R.S.A. No. 1789 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1789 of 1990 Date of decision: 08.04.2010 Sher Singh and others ....Appellants Versus Sarja Singh and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Arun Jain, Sr. Advocate, with Mr. Amit Jain, Advocate, for the appellants. Mr. Avnish Mittal, Advocate, for the respondents. VINOD K. SHARMA, J. This is defendants' regular second appeal against the judgment and decree dated 11.6.1990, passed by the learned lower appellate Court, vide which the suit for declaration, filed by the plaintiff/respondent No.1, was ordered to be decreed. The plaintiff filed a suit against the defendant/appellants, on the pleadings, that Sh. Attru was the original owner of the suit land, which was inherited by Rachan Singh, father of the plaintiff and defendant No.1 and grandfather of defendants No.2 and 3. The suit property was said to be ancestral Joint Hindu Family Property. Defendants No.1 and 3 and one Lakhmir Singh son of Sher Singh were said to be the members of the Joint Hindu Family. The plaintiff claimed the right in the property by birth and further pleaded, that if during the lifetime of Rachan Singh, notional partition had taken place, the plaintiff R.S.A. No. 1789 of 1990 -2- would have got 1/3rd share of the property. Rachan Singh, during his lifetime, executed a 'Will' dated 15.4.1985 of the property in favour of the plaintiff and defendants No.1 to 3. As per the 'Will', three acres of land out of his share was willed away in favour of the plaintiff in addition to his own share. These three acres of land were situated at village Teera. Similarly, another three acres of land was willed away by Rachan Singh in favour of Sher Singh, his other son, who is defendant No.1, in addition to his own share. Whereas, in village Jhampur all the properties falling to the share of Rachan Singh, were bequeathed in favour of defendants No.2 and 3 i.e. the grandsons. The assertion made by the plaintiff was, that he became owner of 1/3rd share of the land in village Thaska and 1/3rd share of the land in village Jhampur total measuring 120 kanals 9 marlas, and as absolute owner of the land situated in village Teera, measuring 23 kanals 19 marlas, including the land in his possession as his share in village Teera. In case, defendant No.1 claimed 1/3rd share in the land at village Teera, then the plaintiff was entitled to 1/3rd share plus 16 kanals of land at village Jhampur and these 16 kanals were to be deducted out of the share of Rachan Singh. So, the share of plaintiff at village Jhampur in the landed property becomes 1483/2409. The case of the plaintiff/respondent No.1 was, that the 'Will' dated 15.4.1985 was being interpreted, as if Rachan Singh was an absolute owner of the suit property. The defendants were said to be in hurry to get the mutation sanctioned on the basis of 'Will', whereas according to law, he was entitled to the land claimed by him. The defendants contested the suit. It was pleaded in the written statement that Sarja Singh, plaintiff, did not have any son and R.S.A. No. 1789 of 1990 -3- only one daughter, whose marriage was performed by Rachan Singh by incurring all the expenses. Sarja Singh did not take interest in the family affairs and did not serve his father, rather he tried to create family problems. With this view an arrangement was made with the consent of Sarja Singh and 'Will' dated 15.4.1985 was executed by Rachan Singh, under a family settlement. It was also pleaded case, that Rachan Singh had also filed a complaint in the Court of Judicial Magistrate 1st Class on 5.7.1985, where he affirmed the validity of 'Will'. The defendants claimed, that the suit property was not Joint Hindu Family coparcenary property and, in fact, was self-acquired property of Rachan Singh. The plaintiff was not member of the coparcenary and even on notional partition, the plaintiff would have taken 1/4th as one share would have gone to the wife of Rachan Singh, namely, Bachan Kaur. The execution of 'Will' dated 15.4.1985 in favour of plaintiff and defendants No.1 to 3 was admitted wherein three acres of land was given to plaintiff in village Jhampur. Sarja Singh, plaintiff, was given the total land of village Teera i.e. three acres and 1 kanal 11 marlas in village Jhampur. Kuldip Singh and Saudagar Singh were given total land of village Thaska, which was about 3/4 killas and also in village Jhampur which was six killas. This arrangement was done in view of the family circumstances/settlement. In the replication filed, the plaintiff reasserted the averments