Himachal Pradesh High Court
Master Abeer Singh vs Smt. Savita Sharma & Others ... on 8 January, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
OMP No.222 of 2018 in
Civil Suit No.27 of 2018
.
Reserved on : 26.12.2018
Date of Decision : 8th January,2019
__________________________________________________________
Master Abeer Singh ........ Applicant/Plaintif
Versus
Smt. Savita Sharma & others ....Non-applicants/Defendants
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
r to
For the Plaintiff: Mr. Ajay Kumar, Senior Advocate
with Mr. Dheeraj K. Vashishat,
Advocate.
For the Defendants: Mr. Sudhir Thakur, Advocate, for
defendants No.1 to 5 and 9 to 11.
Mr. Vipin Pandit, Advocate, for
defendants No.6 and 7.
Mr. Mukesh Thakur, Advocate, for
respondent No.8.
Mr. S.C.Sharma & Mr. Dinesh Thakur,
Additional Advocate Generals, for
the respondent-State.
__________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant application filed under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, prayer has been made on behalf of applicants-
defendants No.1 to 5 and 9 to 11( hereinafter referred 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 2to as the defendants"), praying therein for rejection of plaint having been filed by the non-applicant(hereinafter .
referred to as the "plaintiff"), Master Abeer Singh, minor son of defendant No.7, who has filed the civil suit for declaration through his next friend/natural guardian Smt. Deepali Thakur(mother).
2. Defendants have averred in the application that since plaintif was not born at the time of death of Shri Khayali Ram, great grandfather and Smt. Damyanti great grandmother of the plaintif, he has no right, whatsoever to claim rights in the property of above named persons, which has been otherwise ordered to be distributed between all the applicants-defendants No.1 to 5 including defendants No.6 to 8 in terms of compromise arrived inter se parties before the Lok Adalat. Defendants have further averred in the application that Sh. Khayali Ram, great grandfather and Smt. Damyanti great grandmother of the plaintif had died on 9.12.1997 & 20.4.2007 respectively, and at that time plaintif was not born and as such, he is not entitled to claim any share and right in the property of above named persons, especially when he was not born on the date of opening of Succession of above named persons.
::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 3Defendants have further averred that at present plaintif is living with defendants No.6 and 7, who have already .
received amount in terms of compromise and decree passed by Lok Adalat and same is being used for the benefit of the plaintif. At the time of birth of the plaintif, which took place on 25.3.2010, Succession of Smt. Damyanti Thakur and Sh. Khayali Ram was over and as such, plaintif can claim only to the extent of share of his father i.e. defendant No.7 and not over and above of his share. Defendants have further averred that parties to the suit are litigating for the last more than 10 years and settlement has arrived at between the parties, pursuant to whereof partition proceedings are in process, in accordance with law and as such, present suit which has been filed solely with a view to defeat the award passed by the Lok Adalat, deserves to be dismissed.
3. As per Section 41-B of Specific Relief Act, no injunction can be granted to restrain any person from instituting or prosecuting any proceedings in any Court not subordinate to that from which the injunction is sought.
Apart from above, defendants have averred that plea taken by the plaintif is not tenable in view of the amended ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 4 Hindu Succession Act,2005 whereby as per Section 6, daughters are also treated as coparcener in the .
coparcenary property, which is not partitioned as per law.
Lastly, defendants have averred that plaintif has not disclosed any cause of action against the present defendants and as such, suit without cause of action deserves to be dismissed. Moreover, suit is against the award of Lok Adalat, which cannot be laid challenge in any court of law and as such, same deserves to be rejected outrightly. Defendants have averred in the application that plaintif for the purpose of acquiring jurisdiction of this Court, has assessed the value of the suit at Rs.50 lacs, but there is no specific averment with regard to basis for calculating and maintaining the suit before this Court.
4. Plaintif by way of reply has opposed the prayer made by the defendants in the aforesaid application and has categorically stated that averments made in para 4 to 6 of the plaint are very clear, comprehensible and explicit, which may be read as part and parcel of the reply. As per plaintif, he was not a party to the earlier suit and therefore any compromise made in that suit to his detriment is not binding upon him. He has further stated that the suit ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 5 property i.e. subject matter of the case is coming in the family from Sh. Ram Krishan son of Shri Bairagi Ram, who .
was great great grandfather of the plaintif and as such, character, nature and attribute of the suit property is that of Joint Hindu Family Ancestral Property of the plaintif and defendants No. 6 to 8. As per plaintif, half share in the ancestral property of Shri Khayali Ram (presently measuring 82 bighas) was owned by Sh. Baldev Singh Thakur and the other half by Sh. Khayali Ram. After the death of Sh. Baldev Singh Thakur, he was replaced by his son under the rule of survivorship and the Joint Hindu Family Coparcenary consisted of Sh. Khayali Ram and his grandson Shri Sumit Thakur (defendant No.7), each having half share in the ancestral property measuring 82 bighas.
