiding litigation or for saving its honour (iii) being an agreement, there is consideration for the same, the consideration being the expectation that such an agreement or settlement will result in establishing or ensuring amity and good-will amongst the relations. AIR 1966 SC 323 relied on. Held on facts that the document in as it was inoperative either as a will or as a family arrangement. There was nothing in the will, the pleadings, or the evidence which went to show that there was any occasion, for agreeing to a family arrangement, or that the motivation, which is necessary for a family arrangement, was ever present to the minds of the testator father and his sons when the will was executed. Moreover, one of the signatories being a R.S.A.No. 811 of 1996 9 minor son of the executant, it was not a binding arrangement.” Learned counsel for the appellant has further placed reliance on the decision of the Apex Court in Valliammai Achi vs. Nagappa Chettiar and another AIR 1967 Supreme Court 1153, wherein it was held as under:- “10. But even assuming that there was some kind of election by Pallaniappa we cannot see how the nature of the property left by Pallaniappa's father would change merely because Pallaniappa's father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappa's father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: (see Hindu Law by Mulla, Thirteenth R.S.A.No. 811 of 1996 10 Edition, p.249, para 223 (2) (4). If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property(after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.” Learned senior counsel for respondent Sarita Rani, on the other hand, has submitted that the suit property in the hands of Harbans Lal was his self acquired property as he had got the same on the basis of Will from his father. Hence, Harbans Lal could dispose of the suit property in the manner he liked. The other defendants had not challenged the decree or sale in favour of Sarita Rani. In support of his arguments, learned senior counsel has placed reliance on the decision of the Apex Court in Byram Pestonji Gariwala vs. Union Bank of India and others 1992 Civil Court Cases 73 (SC), wherein, it was held that a consent decree is as binding upon the parties as a decree passed after contest if the same is not vitiated by fraud, misrepresentation, misunderstanding or R.S.A.No. 811 of 1996 11 mistake. The consent decree has a binding force. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Admittedly, Harbans Lal-defendant No.6 got the property from his father Ram Rakha along with his brother Sohan Lal on the basis of Will. The Will executed by Ram Rakha is not under challenge. As such, the question whether Rakha Ram was competent to execute the Will or not cannot be gone into in this case. The Will executed by Ram Rakha was not challenged by any of his legal heirs or effected party. In these circumstances, the Courts below have rightly held that since the property in dispute had come to Harbans Lal on the basis of Will, the same became his self acquired property. The property in dispute thus cannot be said to be coparcenary property in the hands of Harbans Lal. In these circumstances, Harbans Lal could dispose of the property in dispute in the manner he liked. The decree in favour of respondent Sarita Rani was passed on the basis of admission made by Harbans Lal in the suit filed by her. A perusal of Ex.P-6, judgment passed in civil suit No.192/1980 decided on 29.7.1980 reveals that Sarita Rani had filed a suit for joint possession of ¼ share in the total land measuring 183 kanals 5 marlas. The case of respondent Sarita Rani was that about a year back in a family arrangement she had been given ¼ share in the suit land. Harbans Lal appeared through his counsel and filed R.S.A.No. 811 of 1996 12 written statement conceding the case of Sarita Rani. Statement of Harbans Lal was also recorded and on the basis of the same, the consent decree was passed. Since the consent decree was passed on the basis of previous family settlement, the decree did not require registration. Moreover, Harbans Lal himself has not challenged the decree. The decree in question could be challenged only on the ground of fraud but the plaintiff-appellant had failed to establish that the impugned decree was a result of fraud or misrepresentation. Sale deed dated 1.7.1980 was executed by Harbans Lal in favour of Sarita Rani. The due execution of the sale deed was proved by Sarita Rani by examining DW-1 Jugal Kishore Dutta, Advocate, attesting witness and DW-4 Sukhdev Chander, deed writer. The plaintiff has also failed to establish that the amount invested in the FDR belonged to Hindu Undivided Family. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. The judgments relied upon by the learned counsel for the appellant fails to advance the case of the appellant as these are based on different facts. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 28, 2009 anita