Jarnail Singh & Anr. v. Dhian Singh & Ors.

Present : Mr. Rajbir Wasu, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 7539-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 26 days in re-filing the appeal is condoned. Main Appeal : This is second appeal by defendants no.2 and 3 having remained unsuccessful in both the courts below. Suit was filed by respondents no.1 to 5. Appellant no.1 and respondent no.1 are sons of Gulzar Singh. Respondents no.3 to 5 are daughters of Gulzar Singh. Respondent no.2 is son of daughter of Gulzar R. S. A. No. 2515 of 2010 (O&M) 2 Singh. Appellant no.2 is son of appellant no.1. Gulzar Singh was defendant no.1 in the suit. He died during pendency of the suit and his wife Gurpal Kaur was impleaded as his legal representative. However, Gurpal Kaur is not party to the instant second appeal nor she was made party to first appeal. Plaintiffs' case is that the parties are governed by Hindu Law being Sikhs. The plaintiffs and defendants no.1 to 3 form joint Hindu family, defendant no.1 being father of plaintiffs and defendant no.2 and grand father of defendant no.3. Suit land measuring 25 kanals 02 marlas (15 kanals 11 marlas and 09 kanals 11 marlas) was ancestral joint Hindu family coparcenary property of the said parties. Defendant no.1 Gulzar Singh inherited the same from his own father. There was no partition among plaintiffs and defendants no.1 and 2. However, defendant no.1 sold 15 kanals 11 marlas to defendant no.2 and 09 kanals 11 marlas land to defendant no.3 vide two separate sale deeds both dated 04.03.1998. The plaintiffs have challenged the said sale deeds in the suit alleging that the said sales were without consideration and legal necessity and were not for the benefit of joint Hindu family. There is also other coparcenary property, which was sufficient to meet the requirements of defendant no.1. Subsequent sales made by defendant no.2 in favour of defendants no.4 to 7 were also challenged in the suit. The plaintiffs also claimed joint possession of the suit land along with permanent injunction. R. S. A. No. 2515 of 2010 (O&M) 3 Defendant no.1 Gulzar Singh admitted the plaintiffs' claim by pleading that the suit land is joint Hindu family coparcenary property and it was still joint. Defendant no.1 also pleaded that he had never executed alleged sale deeds dated 04.03.1998 in favour of defendants no.2 and 3. Defendant no.1 alleged that defendants no.2 and 3 had obtained his thumb impressions fraudulently on the pretext of getting him old age pension. Defendant no.1 admitted that there was no legal necessity for him to sell the suit land. Defendant no.1 also asserted that he did not get even a single penny as consideration. Defendants no.2 and 3 contested the suit and denied the plaint allegations although relationship between plaintiffs and defendants no.1 to 3 was admitted. It was pleaded that plaintiffs and defendants did not constitute joint Hindu family. Plaintiffs no.2 to 5 are married daughters of defendant no.1. They were married more than 20 years ago and are well settled in their matrimonial homes. Plaintiff no.1 had also separated from defendant no.1 about ten years ago and had gone abroad and permanently settled there. It was denied that defendant no.1 inherited the suit property from his father. It was pleaded that defendant no.1 was sole owner of the suit property being his self acquired property and after purchase vide sale deed dated 04.03.1998, defendants no.2 and 3 became owners in possession thereof. Entire consideration was paid to defendant no.1, who sold the suit land to defendants no. 2 and 3 to meet his household expenses. Defendants R. S. A. No. 2515 of 2010 (O&M) 4 no.6 and 7 (subsequent vendees), who are also defendants no.4 and 5, contested the suit and claimed to be bona fide purchasers of the suit land for consideration from defendant no.2. Stand taken by defendants no.2 and 3 was also reiterated by them. Learned Additional Civil Judge (Senior Division), Kapurthala, vide judgment dated 04.04.2007, decreed the plaintiffs' suit. First appeal preferred by defendants no.2 and 3 stands dismissed by learned Additional District Judge, Kapurthala, vide judgment and decree dated 16.12.2009. Feeling aggrieved, defendants no.2 and 3 have preferred the instant second appeal. case file. I have heard learned counsel for the appellants and perused the It is established on record from the documentary evidence that defendant no.1 Gulzar Singh had inherited the suit land from his own father