Punjab-Haryana High Court
Balbiri Devi Widow Of Rulia Ram @ Ruhla ... vs Tejbir Singh Son Of Rulia Ram @ Ruhla Son ... on 8 January, 2010
RSA No. 4037 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 4037 of 2005
Date of Decision: 08.01.2010
1. Balbiri Devi widow of Rulia Ram @ Ruhla son of Sadhu
Ram, resident of village Bara Gaon, Tehsil and District
Karnal.
2. Somwati daughter of Rulia Ram @ Ruhla wife of Phool
Singh, r/o Gadhi, Tehsil and District Kurukshetra.
3. Rajesh Kumari d/o Rulia Ram @ Ruhla wife of Dhari Ram,
r/o village Teharpur, District Yamuna Nagar.
... Appellants
Versus
1. Tejbir Singh son of Rulia Ram @ Ruhla son of Sadhu Ram,
r/o village Bara Gaon, Tehsil and District Karnal.
2. Chandra Wati widow of Rulia Ram @ Ruhla son of Sadhu
Ram, r/o Bara Gaon, Tehsil and District Karnal.
...Respondents
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Ashish Aggarwal, Advocate,
for the appellants.
Mr. J.K. Goel, Advocate,
for respondent No. 1.
Respondent No. 2, exparte.
SHAM SUNDER, J.
**** This appeal, is directed against the judgement and decree dated 29.08.05, rendered by the Court of Additional District Judge, RSA No. 4037 of 2005 2 Karnal, vide which, it accepted the appeal, against the judgement and decree dated 08.11.02, rendered by the Court of Civil Judge (Junior Division), Karnal, and decreed the suit of the plaintiff.
2. The facts, in brief, are that, Rulia Ram @ Ruhla, was the father of Tejbir Singh, Somwati and Rajesh Kumari, and the husband of Balbiri Devi and Chandrawati. He died on 05.02.82. Tejbir Singh, plaintiff, claimed that, the land, in dispute, measuring 112 kanals, was the ancestral Joint Hindu Family Property, in the hands of his father Rulia Ram @ Ruhla, and, as such, he (plaintiff) had got equal share, therein, since his birth. It was stated that, after the death of Rulia Ram @ Ruhla, the revenue authorities, wrongly entered and sanctioned the mutation No. 2014 dated 23.03.83 of inheritance of the estate of Rulia Ram, to the extent of 1/ 4 share each, in favour of Tejbir Singh, plaintiff, and, Somwati and Rajesh Kumari, defendants No. 3 and 4, whereas, the mutation, in respect of the remaining 1/ 4 share, was jointly sanctioned, in favour of Balbiri Devi and Chandrawati (widows of Rulia Ram), defendants No. 1 and 2. It was further stated that mutation No. 2014, was illegal, null and void. It was further stated that since the plaintiff was already owner to the extent of 1/ 2 share in the land, on the death of Rulia Ram, mutation should have been sanctioned in respect of 1/ 2 share i.e. 56 kanals of land, only. It was further stated that in 1/ 2 share left by Rulia Ram, the plaintiff was having 5/8 share, whereas, defendants No. 1 and 2 (widows), were jointly having 1/8 share, and, defendants No. 3 and 4 (daughters), were having 1/8 share each, in the land. The defendants, were many a time, asked to treat the RSA No. 4037 of 2005 3 aforesaid mutation, as illegal, null and void, but to no avail. Ultimately, a suit for declaration with consequential relief of possession, was filed.
3. Defendants No. 1, 3, and 4, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable; that the plaintiff, had no locus-standi, to file the suit; that no cause of action, accrued to the plaintiff, to file the suit; that the suit was time barred; and that the suit, had not been properly valued, for the purpose of Court fee and jurisdiction. It was admitted that Tejbir Singh, plaintiff, is the son, Somwati and Rajesh Kumari, defendants No. 3 and 4 , are the daughters, and, Balbiri Devi and Chandrawati, are the widows of Rulia Ram @ Ruhla, who died, on 05.02.82. It was denied that the land, in dispute, was ancestral Joint Hindu Family Property, in the hands of Rulia Ram @ Ruhla. It was further denied that the plaintiff, had got interest, to the extent of half share, in the land, in dispute, with the father, since his birth. It was further stated that since the land, in dispute, was the self acquired property of Rulia Ram @ Ruhla, the mutation of inheritance No. 2014, was rightly sanctioned, and, as such, was legal and binding upon the parties. It was further denied that the plaintiff, got 5/8 share, and, defendants No. 1 and 2, got 1/8 share, in equal shares, whereas, defendants No. 3 and 4, got 1/8 share each, in the land, in dispute. It was further stated that the plaintiff and defendants No. 3 and 4, got 1/ 4 share each, whereas, defendants No. 1 and 2, got the remaining 1/ 4 share, in equal shares, in the suit land, which they inherited on the death of Rulia Ram @ Ruhla. The RSA No. 4037 of 2005 4 remaining averments, were denied, being wrong.
