Himachal Pradesh High Court
Sarabjeet Singh & Ors vs Rajesh Prashad & Anr on 4 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 268 of 2004
Reserved on: 20.6.2016.
Decided on: 4.7.2016.
.
Sarabjeet Singh & ors. ......Appellants.
Versus
Rajesh Prashad & anr. .......Respondents.
Coram
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr. Bhupinder Gupta, Sr. Advocate with Mr. Neeraj Gupta,
rt Advocate.
For the respondents: Mr. K.D.Sood, Sr. Advocate, with Mr. Mukul Sood,
Advocate.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Una, H.P. dated 31.3.2004, passed in Civil Appeal No. 149/2000/96.
2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for possession of half share of the land described in the plaint and for declaration to the effect that the plaintiff is exclusive owner in possession of land measuring 0-14 marlas as 1/6 share of land measuring 4-4 kanals bearing khewat No. 297 Khatauni No. 430 and 431 and Kh. Nos. 2482/2277/1, 2263, 2259, including abadi consisting of two kacha posh rooms and one pucca room having plinth area measuring 45 sq. meters with shaream rasta to the East, house of Ravinder son of Satya Pal to the West, the land of Wattana son of Rania to ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 2 the North and the land of Ganesh son of Sukhdev Ram to North and the land of Ganesh son of Sukhdev to the South situated in village Bhera, .
Tehsil Amb, Distt. Una, H.P. According to the averments made in the plaint, the suit land was jointly owned and possessed by the plaintiff and Dev Raj along with their father as coparceners. The father of the plaintiff has died, therefore, the plaintiff has got ½ share in the suit land. Some of the suit land has been purchased by the plaintiff from his earnings in the of name of his father Satya Pal and it was thrown in the common pool of joint Hindu family property. It has become integral part of it. The rt plaintiff has constructed his abadi in Kh. No. 2263 and 2259 by spending huge amount with the consent of his father and appellants-defendants (hereinafter referred to as the defendants), who created permanent licence in favour of the plaintiff. The defendants have never raised any objection at the time of raising construction by the plaintiff. His father was never in need of any money nor he had any legal necessity to sell the part of the suit land. However, on 13.2.1989, defendant No. 2 Champa Devi, wife of Dev Raj in connivance with her husband got fictitious sale-deed executed by the father of the plaintiff without any sale consideration. Thus, the sale deed was null and void and has got no effect on the plaintiff's share in the joint Hindu coparcenary property. The father of the plaintiff had no right to alienate the house mentioned in headnote-II of the plaint since the plaintiff has constructed the house after spending huge amount with the consent of his father.
3. The suit was contested by the defendants. According to them, the suit land was not joint Hindu coparcenary property as the same ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 3 was the self acquired property of Satya Pal. Sh. Satya Pal purchased some of the suit land through sale and some by way of preemption for .
consideration paid by him from his personal earnings. Defendant Dev Raj and his wife advanced money to him. They have denied that the plaintiff has purchased the land in the name of his father. The abadi in Kh. No. 2259 was raised by Satya Pal. No licence was created in favour of the plaintiff. Regarding sale deed dated 13.2.1989, the same was executed by of Satya Pal in favour of Smt. Champa Devi for consideration of Rs.
24,000/-. The plaintiff was living separately from his father.
4. rt The learned Sub Judge Ist Class (II), Amb, H.P., framed the issues on 22.8.1990 and 8.4.1992 and suit was decreed on 1.7.1996.
Feeling aggrieved, the appellants-defendants preferred an appeal bearing No. 149/2000/96 before the learned Addl. District Judge, Una. The learned Addl. District Judge, Una, dismissed the same on 31.3.2004.
Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 13.9.2004:
"1. Whether both the courts below have misunderstood the provisions of Hindu Succession Act and wrongly held the devolution of property after the death of Shri Satya Pal to be governed under Section 6 of the Hindu Succession Act by ignoring the provisions of Section 8 of the said Act?"
6. Mr. Bhupinder Gupta, Sr. Advocate, for the appellants, on the basis of substantial question of law, has vehemently argued that the suit property was self acquired property of Satya Pal and not coparcenary property. Satya Pal has acquired property during his life time. The ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 4 property was never thrown in joint stock. On the other hand, Mr. K.D.Sood, Sr. Advocate, has supported the judgments and decrees of both .
the Courts below.
7. I have heard the learned Senior Advocates for the parties and gone through the judgments and records of the case carefully.
