Himachal Pradesh High Court
Narender Nath And Others vs Om Prakash on 23 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. : 10 of 2006 Reserved on : 02.03.2023 Date of decision : 23.03.2023 .
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Narender Nath and others ..Appellants/Defendants
Versus
Om Prakash ..Respondent/Plaintiff
------------------------------------------------------------------------------------- Coram :-
Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?1 Yes ____________________________________________________ For the Appellant : Shri Anand Sharma, Senior Advocate, with r Mr. Karan Sharma, Advocate For the Respondent : Mr. Suneet Goel, Advocate
------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Learned trial Court as well as learned first appellate Court vide their respective concurrent judgments dated 28.03.2005 and 30.11.2005 decreed the civil suit instituted by the respondent-plaintiff. The defendants have assailed these judgments and decrees in this regular second appeal.
2. The civil suit was filed by the respondent/plaintiff seeking declaration that a gift deed dated 14.08.1981 (Ex.PW-1/A) executed by his father/deceased Faquir Chand in favour of plaintiff's brother-Narender Nath (defendant No.1) in respect of the suit land was null and void. Suit property was ancestral in nature and, therefore, Faquir Chand was not ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 2 competent to execute the gift deed. The ancestral property could not have been alienated by Faquir Chand without the consent of the plaintiff-a coparcener. Mutation attested on the basis of this gift deed is also not .
valid. After execution of the gift deed, defendant No. 1 Narender Nath sold his 1/3rd share in the suit property in favour of defendant No. 2- Rajesh Kumar. This alienation is also void.
Both the learned Courts below determined the nature of suit property as ancestral. On the basis of oral & documentary evidence on record, factual findings were returned that suit property was inherited by one Pritam from his father Mansia. From Pritam, the property passed on by inheritance to his son Faquir Chand. Plaintiff & defendants are children of Faquir Chand. Suit property in the hands of Faquir Chand being ancestral could not have been gifted by him in favour of defendants without plaintiff's consent. Hence, gift deed dated 14.08.1981 was declared void. Mutation attested on the basis of gift deed was held invalid.
Subsequent sale of his share (1/3rd) in the property by defendant No. 1 in favour of defendant No. 2 was held to be illegal.
3. This second appeal filed by the defendants was admitted on 13.01.2006 on the following substantial questions of law :-
"1. Whether the suit of the plaintiff was barred under Article 59 of the Limitation act and as such was not maintainable ?
2. Whether the learned Court was right in holding that the suit property was ancestral property ?::: Downloaded on - 24/03/2023 20:34:19 :::CIS 3
3. Whether the learned Court below was right in holding that a suit for declaration is maintainable without seeking the relief of possession qua the suit property ?
4. Whether the learned Court below has arrived at a wrong .
conclusion in holding that the defendant No. 1 was not in adverse possession of the suit property uninterrupted since
14.08.1981 ?"
4. Heard Shri Anand Sharma, learned Senior Counsel assisted by Sh. Karan Sharma, Advocate for the appellants/defendants and Sh. Suneet Goel, learned counsel for the respondent/plaintiff. For convenience, separate point-wise discussion is as under :-
4 (a) Nature of Suit Property Both the learned courts below have held the suit property to be ancestral property. It has not been disputed that plaintiff and defendants No. 1 & 2 are sons of late Faquir Chand. Defendant No. 3 is the daughter & defendant No. 4 is the widow of late Faquir Chand. Parties are governed by Mitakshara law. Suit property measures 1 bigha 18 biswas of land, comprised in Khasra No. 19, situated in village Jayara, Tehsil & District Solan, H.P. The documents on record reflect that this property was originally owned by one Mansia. After the death of Mansia, the suit property was inherited by Mansia's son Pritam Chand. After the death of Pritam Chand, the suit property was inherited by his son Faquir Chand.
