RSA No.2004 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2004 of 1985 and Cross objection No.8-C of 1990 Date of Decision: 21.09.2010 Gurnam Singh & Ors. ..Appellants Vs. Charanjiv Bhardwaj & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.G.S.Punia, Advocate, for the appellants. Mr.Gaurav Chopra, 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 Digest? --- Vinod K.Sharma,J. This order shall dispose of regular second appeal No.2004 of 1985 titled Charanjiv Bhardwaj & Ors. Vs. Gurnam Singh & Ors. filed by RSA No.2004 of 1985 2 the defendants/appellants as also Cross-objections No.8-C of 1990 filed by the plaintiffs-respondents, against the judgment and decree dated 9.5.1985 passed by the learned courts below. The plaintiffs-respondents filed a suit for joint possession of land measuring 22 kanals, 10 marlas, fully described in head-note of the plaint. Pleaded case of the plaintiffs-respondents was, that the land in dispute was ancestral and that the plaintiffs-respondents being members of coparcenary had right by birth in the said property. Pandit Tulsi Ram, Ganga Dutt and Devi Parkash sons of Durga Ram inherited the land from their fore-fathers. Pandit Tulsi Ram was the father of plaintiffs No.1 to 3 and Devi Parkash was father of plaintiff No.4 and defendants No.8 and 9. The land was coparcenary joint family property of the plaintiffs and defendants No.8 and 9. The three sons of Durga Ram i.e. Tulsi Ram, Ganga Dutt and Devi Parkash sold the property in dispute without legal necessity vide sale deed dated 13.05.1968 to defendants No.1 to 6 and delivered possession of the property to the vendees. The suit was filed in the year 1980, i.e. 3 days prior to limitation. On notice, the defendants-appellants appeared. Appellants-defendants No.1 to 6 contested the suit. Other defendants chose not to file any written statement though they appeared during the proceedings. The contesting defendants/appellants raised a preliminary objection to the effect, that the suit was time barred. The plaintiffs had no RSA No.2004 of 1985 3 locus standi to file the present suit and, that the plaintiffs were estopped from filing the present suit by their own act and conduct. The suit was said to be bad for misjoinder of necessary parties and cause of action. On merit, it was denied, that the vendors constituted a joint Hindu family. It was also denied, that the property in dispute was coparcenary property. Stand taken in the written statement was, that the coparcenary was disrupted by the death of Pandit Ganga Dutt and all the three branches of the vendors, namely Pandit Tulsi Ram, Devi Prakash, and Ganga Dutt had separate coparcenaries and one branch had no interest with the other. Relationship of plaintiffs with the vendors was admitted but it was denied that they had any interest in the property. Property was said to be self-acquired property in the hands of vendors, and that it was mutated in their separate names as per their shares. It was denied, that the sale was not for consideration and legal necessity. The case of the defendants-appellants was, that none of the vendors, was agriculturist, therefore, they had shifted to city and sold the land in village. It was also the case of the defendants, that the plaintiffs were educated persons, but they had chosen not to challenge the sale for so many years, therefore, by their act and conduct they were barred from challenging the sale at this stage. In the replication, the plaintiffs denied the averments made in the written statement and those in the plaint were reiterated. It was mentioned in the replication, that original suit was filed by three sons of Pandit Tulsi Ram, whereas plaintiff No.4, who was defendant No.10, at the RSA No.2004 of 1985 4 time of filing of suit was allowed to be transposed as plaintiff No.4. On the pleadings of the parties, the learned trial court framed the following issues:- 1. Whether the suit is barred by limitation? OPD. 2. Whether plaintiffs have got no locus standi to file the present suit? OPD. 3. Whether the suit is bad for misjoinder of cause of action and misjoinder of parties ? OPD. 4. Whether the plaintiffs and defendants No.7 to 9 as also late Sh. Ganga Dutt and Devi Parkash did form an HUF? OPP 5. Whether the property in dispute is a coparcenary ? OPP 6. Whether the sale is for consideration and for legal necessity and is an act of good management ? OPD. 7. Relief. In this case, the possession, was taken by the vendees on 13.5.1968, whereas the suit was filed on 10.5.1980, therefore, it was held to be within limitation, as