Himachal Pradesh High Court
Shri Kuldeep Kumar & Another vs Shri Ishwari Parshad & Others on 27 September, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 243 of 2006 Reserved on: 19.09.2016 Decided on: 27.09.2016 .
____________________________________________________________ Shri Kuldeep Kumar & another.
.....Appellants.
Versus Shri Ishwari Parshad & others.
......Respondents.
_______________________________________________________ of Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes. ______________________________________________________ rt For the appellants: Mr. N.S. Chandel, Advocate.
For the respondent: Mr. Anand Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present regular second appeal is maintained by the appellants/plaintiffs (hereinafter referred to as "the plaintiffs") assailing the judgment and decree passed by the learned District Judge, Chamba, in Civil Appeal No. 56 of 2004, dated 28.02.2006, whereby the learned District Judge, Chamba has set aside the judgment and decree dated 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 224.05.2004, passed by learned Civil Judge (Senior Division) Chamba, in Civil Suit No. 217 of 2001.
2. Brief facts giving rise to the present appeal are .
that the plaintiffs filed a suit for permanent prohibitory and mandatory injunction restraining the defendants/ respondents (hereinafter referred to as "the defendants") of from raising any construction or disposing of land comprised in Khata/Khatauni No. 169/223, Khasra No. 7964/1, 7967, rt 7969, 7970 to 7978, 7989 and 7990, Kita 14, measuring 929 square yards, 2 square feet, situated in Chamba Shehar 1st, Pargana Panjla, Tehsil and District Chamba, H.P. (hereinafter referred to as "the suit land/property"). A simultaneous prayer for mandatory injunction was also made, in case any construction is raised during the pendency of the suit. As per the plaintiffs, they are son and daughter of defendant No. 1 (Shri Ishwari Parshad) and the suit property is alleged to be ancestral property. It is further averred that plaintiffs are joint ownesr-in-possession of the property in dispute.
Defendant No. 1, who is father of the appellants, to deprive the plaintiffs their shares, threatened to sell the suit land and ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 3 also started raising construction without keeping any share for the plaintiffs intact.
3. The suit of the plaintiffs was contested by the .
defendants and they have raised preliminary objections, viz., maintainability, locus standi and estoppel. On merits, the defendants have denied the relationship of son and of daughter with the plaintiffs and it is further contended that their mother had left defendant No. 1 about 40 years back rt and was living with her parents. As per the defendants, the plaintiffs were born in the house of their maternal grand father. Therefore, the defendants have denied that defendant No. 1 is the father of the plaintiffs, so the plaintiffs are not entitled for any share from the ancestral property.
4. The learned Trial Court on 28.11.2002 framed the following issues for determination and adjudication:
"1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction, as prayed for? OPP.
2. Whether the plaintiffs are also entitled to the relief of mandatory injunction in the alternative? OPP.
3. Whether the suit is not maintainable in the present form? OPD.::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 4
4. Whether the plaintiff has no locus standi to file the present suit? OPD.
5. Whether the plaintiff has no cause of .
action? OPD.
6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD.
7. Relief."
of After deciding issue No. 1 in favour of the plaintiffs, issue No. rt 2 against the plaintiffs and issues No. 3 to 6 against the defendants, the suit of the plaintiffs was decreed for permanent prohibitory injunction and mandatory injunction was declined. The defendants preferred an appeal before the learned District Judge, Chamba and it is worthwhile to mention that earlier the appeal was dismissed by the learned District Judge, Chamba, and thereafter in the regular second appeal No. 288 of 2005, decided on 10.11.2005, whereby the case was remanded back to the Court of learned District Judge, Chamba, for the reason that Shri Ishwari Parshad, present respondent No. 1 herein, resiled from the admission made by Mr. H.N. Sharma, in the appeal ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 5 before the learned District Judge, Chamba, the District Judge, Chamba, allowed the appeal vide judgment and decree under challenge. Present regular second appeal, .
was admitted on the following substantial questions of law:
"1. Whether the observation by the first appellant court that the appellants do not appear to be the son and daughter of respondent Ishwari of Parshad, is contrary to the evidence on record and perverse?2.
rt Whether the findings of the first appellant Court that even if the appellants be assumed to be the son and daughter of Ishwari Parshad, they have no right to seek the decree, restraining him from alienating that portion of the suit property which is admittedly the ancestral property, is against the law?"
