Himachal Pradesh High Court
Dhanwant Singh & Ors vs Smt. Prem Kaur & Ors on 17 November, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 122 of 2008.
Reserved on: 16.11.2015.
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Decided on: 17.11.2015.
Dhanwant Singh & ors. ......Appellants.
Versus
Smt. Prem Kaur & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
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For the appellant(s): Mr. Suneet Goel, Advocate.
For the respondents: Mr. Mehar Chand Thakur, Advocate, for respondents No. 1 to 3.
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Justice Rajiv Sharma, J.
rt This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Solan (FTC), H.P., (Camp at Nalagarh), dated 23.11.2007, passed in Civil Appeal No. 4 FTN/13 of 2007.
2. "Key facts" necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs), have instituted suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants).
According to the averments made in the plaint, the land measuring 3 bighas 10 biswas being 70/220 share out of total land measuring 11 bighas presently comprised in Khewat Khatauni No. 20/23, bearing Kh. No. 223, Kita 1, as entered in the copy of Jamabandi for the year 1995-96 is situated in village Theda, Pargana Dharampur, Tehsil Nalagarh, Distt. Solan, H.P. (hereinafter referred to as the suit land). The plaintiffs and defendant No. 2 are Hindu Rajput and constitute joint Hindu Mitakshra Coparcenary Family.
The pedigree table was also reproduced in the plaint. The property was ::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 2 previously owned by the common ancestor Ganga Ram. He died on 1.2.1951 and suit land was inherited by Banarsi Dass, son of Ganga Ram. Banarsi .
Dass died on 4.7.1978. The property in the hands of Banarsi Dass was joint Hindu coparcenary property and the plaintiffs have acquired the right in the coparcenary property at the time of their birth. Defendant No. 2 Rattan Singh was Karta of Joint Hindu Family and he was performing all responsibilities as Karta. No partition has taken place. Defendant No. 2 was of spendthrift and habitual drinker. After the death of Banarsi Dass, defendant No. 2 conspired and colluded with defendant No. 1 by taking undue rt advantage of the revenue entries and executed sale deed No. 566 dated 11.7.1986 without any legal necessity and benefit of the estate for consideration of Rs. 30,000/-. The sale deed executed in favour of defendant No. 1 was wrong, illegal and void.
3. The suit was contested by defendant No. 1 (since deceased).
According to him, the plaintiffs and defendant No. 2 were living jointly and have derived benefit from the sale consideration of suit land by way of its investment in M/S Dashmesh Brick Kiln Association, Theda, PO Manpura, Tehsil Nalagarh, Distt. Solan, H.P. It was denied that plaintiffs constitute a joint Hindu family with defendant No. 2. It was denied that suit land was previously owned by Ganga Ram. It was also denied that after the death of Ganga Ram, the suit land was inherited by Banarsi Dass. Defendant No. 2 was absolute co-owner in possession to the extent of half share of the suit land at the relevant time of sale deed.
::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 34. Replication was filed. The learned Civil Judge (Sr. Divn.) Nalagarh, framed the issues on 9.2.1999 and additional issues were framed .
on 2.6.2000. The suit was dismissed vide judgment dated 30.3.2007. The plaintiffs, feeling aggrieved, preferred an appeal against the judgment and decree dated 30.3.2007. The learned Addl. District Judge, (FTC) Solan, (Camp at Nalagarh), dismissed the same on 23.11.2007. Hence, this regular second appeal.
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5. The regular second appeal was admitted 13.10.2008 on the following substantial question of law:
rt "1. Whether the impugned judgment and decree as passed is the result of complete misreading and misinterpretation of the evidence on record, especially in view of the proved fact that the suit property had devolved upon Banarsi Dass from his father Ganga Singh and there upon his son Rattan Singh who formed a coparcenary alongwith the defendants?"
6. Mr. Suneet Goel, Advocate, appearing on behalf of the appellants, on the basis of the substantial question of law framed, has vehemently argued that both the Courts below have misconstrued the oral as well as documentary evidence. According to him, the property in the hands of Rattan Singh was not self acquired property. On the other hand, Mr. Mehar Chand Thakur, Advocate, has supported the judgments and decrees of both the Courts below.
7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully.
::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 48. It is evident from the notification dated 7.6.1951 issued by the Government of Patiala and East Punjab States Union that Ala Malkiat rights .
were relinquished w.e.f. 20.8.1948 in favour of Adna Malkiat. Admittedly, Ganga Ram was Adna Malik and he acquired the full proprietary rights after the notification dated 7.6.1951. Thus, the land in the hands of Ganga Ram was self acquired property. After the death of Banarsi Dass, mutation No. 304 was sanctioned and defendant No. 2 Rattan Singh alongwith his brother of Kesari Singh inherited the estate of Banarsi Dass on the basis of oral Will.
Purportedly, this was done under Section 8 of the Hindu Succession Act, rt 1956. After the death of Ganga Ram, the property was inherited by Banarsi Dass. Rattan Singh has alienated the suit property vide sale deed dated 11.7.1986. The plaintiffs have failed to prove that the property was coparcenary property. It was self acquired property of Rattan Singh. The sale deed is Ext. D-1. Thus, the suit land cannot be held to be Coparcener property.
9. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-
grandsons of the holder of the joint property for the time being. In other words, the three generations next to the holder is unbroken male descent.
The property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property. The property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-
::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 5grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth.
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10. PW-1 Dhanwant Singh, during the course of cross-examination has admitted that defendant No. 2 never played gambling nor he used to take any alcohol in his presence. He admitted that his father had floated a firm in the name and style of M/S Dashmesh Brick Kiln in the year 1984. It was also admitted by PW-2 that Rattan Singh was in government service and he of had raised loan from Punjab National Bank in the name of M/S Dashmesh Brick Kiln. DW-2 Thona Ram testified that prior to sale Rattan Singh rt contacted him and expressed his willingness to sell the suit land. DW-3 Ram Prakash Sharma deposed that on 11.7.1986, the sale deed Ext. D-1 was scribed by him on the instructions of Rattan Singh and Rattan Singh has sold 3 bighas 10 biswas of land to Jeet Singh for consideration of Rs. 30,000/- in the presence of Hukan Chand (Lumberdar) and Beli Ram. He also produced the entry in the original register of sale deed Ext. D-1. It is evident from the recitals of sale deed Ext. D-1 that it was executed to meet out the family expenses. PW-1 Dhanwant Singh, in his cross-examination has also admitted that his marriage and the marriage of his sister were performed by his father late Rattan Singh during his life time. The plaintiffs have not led any cogent and reliable evidence to prove that defendant No. 2 was spendthrift. The sale deed was executed on 11.7.1986 and the suit was filed on 10.7.1998. The defendants have duly proved that the sale deed was for legal necessity as defendant No. 2 was running Brick Kiln in the name and style of M/S Dashmesh Brick Kiln and he had also raised loan for that ::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 6 purpose. The factum of Will has been mentioned in mutation Ext. P-5. Late Jeet Singh is proved to be the bonafide purchaser of the suit land and has .
purchased the same for consideration of Rs. 30,000/-.
11. In the case of Budh Singh alias Nachhatar Singh and others vrs. Shrimati Gurdev Kaur and others, reported in 1968 Curr. L.J. (Pb. & Hyna,.) 27, the learned Single Judge of the Punjab and Haryana High Court has held that Ala Malik's rights are merely a burden on the land so far as the of Adna Malik is concerned. The abolition of Ala Malik's right merely clears off that burden. In no manner, the rights of the Adna Malik are enlarged. The rt analogy of ancestral occupancy rights, becoming the self-acquired property of the occupancy tenant acquiring Malkiat rights has nothing to do with this case. It also does not, in any manner, matter whether the Ala Malkiat rights are of one category or the other.
12. This judgment was considered by this Court in the case of Ranvinder Singh vrs. Raghunath Singh and others, reported in 1998(1) S.L.J. 423. The learned Single Judge has held as follows:
"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 he 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 ........................"::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 7
It was further held in para 7 that :
"The two words 'Ala Malik' and 'Adna Malik' 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 title as Ala Malik had been extinguished and the Adna Malik rights in the land have been enlarged and ripened into full ownership .............................."
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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 rt 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."
13. In the case of Commissioner of Wealth Tax, Kanpur etc. etc. vrs. Chander Sen etc., reported in AIR 1986 SC 1753, their lordships of the Hon'ble Supreme Court have held that under the Hindu Law, the son would inherit the property of his father as karta of his own family. But, the Hindu Succession Act has modified the rule of succession. The Act lays down ::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 8 the general rules of succession in the case of males. It has been held as follows:
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" 19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
20. In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that of when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old rt Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu law 15th Edn. dealing with section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition pages 918-919.
22. The express words of section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."
14. In the case of Yudhister vrs. Ashok Kumar, reported in AIR 1987 SC 558, their lordships of the Hon'ble Supreme Court have held that the property devolved on Hindu under Section 8 would not be HUF in his hand vis-à-vis his own sons. It has been held as follows:
::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 9"10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, [1986] 3 SCC 567 where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's .
property and become part of the coparcenary. His fight accrues to him not on the' death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenev- er the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affect- ed by section8 of the Hindu Succession Act, 1956 and, there- fore, after the Act, when the of son inherited the property in the situation contemplated by section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of section 6 of the Hindu Suc- cession Act, 1956 and. the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's rt on Hindu Law 12th Edition pages 918919. Shri Banerji relied on the said obser- vations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a- vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was fight in holding that the respondent was a licensee of his father in respect of the ancestral house."
15. In view of the ratio of these judgments, after the abolition of PEPSU Ala Malkiat Rights Act, where the Adna Malik has acquired absolute rights in the property, the property has been held to be his self acquired property and it cannot be held to be Joint Hindu Family property and Coparcenary property. Both the Courts below have correctly appreciated the oral as well as documentary evidence on record. The plaintiffs have failed to discharge onus that the suit property was coparcenary property. The substantial question of law is answered accordingly.
::: Downloaded on - 15/04/2017 19:21:25 :::HCHP 1016. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
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November 17, 2015, ( Rajiv Sharma ),
(karan) Judge.
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