R.S.A No. 242 of 1981(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 242 of 1981(O&M) Date of decision : April 28, 2010 Hardip Singh, ...... Appellant (s) v. Sukhdev Singh and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Arun Jain, Sr. Advocate with Mr. Jaivir Chandel, Advocate for the appellant. Mr. M.L.Sarin, Sr. Advocate with with Mr. Nitin Sarin, Advocate for the respondents. *** 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 the Digest ? *** AJAY TEWARI, J The facts are that Assa Singh was the owner of the property in dispute. He had adopted the appellant as his son. By a registered gift deed dated 12.10.1965, he conveyed the property in favour of respondents No.1 to 4. This gift deed was challenged by the appellant and the said suit was decreed by holding that the transaction would not affect reversionary rights of the appellant since the land was held to be ancestral and coparcenary. Appeal against the said judgment was also dismissed on 15.11.1972. R.S.A No. 242 of 1981(O&M) 2 Subsequently, respondents No.1 to 4 re-conveyed the property in favour of Assa Singh by way of gift deed dated 26.11.1973. Shortly thereafter, i.e on 19.12.1973 Assa Singh conveyed the property in favour of respondents No.5 to 9 by way of registered sale deed. The appellant filed the present suit seeking possession of the land in dispute on the basis of reversionary decree in his favour and further challenged the re-conveyance in favour of Assa Singh by gift deed dated 26.11.1973 and the subsequent sale deed made by him dated 19.12.1973 on the ground that not only were they sham and bogus transactions but also that the sale was without consideration and legal necessity. The respondents denied these assertions. The learned trial Court held that the subsequent transfers were made only to defeat the rights of the appellant and also that the gift deed and the sale deed were both sham and bogus transactions. The trial Court also held that the sale deed executed by Assa Singh at the age of 90 selling his entire property was not for legal necessity. However, the trial Court held that the appellant and Assa Singh were governed by customary law and, thus, the appellant was not entitled to seek possession on the basis of reversionary decree after abrogation of custom in Punjab. Consequently, even while holding all the transactions to be in valid, the trial Court dismissed the suit. The appellant filed an appeal challenging the finding regarding custom. The lower appellate Court even while upsetting the finding regarding custom also reversed the finding on the nature of transactions recorded by the trial Court and thus dismissed the appeal. The following questions have been proposed :- “ 1) Whether in the facts and circumstances of the R.S.A No. 242 of 1981(O&M) 3 instant case once the alleged reconveyance deed and subsequent sale are shown to be sham transactions the approach of the learned appellate Court below in dismissing the suit filed by the plaintiff/appellant can be sustained in law ? 2) Whether in the facts and circumstances of the instant case once the appellate Court reversed the finding of the learned trial Court on the question of locus standi of the appellant to maintain the suit, the approach of the learned appellate Court in dismissing the appeal of the appellant by reversing the finding in favour of the appellant in the absence of any cross appeal or any cross objection can be sustained in law ? 3) Whether in view of the decision rendered by the Hon'ble Full Bench of this Court in Mihan Singh and another vs Inder Singh and another, (2008(3) RCR (Civil) 124 the suit filed by the appellant could be dismissed ? 4) Whether the alleged transfer in favour of the respondents is illegal, null and void being without consideration and legal necessity and only an attempt to defeat the rights of the appellant under the decree dated 26.3.1971 ? 5) Whether the approach of the learned Courts below in misreading and misconstruing the material documentary as well as oral evidence on record while R.S.A No. 242 of 1981(O&M) 4 dismissing the suit filed by the plaintiff/appellant can be sustained in law ? 6) Whether the judgment of the Courts below to the extent that they are against the appellant are not liable to be set aside being perverse and contrary to law ?” Questions No. 1, 4, 5 and 6 are related. With regard to these questions learned counsel for the appellant has vehemently attacked the finding of the learned Lower Appellate Court. To maintain this attack he has relied upon a decision of a Full Bench of this Court in Jagat Singh and others v. Teja Singh and others reported as 1970 PLR 569 herein the Hon'ble Full Bench held as follows: “ xx xx xx xx xx xx xx xx xx xx xx xx On the other hand, if the original alienation had been made by a male having only a limited right, he would have been able to convey to the alienee also a limited interest in the same manner if the alienation had been by a widow. If the alienee reconveys the interest originally conveyed to him back to the male limited owner, then such a man would not be able to take the benefit of the provisions of sub-section (1) of section 14 and he will remain only a limited owner of the property conveyed back to him. Thus it makes all the difference whether the person to whom the property is reconveyed, resulting in the annulment of the original alienation, is a male or a female. xx xx xx xx R.S.A No. 242 of 1981(O&M) 5 On the strength of this judgment learned counsel has argued that in the face of the decree in favour of the appellant(s)(as upheld by the judgment dated 15.11.1972) respondents(donees) from Assa Singh could not be put in a better position than Assa Singh