Punjab-Haryana High Court
Mohinder Singh vs Narinder Singh Etc on 16 April, 2024
Neutral Citation No:=2024:PHHC:051317
RSA No.599 of 1993 (O&M) 2024:PHHC:051317
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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RSA No.599 of 1993 (O&M)
Reserved on:05.04.2024
Pronounced on: 16.04.2024
Mohinder Singh (deceased)
through his LRs .....Appellant(s)
Vs
Narinder Singh (deceased)
through his LRs & Anr. .....Respondent(s)
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued By:-Mr. Ashish Aggarwal, Senior Advocate with
Ms. Aashna Aggarwal, Advocate and
Mr. Karan Singla, Advocate for the appellant(s)
Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Akshay Jindal, Advocate, Mr. Aditya Jain,
Advocate and Mr. Pankaj Gautam, Advocate
for the respondent(s).
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DEEPAK GUPTA, J.
This Regular Second Appeal is directed against concurrent
findings of the Courts below, whereby suit of the plaintiff - appellant has
been dismissed. In order to avoid confusion, parties shall be referred as per
their status before the trial Court.
2. Sole plaintiff - Mohinder Singh (appellant herein, through his
legal representatives); and defendant No.1 - Narinder Singh (respondent
No.1 herein through his LRs) are real brothers being sons of Sohan Singh.
Defendant No.2 - Amarjit Singh (respondent No.2 herein) is the son of
Narinder Singh i.e., grandson of Sohan Singh. Dispute is regarding two
properties - (i) situated in Adda Bazar, Tarn Taran, with present Municipal
No.6/223-224; and (ii) house situated in Mohalla Rodupura, Tarn Taran,
bearing present Municipal Number 05/74, both detailed and described in
headnote of the plaint.
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3. Plaintiff filed Civil Suit (No.359 of 1984) for declaration by
pleading that parties constituted a Joint Hindu Family (JHF) and the suit
properties were jointly owned by the said JHF. According to him, an
agreement dated 22.08.1981 (Ex.P.1) was entered into between him and
defendant No.1, as per which none of them or none of their legal heirs, will
get any transfer deed in their favour from their father and that suit properties
shall remain joint. The said agreement was entered to keep the integrity and
jointness of the JHF. It was alleged that defendant No.2 had started claiming
to be exclusive owner of the property situated in Adda Bazar, Tarn Taran, i.e.
shop and its First Floor on basis of a sale deed in respect thereof from Sohan
Singh. Plaintiff claimed that Sohan Singh was not in proper state of mind
and used to remain unwell for more than two years and so, if any such
transfer deed was executed, the same was void and the result of
misrepresentation and act of fraud and not binding upon him. Plaintiff
prayed for decree of declaration that he and defendant No.1 are joint owners
of both the properties. He also prayed for a consequential relief of
permanent injunction to restrain defendants from interfering in the title of
the plaintiff and defendant No.1 in any manner.
4. Defendant No.1 in his written statement denied that the parties
constituted any ; or any of the property was jointly owned by any such JHF.
According to him, plaintiff has been living separately from him (defendant
No.1) and their father since long time. He further submitted that the shop
property as situated in Adda Bazar, Tarn Taran, was exclusively owned by
Shri Sohan Singh by virtue of a sale deed dated 20.12.1954 (Ex.D7) and
thus, it was his self-acquired property, with which neither plaintiff nor
answering defendant had any concern. Sohan Singh had sold the said
property to defendant No.2 by way of sale deed dated 29.09.1981
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(Ex.DW8/A). Defendant No.1 further pleaded that he was in possession of
the said property as tenant, having been inducted therein by Sohan Singh by
virtue of Rent Notes dated 22.09.1977 (Ex.D3 and Ex.D4). Regarding the
house property bearing Municipal No.5/74 situated in Mohalla Rodupura,
Tarn Taran, it was claimed by defendant No.1 that it was exclusively owned
by him, as he had purchased the vacant site of the said house vide sale deed
dated 11.12.1968 (Ex.D6) and, thereafter, built the house thereon with his
own funds after getting a site plan sanctioned from the Municipal
Committee, Tarn Taran. He admitted the possession of the plaintiff on the
said house but pleaded that plaintiff being his brother, he was living therein
with his permission as a licensee without having any ownership rights
therein. Defendant No.1 further pleaded that in case any part of the property
was owned by Sohan Singh at the time of his death, then by virtue of a
registered Will dated 25.07.1980 (Ex.D2), he (defendant No.1) had become
owner thereof. Defendant denied any Agreement/ Memorandum dated
22.08.1981 (Ex.P1) as relied by the plaintiff. With this stand, he prayed for
dismissal of the suit.
