RSA No. 207 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 207 of 1990 Date of Decision: 2 .07.2009 Lakhbir Singh ..Appellant Vs. Darshan Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.J.K.Sibal, Sr. Advocate, with Mr.G.S.Bhatia, Mr.J.S.Bhatia, Mr.Sapan Dhir, Advocates, for the appellant. Mr.Onkar Rai, Advocate, for respondents No.1 to 4 and 8. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- RSA No. 207 of 1990 2 Vinod K.Sharma,J. The plaintiff/appellant has invoked the jurisdiction of this court under section 100 of the Code of Civil Procedure to challenge the judgment and decree dated 25.8.1989, passed by the learned lower appellate court, dismissing the suit filed by the plaintiff/appellant. The plaintiff brought a suit for joint possession on the pleadings that the plaintiff/appellant being son of Darshan Singh, defendant No.1 constituted a joint Hindu family along with defendant Nos.1 to 9. Previously, Sohan Singh father of defendant Nos. 5 to 8 and 10, and husband of defendant No.9, and Hukam Singh son of Rur Singh, were also the members of the joint Hindu family till their death. Sohan Singh died about 1½ years before filing of the suit, whereas Hukam Singh died issueless and widowless in or about the year 1975-76. The plaintiff claimed that the suit land was inherited by defendant No.1 to 4, Sohan Singh and Hukam Singh deceased from their father and as such it was their co- parcenary property in which the plaintiff claimed interest by virtue of birth in the family. Darshan Singh, father of the plaintiff was stated to be leading a wasteful, unchaste and immoral life, as he had illicit relations with the wife of his brother Sohan Singh, and as such, he wanted to give undue benefit to Sohan Singh. He got mutation No.814 sanctioned on 25.11.1972, by the Assistant Collector II Grade on the basis of alleged private partition of the suit land, whereas, in fact, no such private partition RSA No. 207 of 1990 3 had taken place. It was also the case of the plaintiff that in the alleged partition, land measuring 86 kanals 18 marlas, 80 kanals 10 marlas, 87 kanals 13 marlas 152 kanals 4 marlas, 82 kanals 4 marlas and 35 kanals 13 marlas was shown to have been allotted to Battan Singh, Rattan Singh, Jagir Singh, Sohan Singh, Hukam Singh and Darshan Singh, respectively. The plaintiff claimed that the suit land was of equal quality, but Darshan Singh got muchless land in the partition. Sohan Singh was given more land, than due to him under his share, with a view to defraud the plaintiff and to cause unlawful loss to him and further to benefit Sohan Singh. The plaintiff further asserted that no partition deed was executed regarding the partition, despite the fact that the suit land was worth thousands of rupees. Mutation was also said to have been got sanctioned on the basis of fake partition, which was said to be in connivance with the revenue authorities. It was claimed that the partition was certainly to the dis-advantage of the plaintiff/appellant. The plaintiff/appellant claimed that partition was not binding on the plaintiff, and was in-operative qua his co-parcenary interest in the suit land. It was also pleaded that defendant No.1 had given an undertaking to the court in civil suit on 23.11.1983, not to alienate the ancestral land in his possession, except for legal necessity and act of good management. In utter disregard to this undertaking given by defendant No.1 he sold the land measuring 27 kanals to defendant No.13, for a fictitious consideration of Rs.49,500/-. It was also the case set up, that defendant RSA No. 207 of 1990 4 No.1 had no legal necessity for alienation of the land. Sale was said to be not binding on the rights of the plaintiff/appellant. It was also claimed that sale was without consideration, thus, the land sold be also treated as a joint Hindu family property. Rattan Singh defendant No. 3 sold land measuring 9 kanals 9 marlas in favour of Gurmeet Singh, defendant No.11 and Niranjan Singh defendant No.12, vide two different sale deeds. These sales were also challenged being without consideration and without legal necessity therefore, not binding on the plaintiff/appellant. Hukam Singh died in the years 1975-76 without leaving any issue and widow. However, Gurcharan Singh, defendant No.5, in collusion with defendant No.1 got mutation of his inheritance No.862 sanctioned in his favour on the basis of Will dated 29.1.1974 executed by Hukam Singh. Will was said to be forged document, by claiming that Hukam Singh was not in a capacity to make any Will as he was not in a sound