Punjab-Haryana High Court
Jagir Singh vs Amarjit Singh And Anr. on 7 August, 2003
Equivalent citations: AIR2004P&H51, AIR 2004 PUNJAB AND HARYANA 51, (2004) 18 ALLINDCAS 191 (P&H), 2004 (1) HRR 330, 2004 (18) ALLINDCAS 191, 2004 HRR 1 330, (2003) 4 RECCIVR 598, (2004) 1 PUN LR 565
JUDGMENT M.M. Kumar, J.
1. This is plaintiff s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevit, 'the Code') challenging concurrent findings of facts recorded by both the Courts below, holding that the plaintiff-appellant is not entitled to declaration that the sale deed dated 27-12-1995 made by defendant-respondent 1 -- his father in favour of defendant-respondent 2 --his brother and the sale deed dated 8-1-1996 made by, defendant-respondent 1 in favour of defendant-respondent 3 -- another brother of the plaintiff-appellant are not invalid, null and void. It has also been found by both the Courts below that the property in the hands of defendant-respondent 1 had become his exclusive property and was no longer ancestral coparcenary property.
2. The following pedigree table would be helpful to understand the facts and the controversy which has led to the filing of the instant appeal :--
Sadhu Singh | Defendant No.1
--------------------------------------------
| | Jagir Singh Amarjit Singh Kashmir Singh Plaintiff Defendant Defendant (s/o Defe- No.2 (s/o De- No.3 (s/o De- ndant No.1) fendant N0.1) fendant No.1)
The plaintiff-appellant has filed a suit for declaration praying that the sale deeds dated 27-12-1995 and 8-1-1996 as referred to in above paragraph by defendant-respondent 1 -- his father were null and void because those sale deeds transferring the property to his brothers were without consideration and were not executed out of a legal necessity or as an act of good management. It was further asserted that the suit property was ancestral in the hands of defendant-respondent 1 -- father of the plaintiff-appellant even after partition. The stand taken by defendant-respondents in their written statement is that the plaintiff-appellant got his share from defendant-respondent 1 in the year 1956 and separated from Test of the family. A decree dated 7-5-1958 was passed by a Court of competent jurisdiction in that regard. According to the arrangement made in the partition, defendant-respondent 1 -- father of the plaintiff-appellant as well as defendant-respondents 2 and 3 retained his own share and the share of his wife. The remaining land was given by him to his three sons, namely, plaintiff-appellant and defendant-respondents 2 and 3. Therefore, sale deeds dated 27-12-1995 and 8-1-1996 were executed by defendants-respondent No. 1 in favour of defendant-respondent 2 and defendant-respondent 3 respectively.
3. The trial Court framed the following issues :--
1. Whether the land in suit is ancestral/ coparcenary property in the hands of defendant No. 1? OPP
2. Whether the sale deed dated 27-12-1995 is without legal necessity and without an act of good management? OPP
3. Whether the sale deed dated 8-1-1996 is without the legal necessity and without an act of good management? OPP
4. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
5. Whether the suit is not maintainable in the present form? OPD
6. Relief.
4. On vital issues Nos. 1, 2 and 3 both the Courts have found that the suit land in the hands of defendant-respondent 1 was no longer joint coparcenary property after the execution of partition in 1956 between all the members of joint Hindu family. It was further held that the plaintiff-appellant has failed to prove that the suit land was ancestral coparcenary property in the hands of defendant-respondent 1 or that it was not for a legal necessity or an act of good management. Therefore, sale deeds dated 27-12-1995 and 8-1-1996 were not held to be invalid. The view taken by the trial Court was affirmed by the learned Additional District Judge in his judgment and decree dated 4-10-2001 which reads as under :--
"The respondent in addition to the Revenue Record had produced Ex. D7, copy of the judgment, Ex. D7/A, copy of the plaint and Ex. D8 copy of the decree-sheet, delivered in Civil Suit filed by the appellant as well as respondents Nos. 2 and 3, against Sadhu Singh-respondent No. 1, which indicates that the land mentioned therein was alleged to have fallen to their share in a family settlement and as such, they were declared its owners. Ex. D8/A is the copy of the written statement filed by respondent No. 1 in that suit. Ex. D9 is the copy of the statement of Sadhu Singh. The learned counsel for the appellant has not challenged the validity of these documents. His only argument is that even after partition of the anestral coparcenary property, the land which fell to the share of Sadhu Singh-re-spondent No. 1 still remained as the ancestral coparcenary property of the appellant as well as respondent Nos. 2 and 3 and he could not alienate the same in any manner.
