IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 79 of 1998 Judgment reserved on: 8.8.2008 Date of decision: 19.9.2008. Budhia alias Budhi Ram …….Appellant Vs. Ramesh and Ors. ……. Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondents : Mr. Romesh Verma, Advocate . Kuldip Singh, Judge. This judgment shall dispose of RSA No.79 of 1998 filed by appellant/defendant against judgment, decree dated 8.9.1997 passed by learned District Judge, Shimla in Civil Appeal No.12-S/13 of 1995, setting aside judgment, decree dated 3.1.1995 passed by learned Sub Judge Ist Class, Theog in Case No.217/1 of 1992 and decreeing the suit of plaintiff for specific performance of contract on the basis of agreement Ex.PA. The original respondent-plaintiff died during the pendency of appeal and his legal representatives have been brought on record. 2. The pleaded case of respondents is that on 18.11.1991 appellant had executed an agreement to sell in favour of their Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… predecessor of land measuring 7 bighas and 1 bishwa comprised in khewat khatauni No.14/22, measuring 165 bighas and 10 biswas, situated in Chak Karyali, Pargna Palana, Tehsil Theog vide jamabandi for the year 1988-89, for a consideration of Rs.21,000/-. The predecessor of respondents had paid a sum of Rs.11,000/- as advance to appellant at the time of execution of the agreement. The possession of land comprised in khasra 324 was given to the predecessor of respondents on the spot. The appellant has not executed the sale deed despite requests, therefore, predecessor of respondents had filed a suit for specific performance of contract on the basis of agreement dated 18.11.1991. 3. The suit was contested by the appellant by filing written statement, in which preliminary objections of non-joinder of necessary parties, agreement dated 18.11.1991 is illegal and void as the suit property is ancestral and co-parcenary property and the appellant has no right to sell suit land were taken. On merits, the appellant has not denied the agreement but denied that possession of khasra No.324 was given to predecessor of respondents. He has pleaded that the agreement was never read over and explained to him. The appellant had sent cheque of Rs.12,320/- to predecessor of respondents which included Rs.11,000/- paid by him to appellant and Rs.1320/- on account of interest. The appellant prayed for dismissal of the suit. The predecessor of respondents filed replication and denied the case of the appellant. 4. The learned Sub Judge held that agreement is illegal and void as the property is ancestral and co-parcenary. The suit was …3… held to be bad for non-joinder of two sons of the appellant. It was held that predecessor of respondents is not entitled to specific performance of the agreement on the basis of agreement Ex.PA and the suit was dismissed. The predecessor of respondents had filed appeal against the judgment, decree dated 3.1.1995 which was accepted by learned District Judge on 8.9.1997. The learned District Judge has held that it has not been proved that the suit land is ancestral. It has also been held that appellant can not avoid sale on the basis of agreement even if, suit property is ancestral, sale can be impeached by other members of the co-parcenary who were not a consenting party to the alienation. The learned District Judge ultimately decreed the suit, hence this appeal which has been admitted on the following substantial questions of law:- 1. Whether the finding of the Court below to the effect that the suit property is not co-parcenary property is vitiated by the fact that important evidence in the shape of mutation of inheritance and jamabandi for the year 1946-47 has been ignored? 2. Whether the findings on issues Nos. 1 to 3, have been legally reversed by the appellate Court? 3. Whether in view of the facts and circumstances of the case, it was legally permissible to decree the suit of the plaintiff/predecesssor of respondents? 5. I have heard Mr. Vinay Thakur, learned counsel for the appellant and Mr. Romesh Verma, learned counsel for the respondents and gone through the record. The learned counsel for the appellant has submitted that appellant has proved that the suit …4… land is ancestral and co-parcenary property in the hands of appellant and his sons have right in the suit property by virtue of their birth. The suit land being ancestral and co-parcenary has been established by documentary evidence on record. The learned District Judge has not properly appreciated the evidence on record in returning the findings that the suit land is not ancestral and co-parcenary. He has submitted that the suit is bad for want of necessary parties i.e. the sons of appellant. The learned counsel for the respondents has supported the impugned judgment, decree. He has submitted that the suit land is neither ancestral nor co-parcenary. He has also submitted that even if, the