- 1 - IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA 274 of 1996. Judgment reserved on 2.1.2008. Date of decision: 11.1.2008. Jalam Singh ……Appellant. Versus Telu and others ……Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Mr. Bimal Gupta, Advocate. For the Respondents: Ms. Bindiya Sharma vice Mr. R.K.Sharma, Advocate. Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment and decree of the learned District Judge dismissing the suit for declaration that release deed(s) executed by Smt. Dharmi and Smt. Mago, daughters of late Shri Kalu in favour of their brother Telu qua their respective shares is illegal, null and 1 Whether reports of Local Papers may be allowed to see the judgment? - 2 - void. The table hereunder will show the relationship of the parties: Kalu Jalam Singh Telu Dharmi Mago Kali Ram (Plaintiff) (Def.1)(Def.2) (Def.3) (dead) ----------------------------------- Atma Ram Daulat Ram Kedar Singh (Def.4) (Def.5) (Def.6). It is undisputed thaqt the parties to the suit have inherited the property from Kalu, who is their common ancestor, father of the plaintiff and defendants 1 to 3. The other son of the deceased Kali Ram is dead and defendants 4, 5 and 6 are his sons. The plaintiff pleaded that the property which is subject matter of the suit, was that of late Shri Kalu and was inherited by the parties to the suit. The plaintiff alleged that the suit land is ancestral and joint and coparcenary property and that the plaintiff and defendants are in possession as co sharers and their possession is jointly and separately recorded in the revenue record. The plaintiff submits that respondent No. 1 Telu is a very clever person, who held out temptations to defendant No. 2 Dharmi and defendant No. 3 Mago who, according to him, were uneducated and simpleton persons and in order to deprive the plaintiff of the shares of defendants 2 and 3 mislead them and to execute - 3 - registered release deed(s) transferring their share to defendant No. 1. The plaintiff then avers that the defendants constitute a nucleus body of co-sharers and they cannot release, relinquish or transfer share to any particular co-sharer except the entire body of co- sharers. The suit of the plaintiff was resisted by the defendants admitting that Kalu was the common ancestor and that the property was inherited by them through him. It was denied that defendants 2 and 3 were out of possession of the suit land. They further denied the fact that any Joint Hindu family existed or that there was a coparcenary. The learned trial Court dismissed the suit of the plaintiff holding that the plaintiff and defendants are co-sharers and that defendants 2 and 3 were not competent to have executed the documents. For reaching this conclusion, the learned trial Court considered the evidence of the parties, which is Jalam Singh (PW-1), who stated that the land is joint Hindu family coparcenary property. Telu Ram (DW-1), Mago (DW- 2) and Dharmi (DW-3) denied the existence of coparcenary. Ex.P-1 is the ciopy of jamabandi for the years 1992-93 showing the land owned by the parties and - 4 - their ancestor Shri Kalu. Ex.P-2 is the certified copy of the release deed(s). The learned trial Court relied upon the decision of the Andhra Pradesh High Court in Kothuri Venkata Subba Rao and others v. District Registrar of Assurances, Guntur, AIR 1986 Andhra Pradesh 42 holding that the release to be effective and operative must be in favour of all the persons interested in the property. The well settled principle of relinquishment is the enlargement of the share or shares of the co- owners and that principle will be defeated if the relinquishment is made in favour of one or a few named co-owners of the several co-owners. Two other judgments were also relied upon by learned trial Court and a reference to para 264 of the Mulla’s Hindu Law was also made in support of the proposition. The law cited by the respondents was brushed aside. In appeal, the District Judge relied upon Paragraph 8.35-B of the Himachal Pradesh Land Records Manual permitting relinquishment by one co-owner in favour of the other. The plaintiff is now in appeal. The appeal was admitted on substantial question of law relating to interpretation of paragraph 8.36-B of the H.P. Land Records Manual. Three - 5 - questions have been framed and of them, this Court has not admitted it on a specific question, but question No. 2 “Whether paragraph 8.36-B of the H.P. Land Records Manual will override the general law that one co-owner can release his share from the joint khata in favour of all remaining co-owners and not some of them excluding others and whether release deed dated 25-3-94 registered on 21.4.94, ext. P-2 is protected under para 8.36-B of ibid Manual?” was urged by learned counsel appearing for the appellant as requiring determination by this Court. In a nutshell, the argument of learned counsel for the appellant is that Para 8.36-B of the H.P. Land Records Manual cannot override the general law as enunciated by the Andhra Pradesh High Court. I have heard the learned counsel for the parties. Before adverting to the wider principles of law urged by learned counsel for the appellant, it must be noticed that there is nothing on record to show that the two registered documents Ex.P-2, termed as release deeds, were in any manner procured by exercise of fraud and undue influence etc. as pleaded. In fact, without noticing the fact that there has been severance in status of the parties, the learned trial Court has - 6 - affirmed the existence of a coparcenary. There is nothing on record to show that such a coparcenary in fact existed after the death of the common ancestor Shri Kalu or that Hindu undivided family which he may have headed as a karta has now broken down into smaller joint Hindu families having their own coparcenary and members of the joint Hindu family. It is trite to observe that the principles of law when urged should be supported by a factual foundation. A Court of law is not called upon to go into academic discussions or to adjudicate on general propositions of law. It is also undisputed that no female can be a part of a