Himachal Pradesh High Court
Raksha Kumari And Others vs Chain Singh And Another on 3 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.134 of 2019.
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Date of decision: 3rd April, 2019.
Raksha Kumari and others .......Appellants/Plaintiffs.
Versus Chain Singh and another .....Respondents/Defendants.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1. No For the Appellants : Mr. Sunil Mohan Goel and Mr. Raman Jamalta, Advocates.
For the Respondents : Mr. V.S.Rathour, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge (Oral).
CMP(M) No. 1390 of 2018.
By medium of this application, the applicants/appellants have sought condonation of 10 months and 19 days' delay in filing of the appeal. Even though, this application is vehemently opposed by learned counsel for respondent No.1, however, for the reasons stated in the application, which is otherwise duly supported by an affidavit of one of the applicants/appellants, I find sufficient cause to condone the delay in filing the appeal. Ordered accordingly. Application stands disposed of.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 06/04/2019 21:58:04 :::HCHP 2 RSA No.134 of 2019.
2. Appeal be registered.
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3. With the consent of learned counsel for the parties, the appeal is taken up for final hearing.
4. Brief facts giving rise to the present appeal are that the land comprising of Khata No. 125, Khatauni No. 151, Khasra No. 193, measuring 0-05-18 hectares, (ii) Khata No. 127, Khatauni No. 153, r to Khasra No. 194, area measuring 0-07-86 hectares, (iii) Khata No. 128, Khatauni No. 154, Khasra Nos. 164, 176, 185, 190, 191, 195, 197, 207, 208, 211, 218, 220, 247, 251, 375, area measuring 2-61-78 hectares to the extent of 1/3rd share measuring 0-87-26 hectares,
(iv) Khata No. 129, Khatauni Nos. 155, 156, 157, Khasra Nos. 196, 206, 209, 180, area measuring 0-27-95 hectares to the extent of 1/6th share measuring 0-04-66 hectares, (v) Khata No. 130, Khatauni No. 158, Khasra Nos. 203, 204, 225, 230, 253, area measuring 0-48-02 hectares to the extent of 4/5th share measuring 0-12-80 hectares; (vi) Khata No. 131, Khatauni No. 159, Khasra Nos. 171, 213, 214, 226, 227 to the extent of 1/3rd share measuring 0-04-67 hectars and (vii) Khata No. 178, Khatauni No. 208, Khasra No. 242, area measuring 0-14-03 hectares to the extent of 1/3rd share measuring 0-04-67 hectares, total area 1-27-10 hectares, situated at Mohal Rumbal Mouza Pargod, Up Tehsil Harchakian, District Kangra (hereinafter referred to as the suit land) was earlier owned and ::: Downloaded on - 06/04/2019 21:58:04 :::HCHP 3 possessed by Rai Singh s/o Sohnu i.e. the predecessor in interest of the parties to the suit. It was averred that Rai Singh expired in the .
year 1961 and thereafter defendant No.2 married to one Dharam Singh and out of the wedlock, defendant No.1 was born. It was further averred that defendant No.2 executed a sale deed on 08.07.2005 in favour of defendant No.1 which is void and illegal being without any legal necessity. It was also averred that the plaintiffs were members of joint Hindu family governed by 'Mitakshara' Law for coparcenary property and had got rights in the suit land by birth. The parties are 'Rajputs' governed by the custom prevalent in Kangra and defendant No.2 had no right to transfer the suit land opposed to custom and 'Mitakshara' Law. Lastly, the plaintiffs averred that the cause of action arose to them in March, 2006 when the defendants threatened to interfere and dispossess the plaintiff from the suit land, hence, the suit.
5. The defendant contested the suit by filing written statement wherein preliminary objections qua maintainability, cause of action, estoppel, non-joinder and mis-joinder of necessary parties and valuation etc. were taken. On merits, most of the contents of plaint were denied and it was averred that after the death of Rai Singh, defendant No.2 was thrown out of her matrimonial home. The Revenue Officer, however, sanctioned mutation in her favour. It was further averred that being an old lady, defendant No.2, was unable to ::: Downloaded on - 06/04/2019 21:58:04 :::HCHP 4 cultivate the suit land, therefore, she had sold it to defendant No.1. It was also averred that the plaintiffs had also sold their shares to one .
