Karnail Singh Through Lrs vs Lal Singh Through Lrs on 10 January, 2014

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Punjab-Haryana High Court

Karnail Singh Through Lrs vs Lal Singh Through Lrs on 10 January, 2014

RSA No.589 of 1986 (O&M) Lal Singh through LRs ...Appellants Versus Karnail Singh through LRs ...Respondents CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present: Mr. H.R.Bhardwaj, Advocate, for the appellant in RSA No.3253 of 1985 & for the respondents in RSA No.589 of 1986.

Mr. Kabir Sarin, Advocate, for the appellants in RSA No.589 of 1986 & for the respondent in RSA No. 3253 of 1985.

RAMESHWAR SINGH MALIK, J Two connected appeals between the same parties and directed against the same impugned judgment passed by the learned lower appellate court are proposed to be decided together.

Particulars of these two appeals are RSA No.3253 of 1985 (Karnail Singh Vs. Lal Singh) and RSA No.589 of 1986 (Lal Singh Vs. Karnail Singh). However, for the facility of reference, facts are being culled out from RSA No.3253 of 1985.

Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 2

Jeon Singh had two sons namely Lal Singh (plaintiff) and Bachan Singh (defendant No.2). Both these brothers jointly purchased land measuring 133 kanals 7 marlas from Smt. Prem Kaur. Lal Singh and Bachan Singh sons of Jeon Singh were having one half share each in the joint land measuring 133 kanals 7 marlas.

Bachan Singh-defendant No.2 suffered a consent decree in favour of Karnail Singh-defendant No.1-appellant vide Ex.D-1 dated 12.01.1982 to the extent of 56 kanals 8 marlas from his half share measuring 66 kanals 4 marlas out of above said 133 kanals 7 marlas. This decree came to be challenged by plaintiff-Lal Singh brother of defendant No.2-Bachan Singh, by way of suit for possession and permanent injunction alleging that the suit land was of Joint Hindu Family. Defendant No.2 had no right to suffer the consent decree qua the land which was ancestral property and also because he was not related to Karnail Singh-defendant No.1. It was also alleged that defendant No.1 grabbed the suit land illegally by playing fraud and undue influence over defendant No.2. The consent decree was result of fraud and the same was illegal, null and void and not binding on the rights of the plaintiff.

Upon notice, defendants appeared and filed their written statement contesting the suit controverting the allegations levelled by the plaintiff. It was pleaded that neither the suit land was property of Joint Hindu Family nor it was ancestral property. It was the self-

acquired property of defendant No.2-Bachan Singh. Since defendant No.2 was absolute owner of the suit land, he had every right to suffer Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 3 a consent decree in favour of defendant No.1. It was also asserted that since defendant No.2 had disposed of his self-acquired property less than his share in the joint khewat, the decree was legal and binding on the rights of the parties.

On completion of pleadings of the parties, following issues were framed by the Learned Trial Court:-

1. Whether the plaintiff and defendant No.2 are members of joint Hindu family and the property in dispute is the co-parcenary property of the Hindu Joint family? OPP.

2. Whether the decree in question dated 12.01.1982 was obtained illegally by fraud, undue influence as alleged? If so, its effect? OPP.

3. Whether the plaintiff has no locus standi to bring this suit? OPP

4. Relief To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, the learned trial court came to the conclusion that the suit property was self-acquired property of Bachan Singh-defendant No.2 and he had every right to suffer the decree. The decree was not the result of fraud and the same was binding between the parties. It was also held that the plaintiff had no locus standi to file the suit. The suit was dismissed. Plaintiff-Lal Singh filed his first appeal which was allowed by the lower appellate court decreeing the suit to the effect that plaintiff was co-owner in joint possession to the extent of half share in the disputed land measuring 56 kanals 8 marlas. The decree dated Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 4 12.01.1982 was held ineffective qua his rights of co-ownership in the suit land. Karnail Singh-defendant was restrained from transferring the disputed land in any manner.

Feeling aggrieved against the impugned judgment and decree dated 21.10.1985, Karnail Singh-defendant No.1 has filed the instant regular second appeal against the judgment of reversal.

