RSA No.1098 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1098 of 1986 (O&M) Date of Decision: 4.02.2010 Mohinder Kaur ..Appellant Vs. Pargat Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Amarjit Markan, Advocate, for the appellant. Mr.R.K.Gupta, Advocate, for the respondent No.1. --- 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. This is defendant's appeal against the judgment and decree dated 25.2.1986, passed by the learned Additional District Judge, Sangrur RSA No.1098 of 1986 2 vide which suit filed by the plaintiff/respondent No.1, for declaration and joint possession, in respect of the agricultural land measuring 123 Bighas 1 Biswa situated in the revenue estate of village Dhura, stands allowed. Plaintiff/respondent No.1 had also challenged the decree dated 2.11.1983 passed in suit No.728 of 1983, titled Mohinder Kuar Vs. Ujjagar Singh to be null and void and ineffective qua, the rights of the plaintiff. Pleaded case of the plaintiff was that previously Ujjagar Singh was married to Smt.Gurnam Kaur. The plaintiff was born out of the said wed-lock. Smt.Gurnam Kaur died when the plaintiff/respondent was only 2½ years old. Shri Ujjagar Singh remarried Mohinder Kaur, defendant No.2. Darshan Singh and one daughter were born out of this wedlock. The pleaded case of the plaintiff was, that the parties were Jat and therefore, governed by Hindu law in the matter of alienation. The suit land was said to be joint Hindu family, coparcenary property. Defendant No.1 with the intention of depriving, the plaintiff of his legitimate share, in the joint Hindu family coparcenary property illegally transferred the suit land, in favour of defendant No.2, through collusive decree dated 2.11.1983. Decree was said to be null and void and ineffective qua the rights of the plaintiff. Case of the plaintiff was that defendant No.1 being Karta, was under obligation to manage the property so as to derive the maximum benefit. Suffering of decree was said to be mala fide. The case of the plaintiff was, that his request, to treat the decree as nullity was not accepted, therefore, the suit was filed. On notice, defendants appeared and filed written statement. RSA No.1098 of 1986 3 Relationship between the parties was admitted. It was averred that the parties were not governed by Hindu Law, in the matter of alienation but by customary law, in the matter of succession and alienation. The suit property was claimed to be, not a joint Hindu family and coparcenary property. The suit property was self-acquired property of defendant No.1. It was, thus, claimed that defendant No.1 being sole owner of the suit land could validly transfer the land in favour of defendant No.2. The decree was legal and effective against the plaintiff. Other averments made in the plaint on merit were denied. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether suit property is joint Hindu Family and coparcenary property of the parties? OPP 2. Whether defendant No.1 validly alienated the suit land in favour of defendant No.2 on 2.11.1983? OPP 3. Whether plaintiff is entitled to injunction prayed for? OPP 4. Relief. In support of his case the plaintiff appeared in the witness box as PW 1, and also examined Jagrup Singh PW2 and also relied upon revenue record Ex.P.1 to Ex.P.3 i.e. copies of judgment and decree, plaint, written statement and also the statement made by defendant No.1, in civil suit No.728 of 1.10.1983 Ex.P.9 to Ex.P.13. RSA No.1098 of 1986 4 Defendants, on the other hand, examined Ujjagar Singh as D.W. 1. Learned trial court took up issues No.1 to 3 together. Learned trial court on appreciation of evidence held that the plaintiff/respondent was living separate from his father for the last 10-15 years, therefore, he did not constitute joint Hindu family with the defendants. The learned trial court also concluded that PW 1 in his statement deposed that his grand-father separated his son and retained 1/5th share with him which was inherited by his grand-mother, on the basis of Will. The land was further inherited by seven persons, so there was disruption of joint Hindu family during the life time of the grand-father of the plaintiff. The learned trial court, held that the plaintiff and the father of the plaintiff never constituted joint Hindu family. The learned trial court further held that the suit land might be ancestral, but the plaintiff/respondent miserably failed to prove it to be co-parcenary property. Learned trial court further held that from Ex.P.6, it was clear that as far back as in 1970, grand-father of the plaintiff had suffered a collusive decree in favour of his son and retained 1/5th share with him, so the suit land lost the character of coparcenary property in the year 1970. Shri Ujjagar Singh, thereafter, became absolute owner of the suit land in the year 1970. He was, therefore, fully competent to alienate the property. Issues No.1 to 3 were decided against the plaintiff. Consequently, the suit was dismissed. In appeal the learned lower appellate court held, that the question 'whether the property is joint Hindu family and coparcenary RSA No.1098 of 1986 5 property', was most material issue in this case, as findings on other issues were dependent upon this issue. The learned lower appellate court held, that the conclusions arrived at by the learned trial