RSA No. 1365 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1365 of 1990 Date of Decision: 29.04.2010 Hardial Singh ..Appellant Vs. Nahar Singh (Deceased) through LRs. & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr. Mr.Anil Kumar Garg, Advocate, for Mr. Amarjit Markan, Advocate, for the appellant. Ms. H.K.Dhillon, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal by the defendant/appellant is RSA No. 1365 of 1990 2 directed against the judgment and decree dated 13.3.1990 passed by the learned courts below in a suit for declaration filed by the plaintiff/respondent. Nahar Singh, plaintiff/respondent filed a suit for declaration, to challenge the judgment and decree dated 16.12.1983 passed in Civil Suit No.392 of 9.8.1983 titled Hadial Singh Vs. Inder Singh, vide which Inder Singh son of Pali alias Nika Singh transferred 23 Bighas 9 biswas and 12 Biswasis of suit land in favour of Hardial Singh appellant. The decree was said to be unlawful, and having no effect on the rights of the plaintiff son of Pali, on the plea that the suit land was joint Hindu coparcenary property. Consequential relief of permanent injunction was prayed, restraining the appellant from alienating the suit land, in any, manner. Plaintiff/respondent claiming himself to be the brother of Inder Singh, claimed the suit land to be joint Hindu coparcenary property of plaintiff and defendant No.2. Defendant No.2 was Karta of joint Hindu family. Suit land was inherited by the plaintiff and defendant No.2 from their father Pali alias Nika Singh, who had inherited the property from his father Attar Singh. It was the case of the plaintiff that defendant No.2 was not competent to transfer the suit land in favour of defendant No.1 without legal necessity. Transfer, therefore, was said to be against law. Impugned decree dated 16.12.1983, was said to be collusive, and having no effect on the rights of the plaintiff, therefore, liable to be set aside. It was pleaded that defendant No.1. had no right to alienate the suit property. RSA No. 1365 of 1990 3 During the pendency of the suit defendant No.2 Inder Singh died and his name was deleted from array of parties, as the plaintiff Nahar Singh claiming himself to be the brother of Inder Singh, was his only legal heir. The suit was contested by appellant/defendant No.1, by taking a plea that judgment and decree dated 16.12.1983 was legal and was passed in consonance with law. Application was moved by the plaintiff/respondent, under Order 1 Rule 10 of the Code in the suit in which decree dated 16.12.1983 was passed. The application was dismissed. Therefore, the suit was said to be barred by principles of res judicata. On merit, averments made in the plaint were denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiff and Inder Singh constituted joint Hindu family? OPP 2. If issue No.1 is proved, whether the suit property is joint Hindu family co-parcenary property? If so, its effect? OPP 3. Whether the decree dated 16.12.1983 is unlawful as alleged? If so, its effect? OPP 4. Whether the plaintiff has locus standi to file the present suit? OPP 5. Relief. RSA No. 1365 of 1990 4 Learned trial court took up issues No.1 to 3, together and on the basis of oral and documentary evidence placed on record, decided all these issues in favour of the plaintiff and against the defendant. The learned court held that the plaintiff and Inder Singh constituted a joint Hindu family with the plaintiff/respondent. The suit property was, therefore, held to be joint Hindu family coparcenary property. In view of the findings on issues No.1 and 2, decree dated 16.12.1983 was held to be unlawful, and having no effect, on the rights of the plaintiff/respondent. On issue No.4, it was held that the plaintiff had locus standi to file the suit. The suit was decreed and the plaintiff was held to be the owner of the suit land. The decree dated 16.12.1983 was set aside with consequential relief of permanent injunction, restraining the defendant/appellant from alienating the suit property. The defendant/appellant preferred an appeal. The appeal was partly accepted, and the decree was modified. The suit of the plaintiff for declaration to challenge the decree being against law, null and void and ineffective against the plaintiff was affirmed, to the extent of half share of the land transferred, vide decree referred to above. Consequently permanent injunction was also granted qua ½ share of the land, while claim of other ½ share was ordered to be dismissed. Learned lower appellate court, modified the judgment and decree, for the reason that as per Ex.P.20 i.e. excerpt, copy of the jamabandi RSA No. 1365 of 1990 5 for the year 1907-08 AD pertaining to Khewat No. 36, Khatoni No.65, showed that the land mentioned therein was held by Attru and Atri ,in equal share. There was also a note in the Intkhab Paimaish pertaining to the year 1909, to the effect that vide mutation No.566, the land held by Mst. Attri, devolved upon Attru and Didar, in equal share. Similarly, there was a note showing that partition between Attru and Didar was effected, and specific khasra numbers were allotted to them separately. There was another note which showed, that on the death of Attru his estate, devolved upon Mst. Ralli widow of Bir Singh and Pali Son of Attru in equal shares, vide mutation No.780. Excerpt also contained copy of jamabandi for the year 1992-93 AD, pertaining to khewat No.23 Khatauni No.52, which showed that Pali inherited the land of Rali vide mutation No.341. In this manner he became owner of the entire land. The learned lower appellate court held, that it was not disputed by the parties, that the suit property had been allotted in due course in lieu of the land detailed in jamabandi for the year 1992-93 AD. Learned lower appellate court, therefore, came to the conclusion that the property devolved upon Pali on the basis of mutation No.341, was not ancestral in his hands, for the reason, that it could not be said that sons of Pali had any interest by birth in the property once held by Rali. The learned lower appellate court, further held that it was not even the case set up by the plaintiff, that the property inherited by Pali, on the death of Mst. Ralli was ever thrown by him in to the common stock with the intention of RSA No. 1365 of 1990 6 abandoning all separate claims upon it. The learned lower appellate court came to the conclusion, that it was only half share of the property which was ancestral. Mr. Anil Kumar Garg, Advocate, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the plaintiff being brother could challenge the alienation made by defendant No.2 qua his share of land by claiming it to be ancestral coparcenary property? 