5. I have heard the learned counsel for the parties and gone through the record in detail.
6. The learned counsel for the appellants has argued that it is amply proved on record by PWs 5, 6, 7, 8 and Ex. PW-8/A that the plaintiffs are the son and daughter of respondent No. 1. He has further argued that the best case of the defendants would be that the mother of the ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 6 plaintiffs has left defendant No. 1 (Shri Ishwari Parshad) and she lived in her father's house. The house of the father of wife of defendant No. 1 and the house of defendant No. 1 .
were adjoining/nearby. He has further argued that there is no allegation to the effect that the mother of the plaintiffs has any relation with any other person in the world and no of divorce ever took place, therefore, the findings of the learned Lower Appellate Court are required to be rt corrected and the judgment and decree passed by the learned Lower Appellate court are required to be set aside and that of the learned Trial Court are required to be restored.
7. On the other hand, the learned counsel for the respondents has argued that the mother of the plaintiffs left defendant No. 1 39-40 years ago and there is no relationship of husband and wife and, in fact, defendant No. 1 has brought another lady as his wife from whom another son was born. He has further argued that the plaintiffs are not the son and daughter of defendant No. 1 as their mother left defendant No. 1 approximately 39-40 years ago then ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 7 the filing of the suit. Further the learned counsel for the respondents has argued that no injunction can be granted against the 'Karta' of the family on the behest of one .
coparcener. To support his arguments he has relied upon the following decisions:
"1. Sunil Kumar and another vs. Ram Parkash and others, AIR 1988 Supreme of Court 576;
2. Suresh Chand Jain vs. Siri Chand Jai, 2000 Law Suit (Del) 913; & 3. rt Sheela Devi and others vs. Lal Chand and another, (2006) 8 Supreme Court Cases 581.
8. PW-1, Shri Rishi Kesh, has deposed that Gian Devi was the wife of defendant No. 1 and the plaintiffs were son and daughter of Gian Devi. Shri Bhagat Ram (PW-4) has stated that defendant No. 1 is his brother-in-law (Jeeja) and he has three sons and one daughter, including the plaintiffs.
Shri Prakash (PW-5) Superintendent, Boys School, Chamba, has deposed that as per the admission form, which is available in the school, Kuldeep Kumar is recorded to be the son of Shri Ishwari Parshad, and the certificate qua this effect is Ex. PW-5/A. Shri Parmesh Puri (PW-5) has also ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 8 deposed that name of the father of the plaintiff is Ishwari Parshad and it is also recorded in the voters' list, certificate whereof is Ex. PW-6/A. Ms. Nisha Kumari (PW-7) produced .
the records from Senior Secondary Government School, Chamba. She has deposed that Chanchal Kumari is daughter of Ishwari Parshad and as per admission form No. of 5095, she took admission on 10th April, 1976. Shri Om Parkash (PW-8) has produced the record from the Education rt Department. He has deposed that as per the Identity Card, Ex. PW-8/A, defendant No. 1 (Ishwari Parshad) is the father of the plaintiffs. Likewise, Shri Lakshmidhar (PW-9) certified that defendant No. 1 is the father of the plaintiffs. Therefore, there is ample evidence on record that defendant No. 1 is the father of the plaintiffs. Defendant No. 1 has also admitted that he never divorced Smt. Gian Dei. Therefore, it can safely be held that the plaintiffs are the son and daughter of defendant No. 1. Nothing from the record is emanating that defendant No. 1 divorced Smt. Gian Dei and also there is nothing on record which establishes that Smt. Gian Dei was leading immoral life. In the absence of ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 9 any evidence to the contrary it cannot be held that during the subsistence of marriage the mother of the plaintiffs took divorce with defendant No. 1.
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9. Now coming to the suit property, as per the plaintiffs, the nature of the property is ancestral property, however, the defendants allege it as self acquired property of of defendant No. 1. Thus, as per the contentions of the defendants, the suit is not maintainable, as the suit property rt is self acquired property. Conversely, the plaintiffs have produced documents, Ex. PA to Ex. PH, and as per these documents, earlier the suit land was recorded to be owned by the father of the defendant No. 1 and the land was succeeded by the defendants from their father. As per the statement of DW-1 (defendant No. 1), some part of the suit land is ancestral and some part is his self acquired property.
He has further unequivocally deposed that he cannot distinguish between the lands which is ancestral and which is self acquired. Entries, qua the revenue record was never ever challenged by him. He has admitted that Smt. Gian Dei was his wife. No record relating to the self acquired ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 10 property has been produced by the defendants. Moreover, during the arguments before the learned Trial Court, the learned counsel for the defendants has admitted that .
marriage between Smt. Gian Dei and defendant No. 1 was never dissolved and plaintiffs were born during the subsistence of the said marriage. Nothing is emanating from of the record that the suit land is self acquired. However, the available evidence goes to establish that the suit land is rt ancestral and no partition ever took place. Moreover, defendant No. 1 has himself admitted that suit land is ancestral land. However, in order to fill the lacuna he has further stated some part of the suit land is self acquired property. The available evidence goes to establish that the suit land is ancestral property and during the subsistence of marriage between defendant No. 1 and Smt. Gian Dei the plaintiffs were born. Therefore, the plaintiffs being son and daughter of defendant No. 1 are entitled to have share in the suit property. Defendant No. 1 has no authority to raise construction thereon for his exclusive use or to dispose of the same, without getting the suit land partitioned.
