RSA No.488 of 1984 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.488 of 1984 Date of Decision:07.02.2011 Sh. Sohan Singh . . .Appellant Versus Shri Bishan Singh (died) through his LRs . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Sarjit Singh, Sr. Advocate with Ms.Anjali Khosla, Advocate, for the appellant. Mr.D.S. Bali, Sr. Advocate with Ms.Neha Mann, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. By this common judgment I shall be disposing of RSA No.488 of 1984 and Cross Objection No.12-C of 2010, which have arisen from the judgment and decree of the learned Appellate Court. The substantial question of law raised by learned counsel for the appellant is “as to whether the property acquired by male Hindu by inheritance becomes his self acquired property if he has no male lineal decedents and can be disposed of by him even if it is in joint possession with his brother”? The defendant is in second appeal against the judgment and decree of the First Appellate Court by which judgment and decree of the learned trial Court has been reversed and the suit of the plaintiff has been partly decreed. In order to appreciate the controversy, pedigree table reproduced in para No. 3 of the grounds of appeal by the defendant/appellant requires special mention: Mahna Sabhu Chajju (died wifeless and issueless) Ram Kishan Bishan Singh (died wifeless and issueless) (Plaintiff) Sohan Singh (Defendant) RSA No.488 of 1984 - 2 - The plaintiff filed a suit for declaration that he is the owner of the land measuring 75 Kanals 2 Marlas situated in Village Budhipind, Tehsil Dasuya and also prayed for permanent injunction to restrain the defendant from interfering in his possession. It is alleged that plaintiff and his brother Ram Kishan constituted a Joint Hindu Family and the property in dispute was Joint Hindu family coparcenary property. Ram Kishan died on 13.12.1979 and the plaintiff had become owner of the entire Joint Hindu family coparcenary property by survivorship. Further, the defendant, who is a real son of the plaintiff, alleges that he had purchased the suit land from Ram Kishan vide sale deed dated 14.11.1975, which was a sham transaction and without consideration. Ram Kishan had no authority to transfer coparcenary property without legal necessity. In the written statement, it was alleged that plaintiff is not at all in possession of any part of land measuring 14 Kanals 0 Marla comprising in Khasra No.2003/1369, 2004/1370, 2007/1371, 2008/1373, 2010/1374. It was also alleged that Ram Kishan was the absolute exclusive owner of 14 Kanals 0 Marla and he was not a coparcener with the plaintiff, who had executed the sale deed dated 14.11.1975 in his favour. On the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the suit for declaration and permanent injunction is not maintainable? OPD 2. Whether sale deed dated 14.11.1975 is for legal necessity and consideration OPP. 3. Whether plaintiff is in possession and is entitled to injunction prayed for? OPP 4. Whether Ram Kishan separated from the plaintiff and parties did not form Joint Hindu Family? OPD 4A Whether the land in the hands of Ram Kishan was the Joint Hindu Family property / coparcenary property? OPP 5. Relief. The learned trial Court dismissed the suit of the plaintiff on the ground that there was no Joint Hindu Family coparcenary property between Ram Kishan and the plaintiff. However, it was found as a fact that land measuring 51 Kanals 16 Marlas was ancestral. Chajju (uncle of Ram Kishan) willed away 51 Kanals 16 Marlas of land in favour of Ram Kishan and plaintiff (Bishan Singh) in equal shares RSA No.488 of 1984 - 3 - by way of Will Ex.DW5/C. After having become the owner by virtue of Will of the half share of the land of Chajju, Ram Kishan had sold it to defendant by way of sale deed dated 14.11.1975. The learned Appellate Court, however, found that land measuring 51 Kanals 16 Marlas was ancestral Joint Hindu Family coparcenary property in the hands of Ram Kishan, who could not have sold it to Sohan Singh by virtue of sale deed Ex.DW5/A but so far as sale deed relates to remaining land is concerned that was found to be good enough and as such the appeal was partly allowed and suit of the plaintiff was partly decreed for declaration and permanent injunction restraining the defendant from interfering the land measuring 51 Kanals 16 Marlas. Opening his arguments, learned counsel for the appellant has submitted that the dispute raised in the present case is squarely covered by the recent decision of this Court in the case of “Hardial Singh Vs. Nahar Singh (Deceased) through LRs and others” 2010(3) PLR 466, whereas learned counsel for the respondent has submitted that since the property in dispute remained joint, therefore, it could not have been transferred by Ram Kishan until and unless it was partitioned. In this regard, he has relied upon judgments of the Supreme Court in the case of “Puttrangamma and others Vs. M.S. Ranganna and others” AIR 1968 SC 1018, “Mudigowda Gowdappa Sankh and others Vs. Ramchandra Revgowda Sankh (dead) by his legal representatives and another” AIR 1969 Supreme Court 1076, and “Kalyani (dead) by LRs. Vs. Narayanan and others” AIR 1980 Supreme Court 1173. I have heard both the learned counsel for the parties and have perused the record with their assistance. Insofar as the facts of this case are concerned, the dispute is with regard to the property, which has devolved upon Ram Kishan by way of a Will (Ex.DW5/C) executed by Chajju, who had died without wife and issue. Ram Kishan in turn was also without wife and issue, who had sold it to defendant vide sale deed Ex.DW5/A. Plaintiff being the brother of Ram Kishan has brought the suit claiming the property in the hands of Ram Kishan to be Joint Hindu Family coparcenary property. The primary question is thus, as to whether the plaintiff had any locus standi to file the