Himachal Pradesh High Court
Ranvinder Singh vs Raghunath Singh And Ors. on 19 August, 1997
Equivalent citations: AIR1998HP24
Author: P.K. Palli
Bench: P.K. Palli
JUDGMENT P.K. Palli, J.
1. The plaintiff/appellant, who has lost in both the Courts below, is in second appeal before this Court, The parties, hereinafter in this judgment, shall be referred to as 'plaintiff' and 'defendants'.
2. The admitted position is that Kapura, son of Bhola was the grand father of the plaintiff and father of defendant No. 1 Defendant No. 1 is the father of the plaintiff. Kapuura is said to be an 'ADNA MALIK'. Raghunath Singh, defendant No. 1 married one Ram Rakhi who has been impleaded as defendant No. 8 in the suit, and the plaintiff claims himself to be son of defendant No. 1 through Ram Rakhi. Defendant No. 1.
Raghunath Singh thereafter married one Satya Devi who has been impleaded as defendant No. 7. Defendants Nos. 3,4,5 and 6 are daughters of Raghunath Singh, defendant No. 1 through his other wife Satya Devi, and defendant No. 2 is alleged to be their son.
3. The suit out of which the appeal has arisen, was filed by the plaintiff for joint possession and declaration to the effect that the land measuring 62 bighas 14 biswas is the joint Hindu Family and coparcenary property in the hands of his father defendant No. land the marriage contracted by him with Satya Devi, defendant No. 7 is illegal and defendants Nos. 2 to 6 as such have no right, title or interest in the said land but they are conspiring to alienate the suit land in order to deprive the plaintiff of his share. The plaintiff claims one half share as coparcener and has laid challenge to the right of defendant No. 1 to alienate the suit property.
4. The defendants contested the suit and, inter alia, raised several pleas such as defendant No. 1 was the absolute owner of the suit property which came to him by way of gift from his mother and some property was purchased by him along with his brother Lalji. The right, title and interest of the plaintiff was completely denied. It was also said by the defendants in reply that defendant No. I was in the Army and Ram Rakhi, defendant No. 8 never cohabited with him and in the 'KHANGI PANCHAYAT' held in the year 1963, she accepted her relationship with Lalji, elder brother of defendant No. 1 and settled with him as his wife. She is also said to be pregnant at that time. Defendant No. 1 claimed that he legally married Satya Devi, defendant No. 7 in the year 1965 and defendants Nos. 2 to 6 are born out of their wedlock and are his legitimate children.
5. Defendant No. 1 has further stated that he has gifted 22 Bighas of land and has also made a will of his property in favour of his son Rajvinder Singh, defendant No. 2 on May 24, 1986 and that there was no joint family between the plaintiff and defendant No. 1.
6. The learned trial Court, from out of the controversy so raised by the parties and on appreciation of the material placed on record by them held that the plaintiff has failed to prove that the suit land is Joint Hindu Family coparcenary and ancestral property. In paragraph 11 an observation has been made that defendant No. 1 was given a gift of 87 Bighas 9 Biswas of land by his mother Smt. Diwi and the property cannot be deemed to be ancestral in his hands. Admittedly, a part of this property, as observed by the learned trial Court, is subject-matter of dispute. It has also been said that the plaintiff is residing separately from defendant No. 1 and the parties cannot be held to constitute a Joint Hindu Family. In paragraph 10 it has been observed that as per excerpt Ext. P-2, the suit land was owned and possessed by Kapura, lather of defendant No. 1, who was an 'ADNA MALIK' only whereas the ruler of Nalagarh was 'ALA MALIK' of the properly. With the abolition of 'ALA MALKIAT' rights, defendant No. 1 acquired full ownership rights and the property which came in his hands, would be treated his self-acquired property and would vest in him as an absolute owner. The will executed by defendant No. 1 has been held to be legal. Consequently, it was found that the plaintiff had no locus standi to file the present suit and the suit filed by him was not maintainable. In the light of the findings recorded, the suit was ordered to be dismissed.
7. The plaintiff filed first appeal which stands dismissed by the learned first appellate Court and the judgment passed by the learned trial Court stands upheld. The learned first appellate Court, relying on a Division Bench judgment of the Punjab and Haryana High Court reported in (1971) 73 Pun LR 536, (Nachhttar Singh v. Budh Singh), held that the property was held by the 'ADNA MALIK' ACQUIRED THE RIGHT OF 'ALA MALKIAT' and is to be held as self-acquired property of that person.
8. The learned counsel appearing for the plaintiff contends that the case is squarely covered by a Single Bench judgment of this Court reported in (l992) 2 Sim LC 177, (Asa Ram v. Budh Ram). It has been held in this judgment that the abolition of 'ALA MALKIAT' righis does not in any manner alter the nature of the property in the hands of 'ADNA MALIK' and the property would continue to be ancestral in the hands of 'ADNA MALIK' in whom 'ALA MALKIAT' rights vested on coming into force the Pepsu Abolition of Ala Malkiat Rights Act. Learned counsel proceeds to contend that the judgment of Division Bench of the Punjab & Haryana High Court has been taken notice of by the learned Judge and stands distinguished.