4. On the pleadings of the parties, the following issues were struck:-
(i) Whether the mutation No. 2014 is illegal, null and void and not binding on the plaintiff? OPP
(ii) Whether the suit is not maintainable?
OPD
(iii) Whether the suit is time barred? OPD
(iv) Whether the plaintiff has no cause of action to file the present suit? OPD
(v) Relief.
5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff.
6. Feeling aggrieved, an appeal, was preferred by the plaintiff/respondent, which was accepted, by the Court of Additional District Judge, Karnal, vide judgement and decree dated 29.08.05.
7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by three defendants/appellants.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The following substantial question of law arises, in this appeal, for the determination of this Court:-
(i) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that Tejbir Singh, plaintiff (now respondent RSA No. 4037 of 2005 5 No. 1) inherited 5/8 share in the estate of Rulia Ram, on his death?
(ii) Whether the first Appellate Court, recorded perverse findings that mutation No. 2014 was illegal?
10. The Counsel for the appellants, submitted that the property, in dispute, belonged to Rulia Ram @ Ruhla. He further submitted that, at the time of his (Rulia Ram @ Ruhla's) death, on 05.02.82, he left him surviving Tejbir Singh, son, Somwati and Rajesh Kumari, respondents No. 3 and 4, daughters, and Balbiri Devi and Chandrawati, respondents No. 1 and 2, his widows. He further submitted that Tejbir Singh, was born after coming, into force, Hindu Succession Act, 1956 (hereinafter to be called as the 'Act' only). He further submitted that, since the property, in dispute, was not the ancestral co-parcenary property, in the hands of Rulia Ram, after his death, it was to be inherited, by all the class I legal heirs, according to Section 8 of the Act, and, thus, the mutation, on the death of Rulia Ram @ Ruhla, was rightly sanctioned. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion that, the property, in dispute, was the ancestral co-parcenary property, and, as such, Tejbir Singh, was entitled to 5/8 share, after the death of Rulia Ram @ Ruhla. He further submitted that the judgement and decree of the first Appellate Court, being illegal, are liable to be set aside.
11. On the other hand, the Counsel for the respondent, submitted that the property, in dispute, was proved, to be the ancestral co-parcenary property, in the hands of Rulia Ram @ Ruhla. He further RSA No. 4037 of 2005 6 submitted that, according to Section 6 of the Act, if the property, is co- parcenary property, in the hands of the last male holder, then, it was not to devolve as per the provisions of Section 8 of the Act. He further submitted that, in such cases, notional partition, during the life time of the deceased is required to be assumed. He further submitted that, in the said notional partition of the entire land, Rulia Ram @ Ruhla, was entitled to 1/ 2 share. He further submitted that it was 1/ 2 share of Rulia Ram, in the land, which was to be inherited by all the class I legal heirs according to Section 8 of the Act. He further submitted that the first Appellate Court, was right, in holding, that Tejbir was entitled to 5/8 share, whereas, Somwati and Rajesh Kumari were entitled to inherit 1/8 share each, and, Balbiri Devi and Chandrawati widows were entitled to inherit 1/8 share together. He further submitted that the findings, recorded by the first Appellate Court, are correct, and liable to be upheld.