Hukam Singh. In fact, defendant no.2, while appearing in the witness-box, himself admitted that his father Gulzar Singh had inherited the suit land from his father Hukam Singh. Consequently, the courts below rightly held that the suit land was ancestral coparcenary property in the hands of defendant no.1 qua plaintiffs and defendant no.2. Learned counsel for the appellants vehemently contended that even if defendant no.1 and his brothers had inherited suit land and other land from their father Hukam Singh, there was partition among Gulzar Singh and his brothers and in the R. S. A. No. 2515 of 2010 (O&M) 5 said partition, Gulzar Singh got the suit land and other land and therefore, the said land became individual property of Gulzar Singh. Reference in this regard was made to Section 8 of the Hindu Succession Act, 1956 and also to two judgments of Hon'ble Apex Court namely Commissioner of Wealth tax, Kanpur, etc. vs. Chander Sen etc. reported as 1986 AIR (SC) 1753 and Bhanwar Singh vs. Puran and others reported as 2008 (2) R. C. R. (Civil) 99 and also a judgment of Delhi High Court in the case of Pratap vs. Shiv Shanker reported as 2009 (10) A. D. (Delhi) 97. Learned counsel for the appellants also referred to Section 19 of the Hindu Succession Act, 1956, which provides that two or more heirs succeed together to the property of intestate per capita and not per stripe, unless otherwise provided. It was accordingly contended that the suit property, if inherited by Gulzar Singh from his father, was his individual property. I have carefully considered the aforesaid contentions, but find no merit therein. The suit land is proved to have been inherited by Gulzar Singh from his father as per documentary evidence as well as according to admission made by defendant no.2 in the witness-box. Gulzar Singh's brothers also inherited land from their father Hukam Singh. There was partition among Gulzar Singh and his brothers. On said partition, the land got by Gulzar Singh became his individual property qua his brothers, but not qua his own sons. The said property was ancestral and coparcenary R. S. A. No. 2515 of 2010 (O&M) 6 property in the hands of Gulzar Singh qua his own sons. If the contention advanced by learned counsel for the appellants is accepted, then the very concept of coparcenary property would become redundant and non-existent. If a father has more sons than one, the sons, on inheritance and on partition among them, would become individual owners of the inherited land, which would not become coparcenary property qua their own sons, if the contention of learned counsel for the appellants is accepted. However, this is not the concept of coparcenary property. The property inherited by a male Hindu from his own father becomes coparcenary property in the hands of male Hindu qua his own sons and grandsons. Consequently, in the instant case, the suit land inherited by Gulzar Singh from his father became coparcenary property in the hands of Gulzar Singh qua his own sons i.e. plaintiff no.1 and defendant no.1. Learned counsel for the appellants contended that plaintiffs no.2 to 5 being daughters of Gulzar Singh could not become coparceners with Gulzar Singh and his sons. This contention is redundant in the facts of the instant case because Gulzar Singh also has left behind two sons i.e. plaintiff no.1 and defendant no.1 and therefore, the suit land was coparcenary property in the hands of Gulzar Singh qua his sons. Sales made by defendant no.1 in favour of defendants no.2 and 3 are proved to be completely without necessity. Appellants have pleaded that defendant no.1 sold the suit land to them to meet his domestic R. S. A. No. 2515 of 2010 (O&M) 7 requirements. However, defendant no.1 had no requirements of such huge amount running into several lacs of rupees. Appellants have themselves pleaded that all daughters of defendant no.1 stood married 20 years ago and were well-settled in their matrimonial homes. In this view of the matter, defendant no.1 had no necessity to sell the suit land and he could easily meet his domestic necessities out of income of the suit land. In addition thereto, defendant no.1 also had other land and income earned therefrom was also available to defendant no.1 to meet his domestic necessities. There is concurrent finding by both the courts below based on appreciation of evidence. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is lacking any merit and is accordingly dismissed in limine. July 12, 2010 monika ( L. N. MITTAL ) JUDGE