disposing mind when the alleged Will was executed. It was also claimed that the Will was invalid and inoperative qua the rights of the plaintiff in the suit land. It was also the case of the plaintiff/appellant that defendant No.1 was still bent upon to alienate land in his possession, without legal necessity and he wanted to squander away the said joint family property in order to defraud the plaintiff/appellant, and to cause unlawful harm to him. It was claimed that it was on account of the facts stated above that the plaintiff thought it necessary to file the suit for joint possession and injunction. RSA No. 207 of 1990 5 Defendants No.2 to 4 admitted the claim of the plaintiff. Suit was contested by defendants No.1, 5, 7 to 9 and 13 by filing separate written statements. However, grounds of challenge were similar. The case set up in defence was that the suit was bad for multifariousness and that the suit was not maintainable in the present form. Locus standi of the plaintiff to file the suit was also challenged. Plea that the suit was not properly valued for the purposes of court fee and jurisdiction was also raised. It was also pleaded that the plaintiff/appellant was not son of defendant No.1, nor the suit land was joint Hindu family property of the plaintiff and defendants No.1 to 9, as pleaded in the plaint. That the suit land was previously partitioned by defendant No.1 and his brothers and mutation was got sanctioned regarding this partition in the year 1972. Hukam Singh deceased had executed a Will in favour of defendant No.5 and mutation was duly sanctioned on the basis of Will. The Will was contested by Bachan Singh, before the revenue authorities but he could not succeed. Battan Singh had also filed a civil suit to challenge Will, which was, however, dismissed as withdrawn on 24.7.1975. The suit was said to have been got filed by Battan Singh and his brothers Jagir Singh and Rattan Singh from the plaintiff out of greed and jealousy towards defendant No.5. It was claimed that the private partition was effected between defendant No.1 and his brothers and it was a fair partition. All the RSA No. 207 of 1990 6 concerned parties had put their thumb impressions on the mutation proceedings for confirming correctness of partition and they were debarred from challenging the partition on the ground of limitation. Allegations of illicit relations of defendant No.1 with the wife of Sohan Singh were denied. Defendant No.5 also took a stand that deceased Hukam Singh had executed a Will dated 29.1.1974 in his favour in his sound disposing state of mind. It was denied that Hukam Singh deceased had feeble body and mind or that he was hard of hearing and had a poor eye sight. Defendant No.13 also took a plea that he was bona fide purchaser from defendant No.1 for consideration. It was claimed that the purchase was made after holding inquiry about the title of defendant No.1. The case set up was that since the execution of the sale deed he was in possession of the land purchased by him. Some of the defendants had denied for want of knowledge factum of sales made by Battan Singh defendant in favour of defendants No.11 and 12, or as to whether it was without consideration or legal necessity. In the replication the averments made in the written statements were denied and that of the plaint were reiterated. On the pleadings of the parties, learned trial court was pleased to frame the following issues:- 1. Whether the plaintiff is the son of Darshan Singh RSA No. 207 of 1990 7 defendant No.1? OPP 2. Whether the land in suit is the Joint Hindu Family property/coparcenary property of the plaintiff and defendant No.1? OPP 3. Whether the plaintiff is entitled to the injunction prayed for? OPP 4. Whether there has been no fair and valid partition between members of the Joint Hindu Family as alleged? OPP 5. Whether Hukam Singh executed a valid will dated 29.1.74 in favour of Gurcharan Singh defendant No.5, if so, its effect? OPD-5 6. Whether defendants No.11 an 12 are bona fide purchasers for consideration and without notice? OPD-11 and 12. 