8 PW-1 Surjeet Singh has proved site plan Ext. PW-1/A.
9. PW-2 Ravinder Prakash is the plaintiff. He testified that his of father was owner of 38/39 kanals of land. It has come to him from his ancestors. Out of this, 2-3 kanals of land was purchased by his father rt from the earnings of joint family property. They belonged to joint Hindu family having ancestral property. He raised kucha house in the year 1969 and raised pucca construction in the year 1979. The land was given to him by his father. His father has also given land to defendant Dev Raj.
His father has given land to him for construction of house bearing Kh.
Nos. 2259 and 2263. He has also taken water and electricity connections.
Defendant Dev Raj has also constructed his house on 4-5 kanals of land.
This land was given to him by his father. Dev Raj has got executed sale deed in favour of his wife from his father on 13.2.1989.
10. PW-3 Onkar Singh has proved that electricity meter was sanctioned in the name of plaintiff.
11. PW-4 Subhash Chand has deposed that on 26.3.1981, the plaintiff had applied for water connection to his house. It was sanctioned in his favour on 25.5.1981.
12. PW-5 J.C.Sharma, has proved bills Ext. PW-5/A to PW-5/D regarding purchase of cement.
::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 513. PW-6 Teja Ram has proved bill Ext. PW-6/A vide which plaintiff had purchased 30 bags of cement on 26.4.1982.
.
14. PW-7 Ram Lal, deposed that he worked as labourer when plaintiff constructed his house in the year 1979.
15. PW-8 Gian Singh is the mason. He deposed that in the year 1979, he constructed the house of the plaintiff.
16. PW-11 Sher Mohammad has proved bill Ext. PW-11/A of whereby he has sold bricks to the plaintiff.
17. One of the defendants, Dev Raj has appeared as DW-1.
rt According to him, the suit land was sold to his wife by Satya Pal vide registered sale deed for consideration of Rs. 24,000/-, which includes house situated on the suit land. The suit land was sold by his father since he was in dire need of money. His father had incurred debts at the time of marriage of education of his younger son. The house situated on the suit land was constructed by his father in the year 1979. His father has also purchased the property on the basis of sale as well as through preemption. The plaintiff has never contributed any amount to his father.
The suit land was self acquired property of his father. The plaintiff has never raised the construction of the house. After the sale, his wife came into possession of the suit land. His father was also owner of 10-15 kanals of land, mutation of which has already been sanctioned in his favour and in favour of the plaintiff.
18. DW-3 Suresh Kumar has scribed sale deed Ext. DW-2/A dated 13.2.1989.
::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 619. DW-4 Hardyal was examined by the defendants to prove that in the record of the Panchayat, separate house tax was assessed in the .
name of the plaintiff and his father Satya Pal.
20. DW-5 Preme Ram is the attesting witness of sale deed Ext.
DW-2/A.
21. DW-6 Ajeet Singh is the Secretary of the Cooperative Society, Bhera. He has been examined by defendants to prove that Satya Pal was of the member of their society who took loan from the society on different dates.
22. rt DW-7 Parmeshwari Dass is another attesting witness of sale deed Ext. DW-2/A.
23. According to the copy of jamabandi for the year 1955-56, Ext.
P-9 in respect of Mauja Bhera, Tehsil Amb, District Una, the common ancestor has been shown to be Sh. Anokha, father of Mehtaba. This entry with respect to the ancestor Anokha son of Manna also finds mention in the copy of mutation for the year 1970-71 Ext. P-3. According to the pedigree table, sons of Mehtaba Ram have been shown to have succeeded to the estate of Mehtaba Ram. Ext. P-10 is the copy of Khatoni Istemal which was prepared after consolidation and in the jamabandi Ext. P-15 for the year 1981-82, shares of different share holders have been described. Ext. P-13 is the copy of Istemal for the year 1965-66 and Ext.
P-14 is the copy of Bandobast Jadid. In all these documents, there is categorical mention of the suit land apart from the fact that common ancestor was mentioned as Anokha father of Mehtaba. Anokha's father was Manna. Anokha was the common ancestor.
::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 724. The defendants have also filed documents Ext. D-1 to D-6.
Ext. D-1 and D-2 are copies of orders and decree sheet dated 8.8.1986 .
vide which suit for possession by way of preemption filed by Satya Pal against Rattni wife of Amrit Lal son of Jai Karan Dass was decreed. Ext.
D-3 and D-4 are the copies of order and decree dated 2.1.1985 vide which suit filed by Satya Pal against Joginder Lal and Amar Nath for possession by way of preemption in respect of land measuring 6-11 kanals was of decreed. Ext. D-5 and D-6 are the copies of order and decree sheet dated 14.12.1983 vide which suit filed by Satya Pal against Chhaju Ram for rt possession of land measuring 14 marlas by way of preemption was decreed in his favour.
