Punjab-Haryana High Court
Gurnam Singh vs Pritam Singh & Ors on 11 May, 2010
Equivalent citations: AIR 2010 (NOC) 983 (P. & H.), 2010 AIHC (NOC) 1073 (P. & H.)
RSA No.1326 of 1984 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1326 of 1984
Date of Decision: 11.05.2010
Gurnam Singh ..Appellant
Vs.
Pritam Singh & Ors. ..Respondents
CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA
Present: Mr.G.S.Dhaliwal, Advocate,
for the appellant.
Mr.S.N.Chopra, Advocate,
for the respondents.
---
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
Digest?
---
Vinod K.Sharma,J.
This is plaintiff's regular second appeal, against the judgment and decree dated 1.3.1984, passed by the learned courts below, vide which RSA No.1326 of 1984 2 suit for possession, filed by the plaintiff/appellant, qua the share held by Badan Singh of the suit land and in the alternative to challenge the sale deed dated 6.10.1975, to be void on the ground of misrepresentation and fraud was ordered to be dismissed.
The plaintiff/appellant filed a suit, on the pleadings that the plaintiff and defendants were the members of joint Hindu family, and Shri Badan Singh, father of the plaintiff, was the Karta. Plaintiff claimed to be co-parcener with defendants, in the suit property. Defendants No.1 and 2 were minors, therefore, the suit was filed through Inder Singh, their father and natural guardian, who did not have any interest adverse to the minors. The Pe-digree table pleaded in the plaint reads as under:-
Ralla Singh | | | | Badan Singh Chajja Singh Nagahia Singh | | | | | | | | Ishar Kaur Gurdial Singh Inder Singh Basta Singh Gurnam Bhajan | | Singh Singh | | | | Jagir Kaur | | Darshan Singh Pritam Singh It was the case set up by the plaintiff/appellant, that Badan Singh son of Ralla Singh was Karta of joint Hindu family, in which the RSA No.1326 of 1984 3 plaintiff was also the member and co-parcener, along with other male members of the family. On the death of Ralla Singh, Badan Singh, NagahiaSingh and Chajja Singh succeeded to the property of Ralla Singh. NagahiaSingh died issueless as he was not married. Chajja Singh was also unmarried and issueless. It was, therefore, the case of the plaintiff/appellant that the property in the hands of Badan Singh qua the plaintiff and defendants was ancestral coparcenary property, as Badan Singh had succeeded to this property by inheritance on the death of Ralla Singh.
It was also pleaded case of the plaintiff, that Badan Singh as a Karta had no other source of income except the property in village Rajewal, Tehsil Samrala District Ludhiana. Out of the five sons of Badan Singh, Inder Singh defendant No.4, served in the Army for about 9 years and his family used to stay at village Rajewal, and was supported on the income of family from ancestral property. Inder Singh came back from Army on superannuation in the year 1947. It was further pleaded that out of the income of joint Hindu family, Badan Singh purchased the land at village Hussainpura, in his own name and in the names of NagahiaSingh and Chajja Singh, as the land was available at cheaper rates. Gurnam Singh and Inder Singh settled along with Badan Singh, on the land purchased at village Hussainpura.
Badan Singh died on 21.7.1977, at the age of 82 years, and did not have a sound disposing mind. Some years prior to his death he was looked after by his sons. Case of the plaintiff/appellant was, that Inder Singh, defendant No.4, in connivance with Gurdial Singh, husband of RSA No.1326 of 1984 4 defendant No.3, took advantage of the age of Badan Singh, on the pretext that the land owned by Badan Singh was to be partitioned amongst the sons. Badan Singh was taken to the Tehsil, along with one Piara Singh, who was debtor of defendant No.4, and also managed attestation by Niranjan Singh, who is a professional witness and lives at Sirhind. The case of the plaintiff, therefore, was that on misrepresentation made by Inder Singh to Badan Singh, regarding partition of the land among his sons, he fraudulently got sale deed executed in favour of minor son and Jagir Kaur, defendant No.3 wife of Gurdial Singh for a consideration of Rs.1 lac.
It was the case of the plaintiff that in the sale deed, a recital was made, that the sale amount was required by the vendor, for domestic needs and construction of a house. Legal necessity mentioned in the sale deed, was said to be imaginary, as at the age of 80 years, no body was to construct a house. It was further the case of the plaintiff that Badan Singh had no other liability, which could justify the sale of ancestral land. It was pleaded by the plaintiff/appellant, that even if it was assumed that Badan Singh had a sound disposing mind, then also the sale was without consideration and legal necessity, sale was made in favour of Inder Singh defendant No.4 and daughter-in-law Jagir Kaur, defendant No.3.
Badan Singh had no authority, to sell the land in dispute to defendants No.1 to 3 who were his grand-sons and daughter-in-law respectively, in the absence of legal necessity, to the exclusion of other coparceners of joint Hindu family.
Defendant No.8 Smt. Ishar Kaur being daughter of Badan RSA No.1326 of 1984 5 Singh was impleaded as proforma defendant, as she did not have any right in the coparcenary property.
Suit was contested by defendants No. 1 to 3 and 4, whereas Gurdial Singh defendant No.6, and other defendants were proceeded against ex parte.
Joint written statement was filed by defendants No.1 to 3. Whereas, Inder Singh and Gurdial Singh filed separate joint written statement.
A common plea was raised by the defendants, that the plaintiff and defendants were not members of joint Hindu family, and that Badan Singh was not Karta of the joint Hindu family. Status of the plaintiff and defendants as coparceners was denied. It was pleaded that the parties were Jat, and were bound by customary law of Punjab in the matter of succession, alienation, marriage and family relations etc. Status of the disputed property as joint Hindu coparcenary property was also denied. It was pleaded case of the defendants, that Badan Singh, NagahiaSingh and Chajja Singh did not inherit any property from Ralla Singh, therefore, the property in the hands of Badan Singh, was not ancestral property under the Hindu law or any other law.