5. Defendant No.2 in his separate written statement claimed to be
owner of the property situated in Adda Bazar, Tarn Taran by way of sale
deed dated 29.09.1981 (Ex.DW8/A) in his favour, having been purchased for
consideration of ₹ 25,000/-, and on which defendant No.1 was a tenant
during the lifetime of Sohan Singh vide Rent Note dated 22.9.1977.
6. Following issues were framed for adjudication:-
"1. Whether the plaintiff and defendant No.1 constituted a
Joint Hindu Family as alleged? OPP.
2. Whether the properties in dispute are Joint Hindu Family
properties as alleged? If so, between whom and its
effect? OPP.
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3. Whether there was any agreement dated 23.8.1981
between the plaintiff and defendant No.1 regarding the
disputed properties? If so, its effect? OPP.
4. Whether the suit is properly valued for the purpose of
court fee and jurisdiction?OPP
5. Whether the suit is not maintainable in the present form?
OPD.
6. Whether the defendant No.1 is in possession of the
property bearing No.6/223/224 as a tenant If so, under
whom?OPD
7. Whether Sohan Singh deceased sold away the property
bearing No.6/223/224 in favour of Amarjit Singh
defendant No.2 vide sale deed dated 29.9.1981. If so, its
effect? OPD
8. Whether Sohan Singh executed a valid Will dated
25.07.1980 in favour of defendant No.1? If so, its effect?
OPD.
9. Whether the plaintiff is estopped by his own act and
conduct from filing the present suit? OPD.
10. Relief.
7. Trial Court decided Issues No.1, 2 and 3 against the plaintiff by
holding that he had failed to prove that he and defendant No.1 constituted
any Joint Hindu Family; or that properties in dispute were Joint Hindu
Family Properties or that there was any agreement as relied by the plaintiff.
Issues No.4, 5 and 9 were decided in favour of the defendants. The findings
on Issue Nos.6, 7 and 8 went in favour of the defendants by holding that
Sohan Singh was the exclusive owner of the shop property as situated in
Adda Bazar by virtue of sale deed dated 20.12.1954, which he later on sold
to defendant No.2 by way of Sale Deed dated 29.09.1981 (Ex.DW8/A). It
was further found that defendant No.1 - Narinder Singh was the exclusive
owner of the house property as situated in Mohalla Rodupura, Tarn Taran by
virtue of a Sale Deed dated 11.12.1968 (Ex.D6). It was also found that
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Sohan Singh had executed a valid and registered Will dated 25.07.1980
(Ex.D2) in favour of defendant No.1. With all these findings, the suit was
dismissed vide judgment and decree dated 04.05.1988.
8. All the findings as rendered by the trial Court were upheld by
the First Appellate Court of learned Additional District Judge, Amritsar in
Civil Appeal (RBT) No.11 of 1988/1991 filed by the plaintiff and the said
appeal was dismissed on 19.10.1992.
