Punjab-Haryana High Court
Suresh Kumar vs Ashok Kumar on 5 August, 2009
Author: Rajive Bhalla
Bench: Rajive Bhalla
RSA No.3589 of 2007
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3589 of 2007
Date of decision : 05-8-2009
Suresh Kumar
....Appellant
VERSUS
Ashok Kumar
....Respondent
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Rajesh Bansal, Advocate,
for the appellant.
RAJIVE BHALLA, J.(Oral)
The appellant challenges the judgments and decrees dated 7-6-2006 and 17-5-2007, passed by the Additional Civil Judge (Sr. Div.) Karnal and District Judge, Karnal dismissing the suit and his appeal.
The appellant filed a suit for declaration praying that the decree dated 04-10-1993 suffered by his father Mangat Ram in favour of the respondent stands vitiated for fraud and for want of registration. The appellant pleaded that as Mangat Ram, the appellant and the respondent constitute a joint Hindu family, Mangat Ram had no right to suffer a collusive decree in favour of the respondent. Mangat Ram was old and infirm and even otherwise had no reason to suffer a collusive decree in favour of the respondent. It was further pleaded that as the collusive decree involves transfer of proprietory rights, it could not pass any valid title to the respondent RSA No.3589 of 2007 -2- for want of registration. The respondent, filed a written statement denying the averments in the plaint and in turn pleaded that the impugned decree was a result of a family settlement. It is also pleaded that the appellant had separated from the joint family and at that time had received a house which he has sold. It was also averred that the suit be dismissed barred by time.
After framing issues, the parties were called upon to lead evidence. On the basis of the pleadings, the evidence adduced and arguments addressed, the trial court held that in the absence of any evidence to establish the plea of fraud the suit had to be dismissed. It was also held that when the appellant separated from the joint family he had received a house. He was, therefore, estopped from challenging the validity of the judgment and decree dated 04-10- 1993. It was also held that as the impugned decree was preceded by an oral family settlement it did not require registration. The learned trial court also held that suit was barred by time and dismissed the suit.
Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. The District Judge, Karnal vide order dated 17-5-2007 dismissed the appeal and affirmed the findings recorded by the trial court. The first appellate court held that there was no evidence to hold that the house in dispute was joint Hindu family property.
Counsel for the appellant submits that the consent decree is null and void, as the appellant, who is a member of the joint Hindu family, was not associated with the so-called family settlement. It is RSA No.3589 of 2007 -3- further argued that as the decree, evidences transfer of proprietory rights in immovable property of more than Rs.100/-, it requires compulsory registration. In the absence of registration, the decree does not transfer any valid title to the respondents and therefore, the suit property has to devolve by natural succession. It is also argued, that as the decree dated 04-10-1993 was obtained stealthily, the appellant had no knowledge of its existence and therefore, the suit could not be dismissed as barred by time. It is further argued that Mangat Ram had no right, even as a karta, to transfer the house to the exclusion of the appellant.
Counsel for the appellant has framed the following questions of law:-
1. Whether the Karta of the joint Hindu family can passed a consent decree in favour of one person excluding the other, which was not his self acquired property?
2. Whether a decree can be taken into consideration which registration having being value more than 100 Rupees and where the interest is created first time?
3. Whether a person can convey a better title which he has not at the time of passing of the consent decree?
4. Whether the decree is binding on the appellant where it is admitted fact that he was not party to that decree?
I have heard counsel for the appellant, perused the impugned judgments and decrees considered the questions of law framed by counsel for the appellant, and find no reason to hold that RSA No.3589 of 2007 -4- concurrent findings of fact recorded by the courts below suffer from any error of law as would raise a substantial question of law.
The appellant has filed a suit challenging the correctness of the judgment and decree dated 4-10-1993 suffered by his father in favour of his brother, by alleging that as the house in dispute is joint Hindu family property, his father had no right to suffer a decree, to the exclusion of the appellant. It is also argued that no valid family settlement could have taken place without associating the appellant.
The courts below have returned concurrent findings of fact that the property in dispute, namely a house was purchased by Mangat Ram and his brother Baru Ram and there is no evidence on record to suggest that this property was joint Hindu family property. The courts below have also held that the appellant, initially, worked with his father but thereafter separated his residence and his business. He was given house No.139 out of the ancestral property which he later sold. The other three brothers also received a house from Mangat Ram which they also sold. From this evidence and the other evidence on record, the courts below concluded that there is no material on record to show that the disputed property is joint Hindu family property. I find no error in the aforementioned findings, as would necessitate interference by this court. The first question of law namely whether a karta can suffer a consent decree by excluding a co-parcener does not arise as the property is not joint hindu family property. The second question which relates to the non-registration of the collusive decree does not merit acceptance. It would be necessary to mention here that the collusive decree is based upon a RSA No.3589 of 2007 -5- prior family settlement and therefore does not require registration. In view of the findings recorded by the courts below that the house in dispute was the personal property of Mangat Ram, the third and fourth questions do not arise. It would also be necessary to mention here that in his plaint, the appellant alleged that the decree dated 4- 10-1993 was the result of a fraud. However, as held by the courts below, the appellant has failed to adduce any evidence to establish any fraud.
In view of what has been stated hereinabove, as no question of law much less substantial question of law arises for consideration, the appeal is dismissed.
(RAJIVE BHALLA)
5-08-2009 JUDGE
manju