coparcenary, although she may be a part of the joint Hindu family. (See Smt. Pushpa Devi v. The Commissioner of Income tax, New Delhi, AIR 1977 SC 2230). In the present case, respondent No. 2 Dharmi and respondent No. 3 Mago can hardly be considered to be a part of either the coparcenary which the law of course prohibits or for that matter members of a common joint Hindu family for the reason that they are married and living with their own families. The very foundation on the basis of which the principle of law is urged has not been established before the Courts below. - 7 - The judgment in K.R.Subbakrishna v. Ningiah and others , AIR 1989 Karnataka 31, reiterates the common principle that a coparcener cannot release his property in favour of another coparcener. In Kothuri Venkata Subba Rao ‘s case (supra), on which much emphasis has been laid by learned counsel for the appellant, the question was the determination of a particular deed for the purposes of affixation of stamp under the Stamp Act. The larger question considered was as to whether a document would be liable to stamp in case it releases interest in common property. The decisions of the other Courts were also noticed and the Court held that release to be operative must be in favour of all the persons interested in the property. In Konijeti Venkayya and another v. Thammana Peda Venkata Subbarao and another, AIR 1957 Andhra Pradesh 619, the High Court of Andhra Pradesh holds: “11. Reliance was placed on a recent decision of a Full Bench of the Madras High Court in Board of Revenue v. Murugesa Mudaliar ILR (1955) Mad 1133: ( (S) AIR 1955 Mad 641) (J) where it was held that a document by which one co- owner purported to abandon or relinquish his claim to the share to which he would be entitled in common property was in - 8 - the nature of a release liable to be stamped under Article 44 of the Stamp Act and not a conveyance liable to duty under Article 19 of Schedule 1-A of the Act. The particular observation relied upon by Sri Rangachari was as follows:- “Each co-owner in theory is entitled to enjoy the entire property in part and in whole. It is not therefore necessary for one of the co-owners to convey his interest to the other co- owner. It is sufficient if he releases his interest. The result of such release would be the enlargement of the share of the other co-owner. There can be no release by one person in favour of another, who is not already entitled to the property as a co-owner.” I fail to see the relevance of this citation. The Court did not purport to lay down that there could not be a conveyance or transfer of the interest of one co-owner to another. Another decision relied upon Subah Lal v. Fateh Muhammad ILR 54 All 628: (AIR 1932 All 393) (K) is only an authority for the position that an owner of an undivided share can be rightly in possession of the whole, that there can be no adverse possession by one co-owner unless there has been a denial of title and ouster to the knowledge of the other co-owners, - 9 - and that the same principle would apply to the case of a transferee from a co- owner who professedly has taken a transfer of the whole property from him. The fact that common property has not been divided by metes and bounds and allotted in severalty to the co-sharers does not stand in the way of the interest of one co-sharer being conveyed to a stranger or another co-sharer. The interest of a co-sharer in common property can be sold, mortgaged or leased to another co-sharer or to a stranger. Sections 7, 8 and 44 of the Transfer of Property Act recognize the validity of such transfers. It is not the law that one co-sharer can only release his interest in favour of the other co-sharers. There can be a conveyance of the interest of one co- sharer to another co-sharer or to all remaining co-sharers with the statutory and other covenants applicable to such conveyance. Section 44 of the Transfer of Property Act provides that a transferee from a co-owner of his share of the property or any interest therein acquires, as to such share or interest, and so far as it is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property - 10 - and to enforce a partition of the same. A lessee from a co-sharer is entitled to the rights of his lessor and can even enforce a partition if it is necessary to give effect to his lease. The sole ground on which partition may be allowed or refused is the ground of convenience, Rajani Mohan v. Shambunath ILR 57 Cal 715: (AIR 1929 Cal 710) (L), Bhagwat Sahai v. Bipin Behari ILR 37 Cal 918 (PC) (M). If as I hold, there can be a valid lease of his interest by a co- sharer in favour of another co-sharer, it is open to the lessee to surrender his interest in the lease to his lessor under section 111(e) of the Transfer of Property Act. On such surrender the lease would stand terminated. In this case, there was such a surrender by the plaintiff of his leasehold interest under Exhibit B-8 before Exhibit B-12 was executed.” This judgment has not been noticed by the later decisions of the Andhra Pradesh High Court relied upon by learned counsel for the appellant. A similar proposition of law has been accepted by the High Court of Allahabad in Smt. Balwant Kaur and others v. State of U.P. AIR 1984 Allahabad 107. It is of course now well settled that Sections 7 and 44 of the Transfer of - 11 - Property Act, 1882 and the Hindu law applicable to Mitakshra prohibits relinquishment by one coparcener in favour of another and permits transfer to the entire body of coparceners. This proposition of law is not and cannot be invoked in the present case for the reason that respondent No. 2 Dharmi and respondent No. 3 Mago are neither coparceners nor members of the joint Hindu family. Merely because the property was inherited by them from their father would not make them coparceners. In these circumstances, there is no necessity to go into the question as to whether paragraph 8.36-B of the H.P. Land Records Manual would override the provisions of general law. There is, thus, no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. January 11, 2008 (PC). (Dev Darshan Sud), J. - 12 -