IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 482 of 2000. Judgment reserved on : 6.5.2010 Date of decision : 14.6. 2010. Capt. Arminder Singh Bedi (Amninder Singh Bedi) ..Appellant. Versus Guru Nanak Dev University and another . ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Ajay Kumar with Mr. Suneet Goel, Advocates . For the respondents. : Mr. K.D.Sood, Advocate for respondent No.1. Mr. M.A.Khan, Advocate vice Mr. Vijay Pandit, Advocate for respondent No.2. Kuldip Singh , Judge The plaintiff has come in second appeal against the judgment, decree dated 18.7.2000 passed by learned District Judge, Chamba in Civil Appeal No. 58 of 1999 reversing judgment, decree dated 29.7.1999 passed by the learned Sub Judge 1st Class, Dalhousie in Civil Suit No. 69 of 1994. 2. The facts, in brief, are that the appellant had filed a suit for declaration that sale deed dated 19.6.1993 executed by respondent No.2 in favour of respondent No.1 is illegal, void, without jurisdiction and 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. yes 2 inoperative on the rights of the appellant with consequential relief of possession and permanent prohibitory injunction. The respondent No.1 was defendant No.2 and respondent No.2 was defendant No.1 in the suit. 3. The further case of the appellant is that he constituted a co- parcenary and joint Hindu family with respondent No. 2 and they are coparceners. The pedigree table relied by the appellant in the plaint is as follows: 4. It is the case of the appellant that Sajjad Villa more particularly described in the plaint was recorded in the ownership of Baba Surinder Singh Karta of family and common ancestor of appellant and respondent No.2. Baba Surinder Singh died on 19.1.1988 and after his death the suit property was inherited by joint Hindu family of appellant and respondent No.2 and came in the hands of respondent No.2 being Karta of the joint Hindu family of the appellant and Baba Surinder Singh Avinder Singh (pre- deceased) Harinder Singh Bedi Gurdeep Singh Bedi A.S. Bedi Manmohan Singh Bedi (Defendant No.1) Sardool Singh Bedi Raj (Widow) Gajinder Singh (Son) Amninder Singh (Plaintiff) 3 respondent No.2. They are coparceners and the suit property is coparcenary property of appellant and respondent No.2. 5. The respondent No.2 had wasteful nature. The respondent No.2 sold the suit property on 19.6.1993 without any legal necessity of the family at throw-away price. The sale consideration was wasted and was not spent on the joint Hindu family. The transfer of the suit property was a great loss to the Hindu Undivided Family. The appellant requested the respondents not to waste the property by transfer or sale but they refused to accede to the request of the appellant. On 2.8.1993 the appellant requested respondent No.1 to return the possession and cancel the transfer deed but without any positive result hence the suit was filed for declaration, possession and injunction as noticed above. 6. The suit was contested by respondent No.2 by filing written statement. He admitted the pedigree table, description of the property. He denied that suit property was sold without legal necessity. He has also denied that sale consideration was not spent on the joint Hindu family. He prayed for dismissal of the suit. 7. The respondent No.1 also contested the suit by filing written statement and took preliminary objections of maintainability, jurisdiction of the Court to try the suit, appellant all the time had been assisting his father for selling the property to respondent No.1, he was even present alongwith his mother at the time of registration of the sale deed before Sub Registrar and, therefore, on account of his conduct he is debarred from assailing the sale, the suit has been filed by appellant in collusion with respondent No.2. On merits, it has been denied that appellant and respondent No.2 constitute co-parcenary and they are members of the 4 joint Hindu Family. The respondent No.2 was the sole owner of Sajjad Villa after the death of late Baba Surinder Singh. The property was inherited by respondent No.2 not as Karta of the Hindu Undivided Family. It has been denied that the property was not sold for legal necessity or sale consideration was not utilized for the benefit of the family. 8. The respondent No.2 entered into an agreement with respondent No.1 for sale of the property on 19.6.1991, thereafter respondent No.1 obtained permission from Government of Himachal Pradesh to purchase the building and after receiving the permission the sale deed was executed by respondent No.2 in favour of respondent No.1 through his wife who was having special power of attorney to execute the sale deed. The appellant accompanied her mother at the time of registration of the sale deed. The suit is collusive with respondent No.2 The respondent No.1 prayed for dismissal of the suit. 9. On the pleadings of the parties, the following issues were framed:- 1. Whether the sale deed dated 19.6.1993 executed by defendant No.1 in favour of defendant No.2 is illegal, void and without jurisdiction? .. OPP. 2. Whether the suit property is a co-parcenary property as alleged? ..OPP. 3. Whether the alienation made by defendant No.1 in favour of defendant No.2 is without legal necessity as alleged? …OPP. 4. Whether the plaintiff is entitled to the injunction as prayed? .. OPP 5. Whether the suit is not maintainable ? OPD-2. 