Punjab-Haryana High Court
Kaka Singh vs Swaran Singh And Another on 29 May, 2012
Author: K.C.Puri
Bench: K.C.Puri
RSA No.1878 of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1878 of 1999
Date of decision 29.05. 2012.
Kaka Singh
...... Appellant.
versus
Swaran Singh and another
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers 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 : Mr. R.L.Sharma, Advocate for the appellant.
Mr. Sameer Rathore, Advocate for the respondent.
K.C.PURI, J.
Defendant-appellant-Kaka Singh has directed the present appeal against the judgment and decree dated 24.3.1999 passed by Shri Maghar Khan, learned District Judge, Rupnagar vide which the appeal preferred by defendant-appellant against the judgment and decree dated 10.2.1994 passed by Shri Nirmal Singh, learned Sub Judge IInd Class, Kharar, who decreed the suit of the plaintiff was partly modified.
2. Brief facts of the case are that plaintiff filed suit for joint possession to the extent of 4/9th shares in the land left by Dhani Ram, RSA No.1878 of 1999 2 father of the parties and the suit property was Joint Hindu family coparcenary property in the hands of Dhani Ram and the plaintiff and defendant No.1 Kaka Singh have got interest in it by birth to the extent of 1/3rd share as the suit property was inherited by Dhani Ram from his father Fateh Singh. Plaintiff has 1/3rd share in the property as coparcener and 1/9th share as being the son of Dhani Ram and after the death of Dhani Ram, he is entitled to 4/9 share (1/3 + 1/9) in the suit property. Plaintiff was working at Delhi and used to stay there and defendant No.1 had been paying some amount to him by way of produce out of the suit land. When the plaintiff made his mind to sell his share in the suit property and got a copy of the jamabandi, he came to know that defendant No.1 had got the entire suit property transferred in his name on the basis of a Will. He also alleged that the Will if any is liable to be ignored as the suit property was Joint Hindu Family Coparcenary property and Dhani Ram father of the parties had no right to execute any Will with regard to the suit property and the said Will is forged one. It was further averred that since Dhani Ram was not found of sound disposing mind for about four years prior to his death and had lost his mental balance, so he was unable to take rationale decision and so that Will if any is void. Hence the suit.
3. On put to notice, defendants appeared and filed joint written statement and admitted that the suit property was originally owned by Dhani Ram but they denied the correctness of the pedigree table propounded by the plaintiff. Suit property at the hands of Dhani Ram was his absolute property and so plaintiff does not have 1/3rd share in the same and therefore, RSA No.1878 of 1999 3 the question of plaintiff having 4/9th share in the property does not arise. Defendants never paid any amount to the plaintiff as produce of the suit land. As per revenue record, he is the absolute owner of the suit property and the plaintiff was in the knowledge that Dhani Ram had willed away his property to defendant No.1 through a registered Will and mutation on the basis of said will was contested by the plaintiff and the same was sanctioned in his favour. The suit property was not ancestral. It has been further alleged that plaintiff used to reside at Delhi and defendant No.1 used to reside in the village and he used to serve his father Dhani Ram and said Dhani Ram was of sound disposing mind the time of the execution of the Will which is a registered and valid document. They also took preliminary objections that the suit was barred by limitation and was not properly valued for the purposes of court fee and jurisdiction. Denying all other allegations made in the plaint, they prayed for dismissal of the suit.
4. Plaintiff filed replication controverting the pleas taken in the written statement and reasserting those of the plaint.
5. From the pleadings of the parties, following issued were framed :-
1. Whether the plaintiff is entitled to joint possession to the extent of 4/9th share out of the suit land as prayed for ?OPP
2. Whether the suit property is Hindu family coparcenary property as alleged in para No.4 of the plaint ?OPP
3. Whether the suit of the plaintiff is within time ? OPP
4. Whether when alive, Dhani Ram executed a Will and the same is void and is liable to be ignored ?OPD RSA No.1878 of 1999 4
5. Relief.
6. The parties have led their respective evidence on the aforesaid issues. After appraisal of the same, the trial Court partly decreed the suit vide judgment and decree dated 10.2.1994 .
7. Feeling dissatisfied with the aforesaid judgment and decree dated 10.2.1994, Kaka Singh, one of the defendants directed the First Appeal, which was modified by the learned District Judge, Rupnagar vide judgment and decree dated 24.3.1999 after re-appraisal of the evidence and it has been held that the disputed land would devolve upon the heirs of Dhani Ram by way of natural succession and every co-sharer has equal interest in the same.