himself and thus their reconveyance to him and his subsequent sale in their favour would be ex facie limited by the decree in their favour. As per learned counsel in this view of the matter the issue whether the sale deed Ex.D1 was for legal necessity and for consideration would recede into the background. Alternatively he has also argued that the findings of the leaned trial Court on the question of legal necessity and consideration were wrongly set aside by the learned Lower Appellate Court. Learned counsel for the appellant has, on the contrary, argued that the right of Assa Singh to transfer the property for legal necessity and valid consideration could not have been taken away by the appellant(s) even in the face of their alleged reversionary rights. He has also relied upon Section 6 of the Hindu Succession Act(as it then stood) under which in the matters of succession to coparcenary property recourse was to be had to the existing Hindu Law rather than this Act. As per learned counsel the right of Assa Singh to alienate the land for legal necessity and for valuable consideration existed even prior to coming into force of the Hindu Succession Act. Learned counsel has further argued that once the right of Assa Singh to alienate the property for legal necessity and for valuable consideration has been established, the issue had to turn on the question whether the sale deed Ex.D1 was executed for legal necessity and for valuable consideration. He has placed reliance upon paras 9, 10 and 13 of the judgment of the learned Lower Appellate Court wherein the learned R.S.A No. 242 of 1981(O&M) 6 Lower Appellate Court found that the sale was for the valuable consideration of Rs. 49,000/- and the sale deed mentioned that Assa Singh wanted to buy property in the City. Learned counsel has stated that these findings are pure findings of fact. On consideration I have found favour with the arguments of learned counsel for the respondent. Even in a best case scenario for the appellant it could not be denied that the limited powers of alienation enjoyed by Assa Singh would comprise the right to sell the property for legal necessity and consideration. These powers could have been exercised if Assa Singh had not executed the original gift deed. He could have sold his property for the legal necessity and for valuable consideration. Even if, as was held by the Full Bench in Teja Singh's case, on reconveyance a man did not get the benefit of sub section (1) of Section 14 yet that would only mean that he could not become an absolute owner like a widow and thus could not alienate the property even without any legal necessity. The said judgment nowhere goes on to hold that he would be divested even of his limited right of alienation for legal necessity and for valuable consideration. As regards the finding of fact regarding the existence of the legal necessity and the nature of the consideration-whether valuable or not - learned counsel has not been able to persuade me that the said findings are either based on no evidence or are based on such a perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. As regards questions No. (ii) and (iii) learned counsel for the respondents has relied upon Mihan and another v. Inder and and aother reported as 2008 (3) RCR(Civil) 124 . To challenge alienation by Assa Singh he has relied upon para 37 of the judgment wherein the Hon'ble Full Bench has held as R.S.A No. 242 of 1981(O&M) 7 follows:- “37. The second question has to be answered in two parts. In respect of State of Punjab it has to be held by virtue of Punjab Amendment Act, 1973 that there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on the ground that such alienation or appointment was contrary to custom. The aforementioned conclusion has to be drawn in view of elaborate discussion made above as well as in view of the judgment of Hon'ble Supreme court in the case of Darshan Singh (supra). However, in Punjab the property in the hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Succession Act.” In my opinion the Hon'ble Full Bench has itself mentioned that the inheritance of coparcenary property could not be governed by the Hindu Succession Act but by Sections 6 and 30 thereof. The learned Lower Appellate Court relied upon a judgment of an earlier Full Bench in the case of Pritam Singh v. The Assistant Collector of Estate Duty, Patiala reported as 1976 PLR 342 wherein it was held as follows:- “That it is undisputed that for purposes of Hindu Succession Act the Sikhs are Hindus and their personal law is Hindu Law. Consequently the personal law i.e. Hindu Law will apply to the Sikh Jats in matter of succession unless a custom at variance with the Hindu Law is alleged and proved. If the parties are R.S.A No. 242 of 1981(O&M) 8 governed by their personal law and the mere fact that there has been a departure from personal law in one respect it does not necessarily follow that the personal law has been abrogated.” It may be noticed that in the case of Mihan Singh (supra) the subsequent Full Bench of five Hon'ble Judges has not set aside the judgment in Pritam Singh's Case (supra). It was in view of this exposition of law that the learned Lower Appellate Court held that the appellant being an adopted son could challenge the sale on the ground that it was not for legal necessity or for valuable consideration. Even though questions No. (ii) and (iii) are decided in favour of the appellant yet since questions No(i), (iv) and (vi) have been answered against him, this appeal has to fail. The same is consequently dismissed. As the main appeal has since been decided, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) April 28 , 2010. JUDGE `kk/sunita'