suit land is found to be ancestral and co- parcenary, in that case also the appellant cannot escape from specific performance of the contract on the basis of agreement. The agreement dated 18.11.1991 Ex.PA is not void and is enforceable. Substantial questions of laws 1 to 3 6. The substantial questions of law 1 to 3 are interconnected, therefore, all of them are being disposed of collectively. The execution of agreement dated 18.11.1991 Ex.PA has been proved on record. The appellant has not denied the agreement in the written statement. He has denied handing over of possession of land comprised in khasra No.324. The appellant in the agreement Ex.PA has admitted handing over of possession of land comprised in khasra No.324, therefore, it cannot be said that possession of land comprised in khasra No. 324 was not handed over to the predecessor of respondents under the agreement Ex.PA. …5… 7. Ex.PB is the notice dated 14.9.1992 which was got issued by the predecessor of respondents to the appellant for execution of the sale deed on the basis of agreement dated 18.11.1991. Ex.DW-1/A is the reply to the notice dated 14.9.1992 in which appellant has taken the stand that the suit land is ancestral. DW-1 Bhudhi Ram has stated that the suit land came to his father from his grand father by inheritance. He has stated that his father had died 40-45 years ago and after the death of his father mutation of his estate was attested in his favour. It has hot been denied by respondents that appellant is not the son of Haria. The estate of Haria was mutated in favour of his son Budhia vide mutation Ex.DW- 1/Q. In jamabandi Ex.DW-1/O for the years 1946-47 in the remarks column reference of mutation No.17 has been given. The mutation No.17 is nothing but Ex.DW-1/Q vide which estate of Haria was mutated in favour of Budhia. In jamabandi for the years 1946-47 Ex.DW-1/O even khasra No.324 has been mentioned which has been referred in agreement Ex.PA. Ex.PD is the jamabandi for the years 1988-89 of khasra No.324 wherein Budhia has been recorded as one of the co-owners, similar entry is recorded in Ex.DW-1/D jamabandi for the years 1990-91. The respondents by leading cogent evidence have not rebutted the statement of DW-1 along with other documentary evidence which has come on record regarding the ancestral nature of the suit land. The cumulative effect of mutation Ex.DW-1/Q, jamabandi for the years 1946-47 Ex.DW-1/O, jamabandi for the years 1988-89 Ex.PD, jamabandi for the year 1990-91 Ex.DW- 1/D and statement of DW-1 Budhi Ram appellant, the suit land has …6… been proved to be ancestral and co-parcenary property in the hands of appellant, the contrary findings recorded by learned District Judge in the impugned judgment are modified. 8. The suit land has already been held to be ancestral and co-parcenary property, the connected question is whether appellant can avoid the agreement dated 18.11.1991 Ex.PA, even though the suit land has been held to be ancestral and co-parcenary property. In Raghubanchmani Prasad Narain Singh vs. Ambica Prasad Singh and others AIR 1971 SC 776, it has been held that an alienation by a Manager of joint Hindu family, even without legal necessity, is not a void transaction but is only voidable. On the basis of agreement dated 18.11.1991 sale deed is yet to be executed. The appellant being the alienor of the suit land on the basis of agreement Ex.PA, therefore, he can not question the validity of agreement on the ground that the suit land is ancestral and co- parcenary property and specific performance suit on the basis of Ex.PA cannot be decreed. The appellant has no right to question the alienation on the basis of agreement Ex.PA. In Madan Lal vs. Chhidu and others AIR 1930 Allahabad 852 , it has been held that it must be accepted as settled that an alienation made by a member of a joint Hindu family is avoidable at the option of the other members thereof, or any one of them, that it cannot be impeached by the alienor himself. In Smt. Gomti and others vs. Rameshwardas and others, AIR 1971 Rajasthan 211(FB), it has been held that it is settled law that an alienating co-parcener can not impeach his own alienation. This is based on the principle that a grantor cannot …7… derogate from his grant. In the present case appellant is a party to the agreement Ex.PA, he cannot take shelter that alienation on the basis of agreement Ex.PA would be affecting the interest of other members of joint family or co-parcenary and therefore such alienation would be wrong. It is not the case of the appellant that on the date of agreement his share in the property was not 7 bighas 1 biswa. The substantial questions of law 1 to 3 are accordingly decided. No case for interference has been made out. 9. No other point was urged. 10. The result of the above discussion and in light of findings recorded above, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. September 19, 2008 (sks)