Ram Kishan & Anr. vs Karam Singh & Ors.
2000 Latest Caselaw 963 Del

ORDER

A.K.SIKRI, J.

1. This Regular First Appeal is filed under section 96 of Code of Civil Procedure (CPC) read with Order 41 CPC. It is directed against the judgment and decree dated 9th August, 1973 passed by Sub-Judge, First Class, Delhi in Suit No.215/69. By the said judgment and decree, suit of the plaintiffs/appellants has been dismissed with costs to defendants No.1 to 3 and 6. The appellants at the time of filing the suit were minors. The suit was filed by them through maternal uncle and next friend, Sh.Khushi Ram Sharma. It is eversionary suit filed by them challenging the alienation of occupancy rights of their father, who was arrayed as defendant No.4. Defendant No.4 had sold the occupancy rights of the land measuring 7 bighas 14 biswas per Khewat No.121, khasra No.780, situated in village Naraina, Delhi in favour of defendants No. 1 to 3 for a consideration of Rs.5,000/-. In suit decree of declaration was claimed to the effect that the aforesaid sale was illegal and without consideration. It may be mentioned that the suit land, by that time, had been acquired by the Union of India i.e. defendant No.6 and defendants No.1 to 3 were given a sum of Rs.17,071.45p as compensation for the aforesaid land acquired by the Union of India. Therefore, while praying for decree of declaration that the sale of the suit land was illegal, plaintiffs/appellants had consequentially prayed that they were entitled to recover the aforesaid sum of Rs.17,071.45p from defendants No.1 to 3 which they had received from Union of India in acquisition proceedings. Defendants No.1 to 3 and defendant No.6 contested the suit. Defendant No.4, father of the plaintiff/appellants on the other hand filed the written statement admitting the claim of the plaintiffs and praying that the suit be decreed. Defendant No.5 had also admitted the claim of the plaintiffs. It may be mentioned that defendant No.5 is also a son of defendant No.4, like the plaintiffs. Defendants No.1 to 3 in their separate written statements had, apart from taking number of legal objections, pleaded that suit was the result of collusion between plaintiffs on the one hand and defendants No.4 & 5 on the other hand and that defendant No.4 had sold his rights in suit land in state of good, sound mind and understanding, for valuable consideration, for necessity and in the interest of family. On the pleadings of parties, following issues were settled by the Trial Court:

(1) Whether the suit is barred by time?

(2) Whether the civil courts have no jurisdiction to try the present suit?

(3) Whether the suit for declaration is not maintainable?

(4) Whether the act and the conduct of the plaintiff bars the present suit?

(5) Whether a valid notice under section 80 C.P.C. has been served on the Union of India? If not, what its effect?

(6) Whether the land in suit has been acquired by the Union of India? If so,its effect??

(7) Whether the plaintiffs are the reversioners of the defendant No.4 and can challenge the sale?

(8) Whether the sale made by defendant No.4 is illegal, and ineffective as alleged in the plaint?

(9) Whether the sale is for legal necessity?

(10) Relief.

2. Issues No. 1 to 6 were decided in favour of plaintiffs. However Issues No.7 to 9 were decided against the plaintiffs and resultantly the suit of plaintiffs was dismissed.

3. Mr.Rajinder Dutt, learned counsel for the appellants assailed the findings of the Trial Court on all the aforesaid three issues.

4. Before we proceed to note the contentions of the appellants and examine them, it would be appropriate to state some material facts and the judgment of the trial Court on the aforesaid issues. As per the revenue record, defendant No.4 was having occupancy rights over the suit land. On 23rd January, 1952 he mutated mortgage of the suit land in favour of defendants No. 1 to 3 for Rs.1,600/-. On 20th February, 1952, the suit land was sold to defendants No.1 to 3 for total consideration of Rs.5,000/-. After this sale, the suit land was mutated in favour of defendants No.1 to 3 in the revenue records. Thereafter, as already noted above, the land in question was acquired by Union of India and compensation in respect of this land amounting to Rs.17,071.45p was received by defendants No. 1 to 3. Suit for declaration was filed by the plaintiffs in August 1968 i.e. after more than sixteen and half years of the sale.

5. While deciding issue No.7, the Trial Court has returned the finding that DW-4 Sh.Ram Saroop was the actually owner of occupancy rights in the suit land and the same had been transferred by him in favour of defendants No.1 to 3. It was further held that these rights were self-acquired rights of defendant No.4 and not ancestral rights, and therefore, plaintiffs could not claim any reversionary interest.

