Punjab-Haryana High Court
Amar Singh (Through Lrs.) And Another vs Sadhu Singh And Others on 10 February, 2012
Author: Sabina
Bench: Sabina
R.S.A.No. 67 of 1984 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 67 of 1984
Date of decision: 10.2.2012
Amar Singh (through LRs.) and another
......Appellants
Versus
Sadhu Singh and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Amit Jain, Advocate,
for the appellants.
Mr. V.K. Mahajan, Advocate
for respondents.
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SABINA, J.
Plaintiffs Amar Singh and Tara Singh had filed a suit for declaration challenging decree dated 18.9.1980 (Ex.P-12) executed by their father defendant No.3 Kullu in favour of defendant No.1 Sadhu Singh and defendant No.2 Charanjit Kaur.
The case of the plaintiffs, in brief, was that the parties were governed by Hindu law. The suit property was joint Hindu family and coparcenary property of the parties in the hands of defendant No.3. The plaintiffs had filed a suit for permanent injunction restraining defendant No.3 from alienating the suit property without any legal necessity. However, during the pendency of the R.S.A.No. 67 of 1984 2 suit, defendants No.1 and 2, in connivance with defendant No.3, got passed a collusive decree in their favour in the absence of the plaintiffs. Hence, the validity of the said decree dated 18.9.1980 was challenged.
Defendants No.1 and 2, in their written statement, took up preliminary objections, inter alia, that the suit property was not joint Hindu/ coparcenary/ ancestral property. Hence, the plaintiffs had no locus standi to file the suit. Plaintiff No.1 was residing separately for the last more than 20 years and plaintiff No.2 was leading the life of nomad since long. On merits, the passing of the impugned decree in favour of the answering defendants was admitted. It was averred that the decree was legal and valid.
Defendant No.3, in his written statement, took up similar pleas as those taken by defendants No.1 and 2.
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether the suit property is the joint Hindu family and coparcenary property and ancestral property? OPP.
2.Whether the plaintiff No.1 had separated from the joint family and was given 1/4th share in the total land, if so, its effect ? OPD
3. Whether the defendant No.3 and his sons are governed by customary law, if so, its effect? OPD
4.Whether defendant No.3 was full owner of the property in dispute, if so, its effect ? OPD
5. Whether the suit against the sub Registrar is not R.S.A.No. 67 of 1984 3 maintainable as alleged in preliminary objection No.6 in the written statement ? OPD
6. Whether the plaintiffs are barred by the act and conduct from filing the present suit ? OPD
7. Whether the decree dated 18.9.1980 is null and void and against the provisions of law, if so, its effect? OPP
8. Whether the plaintiffs are entitled to the declaration prayed for? OPP
9. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPD
10. Whether this court has no jurisdiction to try and decide the present suit ? OPD
11. Whether the parties had made any compromise in the Gram panchayat, if so, its effect ? OPP
12. Relief."
Parties led their evidence in support of their case. The trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 13.9.1982. The said judgment and decree were upheld in appeal by the Appellate Court vide judgment and decree dated 7.11.1983. Hence, the present appeal by the plaintiffs.
Learned counsel for the appellants has submitted that both the Courts below had held that the suit property was ancestral property in the hands of Kullu but it was not Hindu joint family property. Once the property was held to be coparcenary then it could not be said that it has ceased to be coparcenary or joint Hindu family R.S.A.No. 67 of 1984 4 property merely because the plaintiffs were residing separately from their father. Learned counsel has further submitted that the plaintiffs had not been made a party in the suit filed by defendants No.1 and 2 against defendant No.3. The said decree being collusive was liable to be set aside. In support of his arguments, learned counsel has placed reliance on Bakshish Singh and another vs. Harbans Singh (died) through LRs 2009 (5) RCR (Civil) 629, wherein in para No.9, it was held as under:-
"Learned counsel for the respondents, however, vehemently contended that the plaintiffs had separated from defendant No.1 several years ago as admitted even by plaintiff No.1 in witness box and therefore, the plaintiffs cannot be said to be coparceners with defendant No.1. The contention although apparently attractive, cannot stand closer scrutiny. Merely because the plaintiffs wre residing separately from defendant No.1 because plaintiff's mother has allegedly been deserted by defendant No.1, it cannot be said that Hindu undivided family or coparcenary constituted by defendant No.1 along with his sons and grandsons came to an end. In addition to it, merely because the plaintiffs were residing separately from defendant No.1, it cannot be said that the suit land, if otherwise proved to be coparcenary property ceased to be so."
