Himachal Pradesh High Court
All Residents Of Village vs Sh. Shambu Ram And Civil Suit No. ... on 24 September, 2021
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 24th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
REGULAR SECOND APPEAL NO. 388 OF 2004 &
REGULAR SECOND APPEAL NO. 390 of 2004
REGULAR SECOND APPEAL NO. 388 OF 2004
BETWEEN:-
SHRI SHAMBHOO RAM,
DECEASED THROUGH HIS
LEGAL REPRESENTATIVES:-
1(a) SATISH KUMAR, SON OF
SHAMBHOO RAM
1(b) PURAN PARKASH, SON OF
SHAMBHOO RAM
1(c) SHANKUNTALA DEVI,
DAUGHTER OF SHAMBHOO
RAM
1(d) SANTOSH KUMARI,
DAUGHTER OF SHAMBHOO
RAM
1(e) VEENA DEVI, DAUGHTER OF
SHAMBHOO RAM
ALL RESIDENTS OF VILLAGE
BARRAN, P.O. BARRAN,
TEHSIL JAISINGHPUR,
DISTRICT KANGRA, H.P.
...APPELLANTS
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(BY SHRI K.D. SOOD, SENIOR
ADVOCATE, WITH SHRI SANJEEV
SOOD, ADVOCATE)
.
AND
1(a) MEERA DEVI, WD/O LATE
BACHITTAR SINGH
1(b) VIJAY SINGH RANA, SON OF
LATE BACHITTAR SINGH
1(c) AJAY SINGH RANA, SON OF
LATE BACHITTAR SINGH
1(d) BABITA RANA, DAUGHTER OF
LATE BACHITTAR SINGH
ALL RESIDENTS OF MOHAL
AND MAUZA BARRAM KHURD,
TEHSIL JAISINGHPUR,
DISTRICT KANGRA, H.P.
...RESPONDENTS
(ALL THE RESPONDENTS ARE EX PARTE)
REGULAR SECOND APPEAL NO. 390 OF 2004
BETWEEN:-
SHRI SHAMBHOO RAM,
DECEASED THROUGH HIS
HEIRS AND LEGAL
REPRESENTATIVES:-
1(a) SATISH KUMAR, SON OF SHRI
SHAMBHOO RAM
1(b) PURAN PARKASH, SON OF
SHRI SHAMBHOO RAM
1(c) SHANKUNTALA DEVI,
DAUGHTER OF SHRI
SHAMBHOO RAM
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1(d) SANTOSH KUMARI,
DAUGHTER OF SHRI
SHAMBHOO RAM
.
1(e) VEENA DEVI, DAUGHTER OF
SHRI SHAMBHOO RAM
ALL RESIDENTS OF VILLAGE
BARRAN, P.O. BARRAN,
TEHSIL JAISINGHPUR,
DISTRICT KANGRA, H.P.
2. DAMODARI DEVI, WIDOW OF
SHRI HOSHIAR SINGH
3. LEKH RAJ, SON OF SHRI
HOSHIAR SINGH
4. BRAHAM CHAND, SON OF
SHRI HOSHIAR SINGH
5. NARESH KUMAR, SON OF
SHRI HOSHIAR SINGH
6. KULDEEP SINGH, SON OF
SHRI HOSHIAR SINGH
7. KAMLA DEVI, WIDOW OF SHRI
MIR CHAND
8. RANJEET SINGH, SON OF
SHRI MIR CHAND
9. TARLOK CHAND, SON OF SHRI
TULSI RAM
ALL RESIDENTS OF VILLAGE
MOHAN BARRAM, TEHSIL
JAISINGHPUR, DISTRICT
KANGRA, H.P.
10. KAPOOR SINGH, SON OF SHRI
TULSI RAM, SINCE DECEASED
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THROUGH HEIRS AND LEGAL
REPRESENTATIVES:-
10(a) SHRI RAMESH KUMAR, SON
.