5. Plaintif has further averred in the reply that on the death of Sh. Khayali Ram i.e. on 9.12.1997, his half share in the suit property was devolved upon his legal heirs i.e. his wife, five daughters and on the wife, son and daughter of Sh. Baldev Singh i.e. predeceased son of Sh.
Khayali Ram in equal shares, whereas defendant No.7 continued to be owner of ½ share in the ancestral property, which he had acquired by birth and as such, plaintif on his ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 6 birth acquired 1/4th share in the same by operation of law again under the rule of survivorship. Therefore, share of the .
plaintif in the suit property belonging to the Hindu Undivided Family ( for short "HUF") of Sh. Khyali Ram, measuring 82 bighas is 1/4th undivided share, which he inherited by birth being member of the "HUF" coparcenary.
Plaintif has further averred in the reply that entries showing Sh. Khayali Ram, as sole owner of the land till his death are factually wrong, illegal, null and void and not binding on the plaintif. He has claimed that Sh. Khayali Ram was holding the property not as a sole owner, but as a Karta of the Joint Hindu Family Coparcenary as such, mutation on the death of Sh. Khayali Ram was wrongly and illegally attested in favour of his legal heirs, whereas in fact ½ share belonged to defendant No.7 by birth and rest ½ share of Sh. Khayali Ram should have been attested in favour of his legal heirs. Plaintif further averred that the nature and character of the property measuring 82 bighas standing in the name of Sh. Khayali Ram and Smt. Damyanti Thakur was that of "HUF" ancestral property and not personal property of Sh. Khayali Ram. Plaintif has further averred that Interpretation being given by the ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 7 plaintif to Section 6 of the Hindu Succession Act, 1956, is totally incorrect, erroneous, fallacious and illegal. Sh.
.
Khayali Ram died in December, 1997 and under old unamended Section 6 read with section 8 of the Hindu Succession Act, 1956, the interest held by Sh. Khayali Ram devolved upon his legal heirs under the doctrine of fictional partition. Defendants No.1 to 5 were not members of the coparcenary when Sh. Khayali Ram died and they cannot claim to be coparceners with their nephew Sh. Sumit Thakur, who continued to be Karta of his coparcenary with his son Sh. Abeer Singh(plaintif). Plaintif has further averred that the averments made in the plaint and the supporting documents filed therewith, clearly disclose a strong and prima-facie cause of action in favour of the plaintif and as such, application filed on behalf of the defendants under Order 7 Rule 14 CPC, praying therein rejection of plaint deserves to be rejected.
6. I have heard learned counsel representing the parties and gone through the record carefully.
7. Before adverting to the factual matrix of the case, it would be profitable to reproduce provisions contained in Order VII Rule 11 CPC hereinbelow:-
::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 811. Rejection of plaint-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
.
(b) where the relief claimed is undervalued, and the plaintif, on being required by the Court to correct the valuation within a time to be fixed by the court,fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintif,on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law:
(e) Where it is not filed in duplicate;
(f) where the plaintif fails to comply with the
provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded is satisfied that the plaintif was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintif.
8. Careful perusal of aforesaid provisions of law, clearly suggests that plaint can be rejected when it does not disclose a cause of action, "where relief claimed is undervalued and the plaintif, on being required by the Court to correct the valuation within a time to be fixed by ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 9 the Court, fails to do so, where the relief claimed is properly valued and plaint is returned upon paper insufficiently .
stamped and the plaintif, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so. Where the suit appears from the statement in the plaint to be barred by any law, where it is not filed in duplicate, where the plaintif fails to comply with the provision of Rule 9.
