RSA No.4640 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4640 of 2004 Date of decision: 22.9.2008 Azad Singh ......Appellant Versus Baldev Singh and another ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.P. Bhandari, Advocate for the appellant. Mr. Rakesh Gupta, Advocate for the respondents. Rakesh Kumar Garg, J . 1. This is defendants' second appeal challenging the impugned judgment and decree dated 3.9.2004 passed by the Additional District Judge, Kaithal upholding the judgment and decree of the trial Court whereby the suit of the plaintiff has been decreed and the plaintiff and defendant No.2 were declared as owner in possession in equal share of the suit property and defendant No.1 was restrained from interfering into the peaceful possession of the plaintiff and defendant No.2 over the suit property. 2. As per the averments made in the suit, the plaintiff and defendants are sons of Gainda Singh and defendant No.1 is residing separately at village Thakurpura, District Ambala for the last about 20 years, whereas plaintiff and defendant No.2 are residing permanently in village Fatehpur, District Kaithal, where father of the parties, used to reside. So, the plaintiff and defendant No.2 have been serving him. It is further pleaded that residential house described in para No.1 of the plaint was RSA No.4640 of 2004 2 acquired by Gainda Singh vide registered sale deed dated 6.6.1951, whereas the land described in para No.1 (f) of the plaint was also purchased by Gainda Singh, vide registered sale deed dated 29.12.1964. Further, Gainda Singh has suffered a decree dated 21.7.1984 in respect of the properties described in para No.1 and 2 of the plaint in favour of the plaintiff and defendant No.2 in Civil Suit No.540 of 1984 in the Court of Sh. Vinod Jain, the then learned Sub Judge, Kaithal. The said defendant challenged the decree in Civil Suit No.379 of 1985, which suit was decreed but subject to the rider by the court of Sh. N.D. Achint on 11.1.1992. The present defendant No.1 as also defendant No.2 filed two separate appeals and both these appeals were decided on 19.2.1997 by the Court of Sh. S.P. Singh, the then learned Addl. District Judge, Kaithal holding therein that the land measuring three acres was ancestral in the hands of Gainda Singh, while the other land and residential house were his self acquired property. Further, it is pleaded that as 3 acres of ancestral land is not separable from the non-ancestral land, so the entire land will be deemed to be non-ancestral. As a result of the said facts, Gainda Singh will be deemed to be owner of entire property described hereinbefore. The said Gainda Singh had died on 6.9.1994 at village Fatehpur, who had duly executed a registered Will dated 1.1.1993 bequeathing his entire property including the property mentioned above in favour of plaintiff and defendant No.2 in equal shares and since then they are owners in possession in equal share of the said properties and defendant No.1, has got no right title or interest in respect of the property, but he with an ulterior motive has started denouncing the title of plaintiff and defendant No.2 in respect of the suit property. Thus, the plaintiff has prayed that a decree for declaration be passed in his favour and in favour of defendant No.2, being owner in possession, in equal shares of the suit property and defendant No.1 has no RSA No.4640 of 2004 3 right, title or interest therein, with consequential relief of permanent injunction restraining defendant No.1 for ever from interfering, in any, manner with the peaceful possession and enjoyment of the suit property. 3. Defendant No.1 has resisted the suit and has filed written statement raising various preliminary objections viz that the suit of the plaintiff is false, frivolous and bogus and as such is liable to be dismissed with special costs. The suit has been filed with mala fide intention just to deprive defendant No.1 from his right to use and occupy the suit property. The suit is also bad for misjoinder and non-joinder of necessary parties and is barred by the principle of resjudicata. 4. It is further pleaded that defendant No.1 is a permanent resident of Fatehpur, District Kaithal, and it is denied that the plaintiff and defendant No.2 ever served Gainda Singh deceased, father of the parties. Further, it is pleaded that the property detailed in para No.1 of the plaint is ancestral property as it was acquired from the funds of the joint Hindu Family because Gainda Singh had no independent income except the earning of Joint Hindu Family property. Further, it is averred that the property detailed in para No.1 and 2 of the plaint is Joint Hindu Family ancestral property and detailed in para No.1(f) of the plaint is Joint Hindu Family ancestral property as the same was acquired from the funds of the Joint Hindu Family. 