Punjab-Haryana High Court
Piara Singh vs Lachhman Singh And Ors on 18 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:052865
RSA-1129-1989 (O&M) 2024:PHHC:052865
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1129-1989 (O&M)
Reserved on: 19.03.2024
Date of decision: 18.04.2024
PIARA SINGH (DECEASED) THROUGH LRS
..Appellant
Versus
LACHHMAN SINGH (DECEASED) THROUGH LRS AND ORS.
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. M.L. Sarin, Sr. Advocate
with Ms. Himani Sarin, Advocate
for the appellant.
Mr. Harjot Singh Bedi, Advocate
for respondents.
ANIL KSHETARPAL, J.
1. Brief facts of the case:-
1.1 In this regular second appeal, the defendant (Sh. Piara Singh)
assails the correctness of First Appellate Court's judgment, which in turn
has reversed the judgment passed by the trial Court.
1.2 For better comprehension of the inter se relationship between
the parties, a small pedigree of the family is demonstrated as under:-
Dhanna Singh
Ganda Singh Sundar Singh
Chet Singh Basant Singh
Lachhman Kundan Tara Piara Dalip
Singh Singh Singh Singh Singh
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1.3 In order to comprehend the issues involved in the present case,
relevant facts, in brief are required to be noticed.
1.4 Sh. Ganda Singh and Sh. Sundar Singh are sons of Sh. Dhanna
Singh. In other words, the common ancestor between the parties is Sh.
Dhanna Singh. Sh. Ganda Singh during his lifetime gifted the property to
Sh. Chet Singh vide mutation No.294 dated 03.12.1947, which was attested
by the Assistant Collector on 28.02.1948. During the lifetime, Sh. Chet
Singh and his cousin Sh. Basant Singh partitioned the property. Sh. Chet
Singh had five sons as depicted in the pedigree. His son Sh. Dalip Singh
who was unmarried and issueless served in the Indian Army and attained
martyrdom. Sh. Chet Singh during his lifetime executed two sale deeds in
favour of his son Sh. Piara Singh. Sh. Lachman Singh, Sh. Kundan Singh
and Sh. Tara Singh filed a civil suit on 02.08.1984, seeking declaration to
the effect that the sale deeds dated 19.11.1982 and 28.03.1984, executed by
Sh. Chet Singh in favour of Sh. Piara Singh are illegal, null and void and
not binding on the rights of the plaintiffs. In substance, the plaintiffs
claimed that the property is ancestral and it has been sold without a legal
necessity by Sh. Chet Singh who was the karta of the joint Hindu family and
the sale is also made without consideration. The family at the time of sale
had no legal necessity and Karta had sold a parcel of land with a garden for
an amount of Rs.7,000/- and he is hell-bent to alienate remaining land
measuring 21 kanal and 9 marlas. In the aforesaid suit, Sh. Chet Singh and
Sh. Piara Singh filed a joint written statement asserting that the suit land is
not the ancestral property and it was owned by Sh. Chet Singh. Plaintiff
No.1 namely Sh. Lachhman Singh never served defendant No.1 and the
plaintiffs misbehaved with him. Sh. Chet Singh asserted that he also
apprehends danger to his life from the hands of his three sons who are
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plaintiffs. It was also asserted that he has executed two sales deeds in favour
of his son Sh. Piara Singh and the sale consideration has been distributed by
defendant No.2 amongst the plaintiffs namely Sh. Lachhman Singh, Sh.
Kundan Singh and Sh. Tara Singh but they are not satisfied with the same.
The existence of any joint Hindu family property was denied and it was
alleged that the plaintiffs are living separately from Sh. Chet Singh. The
parties are 'Jaats' by caste and they are governed by custom in the matters
related to alienation.
1.5 The aforesaid suit was withdrawn when one of the plaintiff
made the statement, 'Ex.D-6' to the effect that "The suit should be
permitted to be withdrawn and if need be, I will file a fresh suit." On the
aforesaid statement of Sh. Lachhman Singh, the suit was dismissed as
withdrawn on 14.11.1984, with the following order:-
"In view of the above statement this suit is dismissed as
withdrawn with no order as to costs. Documents be
returned."
1.6 On 29.11.1984, the same plaintiffs namely Sh. Lachhman
Singh, Sh. Kundan Singh and Sh. Tara Singh again filed a suit for
possession of land measuring 22 kanal and 19 marlas, which was the subject
matter of two sale deeds executed by Sh. Chet Singh in favour of Sh. Piara
Singh. In this subsequent suit, the plaintiff asserted that the suit property is
ancestral and it has been sold by the Karta without legal necessity.
