RSA No. 3633 of 2006 (O& M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: August 20, 2009 1. RSA No. 3633 of 2006 (O&M) Daya and others vs. Ajit and others 2. RSA No. 309 of 2009 Smt. Sushila and another vs. Ajit and others Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Kulbhushan Sharma, Advocate for the appellants in RSA No. 3633 of 2006. Mr.Jai Vir Yadav, Advocate for the appellant in RSA No. 309 of 2009. Mr.Ashok Aggarwal, Senior Advocate with Mr.Mukul Aggarwal, Advocate for respondents No. 1 to 4. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. RSA No. 3633 of 2006 has been filed against the judgments of the Courts below dismissing the suit filed by Umrawali and her daughters challenging the decree suffered by Deena (husband of Umrawali and brother of the remaining two plaintiffs) in favour of Kalu, the son of Umrawali and Dina. In the connected RSA No. 309of 2009 the daughters of aforesaid Kalu have challenged the decrees suffered by Kalu in favour of RSA No. 3633 of 2006 (O& M) 2 Ajit and Baljeet, two sons of a third daughter. Since the issues and the property involved overlap in both the cases, they are being disposed of by a common judgment. Coming first to the decree suffered by Deena it may be noticed that by that decree the entire landed property owned by Deena was transferred to Kalu by way of consent decree. The original case of the plaintiffs was based on the following three major averments:- i) The decree suffered by Deena was obtained as a result of fraud; ii)Deena had no right to suffer the decree and iii)After the death of Deena the parties had become owners of his property in equal shares viz. ¼ each. To these cursory averments equally cursory written statement was filed to the effect that the decree did not suffer from being vitiated by fraud; that Deena was competent to suffer the decree and that the plaintiffs did not succeed to 1/4th share each. On the contrary the evidence led by the respondents was that the land was ancestral in the hands of Deena. Learned counsel has proposed as many as nine questions which are as follows:- i) Whether the impugned judgments and decrees passed by the Courts below being illegal, perverse and outcome of misreading of evidence deserve to beset aside? ii)Whether it is necessary to mention the law point and evidence in the plaint? iii)Whether the plaintiff can be non-suited by not mentioning the law laid down in 315 of Hindu Law, claiming themselves to be owner of the suit property? iv)Whether the statutory right of the plaintiffs wife and daughters of Deena under the Hindu Law can be kept in abeyance or deprived of by the Manager by giving the entire RSA No. 3633 of 2006 (O& M) 3 land in oral partition to his son Kalu? v) Whether in case of an oral partition, the plaintiffs being widow and daughters of Deena are also entitled to the share of the suit property in question, equivalent to the share of sons? vi)Whether Deena was competent to transfer the shares of the plaintiffs wife and daughters, in favour of his son Kalu in an oral partition and further suffering the decree in favour of Kalu? vii)Whether Kalu was competent to suffer the decree in favour of defendants No. 1 and 2 when he himself could not derive the title qua the entire land? viii)Whether the plaintiffs wife and sister not a party to the alleged family settlement/oral partition nor participated therein, can be bound by the same and the impugned decree based thereon? ix)Whether the plaintiffs who were not impleaded in the suit were bound by the decree in question? However, learned counsel has argued only question No. (iii). In his regard he has argued that in the plaint filed by Kalu it was mentioned that he had become owner of the property in dispute by way of oral partition. On the strength of that learned counsel has argued that as per para 315 of Hindu Law by Mulla a wife though cannot ask for partition yet is entitled to the same share as a son in the event of partition. It is his argument that since in the plaint filed by Kalu it was mentioned that there had been an oral partition thus she being wife would have been entitled to 1/3rd share in view of the findings given by the Courts below that the property was ancestral in the hands of Dina. In my opinion the words used viz. oral partition are completely unmeaning in the context of what happened. As noticed above the entire property of Deena was transferred to Kalu. Had there been even one Kanal RSA No. 3633 of 2006 (O& M) 4 left for Deena it could have been said that some partition had taken place In effect what happened was a relinquishment of his entire share by Deena in favour of Kalu. Once it is held that the words used in the plaint were unmeaning the whole case of the appellants would be displaced. In the connected appeal learned counsel has proposed the following questions:- i) Whether the collusive decrees Ex.P3 and Ex.P4 require compulsory registration as per Section 17(2) of the Indian Registration Act as there was no pre-existing right in favour of Baljeet and Ajit? ii)Whether the impugned judgment/decrees Ex.P3 and Ex.P4 suffered by Kalu Ram depriving the appellant/plaintiffs of their rights have any binding effect on the rights of the appellants/plaintiffs? Apart from these questions learned counsel has further argued that even in the plaint filed by Baljeet and Ajit against Kalu it was mentioned that the right had inhered in the said Baljeet owing to a partition which had taken place 1/1 ½ year earlier. That plaint was filed on 17.5.96. In fact, Baljit was born only on 31.1.96 and thus no decree could have been suffered in his favour. With regard to the first two questions in case it is held that the decree suffered by Deenawas valid then it must be held that the property in the hands of Kalu became self acquired property and thus these two questions would not arise. With regard to the third point argued by learned counsel also, in my opinion, the essential fact is whether Kalu was competent to transfer the land. Thus the fact that in the plaint it was loosely mentioned that an oral partition had taken place would not render the decree suffered by Kalu to be null and void. In this view of the matter these two appeals as well as stay RSA No. 3633 of 2006 (O& M) 5 application in RSA No. 3633 of 2006 are dismissed. No costs. (AJAY TEWARI) JUDGE August 20, 2009 sunita