25. The plaintiff has led ample evidence to prove that the property in the hands of Satya Pal was coparcenary. The defendants have not rebutted the revenue entries proved by the plaintiff. Satya Pal has also purchased land through sale deed dated 29.11.1971 Ext. DW-1/A from one Sukho and by virtue of another sale deed dated 11.1.1967 Ext. DW-
8/A from Smt. Hukmi vide sale deed Ext. P-2 dated 15.1.1969 executed by Ram Krishan and sale deed Ext. P-1 dated 15.1.1969 also by one Parshotam. There is no evidence on record even remotely to suggest that Satya Pal has individually kept separate land purchased by him on the basis of sale and preemption decrees. This property was thrown by him in common stock. The defendants have also not led any evidence that Satya Pal has any separate source of income and he invested funds to purchase the property. In the present case, the 'doctrine of blending' was attracted since Satya Pal has thrown his property into the common stock ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 8 and the separate property has lost its significance and identity. It has become joint family property of the coparceners.
.
26. Their lordships of the Hon'ble Supreme Court in the case of Lakkireddi Chinna Venkata Reddi and ors. vs. Lakkireddi Lakshmama, reported in AIR 1963 SC 1601, have held that law relating to blending of separate property with joint family property is well settled.
Property separate or self- acquired of a member of a joint Hindu family of may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention rt of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. It has been held as follows:
"9. Law relating to blending of separate property with joint family property is well settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. It is true that Butchi Tirupati who was one of the devisees under the will of Venkata Konda Reddy was a member of the joint family consisting of himself, his five brothers and his father Bala Konda. It is also true that there is no clear evidence as to how the property was dealt with, nor, as to the appropriation of the income thereof, But there is no evidence on the record to show that by any conscious art or exercise of volition Butchi Tirupati surrendered his interest in the property devised in his favour under the will of Venkata Konda Reddy so as to blend it with the joint family property. In the absence of any such evidence, the High Court was, in our judgment, right in holding that Lakshmama was entitled to a fourth share in the property devised under the will of Venkata Konda Reddy."::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 9
27. Their lordships of the Hon'ble Supreme Court in the case of G.Narayana Raju (dead) by his legal representative vs. G. Chamaraju .
and others, reported in AIR 1968 SC 1276, have held that it is a well-
established doctrine of Hindu law that property which was originally self-
acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all of separate claims upon it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a rt clear intention on the part of the copareener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done, from kindness or affection. The important point to keep in mind, is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right it as separate property. The intention can be gathered only from his words and acts and conduct. It has been held as follows:
"6. We pass on to consider the alternative argument put forward on behalf of the appellant, namely, that even if the business of Ambika Stores was started as, a separate business of Muniswami Raju, it became converted at a subsequent stage into joint family business. It was argued on behalf of the appellant that the business of Ambika Stores was thrown by Muniswami Raju into the common ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 10 stock with the intention of abandoning all separate claims to it and therefore the business of Ambika Stores lost its character of a separate property and was impressed with the character of joint .
family property. It is a well- established doctrine of Hindu law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognized by the Judicial Committee [See Hurpurshad v. Shea Dayal(1) and Lal Bahadur v.
of 'Kanhaiya Lal(-). But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the copareener to waive his separate rt rights and such an intention will not be inferred merely from acts which may have been done, from kindness or affection [See the decision in Lata Muddun Gopat v. Khikhinda Koer (3). For instance, in Naina Piltal v. Daiyanai (1) 3 I.A. 259. (2) 34 I. A. 65.(3) 18 I. A.
9.Ammal, (1) where in a series of documents, self-acquired property was described and dealt with as ancestral-joint family it was held by the Madras High Court that the mere dealing with self-acquisitions as joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind, is that the separate property of a Hindu coparcener ceases to be his separate property and -acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right it as separate prop". A man's intention can be discovered only from- his words or from his acts I and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, I the acts and conduct being no more than evidence of the intention. - In the present case, the High Court has ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 11 examined the evidence adduced by the parties and has reached the conclusion that there was no intention on the part of Muniswami Raju to throw the separate business of Ambika Stores into the .