Defendant Sh. Piara Singh contested the suit while claiming that the present
suit is barred under Order XXIII Rule 1(4) of the Code of Civil Procedure,
1908 (hereinafter referred to as the 'CPC'). It was also asserted that the
property is not ancestral property as Sh. Chet Singh had received the
property by virtue of a gift from Sh. Ganda Singh, his father in the year
1947. The trial Court dismissed the suit on both the accounts namely, the
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suit is barred under Order XXIII Rule 1(b) and the property was a self
acquired property. However, the First Appellate Court has held that
subsequent suit is based upon inheritance, and therefore, the subject matter
is substantially different. The suit property is ancestral and coparcenary
property, hence, Sh. Chet Singh's alienation beyond his share is not binding
on the rights of the plaintiffs. In substance the First Appellate Court has
held that Sh. Piara Singh would get 2/5th share, whereas, the plaintiffs Sh.
Lachhman Singh, Sh. Kundan Singh and Sh. Tara Singh are entitled to 3/5th
share in the suit property as per the rules governing the succession.
2. Arguments put forth by the learned counsel representing
the parties:-
2.1 This regular second appeal was admitted for regular hearing,
and it has come up for final disposal after a period of 35 years.
2.2 This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
with the requisitioned lower Court record.
2.3 On the request of the Court, the learned counsel representing
the parties have also filed their respective written submissions, which read
as under:-
"Written submissions on behalf of the appellants:-
"Respectfully Showeth:
:This is a defendant-appellants' appeal against a judgment of
reversal.
I). The first question of law pertains to the suit being barred by
Order 23 Rule 1 (4).
- Having withdrawn the first suit without liberty to file a
fresh one on same cause of action, the present suit is
barred.
- Reference may be made to para 5 of the Trial Court's
Judgment at Page 107.
- This has wrongly been reversed by the Lower Appellate
Court in Paras 9 & 10 at Page 27.
LEGAL SUBMISSIONS
i). Both suits for 22K 19M only i.e. land covered by the two sale
deeds made by Chet Singh in favour of Piara Singh only.
- Chet Singh had also left more land (not covered by the sales) as
mentioned in the previous Written Statement Ex. D-4 ( at Pg. 95 of
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the record) - Para 3.
ii). Both suits based on challenge to the 2 sale deeds Ex. D-1 & Ex.
D-2.
- Inheritance has no relevance till sale deeds are set-aside.
- In both the suits, the sale deeds had to be set-aside before any
relief could be granted to the plaintiff.
- So, 2' suit barred. - reference may be made to page 7 of these
written submissions.
- Reliance on 1933 Lah 943 is wrong.
1933 Lah 943 Judgment No.A
(Ali Muhammad V. Karim Baksh & ors.) (Para 17)
- That was a case where a sale by a widow was challenged the
ground sale is NOT binding after death of widow - declaration was
sought on behalf of ALL revisioners.
- When the widow died, the suit was withdrawn.
- H.C. held on death of widow, plaintiffs sought possession - on
their own behalf.
- Reference may be made to Page 44 Col. 1.
- In present case in both cases, plaintiff has to prove the 2 sale
deeds are bad-inheritance, makes no difference.
- Fully covered by Order 23 Rule 1 (4)
II). ON MERITS:
: Both sales Ex. D-1 & Ex. D-2 are valid.
i) The property is NOT ancestral. (In fact, it has to be
shown it is coparcenary)
- To be co-parcenary it has to pass through 3 generations -
here there is no such evidence.
2016 Pb. & Hry 192 (A.G. Masih J.) Judgment No.1
(Kamlesh Devi V Mangat Ram & Ors.)
(Case of gift)
(ii) Coparcenary nature to be proved by documentary
evidence that inherited by father to son to grandson
2011 (1) Supreme Today 574 Judgment No.2
(Saroja V. Santhilkumar & Ors.) (Para 12)
- Here, there is no such evidence.
2016 (3) PLR 721 (Amit Rawal J.) Judgment No.3
(Kulwant Singh V. Harbhajan Singh & Ors.) (Paras 4 & 5)
- Property to be proved to be ancestral by
documentary evidence.
- No presumption property is Joint Family Property.
2010 (11) SCC 777 Judgment No.4
(Sameer Kumar Pal & Anr. V. (Paras 10 & 11)
Sheikh Akbar & Others)
- Lower Appellate Court holds to the contrary at page 33
top and at page 41 top.