::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 1110. The Hon'ble Supreme Court in Sunil Kumar and another vs. ram Parkash and others, AiR 1988 Supreme Court 576, has held as under:
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"9. It has, however, been submitted on behalf of the appellant that the High court should have held that in appropriate cases where there are acts of waste, a suit for permanent injunction may be brought against the Karta of the joint Hindu family to restrain him from alienating the property of of the joint Hindu family. This question is not required to be considered as we have already held that the instant suit for injunction as framed is not maintainable. rt We, of course, make it clear that in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener. But nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted. It further appears that the defendant No. 1, Ram Parkash entered into the agreement of sale stating that he is the owner of the suit property. The plaintiff-
appellants claim the suit property as ancestral property and they as coparceners of joint Hindu Mitakshara family have equal shares with their father in the suit property. The question whether the suit property is the self-acquired property of the father of it is the ancestral property has to be decided before granting any relief. The suit being one for permanent injunction, this question cannot be gone into and decided. It is also pertinent to note in this connection that the case of specific performance of agreement of sale bearing suit No. 570 of 1978 had already been decreed on 11th May, 1981 by the Sub Judge, 1st Class, Kaithal."::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 12
11. From the above, it is clear that the Hon'ble Supreme Court has held that in case of waste or ouster, an .
injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener. In the present case, the specific stand of defendant No. 1 is that of the plaintiffs are his son and daughter. This shows that defendant No. 1 want to oust them for the reason that he rt married another lady without divorcing the mother of plaintiffs No. 1 and 2. The mother of plaintiffs No. 1 and 2 kept on residing in the house of her parents till death and the maternal grant father of the plaintiffs has admitted them in the 8th standard. However, before that it recorded in the school record that it is defendant No. 1 who is their father.
12. Interestingly, defendant No. 1, who was a prudent person and capable to marry another lady during the lifetime of his wife has nowhere stated that he was not having any access to the mother of the plaintiffs. He has nowhere stated that with whom the mother of the plaintiffs had any relations. It has clearly come on record that the ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 13 houses of maternal grand father of the plaintiffs and defendant were adjoining. In these circumstances, the stand taken by defendant No. 1, shows that he, in order to .
out the plaintiffs from the suit land, is going to sell the ancestral land.
13. It has come on record that plaintiffs are the son of and daughter of defendant No. 1. It is very strange that defendant No. 1 in spite of rearing his son and daughter has rt left them at the mercy of his father-in-law, that is, the maternal grant father of the plaintiffs. He has left their mother, who is no more in this world, as she died in the year 2003.
14. True it is that defendant No. 1 married another child from his second wife, but that does not mean that defendant No. 1 has occasion to make the plaintiffs orphan when he was the father of the plaintiffs. Therefore, from the ratio of Hon'ble Supreme Court in the judgment (supra) it is clear that an injunction can be granted in such like cases.
::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 1415. The Hon'ble Supreme court in Sheela Devi and others vs. Lal Chand and another, (2006) 8 Supreme Court Cases 581, has held as under:
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"12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is of subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made rt by his father before he was born or begotten (See C. Krishna Prasad v. CIT, (1097) 1 SCC
160). But once a son is born, it becomes a coparcenary property and he would acquire an interest therein."
16. The ratio of the above judgment is not applicable to the facts of the present case, as in the present case, yet the alienation has not taken place, therefore, they have every right to maintain the present suit.
17. The Hon'ble High Court of Delhi in Suresh Chand vs. Siri Chand Jai, 2000 Law Suit (Del) 913, has held as under:
"6. Considering the appellant's case at its highest that only for the purposes of appreciating the arguments and deciding this appeal and not accepting the same to be correct that the suit property is a Joint Hindu Family Property even in that case we ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 15 are of the view that such a suit for injunction by a son against his father restraining him from alienating the property alleged to be belonging to the Joint Hindu Family will not be maintainable. We are fortified in views of the ratio of decision of the Supreme Court in .