The case set up by the defendant/respondents was that Badan Singh had other source of income and further that Inder Singh served in the Army for more than 12 years, and got income out of which he used to support his father Badan Singh, as well as his own family. It was denied, that the property at village Hussainpura was purchased from the income of RSA No.1326 of 1984 6 joint Hindu family property. It was also denied, that Badan Singh purchased the land in the name of Nighaia Singh and Chajja Singh in village Hussainpura.
Property was self-acquired of Badan Singh, Inder Singh, Gurdial Singh and NagahiaSingh and Chajja Singh. Sale in favour of defendants No.1 to 3 by Badan Singh was said to be for consideration. That Badan Singh had thumb marked the sale deed before the Sub Registrar and a sum of Rs.25000/- (Rupees twenty five thousand only) was paid to him as earnest money and he received balance sale consideration, before the Sub Registrar. Badan Singh was said to be of sound disposing mind, when he executed the sale deed. It was denied that the sale deed was the outcome of misrepresentation or fraud. Sale was said to be for legal necessity and consideration. Consideration amount was said to have been utilized by Badan Singh for legal necessity.
Other allegations on merits were denied. It was pleaded in the written statement, that the land in suit was purchased by Badan Singh as self-acquired property, by way of sale deed dated 26.2.1953 which was registered on 7.3.1953. Badan Singh, Inder Singh, Gurdial Singh, NagahiaSingh and Chajja Singh had purchased the land in village Hussainpura from the income of their self-acquired property. As already observed, the sale was said to be for consideration and legal necessity.
It was also the case set up by the defendants that before coming into force Hindu Succession Act, Badan Singh was governed by customary law of Punjab, in the matter of alienation, succession, and in all other RSA No.1326 of 1984 7 respects, since the time immemorial. Suit was said to be barred by Section 7 of the Punjab Custom (Power to Contest) Act, 1920 read with amended Punjab Act 12 of 1993.
Smt. Ishar Kaur, however, admitted the claim of the plaintiff. In the replication, averments made in the plaint were reiterated and those made in the written statement were denied.
On the pleadings of the parties learned trial court framed the following issues:-
1. Whether the property in dispute is joint Hindu family property qua the plaintiff? OPP
2. Whether the sale deed in dispute is a result of misrepresentation and fraud committed on Badan Singh defendant? OPP
3. Whether the plaintiff is entitled to raise the plea of misrepresentation and fraud? OPP
4. Whether the sale in dispute is for any legal necessity and for consideration? OPD
5. Whether the sit is bad for non-joinder of necessary parties? OPD
6. Whether the suit is not maintainable in the present form?
OPD
7. Relief.
Thereafter, two additional issues No.6-A and 6-B were also RSA No.1326 of 1984 8 framed which read as under:-
6-A Whether Isher Kaur is daughter of Badan Singh, if so to what effect? OPD 6-B Whether the suit of the plaintiff is barred as alleged in para No.23-A of the amended written statement?
Learned trial court, on appreciation of evidence, recorded the finding, that the plaintiff was able to prove that the land in village Rajewal was inherited by Badan Singh and his brothers from Ralla Singh through mutation No.33 dated 26.11.1911. The learned trial court further held that excerpt Ex.P.1, and documents Ex.P.20 to Ex.P.25 reveal that Maha Singh, one of the sons of Ralla Singh died and his share was inherited by Badan Singh, NagahiaSingh, Chajja Singh sons of Ralla Singh in equal shares by mutation No.47 dated 15.6.1912.
The learned court further held that in addition, the oral evidence led by the parties, showed that the land of village Rajewal was inherited by Badan Singh and his brother from Ralla Singh. The learned court recorded a finding of fact that the land at village Rajewal was inherited by Badan Singh and his brothers from their father Ralla Singh and the land was ancestral coparcenary land qua the plaintiff/appellant.
Thereafer, the learned trial court, proceeded to consider the evidence with regard to the land at village Husainpura. In view of the stand taken by the plaintiff/appellant that the said land was purchased by Badan Singh and his bothers along with Inder Singh from the income of ancestral RSA No.1326 of 1984 9 land situated at village Rajewal.
Leaned trial court held that Gurdial Singh PW 3, deposed, that Badan Singh and his brothers purchased the land at village Hussainpura, from the produce of ancestral land which they owned at village Rajewal. Similar was the deposition of PW 4.
However, PW 5, on the other hand deposed, that the land in village Hussainpura, was purchased from the income of ancestral land situated at village Hussainpura which was once held by his grand-father.
The learned trial court held that in cross-examination PW 5, stated that all the five brothers had purchased 8 killas of land in village Rajewal, and had given income of the land to their father to purchase the land at village Hussainpura.
The learned trial court held that PW 5 did not make the statement, that the land was purchased at village Hussainpura from the income of the land of village Rajewal.
The learned trial court, therefore held, that there was positive evidence by the defendants, that some land was purchased by Badan Singh and his brothers in village Rajewal which was pre-empted, as a result of which Badan Singh and his brothers received a sum of Rs.8000/- (Rupees eight thousand only). The suit land was purchased at village Hussainpura by spending said amount.
The learned trial court also held that there was evidence by the defendants, showing that Badan Singh and his brothers cultivated the land of others, on Batai and income derived from the said land was also used for RSA No.1326 of 1984 10 the purchase of land at village Hussainpura.
