Punjab-Haryana High Court
(O&M) Kartar Singh And Others vs Beer Singh And Others on 3 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:045148
RSA-699-1991(O&M) 2024:PHHC:045148
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145 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-699-1991(O&M)
Date of decision :03.04.2024
Kartar Singh and others ...Appellants
Vs.
Beer Singh (Deceased) through
his LRs and others ...Respondents
CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. S.D. Bansal, Advocate
for the appellants.
Mr. Ghulam Nabi Malik, Advocate
for respondent No.1 (iv to vi).
Mr. Som Nath Sharma, Advocate
for respondents No. 2 and 8.
Mr. R.K. Sharma, Advocate
for respondents No. 4, 5 and 6.
ANIL KSHETARPAL, J. (Oral)
1. In this regular second appeal, the plaintiffs assails the correctness
of judgment and decree passed by the First Appellate Court, which in turn has
reversed the judgment and decree passed by the trial Court.
2. In order to comprehend the issue involved in the present case
relevant facts in brief are required to be noticed.
3. Hamela died leaving behind his three sons, namely, Jati, Faqiria
and Duni. Jati was unmarried and issueless. He sold his share of the property in
favour of his nephew and wife of another nephew, namely, Beer Singh and
Smt. Satya wife of Waryam Singh son of Faqiria.
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3. The correctness of the aforesaid sale deed was challenged by the
plaintiffs. In fact, Faqiria had seven sons and a daughter. As many as five sons
and children of Faqiria's another son filed the suit claiming that the property is
joint Hindu family, ancestral and co-parcenary property and therefore, Jati has
no right to alienate the same. The trial Court decreed the suit, however, it was
reversed by the First Appellate Court. The Regular Second Appeal filed by the
plaintiffs was summarily dismissed. However, in Civil Appeal No.4632 of
1989, the Hon'ble Supreme Court vide order dated 15.11.1989, remitted the
matter back to the First Appellate Court to decide the matter afresh. In
compliance with the directions, the First Appellate Court has re-examined the
matter and reversed the judgment and decree passed by the trial Court.
4. The correctness of the judgment passed by the First Appellate
Court in the second round of litigation is subject matter of challenge in this
Regular Second Appeal.
5. Heard the learned counsel representing the parties at length and
with their able assistance perused the paper-book alongwith the requisitioned
record of the Lower Court.
6. Learned counsel representing the appellant submits that the First
Appellate Court has once again committed the same error. He submits that the
First Appellate Court has failed to examine the effect of co-parcenary between
Hamela, Faqiria, Jati, and Duni and children of Faqiria. He further submits that
the property is joint Hindu family property and the defendants have failed to
prove that the sale deed was executed on payment of the sale consideration.
7. Per contra, learned counsel representing the respondents submits
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that the plaintiffs have failed to prove that the property was co-parcenary
property and Jati was last male holder. While relying upon paragraph 223 of
Hindu Law by Mulla, 15th Edition, they submit that Jati died issueless and
therefore, Jati was absolute owner.
8. This Court has considered the submissions of learned counsel
representing the parties.
9. With respect to the first submission of the learned counsel
representing the appellant, it will be noticed that the Hon'ble Supreme Court
while remanding the matter back to the District Judge has made observations
that the facts have not been investigated properly by the Courts below and no
final expression has been made on the entire issue. Hence, the Hon'be Supreme
Court's order is required to be read in that context.
10. Moreover, the plaintiffs have failed to lead evidence to prove that
any co-parcenary existed between Hamela, his three sons and seven sons of
Faqiria. PW2, while appearing in evidence has admitted that there was partition
during the life time of Jati. This is the positive finding recorded by the First
Appellate Court while accepting the appeal. There is no challenge to its
correctness. Moreover, the First Appellate Court has observed that from the
perusal of jamabandis for the year 1957-58 and 1961-62, it is evident that the
share of the parties were separate and the share of children of Faqiria were also
separate. It has also come on record that the parties are residing separately and
some members of the family are in service. There is also no challenge to the
correctness of findings of the First Appellate Court on the part of the appellant.
Furthermore, it is noticed that the plaintiffs were required to prove that when
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the co-parcenary came into existence particularly when the parties were
recorded separate owners of the property.
11. With respect of the argument of learned counsel representing the
plaintiffs that the payment of Rs. 10,000/- at the time of execution of the sale
deed has not been proved, it will be noticed that the plaintiffs have no locus to
challenge the sale deed on account of non-payment of sale consideration. Late
Sh. Jati never disputed the payment. He acknowledged the receipt of the
payment. Additionally, the sale deed resulted in transfer of title and even if the
argument of learned counsel representing the plaintiffs is accepted, still the sale
cannot be set aside on this count unless the sale was conditional.
12. It is clarified here that joint Hindu family does not necessarily
result in joint Hindu family property. In this case, even existence of joint Hindu
family is not proved, particularly when some parties are residing separately and
some of them are in jobs.
13. Hence, no ground for interference is made out against the findings
of the fact arrived at by the First Appellate Court.
14. Dismissed.
(ANIL KSHETARPAL)
03.04.2024 JUDGE
neeraj Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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