5. It is also submitted that the decree dated 21.7.1984 has been declared as null and void vide order dated 19.2.1997 passed by Sh. S.P. Singh, the then Additional District Judge, Kaithal. It is further contended that the entire suit property is a Joint Hindu Family and ancestral property and all the heirs of said Gainda Singh, including the parties to the suit are owners in possession of the suit property in equal shares. It is denied as wrong that Gainda Singh ever executed any Will dated 1.1.1993. Rather, it RSA No.4640 of 2004 4 is pleaded that neither the said Gainda Singh was competent to execute any Will in favour of any one nor he could execute any Will as the entire property detailed in para Nos.1 and 2 of the plaint is ancestral/Joint Hindu Family Property of Gainda Singh, who was Karta/Manager of the said Joint Hindu Family and he had no right to execute any Will in respect of ancestral/Joint Hindu Family property in favour of any person. Thus, all the heirs of said Gainda Singh are owners in possession of the suit land in equal shares after his death and defendant No.1 being co-owner in the suit land has every right in the suit property. The defendant No.1 has prayed for dismissal of the suit. 6. Upon the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether Gainda Singh father of the parties executed a valid Will dated 1.1.1993 in favour of plaintiff No.1 and defendant No.2? OPP 2. Whether the suit land is ancestral land and Gainda Singh has no right to alienate the same? OPD 3. Whether the suit is barred by principle of resjudicata? OPD 4. Whether the suit is bad for mis-joinder and non- joinder of the parties? OPD 5. Whether the suit has been filed with malafide intention? OPD 6. Relief.” 7. On conclusion of the evidence, the trial Court after hearing both the counsel for the parties vide its judgment and decree dated 5.3.2001, decreed the suit of the plaintiff declaring that plaintiff and RSA No.4640 of 2004 5 defendant No.2 are owners in possession in equal share of the suit property mentioned in para No.1 and 2 of the plaint and defendant No.1 was restrained from interfering into the peaceful possession of the plaintiff and defendant No.2 over the suit property. 8. While decreeing the suit, the trial Court held under issue No.1 that Gainda Singh-deceased had validly executed registered Will dated 1.1.1993 in favour of the plaintiff and defendant No.2. Under issue No.2, the suit property was held to be self acquired property and Gainda Singh was held to have a right to alienate the same in any manner. 9. Feeling aggrieved, defendant No.1-Azad Singh challenged the aforesaid judgment and decree of the trial Court by filing an appeal which was dismissed by the Additional District Judge, Kaithal vide impugned judgment and decree dated 3.9.2004. It is relevant to mention here that while dismissing the appeal of defendant No.1, it was found by the Lower Appellate Court that the learned counsel for the appellant has not challenged the Will in question nor has raised any substantial argument attacking the said Will and the only point argued was that the property in dispute is ancestral and Gainda Singh-deceased has got no right to transfer the said ancestral land by way of Will in favour of the respondents. 10. Feeling aggrieved against the judgments and decrees of the Courts below, defendant No.1 has filed the instant appeal. 11. Sh. A.P. Bhandari, learned counsel for the appellant, has argued that the Courts below have totally misread and misconstrued the evidence brought on record and the judgments and decrees of the Courts below deserve to be set aside as the land in dispute is ancestral as per the doctrine of blending the whole property would become ancestral in nature. It has been further argued by the learned counsel for the appellant that the plaintiff himself has admitted in para No.12 of the plaint that 3 acres of land RSA No.4640 of 2004 6 is ancestral in nature and thus, the alleged Will dated 1.1.1993 is non est and void ab initio and Gainda Singh-deceased was not competent to execute the Will. Learned counsel has also argued that the suit was barred by principle of res judicata as the same controversy has already been decided in the previous litigation between the parties and has thus, prayed for acceptance of appeal and dismissing the suit of the plaintiff- respondents. 12. On the other hand, learned counsel for the respondents has supported the findings of the Courts below and has argued that there is no evidence at all nor it has been established on the file that Gainda Singh has mixed his private property in hotchpotch and has also abandoned his right and interest of separate property in dispute. It has also been argued by the counsel for the plaintiff-respondents that since the Will in question has not been attacked in appeal by the counsel for the appellant, therefore, the arguments submitted by him on the doctrine of blending have no substance at all and do not favour the appellant. Repudiating the arguments of the learned counsel for the appellant regarding res judicata, it is argued by the counsel for the plaintiff-respondents that the present suit is maintainable as no cause of action accrued at the time of institution of the previous suit because the evidence available on the file clearly reflects that the father of the parties Gainda Singh had died much after the institution of the previous suit. So, the Will sought to be executed by Gainda Singh could not be acted upon nor any cause of action accrued in favour of the plaintiffs at that time on the basis of the said Will. Thus, it is prayed that the appeal is without any merit and the same be dismissed. 