RFA. No.1662 of 1982 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RFA. No.1662 of 1982 Date of Decision. 14.11.2011 Chanan Singh son of Kahan Singh (through LRs) ………Appellant Versus Balbir Kaur widow of Ranbir Singh and others …Respondents Present: None for the appellant. Mr. O.P. Goyal, Senior Advocate with Mr. Arun Sharma, Advocate for respondent Nos.1 to 3. Mr. Vikas Mohan Gupta, Advocate for respondent No.4. 2. R.F.A. No.2118 of 2003 Hardev Singh son of Puran Singh …………Appellant Versus Balbir Kaur widow of Ranbir Singh and others …Respondents Present: Mr. Kanwaljit Singh, Senior Advocate with Mr. Siddharth Gupta, Advocate For the appellant. Mr. Vijay Sharma, Advocate for respondent Nos.1 to 3. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes/No 2. To be referred to the Reporters or not ? Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No -.- K. KANNAN J. RFA. No.1662 of 1982 -2- 1. There is no representation for the appellant in RFA No.1662 of 1982. The decision in RFA No.1662 of 1982 has a direct bearing in RFA No.2118 of 2003, who is represented through counsel. I have heard learned counsel for the appellant in RFA No.2118 of 2003 and the learned counsel for the respondents and I have proceeded to dispose of the cases on merit in both the cases. 2. The appeals are against the orders passed by the Reference Court under Section 30 of the Land Acquisition Act. The contentions in both the appeals revolve on the entitlement of the claimants, who are the respondents before this Court, of the character of property, which was acquired by the State. It was contended by the appellant in RFA No.1662 of 1982 Chanan Singh that the property acquired was the exclusive property belonging to him and it was not a joint family property. The claimants were the widow and children of Ranbir Singh, who was the son of Chanan Singh. The property which was subject of acquisition had been admittedly purchased in the name of Chanan Singh at a time when Ranbir Singh was still a minor. Ranbir Singh was a Police Inspector and it was contended that the father and son were members of joint family and Ranbir Singh died when he was still in joint status on 06.11.1976. 3. It is too well an established principle that there is no presumption that joint family possesses joint family property and any person, who asserts the character of property as joint family property must prove the same. Chanan Singh had made the acquisitions at a time when his son Ranbir Singh was still a minor and he could not have, therefore, participated in any way to the RFA. No.1662 of 1982 -3- acquisition. The contentions by the claimants, who were the legal heirs of Ranbir Singh were (i) the family had admittedly ancestral property to an extent of 102 kanals in Khiwa Khurd, which had been leased by the plaintiff and the acquisitions had been from the income of the properties. The second contention was that Chanan Singh had himself admitted to the character of property as joint family property in wealth tax proceedings and the documents had been summoned and produced before the Court to establish that the father Chanan Singh had treated the property as joint family property. 4. Chanan Singh resisted the contention by urging that the statement before the Income Tax Authorities were only to reduce the tax liability and it was not intended to impress the character of property as joint family property. It was also contended that some of the sales, which Chanan Singh had made in relation to other properties had been the subject of challenge by the heirs of Ranbir Singh on the ground that Chanan Singh did not have a right to sale and they had a share in the property. The suit filed in RFA No.1662 of 1982 challenging the sales was dismissed and affirmed upto the decision of this Court. 5. It is contended on behalf of the purchaser from Chanan Singh, who is the appellant in RFA No.2118 of 2003 that the property cannot be contended to the joint family property especially when it was held in another proceeding that Chanan Singh’s sale could not be impeached. He would also contend that plea of joint family property was simply not available in a case where it was clearly an RFA. No.1662 of 1982 -4- admitted fact that the properties had been purchased in the year 1935 when Ranbir Singh was barely 6 years old. 6. If we must start from the fundamental premise that property had been purchased when Ranbir Singh was only aged 6 years and therefore, he could not have been contributed to any joint exertion, it has to be still noticed that as a point of law that even a separate property could be impressed with the character of joint family property. Voluminous evidence had been produced before the Reference Court on the basis of which the Court held that all the properties, including the properties, which had been acquired by the Government, had been shown in the wealth tax return as belonging to the family and the entire income of family had been shown to be assessed as HUF assessment. It will be in such a situation futile to even contend that it was so declared only for the purpose of tax evasion. Hindu law admits of change in character of property from separate property by mere expression of intention even without execution of any instrument. In Goli Eswariah v. CGT, (1970) 2 SCC 390 , at page 393 , the Supreme Court said, “…we must first examine what is the true scope of the doctrine of throwing into the “common stock” or “common hotchpot”. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bendeppa Desai v. Desai Mallappa that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquired RFA. No.1662 of 1982 -5- properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing to the common stock is a doctrine peculiar to the Mitakshra School of Hindu law.” 7. This intent is also accepted through the evidence on the side of the respondent by Lakha Singh, who was the son-in-law of Chanan Singh, who had been impleaded as a party after the death of Chanan Singh and after the death of his daughter Mohinder Kaur. Lakha Singh as RW-3 has stated as follows:- “Chanan Singh had four daughters and one son. His son Ranbir Singh died in the year 1976. Smt. Balbir Kaur and my wife Mohinder Kaur have also expired. I know about the properties being held by my father-in-law. He had 102 kanals of agricultural lands in village Khiwa Khurd in Mansa District. He was also having land in Kheri Gujran (acquired land) and Veer Kheri Gujran measuring about 100 bighas of land. All these properties were ancestral properties……. The land of RFA. No.1662 of 1982 -6- village Kheewapur was very fertile and Chanan Singh had handsome income from that land. The land of village Kheri Gujran and Veer Kheri was purchased by Chanan Singh from the income of the land situated in village Kheeva Khurd…..” 8. Though it can be stated that Lakha Singh, who is the son-in- law of Chanan Singh could not have been present at the time of actual time of purchase of the property, which was acquired in the year 1935, still his evidence that the property, which Chanan Singh passed as joint family properties were income yielding and subsequent properties, which had been purchased, were out of such income, definitely constitute a formidable admission, which the claimants were entitled to rely on. With such damning evidence, as is brought on record, it is impossible for Chanan Singh or his representatives to contend that the property was the absolute property of Chanan Singh and the legal heirs of Ranbir Singh had no share in the property. The findings rendered by the Reference Court are affirmed and I find no reason to differ of the said finding. Both the appeals, filed by Chanan Singh, which is now prosecuted through his legal heirs and the purchaser in RFA No.2118 of 2003, are dismissed. (K. KANNAN) JUDGE November 14, 2011 Pankaj*