OF LATE SHRI KAPOOR SINGH
10(b) SHRI RAJINDER KUMAR, SON
OF LATE SHRI KAPOOR SINGH
10(c) SITA DEVI, WIDOW OF SHRI
KAPOOR SINGH
10(d) BHOKI DEVI, WIDOW OF SHRI
RADHESHYAM, SON OF LATE
SHRI KAPOOR SINGH
10(e) VANSIKA KUMARI, DAUGHTER
OF SHRI RADHESHYAM
(MINOR, AGED 8 YEARS
UNDER THE CARE AND
CUSTODY OF HER MOTHER
AND NATURAL GUARDIAN
SMT. BHOLI DEVI, HEIR OF
PRE-DECEASED SON SHRI
RADHESHYAM OF SHRI
KAPOOR SINGH)
10(f) NAVINA THAKUR, DAUGHTER
OF SHRI RADHESHYAM
(MINOR, AGED 6 YEARS
UNDER THE CARE AND
CUSTODY OF HER MOTHER
AND NATURAL GUARDIAN
SMT. BHOLI DEVI, HEIR OF
PRE-DECEASED SON SHRI
RADHESHYAM OF SHRI
KAPOOR SINGH)
ALL RESIDENTS OF VILLAGE
HARDON, PO TALWAD, TEHSIL
JAISINGHPUR, DISTRICT
KANGRA, H.P.
11. DARSHANA, WIDOW OF SHRI
OM PARKASH, SON OF SHRI
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TULSI RAM, RESIDENT OF
VILLAGE MOHAN BARRAM,
TEHSIL JAISINGHPUR,
DISTRICT KANGRA, H.P.
.
...APPELLANTS
(BY SHRI K.D. SOOD, SENIOR
ADVOCATE, WITH SHRI SANJEEV
SOOD, ADVOCATE)
AND
1(a) PAWNA DEVI, WIDOW OF SHRI
PARTAP SINGH
1(b) SAVITA KUMARI (MINOR),
DAUGHTER OF SHRI PARTAP
SINGH
1(c) ANJALI (MINOR), DAUGHTER
OF SHRI PARTAP SINGH
1(d) ANGITA (MINOR), DAUGHTER
OF SHRI PARTAP SINGH
MINORS UNDER THE CARE
AND CUSTODY OF MOTHER
AND NATURAL GUARDIAN
PAWNA DEVI.
ALL RESIDENTS OF VILLAGE
MOHAN BARRAM, TEHSIL
JAISINGHPUR, DISTRICT
KANGRA, H.P.
2(a) MEERA DEVI, WIDOW OF SHRI
BACHITTAR SINGH
2(b) VIJAY SINGH RANA, SON OF
SHRI BACHITTAR SINGH
2(c) AJAY SINGH RANA, SON OF
SHRI BACHITTAR SINGH
2(d) BABITA RANA, DAUGHTER OF
SHRI BACHITTAR SINGH
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ALL RESIDENTS OF VILLAGE
MOHAN BARRAM, TEHSIL
JAISINGHPUR, DISTRICT
KANGRA, H.P.
.
...RESPONDENTS
(ALL THE RESPONDENTS ARE EX PARTE)
Reserved on: 04.08.2021
Decided on: 24.09.2021
Whether approved for reporting? No
__________________________________________________________
These Regular Second Appeals are coming on for
pronouncement of judgment this day, the Court passed the following:
JUDGMENT
Both these appeals are being disposed of by this common
judgment.
2. Brief facts necessary for the adjudication of these appeals are
that two suits were instituted in the Court of learned Sub Judge, 1 st Class
(I), Palampur, District Kangra, H.P., i.e., Civil Suit No. 167/96, titled as
Bachittar Singh Vs. Sh. Shambu Ram and Civil Suit No. 93/96, titled as
Shambhoo Ram and others Vs. Shri Partap Singh and another. The Civil
Suit filed by Bachittar Singh was for permanent prohibitory injunction,
whereas, that filed by Shri Shambhoo Ram and others was for declaration
with consequential relief of permanent prohibitory Injunction. The suit
property in both the Civil Suits was same.
3. The case of Bachittar Singh in Civil Suit No. 167/96 was that
he was owner in possession of the suit land, comprised in Khata No. 21,
.
Khatauni No. 50, Khasra Nos. 921, 923, 924, 925, 926, 956,957,978,991,
measuring 0-44-47 hectares, situated at Mohal Barram-Khurad, Mauja
Barram, Tehsil Jaisinghpur, District Kangra, H.P. and the defendant
without any right, title or interest was interfering in the suit land since the
month of December, 1995 and February, 1996. The suit was thus filed by
the plaintiff praying for a decree of permanent prohibitory injunction
restraining the defendant from interfering in the same.