Piar Singh vide sale deed dated 23.08.1991. Defendant No.2 being absolute owner, the plaintiffs had no right to claim her share over the suit land. Lastly, it was denied that the sale deed in question was opposed to Hindu law.
6. Plaintiffs filed replication and reiterated the averments contained in the plaint and that of the written statement were denied.
7. From the pleadings of the parties, the learned trial Court on 26.09.2006 framed the following issues:-
"1) Whether Rai Singh constituted a coparcenary with the plaintiffs, as alleged? OPP.
2) If issue No.1 is proved in affirmative, whether the plaintiffs could be held to have succeeded to 2/3rd share in the suit land, as alleged? OPP.
3) If issue No.2 is proved in affirmative, whether the sale deed dated 8.7.2005 executed by defendant No.2 in favour of defendant No.1 is liable to be set-aside, as alleged? OPP.
4) If issue No.3 is not proved in affirmative, whether the parties could be held to be governed by customary law of Kangra in the matter of alienation and succession, as alleged? OPP.
5) Whether the plaintiffs are also entitled to the relief of perpetual injunction, as prayed for? OPP.
6) Whether the suit is not maintainable? OPD.
7) Whether the suit is not within time? OPD.::: Downloaded on - 06/04/2019 21:58:04 :::HCHP 5
8) Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD.
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9) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.
10) Whether the suit is not valued properly for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OPD.
11). Relief."
8. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiffs and the appeal filed against the said judgment and decree was also dismissed by the learned appellate Court, constraining the plaintiffs/appellants to file the instant appeal.
9. The only argument put-forth by the learned counsel for the appellants is that under customary law by which the parties were governed prohibited alienation of ancestral property and the Courts below have wrongly held customary law to have been superseded by Hindu Succession Act.
10. I have heard the learned counsel for the parties and have gone through the material placed on record.
11. Without going into the question whether the property in question was ancestral or not and assuming the same to be ancestral, it would be noticed that the issue raised in this appeal is no longer res integra in view of the judgment rendered by a Co-
ordinate Bench of this Court in Kartari Devi and others versus ::: Downloaded on - 06/04/2019 21:58:04 :::HCHP 6 Tota Ram 1992 (1) Sim. L.C. 402 and thereafter the ratio laid down therein was upheld and approved by a learned Division Bench of this .
Court in Tek Chand versus Mool Raj (1997) 2 Hindu LR 306 and both these judgments, in turn, have been approved by the Hon'ble Supreme Court in Sham Lal alias Kuldip versus Sanjeev Kumar and others (2009) 12 SCC 454 wherein it was observed as under:-
"26. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same form his father. In so far as the question whether under the custom governing the parties, a Will could be executed in respect of ancestral property is concerned, the same is no more res integra.
27. A learned Single Judge of the High Court in Kartari Devi and Ors. v. Tota Ram (1992) 1 Sim. L.C. 402 has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The above view of the learned Single Judge was upheld and approved by a Division Bench of the High Court in Tek Chand v. Mool Raj (1997) 2 Hindu L.R.
306. (Hindu LR p.310, para 14). In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1-A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside.
28. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant Nos.3 to 6 in ::: Downloaded on - 06/04/2019 21:58:04 :::HCHP 7 equal shares. Further that the Will dated 4.12.1978 was null and void and inoperative beyond the competency of the .
deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991."
12. Thus, what stands now firmly laid down by the Hon'ble Supreme Court is that a male Hindu governed by 'Mitakshara' Law is not debarred from making a Will in respect of coparcenary/ancestral property.
13. No other point raised.
14. No question of law much less any substantial question of law arises for determination in this appeal.
15. Accordingly, there is no merit in this appeal and, therefore, the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
3rd April, 2019. (Tarlok Singh Chauhan)
(krt) Judge
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