2. Whether the property in the hands of Inder Singh son of Pali alias Nika Mal was to be treated to be his self acquired property as he had no male issue being unmarried nor Nahar Singh had any issue? In support of the substantial questions of law referred to above, learned counsel for the appellant has vehemently contended, that even if the stand taken by the plaintiff is accepted in toto,, the property in the hands of Inder Singh qua his share could not be said to be ancestral coparcenary property, as admittedly Inder Singh did not have any surviving son or grand son. The property even if joint between the plaintiff and defendant No.2, could only be treated to be the joint property and not Hindu joint coparcenary property. On consideration of matter, I find force in the contention raised by the learned counsel for the appellant. RSA No. 1365 of 1990 7 Para 221 of Hindu Law by Mulla reads as under:- “Property inherited from paternal ancestor.-- All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. Thus, if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property, as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. However, if he has son's sons' sons or sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and A cannot claim to hold the property as absolute owner nor can he deal with the property as he likes. The position has been materially affected after Section 8 of the Hindu Succession Act 1956, came into force. A father cannot change the character of the joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if it was the RSA No. 1365 of 1990 8 self-acquired property of the father. In the hands of the son, the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship, as joint family property. However, an affectionate gift of his self-acquired property by a father is not ipso facto ancestral property in the hands of the son. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons, and son's son's sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property. the result is that if a person inheriting property from another one of his three immediate paternal ancestors has no son, son's son, or son's son's son, the property is his absolute property, and no relations of his are entitled to any interest in it in his lifetime. Property inherited by a Hindu male from his father, father's father, or father's father's father, is ancestral as regards his male issue, even though it was inherited by him after the death of a life-tenant. Thus, if a Hindu settles the income of his property on his wife for her life, and the property after her death passes to his son as his heir, it is ancestral property in the hands of the son as regards the male issue of such son. Illustrations (a) xx xx RSA No. 1365 of 1990 9 (b) xx xx (c) A inherits certain properties from his father. A has no son, grandson, or great-grandson, but he has a brother ( or a paternal uncle). The brother (or uncle does not take any interest in the property by birth. As regards the brother or uncle, the property inherited by A is his separate property.” Thus, it is clear that when the property is held by brothers, it could be said to be only joint property in their hands but not a coparcenary Hindu joint property in which the plaintiff could claim interest by birth qua the share of defendant No.2. Property in the hands of defendant No.2 could not be said to be Hindu undivided joint coparcenary property qua defendant No.2, also finds support from the judgment of Hon'ble Supreme Court in the case of Smt. Dipo Vs. Wassan Singh & Ors. AIR 1983 SC 846, wherein Hon'ble Supreme Court was pleased to lay down as under:- “2. We do not think that the High Court was justified in dismissing the second appeal on the ground of limitation. The defect was technical as the second appeal itself had been presented in time. It was only a copy of the trial Court's judgment that was filed after the expiry of the period of limitation. The delay in filing a copy of the trial Court's judgment should have been condoned and the second appeal should have been entertained and disposed of on merits. We are also satisfied that the learned District Judge was in error in RSA No. 1365 of 1990 10 dismissing the appeal on the ground that the appellant-plaintiff had not herself presented the memorandum of appeal. The appeal had been admitted by the District Judge earlier and there was no point in dismissing it thereafter on the ground that the memorandum of appeal had not been presented by the party herself. Rules of procedure are meant to advance the cause of justice and not to short-circuit decision on merits. We have no option, but to set aside the judgments of the District Judge and the High Court. Instead of sending the case back to the District Judge for disposal on merits, we have ourselves heard the appeal on merits. The finding that Smt. Dipo is the sister of Bua Singh is a concurrent finding and we accept it. We also proceed on the basis that according to the prevailing custom of the area, collaterals and not the sister are preferential heirs to ancestral property in the hands of a propositus, while the sister and not the collateral is a preferential heir in regard to non- ancestral property. We must add here that we are not quite