- No presumption property is Joint Family Property.
(iii) Only thing proved in the present case is gift from
Ganda Singh to Chet Singh - then sale by Chet Singh to
Piara Singh.
- It is essential to prove that property was co-parcenary in
hands of Ganda Singh to hold it to be ancestral.
- No such evidence
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1980 Pb. 345 Judgment No.5
(Smt. Ram Kali & Anr. V. (Paras 3 & 6)
Pardip Kumar & Others)
- Where it was held that land not ancestral in hands of
vendor who sold to son - it cannot be challenged.
1953 S.C. 495 Judgment No.6
(C.N. Arunachala Mudaliar V. C.A. (Paras 11 to 15)
Muruganatha Mudaliar & Anr.)
- Merely because property has come by gift from ancestor
will not make property ancestral.
- It has to be proved to be ancestral in the hands of donor
Reliance on 1933 Lah 539 is wrong.
1933 Lah 539 Judgment No.B
(Pars Ram V. Kher Singh & Ors.)
- This was a case of a gift of ancestral property. Gift does
not make it non- ancestral.
Similarly, Judgment No.C
1926 Lah 171 (Page 41)
(Khizar Hayat & Anr. V. Allah Yar Shah)
- Reference may be made to top page 41.
- Gift of non-ancestral will not make it ancestral.
(iv) The onus is on the plaintiff to show it is ancestral - not
the other way around.
- Reference may be made to top of page 41.
(v) Total misreading of written statement, Ex. D-4 - paras 1
& 5.
- Reference may be made to the bottom of page 33 of the
paper book.
- Actually, written statement says "exclusively owned by
Chet Singh"
III). : The Lower Appellate Court wrongly holds sale
deed to be without consideration.
- Reference may be made to para 14 at page 41 of the paper
book.
-This is totally contrary to the facts.
(i). In earlier suit against Chet Singh & Piara Singh
- Both had said money received.
- Reference may be made to the written statement Ex. D-4
at pg. 95 of the record - para 3.
(ii). Ex. D-2 - recites Rs. 10,000/- paid before Sub-Registrar
(iii). Ex. D-1 - says Rs. 22,000/- already received.
- No evidence that these recitals are incorrect.
It is therefore, respectfully prayed that the judgment and
decree of the Lower Appellate Court be set-aside, the suit of
the plaintiffs-respondents be dismissed and the present
appeal be allowed with costs throughout.
It is also prayed before this Hon'ble Court that this Court
may pass any order which it may deem fit in the facts and
circumstances of the present case, in the interest of
justice."
Written submissions on behalf of the respondents:-
"1. That Ganda Singh had ancestral property which he gave
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to Chet Singh who was his only son and thus the land in the
hand of Chet Singh was ancestral in nature.
2. That Chet Singh had four sons namely Lachhman Singh,
Kundan Singh, Tara Singh and Piara Singh.
3. That Chet Singh executed one sale deed of 8K-9M in favour
of Piara Singh on 19.11.1982 (Ex. D-1). Similarly, Chet Singh
executed second sale deed in favour of Piara Singh of 14K-
10M on 28.03.1984. Both these sale deeds were without any
consideration and as per the recital in the sale deeds itself it
was clearly mentioned in the first sale deed that he will take
the amount for the daily expenses from his son and in the
second sale deed it was mentioned that he has taken the
amount for his expenses. Thus, nothing has been paid which
can be termed as consideration for getting these sale deed
executed.
4. That three sons namely Lachhman Singh, Kundan Singh
and Tara Singh filed Civil Suit No.614 of 1984 wherein the
said sale deeds were challenged, under a suit for declaration
which was filed against their father Chet Singh and brother
Piara Singh.
During the pendency of this civil suit Chet Singh
expired in October, 1984. The said civil suit was then
withdrawn by the three sons on 14.11.1984 by making a
statement that the present suit be allowed to be withdrawn to
file afresh, which the Hon'ble Court allowed vide order dated
14.11.1984 (Ex. D-5).
5. That the three sons then filed Civil Suit against the Piara
Singh which was now a suit for possession of land measuring
22K-19M which was illegally given by Chet Singh to Piara
Singh under the sale deeds when the said land was ancestral
in nature and the same could not have been given by Chet
Singh. On the pleading of the parties issues were framed on
which the parties led their evidence.
