Punjab-Haryana High Court
Mukand Singh Son Of Karnail Singh vs Harchand Singh Son Of Karnail Singh on 26 November, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.2464 of 1986 (O&M)
Date of decision: 26.11.2013
Mukand Singh son of Karnail Singh, resident of Chak No.3, Ratta
Khera, Tehsil Tibbi, District Ganga Nagar.
...Appellant
versus
Harchand Singh son of Karnail Singh, resident of Chak No.3, Ratta
Khera, Tehsil Tibbi, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Santosh Sharma, Advocate,
for Mr. Akshay Bhan, Advocate,
for the appellant.
Mr. D.S. Brar, Advocate,
for respondent No.1.
Mr. A.K. Khunger, Advocate,
for respondent No.2.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. The following substantial questions of law arise for consideration in the second appeal:-
i) Whether the courts below were in error in finding that the properties in Dabra Village were separate properties of the father, when the presumption in law is Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -2-
that in respect of agriculture families where no other source of income is shown, any acquisition in the name of karta must be taken to be the joint family property?
ii) Whether the lower appellate court was not in error in restricting the plaintiff's right only to 1/7th share of the properties remaining after the decrees suffered by the father in favour of defendants 2 to 4, failing to note that the decrees in which the plaintiff was not a party would not bind him and, therefore, the plaintiff was entitled to seek for joint possession in respect of all the properties?
iii) Whether the alleged family partition by which the 1st defendant had allowed for some properties to be given to defendants 2 to 4 valid and binding on the plaintiff?
2. The suit was filed by the plaintiff on a plea that the father (1st defendant) was the karta of the family consisting of plaintiff and defendants 2 to 4, who were the plaintiff's brothers and the 5th defendant, who was the mother and the 6th defendant, who was the daughter. The suit came to be filed when the plaintiff had an apprehension that the 1st defendant was excluding the plaintiff in the transactions of joint family and, therefore, a joint possession was sought.
Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh
Regular Second Appeal No.2464 of 1986 (O&M) -3-
3. The 1st defendant filed written statement contending that the joint family did not exist and there had been a partition long time earlier. The contention was that the plaintiff was living away in Rajasthan where the plaintiff himself had purchased some properties in the name of his wife and children and even in an oral partition that had taken place long time back, the plaintiff had been given 8 acres of land and ` 1 lakh cash. The defendant would also contend that the properties in Dabra were purchased in his own name and they were not ancestral properties. He had suffered a decree in respect of his properties in a suit filed by defendants 2 to 4 and 176 kanals and 8 marlas of land in Dabra given to defendants 2 to 4 through the decree on 24.04.1972. The 1st defendant would further contend that he had gifted some properties of an extent of 45 kanals 7 marlas to his daughter and suffered a decree on 31.05.1978. The said property also cannot be claimed by the plaintiff.
4. The trial Court found that the properties in Bhangchari were ancestral and the decree suffered in favour of daughter was, therefore, not valid. The Court further held that the property purchased in Dabra was not shown to have stood in the name of the 1st defendant's father and with no proof available that the properties were purchased with the aid of ancestral nucleus, the plaintiff was not entitled to question the properties which had been given by the 1st defendant to defendants 2 to 4 and a decree suffered by him Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -4- therefor on 24.04.1972. The suit was, therefore, decreed only for 4/21st share in the property in Bhangchari.
5. Two appeals were filed both by the defendants as well as the plaintiff. In the appeal filed by the plaintiff, he pleaded for the properties in Dabra to be the joint family properties and also contended that the decrees suffered by the father in favour of defendants 2 to 4 will not bind him. The appellate Court partially modified the judgment of the trial Court affirming its finding that the properties in Dabra were the separate properties of the father and, therefore, the decrees suffered by him in favour of defendants 2 to 4 cannot be assailed by the plaintiff. The lower appellate Court also held that the jamabandi showed only a half share of the properties in Bhangchari and consequently, the decree of the trial Court providing for 4/21st share would require to be modified for 2/21 share in the properties in Bhangchari. Affirming the lower Court's finding regarding the invalidity of the alleged family settlement in favour of the daughter, the appellate Court took note of the death of the father during the pendency of proceedings and provided for 1/7th share in the properties in Dabra after deducting the properties which were granted in alleged family settlement to defendants 2 to 4. It is against this judgment that the appeal has been filed by the plaintiff. The daughter had also come by means of an independent appeal, but there has been no representation for her Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -5- and I have dismissed the said appeal for default for non-prosecution.
