R.S.A.No. 1304 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 1304 of 1987 (O&M) Date of decision: 26.02.2010 Gurcharan Singh and others ............Appellants Versus Sukhdev Singh ............Respondent CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA Present: Ms. Alka Sarin, Advocate, for the appellants. Mr. R.L.Gupta, Advocate, for the respondent. VINOD K.SHARMA, J. This regular second appeal is directed against the judgment and decree dated 6.2.1987, passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondent was decreed by reversing the judgment and decree passed by the learned trial court. The plaintiff/respondent filed a suit for declaration, that land measuring 51 kanals and 11 marlas situated within the revenue limits of village Bora Mal and half share in the land measuring 18 kanals and 1 marla situated within the revenue limits of village Budhpura, is a coparcenary property of the plaintiff and that the decree dated 2.8.1983, passed in civil suit No. 435 dated 6.8.1983, suffered by defendant No. 3 in favour of defendants No. 1 and 2, was illegal, null and void and not binding on the rights of the plaintiff. Mutation No. 4918 dated 23.9.1983 sanctioned on the said decree was also challenged. The suit land was claimed to be ancestral coparcenary property of the plaintiff R.S.A.No. 1304 of 1987 -2- qua the defendants. The plaintiff had filed a suit in the Court of Additional Senior Sub Judge, Mansa, for permanent injunction restraining defendant No. 3 from alienating the suit land. By way of temporary injunction defendant No. 3 was restrained from alienating the property. In violation of injunction order, defendant No. 3 suffered a decree under challenge on 25.8.1983. The suit was contested, wherein preliminary objection was taken, that the suit property was not valued correctly for the purposes of court fee and jurisdiction. The plaintiff/respondent was said to be adopted son of Smt. Gurnam Kaur and residing at village Ramditawala. Thus, it was said, that he has no locus standi to file the suit. The plaintiff was said to be not in possession of the suit land, therefore, the suit for declaration was said to be not competent. The plaintiff was said to be living separately for the last 35 years from the defendants, and no property or any other article was said to be jointly owned by the plaintiff and defendant No. 3. Specific stand taken in the written statement was, the defendant No. 3 had purchased land at village Mansa Kalan in the name of the plaintiff/respondent to separate him from the joint family. It was also the pleaded case of the defendant/appellants, that the plaintiff was addicted to drinking and had sold the land purchased for him by defendant No. 3. The suit land was said to be self-acquired property of defendant No. 3. Therefore, the decree was claimed to be perfectly valid one, and it was claimed that the mutation was rightly sanctioned. In the replication, the plaintiff denied the averments made in the written statement and those of plaint were reiterated. Defendant No. 3 was proceeded ex parte. R.S.A.No. 1304 of 1987 -3- The learned trial Court on the pleadings of the parties, framed the following issues:- “1. Whether the suit property is coparcenary joint Hindu and undivided family property between the parties if so its effect? OPP 2. Whether the decree dated 25.8.1983 is ineffective qua the rights of the plaintiff as alleged, if so its effect? OPD 3. Whether the suit is not properly valued for the purposes of court fee? OPD 4. Whether the plaintiff was adopted by Gurnam Kaur if so its effect? OPD 5. Whether the suit is not maintainable and plaintiff has got no locus standi? OPD 6. Whether the plaintiff was separated from defendant and he has already disposed off his share if so its effect? OPD 7. Relief.” The plaintiff in his support, examined PW1 Megh Raj, Office Qanungo, PW3 Gurnam Kaur and himself appeared in the witness box as PW2. He also produced on record excerpts Ex.P1 and Ex.P2 and closed his evidence. Whereas defendants in support of their case, examined DW1 Surjit Singh, DW2 Pala Singh and Gurcharan Singh appeared in the witness box as DW3 and closed their evidence. In rebuttal, the plaintiff placed on record the judgment and decree dated 25.8.1983 as Ex.P.X and P.Y. Issues No.1 and 6 were taken up together. The learned trial Court on issues No.1 and 6 recorded a finding, that it was proved on record that plaintiff/respondent was living with Smt. Gurnam Kaur from childhood, which fact was admitted by Smt. Gurnam Kaur in cross- R.S.A.No. 1304 of 1987 -4- examination. It was also the admitted case, that the plaintiff had been given one room in partition, where plaintiff/respondent was living with his family. It was also admitted case, that the plaintiff/respondent was living