Himachal Pradesh High Court
Dhanwant Singh & Ors vs Kharak Singh & Ors on 17 November, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 233 of 2005.
Reserved on: 16.11.2015.
.
Decided on: 17.11.2015.
Dhanwant Singh & ors. ......Appellants.
Versus
Kharak Singh & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
of
For the appellant(s): Mr. Suneet Goel, Advocate.
For the respondents: Mr. Ramakant Sharma, Sr. Advocate, with Ms. Devyani Sharma,
Advocate, for respondents No. 1 to 3.
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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, Solan, H.P., (Camp at Nalagarh), dated 18.2.2005, passed in Civil Appeal No. 11-NL/13 of 2003.
2. "Key facts" necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs), have instituted suit for possession as co-parceners regarding land measuring 1 bigha being 1/11th share of total land measuring 11 bighas comprised in Khewat/Khatauni No. 20/23, bearing Kh. No. 223, situated in village Theda, Pargana Dharampur, Tehsil Nalagarh, Distt. Solan, H.P. and for permanent prohibitory injunction for restraining the respondents-
defendants (hereinafter referred to as the defendants) from raising construction or alienating the same. According to the plaintiffs, coparcenary property was headed by defendant No. 4 Rattan Singh. The suit land was earlier owned by Ganga Ram who died on 1.2.1951, which was inherited by ::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 2 Banarsi Dass. Banarasi Dass died on 4.7.1978 and after his death defendant No. 4 Rattan Singh became Karta of the coparcenary property. The suit land .
is owned jointly by all the coparceners and no partition has taken place.
Defendant No. 4 started alienating the coparcenary property without any legal necessity and without any benefit to the estate. He has alienated the suit land in favour of defendants No. 1 to 3 vide sale deed No. 242 dated 27.3.1986 without any legal necessity and without any benefit to the estate of for a consideration of Rs. 9500/-. The sale deed was illegal.
3. The suit was contested by defendants No. 1 to 3. According to rt them, the suit land was earlier owned by Raja Sahib who was ala Malik and Banarsi Dass was adna Malik. The suit land has been alienated for working of their brick kiln under the name and style of Dasmesh Brick Kiln. The land was mortgaged for Rs. 18,000/- and the suit land was alienated for redemption of the same. The defendants had made bonafide enquiries before purchasing the suit land.
4. The learned Sub Judge Nalagarh, framed the issues on 9.2.1999.
The suit was dismissed vide judgment dated 21.11.2002. The plaintiffs, feeling aggrieved, preferred an appeal against the judgment and decree dated 21.11.2002. The learned Addl. District Judge, Solan, (Camp at Nalagarh), dismissed the same on 18.2.2005. Hence, this regular second appeal.
5. The regular second appeal was admitted 17.5.2005 by making observation that the substantial questions of law as detailed in the grounds of appeal had arisen for determination.
::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 36. Mr. Suneet Goel, Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently .
argued that the suit property was coparcenary property. Both the Courts below have not correctly appreciated the oral as well as documentary evidence on record. He lastly contended that the suit property could not be treated as self acquired property of Banarsi Dass after coming into force of the PEPSU Abolition of Ala Malkiat and Taluqdari Rights Act. On the other of hand, Mr. Ramakant Sharma, Sr. Advocate, has supported the judgments and decrees of both the Courts below.
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7. Since all the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence.
8. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully.
9. According to the jamabandi for the year 1944-45, Ganga Ram was shown to be Adna Malik and Raja Sahab has been shown to be Ala Malik. In the copy of jamabandi Ext. P-4 for the year 1956-57, Banarsi Dass has been recorded to be the absolute owner. Thereafter he has been recorded to be the owner in possession in the copy of jamabandi for the year 1961-62, Ext. P-5. Ganga Ram has died on 1 Fagun 2007 as per mutation Ext. P-6 and the property was mutated in favour of Banarsi Dass on 3.5.1951. Ext. P-
8 also reflects that mutation was attested in favour of Rattan Singh and Kesari Singh. Rattan Singh has to be treated as absolute owner of the property.
::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 410. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the .
joint or coparcenary property. These are the sons, grandsons and great-
grandsons of the holder of the joint property for the time being. In other words, the three generations next to the holder is unbroken male descent.
The property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property. The property inherited by him from of other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-
rt grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth.
11. Sh. Ganga Ram, predecessor-in-interest of the parties was recorded to be in exclusive possession of the land measuring 62 bighas as Adna Malik in Ext. P-4, copy of jamabandi for the year 1944-45 and land measuring 46-11 bighas in Ext. P-7 copy of jamabandi for the year 1948=49.
After the death of Ganga Ram, Banarsi Dass was in possession of the land as Adna Malik. In revenue record, the name of only Ganga Ram was mentioned and not Banarsi Dass. Even after the enforcement of abolition of the PEPSU Abolition of Ala Malkiat and Taluqdari Rights Act, Sh. Banarsi Dass was recorded as owner-in-possession of the land measuring 51-9 bighas in Ext. P-
4 copy of jamabandi for the year 1956-57. Sh. Banarsi Dass was also recorded owner of Kh. No. 223 measuring 11 bighas in Ext. P-5 copy of jamabandi for the year 1961-62. Thus, the property is proved to be self acquired property and not the coparcenary property.
::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 512. It is also evident from the recitals of sale deed Ext. P-1 (Ext. P-8 copy of jamabandi of Kh. No. 223 for the year 1995-96) makes it clear that .