common stock, nor was it his intention to treat it as a joint family business. Counsel on behalf of the appellant referred to the recital, in Ex. E describing the properties being those of the executants and that the borrowings was for trade and benefit of the family and it was argued that there was a clear intention on the part of. Muniswaini Raju to treat the business as joint family business. We have already of referred to this document and indicated that the recitals were probably made for the-purpose of securing a loan and cannot be construed as consent on the part of the members of the joint family to treat the business as the joint family business. Further, there is rt ample evidence to show that in all succeeding years before his death Muniswami Raju had always described himself and conducted himself as the sole proprietor of Ambika Stores, Such an attitude on the part of Muniswami Raju was not consistent with any intention on his part either to abandon his exclusive right to the business or to allow the business' to be treated as joint family business. Exhibits XXXV to XLVI are all documents executed by third parties in favour of Muniswami Raju in which Muniswami Raju has been described as the proprietor of Ambika Stores. Exhibits III, XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB -are all communications addressed by institutions like Banks etc., in which Muniswwni Raju has been described as the proprietor of Ambika Stores. It may be stated that the appellant himself has admitted in his evidence that he was not drawing any moneys from the business of Ambika Stores and that whenever he wanted any_money, he would ask Muniswami Raju and obtain (1) A.I.R. 1936 Mad .177.from him. If really the appellant had considered himself to be I co-owner equally with Muniswami Raju, such conduct on his part is not explicable. it was urged on behalf of the appellant that there was no documentary evidence to show that the appellant was being paid any salary 'Muniswami Raju, and that prior to Muniswami Raju's death, it was the appellant who ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 12 was in the entire management of Ambike stores when Muniswami Raju was ill and after the death of Muniswami Raju also it was the appellant who had been in management. Al, the books of account .
and other documents pertaining to the business of Ambika Stores had been admittedly entrusted to the appellant. But it is not explained on behalf of the appellant as to why the documents were not produced on his behalf to disprove the Case of the respondents that he was a salaried servant. It is therefore not unreasonable to draw an inference from the conduct of the appellant that the of Account Books, if produced in court, would not have supported his case. We accordingly reject the argument of the appellant that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of Muniswami Raju rt in throwing the business into the common stock or in blending the earnings of the business with the joint family income."
28. Sh. Satya Pal has permitted his son to raise construction over the property. Satya Pal rather had no intention to keep self acquired property for individual purpose. Satya Pal had abandoned his individual rights in the property so purchased by him and the same, as discussed hereinabove, was put in joint stock. Since the property in the hands of Satya Pal was joint Hindu coparcenary property the inter se succession has to take place in accordance with Section 6 of the Hindu Succession Act. Section 6 of the Hindu Succession Act reads as under:
"6. Devolution of interest of coparcenary property. - When a male Hindus dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:"
29. The property will devolve upon the members of the coparcenary property by way of survivorship on surviving members of ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 13 coparcenary and not by succession. In the present case, only Section 6 is attracted and not Section 8 of the Hindu Succession Act, as argued by .
Mr. Bhupender Gupta, Sr. Advocate.
30. The rule of survivorship applies to joint family property while the rule of succession applies to property held in absolute severally by the last owner. It is reiterated that Mehtaba was common male ancestor of the parties as per the revenue record. He was shown in exclusive of ownership and possession of the suit land. The case of the plaintiff specifically was that the property was purchased by his father from the rt funds contributed by him. This plea has remained unrebutted. The defendants have not led any conclusive evidence that Satya Pal was living separately from his sons. The suit land was joint Hindu coparcenary property and not self acquired property of Satya Pal. There is also merit in the contention of Mr. K.D.Sood, Sr. Advocate that there was no need for Satya Pal to sell the land to Champa Devi on 13.2.1989. Champa Devi has not entered into the witness box to depose about the legal necessity.
According to the plaintiff, there was no need for Satya Pal to sell the land.
The plaintiff has raised the construction over Kh. Nos. 2259 and 2263.
He has raised the construction in the year 1979. The water and electricity connections have been sanctioned in his favour. Defendant Dev Raj has admitted that electricity and water connections in the house in dispute were in the name of plaintiff. The mason and labourers have supported his case. He has placed on record the copies of bills of cement and bricks etc. There is no evidence on record to prove that during his life time the father of the plaintiff, Satya Pal raised any objection to the ::: Downloaded on - 15/04/2017 20:45:19 :::HCHP 14 construction raised by the plaintiff. Even, defendant No. 2 has not raised any objection when the plaintiff raised construction in the year 1990.
.
Thus, the sale deed entered into between Satya Pal and Champa Devi was without any legal necessity.
31. It was for the defendants to prove that the land purchased by Satya Pal through preemption decrees was kept separate from the joint holding. It cannot be conclusively proved from the evidence led and of conduct of Satya Pal that he had no intention to keep the property purchased by him and by way of preemption decrees as separate. The rt substantial question of law is answered accordingly.
32. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
July 04, 2016, ( Rajiv Sharma ),
(karan) Judge.
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