R.S.A. No. 1893 of 1988 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1893 of 1988 Date of Decision : 1.2.2010 Smt. Dhai Bai & others .......... Appellants Versus Chander Parkash Kataria & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Anil Kshetarpal, Advocate for the appellants. Mr. Amit Jain, Advocate for the respondent No.1. **** VINOD K. SHARMA, J. (ORAL) This is defendants' regular second appeal against the judgment and decree dated 3.6.1988, passed by the learned Addl. District Judge, Gurgaon. The plaintiff / respondent No.1 filed a suit for declaration with a consequential relief of possession by way of partition, on the pleadings that the parties to the suit except defendants No. 10 and 11 were related to each other, as per the pedigree table reproduced in para 1 of the plaint. The case of the plaintiff / respondents was, that the parties constituted joint Hindu family in the name and style of Mam Chand son of Ram Sukh in which the plaintiff was one of the co-parceners. It was the pleaded case of the plaintiff / respondents, that all the members of the family were joint in mess and were living together and were R.S.A. No. 1893 of 1988 2 purchasing properties out of joint Hindu family funds in the name of Mam Chand being the 'Karta”and 'Manager” of the joint Hindu family. It was the case of the plaintiff / respondents, that the suit properties mentioned in para 3(a), 3(b) and 3(c) of the plaint were also purchased out of joint Hindu family fund, and were being used as the property of joint Hindu family in as much as the properties after their purchase were thrown in the common pool of the joint Hindu family. The properties detailed in para 3(a) and 3(b) were purchased in the name of Mam Chand, whereas the property described in para No. 3(c) was purchased in the name of Smt. Dhai Bai, defendant No.1, though, purchased out of the joint family funds and not from her own resources. The plaintiff / respondent, thus, claimed that he had share in the suit property to the extent detailed in para no.5 of the plaint, wherein his share was 1/3rd. It was further alleged by the plaintiff that the property detailed in para 3(a) was sold by defendants No. 1, 2, 3 and 5 to 7 to defendant No.10 for consideration of Rs. 5,000/- (Rupees five thousand only) vide sale deed executed on 16.1.1973, and the property described in para No. 3(b) was sold by defendants No. 1 to 3 and defendant Nos. 7 to 9 to defendant No. 11 for consideration of Rs. 11,000/- (Rupees eleven thousand only), vide sale deed dated 16.2.1973, though, the vendor / defendants had no right to sell the share of property beyond their own 2/3rd share. Thus, sale qua 1/3rd share was claimed to be illegal and unlawful. It was claimed, that the plaintiff was not bound by the said sales. The plaintiff, therefore, claimed a decree for declaration to the effect, that the sale deeds dated 16.1.1973 and 16.2.1973 were illegal, unlawful and not binding on the plaintiff, with a consequential relief of decree for R.S.A. No. 1893 of 1988 3 partition of 1/3rd share of the plaintiff, with further decree of possession with respect to said share. Defendants No. 1 to 9 filed a joint written statement, wherein it was pleaded, that Mangal Chand, the father of the plaintiff was given in adoption by Mam Chand, father of Mangal Chand to one Harphool, i.e. the brother of Mam Chand and after the said adoption, Mangal Chand or his son Chander Parkash, plaintiff, ceased to be member of the family of Mam Chand. It was denied, that there was a joint Hindu family in the name and style of Mam Chand s/o Ram Sukh or that the plaintiff was a member or coparcener of such joint Hindu family. It was also pleaded by the defendants, that none of the suit properties were joint Hindu family properties, nor these were purchased from the joint Hindu family funds. The case of the defendant / appellants was, that all the properties were purchased by the persons in whose favour the sale deeds were registered out of his or her own funds. The properties were, therefore, self acquired properties of the purchasers namely Mam Chand and Smt. Dhai Bai. It was denied, that the property purchased in the name of Dhai Bai was purchased out of the joint Hindu family funds. The share of the plaintiff / respondent was denied. It was the case of the defendants, that all funds spent for construction were spent by Smt. Dhai Bai from her own resources. The plaintiff was allowed to live as their licencee in the house bearing E.P. No. 185/2, which was purchased by Mam Chand from the rehabilitation department. The defendants, therefore, asserted their right to sell the suit properties and pleaded, that the sales were rightly made by them. It was denied, that the plaintiff / respondent had any right to claim partition of the suit properties. Certain preliminary objections were also R.S.A. No. 1893 of 1988 4 raised. Defendants No.10 and 11 filed separate written statement, by taking similar stands as taken by other defendants, and claimed to be bona fide purchaser for value without notice of title of the plaintiff. Plea of estoppel was also raised. It was also pleaded that the plaintiff had been watching without raising any objection against the construction raised on the property, wherein they spent Rs. 70,000/- (Rupees seventeen thousand only). As already observed above, other preliminary objections regarding locus standi etc. were also taken. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether there constitutes a joint Hindu family in the name and style of Mam Chand s/o Ram Sukh ?OPP 2. If issue No.1 proved whether the plaintiff is co-parcener of the joint Hindu family ? If so, to what share ?OPP 3. Whether the property as mentioned in para No.3 of the plaint were purchased out of joint Hindu family and are joint Hindu family property ?OPP 4. Whether the plaintiff is in joint possession of property in suit ?OPP 5. Whether the sale made by defendant No.1 to 3 and 5 to 7 in favour of defendant No. 10 and of properties mentioned in 3B by defendant No. 1 to 3 and 7 to 9 in favour of R.S.A. No. 1893 of 1988 5 defendant No.11 were illegal and unlawful and are not binding on the plaintiff ?OPP 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit is barred by limitation?OPD 8. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD 9. Whether the plaintiff has no locus standi to file the present suit and has no cause of action to file the present suit?OPD 10. Whether the plaintiff is estopped by his act and conduct and acquiescence from filing the suit ?OPD 11. Relief.” Issues No. 1 to 3 were taken up together and on appreciation of evidence, the learned trial Court decided issues No.1 & 2 in favour of the plaintiff, whereas issue No.3 was decided against the plaintiff. Thus, it was held, that there existed a joint Hindu family in the name and style of Mam Chand s/o Ram Sukh; and that the plaintiff was co-parcener of the joint Hindu family. However, it was held that the properties mentioned in Para No.3 of the plaint was not purchased out of the joint Hindu family funds and therefore was not a joint Hindu family property. R.S.A. No. 1893 of 1988 6 On issue No.4, it was held that the plaintiff / respondent was not in joint possession of the suit property. Whereas, on issue No.5, it was held that as the plaintiff had failed to prove his right in the suit property, the sales made in favour of defendants No. 10 & 11 could not be said to be illegal and unlawful. On issue No.6, it was held that mere suit for declaration was not maintainable on behalf of the plaintiff / respondent. On issue No.7, it was held that in pursuance to the sales in favour of defendants No. 10 & 11 made on 16.1.1973 & 16.2.1973, the possession of the property sold was also delivered at the time of sale, as plaintiff / respondent had admitted, that defendants Nos,10 & 11 i.e. vendees were in possession of the suit property, therefore, the suit was held to be barred by limitation. Issue No.8, was decided against the defendants for want of evidence. In view of findings recorded on issues No. 1 to 5, issue No. 9 was decided against the plaintiff / respondent, holding that he had no locus standi to file this suit. On issues No.10 & 11, it was held that the plaintiff / respondent had admitted, that the suit property was sold to the vendees / defendants in the form of plots on which the construction was raised. There was admission by the plaintiff / respondent that he never stopped the vendees from raising construction, nor had issued any notice. He further admitted that a sum of Rs. 70,000/- (Rupees seventy thousand only) was spent on construction, therefore, it was held that the plaintiff / respondent was estopped by his conduct from filing the suit. R.S.A. No. 1893 of 1988 7 The plaintiff / respondent further admitted the fact, that the Will made in favour of Dhai Bai, was not challenged by the plaintiff, and he had also not objected to the sale of the property to defendants No. 10 & 11. Therefore, defendants No.10 & 11 were held to be bona fide purchaser for consideration. In view of the findings recorded above, the suit was dismissed. The plaintiff / respondent preferred an appeal. In appeal, the learned lower appellate Court came to the conclusion that the adoption of the plaintiff was not proved, thereby the finding on issues No.1 & 2 that the plaintiff / respondent was member of the joint Hindu family was upheld. The learned lower appellate Court by placing reliance on Article 220 of the Hindu Law by Mulla, recorded a finding that joint family property can be divided into two classes i.e. ancestral property and separate property of coparceners thrown into the common coparcenary stock. The property which is acquired by the member of the joint family with the aid of ancestral property is joint family property. However, the property acquired by any member of joint family without the aid of ancestral property may or may not be joint family property. The joint family or coparcenary property devolves on the male issues, who acquire an interest by birth. The learned lower appellate Court held, that the suit properties were admittedly not the ancestral property. As the properties in para Nos. 3 (a) & 3(b) were purchased by Mam Chand, whereas property in para 3(c) was purchased by Smt. Dhai Bai. The learned lower appellate Court, however, held that the properties in para No.3(a) & 3(b) were purchased after the death of Mangal Chand, therefore, the plaintiff /respondent had not R.S.A. No. 1893 of 1988 8 acquired the right in these properties by birth. Thus, the properties mentioned in para Nos. 3(a) & 3(b) were not held to be ancestral properties, being self acquired properties of Mam Chand. The learned lower appellate Court, came to the conclusion that Mam Chand had not executed any Will, therefore, property was to be inherited by succession, and by applying the law of Succession, the learned lower appellate Court held, that the plaintiff / respondent had right of inheritance to 1/6th share. The learned lower appellate Court further held, that Smt. Dhai Bai could not prove, that the property in