made in the plaint and denied those of the written statement. During the pendency of the suit, Bachan Kaur, defendant No.4, mother of plaintiff died and defendants No.2 and 3 claimed themselves to be legal heirs on the basis of 'Will'. On this, additional issue No.6-A was framed. R.S.A. No. 1789 of 1990 -4- The learned trial Court framed the following issues: “1. Whether the suit land was originally owned by Attru son of Narain as alleged? OPP 2. Whether the suit properties are ancestral/Joint Hindu coparcenary between parties headed by Rachan Singh being 'karta' as alleged? OPP 3. Whether the plaintiff is owner to the extent of 1/3 share of the suit properties? OPP 4. Whether the Rachan Singh can be said to be absolute owner on the basis of 'Will' dated 15.4.1985? OPP 5. Whether the plaintiff is entitled to the injunction as prayed for? OPP 6. Whether the plaintiff has got no cause of action? OPD 6-A. Whether the defendant No.2 to 3 are the only legal heirs on the basis of valid 'Will' dated 1.6.86 of Bachan Kaur as alleged? OPD” Issues No.1 and 2 were taken up together. The learned trial Court held, that except for the bald statement of the plaintiff/respondent, that the suit property and the house was inherited property, there was no other witness to support this plea. However, in rebuttal, plaintiff examined Prem Singh, Chowkidar, and Gurdev Singh, who also did not depose regarding nature of the suit property. The learned trial Court further held, that the documentary evidence, i.e. jamabandi Ex.P2, showed that Rachan Singh was exclusive owner of the property. Similarly, jamabandi Ex.P4 also showed the ownership of Rachan Singh. Though, in Ex.P5, Ex.P6, Ex.P8, Ex.P10 and Ex.P11, name of Attru was recorded as owner of the suit property at villages Jhampur, Thaska and Teera, but the khasra numbers have not been connected with the suit R.S.A. No. 1789 of 1990 -5- land. The learned trial Court, therefore, held, that exclusive ownership of Rachan Singh was proved on record. Similarly, with regard to property at village Thaska, the exclusive ownership of Rachan Singh was proved by inheritance in favour of Rachan Singh alone. Thereafter, he was shown to be exclusive owner of the property. The property in village Teera, which was previously, owned by Attru, as per copy of jamabandi Ex.P10 and Ex.P11, was the property inherited by him, but that was wholly willed in favour of the plaintiff, and defendants No.1 to 3 as per 'Will' Ex.D1. From the evidence, referred to above, the learned trial Court held, that though the land of villages Jhampur, Thaska and Teera was found to be previously owned by Attru, but Rachan Singh was subsequently shown to have become exclusive owner, therefore, in these circumstances property could not be said to be Joint Hindu Family coparcenary property. The learned trial Court also held, that the jointness of family was disproved, by the plaintiff as per his own admission, by admitting that his mother Bachni, Rachan Singh and Sher Singh lived in one house and had joint vote and ration card, whereas, he along with his wife Gurmit Kaur had the separate ration card and a separate vote. Thus, the learned trial Court held, that this admission proved, that there was no jointness of the family. On issue No.3, the learned trial Court held, that though the plaintiff had claimed inheritance to the extent of 1/3rd share of the entire suit property on the basis of notional partition, but the 'Will' Ex.D1 was a registered document, the validity of which was not questioned even by R.S.A. No. 1789 of 1990 -6- the plaintiff. The learned trial Court also found, that 'Will' was otherwise proved by attesting witnesses, and that there was evidence in support that Sher Singh had rendered services to Rachan Singh. In view of the 'Will' Ex.D1, the learned trial Court decided issue No.3 against the plaintiff. On issue No.4, the learned trial Court held, that Rachan Singh, was in exclusive possession as owner and bequeathed, his property in different villages equally, keeping in view the family circumstances, which was clear from the 'Will' as well as the copy of the statement Ex.D2 in complaint filed against plaintiff by Rachan Singh. Issue No.4 was decided in favour of the defendants. Issue No.5 was also decided against the plaintiff, in view of the fact that plaintiff was given specific land at village Teera, and land measuring 1 kanal 11 marlas at village Jhampur, where he was living separately. On issue No.6 again, the learned trial Court held, that plaintiff had no cause of action to file the present