9. Expression 'cause of action' has been very accurately decided by the Hon'ble Apex Court in case titled as The Church of Christ Charitable Trust & Education Charitable Society , represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee 2012(6)JT 149 :2012 AIR SCW,4136 wherein Hon'ble Apex Court has laid down that the"cause of action is a bundle of facts which taken with the law applicable to them gives the plaintif the right to relief against the defendant. Every fact which is necessary for the plaintif to prove to enable him to get a decree should be set out in clear terms. It must include some act done by the defendant since in the absence of such act no cause of action can possibly accrue. Though, ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 10 there are number of judgments passed by the Hon'ble Apex Court laying therein parameters/ factors to be borne in .
mind by courts while considering an application filed under Order VII Rule 11 CPC, but at this stage, this Court deems it fit to take note of latest judgment rendered by Hon'ble Apex Court in case titled Kuldeep Singh Pathania versus Bikram Singh Jaryal, 2017(5) Supreme Court Cases 345.
Relevant para No.11 of the judgment is reproduced as under:
"11. In Mayar (H.K) LTD. v. Vessel M.V. Fortune Express (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, para 12 reads as follows:(SCC P.115).
12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the power under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 11 to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, .
undue influence or of the same nature. So long as a plaint discloses some cause of action which requires determination by the Court. The mere fact that in the opinion of the Judge the plaintif may not succeed cannot be a ground for rejection of the plaint."
(See:-AIR 2012 Supreme Court cases 3023 also.
10. It is apparent from the aforesaid exposition of law that plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of plaint, rather court while considering the application filed under Order 7 Rule 14 CPC is required to read entire plaint as a whole to arrive at a conclusion whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising power under Order 7 Rule 11 of the Code.
Similarly, whether the plaint discloses a cause of action, is a question of fact, which needs to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. Hon'ble Apex Court in the judgment referred supra has categorically laid down that a cause of action is a bundle of facts, which are required to ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 12 be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the .
evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. In case plaint discloses some cause of action, which certainly requires determination by the Court, the mere fact that in the opinion of the Judge the plaintif may not succeed cannot be a ground for rejection of plaint.
11. Now this Court shall proceed to examine and consider the prayer made in the application in the light of the provisions contained under Order 7 Rule 11 CPC as well as law laid down by the Hon'ble Apex Court (supra).Careful perusal of plaint having been filed by the non-application/ plaintif, who is minor son of defendant No.7, clearly suggests that he has filed the suit through his next friend i.e mother, praying therein following reliefs:-
"(a) that the suit property is a Joint Hindu family ancestral property and he has got ¼th share in the same;
(b) declaration to the efect that the compromise decree dated 11.3.2017 passed by Lok Adalat in Civil Suit No.107/1 of 2010 and counter claim No.156/ 2007 is illegal, null and void and ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 13 without jurisdiction and not binding upon the plaintif;
(c) a declaration to the efect that the existing .
revenue entries qua the suit property are factually and legally incorrect, null and void and not binding upon the plaintif and further in the partition proceedings pending before the A.C.1st Grade Solan qua the suit property the plaintif is entitled to ¼th share;
(d) and lastly a decree for permanent perpetual injunction restraining the defendants from changing the nature of the suit property or from transferring or alienating the same;"
12. Close scrutiny of the averments contained in the plaint reveals that plaintif has claimed that late Sh.
Khayali Ram, great grandfather of the plaintif, his grandfather Sh. Baldev Singh and his father Sh. Sumit Thakur(defendant No.7) constituted a Joint Hindu Family of which originally Sh. Khayali Ram was the Karta and after his death Sh. Sumit Thakur (defendant No.7) became Karta as Sh. Baldev Singh, who died on 4.7.1987, predeceased his father. It is not in dispute that Sh. Khayali Ram died on 9th December, 1997. Plaintif has also alleged in the suit that very character and nature of the suit property is ancestral Joint Hindu Family coparcenary property, which ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 14 had come into the hands of Sh. Khayali Ram i.e great grandfather of the plaintif from Sh. Ram Krishan, who vide .
family settlement gave the same to his sons on 9.4.1953 including a share of Sh. Khayali Ram and mutation dated 9.4.1953 in this regard was attested in the revenue record.
As per plaintif, Ram Krishan was the father of Sh. Khayali Ram and he on 9.4.1953 in the family settlement , settled the ancestral property inherited by him from his father Sh.
Bairagi Ram in favour of his six sons, namely Khayali Ram, Devi Singh, Chain Singh, Madho Ram, Chattar Singh and Maan Singh. As per plaintif, very origin of the suit property is ancestral because his great grand father Sh. Khayali Ram got the property from his father Sh. Ram Krishan in the family settlement in April, 1953, whereafter Khayali Ram, his son Sh. Baldev Singh and his son Sh. Sumit Thakur (defendant No.7), constituted a Joint Hindu Family.