Rs. 7,000/- was kept as trust for redemption of Rs. 2500/-. DW-1 Ram Pal has also testified that the land was redeemed by defendant No. 4 and this fact was brought to his notice by him. Thus, the sale was made by defendant No. 4 in favour of defendants No. 1 to 3 for payment of antecedent debt which was valid under the Hindu Law. Defendants No. 1 to 3 were bonafide of purchasers for consideration and were recorded in possession of land in suit in Ext. P-2, copy of Jamabandi for the year 1995-96.
rt It was absolute property of defendant No. 4 and thus, the sale deed made in favour of defendants No. 1 to 3 vide Ext. P-1 is valid.
13. In the case of Budh Singh alias Nachhatar Singh and others vrs. Shrimati Gurdev Kaur and others, reported in 1968 Curr. L.J. (Pb. & Hyna,.) 27, the learned Single Judge of the Punjab and Haryana High Court has held that Ala Malik's rights are merely a burden on the land so far as the Adna Malik is concerned. The abolition of ala Malik's right merely clears off that burden. In no manner the rights of the Adna Malik are enlarged. The analogy of ancestral occupancy rights, becoming the self-acquired property of the occupancy tenant acquiring Malkiat rights has nothing to do with this case. It also does not, in any manner, matter whether the Ala Malkiat rights are of one category or the other.
14. This judgment was considered by this Court in the case of Ranvinder Singh vrs. Raghunath Singh and others, reported in 1998(1) S.L.J. 423. The learned Single Judge has held as follows:
::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 6"22. The learned Judges at page 542 of the report also examined the provisions of the Act and it has been said that the Act is a clear pointer to show that the 'Adna Malik' could not be termed prior to the abolition of 'Ala Malkiat' rights as full owner of the land which was possessed by him. He became full proprietor .
only on the appointed date after the extinction of 'Ala Malik' rights. It was only after the abolition of 'Ala Malkiat' rights that he became full owner for all intents and purposes.
23. In para 7, it has been observed that :
"The learned single Judge has found that Adna Malik had full rights of an owner, that the abolition of the Ala Malkiat's rights did not result in the enlargement of the rights of Adna Malik and that by abolition only a of burden has been cleared off. With due defence we do not find ourselves in agreement with these findings. We are clearly of the view that an Adna Malik did not have full rights of an owner ........................"
It was further held in para 7 that :
rt "The two words 'Ala Malik' and 'Adna Malik' clearly indicate the distinct rights of the two and it would not be correct to say that the rights of the Adna Malik was only a burden on the land held by the Adna Malik and did not, in any manner, affected or curtail his rights of full ownership. By abolition of the Ala Malkiyat rights, the right of the Ala Malik to recover certain percentage of revenue and his title as Ala Malik had been extinguished and the Adna Malik rights in the land have been enlarged and ripened into full ownership .............................."
24. Quite interestingly, in that case the plaintiffs had brought usual declaratory suit laying challenge to the alienation on the ground that the land was ancestral qua them and the alienation in question being without consideration and necessity, would not affect their reversionary rights. The learned trial Court in that case examined the nature of the property and found that the property was non-ancestral and consequently dismissed the suit. The judgments and decree were affirmed on appeal . It was in second appeal that the learned single Judge D.K. Mahajan, J. after considering the matter, held that the abolition of 'Ala Malkiat' rights did not, in any manner, alter the character of the property in the hands of 'Adna Malik', and that if the land was ancestral in the hands of 'Adna Malki', it would remain ancestral.
25. In the given situation, I shall follow the judgment of the Division Bench of the Punjab and Haryana High Court where the question presently involved stands clearly answered.
26. Apart from what has been said above, the learned trial Court, as noticed earlier in the judgment, has held on appreciation of the evidence that the ::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 7 property in question does not constitute Joint Hindu Family coparcenary and ancestral property."
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15. In the case of Commissioner of Wealth Tax, Kanpur etc. etc. vrs. Chander Sen etc., reported in AIR 1986 SC 1753, their lordships of the Hon'ble Supreme Court have held that under the Hindu Law, the son would inherit the property of his father as karta of his own family. But, the Hindu Succession Act has modified the rule of succession. The Act lays down of the general rules of succession in the case of males. It has been held as follows:
rt " 19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
20. In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated.
It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu law 15th Edn. dealing ::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 8 with section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition pages 918-919.
22. The express words of section 8 of The Hindu Succession Act, 1956 .
cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."
16. In the case of Yudhister vrs. Ashok Kumar, reported in AIR 1987 SC 558, their lordships of the Hon'ble Supreme Court have held that of the property devolved on Hindu under Section 8 would not be HUF in his hand vis-à-vis his own sons. It has been held as follows:
"10. This question has been considered by this Court in Commissioner rt of Wealth Tax, Kanpur and Others v. Chander Sen and Others, [1986] 3 SCC 567 where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His fight accrues to him not on the' death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenev- er the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affect- ed by section8 of the Hindu Succession Act, 1956 and, there- fore, after the Act, when the son inherited the property in the situation contemplated by section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of section 6 of the Hindu Suc- cession Act, 1956 and. the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918919. Shri Banerji relied on the said obser- vations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a- vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the ::: Downloaded on - 15/04/2017 19:21:24 :::HCHP 9 appellate authority was fight in holding that the respondent was a licensee of his father in respect of the ancestral house."
17. In view of the ratio of these judgments, after the abolition of .
PEPSU Ala Malkiat Rights Act, where the Adna Malik has acquired absolute rights in the property, the property has been held to be his self acquired property and it cannot be held to be Joint Hindu Family property and Coparcenary property. Both the Courts below have correctly appreciated the of oral as well as documentary evidence on record. The substantial questions of law are answered accordingly.
18. Consequently, there is no merit in this appeal and the same is rt dismissed, so also the pending application(s), if any.
November 17, 2015, ( Rajiv Sharma ),
(karan) Judge.
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