separately from defendant Surjit Singh after his marriage. The important aspect, which was taken note of by the learned trial Court was, that though plaintiff/respondent had denied that he was holding any land at village Mansa Kalan or that his father had purchased any land in his name at village Mansa Kalan, and that he had sold the land, but this stood belied in view of the documentary evidence, which showed that the plaintiff/respondent was owner of land measuring 24 kanals 16 marlas, which was sold to DW1 Surjit Singh. The learned trial Court held, that it was for the plaintiff/respondent to have explained as to in what capacity he was holding land in village Mansa Kalan and also the source of acquisition. The learned trial Court held, that the land held by Surjit Singh defendant was only 60 kanals, therefore, plaintiff/respondent was holding more than his share which he had disposed off. Therefore, it was held that the plaintiff and defendants did not constitute Joint Hindu Family, therefore, hold that the plaintiff was separated from defendant Surjit Singh after his marriage. Issue No.1 was accordingly decided against the plaintiff and issue No.6 was decided in favour of defendants. On issue No.2, the learned trial Court held, that as the plaintiff did not constitute Joint Hindu Family with the defendant Surjit Singh after he was separated by Surjit Singh, therefore, he ceased to have any interest in the suit land. It was held, that Surjit Singh had liberty to dispose off the suit land by means of decree dated 25.8.1983. R.S.A.No. 1304 of 1987 -5- The learned Court also held, that it was not proved that Surjit Singh was served with injunction order passed by this Court, therefore, the decree could not be said to be in violation of injunction order. Issue No.2 was also decided against the plaintiff. Issue No.3 was decided in favour of the plaintiff and it was held, that the suit was properly valued for the purposes of court fee and jurisdiction. Issue No.4 was decided against the defendants for want of evidence. Similarly, issue No.5 was also decided against the defendants. However, in view of the findings of the learned trial Court, referred to above, the suit was dismissed. The plaintiff/respondent preferred an appeal. The learned lower appellate Court on appreciation of evidence, came to the conclusion, that the plaintiff/respondent had proved that the suit land was ancestral property in the hands of defendant No.3. The learned lower appellate Court held, that though stand was taken that the suit property was self-acquired property of their father Surjit Singh, however, no documentary evidence was led in support of this contention. The learned lower appellate Court also took note of the fact, that Surjit Singh did not contest the suit. The learned lower appellate Court reversed the finding on issue No.1, and held, that the suit property is coparcenary ancestral property of the parties. The learned lower appellate Court, held that Sikh Jats are governed by Hindu law in the matter of alienation, succession etc., as held by this Court in 1976 R.S.A.No. 1304 of 1987 -6- Current Law Journal 193. The learned lower appellate Court after holding the property to be coparcenary Joint Hindu Family property, considered the stand taken by the defendants with regard to adoption of plaintiff by Smt. Gurnam Kaur. The learned Court held, that the adoption was required to be pleaded and proved strictly, but in this case, there were only allegations regarding plaintiff/appellant having been adopted by Smt. Gurnam Kaur. This assertion was denied by PW3 Gurnam Kaur while appearing in the witness box. The learned lower appellate Court also found, that the severance of status of the plaintiff/respondent as son, did not stand proved. The learned lower appellate Court approved the finding of the learned trial Court on issue No.4 and held, that the plaintiff/respondent was not adopted. The learned Court held, that the finding on issue No.4 was not challenged either by filing cross- objections or invoking provisions of Order 41 Rule 22 of the Code of Civil Procedure. The learned lower appellate Court, therefore, held, that there was no partition between the parties evidencing separation of the plaintiff from the defendants. The learned lower appellate Court further held, that under the Hindu Law, a partition can only take place between all the coparceners. The learned lower appellate Court also held, that there could be no partition between the sons only. This finding was recorded taking into consideration the fact that age of the plaintiff was 40/42 years, whereas the partition was said to have taken place about 35 years back, when the plaintiff/respondent was minor. The learned lower appellate Court held, that though Surjit Singh was said to have