4. Shambhoo Ram, defendant therein, contested the suit on the
ground that the suit land was previously owned by Nathu Ram, husband
of Rajamandu, who was real brother of the father of defendant, namely,
Ram Nath. Nathu Ram had no male issue and, therefore, suit land was
inherited by Rajamandu, who further gifted the suit property to Kaushalya
Devi in the year, 1936. Kaushalya Devi expired on 16.11.1995. She
remained a limited owner qua the suit land, having only a life interest in
the same. On the basis of a Will, executed by Kaushalya Devi, the suit
property was mutated in the name of one Partap and he transferred the
suit land by way of sale in favour of Bachittar Singh. This sale was bad as
Kaushalya Devi was having only life interest, therefore, after her death,
the defendants were having reversionary rights and were thus
successors-in-interest upon the suit land. As per the defendant, he was in
cultivating possession of the same.
.
5. Shambhoo Ram and others in Civil Suit No. 93/96 pleaded
that they were the owners in possession of the suit property and the
entries showing Bachittar Singh as owner in possession of the suit land
were illegal and against the factual position and, therefore, it was prayed
that said entries be declared null and void. As per plaintiffs, Smt.
Kaushalya Devi was only a limited owner, having no right to transfer the
suit property. Accordingly, a decree of permanent prohibitory injunction
restraining the defendants Bachittar Singh and Partap Singh from
interfering in the suit land was prayed for.
6. Learned Trial Court vide judgment and decree dated
18.07.2000, decreed Civil Suit No. 167/96, titled as Bachittar Singh Vs.
Shambhoo Ram for permanent prohibitory injunction against the
defendant, whereas Civil Suit No. 93/96, titled as Shambhoo Ram and
others Vs. Partap Singh and another was dismissed.
7. Feeling aggrieved, Shambhoo Ram preferred Civil Appeal
No. 111-P/2000 against the judgment and decree passed by the learned
Trial Court in Civil Suit No. 167/96, titled as Bachittar Singh Vs. Sh.
Shambhu Ram and Civil Appeal No. 112-P/2000 against the judgment and
decree passed by the learned Trial Court in Civil Suit No. 93/96. Vide
judgment and decree dated 17.06.2004, learned Appellate Court
dismissed both the appeals filed by Shri Shambhoo Ram and others and
affirmed the judgments and decrees passed by the learned Trial Court.
.
8. Feeling aggrieved, Shambhoo Ram and others have filed
these two appeals.
9. RSA No. 388 of 2004 was admitted by this Court on
27.08.2004 on the following substantial questions of law:
"(i) Whether on a true and proper
construction of the compromise Ex.D-1 and
decree Ex. D-2 and also provisions of Section
14 of Hindu Succession Act, Kaushalya Devi
had a limited estate, which could not ripe into
full ownership and, therefore, the sale deed
executed by her in favour of Bachittar Singh,
was bad in law?
(ii) Whether the findings of the Courts
below are based on misreading and
misconstruction of the oral and documentary
evidence?
(iii) Whether the findings, that the
plaintiff was not in possession of the property in
question, are de hors the evidence on record?"
10. RSA No. 390 of 2004 was admitted by this Court on
27.08.2004 on the following substantial questions of law:-
"(i) Whether on a true and proper
construction of the compromise Ex. D-1 and
decree Ex.D-2 and also provisions of Section
14 of Hindu Succession Act, Kaushalya Devi
had a limited estate, which could not ripe into
full ownership and, therefore, the sale deed
.
executed by her in favour of Bachittar Singh,
was bad in law?
(ii) Whether the findings of the Courts
below are base on misreading and
misconstruction of the oral and documentary
evidence?
(iii) Whether the findings, that the
plaintiff was not in possession of the property in
question, are de hors the evidence on record?"
11. I have heard Mr. K. D. Sood, learned Senior Counsel for the
appellants in both the appeals.
12. Learned Trial Court while dismissing the suit filed by
Shambhoo Ram and allowing the suit filed by Bachittar Singh, held that it
was not in dispute that the suit property was inherited by Rajamandu from
her husband Nathu as per law, being widow prior to 1956, i.e., before the
commencement of The Hindu Succession Act, 1956. She became limited
owner of the same having life interest over the suit property. During her
life time, Rajamandu executed a gift deed of the suit property in favour of
her daughter Kaushalya. Learned Trial Court also held that it was borne
out from the record that Ram Nath, father of Shambhoo Ram filed a suit
against Rajamandu, wherein, compromise was arrived at to the effect that
gift executed by Rajamandu in favour of her daughter Kaushalya would
remain in force till the life time of Kaushalya. The compromise is on record
as Ex. D-1 and Compromise Decree is on record as Ex. D-2. Learned Trial
.