6. Whether this Court has no jurisdiction ? OPD-2. 5 7. Whether the plaintiff is estopped by his act and conduct? …OPD-2. 8. Whether the suit has collusively been filed as alleged? …OPD-2. 9. Relief. The issues No. 1 to 4 were answered in affirmative and issues No. 5 to 8 in negative and the suit was decreed by learned Sub Judge on 29.7.1999 and a decree for declaration was passed in favour of the appellant declaring sale deed dated 19.6.1993 null and void and respondents were restrained from alienating the suit property to anybody. The decision dated 29.7.1999 was assailed in appeal by respondent No.1 and learned District Judge on 18.7.2000 allowed the appeal and set-aside judgment, decree dated 29.7.1999 passed by learned Sub Judge. In these circumstances, the plaintiff has come in second appeal which has been admitted on the following substantial questions of law: 1. Whether in the facts and circumstances of the case the property in dispute has devolved upon the heirs of Baba Surinder Singh Bedi under proviso to Section 6 of the Hindu Succession Act. 2. Whether in view of the proviso of Section 6 of the Hindu Succession Act the succession of property of Baba Surinder Singh Bedi on his heirs under Section 8 of the Hindu Succession Act will change the nature and nomenclature of property from ancestral/coparcenary property to that of self acquired property. 10. I have heard Mr. Ajay Kumar, Advocate, learned counsel for the appellant, Mr. K.D.Sood, Advocate, learned counsel for respondent 6 No.1 and Mr. M.A.Khan, Advocate, learned counsel appearing on behalf of respondent No.2 and have also gone through the record. The learned counsel for the appellant has submitted that the suit property has been proved to be coparcenary property which was at one point of time owned by Baba Surinder Singh who died on 19.1.1988. Late Baba Surinder Singh was the common ancestor of respondent No.2 and appellant who are father and son. The suit property in the hands of respondent No.2 on 19.6.1993 at the time of sale was ancestral /coparcenary property with appellant a member of coparcenary headed by respondent No.2. The sale being without legal necessity, therefore, appellant has every right to assail the sale dated 19.6.1993. He has submitted that learned Sub Judge had rightly decreed the suit of the appellant but learned District Judge has mis-construed, misinterpreted Sections 6, 8 of the Hindu Succession Act, 1956 (for short ‘Act’). The learned counsel for the appellant has submitted that respondents have failed to prove legal necessity. He has submitted for acceptance of the appeal, setting-aside of impugned judgment, decree and restoration of the judgment and decree passed by learned Sub Judge. 11. The learned counsel for respondent No.1 has submitted that the suit property in the hands of respondent No.2 on 19.6.1993 was not ancestral / coparcenary property. The sale deed executed by respondent No.2 in favour of respondent No.1 on 19.6.1993 is legal. He has submitted that appellant actively participated in the execution of the sale deed and, therefore, appellant is debarred from questioning the sale deed. He has supported the impugned judgment, decree. The learned 7 counsel for respondent No.2 has supported the impugned judgment, decree. 12. The above substantial questions of law No.1 and 2 are inter- connected, therefore, both of them can be conveniently considered and disposed of collectively. Ex.P-1 is the copy of sale deed dated 19.6.1993 vide which respondent No.2 through his attorney has sold Sajjad Villa to respondent No.1 for a consideration of Rs. 10,00,000/- which was registered on 19.6.1993 before Sub Registrar, Dalhousie. As per sale deed Ex.P-1 Sajjad Villa is situate on khasra Nos. 2127, 2128, 2129, 2130, 2132 and 2133. Ex.P-2 is the Missal Haquiat in which Surinder Singh S/o Gurbax Singh is shown owner in possession of the suit property. In remarks column of Ex.P-2 it has been stated that vide mutation No. 48 of partition dated 20.9.1991 as per order of A.C. IInd Grade khasra No. 2127 to 2131 and Khasra No. 2133, Kittas 6, total measuring 0-54-46 hectares was attested in favour of Manmohan Singh S/o Surinder Singh. Ex.P-3 is the copy of Jamabandi for the year 1992- 93 indicating suit property is owned and possessed by Surinder Singh S/o Gurbax Singh. In remarks column of Ex.P-3 reference of mutation No. 48 of partition has been given. In remarks column, it has further been stated that vide mutation No. 125 suit property has been sold by Manmohan Singh in favour of Guru Nanak Dev University for Rs. 10,00,000/- and the mutation was attested on 30.9.1994. Ex.DW-1/B is the application under Section 14 of the Indian Arbitration Act for making award dated 27.6.1988 as rule of the Court. The award dated 27.6.1988 was made rule of the court on 7.10.1988 by the learned Sub Judge, Jalandhar in arbitration case No. 125 of 1988. There is no denial of the fact that the suit property 8 at one point of time was owned by Baba Surinder Singh father of respondent No.2 and grand-father of appellant, who died on 19.1.1988. The suit property alongwith other properties were partitioned by way of award dated 27.6.1988 which was made rule of the Court on 7.10.1988. The suit property fell to the share of respondent No.2. 