Punjab-Haryana High Court
Chanan Singh & Ors vs Khem Kaur & Ors on 5 November, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla
Regular Second Appeal No.2686 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Regular Second Appeal No.2686 of 1987
Date of Decision: 5.11.2014
Chanan Singh and another ..Appellants
versus
Khem Kaur and others ..Respondents
and
Regular Second Appeal No.2841 of 1987
Date of Decision: 5.11.2014
Santokh Singh Appellant
versus
Chanan Singh and others ..Respondents
CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA
Present: Mr. S.N.Saini, Advocate, for the appellants
Mr. Amit Jain, Advocate, for the respondents
RAJIVE BHALLA, J. (ORAL)
This order shall decide Regular Second Appeal No.2841 of 1987, filed by Santokh Singh and Regular Second Appeal No.2886 of 1987, filed by Chanan Singh and another, as they impugn the same judgments and decrees, though on different grounds.
Sudagar Singh filed a suit for declaration pleading that Lehna Singh was allotted 371 Bighas-17 Biswas of land, in KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 2 lieu of land left behind in Pakistan. Lehna Singh had five sons and three daughters. A part of the land was mortgaged with Kundan Singh (defendant no.1) Anokh Singh, father of defendant nos.2 and 3, Kuldip Singh and Iqbal Singh and Didar Singh (defendant no.4). After excluding this land, Lehna Singh made an oral gift of his remaining land in favour of his sons by making a statement and filing an application dated 22.7.1954, before consolidation authorities who accepted the gift and allotted five separate parcels of land, to his five sons. An agreement for maintenance of Lehna Singh was executed on 8.10.1954. The mortgaged land, which was not redeemed by Lehna Singh, has passed on to Kundan Singh etc. as owners. The mutation sanctioned by the revenue authorities is illegal, null and void to the extent that it includes the name of daughters as owners.
After service, Kuldip Singh, Iqbal Singh and Didar Singh, defendant nos. 2, 3, and 4, respectively, filed a written statement admitting the claim of the plaintiffs.
Bir Kaur, Sukhbir Singh alias Lakhbir Singh, Anup Kaur and Roop Kaur filed a written statement alleging that mutation in the name of daughters, is incorrect.
Khem Kaur and Nand Kaur, defendant nos. 9 and 10, filed a written statement claiming that daughters of Lehna Singh are owners to the extent of 1/8th share each and also denied the KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 3 mortgage etc. After considering the pleadings, the trial court framed the following issues:-
"1. Whether plaintiffs and defendants No.11 to 14 are the owners to the extent of 1/5 share of the suit land?OPP
2. Whether Bir Singh died during the life time of Lehna Singh and Didar Singh defendant no.4 is the only next heir of Bir Singh?OPP
3. Whether Lehna Singh made an oral gift in the year 1954 except in favour of Saudagar Singh father of plaintiff No.1 to 3 and grand father of defendant No.12 to 14 and father-in-law of defendant No.11 and Kundan Singh defendant No.1 and Anokh Singh father of defendant no.2 and Didar Singh defendant No.4 and Santokh Singh defendant no.5. If so, its effect?
4. Whether Lehna Singh got the suit land in consolidation of holdings in lieu of his land and whether the land was partitioned among his sons in consolidation of holdings?OPP
5. Whether the plaintiffs are in possession of their respective land since the consolidation of holdings?OPP KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 4
6. Whether the plaintiffs are entitled to the declaration prayed for?OPP
7. Whether the suit is within limitation?OPD
8. Whether Lehna Singh mortgaged with possession and his agricultural land measuring 9 standard acres 5 ¾ units and Kundan Singh, Anokh Singh defendants and Bir Singh, father of Didar Singh defendant no.4 and they have become owners of the said land by lapse of time?OPP
9. Whether the plaintiffs are estopped from filing the present suit on account of conduct and acquiescence?OPD
10. Whether the suit is barred under Order 2 Rule 2 CPC?OPD
11. Whether the suit is barred by principles of res judicata?OPD
12. Whether the suit is not legally maintainable in the present form?OPD 13 Whether the plaintiffs have no locus standi to file the present suit as partition has already been sanctioned at the instance of Nand Kaur, Khem Kaur defendants?OPD
14. Relief."
The parties were, thereafter, called upon to lead KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 5 evidence. The learned trial Court, after considering the pleadings and the evidence, decreed the suit by holding that as the land was ancestral in the hands of Lehna Singh, his sons would succeed to his estate, measuring 275 Bighas-16 Biswas, to the exclusion of daughters. The trial court also decreed the prayer for a permanent injunction, but rejected the plea of an oral gift deed. The trial court also held that a civil court has already held that mortgagees have perfected their title for failure of Lehna Singh to redeem the land.