7. Whether the suit is bad for multifariousness? OPD 8. Whether the suit is maintainable in the present form? OPP 9. Whether the suit is within limitation? OPP 10. Whether the plaintiff has locus standi to file the present suit? OPP 11. Whether the suit is properly valued for purposes of court fee and jurisdiction? OPP RSA No. 207 of 1990 8 11-A Whether defendant No.13 is the bona fide purchaser for consideration without notice of the pendency of the suit? OPD 11-B Whether the sale deed in favour of defendant No.13 by defendant No.1 was for legal necessity or benefit of the estate? OPD 12. Relief. On issue No.1 learned trial court was pleased to hold, that the plaintiff was son of Darshan Singh, defendant No.1. Learned trial court was further pleased to hold that there was no valid and fair partition so as to bind the plaintiff, and the suit land was said to be still joint Hindu family property. However, the learned trial court held that land measuring 8 kanals 13 marlas was not joint Hindu family property. Accordingly issue No.1 was decided in favour of plaintiff/appellant. On issues No.2 and 3 it was held that the plaintiff was not entitled to injunction as it was not open to the coparcener to maintain a suit for permanent injunction restraining the Manager or Karta from managing coparcenary property, as his right was only to challenge the sale to recover the property after the sale is complete. No finding was recorded qua the execution of the Will dated 29.1.1974 in favour of Gurcharan Singh defendant No.5. Issue No.5 was left undecided. Even though no evidence was led on issue No.6, still it was left undecided. RSA No. 207 of 1990 9 Issue No.7 was decided in favour of the plaintiff by holding that the suit was not bad for multifariousness. Issue No.8 was decided in favour of the plaintiff by holding that there was no defect in the frame of the suit. The suit was held to be within limitation by holding that on attaining the majority the plaintiff could have maintained the suit within 12 years. On issue No.10 learned trial court was pleased to hold that the suit for joint possession was competent and that the plaintiff could also challenge the validity of alienation made by his father, but it was held that the plaintiff had no locus standi to challenge either the validity of Will of Hukam Singh or alienation made by Rattan Singh. On issue No.11 learned trial court was pleased to hold that the suit was properly valued for the purposes of court fee and jurisdiction. Issues No.11-A and 11-B were taken up together and were decided against defendant No.3 and in favour of plaintiff/appellant. In view of the findings recorded above the suit filed by the plaintiff for joint possession was ordered to be decreed. The application for leading additional evidence was declined as the learned trial court found that no decision on the Will was required. In appeal the judgment and decree passed by the learned trial court was set aside. The appeal was heard along with appeal filed by Nihal Singh, who was held not to be a bona fide purchaser. RSA No. 207 of 1990 10 The learned lower appellate Court affirmed the finding on issue No.1 in holding that the plaintiff / appellant Lakhbir Singh was son of Darshan Singh, defendant No.1. The learned lower appellate Court, was pleased to hold that the evidence led showed that sons of Rur Singh had effected an oral partition and mutation was also sanctioned on the basis of oral partition. The copy of mutation was placed on record as Ex., DY dated 25.11.1972. According to the mutation, the property was divided between the sons of Rur Singh, and the mutation was also incorporated in the jamabandis which was never challenged by the sons of Rur Singh. The learned lower appellate Court, therefore, was pleased to hold that the appellant could not challenge the said partition in the Civil Court. The learned lower appellate Court also on the basis of evidence came to the conclusion that sons of Rur Singh were residing separately who were not common in mess and their land also stood partitioned, therefore, after the partition the land did not remain to be ancestral and Joint Hindu Family property. The contention raised by the appellant, that the partition was not effected properly, as less land was given to Darshan Singh, whereas Sohan Singh was given more land, was rejected by holding that none of the brothers challenged the partition, therefore, it was not open to the appellant to challenge the same. The learned lower appellate Court was further pleased to hold that the Civil Court did not have jurisdiction to decide RSA No. 207 of 1990 11 whether the land allotted in partition was less or more. In support of this finding, reliance was placed on the judgments of the Hon'ble Lahore High Court in the case of Amir Khan and others Versus Howna Ram and others, AIR 1925 Lahore 37 and Amar Singh and another versus Ram Singh AIR 1932 Lahore 236. The learned lower appellate Court was further pleased to observe that in the partition the land is given according to its value and kind of land. The