13. The question is what was the character of suit property in the hands of respondent No.2 when it fell to his share by way of award dated 27.6.1988. The learned counsel for the appellant has contended that character of suit property in the hands of respondent No.2 after award remained ancestral qua appellant. He has every right to question the sale dated 19.6.1993 made by respondent No.2 in favour of respondent No.1 as the sale was without the consent of appellant and without legal necessity. Per contra, the learned counsel for respondent No.1 has submitted that property after the death of common ancestor Baba Surinder Singh on 19.1.1988 and partition award dated 27.6.1988 in the hands of respondent No.2 had lost the character of ancestral/coparcenary property and, therefore, respondent No.2 had every right to sell the suit property to respondent No.1 for consideration. 14. Intestate succession of Hindu is provided in Chapter II of the Act. Section 6 of the Act at the relevant time was as follows:- “Devolution of interest in coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that , if the deceased had left him surviving a female relative specified in class 1 of the Schedule or a male relative specified in that class who claims through such female 9 relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1. – For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2. – Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.” The Section 8 of the Act is as follows:- “General rules of succession in the case of males. – The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter – (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule ; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.” 15. The appellant in para 2 of the plaint has pleaded that Baba Surinder Singh had died on 19.1.1988. Thus, the succession regarding the estate of Baba Surinder Singh common ancestor of appellant and respondent No.2 had opened on 19.1.1988. There is nothing on record how Baba Surinder Singh had acquired the property including the property in dispute, but it is not of much significance inasmuch as it is nobody’s case that the property of late Baba Surinder Singh was to 10 devolve on his successors by some mode other than succession provided under the Act. 16. The question of interpretation of Sections 4, 6 and 8 of the Act has come up for decision in several cases in the past. In Shrivallabhdas Modani Vs. Commissioner of Income Tax, M.P.-1, 138 ITR 673 the question No.2 referred to the High Court for decision was as follows:- “Whether the property which devolved on Shri Shrivallabhdas on the death of his father, Gokalchand, also constituted the HUF property consisting of his own branch including his sons.” The High Court after noticing Sections 4, 8 of the Act has held as follows:- “Section 8 of the Hindu Succession Act lays down the scheme of succession to the property of a Hindu dying intestate. The schedule classifies the heirs on whom such property shall devolve. Those specified in class I take simultaneously to the exclusion of all other heirs. A son’s son is not mentioned as an heir under class I of the Schedule and, therefore, he cannot get any right in the property of his grandfather under this provision. The right of a son’s son in his grand father’s property during the lifetime of his father which existed under the Hindu law as in force before the Act, is not saved expressly by the Act and, therefore, the earlier interpretation of Hindu law giving a right by birth in such property “ceased to have effect”. The High Court ultimately held as follows :- “We, therefore, answer question No.2 as follows: The property which devolved on the assessee, Shrivallabhdas on the death of his father, Gokalchand, did not constitute the HUF property consisting of his own branch including his sons. The answer is in the negative and against the assessee.” 11 17. The question before the Division Bench of Andhra Pradesh High Court in Commissioner of Wealth Tax, A.P.