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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5514 OF 2005
Ganeshi (D) through LRs & Ors. .. Appellants
-versus-
Ashok & Anr. .. Respondents
J U D G M E N T
Markandey Katju, J.
1. This appeal has been filed against the judgment and order dated
29.3.2005 of the Punjab & Haryana High Court at Chandigarh in Regular
Second Appeal No. 476 of 1984.
2. Heard learned counsel for the parties and perused the record.
3. The respondents herein filed a Civil Suit being No. 58 of 1980 with a
prayer that the judgment and decree passed in Civil Suit No. 476 of 1978
titled Jagbir and others vs. Ganeshi and others dated 27.10.1978 relating to
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the suit land be declared null and void and a declaration be given that the
plaintiffs have a right to inherit the suit land on the death of defendant No. 1
and in the alternative for declaration that the alienation of the suit land made
by defendant No. 1 in favour of defendants 2 to 5 by the aforesaid judgment
and decree dated 27.10.1978 is null and void being against the custom and
will not operate against the right for succession of the plaintiffs and other
heirs of defendant No. 1 on his death. Plaintiffs Nos.1 and 2 were minors
and the suit was filed on their behalf by the mother Smt. Padam Devi who
was also one of the plaintiffs.
4. The case of plaintiff Nos.1 and 2 was that they are the sons of one
Ramgopal and Padam Devi, widow of deceased Ramgopal. It was alleged
that the plaintiffs as well as the other defendants were the descendants of
defendant No. 1 as given in the pedigree table given in para of the plaint.
The plaintiffs Nos. 1 and 2 are minors and they filed the present suit through
their mother Smt. Padam Devi. It was alleged that defendant No. 1 is a
Hindu Jat and is governed by the agricultural custom according to which
ancestral immovable property cannot be alienated except for legal necessity
and consideration.
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5. It was alleged that defendant No.1 Ganeshi had three sons, being
Ramgopal, Dharambir and Jugal. Ramgopal , father of the plaintiffs died
some years ago. It was also alleged that defendant No. 1 was under the
influence of his surviving sons namely, Dharambir and Yugal Kishore @
Jugal Singh. Defendant No. 2 is the son and defendant No. 3 is the wife of
Dharambir. Defendant No. 4 is the son and defendant No. 5 is the wife of
Yugal Kishore @ Jugal Singh.
6. It was alleged that a month before filing of the plaint, the plaintiffs
came to know the that in order to deprive them of their right to inherit the
suit land on the death of defendant No. 1, defendant Nos. 2 to 5 filed a
collusive suit against defendant No. 1 bearing suit No. 476 of 1978 in the
Court of sub-Judge, IInd Class, Palwal for declaration that they are owners
of the suit land. Defendant No. 1 suffered that decree against him on his
admission on 27.10.1978. It was alleged that the said decree could not
extinguish the rights of ownership of the plaintiffs in respect of the suit land,
and it was null and void and would not operate against the plaintiff’s right of
succession on the death of defendant No.1. It was further alleged that
plaintiffs Nos.1 and 2 are sons of Ramgopal and the land is ancestral
property. According to agricultural custom defendant No.1 could not
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transfer the suit land in favour of defendant Nos.2 to 5 who were not his
heirs to the exclusion of the plaintiffs who were his heirs. It was further
alleged that, in the alternative, the said decree amounts to alienation and
without consideration and legal necessity. It was alleged that defendants
Nos.6 & 7 have colluded with defendant Nos.1 to 5.
7. The defendants contested the suit. It was alleged in the written
submissions that defendant No. 1 did not transfer and alienate the land in
suit in favour of the answering defendants, but the suit land was settled on
them by way of family settlement arrived at between the defendants. Some
agricultural land was already gifted by defendant No.1 in favour of plaintiffs
Nos.1 and 2. It was because of that reason that the family settlement was
arrived at in order to avoid family dispute.
8. It was alleged that since defendant No.1 gifted some of his land in
favour of plaintiff Nos.1 & 2, this resulted in a family unrest and hence
defendant No. 1 pacified all the members of the family by way of a family
settlement. It was denied that the land was ancestral. It was also denied that
defendant No.1 was under the influence of his surviving sons.
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9. The trial court decreed the suit holding that the judgment and decree
dated 27.10.1978 amounts to alienation and without consideration and legal
necessity. It was held that the decree created new rights in defendants Nos.2
to 5, and it cannot be said to be based on family settlement. Any alienation
of immovable property of value of Rs. 100/- had to be registered and in the
present case, the alienation is not by a registered document.
10. The trial court held that the suit land was ancestral property of
Ganeshi qua the plaintiffs. This finding is based on admission of Ganeshi
that he has inherited the property from his father Pran Sukh. The trial court
also held that defendant No.1 was governed by the custom in the matter of
alienation, and under that custom ordinarily ancestral immovable property is
inalienable except for legal necessity or with the consent of the male lineal
descendants.
11. The defendants filed an appeal which was allowed by the first
appellate court by the judgment of the District Judge, Faridabad dated
2.11.1983. The first appellate court held that plaintiffs Nos.1 & 2
(respondents in the first appeal) was given land in 1969 by way of gift by
Ganeshi and because of this there was some unrest in the family, and hence
the family settlement was made. The first appellate court relied upon the
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judgment of this Court in Kale & Ors. vs. Deputy Director of
Consolidation AIR 1976 SC 807 which held that in order to sustain a family
settlement it is not necessary that there must be evidence of antecedent title
of the parties.
12. The first appellate court held that the land was not ancestral property
of Ganeshi because there was no proof that the land had descended from the
father of Ganeshi. It was held that Ganeshi held the land in question along
with some co-sharer’s who acquired the same in whatever manner after the
death of Bhim Kaur.
13. In second appeal, the High Court has set aside the judgment of the
first appellate court and restored the judgment of the trial court. In our
opinion, the judgment of the High Court cannot be sustained. It is well
settled that the High Court in second appeal cannot interfere with the
findings of fact of the first appellate court.
14. A family settlement is not a transfer of property, as rightly held by the
first appellate court. The first appellate court held that the family settlement
was bona fide to avoid disputes in the family. The decree in Civil Suit
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No.476 of 1978 was only in pursuance of that family settlement, and hence
it could not be interfered with.
15. We have carefully perused the judgment of the first appellate court
which was the last court of facts and we are of the opinion that the findings
of fact given by it are based on relevant evidence. Hence the High Court
was not justified in interfering with those findings.
16. For the foregoing reasons, the appeal is allowed. The impugned
judgment and order of the High court is set aside and that of the first
appellate court is restored. There shall be no order as to costs.
………………………………J.
(Markandey Katju)
………………………………J.
(Gyan sudha Misra)
New Delhi;
April 04, 2011