oral partition was also held to be protected under the Punjab Land Revenue Act. The contention of the learned counsel for the appellant that the partition was bad by placing reliance on the judgment of the Privy Council in the case of Bishambhar Nath Kapoor and others Vs. Lala Amar Nath and others AIR 1937 Privy Council 105 was rejected. In the said case the partition was with regard to the business of jewellery whereas in the case in hand it was an agriculture land, which was to be dealt with under the Punjab Land Revenue Act. The learned lower appellate Court was been pleased to hold that the suit land was not ancestral or coparcenary property. In order to reach to this conclusion the learned lower appellate Court was pleased to observe that the plaintiff / appellant had failed to prove that Darshan Singh defendant No.1 got the land from his father's father, and furthermore the partition had already been effected between the sons of Rur Singh and mutation also sanctioned. The learned lower appellate Court in view of the RSA No. 207 of 1990 12 partition held that the land did not remain joint between the parties. The learned lower appellate Court was also pleased to notice that sons of Rur Singh i.e. defendant / respondents had got land from Ran Singh their uncle and Tabi their another relation and, therefore, the land which was inherited by the sons of Rur Singh from Ran Singh and Tabi did not become ancestral in the hands of sons of Rur Singh. The learned lower appellate Court further held that Ex. D-1, copy of the judgment passed by the Civil Court shows that Darshan Singh had got 8K-13Ms of land by filing a suit for pre-emption, so this land was also not by inheritance, therefore, not ancestral. The learned lower appellate Court held that these lands were not ancestral in the hands of Darshan Singh. The learned lower appellate Court was further pleased to hold that from excerpts Ex. PW9/A it was not possible to differentiate which land the sons of Rur Singh got through their father's father, and which was inherited from Ran Singh and Tabi. The land got by Darshan Singh by filing a suit for pre-emption also could not be differentiatd. The learned lower appellate Court was, therefore, pleased to hold that ancestral land and non-ancestral land were mixed in such a way which could not be separated. Therefore, the whole of the land was treated to be non-ancestral land. The reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in the case of Mara and others Versus Mst. Nikko alias Punjab Kaur and another AIR 1964 Supreme Court 1821. In view of the finding recorded, the learned lower appellate Court was pleased to hold that the suit land was not ancestral qua RSA No. 207 of 1990 13 plaintiff and defendants No. 1 to 9. So, the findings of learned lower appellate Court on issues No.2 & 4 were reversed. However, the learned lower appellate Court affirmed the finding of the learned trial Court on question of within limitation by holding that suit for joint possession could be filed by plaintiff/appellant within 12 years of attaining majority. The learned lower appellate Court was further pleased to hold that the sale in favour of Nihal Singh was liable to be upheld as the property was held to be non-ancestral. In view of the findings recorded, the appeals filed by Darshan Singh and Nihal Singh were accepted and the judgment and decree passed by the learned trial Court was set aside. Mr. J.K. Sibal, learned senior counsel appearing on behalf of the appellant / plaintiff contends that this appeal raises the following substantial questions of law :- 1. Whether the plaintiff and respondents No. 1 to 10 constituted joint Hindu family as they inherited the property from common ancestor? 2. Whether the alleged partition in family settlement is bona fide, fair and equitable, when the division of the property between the members is not in equal share and liable to be ignored ? 