9. Learned counsel for the plaintiff Mr. K.D. Sood finally contends that the Courts below have gone wrong in holding that the property in the hands of defendant No. I is to be treated as his self-acquired properly and in fact the property being ancestral and coparcenary, the plaintiff was entitled to the grant of decree claimed by him in the suit.
10. Learned counsel appearing for the defendants, in reply adopts and relies on the reasonings projected by the learned Courts below in the impugned judgment.
11. Mr. Verma further argues that the case is fully covered by the Division Bench of the Punjab and Haryana High Court referred to above and the learned single Judge has not appreciated the said judgment in its proper perspective and the position of law has been clearly laid down and that judgment should be followed to resolve the controversy presently involved in this lis.
12. After having beared the learnd counsel for the parties at length and on careful perusal of the impugned judgments and the record as well as case law cited at the Bar. I find that the learned single Judge in the case of Asa Ram v. Budh Ram, (1992 (2) Sim LC 177) (supra), on appreciation of the evidence placed on record in that case, held that the property was coparcenary and Joint Hindu Family properly. The learned trial Court in that case had also concluded the finding with the same observations. In that case the plaintiff had claimed a decree for possession on the ground that the properly in the hands of his father Sukh Ram was a coparcenary and Joint Hindu Family property and had been sold out by him without any legal necessity. Interestingly, Sukh Ram in that case filed a written statement conceding the claim of the plaintiff. Sukh Ram also died during pendency of the suit and the learned trial Court granted a decree for possession to the plaintiff.
13. The learned lower appellate Court in that case found that Sukh Ram himself was not the full owner of the property but held the same as 'ADNA MALIK' till promulgation of the Pepsu Abolition of Ala Malkiat Rights Act, 1954. Interestingly, in that case it was found by the learned first appellate Count that though 'Adna Malkiat' rights held by Sukh Ram were found to be ancestral but since after coming into force of the Act, on an enlargement of the rights, the land could not be considered ancestral qua the plaintiff.
14. The leaned Judge though noticed the Division Bench judgment of the Punjab and Haryana High Court in Nachhttar Singh's case (971 (73) Pun LR 536) (supra), yet agreed with the observations made by the learned single Judge of that Court reported in 1968 Cur LJ 27, (Budh Singh alias Nachhalar Singh v. Gurdev Kaur) which judgment was set aside by the Division Bench in Letters Patent Appeal against that judgment. It may be noticed that a distinction was made that it was the Raja who was 'Ala Malik' and had a right to receive 5% of the land revenue only from 'ADNA MALIK'. It was also distinguished that inheritance to the estate of 'ADNA MALIK' in that case was not governed in accordance with the rules of inheritance known to the customary law where the parties were governed by custom or where the parties were governed by personal law, by the rules of personal law, but the same was governed by the rules laid down in 'Dastur-ul-amal' of 1983 under which though there was power of alienation with 'ADNA MALIK' of sale and mortgage but he had no right to gift or will which right was further subject to certain conditions.
15. The learned Judge also noticed Full Bench judgment of the Lahore High Court reported in AIR 1935 Lahore 459, (Luddar Mani v. Raja Baldev Singh Sahib). The ratio of that case i.e. Nachhattar Singh case was held to be inapplicable to the facts of the case which was being decided by the learned single Judge as observed in para 10 of the judgment. It was in this situation that a finding was recorded that when 'ADNAMALIKI in the instant case had full right to alienate and create an encumbrance, it cannot be said that there was any enlargement of the estate on the vesting of 'ALA MALKIYAT' rights on him on the abolition of such rights, in para 13 it was concluded that the abolition of 'ALA MALKIAT' rights in the instant case had not, in any manner, altered the nature of the property in the hands of 'ADNA MALIK' and the property would be continued to be aucestral in the hands of the 'ADNA MALIK' in whom 'ALA MALKIAT' rights vested on coming into force of the Pepsu Abolition of Ala Malkiat Rights Act. It was held that the property in that case held by Sukh Ram was ancestral and continued to be so even after the enforcement of the Pepsu Act.
16. With almost respect to the learned single Judge, the Division Bunch judgment of the Punjab and Haryana High Court was not examined in its proper perspective and, more over, the property in that case, on facts and evidence, was found to be caparcenary and Joint Hindu Family property. In the present case, the learned trial Court has recorded a categoric finding that the property in the hands of the defendant No. 1 stood amalgamated with the property purchased by him as well as the property which came to him by way of gift from his mother.