limitation to challenge sale by Karta was 12 years. Learned trial court took up issues No.4 & 5 together. Learned trial court held, that the claim of plaintiffs-respondents was, that they being sons of the vendors, therefore, entitled to share in property by birth being ancestral property and plaintiffs as coparceners. The question to be decided, therefore, was 'whether the property was ancestral qua the plaintiffs, and whether they were coparceners of the alienor? RSA No.2004 of 1985 5 The learned trial court held, that under Hindu Law, every coparcener has got interest in the ancestral property by birth. The joint Hindu family or HUF consists of all persons lineally descended from a common ancestor which includes wives and unmarried daughters also. The coparcenary on the other hand is a narrower body, which includes only males lineally ascendants or descendants up to four degrees. In view of the settled principle of Hindu Law, referred to above learned trial court came to the conclusion, that the property in dispute admittedly came to Pandit Tulsi Ram and Devi Parkash from their father Durga Ram. Excerpt Ex.P1, proved this fact. In 1950, vide mutation No.301, property of Pandit Devi Ram was mutated in the name of three brothers in equal shares. Property was thus, held to be ancestral qua the plaintiffs, insofar as the share of their fathers was concerned. The learned trial court further recorded a finding, that the property in dispute was sold by the three brothers, who were predecessors of the plaintiffs. Ganga Dutt, being issueless was held to be not the member of HUF. As the property inherited by him was obstructed by heritage. The objection of the defendants-appellants, that HUF character was broken by the death of Pandit Ganga Dutt in 1974, was rejected for the reason, that share of Pandit Ganga Dutt was excluded by the trial court. The learned trial court further held, that Ganga Dutt, left behind a widow who being Class-I heir was entitled to succession as per Hindu Succession Act. The learned trial court, therefore, recorded a finding, that coparcenary and HUF was disrupted in the present case to the extent of Pandit Ganga RSA No.2004 of 1985 6 Dutt, as his property ceased to be HUF property after his death. On issues No.4 & 5, the learned trial court held, that the plaintiffs and defendants No.7 to 9, and Pandit Devi Parkash formed HUF/coparcenary. Therefore, decided these issues in favour of the plaintiffs-respondents. On issue No.6, learned trial court held, that it was settled Hindu Law, that male Hindu acquires right by birth in ancestral property. Ancestral property could not be sold by any Karta without any legal necessity or for benefit to the estate, or by way of act of good management. The Karta or the father cannot alienate the ancestral property without the consent of other shareholders, otherwise than for legal necessity etc. Learned trial court recorded that the plaintiffs-respondents have challenged the sale by Pandit Tulsi Ram and Devi Parkash and Ganga Dutt through sale deed dated 13.5.1968, Ex. D.2. The stand of the defendants was, that the sale was for consideration and legal necessity. Learned trial court held, that sale deed was proved, and it was also proved that the suit land was sold for ` 29,300/- (Rupees twenty nine thousand and three hundred only), out of which a sum of ` 8,000/- (Rupees eight thousand only) was taken by the sellers as earnest money on 15.11.1967, and remaining amount of ` 21,300/- (Rupees twenty one thousand and three hundred only) was taken before the Sub-Registrar at the time of registration of the sale deed on 14.5.1968. Reason given in the sale deed was, to purchase other property by the sellers. Learned trial court thereafter, recorded a finding that, RSA No.2004 of 1985 7 consideration in the sale deed was fully described in the document which, was proved by Pritam Singh Lamberdar, whereas agreement to sell Ex. D.1 was proved by Salamat Rai, Petition Writer. These witnesses deposed regarding the payment of consideration which fact was not rebutted. Learned trial court, therefore held, that the sale was for consideration. The question 'whether the sale was for legal necessity' was however, decided against the appellants- defendants. Reason for coming to this conclusion was, that though in the sale deed it was mentioned, that the sale deed was for purchasing another property, so as to purchase other property in the city but evidence was led to prove that the land was not giving any return to the vendors, as they were living in Ludhiana