-II Vs. Mukundgirji, 144 ITR 18 was as follows:- “Whether, on the facts and in the circumstances of the case, the properties devolved on the assessee on his father’s death are assessable in the status of ‘Individual’ or in the status of ‘Hindu undivided family’?” The High Court after noticing several provisions of the Act held as follows: “Accordingly, we are of the opinion that the properties which devolve upon a heir mentioned in class I of the Schedule under S. 8 constitute his absolute properties, and that his sons have no right by birth in such properties and cannot, therefore, claim any share or sue for partition of such properties.” The High Court ultimately answered the question as follows:- “For the above reasons, we answer the question referred to us in the following words: The properties which devolved upon the assessee on his father’s death are assessable in the status of “individual’ and not in the status of ‘Hindu undivided family” comprising of the assessee and his son or sons, as the case may be. The answer shall be in favour of the Department and against the assessee. There shall be no order as to costs.” 18. The remarks column of Ex.P-3 jamabandi for the year 1992- 93 indicates that mutation of succession No.47 on the death of Baba Surinder Singh was attested on 31.7.1991. The estate of Baba Surinder Singh was mutated in favour of Sardool Singh, Manmohan Singh, Anup Singh, Harinder Singh, Gurdeep Singh sons of Surinder Singh S/o Gurbax Singh equal share five shares, Gajinder Singh, son and Smt. Raj widow of Abhininder Singh son of Surinder Singh equal share one share. It is thus clear on the death of Surinder Singh, Gajinder Singh, son and 12 Smt. Raj, widow of Abhininder Singh son of Surinder Singh also succeeded to the estate of Surinder Singh. 19. In Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and others, AIR 1978 S.C. 1239, Section 6 of the Act was considered and the Court has held as follows:- ”The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in mitakshara coparcenary property, the pre-conditions of S. 6 are satisfied and that section is squarely attracted. By the application of the normal rule prescribed by that section, Khandappa’s interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter are amongst the female relatives specified in Class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to S. 6 comes into play and the normal rule is excluded. Khandappa’s interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorship. Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to S. 30 of the Act, the interest of a male Hindu in mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition.” 20. The devolution of coparcenary property under Section 6 was again considered by the Apex Court in Smt. Raj Rani Vs. The Chief Settlement Commissioner, Delhi and others, AIR 1984 S.C. 1234 and in para 17 of the report the Court has held as follows:- “There is no dispute that Nanak Chand died leaving behind his widow, three sons and three daughters. Dewan Chand fraudulently obtained an order alleging that Nanak Chand died leaving behind only three sons. If Nanak Chand died after the enforcement of the Hindu Succession Act, as found earlier, obviously his wodow, three sons and three daughters would succeed to his interest in equal 13 shares, which would work out to 1/7th. Now, the question arises what was the interest of Nanak Chand at the time of his death. As the property in question was Mitakshara coparcenary property, his interest would be determined in accordance with the provisions of Explanation I of S.6 of the Hindi Succession Act. It would be appropriate at this stage to read Sec. 6 insofar as it is material for the purposes of this case: “6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left his surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I. – For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.” The interest of Nanak Chand shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. In view of Explanation I of Sec. 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7, that is, 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim. When the question of determination of share among the heirs crops up before the Court, the Court has to see that every heir gets his due. Shri Itorora appearing for the respondents could not successfully meet the point raised on behalf of the appellant.” 21. The Supreme Court in Commissioner of Wealth-tax, Kanpur vs. Chander Sen AIR 1986 SC 1753 in para 17 of the report 14 has noticed the following views of the Andhra Pradesh High Court in 144 ITR 18 as follows :- “Accordingly, we are of the opinion that the properties which devolve upon a heir mentioned in class I of the Schedule under S. 8 constitute his absolute properties, and that his sons have no right by birth in such properties and cannot, therefore, claim any share or sue for partition of such properties.” The Supreme Court has further observed that aforesaid reasoning of the High Court appearing at Pages 23 to 26 of Justice Reddy’s view in 144 ITR 18 appears to be convincing. The Supreme Court in para 20 of the report has held as follows: “In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by S. 8 he takes it as karta of his own undivided family. The Gujarat High Court’s view noted above, if accepted, would mean that though the son of a predeceased son and not the