6. In the manner of assessment of character of properties at Dabra, the trial Court and the appellate Court have completely misapplied the law and have committed a fundamental error in assuming that the properties standing in the name of karta was not proved to be joint family property, when it was the admitted case that the family was an agricultural family with no independent source of income other than agriculture. When admittedly, the family owned more than 200 acres of land in Bhangchari which the court held to be ancestral property, it ought to have seen that even a purchase in the name of the 1st defendant in Dabra was to be presumed to be joint family property. While it is correct to state that the person, who asserts the joint family character of the property, must prove the same, onus of proof will shift to the karta himself in a situation where the family admittedly owned substantial ancestral properties. In P.R. Kannaiyan (dead) and others Versus Ramasamy Mandiri and others-2005(35) AIC 535, a Division Bench of Madras High Court held that if karta was in possession of joint family property and he made some acquisition, the burden was on him to prove that he had any separate income to purchase and the property is not joint family property. The said decision brings sufficient body of authorities from Privy Council, Supreme Court and Allahabad High Court that in agricultural families, where no Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -6- other source of income is shown other than family properties, the court shall infer that subsequent acquisitions were made only from the family properties. In this case, the ancestral properties in Bhangchari was substantial and more than the extent of properties in Dabra. The acquisition of property in the name of karta (father) must be taken to be the property belonging to the family and the burden was on the karta to show that he had made the acquisition without any detriment to the joint family properties. The Court was in error in looking for proof of nucleus when the extent disclosed of the admitted properties in Bhangchari itself was substantial. I have already observed that the agriculture families with no other source of income must be taken to secure every acquisition where already ancestral properties existed to be only for the benefit of the family. The findings of the courts below relating to the character of properties at Dabra were clearly wrong and they had applied a wrong principle of law that the coparcener had failed to discharge the onus of proof on him to contend that the properties standing in the name of the father was joint family properties.
7. If all the properties in both the villages have to be taken as joint family properties, then the issue is whether the karta could have made any valid family partitions or arrangements only in favour of some members of the family and to the exclusion of others. In this case, the justification of the 1st defendant to allow for Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -7- allotment of properties only in favour of defendants 2 to 4 was on his plea that the plaintiff had gone away from the village and he was living in another State at Rajasthan, cultivating his own properties. Both the trial Court and the appellate Court have discredited the defence and have held the family to have remained joint and that there had been no partition in the family. Significantly, even the date of alleged partition in which the plaintiff was granted a separate share had not been set forth in the written statement or explained in evidence. With no evidence available, the two courts below were, therefore, justified in finding that the plaintiff was entitled to be treated as joint family member with a right to a share in the property. The court below was in error in finding the properties at Dabra to be separate, for, if it was separate, there was no question of family arrangements to be made and for defendants 2 to 4 to secure a right in a large slice of land of 176 kanals 8 marlas. The fact that the defendants 2 to 4 were staking a claim to the property in a suit of the father, making a consent in their favour, was a further indicator of the fact that the properties were at all times treated and enjoyed only as joint family properties. If they were joint family properties, a family partition would have been perfectly justified, but then such a partition must be equal and fair and ought to make a distribution of all the properties in favour of the coparceners. If the 1st defendant's plea that the plaintiff was not given any share because he had Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -8- already been separated and that contention was rejected by the courts below, by the same token of logic, the court must have seen that the allotment of the properties only to some of the members of the family was impermissible and was invalid so as to bind the plaintiff's interest in the property. Consequently, the decree suffered by the 1st defendant in favour of defendants 2 to 4 on 24.04.1972 was ineffective and not binding on the plaintiff. The exclusion of the plaintiff's right to the properties granted to defendants 2 to 4 was, therefore, erroneous and it is set aside.
8. The court below has granted 1/7th share of the properties after setting apart the properties to D2 to D4 on the assumption that the properties in Dabra were separate properties and the plaintiff was entitled to a 1/7th share. Consistent with my finding that all the properties were joint family properties, the plaintiff is entitled to a larger share than what was determined.
9. The 1st defendant has died during the pendency of the suit. At a notional partition between the father and sons, the sons would have been allotted an equal share to that of the father and he would have secured a 1/5th share. The father Karnail Singh would have been entitled to 1/5th share and each one of other sons, namely, D2 to D4 would have been entitled to 1/5th share. On the death of Karnail Singh, his 1/5th share will fall to be divided amongst all class-1 heirs in terms of Section 6 of the Hindu Succession Act as it Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.2464 of 1986 (O&M) -9- existed before the amendment in 2005. 1/5th share of the father fell to be therefore divided amongst the widow, 4 sons and a daughter and each one was, therefore, entitled to a 1/30th share in addition to 1/5th share. The plaintiff's own possession was therefore to 7/30th share in all the properties. The trial Court and the appellate Court decrees stand modified and the plaintiff is found entitled to 7/30th share unaffected by any manner of the alleged family settlement said to have been made by the 1st defendant in favour of the defendants 2 to 4 and the 6th defendant. The plaintiff's entitlement shall be to right to joint possession by 7/30th in all the suit properties. The second appeal is allowed with costs. Counsel's fee ` 5,000/-.
(K.KANNAN) JUDGE 26.11.2013 sanjeev Kumar Sanjeev 2013.12.05 10:45 I attest to the accuracy and integrity of this document chandigarh