satisfied that the custom has been properly established, but for the purposes of the present case, we proceed on the basis that the custom has been established. But that is not the end of the problem before us. No doubt the properties which have been found by the lower Courts to be ancestral properties in the hands of Bua Singh are properties which originally belonged to Bua Singh's ancestors. But Bua Singh was the last male holder RSA No. 1365 of 1990 11 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. Property inherited from paternal ancestors is, of course, ancestral property as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mulla's Principles of Hindu La (15th Edition), it is stated at page 289: “...if A inherits property, whether movable or immovable, from his father or father's father, father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he hold the property as absolute owner thereof and he can deal with it as he pleases .....A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons and son's son's sons, but as regards other relations he holds it, and is entitled to hold it as his absolute property.” Again at page 291, it is stated: “The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property, only as regards his male RSA No. 1365 of 1990 12 issue. As regards other relations, it is separate property the coparcener dies without leaving male issue, it passes to his heirs by succession.” 3. We are, therefore, of the view that the Lower Courts were wrong in refusing to grant a decree in favour of the plaintiff as regards property described by them as 'ancestral property of Bua Singh and as regards them the property was was not, ancestral property' and hence the plaintiff was the preferential heir. The plaintiff was entitled to a decree in respect of all the plaint properties. The judgments and decrees of the learned Subordinate Judge District Judge and High Court are set aside and there will be a decree in favour of the plaintiff for all the plaint properties. The plaintiff is also entitled to get her costs throughout from the defendants. The defendants will pay the court fee due to the Government in the suit, appeal, second appeal and the appeal to this Court.” Division Bench of this court in the case of Smt.Asha Rani Vs. The controller of Estate Duty, 1997 (4) RCR (Civil) 210 was pleased to lay down as under: “15. Hindu law is applied to Hindus, subject to any legislative enactment for the time being in force. A joint Hindu family consists of all persons lineally descended from a common ancestor. It is much larger than a coparcenary and RSA No. 1365 of 1990 13 includes the females i.e. the wife and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes a member of her husband's family. The existence of joint estate is not essential requisite to constitute joint family and the family which does not own any property may nevertheless be a joint family. A Hindu coparcenary is a much narrower body than a joint family. It consists of male members of a joint and undivided family who are related to the head of the family for the time being within four degrees. These are sons, grandsons and great grand-sons i.e. three generations next to the holder of the joint property in an unbroken male descent. Coparcenary excludes female members of the joint family. A coparcener acquires by birth an interest in the ancestral property. Property inherited from father, grandfather and great grand-father is ancestral property whereas any other property inherited from other relations is the separate property of the inheritor. A coparcener, subject to the local customary laws, can claim partition of his ancestral property from his father. A Hindu male has absolute right over his self-acquired property and can dispose it of at his will. The last male holder/sole surviving co-parcener enjoys the same powers of disposition of the inherited property as self-acquired property.” Ms. HK.Dhillon, learned counsel appearing on behalf of the RSA No. 1365 of 1990 14 respondents, however contended, that no fault can be found with the judgment and decree passed by the learned lower appellate court, for the reason that it was proved, that the property was inherited by late Inder Singh from his great grand father, therefore, it was ancestral joint Hindu family property in his hands. Property having not been partitioned was a joint Hindu family property, in which the plaintiff/respondent had a right and therefore, could challenge the alienation made without legal necessity by defendant No.2. In support of this contention, learned counsel for the respondents placed reliance on the judgment of this court in the case of Banta Singh Vs. Karnal Singh & Ors. 2005 (4) RCR (Civil) 660. In the judgment referred to above, this court did not decide the right of brother, to challenge the alienation by brother as coparcener but rejected the challenge to alienation merely for want of locus standi of the appellant, to maintain the suit as defendant No.3 in the said suit who had suffered the decree had earlier failed, in his attempt to challenge the alienation. This contention of the learned counsel for the respondent cannot be accepted. The judgment relied upon by the learned counsel for the respondent rather goes against the plaintiff, as it was held in this judgment, that a person having no male issue to succeed to him can alienate the property though ancestral by treating it to be the self acquired property. The contention of the learned counsel for the respondents, therefore, deserves to be rejected. For the reasons stated above, substantial questions of law RSA No. 1365 of 1990 15 framed are answered in favour of the appellant/defendant and against the plaintiff/respondent. Consequently, this appeal is allowed. The judgment and decree passed by the learned courts below is set aside, and the suit filed by the plaintiff/respondent is ordered to be dismissed, but with no order as to costs. 29.04.2010 (Vinod K.Sharma) rp Judge