RSA No.1326 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1326 of 1984 Date of Decision: 11.05.2010 Gurnam Singh ..Appellant Vs. Pritam Singh & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.G.S.Dhaliwal, Advocate, for the appellant. Mr.S.N.Chopra, Advocate, for the respondents. --- 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? --- Vinod K.Sharma,J. This is plaintiff's regular second appeal, against the judgment and decree dated 1.3.1984, passed by the learned courts below, vide which RSA No.1326 of 1984 2 suit for possession, filed by the plaintiff/appellant, qua the share held by Badan Singh of the suit land and in the alternative to challenge the sale deed dated 6.10.1975, to be void on the ground of misrepresentation and fraud was ordered to be dismissed. The plaintiff/appellant filed a suit, on the pleadings that the plaintiff and defendants were the members of joint Hindu family, and Shri Badan Singh, father of the plaintiff, was the Karta. Plaintiff claimed to be co-parcener with defendants, in the suit property. Defendants No.1 and 2 were minors, therefore, the suit was filed through Inder Singh, their father and natural guardian, who did not have any interest adverse to the minors. The Pe-digree table pleaded in the plaint reads as under:- Ralla Singh | | | | Badan Singh Chajja Singh Nagahia Singh | | | | | | | | Ishar Kaur Gurdial Singh Inder Singh Basta Singh Gurnam Bhajan | | Singh Singh | | | | Jagir Kaur | | Darshan Singh Pritam Singh It was the case set up by the plaintiff/appellant, that Badan Singh son of Ralla Singh was Karta of joint Hindu family, in which the RSA No.1326 of 1984 3 plaintiff was also the member and co-parcener, along with other male members of the family. On the death of Ralla Singh, Badan Singh, NagahiaSingh and Chajja Singh succeeded to the property of Ralla Singh. NagahiaSingh died issueless as he was not married. Chajja Singh was also unmarried and issueless. It was, therefore, the case of the plaintiff/appellant that the property in the hands of Badan Singh qua the plaintiff and defendants was ancestral coparcenary property, as Badan Singh had succeeded to this property by inheritance on the death of Ralla Singh. It was also pleaded case of the plaintiff, that Badan Singh as a Karta had no other source of income except the property in village Rajewal, Tehsil Samrala District Ludhiana. Out of the five sons of Badan Singh, Inder Singh defendant No.4, served in the Army for about 9 years and his family used to stay at village Rajewal, and was supported on the income of family from ancestral property. Inder Singh came back from Army on superannuation in the year 1947. It was further pleaded that out of the income of joint Hindu family, Badan Singh purchased the land at village Hussainpura, in his own name and in the names of NagahiaSingh and Chajja Singh, as the land was available at cheaper rates. Gurnam Singh and Inder Singh settled along with Badan Singh, on the land purchased at village Hussainpura. Badan Singh died on 21.7.1977, at the age of 82 years, and did not have a sound disposing mind. Some years prior to his death he was looked after by his sons. Case of the plaintiff/appellant was, that Inder Singh, defendant No.4, in connivance with Gurdial Singh, husband of RSA No.1326 of 1984 4 defendant No.3, took advantage of the age of Badan Singh, on the pretext that the land owned by Badan Singh was to be partitioned amongst the sons. Badan Singh was taken to the Tehsil, along with one Piara Singh, who was debtor of defendant No.4, and also managed attestation by Niranjan Singh, who is a professional witness and lives at Sirhind. The case of the plaintiff, therefore, was that on misrepresentation made by Inder Singh to Badan Singh, regarding partition of the land among his sons, he fraudulently got sale deed executed in favour of minor son and Jagir Kaur, defendant No.3 wife of Gurdial Singh for a consideration of Rs.1 lac. It was the case of the plaintiff that in the sale deed, a recital was made, that the sale amount was required by the vendor, for domestic needs and construction of a house. Legal necessity mentioned in the sale deed, was said to be imaginary, as at the age of 80 years, no body was to construct a house. It was further the case of the plaintiff that Badan Singh had no other liability, which could justify the sale of ancestral land. It was pleaded by the plaintiff/appellant, that even if it was assumed that Badan Singh had a sound disposing mind, then also the sale was without consideration and legal necessity, sale was made in favour