13. On the basis of the above noted arguments, learned counsel for the appellant has sought to raise the following substantial question of law:- RSA No.4640 of 2004 7 “Whether the learned Courts below have totally ignored the settled principles regarding doctrine of blending and have rather implemented the same in a totally opposite manner thereby making the whole property as self-acquired/non- ancestral?” 14. I have heard learned counsel for the parties and perused the record. 15. The only moot point to be decided in this appeal is as to whether under the facts and circumstances of this case the nature of the property in the suit can be deemed to be an ancestral property. As per the arguments of the learned counsel for the appellant, self acquired property which merged with ancestral property will acquire the status of the ancestral property as a whole on the basis of doctrine of blending and the same cannot be transferred in favour of any person by Gainda Singh on the basis of the Will. The counsel has relied upon the judgments cited as Smt. Kesar Bai (Dead) through LRs v. Ran Singh 2003 (3) RCR (Civil) 94 Smt. Meenakshy and others v. Smt. Vellakutty alias Kamla and others AIR 1991 (Karnal) 148, Bishan Singh and other v. Ved Parkash and another 2001(1) SLJ (HP) 250 & Mewa Singh and others v. Sampuran Singh 2000(3) CCC 573 (P&H) 16. I have carefully gone through the judgment and decree cited by the learned counsel for the appellant and the proposition of law, in terms of the said authorities which emerges is that for treating the whole property as ancestral, if the non-ancestral and ancestral properties are mixed together in hotch potch, there should be a specific intention of a co- parcener to abandon his separate exclusive right and to concede the property as belonging to Joint Hindu Family consisting of himself and other persons. However,the basic law has been laid down in an authority cited RSA No.4640 of 2004 8 as Indar Singh v. Gulzara Singh and others AIR (38) 1951 Punjab 345 wherein it is specifically mentioned that where the ancestral land and the non-ancestral are so intermingled that it is difficult to say what portion is ancestral and what is not, it must be held that the whole has not been proved to be ancestral property. The Hon'ble Supreme Court of India in K.V. Narayanan v. K.V. Ranganadhan and others AIR 1976 SC 1715 has laid down that property separate or self acquired of a member of Joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock. It has also been laid down in the said authority that the question whether a co- parcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights. The mere fact that the properties were not separately entered by the co-parcener in the account books or that no separate account of the earnings from these properties was maintained by him can not rob the properties of their character of self acquired properties. 17. So, it is clear that in order to declare the property after blending, as ancestral, there should be specific intention of a co-parcener of abandoning his right in the said property which is specifically absent in the facts and circumstances of the instant case. The counsel for the appellant simply wants to take benefit of reference of three acres of ancestral land mixed with non-ancestral land of Gainda Ram, thereby making it an ancestral land, as an admission of the plaintiff that the suit property is ancestral. There is no evidence or admission that Gainda Singh has thrown his self acquired property into the common hotchpotch of ancestral property with an intention of abandoning his separate claim therein or he has shown the clear intention to waive his separate right to RSA No.4640 of 2004 9 make the whole property as ancestral. I would like to mention over here that even in the previous litigation, there is statement of Gainda Singh available on the file at Ex.D7 wherein he has specifically stated that the residential house as well as other property has been purchased by him from his own income and the same is his self acquired property. It has no where been stated by him in Ex.D7 that he has mixed the property with the ancestral property and has abandoned his claim. Gainda Singh in his statement Ex.D7 has categorically stated that he purchased the property from his own funds and the same is his self acquired property and that is why Sh. S.P. Singh, the then learned Addl. District Judge in Ex.D7 has held that only three acres of land is ancestral and the rest of the property is self acquired property of Gainda Singh. In Ex.D7, there is specific reference that Gainda Singh defendant No.1 has himself admitted in his statement that only three acres of land was ancestral in nature. Moreover, the counsel for the present appellant Azad Singh before that appellate court has contended that