Mohinder Singh vs Narinderpal Singh And Ors
2023 Latest Caselaw 22474 P&H

Punjab-Haryana High Court

Mohinder Singh vs Narinderpal Singh And Ors on 21 December, 2023

                                                       Neutral Citation No:=2023:PHHC:164908




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RSA-755-2017 (O&M)                                                     -1-


            IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                                   RSA-755-2017 (O&M)
                                               RESERVED ON: 05.10.2023
                                             PRONOUNCED ON: 21.12.2023

MOHINDER SINGH
                                                                .....APPELLANT

                                  VERSUS

NARINDERPAL SINGH AND OTHERS
                                                              .....RESPONDENTS

CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL.

Present: Mr. Tribhawan Singla, Advocate for for the appellant.

Mr. Amrinder Singh, Advocate for Mr. Gaurav Sharma, Advocate for respondent No.2.

Dr. Surya Parkash, Advocate with Mr. Ankush Aggarwal, Advocate and Mr. Vikram Amarnath Garg, Advocate for respondent No.5.

None for respondents No.1, 3 and 4.

VIKRAM AGGARWAL, J

1. This is plaintiff's second appeal against concurrent findings

recorded by both the Courts below in a suit for declaration filed by him. For

the sake of convenience, the parties shall be referred as per their original

status.

2. The plaintiff-Mohinder Singh filed a suit for declaration to the

effect that he was the owner in possession of land to the extent of 234/994

share out of land measuring 49 Kanals 14 Marlas, half share out of land

measuring 13 Kanals 19 Marlas and 21/192 share out of land measuring 2

Kanals 8 Marlas owned by his father Gurdev Singh (fully described in the

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plaint) (hereinafter referred to as the 'disputed land') situated at Barnala

(Punjab). A declaration was also sought that the Will dated 27.01.1999

executed by Gurdev Singh in favour of the defendants and the consequential

mutation dated 28.11.2006 sanctioned on the basis of the said Will were

illegal, null and void and had no bearing upon the rights of the plaintiff. The

relief of joint possession was also sought along with consequential relief of

permanent injunction.

3. One Kehar Singh was survived by his son Bishan Singh. Bishan

Singh had two sons namely Gurdev Singh (plaintiff) and Darshan Singh.

Gurdev Singh further had two sons namely Narinderpal Singh and Tejinder

Singh (defendants No.1 and 2) whereas Darshan Singh also had two sons

namely Gurwinder Singh and Harwinder Singh (defendants No.3 and 4). The

case set up by the plaintiff was that the disputed land was coparcenary

property since it was owned by Bishan Singh. After the death of Bishan

Singh, the land devolved upon Kehar Singh and after Kehar Singh, it

devolved upon the plaintiff and defendants No.3 and 4 since the brother of the

plaintiff namely Darshan Singh had expired on 27.07.2006 during the lifetime

of Gurdev Singh. Gurdev Singh had expired on 10.11.2006 and, therefore, the

disputed land had been inherited in equal shares by the plaintiff and

defendants No.3 and 4. It was pleaded that under the circumstances, Gurdev

Singh was not competent to execute Will dated 27.01.1999 and, in any case,

the Will and the consequential mutation dated 28.11.2006 had no bearing

upon the rights of the plaintiff.

4. The suit was opposed by the defendants. A stand taken was that

the disputed land was not coparcenary property. Certain preliminary

objections were also raised. A stand was taken that the defendants were

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owners of the disputed land in accordance with the Will dated 27.01.1999 and

that the Will had been executed by Gurdev Singh in their favour since Gurdev

Singh was pleased with their services.

5. In the replication, the averments made in the written statement

are denied and those made in the plaint were reiterated.