13. In nutshell, the case as has been projected by the plaintif in the plaint is that suit land was ancestral property in the hands of late Sh. Khayali Ram and the same was owned by Sh. Khayali Ram and his son Sh. Baldev Singh Thakur to the extent of ½ share each i.e. 41.02 bigha approximately both being coparcener. Though, the entire ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 15 land was recorded in the name of late Sh. Khayali Ram, but the same was owned to the extent of ½ share only by him.
.
Late Sh. Khyali Ram and late Sh. Baldev Singh and defendant No.7 constituted a coparcenary and as such, plaintif also acquired right by birth in the ancestral property as coparcener. As per plaintif, after the death of late Sh. Baldev Singh Thakur, land measuring 41.02 bigha, out of the suit land i.e. land owned by Sh. Baldev Singh has been inherited by defendant No.7 to the extent of 20.08 bighas and after the death of late Sh. Khayali Ram, Succession with regard to land measuring 41.02 bigha opened and plaintif also acquired right in the same by birth.
14. To the contrary, defendants No. 1 to 5 and 9 to 11 in their written statement have denied the factum of existence of Joint Hindu Family. They have denied that late Sh. Khayali Ram was Karta of the Hindu Joint Family. They have also denied that after the death of Sh. Khayali Ram, Sumit Thakur (defendant No.7), who is son of Sh. Baldev Singh i.e. predeceased son of Sh. Khayali Ram, became Karta of the Joint Hindu Family by operation of law. In para-3 of the written statement, defendants have asserted that ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 16 suit property is not ancestral Joint Hindu Family property, but they have also not disclosed the source from which .
property travelled to Khayali Ram. There is no assertion in the written statement that Khayali Ram got this property by alleged gift from his father, but they have denied that Khayali Ram got property from his father, whereas case of the plaintif is that in the family settlement done by Sh.
Ram Krishan, suit property came to the hands of Khayali Ram, which assertion/submission of plaintif is supported by the revenue record placed on record pertaining to the year 1951-52 onwards. In 1951-52 Sh. Ram Krishan is shown to be owner of the suit property and in 1953 he transferred the property in the name of his sons including Khayali Ram i.e. great grand father of the plaintif by way of gift.
15. Mr. Sudhir Thakur, learned counsel representing the applicants/defendants, vehemently argued that bare perusal of the plaint having been filed by the plaintif, suggests that it does not discloses any cause of action. He further contended that suit is against the award of Lok Adalat and as such, same is not maintainable. But this Court having carefully perused the plaint in its entirety is not in agreement with the aforesaid submissions having ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 17 been made by learned counsel for the applicants/ defendants because by way of present suit plaintif has .
sought declaration to the efect that suit property is Joint Hindu ancestral property and he has got ¼ th share in the same. No doubt by way of suit at hand, plaintif has also sought declaration to the efect that compromise deed dated 11.3.2017, passed by Lok Adalat is wrong, illegal, null and void and without jurisdiction and not binding upon the plaintif, but that cannot be a ground to conclude at this stage that suit having been filed by the plaintif is not maintainable and it deserves to be rejected at this stage.
16. Careful perusal of plaint filed by the plaintif vis-
a-vis written statement having been filed by the defendants,certainly compels this Court to agree with the contention of Mr. Ajay Kumar, learned Senior Advocate representing the plaintif that plaintif has cause of action in his favour to file suit at hand because factum with regard to plaintif being great grand son of Sh. Khayali Ram is not in dispute, rather claim as put forth by the plaintif in the plaint is sought to be opposed by the applicants/defendants on the ground that since plaintif was not born at the time of death of his great grandfather i.e. Sh. Khayali Ram and ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 18 great grandmother Damyanti, who died on 9.12.21997 and 20.4.2007 respectively, he has no right to claim any right in .
the property in question, which question definitely needs to be decided in the present suit.