her name were purchased by her own funds as the amount was given by Mam Chand, therefore, she was held not to be absolute owner of the property. The property in para No. 3(c) was also said to devolve on the successor on the basis of succession. It was held that the plaintiff / respondent was entitled to 1/6th share in this property. The plaintiff / respondent was, therefore, held entitled to 1/6th share out of the money for which the properties mentioned in para Nos. 3(a) and 3(b) were sold to defendants No. 10 & 11, as they were held to be bona fide purchaser. It was ordered that the preliminary decree for partition be prepared. Mr. Anil Kshetarpal, learned counsel appearing on behalf of the appellants contended that this appeal raises the following substantial questions of law for consideration :- 1. Whether the Appellate Court could make out a new case which is neither pleaded, nor covered by the issues framed, nor covered by the evidence led by the parties? R.S.A. No. 1893 of 1988 9 2. Whether the learned lower appellate Court could set aside the judgment and decree without dealing with the reasons given by the learned trial Court? In support of the first substantial question of law Mr. Anil Kshetarpal, learned counsel appearing on behalf of the appellants, referred to the plaint to contend, that the suit filed by the plaintiff / respondent was that the plaintiff was a member of the joint Hindu family, and being coparcener was entitled to share in the property as a coparcener, and the property was in joint possession of all the members of the family. It was nowhere pleaded case of the plaintiff / respondent, that the property was to be inherited by way of succession under the Hindu Succession Act. No issue was framed qua this. The learned lower appellate Court by recording a finding, that the property was not joint Hindu coparcenary property wrongly went on to hold that the plaintiff was entitled to inherit the property under the Hindu Succession Act, and that he was entitled to share out of the sale consideration by holding, the vendees to be bona fide purchaser for consideration. The contention of the learned counsel for the appellants was that, this has resulted in prejudice to the rights of the appellants, as no opportunity was given to contest this plea. The learned counsel for the appellants also contended, that under Issue No.10-A a specific finding was recorded that Mam Chand had executed a Will in favour of Smt. Dhai Bai. This finding was recorded in view of the admission by the plaintiff / respondent that Mam Chand had died in 1964 had made a Will in favour of Smt. Dhai Bai, which was not challenged by him. R.S.A. No. 1893 of 1988 10 The suit was filed in the year 1982 by claiming himself to be the coparcener and in joint possession, though Mam Chand had died in 1964 i.e. after 18 years. In view of the admission by plaintiff / respondent, it could not be said that the property was to be inherited by Succession by treating Mam Chand, to have died intestate as held by the learned lower appellate Court. The contention of the learned counsel for the appellants was that it was in view of admission by the plaintiff / respondent, that he had not claimed the property by Succession from Mam Chand, by invoking the provisions of Hindu Succession Act. It was,therefore, not open to the learned lower appellate Court to make out a new case by ignoring the admission of the plaintiff / respondent. On consideration, I find force in the contentions of the learned counsel for the appellant. The reading of the plaint would show, that the plaintiff / respondent, had not claimed inheritance by way of succession in view of the admission by him, that Mam Chand had executed a Will in favour of Smt. Dhai Bai. It was under the said Will, that she had inherited the property without any objection from the plaintiff / respondent. In view of the admitted facts and the evidence led, it was not open to the learned lower appellate Court to make out a new case on which the parties did not go to trial. The first substantial question of law is answered in favour of the appellants. The second substantial question of law also deserves to be answered in favour of the appellants. It may be noticed that under Issue No.7, a positive finding was recorded, that the suit was barred by limitation R.S.A. No. 1893 of 1988 11 as also on the principle of estoppel. The learned trial Court had further held on the basis of the evidence, that the plaintiff was estopped by his act, conduct and acquiescence, from filing the present suit. The learned lower appellate Court did not to reverse the findings on these issues. It was for the plaintiff / respondent No.1 to have challenged the findings on these issues, in order to succeed in the case. There being no challenge before the learned lower appellate Court, the decree passed by the learned trial Court could not be reversed. It is held that the decree passed by the learned lower appellate Court cannot be sustained, as the learned lower appellate Court has failed to deal with all the issues, decided by the learned trial Court, especially holding that the suit filed by the plaintiff / respondent was barred by limitation. The second substantial question of law is also answered in favour of the appellants and against the respondent No.1. As a result of finding recorded above, this appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside, and that of the learned trial Court is restored, but with no order as to costs. 1.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE