RSA No. 4023 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4023 of 2011 Date of Decision:- 18.10.2011 Gurmit Kaur and others ....Appellants vs. Gurbachan Singh ....Respondent *** CORAM:- HON'BLE MR.JUSTICE ARVIND KUMAR *** Present:- Mr. D.S.Gurna, Advocate, for the appellants. *** ARVIND KUMAR, J. Plaintiffs have come up in this second appeal against the judgment and decree of the first appellate Court dated 30.7.2011 vide which the judgment and decree of the trial Court to the extent it decreed the suit of the plaintiffs by restraining the defendant from alienating the land and house, as detailed in the plaint being ancestral properties, has been modified and the defendant has been held to be the owner of the land and house in dispute in his individual/self-acquired capacity and the findings of the learned trial Court that the land and house in dispute are ancestral in the hands of defendant, have been set aside. However, since the plaintiffs were proved to be in possession of the house in dispute, the defendant has only been restrained from interfering into the peaceful possession of the plaintiffs thereon, with a liberty to the defendant to take the possession of the house from the plaintiffs in due course of law. Heard. It is apparent that the plaintiffs are wife, daughter and son respectively of defendant-respondent and by filing the suit, they sought injunction for restraining the defendant alienating the land, detailed in the suit and also from interfering in their possession over the house in dispute claiming the same to be the ancestral properties at the hands of the defendant. The defendant claimed the properties in dispute to be his self- RSA No. 4023 of 2011 2 acquired one. The learned trial Court after contest, held the properties, i.e. land and house in dispute to be the ancestral one and accordingly, restrained the defendant from either alienating the same or to interfere in the possession of the plaintiffs. However, while modifying the judgment and decree of the trial Court, the first appellate Court held that the property in dispute in the hands of the defendant was self-acquired property in view of the law laid down by the Hon'ble Apex Court in Commissioner of Wealth Tax, Kanpur v. Chander Sen AIR 1986 SC 1753 and there is no illegality in the alienation made by him in favour of defendant No.2. Counsel for the appellant-plaintiffs contended that the properties in dispute are ancestral properties which had come into the hands of the defendant from his grand-father through his father and therefore, the finding recorded by the first appellate Court that the suit properties had come to the defendant from his father who died intestate on 19.8.1978 as per provisions of Section 8 of the Hindu Succession Act, are to be treated as his separate properties, suffers from illegality. After hearing the counsel for the appellants, I do not find any merit in this appeal. There is no dispute of the fact that the defendant inherited the suit properties after death of father, Chanan Singh, who died intestate on 19.8.1978. The estate was succeeded by his sons and widow in equal shares. It is evident that the defendant Gurbachan Singh inherited the suit properties as per provisions of Section 8 of the Hindu Succession Act in his individual capacity and not as Karta of HUF. What has been observed by the learned first appellate Court in para 13 of the judgment, in this regard, is relevant and the same reads as under:- “ It is not disputed that appellant Gurbachan Singh is father of Respondents No. 2 and 3 and husband of Respondent No.1. It is also evident that appellant has got strained relations with the respondents and he is living separately from them since long. Appellant Gurbachan Singh is son of Chanan Singh son of Booja. From the perusal of Ex. P16, it is evident that Chanan Singh father of the appellant died on 19.8.1978 and his estate was succeeded by his sons and widow in equal shares. As per the law laid down by Hon'ble Apex Court in Chander Sen's RSA No. 4023 of 2011 3 case supra the son inherited property from his father as an individual and not as karta of his own family as per the provisions of Section 8 of Hindu Succession Act 1956. Thus as per the law laid down in Chander Sen's case (supra) property which developed on a Hindu on the death of his father who died in testate after the coming into force of the Hindu Succession Act, 1956 did not constitute Hindu undivided family consisting of his own branch including his sons. Thus in the case in hand property of his father Chanan Singh was inherited by Gurbachan Singh u/s 8 of the Hindu Succession Act in his individual capacity and not as karta of Hindu undivided family. Thus as per law laid down by Hon'ble Apex Court in Chander Sen's case (supra) Gurbachan Singh succeeded property of his father Chanan Singh as an absolute owner and not as a karta of Joint Hindu Family. In these circumstances the land which has been inherited by Gurbachan Singh from his father after the coming into force of Hindu Succession Act, 1956 is to be treated as individual/self acquired property of Gurbachan Singh. Thus his children and wife have got no right or interest in the same by birth. Any other property which has come to Gurbachan Singh from his mother or some other relative is also to be treated as his self acquired property. In these circumstances it is fully proved on the record that the agricultural land which is fully detailed in the head note of the plaint and is situated in village Raqba is not ancestral property in the hands of appellant qua the respondents. Even otherwise if for arguments sake it is assumed that the said land is ancestral in the hands of the appellant then also it is clear that appellant is the karta of the Joint Hindu undivided family and thus in the light of law laid down by Hon'ble Apex Court in Sunil Kumar and anr. Vs. Ram Parkash and others AIR 1988 S.C. 576, a suit for permanent injunction by a coparcener against the father, a karta of joint family for restraining him from alienating the property belonging to the joint hindu family is not maintainable because the coparcener has got the remedy of challenging the RSA No. 4023 of 2011 4 sale and getting it set aside in a suit subsequent to the execution of sale deed. The law laid down by the Hon'ble Apex Court in Sunil Kumar's case supra has been relied upon by our own Hon'ble High Court in Darshan Singh's case supra and Lal Dass's case supra which have been relied upon by the counsel for the appellant. In the light of the circumstances stated above, the suit filed by the plaintiffs restraining the appellant from alienating the agricultural land in question is not maintainable and consequently plaintiffs are not entitled to decree of permanent injunction restraining the appellant from alienating the said land.” Though the contention of the counsel for the appellants is that the properties would be ancestral as the same had come to the defendant from his grand- father and then from father but failed to distinguish the case of the plaintiffs from the law laid down in Chander Sen's case(supra), as has rightly been relied upon by the lower appellate Court while returning the findings reproduced above, to the extent that where the property had devolved upon a Hindu on the death of his father who died intestate after coming into force of the Hindu Succession Act, the same would not be considered to be property owned by him as Karta of Hindu Undivided Family but would be considered as his individual self-acquired property. The first appellate Court has, thus, rightly held that the properties in dispute devolved upon defendant as per Section 8 of the Hindu Succession Act; are not ancestral properties in the hands of the defendant qua the plaintiffs. It is also evident that the plaintiffs were proved to be in possession of the house in dispute and the defendant who was living separately threatened to dispossess them therefrom. Consequently, the first appellate Court rightly affirmed the findings of the trial Court and restrained the defendant from dispossessing the plaintiffs, but in due course of law. No interference is thus, called for the in the judgment and decree of the first appellate Court. No question of law, muchless substantial, arises in this appeal. Consequently, the appeal being without any merit is dismissed in limine. October 18, 2011 ( ARVIND KUMAR) JS JUDGE