6. That to prove the issues of the onus of which was on the
plaintiff, they produced PW-1 Lachhman Singh, PW-2 Basant
Singh and PW-3 Charan Singh. A copy of the mutation
No.769 dated 18.08.1965 was produced as Ex. P/2 which
proved the fact that a family partition was made between Chet
Singh and Basant Singh who was the son of Sundar Singh who
was the brother of Ganda Singh. Pedigree table is Ex. P-4.
Another documents Ex. P-3 is the copy of mutation No.294
dated 03.12.1947 vide which Ganda Singh on his verbal
statement has gifted his land to his only son but in this
document there is no recital to the effect that for giving the
gift Ganda Singh intended to make Chet Singh as the absolute
owner or free to dispose of the same in any way he liked. As
such it was proved that the land was ancestral in nature and
was not a self acquired property of Chet Singh.
7. That the defendant - Piara Singh produced DW-1 Gurdial
Singh Deed writer, DW-2 Attesting Witness, and himself
appeared as DW-3. From all the evidence produced the same
was only with regard to the sale deeds executed by Chet Singh
but nothing was brought to show that the land was self
acquired and Chet Singh had full right to dispose of the same
as he liked.
8. That the Ld. Trial Court dismissed the Civil Suit. The first
issue though was framed initially that the suit is barred by
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principle of res-judicate whereas the issue was changed to
whether the suit is barred under Order 23 Rule 4 (b) CPC.
This issue was decided against the plaintiffs while holding
that it is between the same party regarding the same land. The
main and the primary issue No.2 was also wrongly held that
the land in dispute is not ancestral. The civil suit was
dismissed vide judgment and decree dated 15.01.1987.
9. That aggrieved by the illegal judgment decree passed by
the Ld. Trial Court, the plaintiffs filed the appeal before the
Ld. First Appellate Court. The Ld. First Appellate Court vide
its judgment and decreed dated 11.03.1989 accepted the
appeal and set aside the judgment and decreed passed by the
Ld. Trial Court and held that the land be ancestral Co-
parcenary property, Chet Singh was entitled to 1/5th share
which he could gift or sale and thus granted the plaintiff the
decree of possession to the extent of 3/5th share in the suit
land and remaining 2/5th share to Piara Singh - Defendant
No.1.
10. That during the pendency of the present appeal it was
found that the finding given on issue No.1 by the Ld. Trial
Court was illegal as no such issue was framed by the Court.
As such while recasting the issue No.1 as "whether the suit is
barred under Order 23 Rule 1 CPC? OPD" The Ld. Trial
Court was asked to give fresh finding on the said issue. The
Ld. Trial Court after considering the all the aspect at this
stage vide its order dated 24.08.1988 returned the finding of
this issue against the defendant and in favour of the plaintiff.
As such now in the present RSA the said issue is not under
consideration as though the same was against the defendant
but the judgment was in his favour and this issue was never
challenged in appeal and therefore cannot be taken up in
regular second appeal.
11. That issue No.2 as to whether the land was ancestral, the
Ld. Appellate Court carefully perused the documentary
evidence i.e., Ex. P-2 which legally shows that family
partition was made between Chet Singh and Basant Singh
which proves that the land now in dispute fell in the share of
Chet Singh. Thus, it amply proved that the land is ancestral
further it has also been recorded by the Ld. Appellate Court
that Piara Singh - defendant as DW-3 did not claim that the
suit land was not ancestral in the hands of Chet Singh. Even
in the previous suit filed when the written statement was filed
it was not pleaded by Chet Singh or Piara Singh that it was
self acquired property of Chet Singh. Rather Basant Singh
PW-2 is the son of Sundar Singh and said Sundar Singh was
brother of Ganda Singh vide pedigree table Ex. P-4 and the
family partition made between Chet Singh and Basant Singh
and thereafter Ex.P-2 is the copy of the mutation which shows
the share of land after family partition which fell in favour of
Chet Singh. Further, Ex. P-3 which shows that Ganda Singh
made oral gift to Chet Singh there also there was nothing to
show that Ganda Singh by such oral gift was making Chet
Singh as the absolute owner, free to dispose of the same in
any way he liked. Under these circumstances and evidence the
findings of issue No.2 of the Ld. Trial Court was reversed by
the Ld. Appellate Court and held the suit land was ancestral
co-parcenary property in the hands of Chet Singh qua his son.
12. That the issue with regard to sale deeds was also
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considered by the Ld. Appellate Court and it was found from
going through the sale deeds which were Ex. D-1 and D-2
that there is no evidence that anything was ever paid to Chet
Singh by the defendant - Piara Singh and thus it was held that
the sale in favour of the defendant was without consideration
and legal necessity and not binding upon the plaintiffs.
13. That the Ld. Appellate Court while accepting the appeal
has nowhere set aside the sale deed as those were never
challenged in the civil suit which was for possession of the
land measuring 22K-18M and held that the land being
ancestral property Chet Singh was having 1/5th share and
thus the sale extent to 4/5th share is void and granted the
plaintiffs decree of possession to the extent of 3/5th share in
the suit land. Thus, the judgment and decreed passed by the
Ld. First Appellate Court is absolutely legal and does not
suffer from any illegality or perversity and is therefore is
required to be upheld and the regular second appeal filed by
the appellant be dismissed."
3. Discussion by this Court:-
3.1 In the opinion of the Court, the following issues need
adjudication:-
i. Whether the present suit is barred under Order XXIII
Rule 1(4) of the CPC?
ii. Whether the suit property in the hands of Sh. Chet
Singh was ancestral, precluding him from alienating the
property more than his 1/5th share?
3.2 To delve deeper into the concept of the maintainability of the
fresh suit, Order XXIII Rule 1(4), needs careful scrutiny and the provision
is extracted hereunder:-
"ORDER XXIII 1. Withdrawal of suit or abandonment
of part of claim.- (1)..........
(2)..........
(3).........
(4) Where the plaintiff- (a) ............
(b) withdraws from a suit or part of a claim without the
permission referred to in sub-rule (3), he shall be liable
for such costs as the Court may award and shall be
precluded from instituting any fresh suit in respect of
such subject-matter or such part of the claim."
3.3 In this case, the copy of the previous suit filed by the plaintiffs
is 'Ex. D-3', which was filed on 02.08.1982, questioning the correctness of
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two sale deeds executed by late Sh. Chet Singh on 19.11.1982 and
28.03.1984 in favour of the appellant Sh. Piara Singh on the ground that the
property is ancestral, and it has been sold without legal necessity. Sh. Chet
Singh was the Karta of the Joint Hindu Family. The sale was executed
without consideration. Sh. Chet Singh had no legal necessity because he had
already sold a parcel of land on which garden has been developed for an
amount of Rs. 7,000/- when there was requirement.
3.4 In the subsequent suit filed on 30.11.1984, the same plaintiffs
have prayed for possession of land measuring 22 kanal and 19 marlas,
which was the subject matter of the same sale deed. In the suit, the plaintiffs
alleged the that cause of action accrued to them a week before the defendant
finally refused to admit the claim of the plaintiffs. Thus, the First Appellate
Court was factually incorrect in observing that the subsequent suit was
based upon inheritance because the cause of action for the subsequent suuit
arose when succession opened after the death of Sh. Chet Singh. In this suit
also, the plaintiffs allege that the property is ancestral and has been sold
without legal necessity. When the previous suit was withdrawn, no
permission to file the fresh suit on same cause of action was either prayed
for or granted by the Court.
3.5 On close examination of Order XXIII Rule 1(4) of the CPC, it
is evident that the statute has clearly used the expression 'fresh suit' in
respect of such subject matter or such part of the claim. The word 'subject
matter' has a wider connotation and it cannot be confined to only property.
However, it has reference to the right, which the plaintiff seeks to enforce.
The subject matter consists of series of acts and transactions, which form
the basis of the suit. In the previous suit, the plaintiffs claimed that the suit
property is ancestral property, which has been sold without legal necessity,
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and Sh. Chet was karta of the joint Hindu family. In the subsequent suit
also, the foundation of plaintiffs case is based upon the fact that the suit
property was ancestral. Hence, the subject matter of the previous suit and
the subsequent suit is explicitly common. The cause of action for the suit
filed by the plaintiffs has not arisen after the death of Sh. Chet Singh. In
fact, Sh. Chet Singh's death has not made any difference in the claims of the
plaintiffs.
3.6 The Supreme Court in Vallabh Das Vs. Dr. Madan Lal, AIR
1970 (SC) 987, has examined Order XXIII Rule 1 of the CPC in detail. The
relevant portion is extracted hereunder:-
"Rule 1, Order 23, Code of Civil Procedure empowers
the courts to permit a plaintiff to withdraw from the suit
brought by him with liberty to institute a fresh suit in
respect of the subject-matter of that suit on such terms as
it thinks fit. The terms imposed on the plaintiff in the
previous suit was that before bringing a fresh suit on the
same cause of action, he must pay the costs of the
defendants. Therefore we have to see whether that
condition governs the institution of the present suit. For
deciding that question we have to see whether the suit
from which this appeal arises is in respect of the same
subject-matter that was in litigation in the, previous suit.