9. Assailing the afore-said concurrent findings, it is contended by
learned counsel for the appellant- plaintiff that the Courts below failed to
appreciate the relationship between the parties to the effect that they were
real brothers and as per legal presumption, they were members of the Joint
Hindu Family and simply because plaintiff being in service, used to reside
outside, will not disrupt the status of a Joint Hindu Family. Learned counsel
contends that being in service, appellant had been sending all his earnings to
his father Sohan Singh and it is with that nucleus that property had been
purchased by Sohan Singh and, therefore, the alleged sale deed by Sohan
Singh in favour of defendant No.2 was illegal and void. Learned counsel
contends further that defendant No.2 had no source of income so as to
purchase the shop property situated in Adda Bazar nor Sohan Singh had any
necessity to alienate the same; that defendant No.2 did not have any income
to purchase the property and that Courts below also failed to take into
consideration the fact that defendant No.1 - Narinder Singh was in a
position to dominate the will of Sohan Singh. Besides, there were numerous
suspicious circumstances surrounding the Will, as there was no reference
either of the mother of the parties, who was alive at that time or to disinherit
the appellant- plaintiff besides two sisters. Learned counsel also argues that
there was no reason to ignore the agreement dated 22.08.1981 (Ex.P1)
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executed between the parties and that the same did not require any
registration.
10. Refuting the afore-said contentions, learned counsel for the
respondents contended that the Courts below rightly came to the conclusion
that the parties did not constitute any Joint Hindu Family nor any such
family owned any Joint Hindu Family Property. By drawing attention
towards the sale deeds proved on record, it is urged that property situated in
Adda Bazar was exclusively owned by Shri Sohan Singh, which was his
self-acquired property, which was later on sold to defendant No.2; whereas
the plot under-neath the house property in Mohalla Rodupura had been
purchased by defendant No.1 in 1968, on which he built his house and
permitted plaintiff to reside therein as a licensee being his brother and so,
there was no jointness amongst the parties. Learned counsel argues that it
has been rightly held that even if the agreement dated 22.08.1981 (Ex.P1)
was taken into consideration, the same did not create any right in favour of
the plaintiff because the said agreement is not signed by Sohan Singh, who
was the exclusive owner of the shop property of Adda Bazar, Tarn Taran and
in his absence, no such agreement could have taken place. Learned counsel
also argues that there is concurrent finding of facts by the Courts below and
that there is no reason to disturb those findings.
11. I have considered the submissions of both the parties and have
appraised the entire record (available on Document Management System)
(DMS) of this Court.
12. As found by the Courts below, Shri Sohan Singh, the father of
the plaintiff and defendant No.1 had purchased the property situated in Adda
Bazar, Tarn Taran in his name vide a Registered Sale Deed dated 20.12.1954
(Ex.D7). There is no evidence on record to show that Shri Sohan Singh had
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any ancestral property in his hand, so as to arrange funds for purchasing the
property of Adda Bazar Tarn Taran by way of sale deed dated 20.12.1954
(Ex.D7) and thus, clearly it was his self-acquired property. The other
property situated in Mohalla Rodupura was purchased by defendant No.1 by
virtue of sale deed dated 11.12.1968 (Ex.D6). The contention of counsel for
the appellant to the effect that the said property was purchased in the name
of defendant No.1 out of the funds provided by plaintiff is not supported by
any cogent evidence except the oral evidence. Plaintiff never challenged the
said sale deed in favour of defendant No.1 so as to claim ownership of the
said property. Thus, it is found that defendant No.1 was the exclusive owner
of the said property.
13. As per own case of the plaintiff, he being in service has been
residing separately from his father and brother since long. It has been found
from the documentary evidence as referred above that both the properties in
question are self-acquired; one of Sohan Singh and the other of defendant
No.1 - Narinder. It has been further found by the Courts below that there is
no evidence that there was any ancestral property in the hands of Sohan
Singh.
14. There is presumption of jointness of a family, provided it is
joint in food, worship and residence. In the present case, there is no such
evidence to show that plaintiff resided together along with his father in food,
worship or residence. Not only this, even if it be assumed for the sake of
arguments that though it was a joint Hindu family but because of his posting
outside being in service, plaintiff was not staying together with his father,
still there is no presumption that properties owned by the members of the
Joint Hindu Family are also the Joint Hindu Family Property.
