Regular Second Appeal No. 3755 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3755 of 2006 Date of decision : May 06, 2010 Bimal Kishore ....Appellant versus Jugal Kishore and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sanjiv Gupta, Advocate, for the appellant Mr. BS Mittal, Advocate, for respondent no. 1 Mr. Baljinder Singh, Advocate, for respondents no. 2 to 5 L.N. Mittal, J. (Oral) This is second appeal by plaintiff Bimal Kishore who has been unsuccessful in both the courts below. Plaintiff filed suit against his mother Ram Kumari (since deceased and represented by respondents as her legal representatives). The plaintiff alleged that his father Banwari Lal was owner in possession of the suit house. Banwari Lal died on 26.3.1991 and thereupon plaintiff, his five brothers and defendant inherited 1/7th share each in the suit house being his only legal heirs. However, the defendant took advantage of burning of Municipal records during anti-Mandal agitation and got her own name entered in Municipal records as sole owner of the said house. The plaintiff Regular Second Appeal No. 3755 of 2006 -2- accordingly sought declaration that he is owner in possession of 1/7th share of the suit house and the Municipal entry depicting defendant as sole owner of the suit house is result of fraud and misrepresentation and liable to be corrected. The plaintiff also sought relief of joint possession of 1/7th share of the suit house. Defendant Ram Kumari, inter alia, pleaded that the plaintiff separated from the family under family settlement during life time of his father Banwari Lal. The plaintiff received Rs 22,000/- from Banwari Lal and relinquished his share in favour of other members of Joint Hindu Family vide relinquishment deed dated 6.10.1979 and therefore, the plaintiff did not inherit any share in the suit house. Respondents no. 2 to 5 herein also pleaded that the plaintiff did not inherit any share in the properties left by Banwari Lal. They also pleaded that their mother Ram Kumari original defendant executed Will dated 24.7.1991 registered on 31.7.1991 bequeathing the suit house and other properties in favour of respondents no. 2 to 5 herein and thus, only they are owners in possession of the suit property. Respondent no. 1 herein also took a similar stand as that of original defendant. Learned Civil Judge (Junior Division), Sirsa vide judgment and decree dated 23.1.2004 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 13.12.2005. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. After hearing learned counsel for the parties, I find that Regular Second Appeal No. 3755 of 2006 -3- following substantial question of law arises for determination in the instant second appeal :- “Whether the plaintiff has inherited 1/7th share in suit house from his father Banwari Lal in spite of alleged relinquishment deed dated 6.10.1979 executed by the plaintiff ? Learned counsel for the appellant vehemently contended that as per relinquishment deed, the plaintiff received Rs 22,000/- and relinquished his share in the Joint Hindu property but the suit house was self acquired property of Banwari Lal and therefore, on his death, being one of legal heirs of Banwari Lal, plaintiff inherited 1/7th share of the suit house. It was also contended that since relinquishment deed was executed for consideration of Rs 22,000/-, the same being unregistered cannot be taken into consideration as it required compulsory registration. On the other hand, learned counsel for respondents no. 2 to 5 contended that by executing relinquishment deed, the plaintiff became disentitled to any share of the property of his father Banwari Lal. I have carefully considered the rival contentions. The relinquishment deed is unregistered although it was executed for consideration of Rs 22,000/-. Consequently, it required compulsory registration. Being unregistered, the said deed cannot have the effect of relinquishment of share by plaintiff in immovable property. In addition to the aforesaid, relinquishment deed depicts that the plaintiff separated from the Joint Hindu Family constituted by defendant and his five brothers with their father. However, suit house was not said to be Joint Hindu Family property but was individual property of plaintiff's father Banwari Lal. Consequently, even after separation from the Joint Regular Second Appeal No. 3755 of 2006 -4- Hindu Family, the plaintiff as son and legal heir of his father Banwari Lal was entitled to inherit 1/7th share in his individual property. The plaintiff has claimed said 1/7th share only in the suit house. The plaintiff is certainly entitled to the same. Finding of the courts below to the contrary is, therefore, unsustainable. Substantial question of law framed herein above is answered accordingly in favour of the appellant. Learned counsel for respondents no. 2 to 5 contended that suit for mere declaration is not maintainable as the plaintiff was not found in possession of any part of the suit house. This contention has no merit because the plaintiff has also claimed consequential relief of joint possession of 1/7th share in the suit house, in addition to relief of declaration and correction of Municipal record. For the reasons recorded herein above, the instant second appeal is allowed and judgments and decrees of both the courts below are set aside and suit of the plaintiff is decreed declaring that he is owner of 1/7th share in the suit house and entry in Municipal record to the contrary is liable to be corrected and decree for joint possession of 1/7th share in the suit house is also passed in favour of the plaintiff. Parties are however left to suffer their respective costs throughout. ( L.N. Mittal ) May 06, 2010 Judge 'dalbir'