Learned counsel for the appellant-defendant Karnail Singh submits that the plaintiff-respondent had no locus standi to file the present suit because defendant No.2-Bachan Singh was having his self-acquired property to the extent of 66 kanals 4 marlas being half share of 133 kanals 7 marlas. Bachan Singh had every right to suffer the consent decree in favour of appellant-defendant No.1 Karnail Singh. Bachan Singh was the only person competent to allege any fraud or mischief about passing of the consent decree dated 12.01.1982 Ex.D-1. However, in the present case Bachan Singh-defendant No.2 filed his written statement on 22.09.1982 which was joint with Karnail Singh-defendant No.1. Bachan Singh also put his thumb impression on the power of attorney. This fact has gone unrebutted. He next contended that the consent decree was as good as a contested decree and would be binding on the parties to the suit until and unless the consent decree is challenged by the defendant on the basis of fraud and the same is proved as such by leading cogent evidence.

Relying upon Full Bench judgment in Bhartu Vs. Ram Sarup 1981, PLJ 204, learned counsel for the appellant submits that Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 5 Bachan Singh being co-sharer to the extent of one half share in the joint property, had every right to dispose it of as the same was a self-

acquired property. Finally, he prays for setting aside the impugned judgment passed by learned Additional District Judge, Bathinda, by allowing the present appeal.

On the other hand, learned counsel for the plaintiff-

respondent Lal Singh vehemently contended that the consent decree dated 12.01.1982 Ex.D-1 suffered by Bachan Singh in favour of Karnail Singh-appellant would not adversely affect his right. Suit land being absolute ownership of Bachan Singh to the extent of 66 kanals 4 marlas, out of the total joint khewat of 133 kanals 7 marlas being the self-acquired property, he could not deny the entitlement of Bachan Singh in this regard. He primarily restrained himself and rightly so to the extent that the impugned decree dated 12.01.1982 Ex.D-1, even though qua specific khasra numbers, should not prejudice the right of the plaintiff in any manner, including his right to get the joint khewat partitioned. He prays for dismissal of the appeal.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that since the impugned judgment and decree passed by learned lower appellate court are contrary to the law laid down by the Full Bench judgment of this Court in Bhartu's case (supra), the same cannot be sustained. The instant appeal filed by defendant No.1-Karnail Singh deserves to be allowed whereas the Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 6 second appeal filed by plaintiff-Lal Singh is liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.

Following three substantial questions of law fall for consideration of this Court:-

1. Whether a consent decree is as good as a contested decree and binding between the parties thereto until and unless the same is set aside by a Court of competent jurisdiction?

2. Whether a co-sharer in the joint property is entitled to sell his share without the consent of his other co- sharers?

3. Whether sale of a particular share out of joint land by a co-sharer would adversely affect the rights of other co-

sharers, including their right to get the joint holding partitioned?

It is crystal clear from the peculiar fact situation of the present case that the suit land was not an ancestral property but self-

acquired property of Lal Singh and Bachan Singh. It was in the joint ownership of plaintiff-Lal Singh and Bachan Singh-defendant No.2.

This material fact also finds support from the revenue record available in the form of mutation dated 01.08.1951 (Exs.D-6, D-8 and D-9) to the effect that the land measuring 133 kanals 7 marlas was purchased by Lal Singh and Bachan Singh from Smt. Prem Kaur.

Thus, it is held that defendant No.2-Bachan Singh, being absolute owner of one half share out of the total 133 kanals 7 marlas, was competent and entitled to suffer the consent decree in favour of Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 7 Karnail Singh-defendant No.1. This material fact could not be denied even by the learned counsel for the plaintiff-respondent Lal Singh, during the course of hearing.

So far as the alleged fraud committed by Karnail Singh and Bachan Singh in suffering the consent decree dated 12.01.1982 Ex.D-1 was concerned, plaintiff has failed to substantiate his plea in this regard by leading cogent evidence. However, learned lower appellate court misdirected itself while passing a decree for declaration, to the effect that Lal Singh was co-owner in joint possession to the extent of one half share, in the disputed land measuring 56 kanals 8 marlas. This finding being wholly misconceived cannot be sustained. This was not even the relief claimed by the plaintiff. Having said that, this Court feels no hesitation to conclude that the learned lower appellate court has exceeded its jurisdiction while granting the relief going beyond the pleadings of the parties.

The Court was under no obligation to make out a new case in favour of any of the parties which has neither been pleaded nor proved. Once the co-sharer in the joint khewat disposes of the land to the extent of his share, he does not need the consent of his other co-sharers. However, it is equally true that although a co-

sharer might have sold specific khasra numbers in his possession, yet he would be selling only his share because every co-sharer has an interest in the whole property. Even if one co-sharer is in possession of more than his share or in the entire joint property, still Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 8 his possession would be held on behalf of all the co-sharers.

Similarly, sale of his share by any of the co-sharer would not adversely affect the right of other co-sharer including their right for partition. Further, consequent upon purchasing a share from a co-sharer, the purchaser would become only co-sharer in the joint khewat and will not adversely affect the right of other co-sharers including their right to get the joint khata partitioned. In this view of the matter, it is unhesitatingly held that the learned lower appellate court fell into serious error of law while setting aside the judgment and decree of the learned trial court and the impugned judgment cannot be sustained for this reason as well.

In view of what has been discussed here-in-above, the answer to first two substantial questions of law is and has to be in the affirmative. It is held that the consent decree will be as good as a contested decree and shall remain binding between the parties thereto, until and unless the same is set aside by a Court of competent jurisdiction. Similary, co-sharer in a joint khata is entitled to sell his share without the consent of his other co-sharers.

However, answer to the third substantial question of law is that the sale by a co-sharer shall not adversely affect the right of other co-

sharers including their right to get the joint khata partitioned.

The above said view taken by this Court also finds support from the Full Bench Judgment of this Court in Bhartu's case (supra). The relevant observations made by the Hon'ble Full Bench in paras 4 to 7 of the judgment, which can be gainfully followed in the Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 9 present case, read as under:-

4. The inter se rights and liabilities of the co-sharers were settled by a Division Bench of this Court in a very detailed judgment in Sant Ram Nagina Ram V. Daya Ram Nagina Ram, A.I.R. 1961 Pb. 528, and the following propositions, inter alia, were settled:-

1) A co-owner has an interest in the whole property and also in every parcel of it.

2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession.

3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-

owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.

5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.

7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.

Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 10

It is evident from the said propositions that when a co- sharer is in possession exclusively of some portion of the joint holding, he is in possession thereof as a co- sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. It is also undisputed that a vendor cannot sell any property with better rights than he himself has. Consequently when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. It was on this basis that a Division Bench of the Lahore High Court in Sukhdev V. Parsi plaintiff and others, A.I.R. 1940 Lah. 473, held that a co-sharer who is in exclusive possession of any portion of a joint khata can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of partition and that other co-sharer's right will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferees in the lands in dispute will be that of co- sharers, subject to adjustment at the time of partition. As is well-known, a declaratory decree is nothing but a judicial recognition of the existing rights and such a decree is nothing but a judicial recognition of the existing rights and such a decree does not tend to create any rights. The passing of the declaratory decree, therefore, shows beyond doubt that what the vendee gets in the transfer from a co-sharer is the right of that co-sharer and not exclusive ownership of any portion of joint land. It is also undisputed that the right Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 11 of pre-emption is available not only when a co-sharer sells the whole of his share but also when he sells a portion thereof. When a co-owner describes the land sold out of his share not in terms of a fractional share of the holding but in terms of measurement and khasra numbers even then he sells nothing but his rights as co-sharer in the joint holding i.e. a portion of his share therein. The share in the joint holding according to the dictionary meaning also does not mean a fractional share and instead means a definite portion of property owned by a number of persons in common.

5. The rights of a transferee from a co-owner are not entirely dependent on judicial decisions but are regulated by Section 44 of the Transfer of Property Act which provides that where one or two or more co- owners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specified portion, exclusively in possession of the transferor. Again, it cannot be disputed that when a co-sharer is in exclusive possession of the specified portion of the joint holding, he is in possession thereof as a co-sharer and all the Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 12 other co-sharers continue to be in its constructive possession. By the transfer of that land by one co- owner, can it be said that other co-sharers cease to be co-sharers in that land or to be in its constructive possession. The answer obviously would be in the negative because any of the other co-sharers can either seek a declaration from the Court as held in Sukh Dev's case (supra) that the vendee is in possession only as a co-sharer or can initiate proceedings for partition of the joint holding including the land transferred. If the other co-sharers continue to be co-sharers in the land transferred even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint holding. That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding, would be further elucidated if we take the example of a sale where a co-owner sells the land comprised of a particular khasra number which is not in his possession but is within his share in the joint holding. For example, 'A' who is joint owner of one-fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing khasra numbers 'X' and 'Y' which are not in possession. On the basis of this sale, the vendee can neither claim himself to be a transferee of the said land nor can he claim its possession from other co-owners in possession thereof. The effect in law of such a transfer would be only that the vendee shall be entitled to 10 bighas of land out of the share of his vendor at the time of partition or prior thereto to a decree for joint possession to the extent of the land purchased by him.

Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 13

Consequently, the effect in law of sale of even of specified portion of joint land is that it is only a sale of portion of share by one of the co-owners.

6. Take another example where 'A' and 'B' jointly own a khewat in equal shares measuring 200 bighas. 'B' is in separate possession of 100 bighas of land comprised of specific khasra numbers and transfers it to 'C'. This is not disputed that in spite of this sale, 'A' continues to be a co-sharer in the land transferred by 'B'. If that is so how can it be disputed that 'C' would necessarily be a co-sharer in the remaining 100 bighas of land in possession of 'A' as otherwise it would mean that 'A' is exclusively owner of 100 bighas of land in his possession and also a co-sharer with 'C' in the remaining 100 bighas which obviously is not possible. The matter can further be illustrated by another example. 'A' and 'B' are co-sharers in the joint khewat, say of 100 bighas of land in equal shares. 'B' who is in exclusive possession of land measuring 40 bighas of land comprised of khasra Nos.1,2,3 and 4 transfers two khasra numbers, that is, 1 and 2, measuring 20 bighas to 'C' specifically stating in the deed that he is in possession of these khasra numbers as a co-sharer and is transferring his interest as such. Can it be said on these facts that 'C' has purchased anything except a co-sharer's interest in khasra Nos. 1 and 2 in spite of the fact that the sale is of specific numbers and of the specified area. The answer obviously would be in the negative and if so then the sale is obviously of a share by the co-sharer out of the joint land and nothing else.

7. The matter can be looked from another angle, also. If the interpretation is Mst. Gurnam Kaur's case (supra) is accepted, the said clause under Section 15 of the Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 14 Act would be liable to be rendered otiose and the purpose of the Legislature defeated by a simple device of describing the land sold by specific khasra numbers instead of fractional share. For example, if a co-owner to the extent of one-fourth share in the joint holding of 400 bighas sells land measuring 100 bighas described by specific khasra numbers, there would be no right of pre-emption of the sale according to the rule laid down in Mst. Gurnam Kaur's case (supra). However, if 'A' sells one-fourth of his share measuring 100 bighas but without specifying any khasra numbers, there would a right of pre-emption. In both cases, 'A' has sold whole of his share in the joint holding but in one case the sale would be pre-emptible and in the other not depending on the manner how the land has been described in the sale deed. The intention to enact a provision of such illusory nature respecting the right of pre-emption by a co-sharer cannot be easily ascribed to the Legislature. If the purpose of the statute is to be carried out and the right of pre-emption to a co-sharer preserved then the words, "sale of share of joint land" have to be interpreted so as to include in its ambit any sale out of the joint holding by a co-sharer irrespective of the fact whether the land sold is fractional share or specified portion comprised of particular khasra numbers. Consequently, the decisions in Mst. Gurnam Kaur's case and Bakhshish Singh's case (supra) are, hereby, overruled."

Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Full Bench, it is held that defendant No.2-Bachan Singh was competent to suffer Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 15 consent decree in favour of Karnail Singh appellant-defendant No.1 to the extent of 56 kanals 8 marlas, which was less than his one half share in the joint khewat comprising 133 kanals 7 marlas. He was not bound to seek the consent of his other co-sharer for selling the land of his share. However, it is made clear that the alienation by Bachan Singh-defendant No.2 in favour of Karnail Singh-defendant No.1, by way of consent decree dated 12.01.1982 (Ex.D-1) for 56 kanals 8 marlas, will not in any manner adversely affect the right of plaintiff-Lal Singh including his right to get the joint khata partitioned.

No other arguments was raised.

Considering peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned judgment and decree dated 21.10.1985 cannot be sustained and the same are hereby set aside.

Consequently, the judgment and decree dated 08.02.1985 passed by learned trial court is restored. However, it is clarified that the consent decree dated 12.01.1982 (Ex.D-1) suffered by Bachan Singh-defendant No.2 in favour of Karnail Singh-

defendant No.1, will not adversely affect the rights of plaintiff-Lal Singh in any manner to the extent of his share of 66 kanals 4 marlas in the joint khata comprising 133 kanals 7 marlas, including his right to get the joint khata partitioned, in accordance with law.

Resultantly, with the above said clarifications RSA No.589 of 1986 filed by plaintiff-Lal Singh stands dismissed and RSA No.3253 of 1985 filed by Karnail Singh-defendant No.1 stands Vandana 2014.02.04 13:42 I attest to the accuracy and integrity of this document RSA No.3253 of 1985 (O&M) 16 allowed, however, leaving the parties to bear their own costs.

           January 10, 2014                  (RAMESHWAR SINGH MALIK)
           Vandana                                  JUDGE




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