SHER SINGH AND ORS.

GAMDOOR SINGH

DECEMBER 13, 1996

[K. RAMASWAMY AND G.T. NANAVATI, JJ.]

Joint Family property-Suit filed by appellants against A for declaration of share in property-Admission made by A that property was ancestral joint

. f amity property-Decree passed accordingly-Suit filed by respondent for declaration that decree in earlier suit was collusive and not binding on him as C he was not a party to previous suit-Decree granted by Trial Court holding that respondent being a member of joint family was entitled to I/6th share-Decree affirmed in first and second appeal-Appeal before Supreme Court-Held both the parties proceeded on the premise that it was a co-parcenary property belonging to the Joint Hindu Family-The finding recorded D by all the courts is that the property belonged to Joint Hindu Family-Therefore, thefinding that the respondent is entitled to I/6th share by virtue of his birth is well justified and the finding that the previous decree does not bind him as being tainted with fraud, is not vitiated by any error of law.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16965 of E 1996.

From the Judgment and Order dated 8.12.95 of the Punjab & Haryana High Court in R.S.A. No. 2617 of 1995.

Ujjagar Singh, Devender Verma and Mrs. Naresh Bakshi for the F Appellants.

Ms. Shalu and Rakesh Kr. Sharma for the Respondent.

The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides.

This appeal, by special leave, 'arises from the judgment and order of the Punjab and Haryana High Court, made on December 8, 1995 in RSA

No. 2617/95.

H 105

SUPREMECOURTREPORTS(1996] SUPP. lOS.C.R:

A The appellants had filed Suit No. 8 of 9.2.1978 against Arjan Singh, son of Badan Singh in the Court of Sub-Judge, III Class, Patiala for declaration that the plaintiffs in that suit were owners and were in possession from 1968 to the extent of 5/6th share, along with the defendant, of agricultural land admeasuring 74 kanals 12 marlas comprised in Khewat B Khata Nos. 5/5 Khasra Nos. 68/1 (7-10) etc. situated in village Ghagga, Tehsil Samana, District Patiala. Arjan Singh had admitted in his pleadings that the property was ancestral Hindu Joint Family property and suffered

a• decree. The present suit came to be filed by Gamdoor Singh, the respondent in this case for a declaration that the decree therein was collusive decree and did not bind him. The Trial Court granted the decree.

C On appeal it was confirmed and Second Appeal was dismissed. Thus this appeal by Special Leave.

It is contended by Shri Ujjagar Singh, learned senior counsel for the appellants, that unless the respondent establishes that there exists Joint D Hindu Family of three succeeding generations, there is no presumption that the property is the co-parcenary property. Therefore, the view of the courts below that it is a co-parcenary property and that the respondent by virtue of his birth in the family is entitled to 1/6th share in the property and the previous !lecree to which he was not a member does not bind him, is not _correct in law. We do not find any force in the contention. It was E their own case in the previous suit that it is ancestral property and that Arjan Singh and his sons are members of the joint family. Once the existence of joint family was not in dispute, necessarily the property held by the family assumed the character of a co-parcenary property and every member of family would be entitled by birth to a share in the co-parcenary F property unless any one of the co-parceners pleads, by separate pleadings, and proves that some of the properties or all the properties are his self-acquired properties and could not be blended in the co-parcenary property.

It is settled law that even the salf-acquired property can also be G blended into the joint family hotchpoch enveloping the character of co-parcenary property. It is also not pleaded in the written statement that it is not joint family property. The very first issue raised by the Trial Court which was not objected to was whether the property was ancestral property of the parties? The second issue was whether the plaintiff is entitled to H joint possession of the suit land and the third issue was whether the

SHER SINGH v. GAMDOORSINGH 107

previous decree bound the respondent? Under those circumstances, both A the parties proceeded on the premise that it was a co-parcenary property belonging to the Joint Hindu Family. The finding recorded by all the courts is that the property belonged to Joint Hindu Family. Therefore, the finding that the respondent is entitled to 1/6th share by virtue of his birth is well justified and the finding that the previous decree does not bind him as B being tainted with fraud, is not vitiated by any error of law.

It is also an admitted fact that he was not a party to the earlier suit and the decree was granted withoht his consent. Under those circumstances, the finding that it is a collusive decree is a finding of fact based on appreciation of evidence. Under those circumstances, we do not find any C substantial question of law warranting interference.

The appeal is accordingly dismissed. No costs.

T.N.A.

Appeal dismissed.