I find hardly any substance in this argument of the learned counsel for the appellant because once the Joint Hindu Family comes to an end and the Joint Hindu Family coparcenary property is partitioned, the land which falls to the share of each of the coparcener, becomes his exclusive ownership and he cannot be deprived of his right to alienate the same in the manner he likes. The learned counsel for the appellant has not been able to show me any law to substantiate his arguments. In such circumstances the land which has fallen to the share of respondent No. 1 was his exclusive property and he had rightly transferred the same in favour of the respondent Nos. 2 and 3."
5. Mr. N. S. Boparal, learned counsel for the plaintiff-appellant has argued that even after partition in 1956 the decree incorporating the aforementioned partition dated 7-5.-1958, the share of the land in the hands of defendant-respondent 1 Sadhu Singh would continue to be ancestral coparcenary property in so far as plaintiff-appellant as well as defendant-respondents 2 and 3 are concerned. According to the learned counsel, defendant-respondent 1 was not competent to alienate the suit land in the manner he liked unless such a sale is for a legal necessity or as an act of good management. Referring to paragraphs 11 and 12 of the judgment of the trial Court, the learned counsel has pointed out that even defendant-respondent 1 has inherited huge land from his father Narain Singh and he had equal share in the land situated in Pakistan along with his father Narain Singh. Therefore, after partition the land falling in the hands of defendant-respondent 1 was still an ancestral coparcenary property and the plaintiff-appellant would be entitled to a share. Learned counsel has further argued that the suit land could have been alienated only for a legal necessity or as an act of good management.
6. Mr. A. K. Khunger, learned counsel for the defendant-respondents has submitted that firstly both the Courts have found that the suit -land in the hands of defendant-respondent 1 after partition is his exclusive land and he was entitled to deal with the same in the manner he liked. Learned counsel has also pointed out that even if it is presumed that the suit land was ancestral coparcenary property, nothing has been brought on record to prove that it was not an act of good management or that it was not for a legal necessity.
7. After hearing the learned counsel and perusing the judgments of both the Courts below, I am of the considered view that this appeal is without any merit. Both the Courts have concurrently found that the suit land is not ancestral coparcenary property in the hands of defendant-respondent 1 after partition. Even if it is presumed that the suit land is ancestral coparcenary property and defendant-respondent 1 was not entitled to alienate the same, nothing has been proved on record that the sale made to defendant-respondents 2 and 3 was not an act of good management or for a legal necessity. It may be true that a share obtained by a coparcener from ancestral property continues to be ancestral property as regards his male issues because they take- an interest in it by birth whether they are born before partition or are born subsequently. However, the alienation by a coparcener during his life time if not shown to be without a legal necessity or as an act of good management, the same cannot be attacked. In the instant case, an added feature is that defendant-respondent 1 during his life time partitioned the ancestral; coparcenary land between the members of coparcenary family. The share failing to defendant-respondent 1 was alienated by him to his two sons defendant-respondents 2 and 3 by sale deeds dated 27-12-1995 and 8-1-1996 respectively. Nothing has been proved on record that the alienation was without consideration or was not for a legal necessity or an act of good management. Therefore, the appeal is without merit and is liable to be dismissed.
8. FOR the reasons stated above, this appeal fails and the same is dismissed.