Aggrieved by the aforesaid judgment and decree, Khem Kaur and Nand Kaur, two daughters and Santokh Singh son of Lehna Singh filed an appeal.
The Additional District Judge, Patiala, vide judgment and decree dated 5.1.1987, allowed the appeal and set aside the judgment passed by the trial court by holding that as the plaintiffs have neither pleaded nor proved the ancestral/coparcenary nature of the land, the trial court could not have decreed the suit on this ground and, therefore, Lehna Singh's daughters are entitled to succeed along his sons, in equal shares, to the estate left behind by Lehna Singh. The first appellate court also upheld the mutation of succession and the plea that mortgagees have perfected title for failure of Lehna Singh to redeem the mortgage. The Additional District Judge, Patiala, also affirmed the finding that Lehna Singh did not make KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 6 any oral gift in favour of his sons.
Counsel for the appellants/plaintiffs submits that as the property in dispute was received by Lehna Singh from his father, it partakes the nature of ancestral property and would, therefore, devolve upon his male coparceners, namely, sons of Lehna Singh, to the exclusion of daughters. The findings recorded by the first appellate court that the plaintiffs- appellants did not plead the ancestral nature of the property is contrary to the plaint and, therefore, raises a substantial question of law, namely, misreading of pleadings, leading to the recording of a finding, that is contrary to the record.
Counsel for the appellants further submits that as the appellants have, proved on record, that Lehna Singh filed an application gifting his estate to his five sons and consolidation authorities passed a resolution dividing the land into five "Tucks" (parcels), the finding recorded by courts below rejecting the gift is contrary to the record. It is further submitted that the gift by Lehna Singh is proved by the fact that consolidation authorities allotted separate khatas to the sons of Lehna Singh. Counsel for the appellants submits that the following substantial questions of law arise for consideration:-
" (1) Whether courts below have misread the pleadings while holding that the plaintiffs have not pleaded the ancestral nature of the property? KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 7 (2) Whether courts below have misread the evidence on record while holding that Lehna Singh did not make a gift of his estate in favour of his sons during consolidation proceedings?"
Counsel for the respondents contends that findings of fact recorded by courts below that Lehna Singh did not gift the land, are based upon a considered appraisal of the evidence on record and as these findings do not suffer from any error of law or of jurisdiction, much less any misreading of evidence, the findings so recorded, may be affirmed. Counsel for the respondents further submits that the plaint is bereft of any averment or claim based upon the nature of the property. The revenue record even after consolidation continued to record Lehna Singh as owner. The appellants' plea of a gift has, therefore, been rightly discarded by the courts below.
I have heard counsel for the parties, perused the judgment and decree and find no reason to grant any relief to the appellants. Both the trial court and the first appellate court have recorded concurrent findings of fact, while rejecting the plea of an oral gift deed, by recording clear and cogent findings. Counsel for the appellants is unable to point out any error that would give rise to a substantial question of law. A perusal of findings recorded by the trial court reveals that after considering application, Ex.P1/A dated 22.7.1954, and resolution Ex.P2, KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 8 passed by consolidation authorities, the trial court recorded a finding of fact that as the revenue record prepared after consolidation continues to reflect Lehna Singh as sole and exclusive owner without any proprietary allotment to his five sons, the plea of an oral gift, has not been proved. A relevant extract from the judgment reads as follows:-
" The learned counsel for the plaintiffs has placed much reliance on the application Ex.P1/A dated 27.7.1954 wherein Lehna Singh deceased has requested the consolidation authorities to divide his land in five equal shares so that the possession upon the land may be given to his sons separately during his life time. He has further placed his reliance upon resolution Ex.P.W.2. Perusal of this resolution Ex.P-2 shows that the consolidation authorities did not bother to divide the land of Lehna Singh in five equal shares. Further more, the land of Lehna Singh had only been divided in four plots from where it cannot be inferred that the land of Lehna Singh was divided equally among the sons of Lehna Singh. What to speak of delivering separate possession, even the land could not be divided in five equal Taks as desired by Lehna Singh in application dated 27.7.1954. Further the learned counsel for the plff. has placed reliance on an KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 9 agreement dated 5.10.1954 wherein the sons of Lehna Singh deceased has made an arrangement for the maintenance of Lehna Singh. This document cannot be said to confer any right upon any of the L.Rs of Lehna Singh. It is simply an arrangement between the parties as that Lehna Singh may be maintained by his sons during his life time. The learned counsel for the plaintiffs argued at length that it was permitted under the law in 1954 that Lehna Singh could make an oral gift. Though it may have been permissible under the law, but there is no evidence on the file from where it may be concluded that Lehna Singh deceased made an oral gift in 1954 in favour of his five sons because of which the land of Lehna Singh may have been delivered to his sons and possession would have been effected separately."