17. In the Full Bench judgment of the Lahore High Court reported in AIR 1935 Lahore 459, (Luddar Mani v. Raja Baldev Singh Sahib), the question that was referred to the Full Bench was as under:
"When an adna malik having full power to sell or mortgage effects a mortgage of his land and then dies without natural heirs and the ala malik takes the estate, does he take it subject to encumbrance created by the adna malik or free from it"?
In that case it was Raja of Guler who was the 'ALA MALIK' and not a mere Talakdar' but had higher rights. The argument raised was that 'ALA MALIK' must be considered to be the real owner of the land, and the estate of 'ADNA MALIK' "must be looked upon as a mere encumbrance" which ceases to exist when the 'ADNA MALIK' dies without heirs. The judgment of the Full Bench was written by an eminent and learned Judge of the Lahore High Court Mr. Justice Bhide and it was concluded :
"I would hold that in the circumstances stated, when the adna malik has full power to mortgage the ala malik takes his estate on reversion subject to any encumbrance created by the adna malik."
This is how the answer was given to the question referred to the Full Bench.
18. The second learned Judge Mr. Justice Currie, after going through the draft judgment, added that:
"In view of the terms of the wajibularz I agree with the answer he proposes to give to the question referred to the Full Bench, in so far as it relates to cases of the extinction of adna malkiyat rights occurring in the doman of the Raja of Gulair."
It was further added by the learned Second Judge constituting the Full Bench, that:
"In each case however, it would be necessary to trace the origin of the tenure before any decision could be given on the point."
19. The Third learned Judge Mr. Justice Coldstream, agreeing with the learned Second Judge, answered the question in the manner proposed by Mr. Justice Bhide with the observation:
"The answer must be held to relate to pases arising in the jagir teritory of the Raja of Guler to which the wajibularz relied upon in this case is applicable."
20. It would, thus, follow that the Full Bench judgment of the Lahore High Court shall have no application to the question raised in this appeal.
21. In the judgment of the Division Bench of the Punjab & Haryana High Court (1971 (73) Pun LR 536) (supra), the correctness of the judgment passed by the learned single Judge was doubted and the judgment and decree passed by him was set aside. In para 10 or the said judgment it was held:
"10. Thus viewed from any angle, we are of the considered opinion that the abolition of the Ala Malkiat rights has created a new kind of estate in the Adna Malik and has altered the nature and character of the land in his hands. Therefore, the land in dispute cannot be considered to be ancestral qua the plaintiff and Buta Singh."
22. The learned Judges at page 542 of the report also examined the provisions of the Act and it has been said that the Act is a clear pointer to show that the 'Adna Malik' could not be termed prior to the abolition of 'Ala Malkiat rights as full owner of the land which was possessed by him. He became full proprietor only on the appointed date after the extinction of 'Ala Malik' rights. It was only after the abolition of 'Ala Malkiat' rights that ho became full owner for all intents and purposes.
23. In para 7, it has been observed that:
"The learned single, Judge has found that Adna Malik had full rights of an owner, that the abolition of the Ala Malkiat's rights did not result in the enlargement of the rights of Adna Malik and that by abolition only a burden has been cleared off.
With due defence we do not find ourselves in agreement with these findings. We are clearly of the view that an Adna Malik did not have full rights of an owner ........................"
It was further held in para 7 that:
"The two words 'AlaMalik' and 'AdnaMalik' clearly indicate the distinct rights of the two and it would not be correct to say that the rights of the Adna Malik was only a burden on the land held by the Adna Malik and did not, in any manner, affected or curtail his rights of full ownership. By abolition of the Ala Malkiyat rights, the right of the Ala Malik to recover certain percentage of revenue and his tide as Ala Malik had been extinguished and the Adna Malik rights in the land have been enlarged and ripened into full ownership............................"
24. Quite interestingly, in that case the plaintiffs had brought usual declaratory suit laying challenge to the alienation on the ground that the land was ancestral qua them and the alienation in question being without consideration and necessity, would not affect their reversionary rights. The learned trial Court in that case examined the nature of the property and found that the property was non-ancestral and consequently dismissed the suit. The judgments and decree were affirmed on appeal. It was in second appeal that the learned single Judge D.K. Mahajan, J. after considering the matter, held that the abolition of 'Ala Malkiat' rights did not in any manner, alter the character of the property in the hands of 'Adna Malik', and that if the land was ancestral in the hands of 'Adna Malki', it would remain ancestral.
25. In the given situation, I shall follow the judgment of the Division Bench of the Punjab and Haryana High Court where the question presently involved stands clearly answered.
26. Apart from what has been said above, the learned trial Court, as noticed earlier in the judgment, has held on appreciation of the evidence that the property in question does not constitute Joint Hindu Family coparcenary and ancestral property.
27. Consequently, the appeal, wholly devoid of merit, is ordered to be dismissed. There shall, however, be no order to as to costs.