Faquir Chand died in the year 1986. The said property was not self acquired property of Faquir Chand but was inherited by him from his father Pritam Chand. The nature of property was ancestral. Therefore, I do ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 4 not find any error in the factual finding recorded by both the learned Courts below that the nature of the suit property in the hands of Faquir Chand was ancestral. In fact, leaving aside the evidence adduced by the .
plaintiff for proving the ancestral nature of the suit property, even defendant No. 1 Narender Nath while appearing in the witness box as DW-3 during the course of his cross examination stated that property in question was inherited by his father Faquir Chand from Pritam Chand and Pritam Chand, in turn, had inherited it from his father Mansia. During hearing of the present appeal not much emphasis was laid by the appellants-defendants to dispute the ancestral nature of the suit property.For all the aforesaid reasons, it is held that there is no error in the concurrent findings of facts returned by the learned Courts below with respect to the nature of the property in question being ancestral.
4(b) Competence of Faquir Chand to execute gift deed of ancestral property The point emphatically put forth by learned Senior Counsel for the appellants-defendants is that even if suit property is construed to be ancestral, then also gift deed executed by Faquir Chand is saved as law permits alienation of ancestral/Joint Hindu Family/Coparcenary property.
The deliberation on this aspect is purely legal. Hence, it would be appropriate to first notice Sections 4 and 30 of the Hindu Succession Act which read as under :-
"4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,- effect of Act.::: Downloaded on - 24/03/2023 20:34:19 :::CIS 5
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in .
this Act.
30. Testamentary succession.- (1) Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Testamentary succession. 39 of 1925.
Explanation.--The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, Worn, kutumba or kavaru in the property of the tarwad, tavazhi, Worn, kutumba or kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub- section.
4(b) (i) Sections 4 and 30 of the Hindu Succession Act came up for consideration in 1992 (1) Sim. L.C. 402 (Kartari Devi and others Vs. Tota Ram). It was held in this decision that Section 4 of the Act gives an over-riding effect to the Act over the customs alleged in that case. The Court held that according to Section 4(1)(a), all the rules of law of succession applicable to Hindus before coming into force of the Act whether by virtue of any text or rule of Hindu Law or any custom or usage, having the force of law, stand abrogated in respect of all matters for which provision is made in the Act. Further, under sub section (1) (b), any other law contained in any Central or State Legislation in force immediately before this Act came into being was also superseded insofar as such legislation is inconsistent with the provisions contained in the Act.
The Court further observed that Mitakshara system of Hindu law ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 6 recognized two modes of devolution of property, namely, survivorship and succession. Rule of survivorship applies to Joint Hindu Family Property, whereas rule of succession applies to separate property of the .
members of Joint Hindu Family. Under Mitakashara system, every member of Joint Hindu Family has one undivided interest in the joint property. Joint Hindu Family consists of all lineal descendents from a common ancestor. The ancestral property is the property inherited by a male Hindu from his father, father's father or father's father's father. The copercenary property under the Hindu law includes ancestral property. It was further held that Hindu Succession Act has neither abolished the Joint Hindu Family nor the Joint Hindu Family property nor it has interfered with the special rights of those who are members of Mitakashara copercenary body except in the manner and to the extent mentioned in Sections 6 and 30 of the Act. By the explanation to Section 30, the interest of a male Hindu in a Mitakshara copercenary property has been held to be the property capable of being disposed of in accordance with the provisions of Indian Succession Act or any other law for the time being in force and applicable to Hindus. The relevant paras from the judgment read as under :-
" 5. Now, it is to be seen how far section 30 of the Act has made inroads into the Hindu law. The Mitakshara system of Hindu law recognizes two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to Joint Hindu Family property whereas the rule of succession applies to separate property of the members of Joint Hindu Family. Further, under the Mitakshara system, every member of Joint Hindu Family has only one undivided interest in the joint property. The Joint Hindu Family consists of all persons lineally descendant from a common ancestor including their wives and unmarried daughters. But a coparcenary is a much narrower body and it ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 7 includes only those persons who acquire, by birth, an interest in the joint or coparcenary property and they are the sons, grand sons and great grand sons of the holder of joint property, in other words, the three generations next to the holder in unbroken male descent. No female can become coparcener under the Mitakshara law. Similarly, the ancestral property is the property inherited by a male Hindu from his father, father's .
father or father's father's father. The essential features of ancestral property, according to the Mitakshara system, are that the sons, grand sons and great grand sons of the person who inherits it acquire an interest in it by birth and their rights attach to it at the moment of their birth. As such, coparcenary property under the Hindu law includes ancestral property.
6. The Act has neither abolished the Joint Hindu Family nor the Joint Hindu Family property nor it has interfered with the special rights of those who are members of Mitakshara coparcenary body except in the manner and to the extent mentioned in sections 6 and 30 of the Act. In the present case, we are concerned with section 30, which, alongwith its explanation, provides that a male Hindu may dispose of his interest in a Mitakshara coparcenary property by way of a will. By the explanation, the interest of a male Hindu in a Mitakshara coparcenary property has been held to be the property capable of being disposed of in accordance with the provisions of the Indian Succession Act or any other law for the time being in force and applicable to Hindus. As the Indian Succession Act provides for testamentary succession by way of a will, it follows that the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of a will or other testamentary disposition. By using a non-obstante clause, that is, "notwithstanding anything contained in this Act or any other law for the time being in force", the explanation to section 30 has been given an overriding effect. Even if there is anything contrary in the Act or any other law, which includes custom also, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of will, in other words, the bar created by way of custom that the coparcenary property is not capable of being alienated by executing a will by one of the coparceners is taken away and rule of survivorship is finished to a limited extent. But it continues to apply in the case of gift and other alienations which are inter vivos."
Following para 7 of the judgment, reiterates that interest of a male in Hindu Coparcenary property is capable of being disposed of by way of Will :-
"7. Therefore, in view of section 30 of the Act, which specifically provides that interest of a amale Hindu in Mitakshara coparcenary property is capable of being disposed of by way of will irrespective of any provision in the Act or any other law to the contrary, read with section 4 of the Act, I hold without any hesitation that any custom prohibiting ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 8 testamentary succession by way of will of a coparcenary property stands abrogated. In view of section 30 read with section 4 of the Act, a male Hindu governed by Mitakshara system is not debarred from making a will in respect of coparcenary/ancestral property."
In Kartari Devi's case (supra), the Court noticed the explanation given in Section 30 of the Act pertaining to testamentary succession and .
held that interest of a male Hindu in Mitakshara copercenary property is capable of being disposed of by way of Will or other testamentary disposition. The bar created by way of custom that coparcenary property is not capable of being alienated by executing a Will by one of the coparceners is taken away and rule of survivorship is finished to a limited extent. But it continues to apply in the case of gift and other alienations which are inter vivos. In paras 8 and 9 of the judgment, similar views taken by Full Bench of Calcutta & Division Bench of Madras High Court were noticed as under :-
"8. For taking this view, I have taken support from Full Bench judgment of Calcutta High Court in Commissioner of Wealth Tax, West Bengal, HI Calcutta Vs. Sampatrai Bhutoria and Sons, 1981 TLR 1550, wherein in para 17 it has been held as under :-
"Again, section 30 of the Act makes provision for a male governed by Mitakshara Law to dispose of by a testament his interest in the coparcenary property. In such a case the provisions of sections 6 and 8 would not be applicable. The general law of Mitakshara branch is now repealed by Explanation to section 30 which lays down that such interest of a Hindu male under Mitakshara is to be deemed to be the property capable of being disposed of by will..."
9. A similar view was taken by a Division Bench of Madras High Court in S.V. Sundaresan v. Assistant Controller of Estae Duty, Coimbatore, 1983 TLR 1438. In Para 16 it has been observed :-
"....According to the original Mitakshara law, no coparcener, not even a father could dispose of by will his undivided coparcenary interest even if the other coparceners consent to the disposition. This is because the moment the coparcener died his undivided interest devolved by survivorship on the other coparceners. The title by survivorship was considered to take precedence to the ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 9 exclusion of that by devise. This rule of Mitakshara law has now been abrogated by section 30 and the Explanation thereto- Section 30 read with the explanation only empowers a coparcener to dispose of his property by will in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force. The section is confined only to testamentary disposition and does .
not cover disposition by way of gift inter vivos..."
4(b) (ii) The view taken in Kartari Devi's case (supra) was held to be the correct view by the Division Bench in (1997) 2 HLR 306 (Tek Chand versus Mool Raj). The Bench held that language of Section 30 of the Hindu Succession Act is specific that a male Hindu in Mitakshara coparcenary can dispose of his interest in the coparcenary property by a Will or other testamentary disposition notwithstanding anything contained in the Act or any other law for the time being in force.
Observations in the judgment pertinent to the controversy are as follows :-
"34. In the light of the aforesaid rulings, if the provisions of section 30 of the Hindu Succession Act are looked into, it is clear that the legislature had intended and brought about a change in the right of a male member of Hindu Mitakshara coparcenary viz-a-viz disposition of property by Will or other testament. The language is so specific that a male Hindu in a Mitakshara coparcenary can dispose of his interest in the coparcenary property by a Will or other testamentary disposition notwithstanding anything contained in the Act or any other law for the time being in force. If a member of Mitakshara coparcenary can dispose of his interest by a Will, a fortiori, the last male holder who has no other coparcener to share the property with him, is entitled to dispose of the same by a testament. In fact the Supreme Court has held clearly in Smt. Dipo's case that the character of the property in the hands of a such last male holder is non-ancestral and hence the restriction imposed by the customary law against alienation of ancestral property will not apply to such non-ancestral property. Consequently, the provisions of section 30 are automatically applicable to such male Hindu.::: Downloaded on - 24/03/2023 20:34:19 :::CIS 10
35. Thus the customary law relating to alienation by testamentary disposition stands abrogated by the provisions of section 30 of the Hindu Succession Act, read with section 4 thereof. Hence we agree with the view expressed by the learned Single Judge in Kartari Devi v. Tota Ram (1992 (1) Sim. L.C 402).
36. There is no material on record in this case as to whether the property dealt with .
by Chamaru in his Will was only his interest in Mitakshara coparcenary property or whether there was a coparcenary among Chamaru, Prabha and Punnu during the lifetime of Chamaru. There is a recital in the Will that Punnu was living separately from Chamaru, his father, for more than 20 years and he was never obeying the commands of his father. Of course, it is not possible to draw an inference from the recital in the Will whether the property dealt therein was coparcenary property. But it is very clear that inspite of a lapse of more than 27 years after the death of Chamaru, there is no challenge by Punnu against the Will executed by Chamaru. In such circumstances, it is not possible for this court to recognise or declare any right of Punnu. It is also to be noted that the bequest in favour of Chiri under the same will was never challenged by the defendants or anybody else. Nor has the other widow Jaiwanti ever made any claim to any part of the property.
37. In the circumstances, the plaintiffs are entitled to a decree as prayed for by them on the strength of the Will executed by Chamaru."
4(b) (iii) Significantly, in the above two pronouncements i.e. Kartari Devi & Tek Chand's cases (supra) while holding that a male Hindu is empowered to dispose of coparcenary property restricted such disposition to the extent of his undivided share in the coparcenary/joint family property.
4(b) (iv) (2009) 12 SCC 454 (Shyam Lal @ Kuldeep versus Sanjeev Kumar) a case from State of Himachal Pradesh, was decided by the Hon'ble Apex Court based upon the above two judgments. Two out of five substantial questions of law framed by the High Court pertained to validity of the Will viz-a-viz ancestral property & read as under :-
::: Downloaded on - 24/03/2023 20:34:19 :::CIS 11"8. Defendant Nos.1 to 3 and 6, aggrieved by the said judgment of the District Judge, Solan filed a second appeal before the High Court on the following substantial questions of law :-
(1) - (3) x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x xx .
(4.) When the learned lower Appellate Court has held the custom to have been abrogated on account of the provisions of Sections 4 and 30 of the Hindu Succession Act, was not the will executed by Shri Balak Ram in favour of defendant nos.1 and 2 valid for the entire property when its due execution and validity has been upheld?
(5.) Whether the findings of the learned lower Appellate Court are incorrect to hold the property firstly to be Joint Hindu Family property, secondly ancestral property and thereby restricting the validity of the will executed by Shri Balak Ram qua his coparcenary interest in the property without holding that there existed a coparcenary amongst the parties to the suit and ascertaining the interest of Shri Balak Ram therein?"
The above questions were answered as under :-
"Question No.5
24. The High Court, regarding question No.5, in the impugned judgment observed as under:-
"The learned District Judge has held the property in the hands of the deceased Balak Ram to be coparcenary property. Be it stated that such findings cannot be sustained. The plaintiff has nowhere pleaded that the property in the hands of his father the deceased Balak Ram was a coparcenary property. His pure and simple case, as set out in the plaint, is that the property in the hands of the deceased was ancestral and under the custom governing the parties such ancestral property could not be bequeathed by way of a will. By holding the property in the hands of the deceased Balak Ram to be coparcenary property, the learned District Judge has in fact made out a new case for the plaintiff. On this short ground alone, the findings of the learned District Judge deserve to be set aside."
Question 4.
25. The two courts below have concurrently held the Will Ex. DW 1/A to have been validly executed by the deceased Balak Ram in favour of defendant nos.1 and 2. Such concurrent findings being purely on a question of fact, that is, with regard to execution of the Will, cannot be interfered within the present Second Appeal.
26. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same from his father. In so far as the question whether under the custom governing the parties, a Will could be ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 12 executed in respect of ancestral property is concerned, the same is no more res integra.
27. A learned Single Judge of this court in Kartari Devi and Ors. v. Tota Ram [1992 (1) Sim. L.C. 4021] has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not .
debarred from making a Will in respect of coparcenary/ancestral property. The above view of the learned Single Judge was upheld and approved by a Division Bench of this court in Tek Chand and Another v. Mool Raj and Others [1997 (2) Hindu L.R. 306]. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1/A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside."
Hon'ble Supreme Court held that the learned first appellate Court erred in upholding the validity of the Will only to the extent of interest of the deceased in the property. For arriving at such finding, the law interpreted in Kartari Devi & Tek Chand's cases (supra) was considered and affirmed. However, in Kartari Devi & Tek Chand's case (supra), it was held that a coparcener can execute Will of coparcenary property but only to the extent of his undivided interest and not of entire coparcenary property. Based upon Apex Court's decision in Shyam Lal's case, a co-ordinate Bench of this Court in (2019) 1 Sim.
LC 220 (Narender Kumar versus Tej Ram) & AIR 2019 HP 178 (Ram Singh versus Charan Singh) held that coparcener can execute a Will beyond his share in the coparcenary property. Extracts from Narender Kumar's judgment are as under :-
"18. As observed above, moot question in the instant case is whether the entire ancestral property could have been .willed away by Bholla Dutt and the complete answer is found in para 27 of the judgment in Sham Lal's case (supra) as quoted and uderlined above.
19. In view of the aforesaid discussions, even though no exception can be taken to the findings recorded concurrently by both the learned courts below to the effect ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 13 that the property in the hands of Bholla Dutt was ancestral, however, further findings that Bholla Dutt could not have executed a will beyond his share in favour of defendant No.1 in the coparcenary property to be ancestral property are liable to be set aside in view of the law expounded in Sham Lal's case (supra). Accordingly, substantial questions of law No. 1 to 3 are answered."
.
4(b) (v) While deciding Civil Appeal No. 2567 of 2017, vide judgment dated 13.12.2021 (M.R. Vinoda versus M.S. Susheelamma (D) by LRs and others), Hon'ble Apex Court held that a Karta of a joint Hindu family can dispose of joint family property involving the undivided interest of the minor of the family therein. Therefore, the proposition of the Plaintiff No. 3/ the Appellant (therein) on the limitation of the power of the Karta to manage and sell the joint Hindu family property on behalf of the joint family comprising of a minor is misplaced, as a coparcener has no right to interfere in the act of management of the joint family affairs. This being the position, a coparcener cannot seek an injunction restraining the Karta from alienating joint Hindu family property, but has a right to challenge alienation, as the alienation is not beyond the scope of challenge by other members of the joint family, and thereby scrutiny of the court.
Latter right entails the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrances, whereas the former embraces the right to interfere with the act of management of the joint family affairs.
::: Downloaded on - 24/03/2023 20:34:19 :::CIS 14A specific question considered in the above decision was competence of Karta to execute a relinquishment deed on behalf of his branch. The question was answered as under :-
.
"18 The second question for consideration is whether as a Karta or the head of the branch, M.R. Rajashekar, i.e., Defendant No. 4, could have validly executed the relinquishment deed, marked Exhibit P-2, on behalf of his branch? The answer to this issue is well settled, and for that reference is to be made to Thamma Venkata Subbamma (Dead) By LR v. Thamma Rattamma and Others, which decision refers to the legal position in the Hindu law in great depth and detail.After adverting to Mayne's Treatise on Hindu Law & Usage, Eleventh Edition, Article 38212 and Mulla's Hindu Law, Fifteenth Edition, Article 258,13 it has been held thus:
"17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid."
This judgment draws a distinction between gifts and relinquishment by a coparcener of his share; and the head of the branch or Karta as the representative or eldest member of the branch. Former is valid and legal, provided the relinquishment is in favour of all other coparceners. The gift or relinquishment would also be valid if it is with the prior consent of another coparcener. Equally, a coparcener may make a gift of his undivided interest in the coparcenary property to another coparcenary with the prior consent of other coparceners".
The position that emerges is that :-
Gift and relinquishment by a coparcener of his share in the coparcenary property is valid provided the same is in favour of all other coparceners.
Instant case does not fall in this category. Here gift by a coparcener (Faquir Chand) was not just of his interest in the coparcenary property, but the entire coparcenary property was gifted and that too to the exclusion of plaintiff-one of the coparceners. Gift or relinquishment would be valid if it is with prior consent of other coparceners. In the ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 15 instant case, gift has been executed by one coparcener without consent of plaintiff-one of the coparceners. Further, in para 19 of the judgment, it has been held :-
.
"19. Mulla's Hindu Law, 22nd Edition vide Article 262, states that a coparcener may renounce his interest in favour of the other coparceners as a body, but not in favour of one or more of them. When he renounces in favour of one or more of them, the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. A similar exposition vide Article 407 in Mayne's Treatise on Hindu Law & Usage, 17th Edition, states that a gift by a coparcener of his entire undivided interest in favour of the other coparcener or coparceners is valid whether it is regarded as one made with the consent of the other or others or as a renunciation of his interest in favour of all.
Referring to the judgment in Thamma Venkata Subbamma (supra), Mayne's Treatise on Hindu Law & Usage observes that renunciation in the form of ostensible gift may have the effect of relinquishment and if it enures for the benefit of all the coparceners, such gift would be construed as valid. In addition, Mulla's Hindu Law, 22nd Edition recognises that a father or other managing member of the ancestral immovable property can make gifts within reasonable limits for "pious purposes".
In the instant matter, it is not the case of defendants that execution of gift deed was an act of legal necessity. The gift deed has been executed without the consent of plaintiff - a coparcener. Taking into consideration, all above facts, in my considered view Faquir Chand was not competent to execute gift deed of entire coparcenary property without the consent of plaintiff-one of the coparceners. Points are answered accordingly. Substantial question of law No. 2 is decided against the appellant.
4(c) Maintainability of suit for declaration without seeking relief of possession.
It has been contended for the appellants that they are in possession of some portion of the suit property. The respondent-
::: Downloaded on - 24/03/2023 20:34:19 :::CIS 16plaintiff has not sought possession of these properties. Filing of suit merely for declaration without claiming possession is not maintainable.
Reliance has been placed upon AIR 1972 SC 2685 (Ram Saran Vs. .