of Inder Singh defendant No.4 and daughter-in-law Jagir Kaur, defendant No.3. Badan Singh had no authority, to sell the land in dispute to defendants No.1 to 3 who were his grand-sons and daughter-in-law respectively, in the absence of legal necessity, to the exclusion of other coparceners of joint Hindu family. Defendant No.8 Smt. Ishar Kaur being daughter of Badan RSA No.1326 of 1984 5 Singh was impleaded as proforma defendant, as she did not have any right in the coparcenary property. Suit was contested by defendants No. 1 to 3 and 4, whereas Gurdial Singh defendant No.6, and other defendants were proceeded against ex parte. Joint written statement was filed by defendants No.1 to 3. Whereas, Inder Singh and Gurdial Singh filed separate joint written statement. A common plea was raised by the defendants, that the plaintiff and defendants were not members of joint Hindu family, and that Badan Singh was not Karta of the joint Hindu family. Status of the plaintiff and defendants as coparceners was denied. It was pleaded that the parties were Jat, and were bound by customary law of Punjab in the matter of succession, alienation, marriage and family relations etc. Status of the disputed property as joint Hindu coparcenary property was also denied. It was pleaded case of the defendants, that Badan Singh, NagahiaSingh and Chajja Singh did not inherit any property from Ralla Singh, therefore, the property in the hands of Badan Singh, was not ancestral property under the Hindu law or any other law. The case set up by the defendant/respondents was that Badan Singh had other source of income and further that Inder Singh served in the Army for more than 12 years, and got income out of which he used to support his father Badan Singh, as well as his own family. It was denied, that the property at village Hussainpura was purchased from the income of RSA No.1326 of 1984 6 joint Hindu family property. It was also denied, that Badan Singh purchased the land in the name of Nighaia Singh and Chajja Singh in village Hussainpura. Property was self-acquired of Badan Singh, Inder Singh, Gurdial Singh and NagahiaSingh and Chajja Singh. Sale in favour of defendants No.1 to 3 by Badan Singh was said to be for consideration. That Badan Singh had thumb marked the sale deed before the Sub Registrar and a sum of Rs.25000/- (Rupees twenty five thousand only) was paid to him as earnest money and he received balance sale consideration, before the Sub Registrar. Badan Singh was said to be of sound disposing mind, when he executed the sale deed. It was denied that the sale deed was the outcome of misrepresentation or fraud. Sale was said to be for legal necessity and consideration. Consideration amount was said to have been utilized by Badan Singh for legal necessity. Other allegations on merits were denied. It was pleaded in the written statement, that the land in suit was purchased by Badan Singh as self-acquired property, by way of sale deed dated 26.2.1953 which was registered on 7.3.1953. Badan Singh, Inder Singh, Gurdial Singh, NagahiaSingh and Chajja Singh had purchased the land in village Hussainpura from the income of their self-acquired property. As already observed, the sale was said to be for consideration and legal necessity. It was also the case set up by the defendants that before coming into force Hindu Succession Act, Badan Singh was governed by customary law of Punjab, in the matter of alienation, succession, and in all other RSA No.1326 of 1984 7 respects, since the time immemorial. Suit was said to be barred by Section 7 of the Punjab Custom (Power to Contest) Act, 1920 read with amended Punjab Act 12 of 1993. Smt. Ishar Kaur, however, admitted the claim of the plaintiff. In the replication, averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the property in dispute is joint Hindu family property qua the plaintiff? OPP 2. Whether the sale deed in dispute is a result of misrepresentation and fraud committed on Badan Singh defendant? OPP 3. Whether the plaintiff is entitled to raise the plea of misrepresentation and fraud? OPP 4. Whether the sale in dispute is for any legal necessity and for consideration? OPD 5. Whether the sit is bad for non-joinder of necessary parties? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Relief. Thereafter, two additional issues No.6-A and 6-B were also RSA No.1326 of 1984 8 framed which read as under:- 6-A Whether Isher Kaur is daughter of Badan Singh, if so to what effect? OPD 6-B Whether the suit of the plaintiff is barred as alleged in para No.23-A of the amended written statement? Learned trial court, on appreciation of evidence, recorded the finding, that the plaintiff was able to prove that the land in village Rajewal was inherited by Badan Singh and his brothers from Ralla Singh through mutation No.33 dated 26.11.1911. The learned trial court further held that excerpt Ex.P.1, and documents Ex.P.20 to Ex.P.25 reveal that Maha Singh, one of the sons of Ralla Singh died and his share was inherited by Badan Singh, NagahiaSingh, Chajja Singh sons of Ralla Singh in equal shares by mutation No.47 dated 15.6.1912. The learned court further held that in addition, the oral evidence led by the parties, showed that the land of village Rajewal was inherited by Badan Singh and his brother from Ralla Singh. The learned court recorded a finding of fact that the land at village Rajewal was inherited by Badan Singh and his brothers from their father Ralla Singh and the land was ancestral coparcenary land qua the plaintiff/appellant. Thereafer, the learned trial court, proceeded to consider the evidence with regard to the land at village Husainpura. In view of the stand taken by the plaintiff/appellant that the said land was purchased by Badan Singh and his bothers along with Inder Singh from the income of ancestral RSA No.1326 of 1984 9 land situated at village Rajewal. Leaned trial court held that Gurdial Singh PW 3, deposed, that Badan Singh and his brothers purchased the land at village Hussainpura, from the produce of ancestral land which they owned at village Rajewal. Similar was the deposition of PW 4. However, PW 5, on the other hand deposed, that the land in village Hussainpura, was purchased from the income of ancestral land situated at village Hussainpura which was once held by his grand-father. The learned trial court held that in cross-examination PW 5, stated that all the five brothers had purchased 8 killas of land in village Rajewal, and had given income of the land to their father to purchase the land at village Hussainpura. The learned trial court held that PW 5 did not make the statement, that the land was purchased at village Hussainpura from the income of the land of village Rajewal. The learned trial court, therefore held, that there was positive evidence by the defendants, that some land was purchased by Badan Singh and his brothers in village Rajewal which was pre-empted, as a result of which Badan Singh and his brothers received a sum of Rs.8000/- (Rupees eight thousand only). The suit land was purchased at village Hussainpura by spending said amount. The learned trial court also held that there was evidence by the defendants, showing that Badan Singh and his brothers cultivated the land of others, on Batai and income derived from the said land was also used for RSA No.1326 of 1984 10 the purchase of land at village Hussainpura. This was deposed by DW 2 Gurdial Singh, D.W.5 Chajja Singh, DW 7 Basta Singh and DW 8 Inder Singh. The learned trial court observed that these witnesses were not cross-examined on this point. Learned trial court held that there was no evidence to show that the land, which was purchased by Badan Singh and his brothers, at village Rajewal which was subsequently pre-empted for a sum of Rs.8,000/- (Rupees eight thousand only) was out of the income of ancestral property. The learned trial court noticed that there was documentary evidence, by way of Exs.DW 7/A, DW 7/B, DW 7/C and DW 7/D to show that Badan Singh and his brothers were cultivating the land of others. The learned trial court held that there was evidence to the effect, that income received from the ancestral property was not sufficient to meet the requirement of the family, as it stood proved that Badan Singh, solemnized number of marriages in the family. Inder Singh was married thrice. The learned trial court, therefore, held that it could not be believed, that the income from ancestral property could be saved to purchase the land at village Hussainpura. The learned trial court, thereafter took note of the admission of defendant No.3, with regard to the fact that there was certain land on which Badan Singh and his brothers were mortgagee in village Rajewal. On appreciation of evidence, referred to above, the learned trial court came to the conclusion, that the suit land was not purchased from the income of ancestral land inherited by Badan Singh and his brothers RSA No.1326 of 1984 11 from Ralla Singh in village Rajewal. Issue No.1 was, thus, decided against the plaintiff/appellant. On issue No.2, learned trial court recorded a finding, that there was no satisfactory evidence, to prove that the