Sunil Kumar and another v. Ram Parkash and others, AiR 1988 SC 576. It was held that such a suit will not be maintainable because the co-parcener has got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. The Supreme court further held that a coparcener cannot interfere in the acts of of management of the karta. A father apart from being a karta in addition to the power of management has also power of alienation, transfer, sell of mortgage ancestral rt property to discharge his antecedent debt. The Court observed:
"It is true that a coparcener takes birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that a father - karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 16 his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser fakes risk and the right had interest of coparcener will remain unimpaired in the .
alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as of incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the rt joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it.
Therefore, he cannot move the Court to grant relief by injunction restraining the karta from alienating the coparcenary property.""
18. The law has been settled by the Hon'ble Supreme Court and by the Hon'ble High Court of Delhi. It is clear that injunction can be granted to a coparcener in the following eventualities:
1. If the actions of the Karta/Manager in dealing with the property, that is to change ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 17 its nature and to alienate it in any manner, is without any legal necessity or betterment;
2. If the action of the Karta/Manager is mala fide and with a view to oust the coparcener .
from the share in the coparcenary property;
3. If the Karta/Manager is acting in a manner in derogation to the interest of the coparcenary property;
4. If the Karta/Manager with mala fide intentions do some act to debar some of coparceners and give undue advantage to other coparceners permanently in the rt coparcenary property; and
5. Karta/Manager with his acts take away all the rights of the coparceners in coparcenary property.
In the present case, all the above ingredients are in favour of the appellant, as Karta/Manager, who is the father of the plaintiffs is denying:
(a) the relationship of the plaintiffs as his son and daughter knowing fully well that they are his son and daughter, which the plaintiffs have to prove and they have proved conclusively by leading cogent evidence and producing witnesses and record, as discussed above;::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 18 (b) the Karta/Manager/defendant No. 1
in order to give benefit to the heirs from his second marriage, though solemnized during the lifetime of his .
first wife without divorcing the first wife, who was the mother of the plaintiffs, by his acts is debarring the plaintiffs from their shares in the of coparcenary property; and (c) the Karta/Manager/defendant No. 1 rt with mala fide intentions, in order to oust the plaintiffs from their share in the coparcenary property, is going to change the nature of the suit land and alienate the same.
There is nothing on record to conclude that sale, if any, is to be made by the father for any leal necessity, but the evidence on record shows that defendant No. 1, who is disowning the plaintiffs, as his son and daughter, is going to oust them from the property, even if, they are proved to be his son and daughter, for the reason that he has married another lady during the lifetime of the mother of the plaintiffs without divorcing their mother, who was residing in ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 19 the parental house, that is, the maternal grand father's house of the plaintiffs, which is adjoining the house of defendant No. 1. Under these circumstances, when the act .
of defendant No. 1 will result into an ouster of the plaintiffs, as has been held hereinabove, applying the law as enumerated above 1 to 5, injunction is required to be of granted. There is nothing on record emanating on behalf of the defendant that there is any legal necessity for disposing rt of the property, but his only case is that the plaintiffs are not the son and daughter of defendant No. 1. In these circumstances, as there is no legal necessity, the judgments, as cited by the learned counsel for the appellants are not of any help to the appellants. Therefore, substantial question of law No. 1 is answered holding that plaintiffs are son and daughter of defendant No. 1 and the observations made by the learned Lower Appellate Court that the plaintiffs do not appear to be the son and daughter of defendant No. 1 are highly contrary to the factual position and the same are perverse. The substantial question of law No. 2 is answered holding that since defendant No. 1 has not pleaded any ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 20 legal necessity for alienating the suit land, nor any legal necessity to change the nature of the suit land is there, it is held that the learned Lower Appellate Court has committed .
grave illegality in reversing the findings recorded by the learned Trial Court, especially when the act of defendant No. 1 was to oust the plaintiffs from the shares in the of coparcenary property, which they had acquired being born out of the wedlock of defendant No. 1 and Smt. Gian Dei rt (mother of the plaintiffs), to whom admittedly defendant No. 1 has left, in order to marry second lady without divorcing Gian Dei, mother of the plaintiffs, and sent her to her parental house with the minors (the plaintiffs).
19. The net result of the above discussion is that the findings recorded by the learned Lower Appellate Court are perverse, without appreciating the evidence to its right perspective and the same are not sustainable in the eyes of law.
20. In view of the above, the appeal is allowed and the judgment and decree passed by the learned Lower Appellate Court is set aside and the judgment and decree ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP 21 of the learned Trial Court is restored. Accordingly, the suit of the plaintiffs is decreed in terms of the decree passed by the learned Trial Court.
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21. Accordingly, the appeal stands disposed of, as also pending applications, if any. No costs.
of (Chander Bhusan Barowalia) Judge 27th September, 2016 rt (virender) ::: Downloaded on - 15/04/2017 21:18:29 :::HCHP