and Delhi. It was admitted by the defence witnesses, that no inquiry was made by them about the necessity of vendors. The learned trial court in view of this admission held, that this fact proved that the land was not sold for legal necessity. The learned trial court held, that oral evidence about the necessity to sell the land was not much to be discussed in view of the, admission made by DW.4, as referred to above. The learned trial court further held, that onus to prove legal necessity was on the defendants, and that to constitute the necessity as legal necessity, it had to be real and pressing. The recital in the sale deed was admissible only when corroborated by other evidence for establishing legal necessity. The learned trial court, therefore, held that purchasing another RSA No.2004 of 1985 8 property by sale of property, was not a legal necessity. Reliance in support of this finding was placed on the judgment of Hon'ble Patna High Court, in the case of Ram Karan Thakur & Ors. Vs. Baldeo Thakur & Ors. AIR, 1938, Patna 44, wherein Hon'ble Patna High Court, was pleased to lay down, that jeopardizing Joint Hindu family property for the purpose of purchasing another property, can never under any circumstance be considered to be for benefit to the estate. Learned trial court further held, that evidence of the defendants-appellants, that sellers wanted to shift to city, was of no avail to the defendants, as they made no inquiry about the shifting of defendants to the city or qua legal necessity. Learned trial court held, that this plea stood falsified from the fact that Pandit Tulsi Ram, was living in Ludhiana, since 1930, i.e. much before impugned sale, whereas Pandit Devi Parkash, was living at Delhi, prior to that sale. Learned trial court also took note of the admission of D.W.3, Salamat Rai, to the effect that Pandit Tulsi Ram, was practising Advocate at Ludhiana since 1936. DW.2, Pritam Singh, also admitted, that Pandit Tulsi Ram and Devi Parkash, had shifted to Ludhiana and Delhi, prior to alleged sale, therefore, it was held, that the recitals were not proved. The learned trial court held, that it was not proved as to which other property was purchased by the vendors. Learned trial court held, that mere assertion in the sale deed about the legal necessity, was not enough, as it was required to be proved. The learned trial court held, that sale was for consideration but not for legal necessity, for the reasons mentioned above. RSA No.2004 of 1985 9 In view of the finding recorded, the suit was decreed partly, as the learned trial court held, that plaintiffs had no locus standi to challenge share sold by Pandit Ganga Dutt. Learned trial court further held, that sale by Pandit Tulsi Ram and Devi Parkash being without legal necessity was binding on the sellers. The learned trial court decreed the suit as under:- “Therefore, I would hold that sale to the extent of share of Pandit Tulsi Ram and Devi Parkash, is quite valid apart from the share of Pt. Ganga Dutt. Now, the share of Pt. Tulsi Ram in his branch comes to 1/4th and that of Pt. Devi Parkash to 1/4th of his branch, the share of Pt. Ganga Dutt was 1/3 of the whole property. The sale in favour of the defendants is valid to the extent of 1/3 share of pt. Ganga Datt and ¼ of 1/3 share of Pt. Tulsi Ram and ¾ of 1/3 share of Pt. Devi Parkash because it has not been challenged by his two sons. Consequently, the suit for joint possession of the ¾ share of Pt. Tulsi Ram branch shares and ¼ shares of Pt. Devi Parkash branch share is decreed. The parties are left to bear their own costs. File be consigned to the record room.” In appeal the findings recorded by the learned trial court were affirmed, and the appeal filed by the defendants/appellants was ordered to be dismissed. It may be noticed, that no Cross Objections were filed to the judgment and decree passed by the learned trial court, by the RSA No.2004 of 1985 10 plaintiffs/respondents before learned lower appellate court. Mr.G.S.Punia, learned counsel appearing on behalf of the appellants contended, that this regular second appeal raises the following substantial question of law for consideration by this court:- 1. Whether the judgment and decree passed by the learned courts below holding that the sale by the vendors was not for legal necessity, is the outcome of misreading of pleadings and evidence and settled law on the point and therefore, perverse? In support of the substantial question of law, learned counsel for the appellants referred to the admitted facts i.e. to say that the sale was