Delhi District Court
Sh.Jai Sigh vs Sh.Bahadur Singh Gahlot on 7 June, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
RCA No. 12/11.
01. Sh.Jai Sigh
02. Sh.Jeet Singh
03. Sh.Maman Singh
04. Sh.Bir Singh
All sons of late Sh.Fateh Singh
and all Residents of
19/73, West Moti Bagh,
Sarai Rohilla, Delhi.
05. Smt.Laxmi Devi,
W/o.Sh.Satpal Singh
and D/o.Late Sh.Fateh Singh,
R/o.C-140, Vijay Vihar, Delhi. .................Appellants
Vs.
Sh.Bahadur Singh Gahlot,
S/o.Late Sh.Bhagwan Dass,
R/o.H.No.20A, Madan Park,Gali No.3,
Near East Punjabi Bagh,
Delhi-110006. ...............Respondent
Date of institution : 17.09.2011.
Date of reservation : 11.05.2012.
Date of pronouncement : 07.06.2012.
JUDGMENT
01. This regular civil appeal has been preferred by LRs of defendant no.3 in the main suit no.169/10/93, who purchased the suit RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 1 of page 10 property during the pendency of the suit, against the judgment and decree dated 27.07.2011 passed by the court of Ms.Neha Paliwal, Ld.Civil Judge, Delhi, whereby the ld.trial court decreed the suit of the plaintiff.
02. Briefly, the facts of this case as made out in the plaint are that property bearing no.4480, Jatan Street, Pahari Dhiraj comprised in 81 sq. yds. of land duly constructed having two storeys (herein after known as the suit property) is the ancestral immovable property of the plaintiff, his two brothers and their father (who is defendant no.1 in the main suit), all of whom are members of Hindu undivided family. It was averred that the father of defendant no.1 and grand father of the plaintiff died intestate leaving behind that property. The mother of the plaintiff has expired long back. Plaintiff claimed himself in actual possession of the entire ground floor of the suit property. In January 1993 when he visited the property he came to know that defendant no.2 is intending to sell the suit property and after inquiries the plaintiff came to know that defendant no.1 has executed a sale deed of the suit property in favour of defendant no.2 on 10.09.1990. On further inquiry from defendant no.1, he came to know that defendant no.1 has sold the property to defendant no.2 who in turn is the father in law of Sh.Balram, younger brother of plaintiff. It was the case of the plaintiff that he requested that the sale deed be cancelled and he be given his legal and lawful share in the ancestral property, but defendant no.1 flatly refused to accede to that demand and further refused to give him his legal and lawful share in the suit property. It was alleged that the sale deed is executed by defendant no.1 in favour of defendant no.2 by acting in collusion with each other and is executed to deprive the plaintiff and other legal heirs from their legal right and share in the ancestral property. Defendant no.2 after the said sale never took any step RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 2 of page 10 of attornment i.e. he never intimated the tenants nor does he intimated the plaintiff of his alleged ownership (as the plaintiff was in possession of entire ground floor of the suit property) and till the date of the filing of the suit, defendant no.1 was collecting rent from the tenants of the suit property. It was further submitted that during the pendency of the suit proceedings, defendant no.2 in collusion with defendant no.1 has sold the property to defendant no.3 vide sale deed dated 18.03.1994. It is claimed by the plaintiff that this subsequent sale deed is also illegal and void abinitio and inoperative as defendant no.2 has no right, title or interest in the suit property. Thus, plaintiff prayed for a decree of declaration declaring sale deed dated 10.09.1990 and 18.03.1994 executed by defendant no.1 in favour of defendant no.2 and by defendant no.2 in favour of defendant no.3 as null and void, illegal, unlawful and untenable in the eyes of law and further for a decree of permanent injunction to restrain the defendants, their agents, etc.from selling, mortgaging, disposing off or alienating the suit property to any other person on the basis of these impugned sale deeds.
03. Defendant no.1 filed detailed written statement while taking preliminary objections that the suit of the plaintiff is bad for non-joinder for necessary parties and is barred by the law of limitation and it further lacks cause of action and is not maintainable as no ad-valorem court fees has been paid by the plaintiff. It was submitted by defendant no.1 that the plaintiff and defendant no.1 alongwith two brothers of the plaintiff Sh.Balram and Sh.Sushil Kumar are living separately since 1985 and therefore there is no joint Hindu family in existence and the plaintiff has already taken his share in a mutually family settlement. It was further averred that the suit property was sold due to legal necessity as in the year RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 3 of page 10 1989, the mother of the plaintiff fell ill due to throat Cancer and for bearing her medical expenses, it was necessary to sell the suit property in question and therefore, defendant no.1 sold the same being Karta of the family. It was submitted that defendant no.1 with the free will and consent of the plaintiff and other sons entered into an agreement with defendant no.2 on 24.01.1990 and sold the said property and since then defendant no.2 is in physical possession of the suit property. It was submitted that however the plaintiff asked defendant no.1 about his share and started nurturing ill-will towards defendant no.1 and 2 and therefore after the meeting of some relatives it was agreed that as the suit property was sold for consideration of Rs.40,000/-, Rs.10,000/- being the share of the plaintiff would be given to him and further due to the pressure of the relatives, defendant no.1 also agreed to collect the rent of only one room of the property. Defendant no.1 prayed that suit of the plaintiff be dismissed.