the other properties were purchased by Gainda Singh out of income of ancestral land measuring 3 acres and thus, the entire suit property has to be consider ed as ancestral and this contention was not accepted by the Court in absence of convincing and cogent evidence in the previous litigation and consequently, it was held that the land measuring 3 acres was admitted to be ancestral land whereas the remaining property is not of ancestral nature which is a self acquired property of Gainda Singh and thus, none of his son has any pre-existing right therein. The said findings of the appellate Court in Ex.D7 has become final and binding as the same has not been assailed by either of the party before the High Court. So, under such circumstances the law referred to by the counsel for the respondent-plaintiff is attracted to the facts of the present case which is laid down by this Court in Inder's case (supra) as RSA No.4640 of 2004 10 well as on the basis of guidelines and ratio of doctrine of blending laid down by Hon'ble Supreme Court of India, as discussed here-in-above. 18. It is also relevant to reproduce the findings of the Lower Appellate Court in this regard which are as under:- “The onus of proving issue No.2 was heavy upon the appellant-defendant No.1 to prove that the suit land is ancestral and Gainda Singh has no right to alienate the same. But he has led no cogent, relevant and admissible evidence on the file to prove this fact that the remaining portion of the property of Gainda Singh was ancestral. The appellant is mainly banking upon the reference in para No.12 of the plaint considering the same to be an admission of plaintiff regarding doctrine of blending and treating the whole property as non-ancestral. But I am of the view that the admission of the plaintiff is not that the whole property is ancestral in the hands of Gainda Singh. Rather, their stand is that the whole property is non-ancestral and self acquired property of deceased hereinabove, there is no evidence at all on the file which establishes or proves that deceased Gainda Singh has abandoned his right in the self acquired property and intermingled the same with the ancestral property in order to make it as ancestral. If that is so, then it can be safely said that the nucleus and intention of the mind of deceased Gainda Singh was that the whole self acquired property cannot be intermingled with the ancestral property and if a marginal ancestral property is mixed with the self acquired property of Gainda Singh, RSA No.4640 of 2004 11 the same certainly acquires the status of non-ancestral property as has been decided by the trial Court, if the ancestral property is non-separable from the self acquired property of deceased Gainda Singh. However, I would like to mention over here that the pleadings of the present suit clearly reveals that a residential house comprising of 16 rooms and fully detailed in para No.1 of the plaint is held to be self acquired property of deceased Gainda Singh. The same is the finding of the appellate Court in the previous litigation in Ex.D7 and there is no dispute that the said residential house cannot be separable from the other agricultural land of deceased Gainda Singh. The only dispute remains with regard to the agricultural land which is mentioned in para No.2(a) to 2(f) of the plaint and the description of agricultural land given in the said paras clearly reflects that 3 acres of ancestral land is certainly intermingled and mixed with the self acquired property of deceased Gainda Singh and while applying the ratio of law contained in K.V. Narayanan's case (supra) the law of Hon'ble Superme Court, it can be safely said that it has not been established on the file that Gainda Singh has waived his right in the separate property or has any clear intention to mix the property with the ancestral property to make the self acquired property as an ancestral property. Under such circumstances, it can be safely said that the arguments raised and submitted by the counsel for the respondent-plaintiff are certainly on RSA No.4640 of 2004 12 right/correct footings and the findings of the trial Court in this connection that in the event of inter-mingling of ancestral property as well as non-ancestral property, which is non-separable, the whole suit land along with the residential house is held to be non-ancestral property to that of Gainda Singh i.e. Self acquired property is certainly legal, valid based on facts and law and required no interference from the appellate Court. The said observations \are based on the main law laid down by Hon'ble Supreme Court of India. Under such circumstances, the various authorities cited by the learned counsel for the appellant in this connection does not held the appellant as the same are on distinguishable facts and circumstances.” 19. No other point has been argued. 20. For the reasons recorded above, I find no merit in the appeal`. No substantial question of law arises for the determination of this Court in this appeal. 21. Dismissed. September 22, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.4640 of 2004 13