8. Still feeling dissatisfied with the judgments and decrees dated 10.2.1994 passed by Shri Nirmal Singh, learned Sub Judge IInd Class, Kharar, and judgment and decree dated 24.3.1999, passed by learned District Judge, Rupnagar the present regular second appeal has been directed by Kaka Singh-defendant-appellant.
9. On 1.11.2002, learned counsel for the appellant-defendant submitted that following substantial questions of law have arisen in the present regular second appeal for adjudication :-
a) Whether finding recorded on issue No.2 by the Courts below is vitiated, being based on misconstruction and non-reading of Ex.P/2 ?
b) Whether the judgment recorded by the District Judge is a judgment of reversal, in view of the findings recorded on issue No.1(Additional) and issue No.4, reversing the finding recorded by the Trial Court ?
c) Whether the District Judge has fallen in error of jurisdiction and in law in reversing the findings on issue RSA No.1878 of 1999 5 No.1 and 4, when there was no cross appeal/ or cross objection by the respondents/plaintiffs and the decree to that extent has become final ?
d) Whether a member of H.U.F. can execute a Will in
respect of his notional share ?
e) Whether the findings returned on issue No.1 by the
Lower Appellate Court is based on wrong principle of law, when on the record of the case, it is established that the possession of the appellant/defendant Kaka Singh was open and hostile to the knowledge of respondent/plaintiff ?
10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
11. Learned counsel for the appellant has submitted that finding of both the Courts below that suit property is Joint Hindu family Coparcenary property is wrong and against the record. The plaintiff has not been able to prove that father of Dhani Ram (i.e. his grandfather ) was the owner of the suit property. The trial Court has relied upon the excerpt report Ex.P-2. Vide mutation No.310 property of Hardevi widow Shyama was entered in the name of Jaimal and Sunder sons of Jasaba, Siana Mangal and Sardha Saina son of Nenu in equal shares (to the extent of two shares) and Dhani and Sanunia was sons of Fateh Singh in equal shares ( to the extent of one share each). This mutation has been mentioned in excerpt report Ex.P-2.
12. I have considered the said submission but do not find any force in that submission.
13. The said mutation rather strengthen the case of the plaintiff. From the close scrutiny of this mutation mentioned in excerpt report Ex.P- 2, it is revealed that on account of re-marriage of Hardevi, the mutation was RSA No.1878 of 1999 6 attested in the name of ancestors. Widow forfeited her rights in the ancestral property on re-marriage. So, this fact suggests that property is Joint Hindu family coparcenary property. Otherwise also, in excerpt report Ex.P-2, the total land is mentioned as 73bighas 13biswas whereas suit property is much lessor. The excerpt clearly shows that property is Joint Hindu family coparcenary property and there is finding of fact recorded by both the Courts below which is based upon documentary evidence and as such the finding of the trial Court that suit property is Joint Hindu family coparcenary property does not call for any interference.
14. The second attack of counsel for the appellant is that Will of Dhani Ram in favour of defendant/appellant has been admitted by both the Courts below. The Will has not been given effect only due to the fact that the same relates to Hindu Family Coparcenary Property. It is settled law that a coparcener can execute the Will in respect of his share in the Hindu Family Coparcenary Property. The property was coparcenary property of Dhani Ram along with Kaka Singh and Sarwan Singh his sons, who are plaintiff and defendant in the present case. Dhani Ram can execute the Will in favour of the defendant to the extent of his share. To support this contention, learned counsel for the appellant has relied upon authority of Hon'ble Apex Court in case Shyam Lal @ Kuldeep vs. Sanjeev Kumar & Ors. 2009 (3) Civil Court Cases page 535.
15. In order to properly appreciate the said submission pedigree table of parties is relevant. Fateh Singh was the common ancestor and Dhani Ram was his son. Dhani Ram had two sons Kaka Singh and Swaran RSA No.1878 of 1999 7 Singh and Lachhmi Devi is the daughter of Dhani Ram. However, in the written statement, the defendant took up the stand that Ram Kaur and Shanti are also the daughters of Dhani Ram.
16. Both the Courts below have returned a finding that suit property is Joint Hindu Family Coparcenary Property. The trial Court returned the finding of Will in favour of defendant now appellant. It was held that Dhani Ram executed Will in favour of appellant. The trial Court further observed that since the property is Joint Hindu Family Coparcenary Property and as such Dhani Ram could have executed the Will in respect of his share in the Joint Hindu Family Coparcenary Property by notional partition.