The first appellate court has affirmed this finding though by recording separate reasons, including an extremely significant reason, that a separate mutation reflecting the so called gift was not recorded and jamabandi,Ex.P5, prepared after consolidation, in year 1958-59, continued to reflect Lehna Singh as sole and exclusive owner of the land in dispute.
A relevant extract from this judgment reads as follows:-
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" ....Now the question to be seen is whether in fact Lehna Singh made any gift in favour of his four sons and grand-son Didar Singh in the year 1954 and whether he put them in possession of the land gifted as donees. In support of this submission that Lehna Singh did make oral gift in the year 1954, my attention was drawn by the learned counsel for the plaintiffs- respondent to application exhibit P/1 dated 27.7.1954, agreement dated 8.10.1954 Ex.P.3/A and copy of resolution No.14 dated 5.5.1955 Ex.P/2 and the statements of Harbans Singh P.W.2.* Balkar Singh, PW5, Chanan Singh plaintiff, P.W.6 Harbans Singh, P.W.2 stated that he scribed application Ex.P/1 at the instance of Lehna Singh addressed to Naib Tehsildar Consolidation. All that Lehna Singh had stated in that application was that the area allotted to him be carved out in separate Taks in favour of his Haqdarans. He has not made any mention that he has gifted away in their favour. Resolution Ex.P/2 shows that consolidation authorities carved out four plots of the land allotted to Lehna Singh. No report was lodged with the Patwari regarding oral gift. No mutation was entered on the basis of oral gift. In Jamabandi exhibit P/5 (1958-59), Lehna Singh is recorded as owner. In KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 11 the column of possession, Didar Singh is shown in respect of 15 bighas 8 biswas as grandson of allottees Lehna Singh. In land 3 Bighas 15 biswas Kundan Singh is shown as son. Maghar Singh is shown as tenant in land 45 bighas 13 biswas Saudagar Singh is shown as son in respect of 67 bighas 15 biswas. Anokh Singh is shown as son in respect of 99 bighas x 10 bighas* In jamabandi 1962- 63 also, the sons and grandsons of Lehna Singh are shown in possession but as Hissedars. In Jamabandi 1962-63, all the eight heirs of Lehna Singh are shown as owners. In Jamabandi 1967-68 also they are shown in possession as Hissers. In the column of ownership all the eight heirs of Lehna Singh are shown. In khasra Girdawaris Ex.P/7 and P/8 also sons and grand sons of Lehna are shown in possession. In these Jamabandis or Khasra Girdawaris, there is no suggestion that that they are in possession on account of gift.* Gift involves the transfer of ownership.There is no entry in the revenue record recording transfer of ownership-During consolidation allotment was made in favour of Lehna Singh as is clear from Naksha Haqdarwar Ex.D/6. Learned counsel for respondents-plaintiffs has drawn KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 12 by attention to agreement dated 8.10.1954 where through the sons of Lehna Singh made arrangement for the maintenance of Lehna Singh-* No inference can be drawn from this arrangement Ex.P.W.3/A that there was gift by Lehna Singh. Vide this arrangement only 40 bighas of land was liable for his maintenance and not 50 bighas. Even otherwise there is no mention of any gift in this arrangement. Might before convenience of cultivation and for providing sense of security to his sons, Lehna Singh put them in separate possession without vesting them with ownership and divesting him of ownership."
The concurrent findings of fact recorded by courts below rejecting the plea of an oral gift by Lehna Singh are neither contrary to the pleadings nor the evidence and do not indicate a perverse or arbitrary consideration, much less an infraction of any law.
A perusal of the aforesaid findings reveals that the statement made by Lehna Singh before consolidation authorities does not record that he is making a gift of land to his sons. All that the statement records is that separate tucks be allotted to his "Haqdarans", i.e.,heirs. Lehna Singh did not lodge any report with the Patwari regarding an oral gift nor was any mutation recorded in respect thereof. The resolution, Ex.P2, reveals that KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 13 consolidation authorities carved out separate plots of the land, but continued to reflect Lehna Singh as owner. The jamabandi for the year 1958-59 continues to reflect Lehna Singh as owner, but in the column of "possession", his sons and grand sons are shown in possession of different parcels of land, thereby proving that all that Lehna Singh desired was an arrangement for cultivation of the land by his sons and grand sons and not an oral gift as alleged and asserted by the respondents. Even the arrangement, Ex.PW3/A, for maintenance of Lehna Singh does not record an oral gift. It is, therefore, apparent that all that Lehna Singh desired, was an arrangement for cultivation of the land without vesting any proprietary rights, title or interest in his sons or divesting him of his ownership. The impugned findings are, therefore, affirmed and the question of law framed with respect to execution of the gift deed is answered against the appellants.
