IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1676 of 2008 Date of Decision : July 15, 2009 Gurdev Singh and others ....Appellants Versus Jaswinder Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Rajinder Goyal, Advocate T.P.S. MANN, J. Suit for declaration and permanent injunction filed by the appellants against the respondents was dismissed by learned Civil Judge (Junior Division), Patiala, on February 24, 2006, which judgment was upheld in appeal by learned Additional District Judge, Patiala, on January 14, 2008. Aggrieved of the same, the appellants are now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. The case of the plaintiffs-appellants, as set up by them in their plaint, was that the suit land was joint Hindu Family and co-parcenary property and defendant No.4-respondent had no right to alienate the same without any legal necessity and without the consent of the plaintiffs. Despite the same, defendant No.4 alienated the suit property and transferred it in the name of defendants No.1 to 3 by way of sale-deed dated 24.6.1997. RSA No. 1676 of 2008 -2- The suit was opposed by the defendants by filing their written statement wherein they averred that defendant No.4 was owner of the suit land and fully competent to dispose it of. After selling the suit land to defendants No.1 to 3, Jangir Singh-defendant No.4 purchased property worth Rs.2,34,000/- from Parveen Kumar and Nimarta Rani of village Janakpuri, Tehsil and District Ludhiana. Defendant No. 4 was also in need of money to perform the marriage of his daughter and, therefore, he had sold the suit property. On the basis of the evidence led by the parties, learned Courts below concurrently held that the sale-deed dated 24.6.1997 was neither illegal nor null and void. The plaintiffs failed to prove that the suit land was joint Hindu Family and co-parcenary property and, therefore, they were not entitled to the relief. Learned counsel for the appellants submitted that the learned Courts below erred in law in coming to the conclusion that the suit property was not proved to be ancestral joint Hindu Family and co-parcenary property as the suit property came in the hands of Jangir Singh-defendant No.4 by virtue of Will dated 24.7.1993 executed by his father Chanan Singh in his favour. The suit land, which was ancestral and joint Hindu Family property, was initially owned and possessed by Mulla Singh from whom it devolved upon Chanan Singh. Pursuant to Will dated 24.7.1993 executed by Chanan Singh, the suit property was mutated in the name of Jangir Singh, the only son of Chanan Singh. As such, learned Courts below ought to have held that the suit land was ancestral and joint Hindu Family and co-parcenary property RSA No. 1676 of 2008 -3- and since the appellants had a birth right in the same, being son and grand sons of Jangir Singh and there was no legal necessity for Jangir Singh to alienate the suit land, the relief claimed by the appellants of being declared owners of the suit property and for the grant of permanent injunction against the respondents should be granted. The plaintiffs-appellants did not place on record any document to prove that the suit land was joint Hindu Family and co-parcenary property or that it had come to Jangir Singh-defendant by natural succession. On the other hand, it is the admitted case of the plaintiffs that Jangir Singh- defendant got the suit property on the basis of a Will executed by his father Chanan Singh. Once, it is shown that the suit property had devolved upon a person by way of Will, it could not be termed as joint Hindu Family and co- parcenary property. In para 17 of the judgment passed by learned lower Appellate Court, reference was made to C.N.Arunachala Mudaliar V C.A.Muruganatha Mudaliar and another AIR 1953 SC 495 and Balbir Singh V Bant Singh 1996(3) RCR(Civil) 351, wherein it was held that when the son gets the property from his father by Will, the property in the hands of son should be considered as non ancestral. It would be deemed as his personal property. The suit property was sold by Jangir Singh-defendant No.4 to defendants No.1 to 3 for a sum of Rs.1,51,000/- vide sale-deed Ex.D.2. This was followed by Jangir Singh-defendant purchasing residential property in RSA No. 1676 of 2008 -4- village Giaspura for a sum of Rs.2,34,000/- vide sale-deed Ex.D.3. Both Jangir Singh-defendant and his wife started residing in village Giaspura within the municipal limits of Ludhiana and their names were also mentioned in the voters' list of the said village. Infact, all the plaintiffs-appellants are also shown to be enlisted as voters of village Giaspura. In view of the above, the impugned judgments do not suffer from any illegality or infirmity. None of the substantial questions of law, as framed by learned counsel for the appellants, arises for consideration in the second appeal. The appeal is, accordingly, dismissed. ( T.P.S. MANN ) July 15, 2009 JUDGE ajay-1