Himachal Pradesh High Court
Suraksha & Another vs Suraksha & Another on 10 April, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 536 of 2006 along with Cross Objections No. .
134 of 2007.
Reserved on : 27th March, 2018.
Decided on : 10th April, 2018.
1. RSA No. 536 of 2006.
Suraksha & another r Versusto .....Appellants/defendants.
Adarsh Kumar ....Respondent/Plaintiff.
2. Cross Objection No. 134 of 2007.
Adarsh Kumar ....Cross-objector.
Versus
Suraksha & another
....Non-objectors/respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellants: Mr. K.D. Sood, Senior Advocate
with Mr. Rajnish K. Lal,
Advocate.
1
Whether reporters of the local papers may be allowed to see the judgment?
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For the Respondent: Mr. Bhupender Gupta, Sr. .
Advocate with Ms. Rinki
Kashmiri, Advocate.
Sureshwar Thakur, Judge.
The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for declaration, stood dismissed, by the learned trial Court, whereas, in an appeal carried therefrom, by the plaintiff before the learned First Appellate Court, the Appellate Court, affirmed, the findings recorded by the learned trial Court vis-a-vis the valid execution of gift deed of 12.06.1995 except qua property borne in Ex.P-6, besides qua valid execution of Will, by the deceased testator vis-a-vis defendant Surender Kumar.
Emphasisingly, the learned First Appellate Court, reversed, the trial Court's findings vis-a-vis gift deed made qua Khasra Nos. 1375, 1378, 1381, 1382, 1383 and 1384, khasra numbers whereof extantly bear Khasra No.256, and, is carried in Ex.P-6, exhibit whereof is the authentic Hindi translation, from Urdu, of the apt ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...3...
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jamabandi, (a) wherein khasra No.256 stands reflected as abadi tika, and, carries an area of 2-10 bighas, (b) tritely on the ground of it being ancestral coparcenary property.
The defendants being partly aggrieved therefrom hence instituted the instant appeal before this Court, whereas, the plaintiff, also, through an application cast, under the provisions of Order 41, Rule 22 read with 151 of the CPC, institute cross-objections, wherein, they assail the validity of apposite findings rendered by the learned Appellate Court, hence, both the appeal as well as the cross-
objections are liable to be disposed of, by, a common verdict.
2. Briefly stated the facts of the case are that the plaintiff claimed himself to be the son of defendant No.1 and it had been claimed that the suit property as detailed in the plaint is ancestral property in the hands of defendant No.1, who has succeeded it from his father Jai Lal and the parties being Mitakshara Hindu Joint Family, the defendant have no right or title to bequeath the suit ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...4...
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property in any manner. However, defendant No.1 bequeathed the suit property by way of gift in favour of his second wife i.e. defendant No.2, whereas, the plaintiff, who is the son, has been deprived of his right of share being a coparcener. It had also been averred that the gift deed dated 12.6.1985, is void and illegal.
plaintiff had also sought decree of permanent prohibitory r The injunction restraining the defendants to change the nature and character the suit land or to alienate it, in any way.
3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections of estoppel, cause of action, locus standi maintainability and limitation. On merits, it had also been averred that the suit land is not joint Hindu Family coparcenary property and it was the self acquired property in the hands of defendant No.1 and he has every right to alienate it or deal with the property in any manner. It has, therefore, been averred that the gift ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...5...
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deed executed by defendant No.1 in favour of defendant No.2, qua the suit land is legal and valid and thereby the suit is not maintainable. The defendants have also averred that the plaintiff is not entitled for any relief of injunction having got no right of title over the suit land.
4. The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement and re-affirmed and re-
asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the suit property is ancestral property?OPP.
1.A Whether the parties are governed by Hindu Mitakshra Law, as alleged?
OPP.
2. Whether the gift deed dated 12.6.1995 is void, if so its effect?OPP.
3. Whether the plaintiff is estopped by his act and conduct?OPD.
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4. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by the plaintiff/respondent herein before the learned First Appellate Court, the latter Court partly allowed the appeal.
7. Now the defendants/appellants herein, as also, the plaintiff/respondent/cross-objector, have respectively instituted the instant Regular Second Appeal, as also, the Cross-objections, before this Court, wherein they assail the apt findings recorded in its impugned judgment and decree, by the learned first Appellate Court. The appeal as also the Cross-objections, are, respectively admitted, on the following substantial question of law:-
RSA No. 536 of 2006.
1. Whether the inferences drawn that the gift qua khasra Nos.1375, 1378, 1381, 1382, 1383 and 1384 was void being ancestral ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...7...
property in the hands of Shri Surinder Kumar, is sustainable in law when Shri .
Surender Kumar got suit property under the Will of his father and became the self acquired property of Shri Surinder Kumar?
2. Whether the judgment of the learned Addl.
District Judge is contradictory in as much as having held that the gift qua khasra No. 1378 was valid and while granting the relief held that gift qua khasra No.1378 be void and inoperative by treating property to be ancestral property?
