R.S.A.No. of 1487 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. of 1487 of 1996 Date of decision: 8.12.2009 Chanan Singh through legal representatives ......Appellants Versus Rattan Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.A.K.Chopra, Sr.Advocate with Mr.Munishwar Puri, Advocate, for the appellant. Mr.O.P.Hoshiarpuri, Advocate, for the respondents. **** SABINA, J. Plaintiff Chanan Singh filed a suit for declaration, which was decreed by the Sub Judge, III Class, Gurdaspur vide judgment and decree dated 8.2.1993. Appeal filed by defendants No.1 and 2 was partly allowed and the said judgment and decree were modified by the Additional District Judge, Gurdaspur vide judgment and decree dated 15.4.1996. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 1 and 2 of its judgment, are as under:- R.S.A.No. of 1487 of 1996 2 “1. This appeal has been directed against the judgment and decree dated 8.2.1993 passed by Shri Ravinder Singh Sub Judge III Class, Gurdaspur, whereby the suit of Chanan Singh plaintiff for declaration to the effect that he is the co-owner in joint possession to the extent of 3/12th share for land measuring 61 kanals 16 marlas and 66 kanals 1 marla was decreed leaving the parties to bear their own costs. The pleaded case of the respondent/plaintiff Chanan Singh is that Shama alias Sham Singh son of Sawan Singh son of Gurmukh Singh, resident of village Jeewanwal Tehsil Gurdaspur was the co-sharer to the extent of 1/6th share in the land described in the heading of the plaint. He (Chanan Singh) has been recorded as co-sharer to the extent of 1/12th share. The land in suit is the ancestral and coparcenary property of the Joint Hindu Family, coparcenary was constituted by him, his father Harnam Singh, Shama @ Sham Singh and his father Sawan Singh. Sawan Singh was his grand- father. Shama @ Sham Singh died on 7.8.1986. He claims that he being the brother's con and coparcener is his legal heir. In this manner his plea is that he is the co- owner in joint possession to the extent of 3/12th share in the suit land i.e. 1/6th of Shama @ Sham Singh and 1/12th belonging to him. Appellants claim that Shama @ R.S.A.No. of 1487 of 1996 3 Sham Singh alienated his 1/6th share in their favour. This fact has been denied by respondent/plaintiff. It is added by him that if the sale deed is proved, the same is illegal, null and void and without consideration. Shama @ Sham Singh was not competent to alienate the ancestral, coparcenary and joint Hindu Family property without legal necessity and without benefit for the estate. Appellant/ defendants No. 1 and 2 got mutation regarding the charge of ownership sanctioned in their favour on the basis of the sale deed. Respondent/ plaintiff avers that he is not bound by the same. Appellants/defendants failed to admit his claim and accordingly he filed the suit. 2. Appellants as defendants filed written statement taking the preliminary objection that the suit is liable to by stayed u/s 10 of the CPC; it is barred by time; respondent plaintiff Chanan Singh has no locus standi to file the same and that they are entitled to special costs. They admitted that Sham Singh was the owner of the land and he has died issueless in the year 1986. They denied that respondent No.1 is/was co-sharer in the land . Similarly they denied the suit land to be ancestral, coparcenary and joint Hindu Family property. They denied that respondent/plaintiff is the legal heir of Shama @ Sham Singh . Inter alia their plea is that the sale deed R.S.A.No. of 1487 of 1996 4 was executed in their favour by Shama for legal necessity and consideration and mutation was rightly sanctioned. They denied the other allegations. Respondents/defendants No.3 to 7 also filed separate written statement praying that the suit of the respondent No.1 be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the suit is liable to be stayed under Section 10 CPC? OPP 2. Whether the suit is within time? OPP 3. Whether the defendants are entitled to special costs u/s 35-A CPC? OPD 4. Whether the suit property is ancestral coparcenary joint Hindu Family property of the plaintiff and his father Harnama, Shama and Sawan Singh ? OPP 5. Whether the plaintiff is entitled to the decree for declaration to the effect that he is co-owner in joint possession of the suit property to the extent of 3/12 share ? OPP 5-A Whether the sale deed executed by Sham Singh in favour of defendants No.1 and 2 is for legal necessity and consideration? OPD R.S.A.No. of 1487 of 1996 5 6. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration claiming that he was co-owner in joint possession to the extent of 3/12th share. The dispute has arisen between the parties qua the share of Sham Singh @ Shama. Admittedly, Sham Singh @ Shama had died un- married and issueless. Although, Sham Singh @ Shama had inherited the property by way of succession yet it became his self acquired property as he was issueless. It has been held by the Apex Court in Smt.Dipo vs. Wassan Singh and others AIR 1983 SC 846, as under:- “Property inherited from paternal ancestors is “ancestral property” as regards the male issue of the propositus, but it is his absolute property and not ancestral properuty as regards other relations. Thus hands of “B” were properties which originally belonged to his ancestors, but “B” was the last male holder of the property and he had no male issue, there was no surviving member of a joint family, be it a descendant or otherwise who could take the property by survivorship, it was held that the sister of “B” would be entitled to inherit the property in the hands of “B” in preference to collaterals of “B” as regards them the property was not “ancestral property” even if according to R.S.A.No. of 1487 of 1996 6 the prevailing customs of the area, collaterals and, not the sister were preferential heirs to ancestral property in the hands of the propositus.” Since the property in the hands of Sham Singh @ Shama was his self acquired property, he could alienate the same by way of executing sale deeds. The appellants are the nephews of Sham Singh @ Shama and had no pre-existing rights in the share of Sham Singh @ Shama. In these circumstances, the learned Additional District Judge rightly held that the plaintiff was the co-onwer in the joint possession to the extent of 1/12th share in the suit land. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 08, 2009 anita