6. In view of aforesaid finding on issue No.7 alone, the suit of the plaintiff could be dismissed. However, issues No. 8 and 9 were also taken up by the trial Court and while deciding these issues, the trial Court proceeded with the presumption that the occupancy rights held by defendant No.4 were ancestral in his hands qua the plaintiffs. Notwithstanding, findings are returned that sale made by defendant No.4 in favour of defend-

ants No. 1 to 3 was valid inasmuch as occupancy rights which were first mortgaged in favour of defendants No.1 to 3 were subsequently sold to them which was clear from the mutation produced by the plaintiffs themselves; it was an oral sale which took place in the year 1952 when Transfer of Property Act was not in force in Delhi or Punjab, and therefore, there was no need to have registered document; the allegation that defendant No.4 was a man of weak intellect and was prevailed upon by defendants No.1 to 3 to effect the sale in their favour was not substantiated and that the same was not ineffective being for inadequate consideration. It was also held that the sale was for legal necessity and for the benefit of family to pay off the antecedent debts and was an act of prudent nature. It was not illegal or for any immoral purposes.

7. At this stage, it may be mentioned that the story which was sought to be projected by the plaintiffs in the plaint that their father, defendant No.4 was not a person of good moral character and he had sold the suit land for his own personal gain and not for the benefit of family was not believed. Rather it was found that suit was filed by plaintiffs at the instance of their next friend Sh.Khushi Ram Sharma in collusion with Sh.Ram Saroop, defendant No.4 on account of their lust and greed for money, and therefore, although the plaintiffs had filed the suit in formapauperis (indigent persons) it was dismissed with costs with direction to the Collector to recover court fee from Sh.Khushi Ram Sharma and Sh.Ram Saroop holding them jointly and severally liable for the same.

8. Assailing the findings on issue No.7, learned counsel for the appellants submitted that it was an ancestral property as was clear from Exhibit P-4 & P-5 wherein suit land was being recorded as ancestral, and therefore, it was covered by the provisions section 5 (1) (a) of the Punjab Tenancy Act. No such thing is discernible from Exhibit P-4 & P-5. On the contrary, as rightly observed by the trial Court, Exhibit P-4 goes to show that defendant No.4 was holding occupancy rights in the suit land under section 5 (1) (a) of the Punjab Tenancy Act. There is in fact no evidence on record to prove that defendant No.4 ever inherited the occupancy rights from his father. Under Hindu Law, a property would be ancestral property or coparcenary in the hands of the father qua the sons if the father had inherited the same from his ancestors i.e. his father, grand-father and great grand-father. Therefore, it was for the plaintiffs to prove that defendant No.4 had inherited the occupancy rights from his father. No evidence to this effect has been produced by the appellants. Section 5 (1) (a) of the Punjab Tenancy Act stipulates that a tenant - who, at the ommencement of the said Act as for more than two generations in the male line of descent through a grand-father or grand uncle and for a period of not less than twenty years been occupying land paying no rent therefore beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, has a right of occupancy in the land so occupied. This section only prescribes the mode of acquisition of occupancy rights under certain circumstances. It does not say that the person who acquired the right of occupancy under this clause would be having ancestral rights in that land. When there was no material on record to prove that defendant No.4 inherited the right from his father it could not be said that suit land in his hands was ancestral. Not only no evidence to this effect was produced, the plaintiffs withheld best evidence namely revenue record which could throw light on this aspect, and therefore, adverse inference can be drawn against the appellants even on this ground inasmuch as burden was upon the plaintiffs to establish the ancestral character of the land ( Kura Vs. Jag Ram, ).

9. For the aforesaid reasons, we do not find any force in the submissions of appellants. In his well considered judgment, the trial Court has rightly decided issue No.7. Once it is held that the suit land in the hands of defendant No.4 was not ancestral land and occupancy rights held by defendant No.4 were self-acquired, the inevitable result is that plaintiffs/appellants cannot claim any reversionary interest. Findings on this issue, which are against the appellants, are sufficient to dismiss the suit as well as this appeal filed by the appellants.

10. While giving his findings of issues No. 8 and 9, the trial Court has also held that even if it is presumed that the suit land was ancestral, sale of the suit land by defendant No.4 in favour of defendants No.1 to 3 was valid and out of legal necessity. In our considered view, these findings of the trial Court are also borne out from the record and do not call for any interference. We may point out here that learned counsel for the appellants had not challenged the findings on issue No.8. However, his main thrust of argument was that sale in question was not for legal necessity. He submitted that apart from making a bald averment in para 6 of the written statement that the sale was for legal necessity or for benefit of the estate, no particulars were given. He further argued that it was also not stated by the defendants No.1 to 3 that before the sale any inquiry was made by the defendants about the legal necessity of the family or benefit of the estate which prompted or compelled defendant No.4 to sell the suit land. It was submitted that defendants No. 1 to 3 were under legal obligation to make these inquiries and in support of this proposition, reliance was placed in the cases of Ramanathan Chettiar Vs. M.Ar.Rm.Visanathan Chettiar reported in AIR 1941 PC 43, Hem Raj & Ors. Vs. Mehtab Singh & Ors. reported in 1983 (Vol.85) Punjab Law Reporter 641, Smt. Manohari Devi & Ors. Vs. Choudhury Sibanava Das & Ors. , Mohinder Singh & Ors. Vs. Ishar Singh & Ors. reported in 1979 Hindu Law Reporter 307 and Sushil Kumar & Anr. Vs. Ram Parkash & Ors. .