This was deposed by DW 2 Gurdial Singh, D.W.5 Chajja Singh, DW 7 Basta Singh and DW 8 Inder Singh. The learned trial court observed that these witnesses were not cross-examined on this point. Learned trial court held that there was no evidence to show that the land, which was purchased by Badan Singh and his brothers, at village Rajewal which was subsequently pre-empted for a sum of Rs.8,000/- (Rupees eight thousand only) was out of the income of ancestral property.
The learned trial court noticed that there was documentary evidence, by way of Exs.DW 7/A, DW 7/B, DW 7/C and DW 7/D to show that Badan Singh and his brothers were cultivating the land of others.
The learned trial court held that there was evidence to the effect, that income received from the ancestral property was not sufficient to meet the requirement of the family, as it stood proved that Badan Singh, solemnized number of marriages in the family. Inder Singh was married thrice. The learned trial court, therefore, held that it could not be believed, that the income from ancestral property could be saved to purchase the land at village Hussainpura. The learned trial court, thereafter took note of the admission of defendant No.3, with regard to the fact that there was certain land on which Badan Singh and his brothers were mortgagee in village Rajewal.
On appreciation of evidence, referred to above, the learned trial court came to the conclusion, that the suit land was not purchased from the income of ancestral land inherited by Badan Singh and his brothers RSA No.1326 of 1984 11 from Ralla Singh in village Rajewal. Issue No.1 was, thus, decided against the plaintiff/appellant.
On issue No.2, learned trial court recorded a finding, that there was no satisfactory evidence, to prove that the sale deed in favour of defendants No.1 to 3 was result of misrepresentation or fraud committed on Badan Singh. The court held that there was only bald statement of PW 5 in this regard, which was also hearsay evidence, as it was based on the information said to have been received from Piara Singh, the marginal witness of the sale deed.
The learned trial court also concluded that this part of statement, with regard to misrepresentation and fraud was beyond pleading, as the stand taken in the plaint was that sale deed was executed in the garb of partition of the land.
Whereas, evidence was led, that the document was prepared regarding some Takawi. The learned trial court took note of the fact that the suggestion made to the defendants' witness regarding sale deed being the outcome of fraud and misrepresentation was specifically denied. The learned trial court held that the evidence on record showed, Badan Singh to be a prudent man who had made arrangement for the livelihood of his sons and his grand sons.
The learned trial court took note of the fact that Gurdev Singh PW 3, in his cross-examination had stated that NagahiaSingh, one of the brothers of Badan Singh had died leaving behind a Will in favour of sons and Badan Singh regarding his share of land.RSA No.1326 of 1984 12
The learned trial court held that the sale deed was executed by Badan Singh in favour of defendants No.1 to 3 by free Will, and it was not a result of fraud or misrepresentation. Issue No.2 was also decided against the plaintiff.
Issue No.3 was decided in favour of the plaintiff, whereas on issue No.4, learned trial court held that the sale in question, was for legal necessity and consideration.
Issues No.5 and 6 were not pressed, therefore, decided against the defendants.
On Issue No.6-A, learned trial court, held that Smt. Ishar Kaur was proved to be daughter of Badan Singh, as this was not denied by the defendants, in the written statement. The learned trial court, however, held that Badan Singh was competent to sell the suit land, in favour of defendants No.1 to 3, it being not a coparcenary property. The learned trial court also held that Smt.Ishar Kaur did not have any interest in the suit land.
On issue No.6-B, learned trial court held, that Badan Singh was governed by Hindu law and not customary law in view of repeal of Punjab Custom (Power to Contest) Act, 1920.
In view of the findings on the issues, the suit filed by the plaintiff was dismissed.
The plaintiff/appellant preferred an appeal against the judgment and decree. Before the learned lower appellate court, the plaintiff/appellants only challenged the findings of learned trial court on issue Nos. 1 and 4 only.RSA No.1326 of 1984 13
Learned lower appellate court also did not accept, the contention of the plaintiff/appellant, that the property was coparcenary Hindu joint family property, by recording a finding that though, there was no doubt that Badan Singh and his brothers had inherited some land from their father in village Rajewal Tehsil Samrala District Ludhiana, but there was not sufficient evidence, to hold that the land in dispute situated at village Hussainpura was purchased out of the income of the property situated in village Rajewal.
This finding of learned trial court was affirmed, in view of the fact, that it was in evidence that Badan Singh and his brothers were cultivating some land on Batai.
Besides this, they had purchased land, which was pre-empted and a sum of Rs.8,000/- (Rupees eight thousand only) was received under the decree, which proved that Badan Singh and his brothers, had sufficient funds besides the income from ancestral property out of which they purchased the land in dispute.
The learned lower appellate court held, that there was no evidence to draw an inference, that income from ancestral land and income from Batai was thrown into common stock to treat it as joint family income.
The learned lower appellant court, further held that that there was also no evidence that the property purchased at Hussainpura was treated as ancestral property by Badan Singh and his brothers.
The findings, that the property was not joint Hindu family coparcenary property, was affirmed and it was held to be self-acquired RSA No.1326 of 1984 14 property of Badan Singh and his brothers, which he could dispose off as he liked.
The learned lower appellate court also held that, even if it was taken that the sale was not for consideration or legal necessity, it could not be challenged, being qua the self-acquired property, specially, when the plaintiff/appellant failed to prove fraud and misrepresentation. Findings of the learned trial court on issues No.1 and 4 were, accordingly, affirmed, as also on other issues.
Learned counsel for the appellant contends that the appeal raises, the following substantial questions of law, for consideration by this court:
1. Whether the finding of the learned courts below holding the property to be self-acquired property is the outcome of misreading of evidence, thus perverse?
2. Whether the property acquired by labour of the members of the joint family is a coparcenary Hindu joint family property?