suit. Issue No.6-A was decided against the defendants. In view of the findings recorded above, the suit filed by the plaintiff was dismissed. The plaintiff/respondent No.1 preferred an appeal against the judgment and decree passed by the learned trial Court. The learned lower appellate Court did not agree with the finding of the learned trial Court, that the plaintiff/respondent had failed to prove his case that the property was inherited by Rachan Singh from his father Attru. The learned lower appellate Court held, that as per R.S.A. No. 1789 of 1990 -7- jamabandi Ex.P7 and Ex.P8 name of Attru was shown as owner of the property, but as inheritance was in favour of Rachan Singh alone, therefore, Rachan Singh was to be treated as exclusive owner being last male holder. The learned lower appellate Court also held, that simply because be being the sole legal heir to inherit the property could not lead to a conclusion that he did not inherit the property by inheritance. The learned lower appellate Court came to the conclusion that mutation No.315 related to the inheritance of Attru as per jamabandi under which Rachan Singh had inherited the whole of the property. The learned lower appellate Court also took note of the finding of the learned trial Court wherein it was observed that the property situated at Teera was previously recorded to be owned by Attru in jamabandi Ex.P10 and Ex.P11 and further that it was wholly willed away in favour of plaintiff and defendants No.1 to 3 as per Ex.D1, therefore, to be ancestral property. The learned lower appellate Court held these observations to be against the record and law, because after the death of Attru, Rachan Singh had inherited whole of his property. The learned lower appellate Court was pleased to hold, that the learned trial Court in recording a finding against the plaintiff had lost sight of jamabandi Ex.P10. The learned lower appellate Court also did not agree with the finding of the learned trial Court that the substituted khasra numbers were not related to the suit land, as the khasra numbers of the property throughout remained the same, thus, there was no question of correlating these khasra numbers with the property in dispute. The learned Court held, that the suit property was the one which was inherited by Rachan Singh from Attru. The findings on issues No.1 and 2, therefore, were reversed R.S.A. No. 1789 of 1990 -8- and it was held, that the property in dispute was ancestral in the hands of Rachan Singh qua the plaintiff. The learned lower appellate Court then proceeded to hold, that even in view of the property being ancestral in nature qua the plaintiff, the execution of 'Will' by Rachan Singh in favour of the plaintiff as well as defendants was of no consequences, as it was not permissible for Rachan Singh to have willed away more than his share in coparcenary property. The learned lower appellate Court proceeded, that on the presumption that on notional partition, at the time of death of Rachan Singh, he had 1/3rd share in the coparcenary property. Therefore, the will qua his 1/3rd share was to be held valid and the suit filed by the plaintiff/respondent claiming 1/3rd share in the property was ordered to be decreed. Resultantly, the appeal was accepted and the judgment and decree passed by the learned trial Court was set aside and the suit was decreed. Mr. Arun Jain, learned senior counsel, appearing on behalf of the appellants contended that this appeal raises the following substantial questions of law: - “1. Whether the finding of the learned lower appellate Court holding the property to be ancestral coparcenary property in the hands of Rachan Singh was perverse and contrary to the oral and documentary evidence on record?” 2. Whether in absence of proof of identity of the property, could the suit of the plaintiff/respondent be decreed on the basis of self-serving statement of the plaintiff/respondent? R.S.A. No. 1789 of 1990 -9- 3. Whether the share of Bachan Kaur, widow of Rachan Singh, could be ignored in determining the share of the parties, as the widow was also entitled to the share of the property of the deceased- husband?” In support of the substantial questions of law, the learned senior counsel contended, that Attru was the original owner of the property in dispute, which was inherited by Rachan Singh, who had wife Bachan Kaur, two sons Sarja Singh, plaintiff, Sher Singh and one daughter Gurdial Kaur. Sher Singh had two sons, who were also impleaded as defendants. The contention of the learned senior counsel for the appellants, therefore, was