RSA No.2961 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2961 of 1984 Date of Decision: 16.03.2010 Ishar & Anr. ..Appellants Vs. Ramesh & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Rajbir Sehrawat, Advocate, for the appellants. Mr.R.S.Mittal, Sr. Advocate, with Mr.Atul Gaur, Advocate, for respondent No.1. --- 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 defendants' appeal against the judgment and decree dated 14.8.1984, passed by the learned courts below vide which suit filed RSA No.2961 of 1984 2 by the plaintiff/respondent, for joint possession, was decreed. Minor plaintiff/respondent filed a suit, claiming that he was the adopted son of Chaju, defendant No.1 and was entitled to succeed to the property of his adopted father. The case of the plaintiff was, that his adopted father Chaju Ram constituted a joint Hindu family with him, the property in the hands of Chaju Ram, defendant No.1 his adopted father, was ancestral, therefore, he had no right to alienate it except for legal necessity. Pleaded case of the plaintiff was, that defendant No.1 was drunkard, gambler and spendthrift, so he was requested not to sell, mortgage or otherwise alienate the property in dispute except for consideration and legal necessity. It may be noticed here that the suit for injunction as originally framed was not competent. In the first instance the suit for injunction was filed. However, during the pendency of the suit defendant No.1, sold the property in dispute to defendants No.2 and 3. The suit was accordingly amended, seeking joint possession by challenging the sale made by defendant No.1. Sale deed was executed by defendant No.1 on 31.8.1979 and was registered on 4.8.1979. The sale was said to be without consideration and legal necessity. It was also claimed that the sale was a sham transaction, in order to defeat the rights of the plaintiff/respondent to succeed to the property. It was also pleaded case of the plaintiff, that Chajju Ram had earlier by gift transferred 65 kanals 15 marlas of agricultural land out of total disputed land, but the civil suit filed by the plaintiff challenging the gift deed in favour of Gurcharan Singh was decreed on 31.1.1979. It was held in the suit that the RSA No.2961 of 1984 3 gift deed of land measuring 65 kanals 15 marlas by Chaju Ram, in favour of Gurcharan Singh was illegal, void and not binding on the plaintiff. Appeal filed by Gurcharan Singh was dismissed by the learned District Judge on 25.5.1981. It was also pleaded that during the pendency of the appeal, defendant No.1 transferred the land by way of impugned sale. Ishar and Dalip Singh, defendants No.2 and 3 had moved an application, in the court of learned Additional District Judge, Bhiwani for being impleaded as party in the appeal on the ground that the property stood transferred in their favour. The application was allowed and they were allowed, to be impleaded as party. Appeal filed by Gurcharan Singh was dismissed. The learned Additional District Judge did not decide the question, as to whether the sale in favour of defendant-appellants was valid or not and was left for the decision of the civil court, as the plaintiff/respondent had already filed a suit for injunction against defendant No.1, which was subsequently amended as referred to above. It was pleaded that the impugned sale was the outcome of fraud and misrepresentation and was executed without legal necessity and consideration. Suit was contested by the defendants. Defendant No.1, filed written statement separately and he denied, that the disputed land was ancestral in his hands qua the plaintiff. It was denied that the plaintiff was his adopted son. Sale was said to be for consideration and legal necessity. Defence was also taken that the plaintiff/ respondent had no locus standi to file the suit, nor the suit was maintainable. Other preliminary objections were also pleaded. Plea of fraud and RSA No.2961 of 1984 4 misrepresentation was denied. He admitted having received the sale consideration, by claiming the suit property to be self-acquired property. Defendants No.2 and 3 i.e. the appellants filed a separate written statement by taking preliminary objections regarding maintainability of the suit. That Smt.Chandro had no authority to file the suit on behalf of the minor. It was pleaded, that the sale in favour of defendant/appellants was for consideration and without notice, qua the title of the plaintiff/ respondent. They claimed to be bona fide purchasers for consideration. On merit, it was not admitted that Ramesh plaintiff was adopted son of defendant No.1. It was also denied that the plaintiff constituted a joint Hindu family with defendant No.1. It was also denied that the suit property was ancestral in the hands of defendant No.1 qua the plaintiff. It was asserted that a sum of Rs.51,000/- (Rupees fifty one thousand only) was paid by the vendees, to the vendor at the time of execution of the agreement to sell and remaining amount of Rs.30,000/- (Rupees thirty thousand only) was paid before the Sub Registrar at the time of registration. Appellant/defendants No.2 and 3 also claimed that property was self acquired property of Chaju and he had the authority to dispose. 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:- RSA No.2961 of 1984 5 1. Whether the plaintiff is the adopted son of defendant Chaju and constituted a joint Hindu family with him? 2. Whether the property in dispute is joint Hindu family property? 3. If issue No.1 and 2 are proved, whether the sale deeds dated 31.8.1979 and regd. on 4.9.79 for legal necessity and consideration or benefit of the Estate? 4. Whether the plaintiff has no locus standi to file the present suit? 5. Whether the suit is not maintainable in the present form? 6. Whether the plaintiff is estopped by his acts and conduct to file the present suit? 7. Whether the plaintiff has no cause of action against the defendants? 8. Whether Chandro has no authority to file the suit on behalf of the minor? 9. Whether the suit is not properly valued for he purposes of court fee and jurisdiction? 10. Whether the suit is false and frivolous? 11. Whether the defendants No.2 and 3 are are bona fide purchaser for valuable consideration, without notice and if so to what effect? 