6. From the pleadings of the parties, the trial Court framed the

following issues for adjudication:-

1. Whether suit property is joint Hindu family coparcenary property? OPP

2. Whether the plaintiff is owner to the extent of ½ share of property owned by Gurdev Singh after his death by having received as per Hindu Law? OPP

3. Whether plaintiff is entitled for declaration as prayed for? OPP

4. Whether plaintiff is entitled for possession as prayed for? OPP

5. Whether plaintiff is entitled for permanent injunction as prayed for? OPP

6. Whether the mutation no.6618 dated 28.11.2006 having been sanctioned on the basis of Will dated 27.01.1999 is null and void and does not effect the rights of plaintiff? OPP

7. Whether plaintiff has got no locus-standi or cause of action to file present suit? OPD

8. Whether plaintiff is estopped by his own act and conduct from filing present suit? OPD

9. Whether suit of the plaintiff is not maintainable in the present form? OPD

10.Whether suit is bad for mis-joinder and non-joinder of necessary parties? OPD

11. Relief.

7. Parties led their respective evidence.

8. The trial Court dismissed the suit filed by the plaintiff. It was

held that the disputed land was not coparcenary property but was in fact the

property of Gurdev Singh which he had inherited from his father Kehar Singh.

The trial Court held that the property of Kehar Singh was inherited in equal

shares by Gurdev Singh and his sister Angrej Kaur and, therefore, the

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disputed land lost the character of ancestral property and went into the hands

of Gurdev Singh as his self-acquired property and that under the

circumstances, he was competent to execute the Will dated 27.01.1999.

9. The First Appellate Court also took a similar view and rejected

the appeal filed by the plaintiff.

10. Aggrieved by the same, the plaintiff is in second appeal.

11. I have heard learned counsel for the parties and with their

assistance, have perused the record.

12. Learned counsel for the appellant-plaintiff submitted that both

the Courts erred in non-suiting the plaintiff. It was submitted that it had been

proved on record that the disputed land was coparcenary property and,

therefore, both the Courts took an erroneous view that the same was the self-

acquired property since it had been inherited by Gurdev Singh and his sister

Angrej Kaur. Learned counsel referred to the oral and documentary evidence

led on the record of the case and submitted that the judgments passed by the

Courts below are liable to be set aside. In support of his contentions, learned

counsel relied upon the judgments passed by the Hon'ble Apex Court in the

case of "Bhanwar Singh Vs. Puran and Others", 2008(2) RCR (Civil) 99,

"Rohit Chauhan Vs. Surinder Singh and Others", 2013 AIR (SCW) 4715,

"Eramma Vs. Veerupana and Others", 1966 AIR (SC) 1879 and "M.

Yogendra and Others Vs. Leelamma N. and Others", 2009 (15) SCC 184.

13. On the other hand, learned counsel for the respondents submitted

that there is no illegality or infirmity in the findings recorded by the Courts

below. In fact, the appeal was not contested before this Court by defendants

No.1, 3 and 4 and only learned counsel appearing on behalf of the subsequent

purchaser-defendant No.5 who had been impleaded as a party during the

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pendency of the present appeal addressed arguments. He supported the

findings recorded by the Courts below and submitted that since Gurdev Singh

had inherited the disputed land from his father Bishan Singh in equal shares

along with his sister Angrej Kaur, it had lost the character of ancestral

property and would be taken to be the self-acquired property of Gurdev Singh

and under the circumstances, Gurdev Singh would be fully competent to

execute a Will dated 27.01.1999 qua the said property. In support of his

contentions, learned counsel placed reliance upon the judgments passed by the

Hon'ble Supreme Court in the case of "M. Arumugam Vs. Ammaniammal

and Others", (2020) 11 SCC 103 and "Uttam Vs. Saubhag Singh and

Others", (2016) 4 SCC 68 as also the judgment passed by this Court in the

case of "Kanha Vs. Mange Ram and Others", 2020 SCC Online P and H

5176.

14. I have considered the submissions made by learned counsel for

the parties.

15. Before adverting to the merits of the appeal, it would be essential

to observe that that the requirement of framing of a substantial question of law

in second appeal in terms of the provisions of Section 100 of the Code of Civil

Procedure and as had been laid down in various pronouncements by the

Hon'ble Apex Court including 'Hero Vinoth (minor) versus Seshammal'

2006 (5) SCC 545, was subsequently held to be not there by the Hon'ble Apex

Court. It was held that in the States of Punjab and Haryana, it is the

provisions of the Punjab Courts Act, 1918 which would be applicable and,

therefore, Section 100 CPC would not hold the field and, accordingly, there

would be no requirement of framing substantial questions of law in second

appeal. With regard to the States of Punjab and Haryana, it was so held in

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'Kirodi (Since Deceased) through his Lr. Versus Ram Parkash &Ors.' 2019

(3) R.C.R. (Civil) and 'Satyender and Ors. Versus Saroj and Ors.' 2022 (12)

Scale 92 respectively.