15. In order to prove that properties, which are owned by individual
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members of the Joint Hindu Family, are the Joint Hindu Family property, it
must be proved that there is nucleus of a Joint Hindu Family Property and
that the property in question must have been purchased from that nucleus.
The burden to prove is upon the party, who asserts that property is Joint
Hindu Family Property. Reference in this regard can be made to Kulwant
Singh Vs. Makhan Singh, 2003(1) RCR (Civil) 433. Similarly in D.S.
Lakshmaiah & Another Vs. L. Balasubramanyam & Another, 2004(1)
PLR 658, it has been held by Hon'ble Supreme Court as under:-
"18. The legal principle, therefore, is that there is no presumption of a property
being joint family property only on account of existence of a joint Hindu family.
The one who asserts has to prove that the property is a joint family property. If,
however, the person so asserting proves that there was nucleus with which the
joint family property could be acquired, there would be presumption of the
property being joint and the onus would shift on the person who claims it to be
self- acquired property to prove that he purchased the property with his own funds
and not out of joint family nucleus that was available."
16. In the present case, plaintiff has utterly failed to prove the
existence of Joint Hindu Family and even if the Joint Hindu Family is
assumed to be in existence, plaintiff utterly failed to prove that said Joint
Hindu Family had a nucleus, with which the property in question could be
acquired.
17. The main emphasis of learned counsel for the appellant has
been on the alleged Family Settlement dated 22.08.1981 (Ex.P1), which was
purportedly executed between the plaintiff and defendant No.1 and as per
which they agreed that they will not get any transfer deed executed in their
favour from their parents and that property shall remain joint. Although
defendant No.1 has denied the execution of any such family settlement and
alleged the same to be result of fraud but even if it be assumed that any such
settlement had been arrived at between plaintiff and defendant No.1, it has
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absolutely no evidentiary value for the simple reason that it is referring
about the property, which was exclusively owned by Shri Sohan Singh and
who is not a party to the settlement; or a property which is exclusively
owned by defendant No.1. Said settlement could not in any manner
whatsoever bind Sohan Singh not to execute any sale deed regarding his
self-acquired property. As has been found, Sohan Singh sold the property
situated in Adda Bazar by virtue of a registered Sale deed dated 29.09.1981
Ex.DW8/A in favour of defendant No.2.
18. Plaintiff has tried to assail the afore said sale deed on the
ground that defendant No.2 was minor at that time and had no earnings.
However, the Courts below have referred to the statement of DW8 Pritam
Kaur, the mother and guardian of defendant No.2, who proved payment of
requisite consideration by arranging the funds. Even if for the sake of
arguments, it is assumed that no consideration was paid or adequate
consideration was not paid, it was for Sohan Singh to challenge the same.
Plaintiff- Narinder Singh having no right, title or interest in the said
property, has no right to assail the legality or validity of the sale deed in
favour of defendant No.2. As such, it has been rightly held that plaintiff did
not acquire any right whatsoever by virtue of the alleged Family Settlement
dated 22.08.1981 (Ex.P1).
19. If it is to be assumed that said agreement Ex.P1 created any
right in favour of the plaintiff in respect of the house property situated at
Mohalla Rodupura, which is the self-acquired property of defendant No.1,
the said agreement required registration, as it purportedly creates rights for
the first time in favour of plaintiff.
20. As far as the Will dated 25.07.1980 (Ex.D2) is concerned, it is
registered Will, which has been duly proved on record by the testimony of
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attesting witness DW2 Atma Ram. It is a finding of fact recorded by the
Courts below and the said finding does not require any interference.
21. After appraising the judgments as passed by the Courts below,
this Court finds no reason to disturb the concurrent findings recorded by the
Courts. No specific question of law is found to be involved. As such,
holding that the present appeal to be devoid of any merit, the same is hereby
dismissed.
April 16, 2024 ( DEEPAK GUPTA )
renu JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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