12. Relief. RSA No.2961 of 1984 6 On appreciation of evidence – oral, documentary- and also in view of admission by the counsel for the defendants, learned trial court held that the plaintiff was proved to be the adopted son of defendant No.1. Plea of defendant/appellants that in view of the pleadings of the plaintiff he was estopped to change his stand, to claim that he was governed by customs in the matter of alienation, and that he did not constitute Hindu joint family with his father, was rejected. This finding was recorded in view of the stand taken by the plaintiff, that even if it is taken that the plaintiff constituted joint Hindu family with his adopted father, on account of his death during the pendency of the suit plaintiff was entitled to take possession of the land. Learned trial court took note of the fact that in the previous litigation between the plaintiff and defendant No.1 it was held that parties were governed by custom, in the matter of alienation so the finding became final between the parties. The finding was held to be binding on the principle of res judicata. Learned trial court accepted this contention and held that the finding qua the custom recorded in previous suit operated as res judicata. It was, therefore, held that the parties are governed by custom in the matter of alienation etc. Issue No.1 was decided accordingly. On issue No.2, learned trial court held, that the property in the hands of defendant No.,1 was ancestral property qua his son. Accordingly, finding on issue No.2 was also returned in favour of the plaintiff/ respondent. On issue No.3, learned trial court held that Chaju Ram sold the property in dispute for sale consideration of Rs.30,000/- (Rupees thirty RSA No.2961 of 1984 7 thousand only) and not Rs.81,000/- (Rupees eighty one thousand only). The learned trial court also held that there was no legal necessity and the sale was not for good management. Issue No.3 was also decided in favour of the plaintiff. In view of the findings on issues No.1 to 3, issue No.4 was also decided in favour of the plaintiff and against the defendant/appellants. Under issue No.5, suit was held to be maintainable, whereas issues No.6, 7, 8 and 10 were decided against the defendant-appellants as not pressed. On issue No.9, the learned trial court held that the suit was properly valued for the purposes of court fee and jurisdiction, whereas on issue No.11, it was held that defendant/appellants were not bona fide purchaser for consideration. Consequently, the suit filed by the plaintiff was decreed. In appeal, findings recorded by the learned trial court were affirmed and the appeal was dismissed. Mr. Rajbir Sehrawat, learned counsel appearing on behalf of the appellants contends, that this appeal raises the following substantial questions of law, for consideration by this court:- 1. Whether the findings of the learned courts below, holding that the property in the hands of defendant No.1 was ancestral joint Hindu family property qua the plaintiff/respondent, is the outcome of misreading of evidence and contrary to law, therefore, not sustainable? RSA No.2961 of 1984 8 2. Whether in the absence of pleading and evidence it could be held that the parties were governed by the custom and whether the finding in the previous suit in which rights of the appellants were not decided could operate as res judicata? In support of the first substantial question of law, learned counsel for the appellants, vehemently contended, that it was admitted case of the parties, that defendant No.1 had adopted plaintiff/respondent in the year 1972. Plaintiff/respondent, thereafter filed a suit for possession of 65 kanals 15 marlas of land i.e. half share on the basis of family settlement. Suit filed by the plaintiff/respondent was decreed on 31.3.1973. This fact was duly proved by Ex.P.2 to Ex.P.4. Learned counsel for the appellants contended, that defendant No.1 had executed a gift deed in favour of Gurcharan Singh i.e. his sister's son which was challenged by the plaintiff. Issue framed in the said case was “whether the gift in favour of Gurcharan Singh was valid or not?” Gift was declared to be null and void on 31.1.1979, for the reason that on the date of making of the gift, property was joint Hindu family property, even though the suit filed by the plaintiff against defendant No.1 was decreed on 31.7.1973 claiming family settlement for the reason that the gift deed was executed much prior to family settlement. As already noticed above appeal filed by Gurcharan Singh also failed, in which though defendant/appellants were impleaded as party but RSA No.2961 of 1984 9 their right regarding the sale in their favour was not adjudicated. The contention of the learned counsel for the appellants, therefore, was that though it cannot be disputed that the suit land was joint Hindu family property in the hands of defendant No.1, but it ceased to be the joint Hindu family property after the family settlement which matured into the decree on 31.3.1973, under which the plaintiff/respondent got a decree for his half share in the joint Hindu family property. In support of this contention, learned counsel for the appellants placed reliance on the judgment of Hon'ble Supreme Court in the case of Hardeo Rai Vs. Sakuntala Devi & Ors. AIR 2008 SC 2489, wherein Hon'ble Supreme Court was pleased to lay down as under:- “22. Where a coparcener takes definite share in the property, he is owner of that share, and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.” The contention of the learned counsel for the appellants, therefore, was that on passing of a decree in favour of the appellants vide which plaintiff had challenged the gift deed made by defendant No.1 in favour of Gurcharan Singh, the property reverted back to defendant No.1 on 31.1.1979, as an absolute owner, as the joint property had been partitioned by the plaintiff, taking his share under a decree on 31.2.1973. The defendant No.1, therefore, could dispose of the property without restriction, as an absolute owner. RSA No.2961 of 1984 10 It was also the contention of the learned counsel for the appellants, that it is now well settled law that in