Court thereafter held that it had not come on record that the property
which was inherited by Rajamandu from her husband was ancestral
property. Learned Trial Court held that Shambhoo Ram had not pleaded
either in the suit filed by him or in the written statement filed by him in the
suit filed by Bachittar Singh that the suit property was ancestral in the
hands of Nathu, the husband of Rajamandu. It held that in the absence of
any specific pleadings to this effect, it could not be presumed that the suit
property was ancestral in the hands of Nathu. It further held that under
law, there was no presumption as to ancestral or coparcenary property
and the same has to be specifically pleaded and proved. On these basis,
it held that the suit property was to be taken to be the absolute property of
Nathu Ram and the same being his self acquired property, was open to
inheritance by his children. Learned Trial Court further held that after the
death of Nathu, his widow Rajamandu inherited the life estate in the suit
property. Rajamandu died in the year, 1951 and thereafter, Kaushalya, by
virtue of being daughter of Nathu also inherited limited interest in the suit
property. It held that the factum of Nathu being the father of Kaushalya,
was admitted by Shambhoo in his cross-examination. Learned Trial Court
thus held that under old Hindu Law, prior to the commencement of The
Hindu Succession Act, 1956, the daughter was also one of the heirs of a
Hindu male. As per the learned Trial Court, after 1951, the possession of
Kaushalya over the suit property was not only on the basis of compromise
.
decree Ex. D-2, but also as a legal heir of her father qua the suit property,
irrespective of the fact whether she was having limited estate or not. It
held that this limited estate transformed into full ownership after coming
into force The Hindu Succession Act, 1956 by virtue of Section 14(1) of
the same and, therefore, there was no merit in the case of Shambhoo.
Learned Trial Court further held that as Kaushalya had become full owner
of the suit land after coming into force of The Hindu Succession Act, 1956
she was fully competent to execute the sale deed Ex.-P5. On these basis,
learned Trial Court dismissed the suit of the present appellants and
allowed the suit of the respondents herein.
13. Learned Appellate Court while dismissing the appeals filed by
the present appellants, affirmed the findings so returned by the learned
Trial Court. Learned Appellate Court held that since Kaushalya Devi after
enforcement of The Hindu Succession Act, 1956 had acquired title to the
suit land, therefore, learned Trial Court had rightly concluded that she had
every legal right, title and interest in the suit property and she had validly
executed sale deed Ex. P-5, dated 13.11.1995. Learned Appellate Court
also held that there was no cogent and convincing evidence on record to
demonstrate that at what time, either Rajamandu and after her death,
Kaushalaya Devi were dispossessed from the suit land. As per the learned
Appellate Court, oral evidence led to this effect by the appellant did not
inspire confidence. On these findings, learned Appellate Court upheld the
.
judgments and decrees passed by the learned Trial Court.
14. In this background, now this Court will answer the substantial
questions of law framed in these two appeals.
Substantial questions of law Nos. 1 & 2:
15. I have carefully gone through the judgments and decrees
passed by the learned Courts below as well as the record of the case. Ex.
D-1 is the compromise entered into between Ram Nath, father of
Shambhoo and Rajamandu and Ex. D-2 is the copy of decree so passed
on the basis of the said compromise.
16. A careful perusal of the pleadings demonstrates that in Civil
Suit No. 93/96 filed by Shambhoo Ram, the pleadings were to the effect
that Ram Nath and Nathu Ram were real brothers and though Nathu Ram
was married, but he died issueless in the year, 1927 and plaintiffs were
the successors-in-interest of deceased Nathu Ram. It was further pleaded
that Smt. Rajamandu alias Mondu, widow of Nathu, succeeded the estate
of Nathu Ram as a limited owner, who by oral gift deed transferred the
suit land to Smt. Kaushalya Devi in 1937 for her lifetime. Kaushalya Devi
thereafter made a Will of the entire land in favour of Pratap Singh in the
year, 1971. After the death of Kaushalya Devi, property was succeeded by
Partap Singh on the basis of Will dated 22.03.1971, who sold the same to
Bachittar Singh, his brother. According to the plaintiffs, Rajamandu and
Kaushalya Devi were limited owners, as they had only life estate interest
.
