R.S.A No.2478 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2478 of 2011 (O&M) Date of Decision: 19.12.2011 Baljinder Singh ...... Appellant Versus Chand Singh and others ...... Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Vijay Kumar Jindal, Advocate for the appellant. ------- RITU BAHRI. J. This regular second appeal is against the concurrent findings recorded by both the learned Courts below. The plaintiff filed the suit for declaration to the effect that 1/5th share of agricultural land measuring 128 kanals 14 marlas is ancestral, coparcenary and Joint Hindu Family property. He has challenged the sale deed dated 22.03.2004, executed by defendant No.1 in favour of his brother and son in respect of 160/2574th share and 354-1/2/2574 share of the suit land and in the alternative suit for joint possession of the land. The said suit land belongs to one Bachan Singh son of Daya Ram the only son who gave the said land to his sons defendant Nos.1 to 5 in family arrangement. Said family arrangement was accepted by way of civil court decree passed by the court of Shri R.S. Sachdeva, Sub Judge IInd Class, Patiala, decided on R.S.A No.2478 of 2011 (O&M) - 2 - 31.05.1985. The plaintiffs- defendants were co-sharers in the ancestral property. Defendant No.1 has no authority to alienate any part of the suit land in favour of any person. On notice, defendants filed written statements and took the preliminary objections disputing the maintainability of the suit on account of less court fee and mis-joinder of parties. On merits they pleaded that after the family partition and passing of civil court decree dated 31.05.1985, all the co-sharers acquired independent rights in the property of Bachan Singh. The transfer made by sale deed dated 22.03.2004 by defendant No.1 to defendant No.6 is only with regard to his share. The sale deed is not illegal and the plaintiff has not taken proper action to file the present suit. From the pleadings of the parties, the following issues were framed: “ 1. Whether the suit property is ancestral coparcenary property?OPP 2. Whether the sale deeds dated 22.3.2004 are illegal, null and void? 3. Whether the defendants are liable to be restrained from interfering in the joint possession of the plaintiff over the suit property and from alienating the suit property?OPP 4. Whether the suit is not maintainable?OPD 5. OPD.” After going through the evidence, the trial Court returned the findings of issue Nos.1 to 3 in favour of the plaintiff. It was held that the property in dispute was ancestral property which had come R.S.A No.2478 of 2011 (O&M) - 3 - to the share of defendant No.1 Chand Singh from his father Bachan Singh. Plaintiff being son of Chand Singh is coparcener in Joint Hindu Family property. The sale executed by defendant No.1 on 22.03.2004 in favour of defendant No.6 and defendant No.5 was without any legal necessity. The sale was liable to be set aside, in view of the authority “Sital Singh Vs. Jamna Bai and Ors” 2004 (3) Civil Court Cases 642 (P&H). The sale made by defendant No.1 is without consent of other coparcener and in view of the judgment “Manohar Lal and Anr Vs. Dewan Chand and others” 1985 PLR 689 (FB) was liable to be set aside. Suit was decreed. On appeal filed by the defendants, the Appellate Court after going through the evidence considered the pedigree table as under: Daya Ram | ______________________ Bachan Singh | Chand Gurnam Jarnail Tara Gurmail Singh Singh Singh Singh Singh defendant defendant defendant defendant No.2 No.5 No.3 No.4 (dead) | | ____________ _________________________________ Baljinder Jaswant Jai Gurmail Manpreet Kamaljit Singh Singh Kaur Kaur Singh Singh Plaintiff defendant mother widow minor minor No.6 son son As per the pedigree table, the property came in the hands of Late Bachan Singh from his father Daya Ram. As per Civil Court decree Ex.P-29, Bachan Singh had R.S.A No.2478 of 2011 (O&M) - 4 - partitioned the land in favour of his sons. Statement of Bachan Singh was recorded in the suit as Ex.PW4/B. Written statement of Bachan Singh was filed through Mr. P.S. Paul, Advocate as EX.PW/K. As per these documents, the family settlement took place on 15.06.1984 between the parties, according to which the suit land fell to the share of plaintiffs and they were in possession of the sale deed. A decree for declaration was passed in favour of the defendants . Mutation was sanctioned in favour of Chand Singh and others Ex.P-20. The Appellate Court reversed the findings given by the trial Court and has held that the family settlement of 15.06.1984 and thereafter as per the judgment and decree Ex.P-29 and Ex.P-30, the plaintiffs had acquired 1/5th share of the suit property in the agricultural land measuring 128 kanals14 marlas. This property was Joint Hindu Family property in the hands of Bachan Singh, the grand father of the plaintiff. After the civil court decree dated 31.05.1985, the mutation was sanctioned in favour of defendant Nos. 5 and 6 on 21.03.2004 which was regarding their own respective shares. Learned