order to succeed on plea of custom it is necessary to plead and prove custom. In the present case plaintiff has neither pleaded nor proved the custom. The judgment in the previous case, in which the defendant/appellants were not a party, could not operate as res judicata, as the parties in both the suits could not be said to be the same, as even though the defendant/appellants were impleaded as party, but their rights were not determined in view of filing of the suit by the plaintiff. Even otherwise, in order to attract the principle of res judicata, at least it was required to be pleaded that the parties were governed by custom, so as to read the previous judgment in evidence. Mr.R.S.Mittal, learned senior counsel for respondent No.1, on the other hand, supported the judgment and decree passed by the learned courts below, by contending, that in the judgment inter se between the parties, it was held that the property was joint Hindu family property. The property having not been partitioned, the property continued to be joint Hindu family coparcenary property. Learned senior counsel for the respondent in support of this contention referred to para Nos.322 and 323 of Hindu Law of Mulla which read as under:- “322. Partition by father during his lifetime. The father of a joint family has the power to divide the family property at any moment during his life, provided he gives his sons equal shares with himself, and if he does so, the RSA No.2961 of 1984 11 effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise of that power. However, a grandfather has no power to bring about a separation among his grandsons. Even if he allots shares, they remain joint. This right of a father at times described as his 'superior power' or 'peculiar power' or patria potestas was reiterated by the Supreme Court in Apporva Sbantialal V. IT Commissioner, Gujarat, after referring to a number of decisions on the subject and it was observed that it was recognized in ancient Hindu law and due effect was given to the same. It was also held that a father was entitled to effect a partial partition of joint family properties by virtues of his right as patria potestas. When under a partition by a father, unequal shares are given to the sons, the transaction will be binding on the sons as a family arrangement, if acquiesced in by them. If the partition is unequal and unfair, it is open to the sons if they are majors to repudiate the partition; but if they are minors, it is open to them to avoid it after they attain majority. The partition will be good, until it is set aside. The right of a minor is a personal right and cannot be exercised by other. In any case, it is not necessary for the minor to formally set aside the earlier partition before filing a suit for partition. If the sons find that the partition was not just and fair or unequal, it would thus be open to challenge. A RSA No.2961 of 1984 12 partition between a karta and his wife, who was not a coparcener, ignored the claim of the son, and was considered not a legal partition. 323. Whether father can effect partition by a will. No coparcener, not even the father, has a right to make a partition by will of joint family property among the various members of the family except with their consent.” Learned counsel for the respondent also contended that in order to hold, that there was partition between the parties, provisions of Order 20 Rule 18 of the Code of Civil Procedure were required to be met with. There is no evidence of partition, therefore, it can not be said that the property ceased to be joint Hindu family. Order 20 Rule 18 of the Code reads as under:- “18. Decree in suit for partition of property or separate possession of a share therein.-- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-- (I) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such RSA No.2961 of 1984 13 declaration and with, the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may,if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.” On consideration, I find force in the contentions raised by the learned counsel for the appellants. It may be noticed that Hon'ble Supreme Court, in the case of Hardeo Rai Vs. Sakuntala Devi & Ors. (supra), has been pleased to lay down, that when a coparcener takes definite share in the property, he becomes owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. After the division of shares in pursuance to the decree dated 31.3.1973, the plaintiff and defendant No.1 divided their specific share under a family settlement. The land, therefore, vested in the defendant/vendor as absolute owner, and the sale could not be challenged by treating it to be joint Hindu family property, on the ground that it was not for legal necessity. It is also well settled law that in order to succeed on custom, it is necessary to plead and prove the custom. In the absence of pleadings no reliance could be placed on the previous judgment to hold that the parties RSA No.2961 of 1984 14 were governed by the custom. Even otherwise, once it is held that the property, in the hands of defendant No.1 was his absolute property, in view of the coparceners having taking definite shares in the property even the custom could not bar the alienation of the property. The finding of the learned courts below is, therefore, perverse being contrary to settled law. Reading of the Articles 322 and 323, on which reliance was placed by the learned counsel appearing on behalf of the respondent would also show, that once shares of coparceners in joint family are defined, it amounts to partition, and the actual division of property by metes and bounds is not necessary. It could not, therefore, be said that the property continued to be joint Hindu family property, in the hands of defendant No.1, the sale of which could be challenged by the plaintiff/respondent. For the reasons stated, substantial questions of law referred to above, are answered in favour of the appellants. Consequently, this regular second appeal is allowed. The judgment and decree passed by the learned courts below is set aside, and the suit filed by the plaintiff/respondent is ordered to be dismissed, but with no order as to costs. 16.3.2010 (Vinod K.Sharma) rp Judge