3. Whether the sale executed by Darshan Singh respondent No.1 is without legal necessity and RSA No. 207 of 1990 14 deserves to be ignored qua the rights of the plaintiff / appellant ? Mr. J.K. Sibal, learned senior counsel appearing on behalf of the appellant / plaintiff in support of the substantial questions of law contended that the plaintiff / appellant and respondents No. 1 to 10 constituted a joint Hindu family as they inherited the property from common ancestors. The contention is based on the facts that Kesar Singh was the common ancestor, who had two sons Jawahar Singh and Taba Singh. Rur Singh was father of defendants No. 1 to 4 as also of deceased Swaran Singh and Hukam Singh. Hukam Singh had died issueless, whereas Swaran Singh, Jarnail Singh, Sukhjit Singh were sons of Sohan Singh and Udham Kaur defendant No.1 was his widow and Harbans Kaur his daughter. Rur Singh was son of Jawahar Singh whereas Ran Singh was son of Taba Singh. It was therefore, pleaded that the plaintiff, who was son of Darshan Singh was a member of the Joint Hindu Family and the property was also ancestral coparcenary property, in the hands of the defendants in which the plaintiff has right by birth being a coparcener. In order to appreciate the contention raised, it has to be noticed that a Joint Hindu Family has no legal entity, which may be distinct and separate from that of the members who constitute such a family. A Joint Hindu Family is a unit to which no outsider can be admitted by consent of RSA No. 207 of 1990 15 the parties. It is a status which can be acquired only by birth or by adoption. Such a joint family may be broken up by separation of individual members or by a partition amongst all the members. If this test is applied to the facts of the present case, it would be noticed, that once the sons of Rur Singh, effected partition of the property and had separate mess, it could not be said that the plaintiff constituted a Joint Hindu Family merely because of inheritance of property from common ancestors as contended. The learned lower appellate Court, therefore, was right in holding that the parties did not constitute a Joint Hindu Family as contended. The first substantial question of law raised is, therefore, answered against the appellant / defendant. In support of the second substantial question of law Mr. J.K. Sibal, learned senior counsel appearing on behalf of the appellant / plaintiff vehemently contended that the partition effected between the parties, which was entered in the revenue record by way of mutation on 25.11.1972, could not be said to be bona fide fair and equitable as Battan Singh was allotted 86K-18Ms of land, Rattan Singh was allotted 80K-30Ms, Jagir Singh was allotted 87K-13Ms land, Sohan Singh was allotted 152K-4Ms land, Hukam Singh was allotted 82K-4Ms land whereas Darshan Singh defendant No.1, father of the plaintiff was allotted only 35K-13Ms of land. It was the contention of Mr. J.K. Sibal, learned senior counsel appearing on behalf of the appellant / plaintiff that it was open to the plaintiff / appellant to challenge the partition being not bona fide and equitable as the distribution of land was not equal for each of the son of Rur Singh. RSA No. 207 of 1990 16 This contention of the learned senior counsel for the appellant cannot be accepted. As held by the learned lower appellate Court, the partition was incorporated in the revenue record on 25.11.1972 and none of the members challenged the said mutation or partition even though they were recorded as owners of the property in the revenue record as per the partition effected between the parties. The learned lower appellate Court also rightly held that the partition of the agricultural land which was duly recorded in the revenue record could not be challenged in the Civil Court, as it is within the jurisdiction of the revenue Courts. The second substantial question of law raised, therefore, does not arise for consideration by this Court as the Civil Court had no jurisdiction to opine upon as to whether the partition was fair or not. Even otherwise, once the property is held to be non-ancestral, the plaintiff/appellant has no locus standi to challenge the partition. The reliance on the judgment of the Hon'ble Orissa High Court in the case of Srustidhar Ash Vs. Smt. Chinmayee Ash & Ors. 2006(4) R.C.R. (Civil) 165, can be of no help to the plaintiff / appellant as the property in dispute in the said case was house, the partition of which was within the jurisdiction of the civil Court. However, in the case of partition of the agricultural land the jurisdiction vests with the revenue authorities, therefore, the learned lower appellate Court was justified in holding that question as to whether the partition was fair and equitable could not be gone into by the Civil Court. The second substantial question of law is also RSA No. 207 of 1990 17 answered against the plaintiff / appellant. In support of the third substantial question of law the learned senior counsel for the appellant vehemently contended that the learned lower appellate Court committed an error in law holding the property to be not ancestral property in the hands of defendant No.1. The contention raised by the learned senior