Sukhwant Singh & Ors. v. Bhajan Singh & Ors.

CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sandeep Bansal, Advocate T.P.S. MANN, J. Suit for declaration filed by the plaintiffs-appellants that the land measuring 27 kanals 4 marlas was joint Hindu family coparcenary property and gift deed dated 23.6.1995 and mutation No. 5075 dated

21.7.1995 were null, void, etc. and the entries in the revenue record on the same were ineffective, inoperative against their rights, with a consequential relief of permanent injunction, was dismissed by the trial Court. The judgment and decree dated 21.9.2006 passed by the trial Court was upheld by the lower appellate Court on 21.12.2008 when it dismissed the first appeal. Hence, the present second appeal by the plaintiffs filed under Section 100 of the Code of Civil Procedure. According to the plaintiffs, the suit property was joint Hindu family coparcenary property of the parties as they alongwith defendants No.1 to 4 inherited the same from their fore-fathers. Despite the same, Kishan Singh-defendant No.4 executed a gift deed of land measuring 2 kanals out of the said land in favour of Shri Balmik R.S.A. No. 2368 of 2009 -2- Mandir-defendant No.6. Pursuant to the aforementioned gift deed and sanctioning of mutation in consequence thereof in their favour, the defendants were threatening to forcibly interfere in the joint possession of the plaintiffs and, thus, the present suit. The suit was contested by defendants No.5 and 6 only. According to defendant No.6, the plaintiffs were not in possession of the suit land. On 23.6.1995, defendant No.4 executed a gift deed in its favour of his share measuring 2 kanals. On the basis of the said gift deed, the mutation was sanctioned in favour of the Mandir. The Mandir was constructed with the contribution of the villagers and of the general public, by Bhagwan Balmik Naujawan Sabha of the village, which was a registered Sabha. It, accordingly, prayed for dismissal of the suit. Learned counsel for the plaintiffs-appellants submitted that despite the learned Courts below holding the suit property to be joint Hindu family coparcenary property, they upheld the gift deed dated

23.6.1995 and mutation No.5075 sanctioned vide order dated 21.7.1995. As the suit property was joint Hindu family coparcenary property, Kishan Singh-defendant No.4 had no right to donate 2 kanals out of the same in favour of the Mandir. There is no denial of the fact that both the learned Courts below concurrently held the suit land to be joint Hindu family coparcenary property. Kishan Singh-defendant No.4 was admittedly having share in the same. A co-sharer has a right to alienate the property R.S.A. No. 2368 of 2009 -3- to the extent of his share. To a query put by the Court, learned counsel for the appellants submitted that Kishan Singh was owner to the extent of 70 marlas in the suit land. From this, it stands established that he did not alienate beyond his share as the subject matter of the gift deed was only 2 kanals, i.e., 40 marlas. The gift deed was not for any illegal or immoral purpose, rather it was made by Kishan Singh with his own will and out of religious feelings. Mere fact that an amount of Rs.39,000/- was received by Kishan Singh from Bhagwan Balmik Naujawan Sabha, is no ground to doubt the execution of the gift deed as there was no evidence on record that the said amount had not been used by Kishan Singh for his personal needs or for the benefit of the estate and, instead, used for immoral or illegal activities. The concurrent findings of facts arrived at by the learned Courts below are based on proper appreciation of the material evidence available on the record. These findings are not open to challenge in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as formulated by learned counsel for the appellants, arises for determination. The appeal is, accordingly, dismissed, in limine. December 22, 2009 ajay-1 ( T.P.S. MANN ) JUDGE