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Jai Gopal vs Sarita Rani And Others on 28 November, 2009

Punjab-Haryana High Court
Jai Gopal vs Sarita Rani And Others on 28 November, 2009
R.S.A.No. 811 of 1996                                       1



      In the High Court of Punjab and Haryana at Chandigarh


                         R.S.A.No. 811 of 1996
                         Date of decision: 28.11.2009



Jai Gopal
                                                        ......Appellant

                         Versus



Sarita Rani and others
                                                    .......Respondents


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:    Mr. Ashish Aggarwal, Advocate,
            Mr.Vijay S.Kajla, Advocate and
            Mr.Kulwnt Singh, Advocate
            for the appellant.

            Mr.R.C.Setia, Sr.Advocate with
            Mr.Vishal Ranjan, Advocate and
            Mr.Vikas Bahl, Advocate,
            for respondent No.1.

            Mr.G.S.Punia, Advocae,
            for respondents No. 2 to 5.

                 ****


SABINA, J.

Plaintiff Jai Gopal filed a suit for declaration, which was

dismissed by the Sub Judge Ist Class, Phillaur vide judgment and

decree dated 23.11.1987. Aggrieved by the same, plaintiff preferred
R.S.A.No. 811 of 1996 2

an appeal and the same was dismissed by the Additional District

Judge, Jalandhar vide judgment and decree dated 09.09.1995.

Hence, the present appeal by the plaintiff.

Brief facts of the case, as noticed by the lower Appellate

Court in paras 3 to 5 of its judgment read as under:-

“3. Plaintiff Jai Gopal filed a suit against Sarita Rani

etc., defendants for declaration to the effect that plaintiffs

and defendants no.2 to 6 are owners of the land house

certificate bearing No.152244/13/79 as has been detailed in

the head note of the plaint. He has also challenged the sale

deed dated 1.7.80 executed by defendant no.6 in favour of

defendant no.1 and claimed jointed possession with regard

to the properties as detailed in Para No.(iii) and (iv) of the

head note. The brief facts of the case as advanced by the

plaintiff are that he as well as defendants no.2 to 5 are sons

of defendant no.6, while defendant no.1 is he wife of

defendant no.3. The plaintiff alleged that he along with

defendants no.2 to 6 constituted a Joint Hindu Family and

defendant no.6 is the Manager/Karta of the Joint Hindu

Family. Property in dispute is coparcenary/Joint Hindu

Family property and it has devolved from Ram Rakha son of

Milkhi Mal, who was the common ancestor of the plaintiff

and defendants no.2 to 6 upon Harbans Lal, defendant

no.6. Regarding agricultural land, mutation No.3484 dated
R.S.A.No. 811 of 1996 3

7.8.59 in favour of Harbans Lal was also sanctioned after

the death of Ram Rakha. The house as detailed in para

No.(ii) and (iv) in the head note of the plaint was built by

defendant No.2 from his own income. The plot was

purchased by defendant no.6 from the income of landed

property, while the money on the construction of the houses

was spent from the income of Joint Hindu Family property.

These properties were always being treated as Joint Hindu

Family properties of the parties and defendant no.6. The

fixed deposit amount as mentioned in sub-para (v) of the

head note of the plaint was deposited by defendant no.6 in

favour of defendant no.1 out of the income of the landed

property as well as out of the Joint Hindu Family

coparcenary property and hence that amount was also the

joint property of plaintiff and defendant no.6. Defendant

No.6 Harbans Lal, as such had no right to alienate any

portion of the said Joint Hindu Family properties except for

legal necessity, but he transferred some agricultural land in

favour of defendant no.1 and also executed a bogus sale

deed in her favour in respect of the houses mentioned at Sr.

No.(ii) and (iv) in the head note for a nominal consideration

of Rs.15,000/-. He and other co-parceners are not bound

by such alienations. Defendant No.1 is divorced wife of

defendant no.3 and as such defendant no.6 was pressurize
R.S.A.No. 811 of 1996 4

to alienate adequate assets in the name of defendant no.1

to avert divorce. These alienations are malafide and have

been done under coercion and fraud. Since the right of the

plaintiff in the suit properties was not recognized by

defendant no.1, the suit was filed in the lower court.

4. Notice of the suit was given to the defendants.

Defendants No.2 to 6 did not appear nor did they file the

written statement. So they were proceeded against ex

parte.

5. Defendant No.1 only contested the suit.

Written statement was filed by her. Preliminary objections

were taken that the suit is not maintainable; that the

plaintiff has no locus standi to file the present suit; that

the suit has been filed by the plaintiff in collusion with

defendants no.2 to 6; that she is not divorced wife of

Charanjit, but is the existing wife of the said Charanjit;

that the suit is not properly valued for the purposes of

court fee and jurisdiction. On merits, it was alleged that

defendants no.2 to 6 are separate in food, lodging and

estate the actually they are separate in family status also.