17. As per Mr. Sudhir Thakur, learned counsel representing the applicants-defendants, succession of Sh.
Khayali Ram and Smt. Damyanti Thakur was already over at the time of birth of plaintif and as such, plaintif at best can claim his share from his father i.e. defendant No.7 and not from the share already succeeded by the applicants/ defendants from their parents Sh. Khayali Ram and Smt. Damyanti Thakur, but this Court is of the view that aforesaid plea taken by the applicants/ defendants may not be relevant/ crucial at this stage as far as decision on the application having been filed for rejection of plaint filed by the plaintif is concerned because at this stage, court while considering application under Order 7 Rule 11 CPC, is only required to see whether plaint discloses any cause of action, which being question of fact can only be answered by Court after having carefully gone through the averments made in the plaint in its entirety. Hon'ble Apex Court in the judgment (supra) has categorically held that cause of ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 19 action is bundle of facts, which are required to be proved for obtaining relief and for the said purpose the material .
facts are required to be stated. In case Court after having carefully perused the averments contained in the plaint arrive at a conclusion that plaint discloses some cause of action, application under order 7 Rule 14 CPC, praying therein for rejection of plaint cannot be accepted.
18. Revenue record placed on record by the plaintif clearly reveals that Sh. Ram Krishan by way of gift settled the ancestral property inherited by him from his father Sh.
Bairagi Ram in favour of his six sons Khayali Ram, Devi Singh, Chain Singh, Madho Ram, Chattar Singh and Maan Singh. Plaintif has specifically stated in the plaint that very character and nature of the property is ancestral and Sh.
Khayali Ram great grandfather of him got it from his father Ram Krishan in family settlement in April, 1953. Though, factum with regard to property being ancestral has been totally denied by the applicants/defendants, but in written statement there is no specific averments qua the source from which Sh. Khayali Ram got the property in question.
19. At this stage, Mr. Sudhir Thakur, learned counsel representing the defendants/applicants while inviting ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 20 attention of this Court to the revenue record placed on record by the plaintif, contended that bare perusal of the .
same suggest that suit property came to the hands of Sh.
Khayali Ram by way of gift and as such, property ceased to be ancestral. He further contended that since property came to the hands of Sh. Khayali Ram by way of gift made in his favour by Sh. Ram Krishan, very character and origin of the property ceased to be ancestral and as such, plaintif has no right to claim share/right in the suit property and the suit having been filed by him deserves to be rejected out rightly.
20. In support of his aforesaid contention, he placed reliance upon upon the judgment rendered by this Court in Pohlo Ram and another versus Manohar Lal and others, 1992(1) Sim. L.C.41, wherein it has been held that in case property is acquired by gift, it ceases to be ancestral except when the gift is made of ancestral property by the donor. The relevant para No.6 and 7 of the judgment are reproduced hereinbelow:-
"6. After Sukhman had contracted second marriage, this deed of gift, on the basis of which the donor made gift of ½ of the property entered in one of the Khewats by retaining the remaining with him ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 21 cannot be said to be tantamounting to acceleration of succession. In order to prove ancestral nature of the land, onus lay heavily upon the plaintifs. The .
Supreme Court in Mara and other v. Mst. Nikko alias Punjab Kaur & another, AIR 1964 SC 1821, in para 7 of its report has held that where lands are so mixed up that the ancestral and non-ancestral properties could not be separated, they must be regarded as non-ancestral unless it is shown, which are ancestral and which are not and the land ceases to be ancestral if it comes to the hand of an owner otherwise than by descent. The land in the present case, which was non-ancestral, did not come in the hands of Durga by descent but came to him on the basis of deed of gift. On a review of various judgments on the point and on the question as to whether gift of the part of the ancestral property made by a donor in favour of his only heir would continue to retain the character of ancestral property, learned Single Judge of Punjab and Haryana High Court in Kapur Chand Major and another vs. Des Raj, 1974 Punjab Law Reporter 522, held that ancestral property as regards sons, means property inherited from a direct male ancestor and as regards collaterals, means the property inherited from a common ancestor. The property ceases to be ancestral if it comes into the hands of an owner otherwise than by descent or by reason merely of his connection with the common ancestor. In case the property is acquired by gift, it ceases to be ancestral except when the gift is made of ancestral property by the donor to the person/ ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 22 persons who would succeed to it by inheritance on his death and the gift amounts to acceleration of succession, that is, the donor completely efaces .
himself and makes a gift of his whole property to the entire body of heirs, who would be entitled to inherit it in the event of his death.
7.In the instant case, it cannot be said that there was any acceleration of succession when Sukhman made a gift of a portion of his property without completely efacing himself. The findings recorded by the courts below holding part of the suit property as non-ancestral do not require any interference in view of the above proposition of law."