counsel for the appellant vehemently argued that the judgment of the Lower Appellate Court is liable to be set aside. The suit land was to continue in the name of Bachan Singh, grand father of the plaintiff, as per jamabandi for the year 1997-98 (Ex.P- 21). Mutation No.267 was sanctioned in the names of sons of Bachan Singh, Gurnam Singh, Chand Singh, Jarnail Singh, Tara Singh and Gurmail Singh. This mutation only goes to prove the nature of the land which was sold without legal necessity. The sale deeds made by Chand Singh in favour of defendant Nos.5 and 6 were rightly set aside by the trial Court. No formal partition R.S.A No.2478 of 2011 (O&M) - 5 - proceedings have been initiated to confer independent title of defendant No.1 in the coparcenery property. Arguments advanced by the learned counsel for the appellant, the present appeal is liable to be rejected. In view of the fact that family settlement which took place on 15.06.1984, which was incorporated in Civil Court decree passed in Civil Suit No.39 dated 02.03.1985 decided on 31.05.1985 in which Bachan Singh filed an affidavit (Ex.P-) and advocate filed written statement, giving 1/5th share to the plaintiffs in the suit land measuring 128 kanals 14 marlas. Mutation was sanction in the name of Bachan Singh and his five sons. A Co-ordinate Bench of this Court in Prabhu Lal Vs. Laxmi & others, 2007(1) Civil Court Cases 448 held that one the family arrived at a settlement in a particular manner, the same does not require any registration. In para 9, it has been observed as under:- “In fact, the Hon'ble Supreme Court in Hari Shankar Singhania and others v. Gaur Hari Singhania and others, 2006(2) Apex Court Judgments 22 (S.C.): 2006(3) Civil Court Cases 17 (S.C.): 2006 A.I.R. Supreme Court Weekly 3330, reviewed the entire case law on the question of family settlement and it was found that it has to be treated differently from any other formal commercial settlement in the eyes of law ensures peace and goodwill among the family members. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well being of a family, it was held to the following effect:- “43. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other R.S.A No.2478 of 2011 (O&M) - 6 - formal RSA No. 4642 of 2000 (9) commercial settlement as such settlement in the eyes of law ensures peace and goodwill among the family members. Such family settlement generally meets with approval of the Courts. Such settlements are governed by a special equity principle where the terms are fair and bona-fide, taking into account the well being of a family. 44. The concept of `family arrangement or settlement' and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into ally (to allay?) disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to Maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in the case of Ram Charan v. Girija Nandini, AIR 1966 C 323.” Subsequently, a Co-ordinate Bench of this Court in Sher Singh and another Vs. Siri Kishan and others, 2010 (4) Civil Court Cases 459 has held that once a partition taken place in the Joint Hindu Property, it looses the character of coparcenary property in nature. The family settlement must be bonafide so as to resolve family disputes and rival claims. “ It is now well settled law, that the consent decree is effective in the same manner as decree after contest. The consent decree does not stand on different footing than the decree rendered after contest. Reliance in support can be placed on the judgments of this Court in Ajit Singh v. Chet Singh (died), 1990 PLJ 540 and Ram Dhari v. Smt. R.S.A No.2478 of 2011 (O&M) - 7 - Darbo, 1996(2) RRR 344. Furthermore, in view of the law laid down by this Court in Suresh Chand v. Siri Ram, 2002 (2) Civil Court Cases 201 (P&H): 2002(2) RCR (Civil) 305, the plaintiffs would not get any right to challenge it in absence of fraud. It was not open to the plaintiff/appellants to challenge the said decree, for want of family settlement, though admitted in previous suit.” For all intents and purposes, the property stood partitioned as accepted by all the family members by passing the civil court decree dated 31.05.1985. This civil suit decree does not require any registration. In the facts of the present case, family settlement took place on 15.06.1984 and thereafter civil court decree was passed on 31.05.1985 (Ex.P-29 and P-30). After passing of the decree mutation was sanctioned in favour of Chand Singh and another (Ex.P-20) for the year 1992-93. The sale deed dated 22.03.2004 made by Chand Singh was within his rights as he was in possession of the suit property after partition. He had all the rights to transfer the same by way of set aside the sale deed. The sale deed cannot be explained on the ground of being a coparcenary property. The plaintiffs have no right to challenge the said sale deed claiming interest in the suit land. No question of law much less substantial question of law arises for consideration by this Court. The present regular second appeal is dismissed. (RITU BAHRI) 19.12.2011 JUDGE sarita