1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 28 of 1996. Reserved on : 13. 8. 2008. Date of Decision: August 26, 2008 ____________________________________________________________ Mansa Ram. . Appellant. Versus Tula Ram. Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Bhupinder Gupta Senior Advocate with Mr. Janesh Gupta, Advocate. For the respondent No. Mr. G.C. Gupta, Senior Advocate with Mr. Amardeep Advocate. _________________________________________________________ Surinder Singh, J This Regular Second appeal by the plaintiff Mansa Ram has been directed against the judgment and decree dated 10.10.1995 passed in Civil Appeal No. 53-S/13 of 1990 by the learned District Judge reversing the judgment and decree passed by Sub Judge Ist Class (2) Shimla in Civil suit No. 54/1 of 1986 dated 26th May, 1990 whereby the suit of the plaintiff seeking declaration was decreed. Subject matter of the suit. The subject matter of the dispute between the parties is the land comprised in khewat number 97 min, khatouni number 197 min, 200 min, bearing khasra number 1113/6, 1069/36, 39 1089/63 and 64 measuring 32 bigha 17 biswa situated in Chak Mehli, Pargana Jajhot Tehsil and District Shimla, hereinafter to be referred as the ‘suit land’. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 CASE OF THE PLAINTIFF. Facts giving rise to the present second appeal are that the appellant hereinafter called the ‘plaintiff’ is the son of Gangia defendant No.2 who sold his half share in the suit land to defendant No.1 Tula Ram vide sale deed dated 13.9.1985. He filed the suit to the effect that he being a member of joint Hindu Family and a coparcener, his father, defendant Gangia could not have sold the said property to the defendant No.1 aforesaid without the consent of the plaintiff and without any legal necessity. It was also the case of the plaintiff that the defendant No.2 earlier had also sold a piece of land and the plaintiff had filed suit No. 30/1 of 1976 against the defendant No.2 with a prayer that defendant No.2 be restrained permanently from transferring the suit land, also from creating any charge over the same which was decreed by the learned Sub Judge (3) Shimla vide its judgment and decree dated 30.9.1980 whereby it was held that the suit land is both ancestral and joint Hindu Family property and the plaintiff has a right in it by birth. The said judgment and decree remained un-challenged and became final between the parties. Despite the aforesaid judgment and decree, the defendant No.2 is alleged to have sold the half share in the suit land as aforesaid without any legal necessity to defendant No.1. Rather, the defendant No.2 was a spend thrift and leading an immoral life. He has been squandering the entire property for the immoral activities. The defendant No. 1 under the garb of the sale deed intended to take the possession of the suit land which is in the possession of the plaintiff. Therefore, sought the decree seeking declaration to the effect that the plaintiff being the coparcener of the land in dispute is the joint owner in possession thereof and the sale deed aforesaid in favour of defendant No.1 executed by defendant No.2 was not binding upon the rights of the plaintiff with a consequential relief of injunction. 3 CASE OF DEFENDANT. The suit was resisted and contested by the defendants. In their written statement the defendants raised the preliminary objections regarding maintainability of the suit, estoppel, inter-alia, valuation, limitation vis-à- vis contended that neither there is a Joint Hindu Family between the plaintiff and defendant Ganga Ram nor they were the coparceners. Alternatively, took up the plea that even if it is assumed, though not admitted, that the suit land is ancestral qua the plaintiff, then the same was sold for legal necessity inasmuch as the defendant No.2 himself and his mother Smt. Phuloo were ailing for the last more than ten years and in order to meet the expenses of illness for both of them, he had to sell the land to defendant No.1. On merits, the above objections were elaborated. It is specifically contended that the defendants were not bound by the decision given by the learned Sub Judge (3) Shimla. The suit land is a self acquired property of defendant Ganga Ram. He being the absolute owner could sell it of. He also denied that the plaintiff is a coparcener. It is further averred that Gangia defendant was posted at Chandigarh where he was living with Kalawati as his wife and the plaintiff developed illicit relations with her, produced children consequently defendant Gangia sought divorce from her therefore, the plaintiff rendered himself dis-entitled to succeed to the properties in suit. It was further averred that since he was in need of money for his own treatment and treatment of his mother Phuloo Devi and also had to spend considerable amount on the construction of house, therefore, he sold the aforesaid property to the defendant No.1 who after due enquiry purchased it and is a bonafide purchaser in possession of the suit land, thus prayed for dismissal of the suit. The plaintiff filed the replication to the written statement filed by the defendants and denied the preliminary objections. On merits, while 4 denying the case of the defendants, reaffirmed even paras of the plaint. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the sale of suit land was for legal necessity? OPD. 2. If issue No.1 is not proved, whether the sale is null and void as alleged ?OPD. 3. Whether the plaintiff is estopped to file the suit as alleged ? OPD. 4. Whether the suit is not properly valued as alleged? OPD, 5. Whether the suit is not maintainable as alleged? OPD. 6. Relief. After the complete trial, the learned trial Court decided issue No.2 in affirmative and all other issues in negative. Consequently the suit of the plaintiff was decreed to the effect that the sale deed Exhibit PW1/A registered on 27.6.1985 was without legal necessity, as such illegal and void, thus not binding upon the rights of the plaintiff. Feeling aggrieved and dis-satisfied by the judgment and decree passed by the learned Sub Judge, the defendants preferred an appeal before the learned District Judge. The learned District Judge did not agree with the findings of the learned trial Court and held that the suit land was neither a joint Hindu Family property nor the ancestral property as claimed by the Plaintiff. But in fact, the defendant Ganga Ram was a non-occupancy tenant and acquired the proprietary rights in view of the H.P. Tenancy and Land Reforms Act qua the suit land, thus it was a self-acquired property. It was further held that assuming if the property was joint Hindu Family property, even then it stands established on record that 5 defendant Gangia was in need of money for his treatment and also for the treatment of his aged mother who was living with him, served a notice Exhibit CW1/A on the plaintiff informing him that he required money for his treatment, maintenance of his two wives and repair of the dilapidated house and asked him to pay him Rs. 45,000/- within one month failing which he would have the option to sell the property. Thus in view of these findings, the appeal filed by the defendants was allowed and the judgment and decree passed by learned trial Court was set-aside. The plaintiff-appellant assailed the judgment and decree passed by the learned District Judge in this appeal on the grounds that the first appellate Court acted with material illegality and irregularity, it did not formulate the correct points for determination of the appeal and mis-applied the law in the facts and circumstances of the case. The real controversy interse the parties was not taken into consideration at all. The judgment and decree passed by learned Sub Judge (3) Shimla on 30.9.1980 whereby he had conclusively held that the property in dispute was ancestral/Joint Hindu Family property was wrongly ignored. The findings of the Civil Court in a previously instituted suit between the same parties was not permissible to be re-opened in the subsequent suit so as to give contrary findings. The rule of principles of res-judicata was directly applicable in the instant case and the very fact of serving the notice by the defendant No.2 on the plaintiff proves the fact that he knew the suit land to be ancestral property which was covered in the earlier suit and he failed to discharge the onus of legal necessity as prayed and prayed to restore the judgment and decree passed by the trial Court. SUBSTANTIAL POINTS FOR DETERMINATION. The present appeal at the instance of the plaintiff was admitted for hearing on 19.8.1996 on the following questions of law :- 1. Whether the judgment and decree passed by the learned lower appellate Court is vitiated on account of ignoring the 6 judgment and decree in the previously instituted suit between the same parties in which the property was held to be ancestral/joint Hindu family property, whether such decree which remained unchallenged was conclusive between the parties regarding the character of the land in question. 2. Whether the rule of resjudicata was applicable to the plea of the defendants that the property in dispute was self-acquired property of Shri Ganga Ram, respondent No.1 and the findings rendered by the learned lower appellate Court contrary to the judgment and decree in the earlier instituted suit are manifestly and patently illegal? 