She alleged that the suit properties are not Joint Hindu

Family property of the plaintiff and defendants no.2 to 6.

She also pleaded that properties mentioned at Sr.No.(ii)

and (iv) of the headnote were purchased by her for a
R.S.A.No. 811 of 1996 5

consideration of Rs.15,000/- through a valid sale deed

and hence it was not without consideration. She also

contended that fixed deposit amount of Rs.16,000/- was

jointly owned by defendants no.1 to 6 and it is incorrect

that whole of this amount was deposited by defendant

no.6 in her name. She pleaded also that there was a

family settlement in between the parties and in that

settlement, she was given a portion of the agricultural

land through a decree dated 29.7.80. All other

allegations were emphatically denied by her.

On the pleadings of the parties, the following issues were

framed by the trial court:

1. Whether the plaintiff and defendants no.2 to

6 constitute a Joint Hindu Family, if so, whether

defendant no.6 is the Karta of the same?OPP.

2. Whether the suit property was the co-

parcenary property as alleged in the plaint?OPP.

3. Whether the alienation was made by

defendant No.6 in favour of defendant no.1 is the

result of pressure and coercion as alleged in para

no.6 and 11 of the plaint?OPP.

4. Whether the decree dated 29.7.80 is the

result of fraud and is thus void?OPP.

R.S.A.No. 811 of 1996 6

5. Whether the sale deed dated 1.7.80 is the

result of fraud and gratuitous transaction?OPP.

6. If issue No.2 is proved, whether the sale

deed dated 1.7.80 is for consideration and for legal

necessity or act of good management?OPD-1.

7. Whether the suit in the present form is legally

maintainable?OPP.

8. Whether the suit regarding certificate of

Rs.16000/-(F.D.) is legally maintainable in the face

of Section 281-A of the Income Tax Act?OPP.

9. Whether the suit is properly valued for the

purposes of Court fee and jurisdiction?OPP

10. Whether defendant No.1 is the divorced wife

of defendant no.3, if so,its effect?OPP.

11. Whether the suit is collusive and has been

filed at the instance of defendant no.6, if so, its

effect?OPD.

12. Relief.”

Learned counsel for the appellant has submitted that

Harbans Lal could not suffer a decree in favour of Sarita Rani, his

daughter-in-law nor could sell the land to Sarita Rani as the suit

property in the hands of Harbans Lal was his ancestral property. The

plaintiff as well as the other legal heirs of Harbans Lal had interest in

the suit property by birth. Sarita Rani was divorced wife of Charanjit
R.S.A.No. 811 of 1996 7

Sijngh, son of Harbans Lal. The decree had been suffered by

Harbans Lal with a view to save the marriage between Sarita Rani

and Charanjit Singh. However, no family settlement had been

arrived at between the parties with regard to the transfer of land by

Harbans Lal in favour of Sarita Rani. In support of his arguments,

learned counsel has placed reliance on the decision of this Court in

Vidya Wanti vs. Gopi Chand, 1999 (2) PLJ 211, wherein it was held

that daughter-in-law could not claim coparcenary property on the

basis of a family settlement.

Learned counsel for the appellant has further placed

reliance on the decision of this Court in Krishan Kumar Sharma

vs. Ashok Kumar Sharma and another 1997 (Suppl) Civil Court

Cases 633(P&H), wherein it was held that member of the

coparcenary property, if not impleaded as a party to the suit wherein

it was alleged that in a family settlement the property had fallen to

his share of partition then the decree in the previous suit land has no

effect on the rights of the members who were not impleaded as a

party in the said suit.

Learned counsel for the appellant has also placed

reliance on the decision of this Court in Rajni Bajaj and others vs.

Ram Piari 2006(1) Civil Court Cases 711 (P&H), wherein it was

held that if family settlement was not proved then adverse inference

had to be drawn that no such family settlement was in existence.

Learned counsel for the appellant has next placed
R.S.A.No. 811 of 1996 8

reliance on the decision of the Apex Court in M.N.Aryamurthi and

another vs. M.L.Subbaraya Setty (dead) by his legal

representatives and others AIR 1972 Supreme Court 1279,

wherein it was held as under:-

” I) There must be an agreement amongst the

various members of the family intended to be generally

and reasonably for the benefit of the family, (ii) the

agreement should be wit the object either of

compromising doubtful or disputed rights or for preserving

the family property, or the peace and security of the family

by avoiding litigation or for saving its honour (iii) being

an agreement, there is consideration for the same, the

consideration being the expectation that such an

agreement or settlement will result in establishing or

ensuring amity and good-will amongst the relations. AIR

1966 SC 323 relied on.

Held on facts that the document in as it was inoperative

either as a will or as a family arrangement. There was

nothing in the will, the pleadings, or the evidence which

went to show that there was any occasion, for agreeing to

a family arrangement, or that the motivation, which is

necessary for a family arrangement, was ever present to

the minds of the testator father and his sons when the will

was executed. Moreover, one of the signatories being a
R.S.A.No. 811 of 1996 9

minor son of the executant, it was not a binding

arrangement.”