12 After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, with minor modification, in the shares, for the reasons to be recorded, hereinafter. It is, no doubt, true that this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, are the result of misreading or misappreciation of evidence, and law, on the point. The first question, that arises for consideration, is, as to whether, the land, in dispute, in the hands of Rulia Ram @ Ruhla, was ancestral co- RSA No. 4037 of 2005 7 parcenary property, or not. P9 and P11, are the pedigree tables, which are reproduced hereunder:-
Utola | Gulab | ________________________________________________________ | | | Ji Ram Uda Malka | Sadhu Ram | __________________________________________ Rulia Ram @ Ruhla | Balbiri (defendant No. 1) | | Chandrawati (defendant No. 2) | _______________________________________________________ | | | Tejbir Singh Rajesh Somwati (plaintiff) (defendant No. 4) (defendant No. 3)
13. It is evident, from the jamabandi, for the year 1924-25, exhibit P12, that Ji Ram son of Gulab Singh and Mamraj etc. sons of Uda, were recorded to be the joint owners, in joint possession of 255 bighas 17 biswas of land. It is further evident, from the jamabandi, for the year 1985-86, exhibit P10, that Malka, Uda and Ji Ram sons of Gulab, were recorded, to be the joint owners, in joint possession of the land, measuring 259 bighas 1 biswa, in equal shares. Vide mutation No. 564, exhibit P13, the share of Ji Ram, was inherited,by his son Sadhu Singh, in respect of the land, measuring 255 bighas 17 biswas. In the jamabandi, for the year 1936-37, exhibit P1, Sadhu Singh son of Ji Ram alongwith other co-owners Mam Raj etc., was recorded to be the joint owner, in joint possession of 311 bighas, 7 biswas of land. The same entries, were repeated, in the jamabandi, for the year 1944-45, RSA No. 4037 of 2005 8 exhibit P2. The share of Sadhu Singh, in the joint land, measuring 311 bighas 7 biswas, was inherited by his son Rulia Ram, vide mutation No. 951, exhibit P4, on his (Sadhu Singh's), death, on 12.08.44. During the course of consolidation, in lieu of the old khasra numbers, new khasra numbers, were carved out. The same, are reflected, in the jamabandis, for the year 1954-55, exhibit P3 and 1970-71, exhibit P5, in which, Rulia Ram son of Sadhu Singh, was recorded, to be the owner of the suit land. In the jamabandi, for the year 1954-55, exhibit P3, the old khasra numbers, as also the new khasra numbers, which were carved out, in place of the same are mentioned. The new khasra numbers, are also mentioned, in the jamabandi, for the year 1970-71, exhibit P5. The Counsel for the appellants, no doubt, submitted that the old khasra numbers, reflected in P1, jamabandi, for the year 1936- 37, are 636, 639, 648, and, 681 etc., whereas, the old khasra numbers, in the jamabandi, for the year 1954-55, exhibit P3, are mentioned, as 404, 405, and, 409 etc. He further submitted that, as such, the property, in dispute, was not connected with the property, which was held by Rulia Ram @ Ruhla, before consolidation. In the consolidation the land was put into hotch-potch. The correct position of the land which was allotted to Rulia Ram, in lieu of the old khasra numbers, is reflected in P3 and P5, referred to above. The old and the new khasra numbers are corrected. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The property, was inherited, by way of natural succession, by Rulia Ram @ Ruhla, from his father Sadhu Singh, who inherited the same, from his father Ji RSA No. 4037 of 2005 9 Ram. Any property,which is inherited, from father, grand-father, or great-grand-father, by way of inheritance, by the son, grand-son or the great grand-son constitutes ancestral co-parcenary property. Thus, it was proved, that the property, in dispute, was the ancestral co- parcenary property, in the hands of Rulia Ram @ Ruhla, now deceased.
