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 37.8.59 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 4to 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 5consideration 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 10Edition, 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