3. Whether the property in dispute in respect of which the suit had been partly decreed could be treated as ancestral coparcenary property when the same had not come to appellant under the Will of Shri Jiya Lal, who had his widow and daughters surviving at the time of death?
4. Whether the share which the appellant would have got in the absence of the Will of Shri Jiya Lal and which came in his possession could otherwise be gifted by him to Smt. Suraksha Devi, his wife and which could be challenged by the plaintiff?
Cross Objections No.134 of 2007.
1. Whether the Lower Appellate Court recorded arbitrary erroneous and perverse findings by holding that part of suit land was self acquired property on account of the same being tenancy land for which proprietary rights were conferred on defendant No.1 and part of the land was devolved upon defendant No.1 by testamentary succession on account of the Will dated 25.1.1972 which was not challenged by the natural heirs who would have succeeded to such property in absence of such Will?
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8. Since, all the afore extracted substantial questions of law are inter linked , hence, they are being disposed of by a common verdict.
9. The apposite Will of 25.09.1972, whereunder, one defendant Surender Kumar, was, constituted as legatee, cannot be, subjected to any weighty challenge, by the cross-objector/plaintiff/respondent, imperatively when (a) with defendant Surender Kumar, even in absence thereof also evidently being the natural successor of deceased testator Jai Lal, hence on demise of deceased testator Jai Lal, he held the apposite entitlement to, succeed to the latter's estate, (b) even if Sobha Devi, the mother of defendant No.1, qua the property bestowed upon defendant Surender Kumar, through, a Will executed by the deceased testator, was also along, with, the legatee constituted thereunder, hence entitled to succeed vis-a-vis the estate of the deceased testator, (c) given assumingly, the property embodied in the apposite Will, being a coparcenary ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...9...
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property, (d) yet effect of exclusion, from, inheritance of Sobha Devi, by the deceased testator, and, his rather constituting defendant Surender Kumar, as the exclusive legatee, rather is subsumed, by the factum, of the demise of Sobha Devi, occurring in the year 1977, (e), and, with the apposite suit being instituted on 7.10.1994, thereupon, even if, assumingly Sobha Devi may during her life time, held any locus standi, to challenge the apposite Will, (f) nonetheless, when she was no longer surviving, on the date of institution of the extant suit, and, when no evidence exists on record, qua apart from defendant Surender Kumar, she had other natural heirs, who may hence hold the apposite locus standi, (g) thereupon, with the purportedly befitting persons, holding any apposite locus standi, to challenge the Will of 25.1.1972, hence, not rearing any challenge vis-a-vis it,
(h) thereupon the constitution, of, defendant No.1 as the apposite exclusive legatee, cannot be construed to be wanting in legal sanctity, (i) even if assumingly, the suit ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...10...
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property is construed to don the trait, and, character of ancestral coparcenary property. In sequel, the findings rendered by both the learned Courts below vis-a-vis the apposite Will, not attracting any challenge vis-a-vis it, on anvil of its purportedly being ancestral coparcenary erroneous.
r to property, cannot be concluded to be either misfounded or
10. The acerbic contest, warranting its being put to rest, and qua part whereof "gift" came to be executed, is comprised in the factum (a) of defendant No.1, one Surender Kumar, under an order of mutation, borne in Ex.
D-10, hence standing bestowed with exclusive proprietary rights vis-a-vis extant Khasra No.256. (b) Any conclusion, of the property borne in Ex.P-6, being the self acquired property, of the, donor, would hence impute validity vis-a-vis the apposite gift deed executed qua it.
Uncontrovertedly, vestment of exclusive proprietary rights thereon, stand bestowed upon Surender Kumar, through, an order borne in Ex. D-10. Uncontestedly, ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...11...
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possession thereof had been initially received by one Vidyadhar, and, thereafter by one Jai Lal, whereafter possession thereof was unbrokenly transmitted vis-a-vis Surender Kumar, defendant No.1, (a) hence, with unbroken possession, of, land, borne in Ex.P-6, bearing Khasra No.256, being transmitted vis-a-vis defendant No.1, conspicuously from his immediately preceding two predecessors-in-interest, hence, with his constituting the 3rd generation, from one Vidyadhar, thereupon, prima facie hence rendered property borne in Ex.P-6, to acquire or don the traits, of ancestral coparcenary property.
However, on anvil of Ex.D-10, defendant Surender Kumar has reared a vehement espousal (b) qua upon its recording, and, with conferment thereunder, of absolute title vis-a-vis the land bearing Khasra No.256, (c) hence, effects, if any, qua prior thereto, his immediately preceding two ancestors, rather holding possession thereof, (d) is rendered insignificant nor hence it can be concluded, of its, being yet characterized, as ancestral ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...12...
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coparcenary property. Even if, this Court does not disturb the validity of recording of Ex. D-10, (e) yet for making an appropriate construction vis-a-vis the traits borne by the property embodied in Ex. D-10, dehors, absolute title therein, rather inhering in defendant No.1, it is also imperative to allude, to, the nomenclature assigned, to the land reflected in Ex.P-6, especially in classification column thereof. In the classification column of Ex.P-6, a part, of, the suit land, carrying an area of 2- 10 bighas, stands reflected as gair mumkin abadi deh.
