O&M) Dilbag Singh and another v. Maghar Singh and others
Case Details
RSA No.1780 of 2000 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on 26th of May, 2025 Pronounced on 25th of August, 2025 RSA No.1780 of 2000 (O&M) Dilbag Singh and another .....Appellants Versus Maghar Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. G.S. Sandhu, Advocate for the appellants. Mr. M.L. Saggar, Senior Advocate with Mr. Omesh Garg, Advocate for respondents No.2 to 5. PANKAJ JAIN, J. Plaintiffs are in second appeal. 2. For convenience, the parties hereinafter are referred to by their original position before the Court of the First Instance, i.e. the appellants as plaintiffs and respondents as defendants. 3. Plaintiffs filed suit for possession of land measuring 8 Kanals 0 Marla. The challenge is to the Sale Deed dated 29.05.1986 in favour of defendants No.1 to 4 and Mortgage Deed dated 02.05.1985 in favour of defendant No.5 executed by No.6. 4. As per the plaintiffs, they being co-parceners have right in the Deepak Kumar 2025.08.28 17:41 I attest to the accuracy and integrity of this document RSA No.1780 of 2000 (O&M) 2 property by birth as the property is a co-parcenary ancestral property. Defendant No.6, their father sold the same without any legal necessity and without consideration. 5. Suit was contested by the defendants. Defendants No.1 to 4 filed joint written statement denying the status of the plaintiffs as co- parceners or co-owners in the property in dispute. It was pleaded in the written statement that as per Mortgage Deed dated 02.05.1985 qua land measuring 7 Kanals 8 Marlas stands mortgaged with possession by Baland Singh, defendant No.6 in favour of defendant No.5 for a valuable consideration of Rs.30,000/- and for legal necessity to pay mortgage debt qua earlier Mortgage Deed dated 05.08.1983 to one Jai Kumar. In order to pay the entire mortgage debt, Sale Deed dated 29.05.1986 was executed in
Facts
their favour by defendant No.6. Sale Deed was also executed to meet household expenses, repair of house etc. Thus sale deed was executed as family was in due need of money 5.1. Defendant No.5 though filed separate written statement but pleaded on the lines of the written statement filed by defendants No.1 to 4 and also added that defendant No.6 apart from mortgaging the property, in question, also mortgaged land measuring 9 Kanals 6 Marlas for an amount of Rs.12,000/- in favour of one Kuldip Singh vide Mortgage Deed dated 31.08.1981. 5.2. Defendant No.6 admitted the claim of the plaintiffs. 6. On the basis of the pleadings, Court of the First instance framed Deepak Kumar 2025.08.28 17:41 I attest to the accuracy and integrity of this document RSA No.1780 of 2000 (O&M) 3 the following issues: “1. Whether the plaintiffs constitutes joint hindu family with the defendant no.6? OPP. 2. Whether the suit land is coparcener and ancestral property? OPP. 3. If issue No.1 & 2 are proved whether allegations made by defendant no.6 vide sale deed dated 29/5/1986 and mortgage deed dated 2/5/1985 in favour of defendant no.1 to 5 is legal necessity? OPD 1 to 5 4. Whether the plaintiffs are governed by customory law? OPD. 5 Whether the plaintiffs are entitled to decree for possession and injunction prayed for by them? OPP. 6. Relief.” 7. While deciding Issue No.1, the Court of the First Instance found that it stands proved from the pedigree table that Mukhtiar Singh, great grandfather of the plaintiffs, was the original owner. From him the property was inherited by Bant Singh, grandfather of the plaintiffs and from Bant Singh, property travelled to defendant No.6, father of plaintiffs. Court of the First Instance thus held that the plaintiffs constituted joint Hindu family with defendant No.6 and are co-parceners. Property in the hands of defendant No.6 being a co-parcenery property, plaintiffs have a birth right in the same. 7.1. Trial Court while deciding Issue No.3 found that the family had no necessity to sell the land when Sale Deed (Exhibit D3), was executed in