IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2521 of 2008(O&M) Date of Order: 23.10.2009 Pardeep Singh ....Appellant Versus Narinder Singh .....Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Amit Jain, Advocate, for the appellant. Ms.Geeta Sharma, Advocate for the respondents. **** SABINA,J.(Oral) Plaintiff-Pardeep Singh filed a suit for joint possession, fully described in the head note of the plaint, which was dismissed by the Civil Judge(Jr.Divn.)Khanna, vide judgment and decree dated 09.08.2005. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by Additional District Judge, Ludhiana vide judgment and decree dated 31.01.2008. Hence, the present appeal filed by the plaintiff. Brief facts of the case, as noticed by the lower Appellate Court in paras3 to 7 of its judgment read as under:- "3. The case of the plaintiff, in brief, is that Rajinder Singh, father of the plaintiff died on 2.2.87 and plaintiff along with defendants no.1 and 2 constitute a Joint Hindu Family and the suit property is ancestral co-parcenary joint Hindu Family property qua the plaintiff, defendants no.1 and 2 as previously Bagga Singh was the owner of the suit property and he had two issues i.e RSA No.2521 of 2008(O&M) ..2.. defendant no.2 and Naranjan Singh and Naranjan Singh died unmarried, issueless and accordingly, defendant No.2 because the owner of the estate left by Bagga Singh and as such plaintiff, defendant and Bagga Singh constitute a c-oparcenary Joint Hindu Family property and though Naranjan Singh was the brother of Joginder Singh, defendant No.2 yet he was a member of the Joint Hindu Family and co-parcenary constituted by defendant No.2, Naranjan Singh, defendant No.1, deceased Rajinder Singh, father of the plaintiff and plaintiff also became its member after birth; that no partition has taken place between Naranjan Singh and Joginder Singh and all the property had come into the hands of Joginder Singh and Naranjan Singh through survivorship after the death of their father Bagga Singh and the property was co- parcenary Joint Hindu Family property in the hands of Bagga Singh when he was alive and Bagga Singh was Karta of the family and after the death of Bagga Singh, Joginder Singh became Karta of the Joint Hindu Family property and Naranjan Singh also remained a member of the Hindu Joint Family headed by his elder brother Joginder Singh; that Bagga Singh was not having any daughter and mother and wife of Bagga Singh pre-deceased him and after the death of Bagga Singh, property devolved by survivorship and interest of Naranjan Singh in the property also devolved by survivorship after his death and as such, all the properties in the hands of Joginder Singh became the co- parcensary, ancestral Hindu Joint Family property; that as the property in the hands of defendant No.2 was ancestral Joint Hindu RSA No.2521 of 2008(O&M) ..3.. Family co-parcenary property, therefore, defendatn No.2 was having only limited right in the property as plaintiff was also had a vested right by birth in the said property being son of Rajinder Singhy, pre-deceased son of Joginder Singh defendant No.2; that defendatn no.2 had no right, title to gift the suit property but defedatn no.2 made gift of the suit land in favour of defendant No.1 vide gift deed dated 10.11.98 without any right,title or authority and as such, the said gift deed was illegal, null and void and was not binding on the rights of the plaintiff and is liable to be set aside; that possession of the suit land is with defendant no.2, who is grandfather of the plaintiff and father of defendant no.1; that about fortnight ago, defendant no.1 told the plaintiff that the suit land has been gifted to him by defendant no.2 and thereafter, plaintiff made inquiries and obtained the certified copy of the gift deed on 9.2.99 and also got the certified copy of Jamabandi and came to know about the gift deed dated 10.11.989 and plaintiff requested the defendant to treat the gift deed as null and void and not binding on his rights but with no effect and defendants also refused to admit the claim of the plaintiff and due to this reason, plaintiff filed the suit. 4. Defendant No.1 filed written statement contesting the suit of the plaintiff on the preliminary objections that the suit is not maintainable in the present form as he has claimed share out of joint property and as such, only suit for declaration is maintainable and the suit is also liable to be dismissed as the answering defendant is in actual possession of the suit land and RSA No.2521 of 2008(O&M) ..4.. that plaintiff has no locus-standi to file the present suit as the suit land is not joint Hindu family and ancestral coparcenary property. On merits, it was admitted that father of the plaintiff died on 2.2.87 but it was asserted that defendants no.1 and 2 do not constitute a Joint Hindu Family with the plaintiff, as the plaintiff and his mother are separate from the defendants for the last 8/9 years and parties are not governed by Mitakshra law. It was admitted that Bagga Singh left two sons i.e defendatns no.2 and Naranjan Singh and it was also admitted that Niranjan Singh died unmarried and issueless and ½ share of Niranjan Singh was inherited by Joginder Singh defendant. It was asserted that Bagga Singh was not the owner of the suit land rather the