11. There is no dispute about the law laid down in the aforesaid cases. Absence of proof that sale of joint family property was made by karta out of legal necessity or for benefit of estate would not be binding on other members of the family. It is for the purchaser to make bonafide inquiries as to the existence of legal necessity or family benefit before entering into such transaction. However, while not disputing this principle of law, it is a different matter altogether that in the present case, as a matter of fact it is found that the sale of the suit land was effected for legal necessity and for the benefit of the family. In fact in the impugned judgment, trial Court has also taken note of few judgments and stated the principle that manager/karta of joint family has the power to alienate the coparcenary property provided alienation is made for legal necessity or for the benefit of the estate or his act is an act of a prudent owner. Thereafter, the trial Court proceeded to appreciate the evidence on record. It has come on record that plaintiffs were staying with their parents and defendant No. 4 was maintaining them. The relevant material facts, proved on record, to this effect as stated in the impugned judgment may be summarised below:

a) Occupancy rights held by defendant No.4 were mortgaged with possession to defendants No.1 to 3 for Rs.1,600/-.

b) Defendant No.4 had taken another sum of Rs.700/-.

c) Sh.Khushi Ram Sharma the next friend of minors/plaintiffs also admitted in cross-examination that Sh.Ram Saroop i.e. defendant No.4 had taken debts from certain persons although he did not state as to what amount of debts were taken and from whom.

d) Defendant No.1 had made a specific statement that sale in question was effected by defendant No.4 to pay off the debts.

e) There was no evidence to show that debts contracted by defendant No.4 earlier to the sale in question were illegal or immoral in any way. One of the plaintiffs Sh.Jai Bhagwan has stated that he does not see any defect in the moral character of his father and thus according to plaintiffs themselves their father bore good moral character.

f) It has also come on record that defendant No.4 got his house constructed after the sale since that house was a kucha one and had fallen down, and therefore, inference could be drawn that construction was done from the amount received in sale consideration.

12. From the aforesaid facts, it was concluded by the Trial Court that the house was sold for paying the loan for which suit land was mortgaged, other debts as well as for construction of the house into a pucca one, and therefore, sale in question was for legal necessity and for the benefit of the family. This conclusion is clearly sustainable in law in view of a recent judgment of the Supreme Court in the case of Gangadharan Vs. Janardhana Mallan & Ors. . In that case, the Apex Court pointed out that the findings recorded by Subordinate Court was about the adequacy of sale consideration and that substantial portion had gone into discharge of antecedent debts and thus suit to challenge alienation filed after long lapse was not maintainable. In the present case also sale of the suit land was in the year 1952 and the suit to challenge the sale was filed by the sons (minors at that time) of defendant No.4 in the year 1968. In 1952, the suit land was sold for Rs.5,000/-. However, when the suit land was acquired by the Government, defendants No.1 to 3 received compensation amounting to Rs.17,071.45p. In these circumstances, plaintiffs through their maternal uncle and next friend colluded with defendant No.4 and filed the present suit with the purpose to extract money from defendants No.1 to 3. The trial ourt is right in holding that collusive suit was filed on account of their lust and greed for money. This case is a classical example which demonstrates as to what extent people can stoop. Defendant No.4 had sold the suit land in the year 1952. However, when this sale was sought to be declared as illegal, in the suit filed by sons in collusion with their father, all types of allegations were made against the father which included character assassination. For greed of money even the father i.e. defendant No.4 accepted these allegations. In his evidence defendant No.4, who appeared as DW-5 gave the following certificate as regards his own character "I am a drunkard, I am a gambler and I have all other bad habits with me and for these purposes, I had utilised the amount taken by me". Thus in their attempt to extract money from defendants No.1 to 3, the sons labelled their father as a man of immoral character and the father, who was colluding with his sons, was happy in elf-assassination of his character.

13. This appeal which is continuation of the malicious suit filed by the appellants, is totally meritless and is therefore dismissed with costs quantified at Rs. 5,000/-.