made by Pt. Tulsi Ram through Ganga Dutt and Devi Parkash on 13.5.1968 with a recital that the sale was for legal necessity as the vendors wanted to purchase other land as they were residing in Ludhiana and Delhi. Learned counsel for the appellants contended, that though one of the plaintiffs was an Advocate and major at the time of sale, had chosen not to challenge the sale deed for almost for 12 years, and the suit was filed few days prior to the expiry of limitation, which proved the fact that there was no objection to the sale by the plaintiffs. Learned counsel for the appellants also pointed out, that there was evidence by the defendants/respondents showing that the property sold was not fetching any income to the vendors and they wanted to sell the property for better management to purchase another property. The learned RSA No.2004 of 1985 11 courts below erred in law in rejecting the recital merely on the ground that there was no evidence of purchase of other property. The contention of the learned counsel was, that there was no allegation against the vendors i.e. Karta about his character or he being a spend thrift, therefore, a prudent act by well educated person, could not be held to be not for legal necessity in the facts and circumstances of this case. In support of the contention referred to above learned counsel for the appellants placed reliance on the judgment of Hon'ble Supreme Court in the case of Sunder Das & Ors. Vs. Gajananrao & Ors. AIR 1997 SC 1686, wherein Hon'ble Supreme Court was pleased to lay down as under:- “11. Once it is held that the suit house was an ancestral property in the hands of plaintiffs' father, defendant No.6, the plaintiffs could naturally have rights by birth in the suit house. However, the moot question is whether the alienation of the suit house by the impugned Sale Deed by the plaintiffs' father, defendant No.6 to the contesting defendants was binding on the plaintiffs. So far as this question is concerned it must be kept in view that plaintiffs' father was the 'karta' of the joint Hindu family. The evidence shows that at the relevant time he was working as Upper Division Clerk in the Civil Court at Chhatarpur. His monthly income was Rs.150/- in 1958-59 when the Sale Deed was executed as seen from his deposition as D.W.1. He has clearly recited in the impugned Sale Deed in RSA No.2004 of 1985 12 favour of the contesting defendants that he was selling the suit house for Rs.1800/- on account of family necessity. He revealed in his deposition before the court that he had a family of seven persons to be maintained out of his income of Rs.150/- per month as he had got his wife, three sons, namely, the present plaintiffs and two young daughters. It is also revealed from his evidence that he was staying at Chhartarpur as he was serving as Upper Division Clerk in the Chhatarpur Court. The suit house was situated at village Datia. According to defendant No.6 he occasionally came to Datia to look after the house. No attempt was made in his evidence to get out of the clear recitals in the Sale Deed that he had entered into the transaction for family necessity. It is also pertinent to note that out of the three plaintiffs, plaintiff No.1 was major at the time of the Sale Deed. He has conspicuously remained absent from the witness box and avoided inconvenient cross-examination which he might have faced. In support of the plaintiffs only plaintiff 3 P.W.1 Govind Rao who was admittedly aged 8 years at the time of the Sale Deed has been examined. He naturally could not have any personal knowledge about what transpired in 1959, when his father who was serving in a Civil Court as Upper Division Clerk thought it fit to sell the ancestral house in village Datia to the defendants and whether the recital made by him in the Sale deed that the transaction was being executed for RSA No.2004 of 1985 13 family necessity was right or not. Nor defendant No.6, vendor father of the plaintiffs, had even whispered about the necessity for inserting the recital in the Sale Deed that he was executing the same for family necessity. It has to be kept in view that defendant No.6 being the father of the plaintiff and 'karta' of the joint Hindu family was legally entitled to alienate the suit house and also the interest of the minor plaintiffs, in the said house even for his own requirements unless it was shown that the transaction was tainted by any immoral or illegal purpose. That is not the case of the plaintiffs. Nor have they suggested that their father was addicted to any immoral conduct. Their