21. It is quite apparent from the aforesaid law laid down by this Court that ancestral property as regards sons, means property inherited from a direct male ancestor and as regards collaterals, means the property inherited from a common ancestor. The property ceases to be ancestral if it comes into the hands of the owner otherwise than by descent or by reason merely of his connection with the common ancestor. In the aforesaid judgment this Court has held that in case property is acquired by gift, it ceases to be ancestral except when the gift is made of ancestral property by the donor to the person/persons who would succeed it by inheritance on his death and the gift amounts ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 23 to acceleration of succession, that is, the donor completely efaces himself and makes a gift of his whole property to .
the entire body of heirs, who would be entitled to inherit it in the event of his death.
22. In the case at hand, careful perusal of the revenue record reveals that by way of gift deed, Sh. Ram Krishan settled the ancestral property inherited by his father Sh. Bairagi Ram in favour of his sons namely Khayali Ram,Devi Singh, Chain Singh, Madho Ram, Chattar Singh and Maan Singh, meaning thereby he completely efaced himself and made gift of his whole property to the entire body of his heirs, who would have been otherwise entitled to inherit it in the event of his death. It is not in dispute that in 1953 daughters had no right to inherit the ancestral property and otherwise also there is nothing on record to suggest that Sh. Bairagi Ram had other legal heirs save and except six sons, named hereinabvoe, and in whose favour he made gift of his whole property.
23. Pleadings adduced on record by both the parties reveal that prior to filing of the instant suit by the plaintif, applicants/defendants No. 2 to 4 had filed Civil Suit No.107/1 of 10/07 (old No.92/1 of 2007) against non-
::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 24applicants/defendants No. 1 to 6 and 8 in the Court of Civil Judge (Senior Division) Solan, titled as Saroj verma and .
others versus Smt. Sudesh Thakur and others, for permanent prohibitory injunction and declaration. In the aforesaid suit defendants No. 6 to 8 in the present suit( who were defendants No.1 to 3 in that suit) filed written statement-cum- counter claim, which was registered as counter claim No.156/1 of 2007, claiming therein that suit land is ancestral property of counter claimants. Aforesaid defendants further claimed that Counter claimant No.2 constituted coparcenary with his grandfather Sh. Khayali Ram. In para-4 of the plaint of the instant suit having been filed by the plaintif, he has reproduced para-2 of the written statement- cum- counter claim of defendants No.1 to 3 of that suit( defendants No.6 to 8 in this case) which is being reproduced hereinabove:-
"The suit land was ancestral property in the hands of late Sh. Khayali Ram and the same was owned by Sh. Khayali Ram and his son of Sh. Baldev Singh Thakur to the extent of ½ share each i.e. 41.02 bigha approximately both being coparceners. Though, the entire land was recorded in the name of late Sh. Khayali Ram, but the same was owned to the extent of ½ share only by him. Late Sh. Khayali Ram and late Sh. Baldev Singh and counter claimant No.2 ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 25 constituted a coparcenary and due to the same, the counter claimant No.2 acquired birth right in the ancestral property as coparcener. After the death of .
late Sh. Baldev Singh Thakur, land measuring 41.02 bigha, out of the suit land i.e. land owned by Sh. Baldev Singh has been inherited by claimant No.2 to the extent of 20.08 bighas and 0.07 bigha each by counter claimant No.1 and 3.After the death of late Sh. Khayali Ram, succession with regard to land measuring 41.02 bigha opened"
24. Careful perusal of the contents of aforesaid para of written statement filed by defendants No.6 to 8 in the civil suit having been filed by applicants/defendants No. 6 to 8 suggests that defendants No. 6 to 8 despite having taken specific stand as reproduced hereinabove in detail, entered into the compromise with defendants No. 1 to 5/applicants in the aforesaid civil suit on 11.3.2017.
Plaintif, who had born by that time has specifically stated in the plaint, which is sought to be rejected by applicants/ defendants that defendants No.6 to 8 entered into the illegal and wrong compromise with the applicant/defendant Nos. 1 to 5 surrendering his rights. He has further stated that said compromise jeopardized, sacrificed and wiped out his right in the suit land. Compromise arrived inter se parties is totally detrimental to his interest and therefore, ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 26 is not binding upon him. There appears to be considerable force in the arguments of Mr. Ajay Kumar, learned Senior .
counsel representing the plaintif that defendants No.6 to 8 in the present suit themselves raised the issue that suit property was Joint Hindu Coparcenary Property and even filed counter claim in the same on the basis of such plea and it is not understood that why they abandoned the said plea which is totally against the interest of the minor. This Court is in agreement with Mr. Ajay Kumar learned Senior counsel that the nature, character and origin of the suit property is to be decided, as also the rights, if any, of the plaintif in the suit property in the suit having been filed by him and as such, it cannot be said that there is no cause of action, if any, in favour of the plaintif.