Ganga Devi), (2017) 3 SCC 702 (Executive Officer Arulmigu Chokkanath Swamy Vs. Chandran), 2011 (3) Him. L.R. 1487 (Ankhi Ram Vs. Harnam Singh).
In Chandran's case (supra), the plaintiff who was not in possession, in the suit had claimed only declaratory relief alongwith mandatory injunction. It was held that plaintiff being out of possession, the relief of possession was a further relief which ought to have been claimed by him in view of Section 34 of the Specific Reliefs Act. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was held to be not maintainable.
It would be pertinent to draw out relevant observations in this regard from 2021(14) Scale 293 (Akkamma & Ors. Vs. Vemavathi & Ors.). Hon'ble Supreme Court held that the bar contained in proviso to section 34 of the Specific Relief Act, could not be applied in the case of plaintiffs (therein) as consequential relief of injunction from interference with suit land was claimed. The prohibition contained in the proviso to Section 34 would operate only if the sole relief is for declaration without any consequential relief. In the plaint, relief for injunction was asked for. Such dual relief would protect the suit from being dismissed on ground of maintainability. It was further held that ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 17 the prohibition or bar contained in proviso to Section 34 of the Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claim for declaratory .
relief as also consequential relief in form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned, but not on maintainability question invoking proviso to Section 34 of the Act The relevant paras from the judgment read thus :-
"15. We agree with that part of the decision of the High Court in which it has been held that possession of the suit property was not established by the plaintiffs and hence injunctive relief could not be granted. As we have already recorded, we are also in agreement with the High Court's reasoning for rejecting the plea for amendment. But we do not agree fully with the entire reasoning of the High Court for dismissal of the appeal as spelt out in the said judgment. The bar contained in proviso to Section 34 of the 1963 Act, in our opinion, could not be applied in the case of the plaintiffs as consequential relief for injunction from interference with the suit land was claimed. The prohibition contained in the proviso to Section 34 would operate only if the sole relief is for declaration without any consequential relief. In the plaint of the 1987 suit, relief for injunction was asked for. Such dual relief would protect the suit from being dismissed on maintainability ground. It is a fact that the plaintiff ought to have had asked for recovery of possession, given the factual background of this case, but the plaint as it was originally framed reflected that the original plaintiff was in possession of the suit land. Such plea rightly failed before the Trial Court and the First Appellate Court.
16. The prohibition or bar contained in proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 18 dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted. On this count, we do not accept the ratio of the Karnataka High Court judgment in the case of Sri Aralappa (supra) to be good law. In that decision, it has .
been held:
"31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable, as no decree for permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so, the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable".
17. So far as the reliefs claimed in the suit out of which this appeal arises, prayer for declaration was anchored on two instances of interference with the possession of land of the plaintiffs and injunctive relief for restraint from interference with the property was also claimed. But possession of the said property by the original plaintiff was not established. The alternative relief sought to be introduced at a later stage of the suit was also found to be incapable of being entertained for the reason of limitation. Thus, the foundation of the case of the plaintiffs based on these two factual grounds collapsed with the fact-finding Courts rejecting both these assertions or allegations. But that factor ought not to be a ground for denying declaration of ownership to the plaintiffs. There is no bar in the Specific Relief Act, 1963 in granting standalone declaratory decree. The Trial Court came to a positive finding that the original plaintiff was the owner of the suitproperty. But it held that in absence of declaration of relief of possession by the plaintiff, declaration of title cannot be granted. We have already expressed our disagreement with this line of reasoning. It seems to be a misconstruction of the provisions of Section 34 of the 1963 Act. The Trial Court and the High Court have proceeded on the basis that the expression "further relief" employed in that proviso must include all the reliefs that ought to have been claimed or might have been granted. But in our view, that is not the requirement of the said proviso. This takes us to the corollary question as to whether the 1987 suit could have been held to be barred under the principle contained in Order II Rule 2 of the Code of Civil Procedure, 1908. In our opinion, the said provisions of the Code would not apply in the facts of this case, as the denial of legal right in the 1987 suit is pegged on two alleged incidents of 15th and 25th ::: Downloaded on - 24/03/2023 20:34:19 :::CIS 19 February, 1987. These allegations can give rise to claims for declaration which obviously could not be made in the 1982 suit. The claim for declaratory decree could well be rejected on merit, but the suit in such a case could not be dismissed invoking the principles incorporated in Order II Rule 2 of the Code of 1908."