R.S.A.No. 1304 of 1987 -7- purchased the land in the name of plaintiff/respondent in village Ram Ditawala, this stand could not be accepted, as the sale deed Ex.D1 related to the land in village Mansa Kalan and not in village Ram Ditawala. The learned lower appellate Court held, that the land could not be said to have been partitioned between the sons in absence of partition by father. The learned lower appellate Court also held, that even for the sake of arguments the Ex.D1 is taken to prove that the property given to the plaintiff by his father, it could only tantamount to gift, and therefore, would not tantamount to separation of any joint status. The finding on issue No.6 was, therefore, reversed, and it was held that the plaintiff/respondent was not separated from the family. In view of the findings recorded, the learned lower appellate Court held, that the decree in dispute could not be sustained, as alienation could be made by the karta for legal necessity for the benefit of estate. The decree was therefore held to be void. The learned lower appellate Court in support of his finding, placed reliance on paragraph 269 of Mula's Principles of Hindu Law. The learned lower appellate Court, in addition, also held, that the consent decree could not transfer any title in favour of defendants No.1 and 2 for want of registration. The finding, that the plaintiff/respondent had no locus standi, was also rejected on the ground that the plaintiff/respondent being not a party to the decree, could challenge it. The learned lower appellate Court also held, that the transfer was in violation of the injunction order passed by the learned trial Court. It further showed, that the decree was suffered in undue haste. R.S.A.No. 1304 of 1987 -8- The appeal was accepted, the judgment and decree passed by the learned trial Court was set aside and the suit filed by the plaintiff/respondent was decreed with costs. Ms. Alka Sarin, learned counsel, appearing on behalf of the appellants, contended that this appeal raises the following substantial questions of law:- “1. Whether the property in the hands of defendant No.3 Surjit Singh could be held to be Joint Hindu Family property, though the plaintiff/respondent had acquired separate property? 2. Whether the finding of the learned lower appellate Court, that there was no partition between the parties could be said to be perverse and outcome of mis-reading of documentary and oral evidence on record?” In support of the substantial questions of law, the learned counsel for the appellants vehemently contended, that the property in the hands of defendant No.3 could not be said to be Joint Hindu Family coparcenary property in view of the fact that the plaintiff/respondent was separated from the family for more than 30-32 years. It was also the contention of the learned counsel for the appellants, that the learned lower appellate Court failed to notice, that a partial partition of joint family property between the father and minor sons was permissible. In support of this contention, the learned counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court in Apporva Shantilal Shah Vs. Commissioner of Income-tax, Gujarat I, Ahmedabad, AIR 1983 Supreme Court 409, wherein it was laid down, that a partial partition of property by father R.S.A.No. 1304 of 1987 -9- between himself and his minor sons, cannot be said to be invalid under the Hindu Law and must be held to be valid and binding. This, however, should be bona fide and subject to the right of the sons to challenge the said partition, if the partition is not fair and just. It was held in the very judgment, that partial partition of joint family property between father and minor sons, if there is not of equal distribution among the co- sharers, the partition cannot be said to be valid. The contention of the learned counsel for the appellants, therefore, was, that once it was proved on record, that the plaintiff was given property, which was purchased by his father, it amounted to separation from the joint family property. The plaintiff/respondent, therefore, ceased to be the coparcener. The contention of the learned counsel for the appellants was, that the learned trial Court was right in holding, that the plaintiff/respondent had ceased to be member of the Joint Hindu Family. It was contended that the first substantial question of law therefore deserved to be answered in favour of the appellants. Mr. R.L. Gupta, learned counsel, appearing on behalf of the respondent, however, contended that this substantial question of law does not arise for consideration in this appeal, as the appellants, by framing this substantial question of law, want to set up altogether a new case, which is not permissible. In support of this contention, the learned counsel for the respondent placed reliance on the judgment of the Hon'ble Supreme Court in U.R. Virupakshappa Vs. Sarvamangala and another, (2009) 2 Supreme Court Cases 177. R.S.A.No. 1304 of 1987 - 10- The learned counsel for the appellants also placed reliance on this judgment, to contend, that the presumption with regard to existence of joint family gets weaker and weaker from descendant to descendant and such weak presumption can be rebutted by adduction of slight evidence of separate possession of the properties. In that case, the burden would shift to the plaintiff to prove that family was a joint family. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. It may be noticed, that no plea was taken in the written statement that plaintiff/respondent was separate from family by way of partition of property. A positive stand was taken, that the plaintiff/respondent was not son of Surjit Singh, as he stood adopted by Smt. Gurnam Kaur i.e. sister of late Sh. Surjit Singh when he remarried. However, the learned Court, on consideration, found as fact, that the plaintiff/respondent was not adopted and he continued to be the member of the family of Surjit Singh. It is further interesting to note, that no evidence was led by the defendant/appellants to prove the purchase of land which was sold vide Ex.D1. No sale deed was produced on record and only sale by the plaintiff/respondent was produced. This stood belied from the fact, that the land was said to be at village Ram Ditawala, whereas the land sold was found to be at different village. It was thus, not proved that any property was purchased by Surjit Singh in favour of the plaintiff/respondent. In absence of any such evidence, the plea that there was partial partition, cannot be accepted, as admittedly no proof of partition was proved except that the land in R.S.A.No. 1304 of 1987 - 11- possession of defendant No. 3 was transferred in favour of defendants No. 1 and 2 by way of consent decree. It is further to be noticed here, that the decree in favour of defendants No. 1 and 2, was not registered therefore, it did not pass on any title, as the family settlement could not be arrived at in absence of the plaintiff/respondent. The learned lower appellate Court was also right in coming to the conclusion, that the land was sold in haste after the suit for injunction was filed. The presumption of jointness, therefore, in this case was not rebutted and the judgment of the Hon'ble Supreme Court in U.R. Virupakshappa Vs. Sarvamangala and another (supra) cannot be applied to in favour of the appellants, as there was no transfer by descendant to descendant, but the parties were brothers, whereas defendant No.3 was father of the plaintiff. The first substantial question of law deserves to be answered against the appellants, as there is nothing wrong with the judgment of the learned lower appellate Court in holding that the property was Joint Hindu Family coparcenary property in the hands of defendant No.3, as the evidence led by plaintiff/respondent was not rebutted by defendant/appellants. Learned counsel for the appellants, on the second substantial question of law, contended, that it was proved, that the parties were separate since the marriage of plaintiff/respondent. This fact coupled with the fact that same property was with the plaintiff/respondent, which he sold, could lead to no other conclusion but the one that there was partition between the parties and property in hands of defendant No.3 lost the character of Joint Hindu Family R.S.A.No. 1304 of 1987 - 12- property. The contention of the learned counsel for the appellants was, that once the partial partition was permissible, it had to be held that the property stood partitioned. It was also the contention of the learned counsel for the appellants, that the learned lower appellate Court wrongly presumed the partition to be between the brothers by ignoring the fact, that it was the father who had bought the property in the name of plaintiff/respondent whereas the other property was transferred in favour of the defendant/appellants. This plea also deserves to be noticed to be rejected, as acceptance of this would make the decree to be bad in law, as in that case, it required registration, as there was no document of partition except the decree. The finding of fact recorded by the learned lower appellate Court, therefore, cannot be challenged on a plea, which was neither pleaded nor proved by way of evidence, as the stand taken was only, that because of adoption, the plaintiff/respondent had ceased to be the member of Joint Hindu Family. The second substantial question of law, as framed, is also answered against the appellants. For the reasons recorded, finding no merit in this appeal, it is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 26, 2010 R.S.