RSA No.143 of 2007 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.143 of 2007
Date of Decision: 14.7.2009
Savitri Devi and others ......Appellants
Versus
Smt. Angoori Devi and others .......Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Rakesh Gupta, Advocate, for the appellant.
HEMANT GUPTA, J. (Oral).
The appellants are the legal heirs of Dalip Singh son of Suraj
Bhan. Dalip Singh filed a suit for declaration challenging the sale deed
executed by Sher Singh son of Suraj Bhan in favour of defendant Nos. 2 to
5 on 16.1.1992, as not binding upon the plaintiff and defendant No.6,
daughters of Suraj Bhan. As per the case set up by the plaintiff, there was an
oral family settlement in the year 1962 and the property in dispute has fallen
to the share of Dalip Singh in the said oral settlement, whereas the property
in Ganga Nagar, was given to other brother of Dalip Singh.
In the written statement filed on behalf of defendant No.1, it
was alleged that the property in the State of Rajasthan was purchased by the
defendants and has fallen to the share of the defendants in the family
settlement. It was also alleged that the plaintiff has sold his half share in the
property in dispute to Smt. Savitri vide sale deed dated 5.3.1990 and,
thereafter, defendant No.1 has sold his remaining half share to defendant
RSA No.143 of 2007 (2)
Nos. 2 to 5 vide sale deed dated 16.1.1992. The defendant has denied the
alleged oral family settlement propounded by the plaintiff.
Both the Courts have dismissed the suit holding that the oral
family settlement is not proved, inter-alia, in view of the fact that the
property was inherited by the plaintiff Dalip Singh and defendant No.1
Sher Singh, therefore, both as co-owners have sold their respective shares
vide sale deeds dated 5.3.1990 and 16.1.1992.
Learned counsel for the appellant has vehemently contended
that the oral family settlement stands proved by the conduct of the parties as
it was the plaintiff, who was letting out the property at Meham and
collecting rent thereof. Therefore, the finding recorded by the Courts below
that there is no evidence of oral family settlement is not correct.
The said argument is not tenable. It is a question of
appreciation of evidence, whether there was an oral family settlement or not
between the parties. The exclusive management of the property is not an
incident of oral family settlement. Since the plaintiff alone was residing at
Meham, he might be managing the property, but such management would be
on behalf of all other co-sharers also. Suraj Bhan is alleged to have entered
into family settlement with Sher Singh and Dalip Singh in the year 1962,
but father of Dalip Singh died in the year 1977-78. In these circumstances,
the family settlement has been rightly disbelieved.
The fact that the plaintiff has executed sale deed in respect of
half share on 5.3.1990 is a strong indication of the fact that the plaintiff has
only ½ share in the property, which was sold by him. Sometime later,
defendant-Sher Singh sold the remaining ½ share vide sale deed dated
16.1.1992 in favour of defendant Nos. 2 to 5. Such sale deed cannot be
RSA No.143 of 2007 (3)
said to be illegal or void as the plaintiff has failed to prove any oral family
settlement.
Learned counsel for the appellants has argued that in an earlier
suit for partition by the other co-sharers against their father Suraj Bhan,
defendant No.1 has taken up a plea that the said property is not of Suraj
Bhan. Therefore, the finding recorded by the Courts below denying the oral
family settlement is not correct. The said argument is not tenable for the
reason that in earlier proceedings, the issue of oral family settlement was
not raised by the plaintiffs. It was a question of title of their predecessor i.e.
Suraj Bhan. Therefore, the denial of title of the father of the plaintiff in the
aforesaid suit is inconsequential in respect of the alleged plea of oral family
settlement in the present suit.
The argument that defendant No.1 has not appeared as a
witness in the present case, is not again tenable. Firstly, the plaintiff has to
prove oral family settlement if such oral family settlement is proved only
then defendant Sher Singh could be called upon to rebut such family
settlement. Since the plaintiff has failed to prove oral family settlement,
therefore, the non-appearance of defendant No.1 as a witness is
inconsequential.
Consequently, I do not find any patent illegality or material
irregularity in the finding recorded or that the finding recorded gives rise to
any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
14.7.2009
ds