and any transfer of the suit land by Rajamandu to Kaushalya Devi and by
Kaushalya Devi to Partap Singh was not valid in law. Further according to
the plaintiffs, sale effected by Partap Singh in favour of Bachittar Singh
was ineffective, illegal and invalid and on these grounds, a decree of
declaration was prayed that the plaintiffs were owners in possession of the
suit land and entries showing defendant No. 2 Bachittar Singh as owner in
possession in his capacity as purchaser from Partap Singh were illegal
and invalid. Now, as has been observed by the learned Trial Court also,
there was no specific averment in the plaint that the estate of Nathu Ram,
which was inherited by Rajamandu was ancestral. Similarly, in Civil Suit
No. 167 of 1996, titled Bachittar Singh Vs. Shri Shambhoo Ram, in
answer to the plaint by way of written statement, there is no averment by
Shambhoo Ram to the effect that the suit property was ancestral in the
hands of Nathu Ram. On the contrary, in para-1 of the written statement,
it has been mentioned by Shambhoo Ram that the land in suit was
previously owned and possessed by Nathu Ram and after the death of
Nathu Ram, who was not having any male issue, mutation has been
sanctioned in the name of Rajamandu, who gifted the same to Kaushalya
Devi with the condition that she was to enjoy the same during her lifetime.
In this background, this Court is of the considered view that the findings
returned by the learned Trial Court, as affirmed by the learned Appellate
Court that the suit property has to be treated as self acquired of Nathu
.
Ram, are correct findings. Now, in this backdrop, when one peruses the
Scheme of The Hindu Succession Act, this Court concurs with the findings
returned by both the learned Courts below that Kaushalya Devi, after the
death of Rajamandu, was legally entitled to inherit the property of Nathu
Ram, in her capacity as the daughter of Nathu Ram. This Court concurs
with the findings returned by the learned Trial Court, as affirmed by the
learned Appellate Court that there was no bar in law, which prevented
Kaushalya Devi from inheriting the estate of Nathu Ram after the death of
his widow Smt. Rajamandu, i.e., mother of Kaushalya Devi. Now, it is a
matter of record that Kaushalya Devi was alive when The Hindu
Succession Act, 1956 came into force and by virtue of the provisions of
Section 14(1) thereof, her limited right over the estate of Nathu Ram thus
got converted into full ownership. In this view of the matter, it cannot be
said that on a true and proper construction of compromise Ex. D-1 and
compromise decree Ex. D-2 as well as Section 14 of The Hindu
Succession Act, Kaushalya Devi had a limited estate, which could not ripe
into full ownership and, therefore, the sale deed executed by her in favour
of Bachittar Singh, was bad in law. It can also not be said that the findings
of the learned Courts below are based on misreading and misconstruction
of the oral and documentary evidence. Both the substantial questions of
law are answered accordingly.
.
Substantial question of law No. 3:
17. Learned Courts below have returned concurrent findings to
the effect that Shambhoo Ram did not lead cogent evidence to
demonstrate that when Rajamandu and Kaushalya Devi were ousted from
the suit property and when the same came in the possession of
Shambhoo. Learned Trial Court while holding that Bachittar Singh was in
physical possession of the suit land, held that Partap Singh, Power of
Attorney holder of Bachittar Singh and independent witness Mangtoo had
deposed in the Court that after purchase of the suit land, Bachittar Singh
was in cultivating possession thereof. Learned Trial Court held that though
Shambhoo disputed this fact, however, there was nothing on record to the
contrary. Learned Trial Court held that sale deed, which was duly
exhibited on record as Ex. P-5, vide which, the suit land was sold,
revealed that at the time of sale, Kaushalya had delivered the possession
of the suit land in favour of the other parties. On these basis, learned Trial
Court held that Kaushalya had in fact delivered possession of the suit land
to the other parties during her life time and Naib Tehsildar-Milkhi Ram,
who had entered the witness box as PW-1 in Civil Suit No. 93/96, had also
deposed that even during lifetime of Kaushalya, the possession of the suit
land was with Partap Singh, the Power of Attorney holder of Bachittar
Singh. These findings have been upheld by the learned Appellate Court.
.
18. During the course of arguments, it could not be demonstrated
that these findings were perverse and not borne out from the record.
Therefore, it cannot be said that the findings returned by the learned Court
below that Shambhoo Ram was not in possession of the suit property
were de hors the evidence on record. Substantial question of law is
answered accordingly.
19. In view of the discussions held hereinabove, these appeals
being devoid of any merit, are dismissed, so also pending miscellaneous
applications, if any. No order as to costs.
(Ajay Mohan Goel)
Judge
September 24, 2021
(bhupender)