25. In the case at hand, defendants No.6 to 8despite having known that plaintif has acquired right in the property by birth, entered into compromise, binding efect, if any, of the same qua the plaintif is yet to be determined in the present proceedings because undoubtedly plaintif was not party to those proceedings. Though, Section 21(2) of the Legal Services Authority Act, 1987, provides that every award made by the Lok Adalat shall be final and ::: Downloaded on - 14/01/2019 23:00:55 :::HCHP 27 binding on all the parties to dispute and no appeal shall lie to any court against the award, but this Court cannot loose .
the sight of the fact that plaintif herein was not party to the proceedings which led to passing of award by the Lok Adalat. In para-9 of the plaint plaintif has specifically averred that Lok Adalat was not competent to take up the matter which was pending in the regular Court and it had no jurisdiction to deal with the matter and order of compromise passed by it is also nonest and illegal and without jurisdiction. Plaintif has averred that Civil Court and Lok Adalat had not even pecuniary jurisdiction to deal with the subject matter of the earlier suit filed by defendants No. 1 to 5. Bar of Section 21(2), as provided by Legal Services Authority, 1987, to my mind, would not apply to the plaintif as he was not party to the earlier suit, though, this question shall be decided in the main suit, but definitely plaint cannot be rejected solely on this ground.
26. Section 9 of the CPC, clearly provides that Courts shall have jurisdiction to try all the suits of civil nature except those suits, entertainment whereof is expressly or impliedly barred. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court ::: Downloaded on - 14/01/2019 23:00:56 :::HCHP 28 in Ramesh Govindram(deceased by LRs.) vs. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897, wherein it has .
been held as under:-
"5. The well settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressively or impliedly barred. The jurisdiction of Civil Courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil Court. Any such exception cannot be readily inferred by the Courts. The Court would, lean in favour of the construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that civil Court's jurisdiction is ousted."
( See:- AIR 1995 page 2001, titled Most. Rev. P.M.A. Metropolitan versus Moran Mar Marthoma & another & AIR 1975 SC 1126 titled Smt. Ganga Bai versus Vijay Kumar).
27. It may be noticed that Mr. Sudhir Thakur, learned counsel representing the applicants/defendants in support of his contentions, which have been otherwise taken note hereinabove, also placed reliance upon the following judgments rendered by Hon'ble Apex Court in Bhanwar Singh versus Puran and others AIR 2008(2) SC 1490, Uttam versus Saubhag Singh 2016 (1) Apex ::: Downloaded on - 14/01/2019 23:00:56 :::HCHP 29 Courts Judgments SC 619, Commissioner of Wealth tax Kanpur, etc., versus Chander Sen etc., AIR 1986 .
Supreme Court 1753, Shreya Vidyarthi versus Ashok Vidyarthi and others 2016(1) Apex Courts Judgments 263 (S.C.), Mohinder Kaur versus Pargat Singh and others, 2010 (3) Civil Court Cases 072 (P & H) and Sher Singh and another versus Siri Kishan and others,2010 (4) Civil Court Cases 459 (P & H), however, this Court having carefully perused the contents of the same, is of the view that same are not applicable or relevant as far as adjudication of the present application is concerned, wherein admittedly this Court is only called upon to determine whether cause of action, if any, exist in favour of the plaintif, which would entitle him to file civil suit. Needless to say, cause of action is to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. ( Kuldeep Singh case supra). Accordingly, judgments referred hereinabove by learned counsel for the applicants/defendants are not being referred at this stage.
28. Consequently, in view of the above, this Court has no hesitation to conclude that non-applicant-plaintif ::: Downloaded on - 14/01/2019 23:00:56 :::HCHP 30 has cause of action, if any, to file the suit and as such, same is required to be heard and decided on merits.
.
29. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.
Accordingly, the present petition is dismissed being devoid of any merit.
(Sandeep Sharma), Judge 8th January, 2019 (shankar) ::: Downloaded on - 14/01/2019 23:00:56 :::HCHP 31 .
r to ::: Downloaded on - 14/01/2019 23:00:56 :::HCHP