R.S.A. No. 4024 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4024 of 2007 (O&M) Date of decision: 25.03.2010 Mahender Singh and others ....Appellants versus Mani Ram and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Jitender Nara, Advocate, for the appellants. Mr. Vijay Pal Singh, Advocate, for the respondents. VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 19.10.2006, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellants, for declaration and possession by way of partition and permanent injunction as a consequential relief, stands dismissed. The plaintiffs claiming themselves to be the members of the Hindu Joint Family, on the basis of following pedigree, filed a suit for declaration, claiming therein that the suit properties were purchased from the joint income of the parties. Mani Ram Har Kaur (wife) Virender Kumar Mahender Singh Surender Singh Anil Kumar Property No.1 was purchased in the name of their mother i.e. R.S.A. No. 4024 of 2007 (O&M) -2- defendant No.3 vide sale deed Ex.P6, which was later on transferred by defendant No.3 to defendant No.1 through a civil Court decree dated 27.9.1993. Property No.2 was purchased vide sale deed Ex.P5 in the name of defendant No.1 and the property No.3 was purchased through three sale deeds Ex.P7, Ex.P8 and Ex.P9 in the names of plaintiffs and defendant No.2.. The case set up by the plaintiffs was, that they used to give their earnings to defendant No.1. They also pleaded that they along with defendants have performed the marriages of their four sisters. It was the case set up by the plaintiffs, that the expenses incurred on the marriages of their sisters were jointly spent as they were also working in the same shop, therefore, the earning of shop was that of Joint Hindu Family property. The plaintiffs were entitled to declaration as well as partition of the property. The suit was contested, wherein it was pleaded, that the parties are not living in Joint Hindu Family, nor the properties in dispute were purchased from the joint income of the parties. It was pleaded case of defendant No.1, that he was an income tax payee since 1956, and was running the business under the name and style of “Nand Lal Mani Ram” Timber and Stone Merchant at Gohana. Later on he shifted his business under the same name and style at Jhajjar. Property No.2 was self-acquired property of defendant No.1. Property No.1 was self-acquired property of defendant No.3. Property No.1 was self-acquired property of defendant No.3, which was later on transferred to defendant No.1, being an absolute owner. Properties No.1 and 2 were relinquished in favour of defendant R.S.A. No. 4024 of 2007 (O&M) -3- No.2, by release deed Ex.P10 dated 10.1.2000, and since then defendant No.2 was owner in possession of properties No.1 and 2. Property No.3 purchased vide sale deed Ex.P9 by defendant No.1 in the year 1974, and was in the name of plaintiffs and defendant No.3. At the time of purchase, all the plaintiffs were school going. The plaintiffs were said to be living separately from the defendants, having separate mess, income and expenditure. The marriage expenses of four daughters of defendant No.1 were incurred by defendant No.1, out of his own income. It was denied that any amount was spent by plaintiff No.2 in the treatment of defendant No.3. On merit the allegations made in plaint were disputed. The defendants also filed counter-claim seeking possession of the property. On the pleadings of the parties, learned trial Court framed the following issues: - “1. Whether the plaintiffs are joint owner in possession of the suit properties? OPP 2. Whether the release deed dated 10.1.2000 executed by the defendant No.1 in favour of the defendant No.2 is illegal, null and void? OPP 3. If above mentioned two issues are proved, whether the plaintiffs are entitled for separate possession by way of partition and injunction as prayed? OPP 4. Whether the plaintiffs have no locus-standi to file the present suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD 7. Whether the defendants are entitled for special costs under section 35 A CPC? OPD R.S.A. No. 4024 of 2007 (O&M) -4- 8. Whether the defendants are entitled for possession of disputed property by way of counter-claim? OPD 9. Relief.” On appreciation of evidence, the learned trial Court held, that the plaintiffs, were not the joint owners in possession of the suit property. The property was proved to have been purchased by the defendants, from their own sources, in which no contribution was made by the plaintiffs. The release deed dated 10.1.2000, executed by defendant No.1, in favour of defendant No.2, was held to be legal and valid. In view of the findings on issues No.1 and 2, issue No.3 was decided against plaintiffs, and they were held entitled to separate possession by way of partition. Their prayer of injunction was also declined, as it was claimed as consequential relief on basis of ownership Issues No.4 to 7 were not pressed, therefore, decided against the defendant/respondents. Issue No.8 was decided in favour of the defendant/respondents and it was held that they were entitled to possession of the property, which was in unauthorised possession of the plaintiff/appellants. Finding of fact recorded by the learned trial Court was affirmed by the learned lower appellate Court. Learned counsel for the appellants, contended that, this appeal raises the following substantial questions of law: - “1. Whether the income from the business of the father in which sons have worked and contributed right from their childhood can be said to be the exclusive R.S.A. No. 4024 of 2007 (O&M) -5- income of the father or the joint Hindu Family income especially when the family was a joint Hindu Family? 2. Whether the property purchased out of the income of the said business is the joint Hindu Family property? 3. Whether the plaintiffs who had been working at the shop of his father and contributing the said business can be deprived of their share in the income merely because they were studying at that time or were not having any independent source of income?” In support of the substantial questions of law, referred to above, the learned counsel for the appellants vehemently contended, that the learned Courts below have failed to notice, that the property was purchased by defendant No.1, from the earning of business in which the contribution of the plaintiff/appellants was proved, being sons of defendant No.1. The contention of the learned counsel for the appellants was, that as the income of the plaintiff/appellants was also given to the father, the property purchased from the funds was to be declared, as Joint Hindu Family property. It was also the contention of the learned counsel for the appellants, that the learned Courts below mis-read the evidence, to record a finding, that no contribution was made by the plaintiff/appellants because they were studying in school at that time and were not having any independent source of income. On the submissions referred to above, the learned counsel for the appellants, contended that the substantial questions of law deserved to be answered in favour of the appellants. The judgment and decree R.S.A. No. 4024 of 2007 (O&M) -6- passed by the learned Courts was required to be set aside, and the suit filed by the plaintiff/appellants was required to be decreed. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The property was claimed to be Joint Hindu Family property, in which the plaintiffs claimed share by birth, to seek partition, but no positive evidence was led to show, as to whether the property was purchased from the joint funds. In any case, after the abolition of Prohibition of Benami Transaction Act, it is not open to the plaintiff/appellants to claim share in the property, which was purchased exclusively in the name of defendant No.1, as absolute owner. The suit property was also not held to be ancestral Joint Hindu Family Property, as plaintiffs failed to prove that property was purchased from joint business or whether they contributed in business, which was proved to be run by their father exclusively. The substantial questions of law raised do not arise for consideration, and in any case deserve to be answered against the appellants, as it was not proved that property in dispute was Joint Hindu Family property. No merit. Dismissed. (Vinod K. Sharma) Judge March 25, 2010 R.S.