04. Defendant no.2 also filed written statement wherein he took preliminary objections that suit is not maintainable as not being properly framed u/s 31 of Specific Relief Act and is further bad for non-joinder of necessary parties. It was further his case that suit is barred by limitation and is further bad as it is only a suit for declaration and not for possession and therefore not maintainable. Defendant no.2 also, on the line as per plea of the defendant no.1, submitted that plaintiff is not member of joint Hindu family because plaintiff is living separately from the family since 1985 and to bear the medical expenses of mother of the plaintiff, defendant no.1 being Karta of the family sold the property to defendant no.2 and since then, he is in possession of the suit property.
05. Written statement was also filed on behalf on defendant no.3 RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 4 of page 10 whose legal heirs are appellant before this court, wherein he also took the preliminary objections that the suit of the plaintiff is barred by law of limitation and the mere suit of declaration without a consequential relief is not maintainable. Defendant no.3 claimed that sale deed in his favour is valid and legal and after purchasing the property from defendant no.2 he is in actual physical possession of the suit property and is owner thereof.
06. In the replication filed on behalf of plaintiff all the averments made in the written statement were denied and those made in the plaint were reiterated.
07. On the basis of the pleadings of the parties following issues were framed by ld.civil judge on 03.12.1996:-
1. Whether the suit is bad for non-joinder as alleged in preliminary objection no.1 of W.S. ? OPD.
2. Whether the suit has been properly valued for the purpose of court fees and jurisdiction ? OPP.
3. Whether the house no.4480, Gali Jatan, Pahari Dhiraj, Delhi, is ancestral property ? OPP.
4. Whether the suit house no.4480 was sold by the defendant no.1 for legal necessity ? OPD.
5. Whether the suit is not maintainable in the present form ? OPD.
6. Whether the sale deeds dt.10.09.90 and 18.03.94 are binding upon the plaintiff ? OPP.
7. Whether the plaintiff is entitled for the relief claimed ? OPP.
8. Relief.
08. Plaintiff in support of its case examined Sh.Dev Narain as PW-1, however, he was declared as incompetent witness by the court as RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 5 of page 10 he was an official witness for bringing the record but being illiterate was not able to depose anything about the summoned record. Plaintiff examined Sh.Vidya Nand as PW-2, himself as PW-3 and Shatrughan as PW-4 who was the official witness from the Sub-Registrar Office and proved the genuinity of certified copies of Ex.PW-3/8 to Ex.PW-3/9. On the other hand, defendant in support of his case examined defendant no.1 as D1W1, defendant no.3 as D3W1 and defendant no.2 as D3W2.
09. The ld.civil judge vide impugned judgment passed a decree of declaration in favour of plaintiff and against the defendants declaring sale deeds dated 10.09.1990 and 18.03.1994 as null and void with respect to the shares of plaintiff and his two brothers over the suit property, however, it was held that the sale deed would be operative with respect to the share of defendant no.1 over the said property. A Decree of permanent injunction was also passed whereby the defendants were restrained only with respect to the shares of plaintiff and his two brothers over the suit property from selling, mortgaging, disposing off or alienating suit property on the basis of sale deed darted 10.09.90 and 18.03.1994, however defendants were not restrained vis a vis the share of defendant no.1 over the suit property.
10. Aggrieved by the said judgment, the present appeal has been filed. It is submitted that ld.trial court has erred in holding that the other brothers of the plaintiff namely Sh.Balram and Sh.Sushil Kumar are not necessary parties to the present suit and as such, the suit is not bad for non-joinder of necessary parties. It is submitted that from own showing of the plaintiff the other members of the alleged HUF are necessary party of the suit who would have disclosed whether the suit property was sold by their father with their consent and as well as for legal necessity as their RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 6 of page 10 mother was suffering with throat Cancer and ultimately she died due to the said disease. It is further plea of the appellant that ld.trial court wrongly accepted vague and evasive plea of the plaintiff/respondent that the suit property was ancestral property when the plaintiff himself admits that late Sh.Mangat Singh, his grand father, was the original owner who died intestate living behind two surviving sons who both equally inherited the suit property equally to the extent of 81 sq. yds. each. Thus it is claimed that suit property was neither ancestral nor HUF as falsely pleaded.