that even from the family chart, as the grandsons would also have right in the property, therefore, each coparcener had 1/5the share in the property, and by way of 'Will' dated 15.4.1985, shares were divided by Rachan Singh between two sons and two grandsons. The execution of 'Will' was not disputed. The contention of the learned senior counsel was, that the learned lower appellate Court failed to take notice of this important aspect to come to conclusion, that the property was Joint Hindu Family coparcenary property. The contention of the learned senior counsel for the appellants further was, that as the karta had a right to partition the property during his lifetime, therefore, the division of the property by way of 'Will' was an act of partition, by the karta and after partition the status of the property ceased to be ancestral property, which could give any cause of action to the plaintiff/respondent to institute the suit. R.S.A. No. 1789 of 1990 -10- It was also the contention of the learned senior counsel for the appellants, that once it was proved that the property was inherited by Rachan Singh, as the last male holder/sole surviving coparcener, he enjoyed the same power of disposition of the inherited property as self- acquired property, therefore, the 'Will' executed by him could not be questioned. In support of this contention, the learned senior counsel placed reliance on the Hon'ble Division Bench judgment of this Court in Smt. Asha Rani Vs. The Controller of Estate Duty, 1997(4) RCR (Civil) 210, wherein the Hon'ble Division Bench was pleased to hold as under: - “15. Hindu law is applied to Hindus, subject to any legislative enactment for the time being in force. A joint Hindu family consists of all persons lineally descended from a common ancestor. It is much larger than a coparcenary and includes the females i.e. the wife and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes a member of her husband's family. The existence of joint estate is not essential requisite to constitute joint family and the family which does not own any property may nevertheless be a joint family. A Hindu coparcenary is a much narrower body than a joint family. It consists of male members of a joint and undivided family who are related to the head of the family for the time being within four degrees. These are sons, grandsons and great grand-sons i.e. three generations next to the holder of the joint property in an unbroken male descent. Co- parcenary excludes female members of the joint family. A coparcener acquires by birth an interest in the ancestral property. Property inherited from father, grandfather and great grand-father is ancestral property R.S.A. No. 1789 of 1990 -11- whereas any other property inherited from other relations is the separate property of the inheritor. A coparcener, subject to the local customary laws, can claim partition of his ancestral property from his father. A Hindu male has absolute right over his self-acquired property and can dispose it of at his will. The last male holder/sole surviving co-parcener enjoys the same powers of disposition of the inherited property as self- acquired property.” It was also the contention of the learned senior counsel for the appellants, that except for the self-serving statement of the plaintiff/respondent, there was no other evidence regarding identity of the property. Therefore, the judgment and decree passed by the learned lower appellate Court was perverse being outcome of mis-reading of evidence, as well as a result of mis-application of law. The contention of the learned senior counsel, therefore, was that the substantial questions of law No.1 and 2 deserve to be decided in favour of the appellants. It was further the contention of the learned senior counsel for the appellants, that it was for the plaintiff/respondent, to prove that the property was Joint Hindu Family property, as the property could not be presumed to be Joint Hindu Family property, merely because of existence of a joint family. The burden to prove that the family possessed sufficient nucleus, with the aid of which joint family property could be acquired, then only the presumption could be that the property is joint. The onus would shift on the person claiming, it to be self- acquired property, whereas on failure to establish the nucleus, the burden of proof would remain on the person who asserts the property to be joint. R.S.A. No. 1789 of 1990 -12- In support of this contention, the learned senior counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court in D.S. Lakshmaiah