In support of substantial questions of law, Mr. G.S.Dhaliwal, learned counsel, for the appellants vehemently contended, that the findings of the learned courts below on issues No.1 and 4 is the outcome of misreading of evidence, pleadings of the parties and being the result of misinterpretation of law, is perverse.
The contention of the learned counsel for the appellant was, RSA No.1326 of 1984 15 that it was not disputed that the property was inherited by Badan Singh and his brothers from Ralla Singh, their common ancestor. As by way of documentary evidence, it was proved that the property was inherited by Ralla Singh from his father, therefore, the property was ancestral property in the hands of Badan Singh. This was also so held by the learned courts below also.
The contention of the learned counsel for the appellant, therefore, was that once the property at village Rajewal, was a joint Hindu coparcenary property in the hands of Badan Singh and his brothers then the income by the joint family, by labour even without the nucleus, will also be a joint Hindu coparcenary property.
In support of the contention, reliance was placed by the learned counsel for the appellant on the Division Bench judgment of Hon'ble Lahore High Court in the case of Sanwal Das Vs. Kure Mal & Ors. 1928 PLR 635, wherein Division Bench of Hon'ble Lahore High Court laid down, that even if there is no nucleus of ancestral property, if two members of the family, are joint in worship and live in commensality and carry on a business jointly, treating that business, in every way as joint family business, such property would be deemed to be the joint Hindu family property.
Hon'ble Division Bench of Lahore High Court in the judgment referred to above had held, that in the absence of proof of separation of the family, presumption was required to be drawn that joint family continued to exist.
RSA No.1326 of 1984 16
The findings in the case of Sanwal Das Vs. Kure Mal & Ors. (supra) relied upon by the learned counsel read as under:-
" Now, as already stated, there is ample evidence on the record which goes to show that the property, as we now see it, had its origin in the small gular shop which Sita Ram, the grandfather of the parties was carrying on and which prospered later on under the wise management of Nanak Chand, the father of the plaintiff. I may also observe, with the due respect to the learned Judge who delivered the judgment in Ram Kishan Das v. Tunda Mal (1), that even if there is no nucleus of ancestral property but we find two members of the family who are joint in worship and live in commensality and carry on a business jointly, treating that business in every way as joint family business and acquiring property with the proceeds of that business, that such property would be deemed to be the joint Hindu family property. In my humble judgment, this proposition is in consonance with the genius and habits of mind of the vast majority of Hindus governed by the law of Mitakshara. I am supported in my view by the high authority of Mr. Justice Beaman, a very distinguished and learned Judge of the Bombay High Court, who in Karsondas Dharmsey v. Gangabai (2), laid down that there was nothing either in practice or theory which excluded the possibility of members of the same family starting a family fortune holding it as members RSA No.1326 of 1984 17 of a joint Hindu family, and thereby clothing it with all the legal qualities and incidents of joint-family property. In Laldas Narandas v. Motibaity (3), it was held that, where a father and his sons acquire the property by their joint labours and are besides joint in food and worship, they must be regarded as having constituted a joint Hindu family even though there may have been no nucleus of property which has come down to the father from his father or grandfather or great-grandfather. For the formation of a coparcenary in Hindu Law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a coparcenary system, and those persons by living, messing and worshipping together, and throwing all the property acquired jointly into one common stock, manifest their intention to deal with on another and with the outsiders as members of a coparcenary body under the Hindu Law."
Learned counsel for the appellant also placed reliance on the judgment of Hon'ble Orissa High Court, in the case of Binod Jena and Anr. Vs. Abdul Hamid Khan and ors AIR 1975 Orissa 159 to contend that in the absence of proof of division, the presumption is that every Hindu family is joint in food, worship and estate. This presumption is stronger in the case of brothers.
Hon'ble Orissa High Court in this very judgment had held that RSA No.1326 of 1984 18 when the property is jointly acquired by the members of joint Hindu family, without aid of joint family nucleus, presumption is that the property is joint family property and therefore, male issue acquires interest by birth. Similar was the view expressed by the Hon'ble Orissa High Court in the case of Sidha Sahoo & Ors. Vs. Jhuma Dei and Ors AIR 1977 Orissa 45, also.
Reliance was also placed by the learned counsel for the appellant, on the judgment of Hon'ble Andhra Pradesh High Court, in the case of Purna Bai and Ors. Vs. Ranchhoddas and Ors. AIR 1992 Andhra Pradesh 270, wherein Hon'ble Andhra Pradesh High Court, has been pleased to lay down, that business carried on by joint efforts, of father and sons, property acquired from earning of such business is a joint family property.
Reliance was also placed by the learned counsel for the appellant on the judgment of Hon'ble Madras High Court in the case of Gunna J.Krishnan and Ors. Vs. G.K.Rengachari and Ors. AIR 1965 Madras 340, wherein Hon'ble Madras High Court was pleased to lay down as under:-
"11. The law is well settled that if members of a joint family who are joint in status and carry on business and acquire property by their joint labour and exertions without the aid of any ancestral nucleus the presumption is that the property so acquired by them should be joint family property in which the sons of the acquirers would get a right by birth, unless it is proved that the acquirers intended to own the property as co- RSA No.1326 of 1984 19 owners between themselves, in which case alone it will be joint property as distinguished from joint family property. The presumption is in favour of its being regarded as joint family property. Vide Mayne's Hindu Law, 11th Edn. Page345:S.281:
and Mullah, 12th Edn. Page345 : S.281 : and Mullah, 12th Edn. Pages 333-334, In this case there is not only no proof to rebut the presumption: but on the other hand the very deed, Ex.A.4, proceeds on the footing that all the properties are Joint family properties. The recitals in the document, the tone and the terms, the background of the case as well as the oral evidence all lead to this conclusion. The position, therefore, is that in 1919 the share of the business assets and other assets which the three brothers as one unit obtained under that partition arrangement would undoubtedly be Joint family property in their hands.