Before proceeding to dwell upon the import(s), of, the apt classification, assigned vis-a-vis the land denoted in Ex.
P-6, hence, its, also in consonance therewith, being construable or not, to be ancestral coparcenary property, it is also necessary to bear in mind, the parlance carried, by, phrase abadideh, Undisputedly, the parlance borne, by phrase "abadideh" (i) is it being the inhabited site of village, consisting of sites on which the house of the members of the brotherhood or proprietary body are ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...13...
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usually building close together, small plots attached or annexed thereto which are used for penning the cattle, storing manure or stacking straw, empty or vacant sites unoccupied by any individual, common plots etc. With the phrase "abadi deh" carrying the aforesaid connotation, and, the plaintiff pleading co-title vis-a-vis a part, of, the suit land, classified as abadi deh, pointedly along with the defendants, thereupon, for his espousal to carry any succor also enjoined him to adduce cogent proof, displaying qua after demise of defendant No.1, his father, his evidently being entitled to succeed, vis-a-vis the property classified in Ex. P-6, as, abadi deh. For making, an appropriate conclusion vis-a-vis the legality of entitlement qua inheritance of the plaintiff, of land classified in Ex.P-6, as abadi deh, it is befitting to draw succor, from, a judgment of this Court, rendered in a case titled as Ganga Devi and another vs/ Ashok Kumar & others, reported in Latest HLJ 2011 (HP) 721, the apposite paragraph No.8 stands extracted hereinafter:
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"8. The very wide proposition laid down by the Divisions Bench in the aforesaid case was only in the context o the .
Panchayati Raj Act. It cannot be stretched to all cases.
Let us leaves behind two legal heirs. Both of them would be entitled to an equal share in land as well as on the structure. Definitely, one of the legal heirs can file a suit against the other for partition both of structure and of the land. Therefore, it cannot be said that the Abadi Deh land is indivisble in all circumstances. In fact, the Division Bench also very carefully said that in most cases Abadi land is indivisble."
(p..723) wherein it has been clearly expostulated, (i) of all, the natural legal heirs of persons, holding possession of land classified as abadideh, also with , it, in the column of ownership and possession, of the jamabandi apposite thereto, hence standing described to be abadi tika, (ii) rather being entitled, to, on demise of their predecessors-
in-interest, for an equal share therein also theirs being entitled to, even, during the life time of their father, to hence seek partition of land described, as abadideh, in the apposite classification column. The effect of the aforesaid expostulation, borne in paragraph No.8 of Ganga Devi's case (supra), (a) is of obviously with its being evidently proven, of, the property borne in Ex. P-6, conspicuously prior to defendant Surneder Kumar, hence, ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...15...
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standing held initially by one Vidyadhar, and, thereafter by one Jai Lal, (b) hence, upon Surender Kumar unbrokenly receiving it, from his immediately preceding two ancestors, and, his hence becoming the 3 rd generation from Vidyadhar, thereupon, hence, it is rendered amenable to per se don the trait, and, character of ancestral coparcenary property, (c) dehors Ex. D-10, vesting absolute title, as, owner, singularly vis-a-vis Surender Kumar, solitarily vestment whereof is wholly insignificant, nor its effaces the factum of the suit property borne in Ex.P-6, rather uninterruptedly travelling upto him, from his immediately preceding two ancestors, namely, one Vidyadhar and one Jai Lal. Predominantly when unless the aforesaid transmissions had occurred, he would be disable to possess it.
11. Also assumingly, if, apt exclusive title vis-a-vis Surender Kumar, is conferred, through, an order borne in Ex. D-10, yet the aforesaid mode, of, travelling, of possession, of property borne in Ex.P-6, vis-a-vis ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...16...
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Surender Kumar, besides its being nomenclatured, as Abadi deh, in the classification column, of, Ex. P-6, (a) thereupon, with the preponderant requirement qua the entitlement of the plaintiff, to seek succession to the land borne in Ex.P-6, arising, for his being the natural legal heir of one Surender Kumar, (b) and, concomitantly thereto, his being also entitled, to, during the life time of Surender Kumar, hence seek partition thereof, also, overwhelms and subsumes, the clothing of absolute title vis-a-vis the land borne in Ex. P-6, especially vis-a-vis the defendant. The suit property bearing khasra No.256, is hence construed to be ancestral coparcenary property, and, the findings rendered qua it, by the learned First Appellate Court, of it, donning the character, and, trait of ancestral coparcenary property rather do not warrant any interference.
12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being based upon a proper and mature appreciation of ::: Downloaded on - 17/04/2018 22:53:11 :::HCHP ...17...
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evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Substantial questions of law are answered accordinlgy.
13. In view of above discussion, there is no merit in the instant appeal as well as in the Cross-objections and both are dismissed accordingly. Consequently, the judgment and decree rendered by the learned First Appellate Court in Civil Appeal No. 13-G/XVI/05//02 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 10 th April, 2018. Judge.
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