15.1 It was further held in the judgment of Satyender and others

Versus Saroj and others (supra) that though the requirement of formulation of

a substantial question of law is not necessary, yet Section 41 of the Punjab

Courts Act requires that only such decisions are to be considered in second

appeal which are contrary to law or to some custom or usage having the force

of law or the Courts below had failed to determine some material issue of law

or custom or usage having the force of law. It was held that what was,

therefore, important was still a "question of law". It was also held that a

second appeal was not a forum where the Court would re-examine or re-

appreciate questions of fact settled by the trial Court and the Appellate Court.

While holding so, the judgment in the case of Kirodi (Since Deceased)

through his Lr. Versus Ram Parkash and Ors. (supra) was also considered.

16. There is no dispute with regard to execution of the Will dated

27.01.1999. The only question is as to whether Gurdev Singh was competent

to execute the Will or not which was further dependent upon the question as

to whether the disputed land was coparcenary property or not. It needs to be

mentioned here that for proving that a property is ancestral/coparcenary

property, a specific procedure has to be followed. Excerpts have to be drawn

which in any case was not done. However, revenue record was produced to

prove that the property was owned by Bishan Singh and from Bishan Singh, it

went to Kehar Singh and from Kehar Singh to Gurdev Singh. Here it would be

further relevant to note that Gurdev Singh was not the sole person who had

inherited the property from Kehar Singh but he had inherited it by way of

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succession in equal shares with his sister Angrej Kaur as per the provisions of

Section 8 of the Hindu Succession Act, 1956. Once the property had been

acquired by way of succession, it would lose its ancestral character as was

held by the Hon'ble Apex Court in the case of "Commissioner of Wealth

Tax, Kanpur Etc. Vs. Chander Sen Etc", 1986(3) SCC 567", Bhanwar

Singh Vs. Puran and Others" (supra) and "Uttam Vs. Saubhag Singh and

Others" (supra). These judgments were relied upon by a Co-ordinate Bench

of this Court and the Co-ordinate Bench also came to the conclusion when a

property is received by way of natural succession under Section 8 of the

Hindu Succession Act, 1956, by Class I heirs, the coparcenary seizes to exist

and the property in the hands of the heirs does not continue to be coparcenary

property. This view was taken by the Co-ordinate Bench in the case of

"Kanha Vs. Mange Ram and Others" (supra).The conclusion drawn by the

Co-ordinate Bench is extracted as under:-

"15. It is not in dispute that family of Dhiru had shifted from Village Badal to Village Damkora almost 100 years before filing of the suit. Dhiru, the father had divided land situated in village Damkora measuring 110 bighas amongst his four sons Mange Ram, Raj Karan, Udey Singh and Rajesh. Mange Ram admitted that before dividing the agricultural land, Dhiru had also sold 30 bighas of land. It is also not in dispute that when Ganga Bishan died on 8.7.1968, property owned by Ganga Bishan came to be inherited by his widow, three sons and a daughter. Thus, the succession of Ganga Bishan took place in accordance with section 8 of the Hindu Succession Act, 1956. Mutation in this regard was sanctioned in the year 1968. Copy of the mutation is Ex.P-3, produced by the plaintiff himself. Thus, once under section 8 of the Hindu Succession Act property came in the hands of class 1 heirs, such property would

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not continue to be a coparcenary property. In this regard, reference can be made to the judgments passed by the Hon'ble Supreme Court in 'Commissioner of Wealth Tax, Kanpur v. Chander Sen' 1986 (3) SCC 567. 'Bhanwar v. Puran 2008 (3) SCC 87 and 'Uttam v. Saubhag Singh (2016) 4 SCC 68. The conclusion drawn in the case of Uttam (supra) is extracted as under:-

"20. Some other judgments were cited before us for the 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,

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the interest of a male Hindu in Mitakshara coparcenary property is 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 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."