As to what happened thereafter is a matter on which there is no controversy. The three brothers thereafter carried on business in the name of Gunnaji Krishnan Bros, and admittedly the entire properties involved in the suit represent the accretions and augmentations of the assets which got into the hands of the three brothers in 1919 under Exd.A.2. The document Ex.B.1 dated 14.02.1943 is very clear and specific leaving no doubt in the matter. The first defendant who was examined as DW 3 at page 273 line 39 has stated as follows: "All the suit immovable properties were purchased with the funds of Gunnaji Krishnan RSA No.1326 of 1984 20 and Bros". Again at page 275 he has stated as follows:
"Radhakrishna Chetti got for his share, outstandings, and cash and javulis. He got one-fourth share in the outstanding, cash and javuli. I, defendants 4 and 7 jointly got three-fourth share in the properties. In that partition A schedule itesm I feel to our three-fourth share. We got outstanding and javuli as per Ex.A.4. I am aware of the partition evidenced by Ex.A.4. Nine persons effected that panchayat. None of them are alive. PriortoEx.A.4, I and my brother divided the moveables. Before the date of Ex.A.4, I, defendants 4 and 7 began to do business under the style of Gunnaji Krishnan Bros and from 1.3.1919 with the property got by us with Ex.A.4. That business is run until now. With the income from that business we have been buying other properties and also conducting the business on a larger scale. The original capital for the business Gunnaji Krishna was the assets realized under Ex.A.4. Between the date of Ex.A.4 and the death of my father I and my three brothers jointly conducted business. The monies and credits and property earned by us were divided under Ex.A.4."
Finally, reliance was placed on Para No.228 (Twentieth Edition) of the Principles of Hindu Law by Mulla, which reads as under:-
"228. PROPERTY JOINTLY ACQUIRED (1) Where property has been acquired in business by persons RSA No.1326 of 1984 21 constituting a joint Hindu family by their joint labour, the question arises whether the property so acquired is joint family property or whether it is merely the joint property of the joint acquirers, or whether it is ordinarily partnership property. If it is joint family property, it will pass by survivorship, but the male issue of the acquirers do not take interest in it by birth (S.221, Sub-S (2). If it is partnership property, it is governed by the provisions of the Indian Partnership Act 1932, so that the share of each of the joint acquirers will pass on his death to his heirs, and not by survivorship.
(2) If the property so acquired is with the aid of joint family property,it becomes joint family property.
(3) If the property so acquired is acquired without the aid of joint family property, the presumption is that it is the joint property of the joint acquirers, but this presumption may be rebutted by proof that the persons constituting the joint family acquired the property not as members of a joint family, but as members of an ordinary trade partnership resting on contract, in which case, the property will be deemed to be partnership property.
In the absence of any proof of partnership, property jointly acquired by the members of a joint family without the aid of joint family property is, as stated above, to be presumed to be joint. However, is it also to be presumed to be RSA No.1326 of 1984 22 joint family property? It was at one time held by the High Court of Bombay that property jointly acquired without the aid of joint family property was not joint family property and that the male issue of the joint acquirers did not acquire an interest in it by birth, unless it was thrown into the common stock. In later cases, however, it has been held that such property must be presumed to be joint family property, and this has been followed in Lahore, Nagpur and Oudh. In Madras, it has been held that property so acquired must be presumed to be joint family property, unless the acquirers intended to hold the property as co-owners between themselves, in which case it would be their joint property. Reference may be made to S.228.
Bhumidari land purchased with funds contributed by the members of the family would be presumed to be joint family property."
It was also the contention of the learned counsel for the appellant that the judgment and decree passed by the learned courts below is otherwise outcome of misreading of evidence as the courts below failed to take note of the admission made by DW 2 and DW 8 with regard to the status of the property acquired by Badan Singh and his brothers.
Learned counsel for the appellant, therefore, contended that substantial questions of law raised above, deserve to be answered in favour of the appellant and against the defendant/respondents, by holding the property in dispute to be joint Hindu coparcenary property, and that the RSA No.1326 of 1984 23 finding of the learned courts below holding the property to be self-acquired property, is the outcome of misinterpretation of settled law, therefore, perverse. The property acquired by the labour of members of joint family is to be treated as Hindu joint family property, in which the plaintiff/appellant had interest by birth.
Mr. S.N. Chopra, learned counsel appearing on behalf of the respondents, on the other hand, contended that the learned courts below have recorded a concurrent finding of fact that the property in dispute was not ancestral or joint Hindu family property. Rather, it was self-acquired property of Badan Singh. This contention was based on the fact that the learned courts below recorded a finding that the property in question was purchased by Badan Singh with an amount of Rs.8,000/ (Rupees eight thousand only), which he received as pre-emption money with respect to the property purchased at village Rajewal. In addition, Exs. D7/A, D7/ B, D7/C and D7/D showed that Badan Singh and his brothers had been cultivating the land of others, and the income derived from the said cultivation was also used for purchase of land.
It was also the contention of the learned counsel for the respondents, that there was evidence to show that the income from the land inherited by Badan Singh and his brothers from Ralla Singh, was not sufficient to meet the needs of the family, because of the large family and the liabilities of Badan Singh, like number of marriages in the family etc. Learned courts below after taking note of the fact, that it was admitted by Gurdev Singh PW 3 that Badan Singh and his brothers had taken land on RSA No.1326 of 1984 24 mortgage in village Rajewal.