3. Whether the mere factum of defendant Shri Gangia Ram obtaining the proprietary rights without further establishing the nexus of the land sold was sufficient to hold that the property sold by the said defendant was self-acquired property? 4. Whether giving notice regarding the sale of the land amounts to proof of the sale being for legal necessity, whether the onus to prove the legal necessity was properly discharged by the defendants so as to claim reversal of the findings of the learned trial Court? Shri Bhupinder Gupta, learned Senior Advocate for the plaintiff-appellant while supporting the issue-wise findings of learned trial Court has vehemently argued that the land in question was proved on record to be ancestral property and also the joint Hindu Family property which fact stood proved by the judgment and decree passed in earlier suit inter-se the parties by a competent court of civil jurisdiction which has attained its finality. Therefore, it was not open for the first Appellate Court to re-adjudicate upon the matter which finally stood concluded. It was further argued that defendant No.2 failed to prove the legal necessity and it 7 was established on record that he squandered the property for illegal and immoral purposes. Therefore, the judgment and decree passed by the first Appellate Court reversing the judgment and decree of the learned trial Court was wrong and illegal. Contra, Shri G.C. Gupta, learned Senior Advocate for the defendants has supported the impugned judgment and decree of the first appellate Court and forcefully argued that the plaintiff could not prove either the ancestral concept of the property or that the plaintiff was a coparcener of a family of the joint Hindu Family property. Further, it is ventilated that the earlier decree passed by the Sub Judge was without any jurisdiction thus it did not operate as res-judicata. Further, according to him, in alternative, if the suit property is proved to be the joint Hindu Family property and the ancestral as well, there is enough evidence on record to show that the defendant No.2 was in need of money for meeting his own medical expenses and also of his mother, the defendant No.2 apprised the necessity to the plaintiff by a notice served upon him requiring him to pay money but he did not care for it, as such the defendant was compelled to sell half share of his land to defendant No.1 and the defendant No.1 after due enquiry and satisfaction, agreed to purchase the property for consideration and he was put in possession by the defendant No.2. Therefore, in view of the circumstances, the judgment and decree passed by the first appellate Court is legally and factually sustainable. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. My findings on the substantial questions of law raised by the plaintiff are as under :- Substantial question No.1 to 3.& 4. The above points are taken up together as it involves the common discussion of law and facts. Admittedly, the plaintiff had filed the earlier suit against his father defendant Ganga Ram on 18.10.1976 in the court of Sub Judge (3) Shimla seeking injunction against him to the effect that the land mentioned in that suit 8 was ancestral and joint Hindu Family property and sought injunction restraining him permanently from transferring the land mentioned in the suit and from creating any charge over the same except for bonafide requirement or for the welfare of the family which was decreed on 30.9.1980 vide judgment Exhibit PW1/B. It is pertinent to note that the plaintiff did not bother to bring on record the decree sheet and also the khasra numbers of the land in that suit. In the instant case, the plaintiff only relied upon Exhibit PW1/B above and the notice dated 15.10.1983 Exhibit CW1/A issued by the defendant through his counsel where in he gave the reference of the earlier decree passed in civil suit No. 30/1 of 1996 obtained by the plaintiff on 30.9.1980 and expressed his intention to sell half share of the suit land comprised in khasra number 1113/96, 1068/36, 1071/37 and 39 except khasra number 64, for legal necessity. Except the above documents, there is nothing on record to connect the suit land to prove that the suit land is an ancestral property. In fact, the ‘Joint Hindu Family property’ is the most important aspect of the law of the ‘Hindu Joint Family’. The ‘Hindu Joint family’ property is a big reservoir into which property flows in from various sources and from which all members of the joint family draw out to fulfill their multifarious needs. However, there is no presumption of a property being a joint family property only on account of existence of a ‘joint Hindu family’. The one who asserts has to prove that the property is a ‘joint family property’. If, however, the person so asserting proves that there was nucleolus with which the ‘joint family