14. The next question, that arises, for consideration, is, as to whether, the property, which was Joint Hindu Family co-parcenary property, in the hands of Rulia Ram, was to be inherited, by way of natural succession, as per Section 8 of the Act, or according to Section 6 of the Act. In Smt. Raj Rani Vs. The Chief Settlement Commissioner, Delhi, AIR, 1984 (SC), 1234, such a question, came up for decision. The principle of law, laid down, in the aforesaid case, was to the effect that the co-parcenary property, in the hands of the last male holder, who dies, after the coming into force the Act, shall devolve according to Section 6 (Explanation 1) of the Act. In that case, a Hindu died, after the enforcement of the Act,leaving behind him, his widow, three sons and three daughters. It was held, that the devolution of his co-parcenary property, would be, in accordance with explanation 1 to Section 6 of the Act. It was further held that, thus, he would have got 1/5 share on partition, between him, and his wife, and three sons. If once his share was determined to be 1/5 before his death, the same would devolve upon his widow, three sons and three daughters equally and, thus, the share of each one of them would be 1/5 x 1/7 i.e. 1/35 share each and as the widow had inherited the interest of her husband RSA No. 4037 of 2005 10 after his death her share would be augmented by 1/5 i.e. 1/35 + 1/5 = 8/35. In the present case, Rulia Ram @ Ruhla, died, in the year 1982, i.e. after coming into force the Act. Had the partition taken place, between him, and his son Tejbir Singh, during his life time both the widows, would have been entitled to 1/3 share together, whereas the share of Tejbir Singh would have been 1/3 and the share of Rulia Ram would have been 1/3. Once the interest of Rulia Ram @ Ruhla, was determined, to the extent of 1/3 share, in the property, in dispute, in the notional partition, his interest, would be inherited by his son Tejbir Singh and two daughters, in equal share, and two widows, to the extent of one share together. In this manner, Tejbir Singh son, had become the joint owner, in joint possession, to the extent of 1/3 + 1/12 share (i.e. 5/12 share), whereas, both the widows, became joint owners, in joint possession, to the extent of 1/3 + 1/12 share (5/12 share), and, both the daughters, became the joint owners, in joint possession, to the extent of 1/12 share each (2/12 share). While holding, that the property, in dispute, was the ancestral co-parcenary property, the first Appellate Court, failed to consider that, had the partition been effected, during the life time of Rulia Ram @ Ruhla, both his widows, would have also been entitled to 1/3 share together. It is, therefore, held that, the property, in dispute, was to devolve according to explanation I to Section 6 of the Act. To this extent, the findings of the first Appellate Court, are liable to be modified.
15. The Counsel for the appellants, however, placed reliance, on Sheela Devi and others Vs. Lal Chand and another, JT, 2006 (12) RSA No. 4037 of 2005 11 SC, 610, and, Commissioner of Wealth Tax, Kanpur etc. etc. Vs. Chander Sen etc., AIR, 1986 (SC), 1753, in support of his contention, that after coming into force the Act, the property, in the hands of the male holder, would not be the co-parcenary property, but, would be his exclusive property, and inheritance, to the same, would be according to Section 8 of the Act. No doubt, the Old Hindu Law, after coming into being, the Act, has been codified, to the extent mentioned therein. However, even, at the time of framing the Act, the concept of Joint Hindu Family co-parcenary property, was retained, by the law framers. It was, under these circumstances, that Section 6 of the Act, was incorporated, in the said Act, which relates to the mode of devolution of the property, which was co-parcenary, in the hands of the male holder. It, therefore, could not be said, that the entire concept of the co- parcenary property, was completely eliminated or obliterated, while framing the Act. Had it been the position, the Parliament, would not have thought of amending the Act, in the year 2005. According to the amended Act of 2005, the concept of co-parcenary property, was deleted. So the amended Act of 2005, was prospective and not retrospective. In the instant case, the succession opened, in the year 1982, when Rulia Ram @ Ruhla, died. So the provisions of the amended Act of 2005, would not have any application, to the same. The perusal of the facts of both the aforesaid authorities shows, that the same are clearly distinguishable, from the facts of the instant case. Even, in both these cases, it was no where held, that Section 6 of the Act, would not be applicable, for the devolution of co-parcenary RSA No. 4037 of 2005 12 property, in the hands of the male holder. No help, therefore, can be drawn, by the Counsel for the appellants, from these cases. The submission of the Counsel for the appellants, thus, being without merit, must fail and stands rejected.
16. The substantial questions of law, are answered, in the manner, depicted above.
17. For the reasons recorded above, the appeal, is disposed of, in the manner, that the same, is dismissed with costs, with the modification of shares, in the manner that Tejbir Singh, plaintiff/respondent, is held to be the joint owner, in joint possession, to the extent of 5/12 share, whereas, Balbiri Devi widow of Rulia Ram @ Ruhla, appellant No. 1, and, Chandrawati, respondent No. 2, another widow of Rulia Ram @ Ruhla, are held to be the joint owners, in joint possession, to the extent of 5/12 share together, and, Somwati, appellant No. 2, and, Rajesh Kumari, appellant No. 3, daughters of Rulia Ram @ Ruhla, are held, to be the joint owners, in joint possession, to the extent of 1/12 share each (2/12 share), in the property, in dispute, and the impugned mutation No. 2014 dated 23.03.83, exhibit P6, is declared, to be illegal, null and void, and, set aside.
08.01.2010 (SHAM SUNDER) Amodh JUDGE