and another Vs. L. Balasubramanyam and another, (2003) 10 SCC 310. It was further the contention of the learned senior counsel for the appellants, that mere bald statement, cold not be sufficient to connect the property with that of the suit property. On the basis of contentions, referred to above, the learned senior counsel prayed, that the substantial questions of law be answered in favour of the appellants, and the judgment and decree passed by the learned lower appellate Court be set aside and that of learned trial Court be restored. Reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in Makhan Singh (dead) by LRs Vs. Kulwant Singh, (2007) 10 Supreme Court Cases 602. It was also the contention of the learned senior counsel for the appellants, that share of Bachan Kaur has been ignored while determining the shares of the parties, because as a widow she was entitled to the share of the property of the deceased-husband. The contention was that the judgment and decree having ignored the important aspect of the matter was liable to be to set aside. Mr. Avnish Mittal, learned counsel, appearing on behalf of the respondents, supported the judgment and decree passed by the learned lower appellate Court. The contention of the learned counsel for the respondents was, that in this case the learned appellate Court rightly held, that the sole statement of the plaintiff/respondent was supported by documentary R.S.A. No. 1789 of 1990 -13- evidence, specially Ex.P10, which shows that the property was inherited by Rachan Singh from Attru i.e. grandfather of the plaintiff/respondent. The contention of the learned counsel for the respondents was, that the property, therefore, in the hands of Rachan Singh qua plaintiff/respondent was ancestral coparcenary property, in which the plaintiff had interest by way of birth. It was also the contention of the learned counsel for the respondents, that though the property in the hands of Rachan Singh as sole surviving male descendant could be treated to be self-acquired property, but immediately on the birth of the plaintiff and his brother, the status of the property being coparcenary property stood revived. In support of this contention, the learned counsel for the respondents placed reliance on the judgment of the Hon'ble Supreme Court in Sheela Devis Vs. Lal Chand and another, 2006(4) RCR (Civil) 912, wherein the Hon'ble Supreme Court has been pleased to lay down as under: - “15. Although in 1927 Babu Ram had no son and the property at his hands became a separate property. But, in view of the well-settled principles of Hindu Law, as soon as a son was born to him the concept of the property being a coparcenary property in terms of Mitakshara School of Hindu Law revived. The law in this behalf has succinctly been stated in Mayne's Hindu Law & Usage, 14th edition, at pages 627-628 and 641, in the following terms: "Where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue R.S.A. No. 1789 of 1990 -14- to be ancestral property in his hands, as regards has male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch. It was held by the Andhra Pradesh High Court that where a father divided the family property between him and his sons, the share obtained by him was his self-acquired property which he could bequeath to his wife.." "Coparceners may hold property separately - An examination into the property of the joint family would not be complete without pointing out what property may be held by the individual members as their separate property. All property which is not held in coparcenary is separate property and Hindu law recognizes separate property of individual members of a coparcenary as well as of separated members. (l) Property which comes to a man as obstructed heritage (Saprati bandhadaya) is his separate property. It is not self-acquired property within the meaning of Hindu law, though in their incidents, there may be no difference between the two species....” 16.(See also Muttavan Chettiar v. Sangili Vira Pandia Chinnatambiar, [LR LA. Vol. DC Page 128]. 17. The question again came up for consideration before a Division Bench of the Allahabad High Court in Pratap Narain v. Commissioner of Income-Tax, U.P., 63 ITR 505 wherein Pathak, J. (as His Lordship then was) R.S.A. No. 1789 of 1990 -15- opined: "It seems to us that it is now well settled, that when Hindu undivided family property is partitioned between the members of a Hindu undivided family, and a share is obtained on such partition by a coparcener, it is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are