property’ could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available, as held by the Apex Court in D.S. Lakashmaiah and another –v- L. Balasubramanium and another (2003) 10 SCC 310. In the instant case, there is only the self serving statement of the plaintiff that the land in question is a property belonging to HUF but in cross-examination, 9 the defendants have disputed the fact that it was a joint Hindu Family property and the plaintiff has specifically admitted that his father Gangia was a non- occupancy tenant over the suit land and later he acquired the proprietary rights. This fact was also admitted by PW2 Anant Ram. He also admitted that plaintiff and the defendant No.2 were not residing together which fact had been further corroborated by DW3 Tula Ram, defendant. In view of these important facts and admissions the property in question seizes to be a ancestral property. Broadly speaking the property inherited from any ancestor may be called ancestral property but it is not in the sense in which it is used in Hindu law. It has a technical meaning. Inherited property may be classified under the following heads: a) Property inherited from father, father’s father or father’s father’s father; b) Property inherited from material grand father and c) Property inherited from any other relations. The property inherited from father, father’s father or father’s father’s father, is the only property which is called as ‘ancestral property’. When a son inherits the property from his father, vis-à-vis sons, he takes it as joint family property. The property inherited by a male ancestor not exceeding three decree than himself is ancestral. In the instant case, there is no material on record to show that the land in question is ancestral. The earlier judgment does not specify the khasra numbers regarding which the decree was passed and even otherwise, the suit by a coparcener for permanent injunction restraining the karta of a joint Hindu family from alienating the joint property in pursuance of the sale agreement with a third party is not maintainable as held by the Apex Court in Sunil Kumar and another vs. Ram Parkash and others [ 1988 (2) SCC 77] thus the decree passed without jurisdiction is nullity and nonest (Please see: Chiranji Lal Srilal Goenka v. Jasjit Singh and others [(1993) 2 SCC 507]. Once it is held the decree was passed without jurisdiction, the plea of resjudicata 10 is not available as held by the Supreme Court in Smt. Issabela Johnson vs. M.A. Susai (dead) by LRs [ AIR 1991 SC 993] and in Swami Atmananda and others vs. Ram Krishan Tapovanam and others [2005 10 SCC 51]. Therefore, in these circumstances, the suit land in the case in hand cannot be held either the joint Hindu Family property or the ancestral property as the plaintiff has failed to connect it with the common ancestor. Otherwise also as stated above, there is an admission of the plaintiff himself that the suit land was a tenancy land regarding which the defendant No.2 had acquired the proprietary rights. Thus, it becomes his self-acquired property, therefore he can deal with it in any manner he likes. Alternatively, just for the arguments sake, even if the property in question is held to be ancestral property or joint Hindu Family property, it has come in evidence of the defendants that the defendant No.2 was ailing and his mother Pholoo Devi was also in extreme old age suffering from illness. Further, his old dilapidated house was in need of extensive repairs and the plaintiff was apprised of the legal necessity by serving a notice and the option was given to him to defray his expenses but he did not do so. Further, the defendant No.1 enquired about the legal necessity of defendant No.2, as such, purchased the half share of the defendant No.2 against consideration and took the possession of the land. The plaintiff in his statement did not substantiate the fact that the defendant No.2 was leading an immoral life nor it is borne out from the record, thus plaintiff has failed to substantiate the fact that the defendant No.2 had alienated the property for his own illegal requirement. Unless it is shown that the transaction was tainted by any immoral or illegal purpose, it cannot be set-aside. Even at the worst, the defendant could have sold the property to the extent of his own share which is also half in the present case. Therefore in the totality of circumstances, I do not find any error in the judgment and decree passed by the first Appellate Court reversing the judgment and decree passed by the learned trial Court in civil suit No. 54/1 of 1986. The above substantial points are accordingly answered. 11 In result, the appeal is dismissed. Parties to bear their own costs. (Surinder Singh) Judge. August 26, 2008. (bm)