court, were erroneous as it stood proved from the copy of the jamabandi for the year 1968-69 Ex.P.6, that the suit land was previously owned by Ujjagar Singh the father of defendant No.1. The suit land in the hands of Ujjagar Singh was ancestral qua the plaintiff/respondent No.1. He had, therefore, acquired interest therein by birth. Even if the defendant No.1, had separated from his father, the suit land did not cease to be ancestral or coparcenary property, so far as the plaintiff/respondent No.1 was concerned. The property, therefore, could not be said to be self acquired property of Ujjagar Singh, defendant No.1, as it was inherited by him from his father Ujjagar Singh. The learned lower appellate court held, that the plaintiff had acquired interest in this land by his birth. The learned lower appellate court also held that there was no material, to prove that the plaintiff was living separately from his father for the last 10-15 years, even though his wife was found cooking food separately just few months, prior to the filing of the suit. Findings of the the learned lower appellate court. Therefore, was that this fact alone did not amount to disruption of joint Hindu family. The learned lower appellate court also held that there was no evidence, that any partition had taken place or that the plaintiff/respondent No.1, had relinquished his share in the property, which was proved to be coparcenary property. The learned lower appellate court, therefore, held that it could not be said, that the RSA No.1098 of 1986 6 appellant/defendant had become absolute owner of the suit land in the year 1970, under a collusive decree as held by the learned trial court. It was held that the suit property was joint Hindu family and coparcenary property. Findings of the learned trial court on issue No.1 was reversed. The learned lower appellate court thereafter proceeded to record a finding, that defendant No.1 could alienate the property only for legal necessity or for the benefit of the family. The decree suffered in favour of defendant No.2 could not be said to be for legal necessity and reversed the findings, and held that the plaintiff/respondent No.1 was entitled to decree for declaration and joint possession of the suit land, measuring 123 bighas 1 biswas situated at village Dhura as detailed in the head-note. The decree dated 2.11.1983 passed by Civil Suit No.728 of 1.8.1983 titled Mohinder Kaur Vs. Ujjagar Singh was held to be null and void and ineffective, qua the rights of the plaintiff/respondent. Appeal was accepted by setting aside the judgment and decree. The suit was ordered to be decreed. Mr. Amarjit Markan, 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 in view of the proved fact that Ujjagar Singh was separated from his father, by partition of the share of all the co-parceners, the suit land ceased to be ancestral coparcenary property qua the plaintiff? RSA No.1098 of 1986 7 2. Whether decree suffered by Ujjagar Singh on the basis of family settlement could be challenged after the partition of the property in the year 1970? In support of the substantial questions of law learned counsel for the appellant, vehemently contended that where a co-parcener takes definite share in the property, then he becomes the owner of that share, and can alienate it by sale or mortgage, in the same manner as he can dispose of his self acquired property. The contention of the learned counsel for the appellant was, that once it was proved that father during his life time, had partitioned the property amongst his sons by retaining 1/5th share to himself, then the property lost the character of a joint Hindu coparcenary property. In support of this contention, learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Hardeo Raj Vs. Sakuntala Devi and Ors. 2008 (3) RCR (Civil) 196, wherein Hon'ble Supreme Court has laid down as under:- “21. For the purpose of assigning one's interest in the property it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceased to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants in common”. The decision of this court in State Bank of India RSA No.1098 of 1986 8 (supra), therefore is not applicable to the present case. 22. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.” Learned counsel for the appellant also referred to Paras No.321 and 322 of Hindu Law by Mulla which read as under:- “321. What is partition. According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property, or that a particular member, has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. After the shares are so defined,the parties may divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before. However, whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The pro0erty RSA No.1098 of 1986 9 ceases to be joint and immediately the shares are defined, and henceforth, the parties hold the property as tenants-in-common. In Kalyani Vs. Narayanan, the Supreme Court reviewed the case law on the subject and reiterated the principle that: “......a disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant-in-common irrespective of whether there is actual division of the properties by metes and bounds. Such would be the position, unless there is proof or reunion as understood in law. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition. When there is a severance of the joint family from a particular date, but the properties are not partitioned, the members of the family become tenants in common and would be liable to account for the incomings received by them till the time that a final partition takes place and the properties are in the respective possession of such members. Such RSA No.1098 of 1986 10 coparcener are tenants in the common but cannot be characterized as trustees.” Placing reliance on the decision of the Supreme Curt in Kalyani V. Narayan, the Orissa High Court held that a suit for partition could not be dismissed on the ground of prior partition, the suit was decreed. A prior partition has, however, to be proved. Where, at a partition between a Hindu, his two sons, and his two wives, one-fifth was allotted to each of the sons and three-fifths to the father and his wives, it was held that the father and his wives became tenant-in-common, but though they had not divided their shares by metes and bounds inter se, there could be no reunion between them, and the father therefore had no right to sell the properties or the wives and any such alienation by him was not binding on them. 322. Partition by father during his lifetime. The father of a joint family has the power to divide the family property at any moment during his life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se. The consent of the sons is not necessary for the exercise of that power. However, a grandfather has no power to bring about a separation among his grandsons. Even if he allots shares, they remain joint. This right RSA No.1098 of 1986 11 of a father at times described as his 'superior power' or 'peculiar power' or patria potestas was reiterated by the Supreme Court in Apporva Sbantialal V. IT Commissioner, Gujarat, after referring to a number of decisions on the subject and it was observed that it was recognized in ancient Hindu law and due effect was given to the same. It was also held that a father was entitled to effect a partial partition of joint family properties by virtues of his right as patria potestas. When under a partition by a father, unequal shares are given to the sons, the transaction will be binding on the sons as a family arrangement, if acquiesced in by them. If the partition is unequal and unfair, it is open to the sons if they are majors to repudiate the partition; but if they are minors, it is open to them to avoid it after they attain majority. The partition will be good, until it is set aside. The right of a minor is a personal right and cannot be exercised by other. In any case, it is not necessary for the minor to formally set aside the earlier partition before filing a suit for partition. If the sons find that the partition was not just and fair or unequal, it would thus be open to challenge. A partition between a karta and his wife, who was not a coparcener, ignored the claim of the son, and was considered not a legal partition.” Learned counsel for the appellant contended that factum of partition by the father of Ujjagar Singh, was duly proved. Ujjagar Singh had RSA No.1098 of 1986 12 inherited the property under the decree and it could not be said, that the property in the hands of Ujjagar Singh continued to be Hindu joint coparcenary property. Learned counsel for the appellant also placed reliance on the judgment of this Court in the case of Harnek Singh Vs. Sukhdev Singh 2001 (4) RCR (Civil) 411, wherein this court was pleased to lay down as under:- “11. The second argument which was raised by the learned counsel for the appellant is that it has not been proved on the record that the property in the hands of Santokh Singh was non- ancestral. Rather, according to Mr.Singla, it is proved on the record that the property in the hands of Santokh Singh was ancestral land thus he could not make a Will of the entire land but only limited to his own share. In order to constitute a Joint Hindu Family property it has to be established by the plaintiffs that the property has gone to Santokh Singh by way of survivorship or it has been inherited by him from his father, grandfather or great grandfather but in the present case it is established on the record that the property devolved upon Santokh Singh on the basis of a decree Ex.PA and it cannot be held to be an ancestral property. The learned counsel also drew my attention to the copy of the plaint dated 21.5.1985 in order to show that when Santokh Singh, Amar Singh, Charan Singh and Hazura Singh filed a suit for declaration against their father RSA No.1098 of 1986 13 Waryam Singh, they themselves alleged that the property in the hands of their father is a coparcenary one and, therefore, the finding of the Court below that the property was non-ancestral in the hands of Santokh Singh is erroneous. This argument of the learned counsel for the appellants also cannot be accepted. If the property has not gone to Santokh Singh by way of survivorship, how it can be held to be ancestral. Moreover, this plea is not open to the present appellants who are none else but the sons of Santokh Singh. If Santokh Singh does not allege that the property in his hands was ancestral, how the sons of Santokh Singh can say that the property in the hands of their father was ancestral. In this view of the matter, I repel the second argument of the learned counsel for