sale deed in favour of defendants No.1 to 3 was result of misrepresentation or fraud committed on Badan Singh. The court held that there was only bald statement of PW 5 in this regard, which was also hearsay evidence, as it was based on the information said to have been received from Piara Singh, the marginal witness of the sale deed. The learned trial court also concluded that this part of statement, with regard to misrepresentation and fraud was beyond pleading, as the stand taken in the plaint was that sale deed was executed in the garb of partition of the land. Whereas, evidence was led, that the document was prepared regarding some Takawi. The learned trial court took note of the fact that the suggestion made to the defendants' witness regarding sale deed being the outcome of fraud and misrepresentation was specifically denied. The learned trial court held that the evidence on record showed, Badan Singh to be a prudent man who had made arrangement for the livelihood of his sons and his grand sons. The learned trial court took note of the fact that Gurdev Singh PW 3, in his cross-examination had stated that NagahiaSingh, one of the brothers of Badan Singh had died leaving behind a Will in favour of sons and Badan Singh regarding his share of land. RSA No.1326 of 1984 12 The learned trial court held that the sale deed was executed by Badan Singh in favour of defendants No.1 to 3 by free Will, and it was not a result of fraud or misrepresentation. Issue No.2 was also decided against the plaintiff. Issue No.3 was decided in favour of the plaintiff, whereas on issue No.4, learned trial court held that the sale in question, was for legal necessity and consideration. Issues No.5 and 6 were not pressed, therefore, decided against the defendants. On Issue No.6-A, learned trial court, held that Smt. Ishar Kaur was proved to be daughter of Badan Singh, as this was not denied by the defendants, in the written statement. The learned trial court, however, held that Badan Singh was competent to sell the suit land, in favour of defendants No.1 to 3, it being not a coparcenary property. The learned trial court also held that Smt.Ishar Kaur did not have any interest in the suit land. On issue No.6-B, learned trial court held, that Badan Singh was governed by Hindu law and not customary law in view of repeal of Punjab Custom (Power to Contest) Act, 1920. In view of the findings on the issues, the suit filed by the plaintiff was dismissed. The plaintiff/appellant preferred an appeal against the judgment and decree. Before the learned lower appellate court, the plaintiff/appellants only challenged the findings of learned trial court on issue Nos. 1 and 4 only. RSA No.1326 of 1984 13 Learned lower appellate court also did not accept, the contention of the plaintiff/appellant, that the property was coparcenary Hindu joint family property, by recording a finding that though, there was no doubt that Badan Singh and his brothers had inherited some land from their father in village Rajewal Tehsil Samrala District Ludhiana, but there was not sufficient evidence, to hold that the land in dispute situated at village Hussainpura was purchased out of the income of the property situated in village Rajewal. This finding of learned trial court was affirmed, in view of the fact, that it was in evidence that Badan Singh and his brothers were cultivating some land on Batai. Besides this, they had purchased land, which was pre-empted and a sum of Rs.8,000/- (Rupees eight thousand only) was received under the decree, which proved that Badan Singh and his brothers, had sufficient funds besides the income from ancestral property out of which they purchased the land in dispute. The learned lower appellate court held, that there was no evidence to draw an inference, that income from ancestral land and income from Batai was thrown into common stock to treat it as joint family income. The learned lower appellant court, further held that that there was also no evidence that the property purchased at Hussainpura was treated as ancestral property by Badan Singh and his brothers. The findings, that the property was not joint Hindu family coparcenary property, was affirmed and it was held to be self-acquired RSA No.1326 of 1984 14 property of Badan Singh and his brothers, which he could dispose off as he liked. The learned lower appellate court also held that, even if it was taken that the sale was not for consideration or legal necessity, it could not be challenged, being qua the self-acquired property, specially, when the plaintiff/appellant failed to prove fraud and misrepresentation. Findings of the learned trial court on issues No.1 and 4 were, accordingly, affirmed, as also on other issues. Learned counsel for the appellant contends that the appeal raises, the following substantial questions of law, for consideration by this court: 1. Whether the finding of the learned courts below holding the property to be self-acquired property is the outcome of misreading of evidence, thus perverse? 