17. So far as the fact that suit property is Joint Hindu Family Coparcenary Property is concerned that finding of both the Courts below does not call for any interference in view of the discussion made above and the same stands affirmed. The First Appellate Court has also not returned a finding against the Will but has impliedly admitted the execution of Will by Dhani Ram in favour of Kaka Singh appellant. So, in these circumstances, the finding of the learned trial Court to the effect that Dhani Ram could have executed the Will in respect of his share in the undivided Joint Hindu Family Coparcenary Property is based upon sound reasoning. The learned First Appellate Court has created confusion by holding that property of Dhani Ram shall go in accordance with natural succession. On the one hand the First Appellate Court has given a finding that suit property is Joint Hindu Family Coparcenary Property on the other hand there is a finding RSA No.1878 of 1999 8 returned by the First Appellate Court that property of Dhani Ram shall go in accordance with natural succession. The net result of that finding would be that Lachhmi and other daughter would also inherit the property of Dhani Ram. Lachhmi and other daughter could inherit the property of Dhani Ram in undivided family only if Dhani Ram died intestate. There is a concurrent finding of fact that Dhani Ram executed the Will in favour of Kaka Singh.
18. So, the net result would be that plaintiff Swaran Singh, Kaka Singh and Dhani Ram will have 1/3rd share each in the undivided Joint Hindu Family Coparcenary Property. Since Dhani Ram executed the Will in favour of Kaka Singh and as such Kaka Singh will become owner to the extent of 2/3rd share i.e. ( 1/3rd share of Dhani Ram undivided Coparcenary property and 1/3rd share being coparcener ). So, in these circumstances, Lachmi and other daughter, if any, will not inherit any property.
19. The counsel for the appellant has vehemently argued that defendant/appellant Kaka Singh has become owner of the suit property by way of adverse possession. It is submitted that before the First Appellate Court issue regarding adverse possession was framed. The trial Court returned the findings on that issue in favour of appellant. However, the First Appellate Court has wrongly decided that issue against the appellant. It is further contended that mutation of inheritance of Dhani Ram was attested in the year 1971 in the presence of the plaintiff. So, the appellant has set up a case of adverse possession. The plaintiff now respondent have never came to the village. The possession of appellant was more than 12 years old openly and in a hostile manner and adversely to the rights of the RSA No.1878 of 1999 9 plaintiff and as such the finding of the First Appellate Court reversing the issue of adverse possession against the appellant is wrong. 19-A I have carefully considered the said submission but do not find any force in that submission.
20. There is nothing on the file that plaintiff was present at the time of attestation of mutation. Swaran Singh is the real brother of Kaka Singh appellant and he was living away from the village. No evidence on the file to the effect that there is ouster of appellant from the suit property is there. So, the First Appellate Court has rightly held that plea of adverse possession set up by the defendant/appellant cannot be accepted. The ouster of the plaintiff from the suit property is not established. Some times a brother does not object the possession of other brother on the ancestral property, more so when he is residing outside. The finding of Civil Judge (Junior Division) Kharar, in judgment dated 17.2.1998 regarding adverse possession has rightly been set aside by the First Appellate Court vide judgment dated 24.3.1999.
21. So far as authority Shyam Lal @ Kuldeep's case (supra) is concerned that authority is distinguishable as in that case parties were governed by custom and not by Hindu law.
22. The Hon'ble Apex Court in authority M. Arthur Paul Ratna Raju vs. Gudese Garaline Augusta Bhushanabai reported in 1999 (1) PLR page 470 has held that cosharer cannot succeed in claiming absolute title by adverse possession unless it is established by convincing evidence that there had been ouster of the other cosharer. Mere possession, RSA No.1878 of 1999 10 howsoever long does not oust the other cosharer.
22. learned counsel for appellant has further relied upon authority Mohinder Singh vs. Gurbax Singh reported as (2004) 4 RCR (Civil) 189, in which this Court has held that a coparcener can bequeath his ancestral property to the extent of his undivided interest in coparcenary property.
23. Consequently, the appeal stands partly accepted. The appellant is held owner to the extent of 2/3 share and plaintiff Kaka Singh is held owner to the extent of 1/3rd share in respect of the suit property left by Dhani Ram. The remaining part of the appeal is without any merit and the same stands dismissed.
24. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
May 29th, 2012
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