Punjab-Haryana High Court
Krishan Kumar Sharma vs Ashok Kumar Sharma And Anr. on 6 May, 1997
Equivalent citations: (1997)116PLR841
JUDGMENT G.C. Garg, J.
1. Heard. Admittedly, the property in dispute which is anoestcal, was inherited by Harbilas from his father Jagan Ram alias Jagan Nath. Hartbilas has two sons, namely, defendant Krishan Kumar and plaintiff Ashok Kumar besides a daughter Sushila Krishan Kumar filed a suit Somewhere in the year 11980 against his father Harbilas for declaration to the effect that he was the owner in 1 possession of the property in question which fell to his, share in a family settlement, The suit was decreed on account of the statement made, by Harbilas.
2. Ashok Kumar the other son of Harbilas filed a suit for declaration that decree dated 21.1.1980 relating to the property in-dispute was illegal, against law and was not binding on his rights. The trial Court by judgment and decree dated 4.9.1992 dismissed the suit. However,, the appellate court by judgment and decree dated 16.9.1995 allowed the appeal and decreed the suit. This is how one of the defendants has filed the present appeal .
3. During the course of hearing it could not be disputed that Krishan Kumar filed the previous suit against. Herbilas based on a family settlement and on the allegation that the property in dispute fell to his share in the family settlement and that the settlement was oral and that Ashok Kumar was not made a party previous suit.
4. A Hindu even if he is joint, can possess separate property. Such property belongs exclusively to him. No other member of the copardonary, not even his male issue, acquire any interest in it by birth. The owner is entitled to sell, gift or bequeath by will to any person he likes. Such property is not liable to partition amongst coparcenars and on the death of the holder there of, it passes on to his heirs under the Hindu Succession. Act and not by survivorship to the surviving coparcenars.
5. A property held by a female Hindu after the commencement of the Hindu Succession Act is the. exclusive property of such female Hindu and such property can be disposed of by her by sale, gift or bequeath by. a will to a person of her choice.. In the event of her death it shall devolve on her heirs in accordance with the provision made m the Hindu' Succession Act. Situation may however, he different, if a female Hindu holds life interest in a property under a testamentary disposition, as life estate. Property" field by female Hindu cannot be the subject matter of family settlement during her life time though the heirs may partition the same after her death or may have some other arrangement as may be permissible in law, after acquiring a interest in that property.
6. 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. The share of such coparceners increases by deaths and decreases by births. In other words, a coparcener has an interest in the coparcenery property by birth without any specific share till such time the coparceners, decide to partition the property. On such decision he acquires a definite, share in the property though partition may not have been effected by meats and bounds. Females are not coparceners under the Mitakshara law though, on partition, mother is entitled to a share equal to that of son and to hold that share separately even' from her husband.
7. Property in which a coparcener has an interest by birth, broadly speaking, is the ancestral property and devolves by survivorship on the male members, in equal shares besides properties acquired by the members of a joint family with the aid of ancestral property. Such property also acquires the status of the joint family property. Separate property of a coparcener thrown into the common hatch patch also acquires the character of joint family property. The above property in general is known as coparcenery, property in which a coparcener has an interest by birth and on partition is entitled to a share.
8. On a partition between the members of a joint family, shares are allotted according to the rules as detailed in paragraph 321 of Hindu Law.
9. As regards partition, no act done by any member of a joint family, can operate as a partition, unless it has been done with the intention to put an end to his status as a coparcener and acquire a status, that is, the statue of a separate owner.
10. Once coparceners decide to separate their interest in the coparcenery property by partition, it is open to them to effect partial partition also, but once they decide to partition, it must be clear to them as to which property or properties are the subject matter of partition and who are entiteld to a share on partition: Thus a family settlement takes place amongst the coparceners when they decide to partition the Coparcenery properties amongst the members to receive the share. Thus all the heads of the branches, females who are entitled to a share are entitled to represent at the time of partition or in other words ; are necessary parties in a suit. In the absence of necessary parties, or in the absence of joining the necessary parties to the partition proceedings, the partition of coparcenery property cannot be given effect to in' it's true perspective. All the members entitled to a share must be represented either expressly or impliedly in partition proceedings, may be in a private partition or partition through court.
11. In the present case the property in dispute is Joint Hindu Family property as this is the conceded case of the parties. Ashok Kumar and Krishan Kumar sons of Harbilas are the members of the coparcenery along with their father. As already noticed, a family settlement pre-supposes that all the members of the coparcenery mutually agreed to distribute the coparcenery proeprty amongst themselves or that the Karta decided to divide the Hindu Undivided family property amongst the coparceners or the persons entitled to receive a share in it during his life time. It is open to a coparcener to relinquish his share in the coparcenery property in favour of the other coparceners at the time of partition. The family settlement comes into being when coparcenery property is divided amongst the coparceners and other members entitled to receive a share. This family settlement can be oral or in writing. It is, however, not conceiveable that family settlement can come, into being without associating all the coparceners therewith or in the absence of one or two of those coparceners or without their knowledge, In the present case, it is not disclosed and rather it is the admitted case that date of family settlement had not been disclosed in the previous suit. It was also not disclosed as to what property fell to the share of Ashok Kumar in that family settlement from out of the coparcenery property which was the subject matter of partition. Not only this, it was also not disclosed as to whether the father Harbilas, or the mother of Ashok Kumar, and Krishan Kumar were allotted shares in the alleged family settlement. Ashok Kumar who is concededly a member of the coparcenery was not even impleaded as a party to the suit filed by Krishan Kumar against Harbilas wherein it was alleged that in a family settlement, the property detailed therein fell to his share on partition. In that view of the matter, the lower appellate court, in my opinion, rightly came to the conclusion that oral family settlement alleged in the previous suit has not been proved. Once that is so, the lower appellate court had no option but to decree the suit and hold that the decree obtained by Krishan Kumar against Harbilas will not affect the rights of Ashok Kumar, the plaintiff in the present suit, in the coparcenery property of the family.
12. The apex court in Sher Singh and Ors. v. Gamdoor Singh, A.I.R. 1997 S.C. 1333, observed as under:
"Once the existence of joint family was not in dispute, necessarily the property held by the family assumed the character of a coparcenery property and every member of the family would be entiteld by birth to a share in the coparcenery property unless any one of the coparceners pleads by spearate pleadings, and proves that some of the propeties or all the properties are his self-acquired properties and could not be blended in the coparcenery property.
It is settled law thai even the self-acquired property can also be blended into the joint family hotch potch enveloping the character of coparcenery property. It is also not pleaded in the written statement that it is not joint family property. The very first issue raised by the trial court which was not objected to was, whether the property was ancestral property of the parties? The second issue was whether the plaintiff is entitled to joint possession of the suit land and the third issue was whether the previous decree bound the respondents? Under those circumstances, both the parties proceeded on the premises that it was a coparcenery property belonging to the joint Hindu family. The finding recorded by all the courts is that the property belonged to joint Hindu family, therefore, the finding that the respondent is entitled to l/6th share by virtue of his birth is well justified and the finding that the previous decree does not bind him as being tainted with fraud, is not vitiated by any error of law.
It is also an admitted fact that he was not a party to the earlier suit and the decree was granted without his consent. Under those circumstances, the finding that it is collusive decree is a finding of fact based on appreciation of evidence."
13. In view of the above discussion, I see no ground to interfere with the judgment and decree under appeal. The appeal is consequently dismissed in limine.