2. Whether the property acquired by labour of the members of the joint family is a coparcenary Hindu joint family property? In support of substantial questions of law, Mr. G.S.Dhaliwal, learned counsel, for the appellants vehemently contended, that the findings of the learned courts below on issues No.1 and 4 is the outcome of misreading of evidence, pleadings of the parties and being the result of misinterpretation of law, is perverse. The contention of the learned counsel for the appellant was, RSA No.1326 of 1984 15 that it was not disputed that the property was inherited by Badan Singh and his brothers from Ralla Singh, their common ancestor. As by way of documentary evidence, it was proved that the property was inherited by Ralla Singh from his father, therefore, the property was ancestral property in the hands of Badan Singh. This was also so held by the learned courts below also. The contention of the learned counsel for the appellant, therefore, was that once the property at village Rajewal, was a joint Hindu coparcenary property in the hands of Badan Singh and his brothers then the income by the joint family, by labour even without the nucleus, will also be a joint Hindu coparcenary property. In support of the contention, reliance was placed by the learned counsel for the appellant on the Division Bench judgment of Hon'ble Lahore High Court in the case of Sanwal Das Vs. Kure Mal & Ors. 1928 PLR 635, wherein Division Bench of Hon'ble Lahore High Court laid down, that even if there is no nucleus of ancestral property, if two members of the family, are joint in worship and live in commensality and carry on a business jointly, treating that business, in every way as joint family business, such property would be deemed to be the joint Hindu family property. Hon'ble Division Bench of Lahore High Court in the judgment referred to above had held, that in the absence of proof of separation of the family, presumption was required to be drawn that joint family continued to exist. RSA No.1326 of 1984 16 The findings in the case of Sanwal Das Vs. Kure Mal & Ors. (supra) relied upon by the learned counsel read as under:- “ Now, as already stated, there is ample evidence on the record which goes to show that the property, as we now see it, had its origin in the small gular shop which Sita Ram, the grandfather of the parties was carrying on and which prospered later on under the wise management of Nanak Chand, the father of the plaintiff. I may also observe, with the due respect to the learned Judge who delivered the judgment in Ram Kishan Das v. Tunda Mal (1), that even if there is no nucleus of ancestral property but we find two members of the family who are joint in worship and live in commensality and carry on a business jointly, treating that business in every way as joint family business and acquiring property with the proceeds of that business, that such property would be deemed to be the joint Hindu family property. In my humble judgment, this proposition is in consonance with the genius and habits of mind of the vast majority of Hindus governed by the law of Mitakshara. I am supported in my view by the high authority of Mr. Justice Beaman, a very distinguished and learned Judge of the Bombay High Court, who in Karsondas Dharmsey v. Gangabai (2), laid down that there was nothing either in practice or theory which excluded the possibility of members of the same family starting a family fortune holding it as members RSA No.1326 of 1984 17 of a joint Hindu family, and thereby clothing it with all the legal qualities and incidents of joint-family property. In Laldas Narandas v. Motibaity (3), it was held that, where a father and his sons acquire the property by their joint labours and are besides joint in food and worship, they must be regarded as having constituted a joint Hindu family even though there may have been no nucleus of property which has come down to the father from his father or grandfather or great-grandfather. For the formation of a coparcenary in Hindu Law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a coparcenary system, and those persons by living, messing