Learned counsel for the appellant has further placed

reliance on the decision of the Apex Court in Valliammai Achi vs.

Nagappa Chettiar and another AIR 1967 Supreme Court 1153,

wherein it was held as under:-

“10. But even assuming that there was some kind

of election by Pallaniappa we cannot see how the nature

of the property left by Pallaniappa’s father would change

merely because Pallaniappa’s father made a will giving

the residue absolutely to Pallaniappa and Pallaniappa

took out probate of the will. The property being joint family

property Pallaniappa’s father was not entitled to will it

away and his making a will would make no difference to

the nature of the property when it came into the hands of

Pallaniappa. A father cannot turn joint family property into

absolute property of his son by merely making a will thus

depriving sons of the son who might be born thereafter of

their right in the joint family property. It is well settled that

the share which a co-sharer obtains on partition of

ancestral property is ancestral property as regards his

male issues. They take an interest in it by birth whether

they are in existence at the time of partition or are born

subsequently: (see Hindu Law by Mulla, Thirteenth
R.S.A.No. 811 of 1996 10

Edition, p.249, para 223 (2) (4). If that is so and the

character of the ancestral property does not change so

far as sons are concerned even after partition, we fail to

see how that character can change merely because the

father makes a will by which he gives the residue of the

joint family property(after making certain bequests) to the

son. A father in a Mitakshara family has a very limited

right to make a will and Pallaniappa probably as a dutiful

son took out probate and carried out the wishes of his

father, the nature of the property could not change and it

will be joint family property in the hands of Pallaniappa so

far as his male issues are concerned.”

Learned senior counsel for respondent Sarita Rani, on the

other hand, has submitted that the suit property in the hands of

Harbans Lal was his self acquired property as he had got the same

on the basis of Will from his father. Hence, Harbans Lal could

dispose of the suit property in the manner he liked. The other

defendants had not challenged the decree or sale in favour of Sarita

Rani. In support of his arguments, learned senior counsel has

placed reliance on the decision of the Apex Court in Byram Pestonji

Gariwala vs. Union Bank of India and others 1992 Civil Court

Cases 73 (SC), wherein, it was held that a consent decree is as

binding upon the parties as a decree passed after contest if the same

is not vitiated by fraud, misrepresentation, misunderstanding or
R.S.A.No. 811 of 1996 11

mistake. The consent decree has a binding force.

After hearing learned counsel for the parties, I am of the

opinion that the present appeal deserves to be dismissed.

Admittedly, Harbans Lal-defendant No.6 got the property

from his father Ram Rakha along with his brother Sohan Lal on the

basis of Will. The Will executed by Ram Rakha is not under

challenge. As such, the question whether Rakha Ram was

competent to execute the Will or not cannot be gone into in this case.

The Will executed by Ram Rakha was not challenged by any of his

legal heirs or effected party. In these circumstances, the Courts

below have rightly held that since the property in dispute had come to

Harbans Lal on the basis of Will, the same became his self acquired

property. The property in dispute thus cannot be said to be

coparcenary property in the hands of Harbans Lal. In these

circumstances, Harbans Lal could dispose of the property in dispute

in the manner he liked. The decree in favour of respondent Sarita

Rani was passed on the basis of admission made by Harbans Lal in

the suit filed by her.

A perusal of Ex.P-6, judgment passed in civil suit

No.192/1980 decided on 29.7.1980 reveals that Sarita Rani had filed

a suit for joint possession of ¼ share in the total land measuring 183

kanals 5 marlas. The case of respondent Sarita Rani was that about

a year back in a family arrangement she had been given ¼ share in

the suit land. Harbans Lal appeared through his counsel and filed
R.S.A.No. 811 of 1996 12

written statement conceding the case of Sarita Rani. Statement of

Harbans Lal was also recorded and on the basis of the same, the

consent decree was passed. Since the consent decree was passed

on the basis of previous family settlement, the decree did not require

registration. Moreover, Harbans Lal himself has not challenged the

decree. The decree in question could be challenged only on the

ground of fraud but the plaintiff-appellant had failed to establish that

the impugned decree was a result of fraud or misrepresentation.

Sale deed dated 1.7.1980 was executed by Harbans Lal

in favour of Sarita Rani. The due execution of the sale deed was

proved by Sarita Rani by examining DW-1 Jugal Kishore Dutta,

Advocate, attesting witness and DW-4 Sukhdev Chander, deed

writer. The plaintiff has also failed to establish that the amount

invested in the FDR belonged to Hindu Undivided Family. In these

circumstances, the Courts below had rightly dismissed the suit of the

plaintiff. The judgments relied upon by the learned counsel for the

appellant fails to advance the case of the appellant as these are

based on different facts.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

(SABINA)
JUDGE
November 28, 2009
anita

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