It was also the admitted case that Badan Singh celebrated 10-15 marriages in his life time. It was further the case that land was purchased by five sons of Badan Singh from their own income, as Badan Singh being old man had no money to purchase land. Learned counsel, therefore, contended, that it was proved that the suit land was not purchased, from the income of ancestral land inherited by Badan Singh and his brothers from Ralla Singh.
Reference was also made by the learned counsel to, the statement of Gurnam Singh plaintiff, wherein he had stated that the land in village Hussainpura was purchased from the income of ancestral land situated in village Hussainpura, which was once held by his father, but there was no evidence in proof of assertion that any land was owned by Ralla Singh in village Hussainpura.
In view of the findings referred to above, plea was raised that in absence of evidence of self-acquired property being voluntarily thrown in the joint stock, with an intention to abandoning separate claim, it is to be treated as self-acquired property.
Reliance in support of this contention was placed on the judgment of Hon'ble Punjab High Court in the case of Girdhari Lal Vs. Krishan Dutt AIR 1960 Punjab 580. Hon'ble Punjab High Court in the case was pleased to lay down, that the question whether the owner of self- acquired property had voluntarily thrown it into the joint stock with the clear intention of abandoning all separate claims, is a question of fact and RSA No.1326 of 1984 25 no interference in this finding is permissible in regular second appeal.
It was also the contention of the learned counsel for the respondents, that it was not even the case set up by the plaintiff/appellant before the learned lower appellate court, that self-acquired property was thrown into common stock or that the suit property was treated as ancestral or joint Hindu family property.
The contention of the learned counsel for the plaintiff/appellant was that this plea cannot be raised for the first time before this court. In support of this contention reliance was placed on the judgment of Hon'ble Supreme Court in the case of Mohamad Akram Ansari Vs. Chief Election Officer, 2008(1) RCR(Civil) 566, wherein Hon'ble Supreme Court was pleased to lay down, that if a point is not mentioned in the judgment of the Court, the presumption is that that point was never raised before the learned judge and was given up. Though this presumption is rebuttable, then the party in that case has to approach the same court, which passed the judgment and urge that the points raised were not dealt with. However, it is not open to the party to file an appeal on said point.
It was, thus, contended by the learned counsel for the respondents, that the case set up by the plaintiff, was that family of Badan Singh of which he was Karta, had no source of income except the property in village Rajewal Tehsil Samrala, District Ludhiana. It was also pointed out by the learned counsel for the respondents, that Badan Singh, Sajjan Singh, and NagahiaSingh had become owners of the property in question earlier to commencement of the Hindu Succession Act, 1956, as the property in RSA No.1326 of 1984 26 village Hussainpura was purchased vide sale deed dated 26.2.1953, Ex. P.2 in the names of Badan Singh and his brothers to the extent of 2/3 shares. Out of whole sale consideration of Rs.13,500/- (Rupees thirteen thousand and five hundred only), Rs.4500/- (Rupees four thousand and five hundred only) were contributed by Inder Singh defendant and Rs.9000/- (Rupees nine thousand only) were contributed by Badan Singh etc. In addition, the pre-emption amount of Rs.8,000/- (Rupees eight thousand only) was also paid as consideration price, whereas other part was paid from the income of Batai.
The contention of the learned counsel was that prior to commencement of Hindu Succession Act, parties were governed by Customary Law of Punjab. Therefore, the property which was acquired prior to the commencement of Hindu Succession Act, did not become coparcenary property, just with passing of Hindu Succession Act, as operation of the Act was not retrospective. In support of this contention learned counsel for the respondents placed reliance on the judgment of this Court in the case of Puran Chand & Ors. Vs. Gurcharan Singh & Anr. 1967 PLR 706, wherein it was held that Hindu Succession Act does not operate retrospectively, nor does it make past transaction invalid. It also does not take away the amenity that attached to the property before it came into force.
Reliance thereafter, was placed on the judgment of this court in the case of Hans Raj Basant Ram Vs. Dhanwant Singh Balwan Singh AIR 1961 Punjab 510, wherein this Court was pleased to lay down that RSA No.1326 of 1984 27 Section 4 of the Hindu Succession Act did not take away the rule of custom so far as the succession was concerned. Therefore, after the Hindu Succession Act came into force no Hindu could be said to be governed by rules of customary law and the succession to the property held by the Hindu was to be regulated by provisions of Hindu Succession Act. In the judgment it was held that Hindu Succession Act was not retrospective, therefore, the succession which opened before the Act, was not governed by the Hindu Succession Act but by the law prevailing at that time.
Reliance was also placed on the judgment in the case of Hazara Singh Vs. Smt.Chawli 1986 (2) PLR 362 to contend that on the death, when succession opened prior to coming into force of the Act, then succession was to be based under agricultural customs, as the parties were governed by customs. The contention, therefore, was that property inherited by Badan Singh and his brothers vide mutation No. 33 dated 26.11.1911 was to be treated under the customs.
It was also the case of the defendant/respondents, that the dispute in the present case was not of inheritance from common ancestors. It was whether the property was purchased from nucleus of the ancestral family. Learned counsel for the respondents also placed reliance on the judgment of this court in the case of Sant Ram Vs. Parma Nand 1977 PLR 605, to contend that there was no presumption in law regarding property in hand of the father to be joint Hindu family property. This court was pleased to lay down as under:-
".17. It is settled law that whereas there is a presumption RSA No.1326 of 1984 28 in law regarding the jointness of a Hindu family between the father and his sons, there is no presumption that any property in the hands of the father is a joint Hindu family property. A reference may be made to a decision of their Lordships of the Supreme Court in Sriniva Krishna Rao Kango v. Naryan Devji Kango, wherein it was held as under:-
"Proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property was joint, to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
18. The learned counsel has relied upon Mallappa Girimallappa Begeri and others v. R. Yellapagauda Patil , K. V. Narayana Swami Iyer v. K.V. Ramakrishna Iyer any Prem Nath v. Commissioner of Income Tax, Delhi and Rajasthan. None of these decisions advances the case of the appellant. In Mallappa Girimallappa Betgei's case (supra) it was held as under:-
"Where the manger of a joint Hindu Family RSA No.1326 of 1984 29 acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and a part from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. Unless that presumption was rebutted, it must prevail."