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17. This Court is an agreement with the view taken by the Co-

ordinate Bench while relying upon the judgments of the Hon'ble Apex Court

in the case of "Commissioner of Wealth Tax, Kanpur Etc. Vs. Chander Sen

Etc" (supra), "Bhanwar Singh Vs. Puran and Others" (supra) and "Uttam

Vs. Saubhag Singh and Others" (supra).

18. It has also come on record that the property inherited by Angrej

Kaur was subsequently transferred by Angrej Kaur to Gurdev Singh and

Darshan Singh in equal shares. However, this alone would not be of any

consequence in so far as the nature of the property is concerned. It has also

come on record that Gurdev Singh and Darshan Singh had also alienated

property to colonizers for being developed as a colony. Had the property been

coparcenary property, they themselves would also not have been competent to

alienate the same.

19. It would also be worthwhile to mention here that during the

pendency of the suit before the trial Court initially, a compromise Ex. P-1 had

been placed on record and an application had been moved by defendants No.1,

3 and 4 for being transposed as plaintiffs. However, subsequently, this prayer

was not pressed and was accordingly declined by the trial Court when an

application under Order 10 was moved by defendants No.1, 3 and 4. This fact

seems to have escaped the attention of both the Courts below. Though it may

not have a direct bearing on the merits of the issue, however, it would be

important to make a mention of the same lest the issue is raked up at a

subsequent stage.

20. I have perused the judgments relied upon by learned counsel for

the plaintiff. In the case of "Bhanwar Singh Vs. Puran Singh and Others"

(supra), the applicability of Section 8 of the Hindu Succession Act, 1956 to

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the facts of that case was being examined by the Hon'ble Apex Court. There,

one Bhima was the owner of the property. He expired in the year 1972 leaving

behind his son Sant Ram and three daughters. The appellant before the

Hon'ble Apex Court was the son of Sant Ram and was born in 1977. The

properties in suit had been partitioned between Sant Ram and his sisters and

their respective shares were reflected in the revenue records of 1973-74. The

appellant before the Hon'ble Supreme Court contended that the properties of

Bhima were joint family properties and, therefore, could not have been

transferred by Sant Ram without there being any legal necessity. The Hon'ble

Apex Court, after examining the law on the subject, held that since the

properties had been partitioned among Sant Ram and his sisters, Sant Ram

duly possessed the right to transfer the lands which had fallen to his share. It

was further held that in terms of Section 19 of the Hindu Succession Act,

1956 since Sant ram and his sisters became tenants in common and took the

properties per capita and not per stripes each one of them was entitled to

alienate their share. This judgment would, therefore, not come to the aid of the

plaintiff but would help the defendants. In the case of "Rohit Chauhan Vs.

Surinder Singh and Others" (supra), it was held by the Hon'ble Apex Court,

that the moment a son is born, the property becomes a coparcenary property

and the son would acquire interest in that property. This judgment would also

not come to the aid of the appellant because the fact of Mohinder Singh

having been born in the year 1954 was not pleaded anywhere and there is no

evidence to this effect on record. Even otherwise, as per the own case of the

plaintiff, Mohinder Singh was born in the year 1954 whereas Kehar Singh

expired in 1959 and it is thereafter that Gurdev Singh and Angrej Kaur

inherited the properties of Kehar Singh by way of intestate succession. Still

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further, both Gurdev Singh and Mohinder Singh alienated certain properties

and, therefore, under the circumstances, as already held, the property lost its

character of coparcenary property. For the same reasons, the judgment in the

case of "M. Yogendra and Others Vs. Leelamma N. and Others" (supra)

would not be applicable.

In view of the aforementioned facts and circumstances, this Court

does not find any illegality in the findings recorded by the Courts below. The

appeal is accordingly found to be devoid of merit and is, therefore, dismissed.

(VIKRAM AGGARWAL) JUDGE RESERVED ON: 05.10.2023 PRONOUNCED ON: 21.12.2023 Prince Chawla

Whether speaking/reasoned Yes/No Whether reportable Yes/No

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