favour of defendants No.1 to 4. Court of the First Instance found that on 29.05.1986 when the Sale Deed, Exhibit D-3, was executed by defendant Deepak Kumar 2025.08.28 17:41 I attest to the accuracy and integrity of this document RSA No.1780 of 2000 (O&M) 4 No.6 in favour of defendants No.1 to 5, on the same date, defendant No.5 borrowed a sum of Rs.16,000/- from Jasbir Kaur wife of defendant No.6 and mother and attorney of plaintiffs against promisory note. The said fact stood proved by way of judgment, Exhibit P-22. Resultantly, the Court of the First Instance decreed the suit filed by the plaintiffs. 8. In appeal preferred by defendants, the findings recorded by the Trial Court on Issue No.1 stand reversed. The Lower Appellate Court found that the Court of the First Instance erred in holding that the property in dispute was co-parcernary property owned by plaintiffs and defendant No.6. Lower Appellate Court found that from Mukhtiar Singh, the property devolved upon Bant Singh, the grandfather of the plaintiffs not by way of survivorship but by way of registered Will dated 29.12.1997. On death of Mukhtiar Singh, property came in the hands of Baland Singh, defendant No.6 father of the plaintiffs. Lower Appellate Court while relying upon ratio of law laid down by Supreme Court in the case of ‘Commissioner of Wealth Tax, Kanpur etc. vs. Chander Sen etc.’ AIR 1986 SCC 1753 found that where the property comes to the hands of father by succession and not by survivorship, it loses its character of being a co-parcenary property. Lower Appellate Court thus held that the plaintiffs having no right in the self acquired property of defendant No.6, they do not have locus to maintain the present suit. 9. Ld. Counsel appearing for the appellants has assailed the findings recorded by Lower Appellate Court on Issue No.1. He submits that Deepak Kumar 2025.08.28 17:41 I attest to the accuracy and integrity of this document RSA No.1780 of 2000 (O&M) 5 even though the property travelled in the hands of Bant Singh by way of registered Will dated 29.12.1997 executed by Mukhtiar Singh but defendant No.6 Baland Singh got property from his father Bant Singh after he died intestate. Thus, property in hands of Baland Singh is ancestral property and the plaintiffs have right in the same.
Legal Reasoning
Chander Sen’s case (supra) and ratio of law laid down by this Court in the case of Major Singh vs. Angrez Singh and others, 2024(3) PLR 386, wherein this Court followed the dictum of law laid down in Chander Sen’s case ibid. 11. The facts being not much in dispute, the only issue that arises for consideration of this Court is : “Whether the property in the hands of Baland Singh can be held to be ancestral property qua the plaintiffs or is his self-acquired property as the survivorship came to an end after Mukhtiar Singh executed Will in favour of Bant Singh?” 12. The law stands settled by Supreme Court in Chander Sen’s case (supra) which was reiterated by Supreme Court in the case of Uttam vs. Saubhag Singh and others (2016) 4 SCC 68 holding as under: “20. Some other judgments were cited before us for the Deepak Kumar 2025.08.28 17:41 I attest to the accuracy and integrity of this document RSA No.1780 of 2000 (O&M) 6 proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:- (i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is
Arguments
10. Per contra, Mr. Saggar, Sr. Counsel appearing for the respondents has relied upon ratio of law laid down by Supreme Court in
Decision
property that can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male Deepak Kumar 2025.08.28 17:41 I attest to the accuracy and integrity of this document RSA No.1780 of 2000 (O&M) 7 coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. 13. The same view finds echo in the case of ‘Govindbhai Chhotabhai Patel vs. Patel Ramanbhai Mathurbhai’, (2020) 16 SCC 255 wherein Supreme Court observed as under: "11. This Court in three Judge Bench in C.N. Arunachala Mudaliar [C.N. Arunachala Mudaliar v. C.A. Muruganatha