In the present case, neither there is any material to warrant the conclusion as discussed above, that there was sufficient nucleus of joint family property out of which the properties in dispute could be acquired nor can it be said that respondent No.1 did not have any other source of income with which these properties could be purchased. On the other hand, the amount of Rs.4,000/- was too meagre to constitute joint family property's nucleus and the same must have been spend in the course of years to meet the routine domestic expenses and the education of the children. Beside, respondent No.1 had definitely a source of income by entering into a partnership business, which could be utilized by him in purchasing the properties in dispute.
19. In K.V Narayaswami Iyer's case (supra) it was held that where at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring the same, the property so purchased should be presumed to be acquired from RSA No.1326 of 1984 30 out of the family funds.
20. In Prem Nath's case (supra) the question under consideration was under the Income-tax Act as to whether income of the joint Hindu family should be treated as his own individual income or the income of Hindu undivided family. It was held that if it can be shown that there was no aid taken from the family funds, directly or indirectly, in earning the income which was earned entirely or predominantly due to the personal exertions of the member without detriment to the funds of the family, the income would remain the individual income of the member and taxable in his hands.
21. From the ratio of the above decisions it is clear that the person who asserts and alleges any property to be Hindu joint family property has to prove the same. In order to be successful in this he should either prove that the property was inherited from the common ancestor and as such being ancestral property it should be presumed to be joint family property. In the alternative, satisfactory evidence has to be led to warrant a conclusion that the property was acquired with the aid of joint family nucleus which, in its turn, has to satisfy further test that such a nucleus was sufficient to acquire the property in question. In order to come to a conclusion whether the property in question was in fact acquired from the joint family nucleus, the fact that the Karta or any member of the RSA No.1326 of 1984 31 joint family acquiring the same had other source of income also from which the property in question was in fact acquired is also relevant and has a material bearing to determination of the controversy. In the present case, the only evidence is that Parma Nand, the father of the appellant, was in possession of a joint family nucleus of only Rs.4,000/- as a result of sale of the ancestral property. There are circumstances to show that this nucleus must have exhausted itself before the property in question was acquired purchased, nor could this nucleus be considered sufficient for the purpose of acquiring this property. Besides, Parma Nand had an independent income from which the property in question could be acquired."
It was also the contention of the learned counsel for the respondents that property of Maha Singh, brother of Badan Singh, was also inherited by Badan Singh, Chajja Singh and NagahiaSingh vide mutation No.47 dated 15.6.1912, with respect to the land in village Rajewal which got mixed with the property and therefore, the property of Maha Singh was non-ancestral property in the hands of Badan Singh and therefore, the whole land was to be treated as non-ancestral. In support of this contention reliance was placed on the judgment of Hon'ble Supreme Court in the case of Mara and others Vs. Mst. Nikjko alias Punjab Kaur and Anr. AIR 1964 SC 1821 and the judgments of this court in the cases of Sunehri Devi Vs. Lachhmi 2004 (2) RCR (Civil) 795 and Tara Wanti & Anr. RSA No.1326 of 1984 32 Vs. Shanti and Anr. (2007-2) PLR 537.
On the basis of the contentions referred to above, it was contended by the learned counsel for the respondents that the substantial questions of law raised, deserve to be answered against the plaintiff/appellant and the appeal deserved to be dismissed with costs.
On consideration, I find that the question to be decided in the present case is:
"As to whether on the admitted and proved facts learned courts below had applied the law correctly to non-suit the plaintiff or they correctly applied the law to dismiss the suit?"
It cannot be disputed that proved facts show that Badan Singh and his brothers had acquired the property at village Rajewal which was coparcenary ancestral property in the hands of Badan Singh and his brothers. The learned courts also rightly held, that the property acquired at village Hussainpura was, in fact, from the fund of joint labour by Badan Singh and his brothers, and from the income derived from the land which they took on Batai and cultivated jointly as also from the money received by them as pre-emption money, with regard to the land purchased at village Rajewal, which was later on pre-empted.
The learned courts below held, that in the absence of evidence, showing that the property acquired at village Hussainpura was, in fact, thrown in the common stock with an intention to treat as a joint family property, it could not be held to be joint Hindu family property in which the plaintiff could have the interest by birth. This line of the reasoning was, in RSA No.1326 of 1984 33 fact, supported by the learned counsel for the respondents.
Whereas, the stand of the learned counsel for the appellant, was that, even if the property was acquired at village Hussainpura by Badan Singh and his brothers by their joint efforts as a joint Hindu family property, then there was presumption of jointness and the property was to be treated as joint Hindu family coparcenary property, giving right to the plaintiff to challenge the alienation made by Badan Singh.
On consideration, I find force in the contentions raised by the learned counsel for the appellant.
The judgment of Hon'ble Lahore High Court in the case of Salnwal Das Vs. Kure Mal & Ors. (Supra), does not support the case set up by the plaintiff/appellant, because in the said case the question decided was that when the member of a joint Hindu family who are living joint in messing and commensality together, have thrown all their property acquired jointly into one common stock, then it is to be treated to be a coparcenary property under the Hindu law.
In view of the findings recorded above, that there was no evidence to show that the property was thrown in the common stock this judgment is of no help to the case of the appellant.