11. I have heard ld.counsel for parties and have gone through with the relevant record.
12. The first plea of ld.counsel for appellant is that ld.trial court has erred in holding that the other brothers of plaintiff namely Sh.Balram and Sh.Sushil Kumar are not necessary parties to the suit. It was submitted that although, the application u/o 1 rule 10 CPC for joining them as necessary party was dismissed earlier, however, at the final stage,the ld.trial court ought to have considered on merits whether the said two brothers are necessary party or not. The plaintiff sought the relief of declaration and injunction against the defendant no.1 who executed the sale deed dated 10.09.1990 of suit property in favour of defendant no.2 on the ground that the same is ancestral property and defendant no.1 had no right to sell the same without his consent and consent of other legal heirs and further defendant no.2 had no right to sell the suit property in favour of defendant vide sale deed dated 18.03.1994, therefore, in these circumstances, it was for the plaintiff to prove that the suit property was ancestral property and he has a share in the suit property and the presence of other legal heirs i.e.his two brothers, was not RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 7 of page 10 necessary in the suit as no relief was claimed by the plaintiff against other legal heirs. Therefore, I find no force in the contention of ld.counsel for appellant that suit was bad for non-joinder of necessary parties i.e.the other legal heirs of the defendant no.1. The finding of ld.trial court on issue no.1 are maintained.
13. The next plea of ld.counsel for appellant was that ld.trial court wrongly accepted the vague and evasive plea of plaintiff that the suit property was ancestral property, when the plaintiff himself admitted that his grandfather late Sh.Mangat Singh, was the original owner who died intestate, living behind two surviving sons namely Sh.Sant Singh and Bhagwan Dass i.e.defendant no.1, who both equally inherited the suit property dividing the suit plot equally to the extent of 81 sq.yds each and both built up their separate houses on their separated portion of the suit land, therefore, the suit property was neither ancestral or HUF as falsely pleaded. In this regard, defendant no.1 during evidence admitted that Ex.PW-3/8 i.e.sale deed executed by him in favour of defendant no.2 bears his signature on each and every page and the impugned sale deed certified copy of which is Ex.PW-3/8 clearly shows that the property was inherited by the defendant no.1 from his forefathers as it is written over it. Had it been so that the suit property was self acquired property of the defendant no.1 there was no reason for him for taking the plea that he was the Karta of HUF and due to legal necessity for treatment of his wife for throat Cancer he sold the suit property to defendant no.2 and lateron he agreed 1/4th share i.e.10,000/- to the plaintiff. In an authority reported as AIR 1978 Bombay 229 titled as Jamarathbee and others Vs. Pralhad Dattatraya Dadpe and others, as relied upon by ld.counsel for appellant it was held as under and I quote:-
RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 8 of page 10 "20. The question as to what is ancestral property has been the subject-
matter of many decisions; and it is well settled that the only property that can be ancestral is property inherited by a male Hindu from any one of his three immediate paternal ancestors, namely, his father, father's father and fathers' father; and the only persons who are entitled to an interest in it by birth are the sons, sons' sons, and sons' son's sons, of the inheritor. See Mulla's Principles of Hindu Law, 14th Edition, 1974, Law and Usage, 11the Edition, 1950 pp.338 and 339 para 275."
14. In view of admitted possession that Sh.Mangat Singh father of defendant no.1 was the owner of suit property who died intestate living behind his two sons and one share of 81 sq.yds. was inherited by father of the plaintiff i.e.defendant no.1 from his father, therefore, plaintiff and his brothers are entitled to an interest in suit property by birth alongwith their father i.e.defendant no.1. Plaintiff being one of the co- parceners is entitled to have equal share vis-a-vis other co-sharers one of whom is defendant no.1. I do not find any reason to interfere in the findings of ld.trial court in respect of issue no.3 that the suit property is ancestral property of the plaintiff, therefore, the findings of ld.trial court on this issue are also upheld.
15. The next plea of applicants is that the suit property was sold by defendant no.1 being Karta of Hindu undivided family for legal necessity has also no legs to stand as admittedly, the wife of the defendant no.1 and mother of the plaintiff died on 03.10.1989 and the alleged agreement to sell of the suit property was entered on 24.01.1990 (i.e.after three months from the date of death) and the sale deed was entered on 10.09.1990. Manifest discrepancy in the depositions of defendant no.1 and 2 are coming out in their cross examination in respect RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 9 of page 10 of payment of installments of sale consideration i.e.Rs.10,000/- and Rs. 30,000/- which is unable to withstand by their pleas taken in the pleadings that house was sold for legal necessity and further no evidence was led to show the nature of illness or magnitude of expenses incurred by the defendant no.1, if any. The findings of ld.trial court on issue no.4 are also being maintained. It is not in dispute that defendant no.3, appellants herein, purchased the suit property during the pendency of the suit property and the sale deed executed in favour of defendant no.3 by defendant no.3 is hit by the doctrine of lis- pendens as rightly held by ld.trial court. The ld.Civil judge has rightly arrived at the conclusion that the plaintiff is entitled for the relief of declaration that the sale deed dated 10.09.1990 and 18.03.1994 are null and void with respect to the shares of plaintiff and his other brothers over the suit property and not with respect to the share of defendant no.1 which he has transferred in favour of defendant no.2.
16. In view of what has been discussed above, the present appeal is dismissed. The order of Ld.Civil Judge is maintained. Trial Court record be returned with a copy of this judgment and appeal file be consigned to Record Room.
Announced in open court ( S.K.MALHOTRA ) on 07.06.2012. SCJ/RC/(North)/Delhi RCA No. 12/11 "Sh.Jai Singh & Ors. Vs. Sh.Bahadur Singh Gahlot" Page 10 of page 10