Learned counsel for the respondent, on the other hand, R.S.A.No. 67 of 1984 5 has submitted that although the suit property was ancestral property in the hands of defendant No.3 but the coparcenary had come to an end as the plaintiffs were residing separately from defendant No.3. The property no longer remained Hindu joint family property between the parties.
The following substantial questions of law arise in this case:-
"(i) Whether it could be presumed that joint Hindu family or coparcenary had come to an end as the plaintiffs were residing separately ?
(ii) Whether the impugned judgments and decrees passed by the Courts below are perverse ?
(iii) Whether the impugned decree dated 18.9.1980 was a consent decree or a collusive decree ?
In the present case, admittedly, defendant No.3 had inherited the suit property from his fore-fathers. Thus, the property in the hands of defendant No.3 was his ancestral property. Plaintiffs constituted a coparcenary with their father and other coparceners. In these circumstances, the fact that the plaintiffs were not residing with defendant No.3 would not lead to the inference that the coparcenary had come to an end. The suit property remained coparcenary property of defendant No.3 and his sons. Defendant Nos. 1 and 2 had filed civil suit No.286 of 1980 against their father defendant No.3 on 9.9.1980. The plaintiffs were not impleaded as defendants in the said suit. Thus, the plaintiffs had no notice qua the R.S.A.No. 67 of 1984 6 filing of the said suit. Defendant No.3 appeared in the said suit and suffered a decree in favour of present defendants No.1 and 2 by admitting their claim qua 20 bighas 1 biswas 14 biswansis of land out of total land measuring 30 bighas, 2 biswas 11 biswansis. The said decree was liable to be set aside as it had been passed at the back of the plaintiffs. Although in the plaint (Ex.P-15), it was stated by defendants No.1 and 2 that they had got the suit land in a family partition but in the absence of the plaintiffs the suit was liable to fail. A perusal of the plaint further reveals that no mention was made in the said plaint that defendant No.3 Kullu had any other legal heirs/ sons apart from defendant No.1. Defendants No.1 and 2, thus, got a collusive decree passed in their favour in connivance with defendant No.3 with a view to defeat the rights of the plaintiffs qua the suit property. The said decree cannot be termed as a consent decree as all the effected parties had not been impleaded as a party in the suit. Thus, the Courts below have erred in dismissing the suit of the plaintiffs. The suit of the plaintiffs was liable to be decreed as the decree dated 18.9.1980 (Ex.P-12) challenged by the plaintiffs was a collusive decree and not a consent decree. Further the findings of the Courts below are perverse qua issue No.1, whereby, it was held that although the suit property was ancestral property but was not coparcenary property as the parties had started residing separately. Once the property is ancestral in the hands of defendant No.3 then all his sons get a right/ share in the same by birth. The coparcenary could have come to an end only after it was partitioned amongst the R.S.A.No. 67 of 1984 7 coparceners. In the absence of such family partition, the coparcenary could not come to an end merely because the coparceners had started residing separately. No family partition, effected between the coparceners, has been established on record. Hence, the findings of the Courts below are perverse and the substantial questions of law that arise in this appeal stand answered accordingly.
Hence, this appeal is allowed. The impugned judgments and decrees passed by the Courts below are set aside. Consequently, the suit filed by the plaintiffs is decreed as prayed.
(SABINA) JUDGE February 10, 2012 anita