However, when the contention of the learned counsel for the appellant is considered in view of the law laid down by Hon'ble Orissa High Court in the case of Binod Jena and Anr. Vs. Abdul Hamid Khan and ors (supra) and the judgment of Orissa High Court in the case of Sidha Sahoo & Ors. Vs. Jhuma Dei and Ors. (supra), holding that when the RSA No.1326 of 1984 34 property is jointly acquired by the members of the joint Hindu family without the aid of joint family nucleus, still the presumption is that the property is joint family property.
This view further finds support from the judgment of Hon'ble Andhra Pradesh High Court in the case of Purna Bai & Ors. Vs. Ranchhoddas & Ors. (supra) as also the judgment of Hon'ble Madras High Court in the case of Gunna J.Krishnan & Ors. Vs. G.K.Rengchari and Ors. (supra).
Not only this, according to Para No.228 (Twentieth Edition) of the Principles of Hindu Law by Mulla, the properly jointly acquired is to be treated as under:-
"In the absence of any proof of partnership, property jointly acquired by the members of a joint family without the aid of joint family property is, as stated above, to be presumed to be joint. However, is it also to be presumed to be joint family property? It was at one time held by the High Court of Bombay that property jointly acquired without the aid of joint family property was not joint family property and that the male issue of the joint acquirers did not acquire an interest in it by birth, unless it was thrown into the common stock. In later cases, however, it has been held that such property must be presumed to be joint family property, and this has been followed in Lahore, Nagpur and Oudh. In Madras, it has been held that property so acquired must be presumed to be joint family RSA No.1326 of 1984 35 property, unless the acquirers intended to hold the property as co-owners between themselves, in which case it would be their joint property. Reference may be made to S.228.
Bhumidari land purchased with funds contributed by the members of the family would be presumed to be joint family property.", It leaves no manner of doubt, that on the proved facts referred to above the property at village Hussainpura was also to be treated as a joint Hindu coparcenary property, in which the plaintiff had interest by birth and could challenge the transfer, made by Badan Singh as prima facie the legal necessity shown in the sale deed, was non-existent and otherwise also the property was sold in favour of son and daughter-in-law.
In view of the findings recorded above, the contention of the learned counsel for the respondents, deserves to be rejected, for the reasons hereinafter stated.
It cannot be disputed, that a concurrent finding of fact arrived at by the learned courts below cannot be interfered with on reappraisal of evidence. However, in case on proven facts, if a finding with regard to the status of property is recorded wrongly, then it is always open to the High court to reverse that finding. The finding of the learned courts below to hold the disputed property, to be not a joint Hindu family property, was in fact, based on wrong interpretation of law on the ground that in the absence of the property being put in the common stock it was to be treated as the self- RSA No.1326 of 1984 36 acquired property. Learned courts below on proved facts held that the property at village Hussainpura was acquired by Badan Singh and his brothers, from the income of land taken, on Batai, and from the pre-emption money received. Pre-emption money was also received as there was purchase of property from the joint income of the parties. There was sufficient evidence, to show that Badan Singh and his brothers lived as a joint family. In any case, there was no evidence that there was separation of family. Therefore, the judgment relied upon by the learned counsel for the respondents, in the case of Girdhari Lal Vs. Krishan Dutt (supra), cannot be said to be applicable to the facts of the present case.
The contention of the learned counsel for the respondents, that before the learned lower appellate court no argument was raised with regard to the property purchased from self-acquired income or with ancestral income, cannot be raised in appeal, in view of the law laid down in Mohamand Akram Ansari Vs. Chief Election Officer (supra), can not be accepted, as admittedly, the findings on issues No.1 and 4 were challenged before the learned lower appellate court, as also before this court, as referred to above.
The contention of the learned counsel for the respondents that the property was acquired under customary law and therefore, does not become coparcenary property, in view of the law laid down in the cases of Puran Chand & Ors. Vs. Gurcharan Singh & Anr.; Hans Raj Basant Ram Vs. Dhanwant Singh Balwan Singh and Hazara Singh Vs. Smt.Chawli (supra) also deserves to be noticed to be rejected. RSA No.1326 of 1984 37
In view of the fact that the finding recorded by the learned trial court on issue No.6-B, was not challenged by respondent/defendants before the learned lower appellate court nor in this court. Therefore, the finding on issue No.6-B having attained finality, the defendant/respondents now cannot be allowed to raise the plea that the property was to be governed by customary law.
Even otherwise, the contention of the learned counsel for the respondents cannot be accepted, as admittedly in view of the repeal of Customs Act, the parties are to be treated to be governed by Hindu law as also Hindu Succession Act and not by the customary law. The contention of the learned counsel for the respondents, that the property is to be treated as self-acquired property because of merger of non-ancestral and ancestral property, is totally misconceived.
Firstly for the reason, that no such plea was considered or raised before the learned courts below. Even otherwise, this question does not arise, as there is no dispute that the land in dispute was at village Hussainpura, which was purchased by late Badan Singh and his brothers from the funds acquired by joint labour and there was no ancestral or non ancestral property which could be said to have been merged. The findings of the learned courts below that the property at village Rajewal was coparcenary joint Hindu family property, in the hands of Badan Singh and his brothers, was not the subject-matter of challenge before any court.
For the reasons stated above, the substantial questions of law, raised are answered in favour of the appellant/plaintiff and against the RSA No.1326 of 1984 38 respondent/defendants.
Resultantly, the appeal is allowed, the judgment and decree passed by the learned courts below is set aside and the suit filed by the plaintiff/appellant, is ordered to be decreed but with no order as to costs.
(Vinod K.Sharma) 11.05.2010 Judge rp