As regards the other question, namely, inheritance to the estate of Lehna Singh, the appellants claim inheritance on the ground that the property was ancestral, The trial court accepted the plea by holding that as the property is ancestral, it would devolve upon male coparceners. The first appellate court has reversed this finding by holding that the plaintiff-appellants had failed to plead or aver in the plaint that Lehna Singh's property was ancestral.
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A perusal of the plaint, which is available on record, reveals that plaintiff-appellants have not pleaded that the property in dispute was ancestral in the hands of Lehna Singh and on his death, it devolved upon male coparceners, i.e., his sons. A perusal of the record also reveals that no such plea was claimed or cast as an issue. This apart, parties did not adduce any evidence in support of or against the ancestral nature of the property. The trial court, thus, committed a serious error of jurisdiction in holding that the property is ancestral. The finding was rightly rectified by the first appellate court by holding that in the absence of any pleading or evidence about the ancestral nature of the property, inheritance would open on the basis of natural succession. The question of law framed with respect to the ancestral nature of property is answered against the appellants.
Regular Second Appeal No.2841 of 1987 Counsel for the appellants, in R.S.A. No.2841 of 1987, i.e., Santokh Singh son of Lehna Singh, submits that a perusal of the judgment recorded by the first appellate court reveals that no finding has been recorded on issue no.8, namely, whether Lehna Singh had mortgaged 9 standard acres 5¾ units in favour of Kundan Singh, Anokh Singh and Bir Singh, father of Didar Singh, thereby committing a serious error of jurisdiction and raising a substantial question of law, namely, that the first KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 15 appellate court has failed to decide issue no.8.
Counsel for the respondents submits that a perusal of the judgment recorded by the first appellate court reveals that a specific finding has been recorded on issue no.8 specifically affirming the finding recorded by the trial court and decided in favour of the respondents.
I have heard counsel for the parties and perused the impugned judgment and decree. The trial court dealt with issue no.8 and held as follows:-
" The learned counsel for the plaintiffs has filed copy of judgment Ex.PX and copy of decree sheet Ex.PY wherein it has been held that Lehna Singh mortgaged with possession his agricultural land measuring 9 standard acre 5 ¾ units and Kundan Singh, Anokh Singh defendants and Bir Singh father of Didar Singh defendant no.4 became owners of the land under mortgage by lapse of time. The learned counsel for the defendants does not dispute this issue. Accordingly, this issue is decided in favour of the plaintiffs."
A perusal of the aforesaid finding reveals that in view of the judgment Ex.PX and decree sheet Ex.PY, holding that Lehna Singh had mortgaged with possession land measuring 9 standard acre 5 ¾ units with Kundan Singh, Anokh KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 16 Singh and Bir Singh, father of Didar Singh and as Lehna Singh failed to redeem the land, they have become owners of the land by lapse of time. A relevant extract from judgment recorded by the first appellate court reads as follows:-
" It has been next submitted by the learned counsel for the appellants that judgment Ex.PX is a nullity as it was against Saudagar Singh a dead person. Decree against a dead person is a nullity. Through this decree, Kundan Singh, Anokh Singh, Didar Singh were given declaration that they are owners of land 9 standard acres 5 ¾ units as mortgage has become irredeemable due to lapse of time. Khem Kaur, Nand Kaur were party to that decree. In the suit instituted by Chanan Singh etc. the subject matter was 275 Bighas-16 Biswas and not 376 Bighas 9 Biswas. They have not claimed any right so far as the land 100 Bighas-13 Biswas was concerned its having vested in Kundan Singh, Anokh Singh, Didar Singh on account of decree Ex.PY based on judgment Ex.PX.
In case Khem Kaur, Nand Kaur, Chanan Singh etc. can avoid that decree by any legal process, they may do so. In this appeal, subject matter will be viewed as land measuring 275 Bighas 16 Biswas KUMAR VIRENDER 2015.03.20 16:23 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Regular Second Appeal No.2686 of 1987 17 only."
A perusal of the aforesaid extract reveals that the first appellate court has recorded a specific finding as to the execution of the mortgage by referring to judgment, Ex.PX and held that as execution of the mortgage has already been affirmed and it has already been held that Kundan Singh, Anokh Singh and Didar Singh have become owners for failure to redeem the mortgage within time, the land, subject matter of the mortgage, has come to vest in Kundan Singh, Anokh Singh and Didar Singh on account of decree Ex.PY and judgment Ex.PX. The first appellate court has considered and answered issue no.8. The submission made by counsel for the appellants is, therefore, contrary to the judgment. The question of law is answered against the appellants.
The appeals are dismissed, but with no orders as to costs.
5.11.2014 ( RAJIVE BHALLA )
VK JUDGE
KUMAR VIRENDER
2015.03.20 16:23
I attest to the accuracy and
authenticity of this docunt
High Court Chandigarh