suit if the property in the hands of his brother is only joint property and not a coparcenary joint Hindu family property. In the case of Hardial Singh (Supra) relied upon by the learned counsel for the appellant, the dispute was with regard to a decree having been suffered by Inder Singh in favour of Hardial Singh, which was challenged by the brother of Inder Singh namely Nahar RSA No.488 of 1984 - 4 - Singh on the ground that it was a joint Hindu coparcenary property and Inder Singh was not competent to transfer the same in favour of Hardial Singh without legal necessity. The said suit of the plaintiff was decreed and the defendant’s appeal was partly accepted on the ground that half of the property was ancestral. The questions of law in that case were (i) whether the plaintiff being brother could challenge the alienation made by defendant No.2 qua his share of land by claiming it to be ancestral coparcenary property? (ii) whether the property in the hands of Inder Singh son of Pali alias Nika Mal was to be treated to be his self acquired property as he had no male issue being unmarried nor Nahar Singh had any issue? This Court considered para 221 of Hindu Law by Mulla, which reads as under: - “Property inherited from paternal ancestor.-- All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. Thus, if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property, as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. However, if he has son's sons' sons or sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and A cannot claim to hold the property as absolute owner nor can he deal with the property as he likes. The position has been materially affected after Section 8 of the Hindu Succession Act 1956, came into force. A father cannot change the character of the joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son RSA No.488 of 1984 - 5 - as if it was the self-acquired property of the father. In the hands of the son, the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship, as joint family property. However, an affectionate gift of his self- acquired property by a father is not ipso facto ancestral property in the hands of the son. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons, and son's son's sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property. the result is that if a person inheriting property from another one of his three immediate paternal ancestors has no son, son's son, or son's son's son, the property is his absolute property, and no relations of his are entitled to any interest in it in his lifetime. Property inherited by a Hindu male from his father, father's father, or father's father's father, is ancestral as regards his male issue, even though it was inherited by him after the death of a life-tenant. Thus, if a Hindu settles the income of his property on his wife for her life, and the property after her death passes to his son as his heir, it is ancestral property in the hands of the son as regards the male issue of such son. Illustrations (a) xx xx (b) xx xx (c) A inherits certain properties from his father. A has no son, grandson, or great-grandson, but he has a brother ( or a paternal uncle). The brother (or uncle does not take any interest in the property by birth. As regards the brother or uncle, the property inherited by A is his separate property.” RSA No.488 of 1984 - 6 - On the basis of the aforesaid, it was held that the property held by the brothers could be said to be only joint property but not joint Hindu coparcenary property in which the other brother/plaintiff could claim any interest by birth. This Court had relied upon the judgment of the Supreme Court in the case of “Smt. Dipo Vs. Wassan Singh and others” AIR 1983 SC 846 and Division Bench of this Court in the case of “Smt. Asha Rani Vs. The Controller of Estate Duty” 1997(4) RCR (Civil) 210, wherein it was held that the last male holder/sole surviving coparcener enjoys the same powers of disposition of the inherited property as self acquired property. On the other hand, it was argued by learned counsel for the respondent that as the property in dispute was never separated or partitioned either between Chajju and Sabhu or between Chajju and between Ram Kishan and Bishan Singh, therefore, it continued to be joint property. He has submitted that in view of the judgments, which he has cited above, until and unless the property is separated, the disputed property in the hands of Ram Kishan shall have to be treated as joint Hindu coparcenary property. The judgments relied upon by the learned counsel for the respondent is on the issue of partition and not on the issue as to whether the property in the hands of male Hindu, who neither has a son, son's son, son's son's son alive has a right to treat the property as a self acquired property. In this regard, I place reliance on the judgment of this Court in the case of Hardial Singh (Supra) in which the question raised in the present appeal as well has been answered to the effect that where the property is held by brother it could be said to be only joint property in their hands but not the joint Hindu coparcenary property. Thus, the substantial question of law, which is framed by the learned counsel for the appellant in the appeal, is found to be involved and is answered in favour of the appellant. Consequently, the judgment and decree of the learned First Appellate Court, insofar as it relates to the land measuring 51 Kanals 16 Marlas is concerned, is set aside whereby it is partly decreed in favour of the plaintiff and the judgment and decree of the learned trial Court is hereby restored. I do not find any merit in the Cross-objection filed by the respondent as well and as such the same is hereby dismissed. In the given facts and circumstances of the case, parties are directed to bear their own costs. (RAKESH KUMAR JAIN) FEBRUARY 07, 2011 JUDGE Vivek