R.S.A. No. 849 of 2003 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 849 of 2003 (O&M) Date of decision: 8.12.2008 Harpal Singh and others ..Appellants v. Karnail Singh and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Rajeshwar Singh, Advocate for the appellants. Mr. Kanwaljit Singh, Senior Advocate with Mr. Harmanjit Singh, Advocate for the respondents. .. Rajesh Bindal J. Defendants No.1 to 3 are in appeal before this Court against the judgment and decree of the learned court below, whereby that of the trial court was reversed. Briefly, the facts are that respondent No.1- plaintiff filed a suit for declaration claiming himself to be the owner in possession of 1/12th share measuring 1 kanal and 15 marlas out of 20 kanals and 9 marlas and a house shown in red colour in the site plan, being legal heir of Moti Ram deceased. The learned court below dismissed the suit. However, the first appellate court, accepted the contentions of respondent No.1- plaintiff and found him entitled to 1/7th share, being one of the seven members of HUF on the date of death of Moti Ram. Learned counsel for the appellant submitted that the learned court below has gone wrong in recording a finding that the property in dispute was joint Hindu family ancestral and co-parcenary property. In fact, since long all the parties/legal heirs or members of co-parcenary were having separate mess and living separately and the entire property had already been partitioned and accordingly, the decree passed by the learned court below is not in conformity with law. After hearing learned counsel for the parties, I do not find any merit in the submissions made. It is not in dispute that the parties to the dispute are Hindus and the property in dispute was inherited by Moti Ram from his father- Jai Mal. Being ancestral and co-parcenary property of joint Hindu family, the same R.S.A. No. 849 of 2003 [ 2] was looked after by Moti Ram as its karta. Respondent No.1- plaintiff became a member of co-parcenary at the time of birth in the family. When Moti Ram died, there were seven co-parceners and in terms thereof, respondent No.1- plaintiff was rightly to be entitled to 1/7th share . The plea raised by the appellants to the extent that the parties were having separate mess and business since long would necessarily mean that character of the property being ancestral and co-parcenary had been lost, was found to be misconceived on the basis of judgments of Hon'ble the Supreme Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and others, AIR 1986 SC 79 and Annasaheb Bapusaheb Patil and others v. Balwant alias Balasaheb Babusaheb Patil, AIR 1995 SC 895, wherein it was opined that merely because the parties had been living separately, it cannot be said that they have ceased to constitute a Joint Hindu Family and ancestral co-parcenary property had ceased to belong to Joint Hindu Family as jointness of the family would come to an end only after partition takes place and it was case of both the parties that family partition had never taken place. Keeping the aforesaid facts in view, in my opinion, the judgment and decree of the learned court below is strictly in conformity with law giving rise to no question of law, much less a substantial question of law. Accordingly, the present appeal is dismissed. (Rajesh Bindal) Judge 8.12.2008 mk