the appellants and hold that the property in the hands of Santokh Singh was non- ancestral and, therefore, he had the right to execute the will.” Learned counsel for the appellant also placed reliance on the judgment of Hon'ble Supreme Court in the case of U.R.Virupakshaiah Vs. Sarvamma & Anr. 2009 (1) RCR (Civil) 622, to contend that the presumption of joint family gets weaker and weaker from descendant to descendant. The weak presumption can be rebutted by adduction of slight evidence of separate possession of the properties, in which case the burden shifts to the plaintiff, to prove that the family was a joint family In view of the contentions raised, the learned counsel for the RSA No.1098 of 1986 14 appellant contends that the substantial questions of law deserved to be answered in favour of the appellant. Mr.R.K.Gupta, learned counsel for the respondent/plaintiff, on the other hand, contended that the findings of the learned lower appellate court holding, that the property continued to be joint Hindu family property, as the property in the hands of defendant no.1 was inherited from the father, can not be faulted with. The contention of the learned counsel for the respondent was that merely because inheritance was by way of consent decree would make no difference, as the plaintiff/respondent had acquired interest in the property by birth. Learned counsel for the respondent in support or his contention placed reliance on the judgment of Hon'ble Sikkam High Court in the case of Krishna Parsad & Ors. Vs. Shyam Narayan Parsad & Ors. 2006 (4) Civ. C.C. 642, wherein Hon'ble Sikkam High Court was pleased to lay down as under:- “16. The question that needs to be determined is, whether the finding of the learned Appellate Court that the property at the hands of Laxmi Prasad was not ancestral after the partition took place amongst his brothers is legally sound and sustainable. That, Mitakshara School of Hindu Law governs the parties to the suit is not in dispute. Since coparcenary under the Mitakshara School of Hindu Law consists of the original owner and his male heirs up to the four degrees, the contention of the learned counsel is that, upon partition of the properties, Laxmi RSA No.1098 of 1986 15 Prasad, Respondent No.2, Shyam Narayan Prasad, Respondent No.1 along with brothers became the owners of their respective shares along with their sons, grandsons and great grandsons up to the four degrees, if they had any, and if they had no issues, they would become owners of their respective shares in their own individual capacity. A perusal of the impugned Judgment would show that the learned Appellate Court has dealt with the issue in paragraph 48 of the Judgment. As it appears from the Judgment, Shri B.Sharma, learned Senior counsel who had appeared on behalf of the Appellants before the Court referred to an extract from the book 'Family Law' by Paras Dewan and the learned Court quoted the same as follows:- “48. Learned Counsel Shri B.Sharma has relied on Paas Dewan for clarification, and extract is quoted here .......... No other proposition of Hindu Law is so well settled than that when a coparcener partitions from the joint family and takes away his share in respect of his own sons, son';s son and son's son's son it still continues to joint family property but in respect of all others it will be his separate property. It may be illustrated thus: A coparcenary consists of a and his two sons B and C and if they partition the properties obtained by each will be his separate property. Even A's share will be his separate property in the sense that his sons B and C have no RSA No.1098 of 1986 16 interest, no birth-right in it. But the moment any one of them gets a son his share will again become joint family property, this will be so even if A gets another son D; A and D will constitute a new coparcenary.” The contention of the learned counsel for the respondent, therefore, was that even though the property was partitioned by the father of defendant No.1, but qua the plaintiff/respondent the property became a joint family property in which he had right by birth. On consideration, I find force in the contentions raised by the learned counsel for the appellant. It may be noticed here that father during his life time had partitioned the coparcenary Hindu joint family property, and the share falling to each of his son was transferred by way of consent decree. The acquisition is, therefore, not by way of inheritance. The property in the hands of defendant No.1, became self acquired of Ujjagar Singh and lost the character of joint Hindu coparcenary property. The plaintiff/respondent could not, therefore, challenge the alienation by way of consent decree, in favour of the appellant. The proposition of law referred to in Krishna Parsad & Ors. Vs. Shyam Narayan Parsad & Ors. (supra) by the Hon'ble Sikkam High Court, therefore, has no application, to the facts of the case. Principle of Hindu Law referred to above regarding partition by Mulla, read with the judgment of Hon'ble Supreme Court, leaves no manner of doubt that joint RSA No.1098 of 1986 17 Hindu family property was disrupted by way of partition. The consent decree by the father of defendant No.1 of the property in his hand resulted in ceasing the property to be coparcenary Hindu joint family property, which could