only case is that their father had no right to alienate undivided interest in the suit house. We must keep in view the fact that defendant No.6, father of the plaintiff was a worldly person who was presumed to know the ways of the world as he was attached to the Civil Court as Upper Division Clerk at the relevant time. His evidence shows that upto 1954, he had worked in the Civil Court as a Lower Division Clerk. Then he was promoted by the High Court to the post of Upper Division Clerk in the year 1954, and he was transferred to Panna and from Panna he was transferred to Chhatarpur. He also deposed that he used to visit Datia in connection with supervision of the suit house. Therefore, defendant No.6 father of plaintiffs apart from being the 'karta' of the joint Hindu family was well versed RSA No.2004 of 1985 14 in the ways of the world and was not a novice or a layman. With his open eyes he disposed of the suit house which appeared to be almost a ruin for Rs.1800/-. It is easy to visualize that when defendant No.6, the vendor was staying with his family at Chhatarpur and when the ancestral house at Datia village was in a ruinous condition and which would almost be a burden to them he thought it fit in his wisdom to dispose it of for Rs.1800/- in favour of the defendants and made an express recital in the Sale Deed that it was for family necessity that he was disposing it of. As a Hindu father and 'karta' of the family he had every right to do so and in the process could have legally disposed of the interest of his minor sons in the said property also for the benefit of the family and necessity of the family. The plaintiffs have not been able to lead any cogent evidence to rebut the clear recitals found in the Sale Deed to that effect. We may usefully remind ourselves of what Mulla's Hindu law 16th Edition by S.T. Desai has to state in connection with alienation by father at paragraph 256 of the said volume. It reads as under: “256. Alienation by father:-A Hindu father as such has special powers of alienating coparcenary property which no other coparcener has. In the exercise of these powers- (1) he may make a gift of ancestral movable property to the extent mentioned in paragraph 225, and even of ancestral RSA No.2004 of 1985 15 immovable property to the extent mentioned in paragraph 226; (2) he may sell or mortgage,ancestral property, whether movable or immovable, including the interest of his sons, grandsons and grandsons therein, for the payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes (paragraph 295). Except as aforesaid, a father has no greater power over coparcenary property than any other manager (O) that is to say, he cannot alienate coparcenary property except for legal necessity or for the benefit of the family (paragraph 242). this section must be read with what is stated under paragraph 213- 215 ante.” Shri Khanduja, learned counsel appearing for the respondent- plaintiffs in this connection submitted that the defendants as alienees should have properly enquired as to why the transaction was being entered into by the father of the minor plaintiffs in their favour. It is difficult to appreciate this submission. The evidence on record clearly show that contesting defendants before entering into the suit transaction had taken all permissible precautions and made inquiries in this connection. Contesting Defendants witness No. 1 Tehalram stated in his evidence that he was informed by defendant No.6. That his uncle had expired. His debt has to be paid off. Money lenders had also to be paid. That he tried to verify these facts. RSA No.2004 of 1985 16 That he went to the shop of Chetandas in the area. He also enquired from grocer Meghamal and found out that defendant No.6 was in debts and, therefore, he came to the conclusion that defendant No.6 was in need of money and accordingly he had sold his house to him. Shri Khanduja learned counsel appearing for plaintiffs submitted that defendant No.6 Hanumantrao had no title to the property and in order to help him he had purchased the house from him. It is difficult to appreciate this contention. The evidence of defendant No. 1 when read in its correct perspective showed that he was informed by one Ganpati that the property belonged to King and the King of Datia had given it to the ancestor of the plaintiffs Mukundrao to stay therein and accordingly he thought that defendant No.6 would not be having title to the property. It must be kept in view that plaintiffs' ancestor Mukundrao had died 60 years prior to the suit. Therefore, even if