suit land was owned by Naranjan Singh and Joginder Singh in equal shares. It was denied if plaintiff, defendant and Bagga Singh constituted a Joint Hindu Family. It was also asserted that the property in the hands of unmarried and issueless male even if the same is inherited by him from his father is his absolute property and he can deal the same in any manner he likes. It was asserted that the property in the hands of defendant no.2 was his absolute property and plaintiff had no right by birth in it and as such, defendant no.2 executed a valid registered gift deed on 10.11.98 and it was accepted by donee in the presence of the donor and mutation has also been sanctioned on the basis of gift deed and the suit property is in possession of the answering defendant as owner and plaintiff was aware of the gift deed from the very beginning. All other allegations mentioned in the plaint were denied with a RSA No.2521 of 2008(O&M) ..5 prayer to dismiss the suit with costs. 5. Defendant No.2 Joginder Singh contested the suit on the ground of its maintainability and that plaintiff has no locus- standi to file the present suit, as the suit land is not joint Hindu Family and co-parcenary property. It was admitted that Bagga Singh died and left behind two sons that is defendant Joginder Singh and Naranjan Singh who died unmarried and issueless and ½ share of Naranjan Singh was inherited by answering defendant and it was denied if Bagga Singh was the owner of the suit land. All other allegations mentioned in the plaint were denied with a prayer to dismiss the suit with costs. 6. Defendant No.3 contested the suit on the preliminary objections that he is bonafide purchaser for consideration, without notices and he purchased land measuring 08-10B out of total land measuring 2B-19B from defendant No.1 for consideration and possession has also been delivered to him. All other allegations mentioned in the plaint were denied with a prayer to dismiss the suit with costs. 7. Defendants No.4 and 5 filed written statement contesting the suit on the ground that they are bonafide purchaser for consideration, without notice and they are in possession of specific piece of land measuring 0B-5B which they purchased from defendant no.1 out of land measuring 2B-19B vide registered sale deed dated 31.10.2000 and possession of the sold land was also delivered to them and that the suit is not maintainable in the present form. On merits, all other allegations RSA No.2521 of 2008(O&M) ..6.. mentioned in the plaint were denied with a prayer to dismiss the suit with costs. On the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the suit land is joint Hindu family and ancestral co- parcenary property of plaintiff, defendants no.1 and 2 in which plaintiff has a right by birth? OPP. 2. Whether the gift deed dated 10.11.98 is illegal, null and void?OPP. 3. Whether the sale deed dated 17.10.2000 executed by defendant No.1 in favour of defendant No.3 is illegal null and void?OPP. 4. Whether the sale deed dated 31.10.2000 executed by defendant no.1d in favour of defendants no.4 and 5 is illegal, null and void?OPP. 5. Whether the plaintiff is entitled to joint possession of the suit land?OPP. 6. Whether the plaintiff is entitled to the declaration as prayed for?OPP. 7. Whether the plaintiff is entitled to the injunction as prayed for?OPP. 8. Whether the suit is not maintainable in the present form?OPD. 9. Relief." After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of merits and is liable to be dismissed. Appellant filed the suit for joint possession of land measuring 2B- 11B, as described in the head note of the plaint. Plaintiff challenged the gift deed dated 10.11.1998 executed by defendant no.2 in favour of defendant no.1 and sale deed executed by defendant No.1 dated 17.10.2000 in favour of defendant No.3. RSA No.2521 of 2008(O&M) ..7.. Waryram Singh was owner of 37B-1B of land. The same was inherited by Naranjan Singh and Joginder Singh, Bagga Singh son of Waryram Singh pre-deceased his father. Bagga Singh had two sons namely Naranjan Singh and Joginder Singh . Naranjan Singh died unmarried and issueless whereas, Joginder Singh had two sons namely Rajinder Singh and Narinder Singh. The point of controversy involved in this case, is regarding a gift deed executed by Joginder Singh in favour of Narinder Singh- defendant No.1 regarding 2B-11B of land. Learned counsel for the appellant has submitted that the property in the hands of Joginder Singh was not his absolute property and hence, he could not gift any part of the property inherited by him. However, there is no force in the argument raised by the learned counsel for the appellant. Joginder Singh inherited his share of property belonginging to Waryram Singh by way of natural succession. Joginder Singh also inherited the property of Narajan Singh who had died issueless and unmarried. In these circumstances, the land which came to Joginder Singh from his brother Naranjan Singh became his absolute property and hence, Joginder Singh could execute a gift deed of 2B and 11B of land which was much less than the property inherited by Joginder Singh from Naranjan Singh in favour of any person he liked. In these circumstances, both the courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. 23.10.2009 (SABINA) Seema-II Judge