In the present case, respondent in his suit besides claiming .
decree for declaration had also claimed relief of permanent prohibitory injunction. His case was not that of ouster. His clear stand was that part of suit land was in his possession. The suit property has been claimed to be ancestral property and has been held to be so. In the facts of the case, suit for declaration alongwith decree for permanent prohibitory injunction was maintainable. There was no requirement for claiming relief of possession. Substantial question of law No. 3 is answered against the appellant.
4(d) Whether suit was barred under Article 59 of the Limitation Act ?
The submission made on behalf of the appellants is that they were in possession of the suit property on the basis of gift deed dated 14.08.1981. This was in the knowledge of the plaintiff. Relief of possession was not claimed by him. The suit having not been brought up within the period of three years was barred by limitation.
Article 59 of the Limitation Act provides as under :-
"Article 59 Description of suit Period of Limitation Time from which period begins to run To cancel or set aside an instrument or Three years When the facts decree or for the rescission of a entitling the plaintiff to contract. have the instrument or decree cancelled or set aside or the contract rescinded first become known to him."::: Downloaded on - 24/03/2023 20:34:19 :::CIS 20
Suit was instituted in the year 1997. Respondent-plaintiff while appearing as PW-1 stated that he started serving in Indo Tibetan Border Police in the year 1967 and retired from there in the year 2004.
.
He remained posted outside the State during his service. His family lived at Delhi. For these reasons, he was not aware of execution of gift deed of the suit property allegedly executed by his father in the year 1981. He became aware of the gift deed in 1997 when defendant instituted partition proceedings. Plaintiff has not been cross examined on this part of the statement. Respondent-plaintiff's evidence that he acquired knowledge of gift deed dated 14.08.1981 only in the year 1997 has gone un-rebutted. Suit instituted by the respondent in the year 1997 seeking to challenge gift deed dated 14.08.1981 after becoming aware of its execution in 1997,was within the limitation period. Substantial question of law No. 1 is answered against the appellant.
4(e) Whether defendant No. 1 was in adverse possession of the suit property since 14.08.1981 ?
It has been put forth for the appellants-defendants that defendant No. 1 had come into possession of suit property after the execution of gift deed dated 14.08.1981. Plaintiff was aware of defendant No.1's possession over the suit property, yet he never raised any protest. Defendant No. 1 has acquired title over the suit property and has become owner of suit land by way of adverse possession since 14.08.1981. Defendant No. 1 has completed twelve years of adverse possession, hence plaintiff has lost right to eject him.
::: Downloaded on - 24/03/2023 20:34:19 :::CIS 21The plea has no substance. While adjudicating substantial question of law No. 1, it has been concluded that plaintiff was not aware of execution of gift deed dated 14.08.1981. His civil suit instituted in .
1997 after becoming aware of execution of the gift deed was within the limitation period. No issue was framed before the learned trial Court on alleged adverse possession of defendant over the suit property.
Defendant No. 1 in his affidavit furnished by way of examination-in-
chief did not even allege that he was in continuous, hostile possession of suit property to the knowledge of plaintiff since 14.08.1981. Defendant No. 1 did not admit the plaintiff to be co-owner of the suit property.
Plaintiff's case is that he had first right in the suit property being ancestral property. Defendant No. 1 cannot be construed to have become owner by way of adverse possession. Substantial question of law No. 4 is also answered against the appellants.
5. Conclusion In view of above discussion, impugned judgments passed by both the learned Courts below concurrently decreeing the suit filed by the respondent are affirmed. This second appeal is dismissed.
23rd March 2023 (K) Jyotsna Rewal Dua
Judge
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