The expression "subject-matter" is not defined in the
Civil Procedure Code. It does not mean property. That
expression has a reference to a right in the
property which the plaintiff seeks to enforce. That
expression includes the cause of action and the relief
claimed. Unless the cause of action and the relief
claimed in the second suit are the same as in the first
suit, it cannot be said that the subject-matter of the
second suit is the same as that in the previous suit. Now
coming to the case before us in the first suit Dr. Madan
Lal was seeking to enforce his right to partition and
separate possession. In the present suit he seeks to get
possession of the suit properties from a trespasser on the
basis of his title. In the first suit the cause of action was
the division of status between Dr. Madan Lal and his
adoptive father and the relief claimed was the
conversion of joint possession into separate possession.
In the present suit the plaintiff is seeking possession of
the suit properties from a trespasser. In the first case his
cause of action arose on the day he got separated from
his family. In the present suit the cause of action,
namely, the series of transactions which formed the basis
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of his title to the suit properties, arose on the death of his
adoptive father 'and mother. It is true that both in the
previous suit as well as in the present suit the factum and
validity of adoption of Dr. Madan Lal came up for
decision. But that adoption was not the cause of action
in the first nor is it the cause of action in the present suit.
It was merely an antecedent even which conferred
certain rights on him. Mere identity of some of the issues
in the two suits does not bring about an identity of the
subject matter in the two suits. As observed in Rakhma
Bai v. Mahadeo Narayan, the expression "subject
matter" in Order 23, Rule 1, Code of Civil Procedure
means the series of acts or transactions alleged to exist
giving rise to the relief claimed. In other words "subject
matter" means the bundle of facts which have to be
proved in order to entitle the plaintiff to the relief
claimed by him. We accept as correct the observations of
Wallis C.J. in Singa Reddi v. Subba Reddi, that where
the cause of action and the relief claimed in the second
suit are not the same as the cause of action and the relief
claimed in the first suit, the second suit cannot be
considered to have been brought in respect of the same
subject matter as the first suit."
3.7 The First Appellate Court has relied upon a Division Bench
judgment in Ali Muhammad Vs. Karim Baksh, AIR 1933 Lahore 943.
However, the aforesaid judgment of Division Bench is not applicable to the
facts of the case at hand.
3.8 Hence, the second suit filed by the plaintiffs was barred under
clause 4 of Rule 1 of Order XXIII of the CPC as the subject matter involved
in both the suits is identical.
3.9 With respect to the second issue, it may be noted here that the
plaintiffs in this suit have not asserted that there existed a coparcenary
property. Their case is based upon the plea that the property is ancestral, and
it has been sold without any legal necessity. It may be noted here that the
property was received by Sh. Chet Singh pursuant to oral gift executed by
Sh. Ganda Singh, his father. The property did not come in the hands of Sh.
Chet Singh by mode of natural succession. Moreover, there is no evidence
on record that the property in the hands of Sh. Ganda Singh was ancestral.
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Sh. Chet Singh during his lifetime, partitioned the property from Sh. Basant
Singh, his cousin. Thus, Sh. Chet Singh became the exclusive owner of the
property gifted by his father. Moreover, while filing the written statement in
the previous suit, Sh. Chet Singh has specifically asserted that their family
is not joint and the plaintiffs have continuously misbehaved with him and
they are living separately. Moreover, it was also alleged that the sale
consideration received pursuant to two sale deeds have already been
distributed by defendant No.1 i.e. Sh. Piara Singh amongst all the plaintiffs.
Moreover, the onus to prove that the property is ancestral is on the
plaintiffs, who have failed to prove it.
3.10 In C.N. Arunachala Mudaliar Vs. C.A. Muruganatha
Mudaliar and another. AIR 1953 (SC) 495, the Supreme Court held that
when the father obtains the grandfather's property by way of gift, he
receives it not because he is a son or he has any legal right to such property,
but because his father chose to bestow a favour on him, which he could
have bestowed on any other person as well. The interest which he takes in
such property solely depends upon the will of the granter. To find out the
vested interest in the property it is significant to ascertain the mode of
disposition of such property. Relationship of the granter with grantee is not
the deciding factor of a person's vested interest in the property.
3.11 Keeping in view of aforesaid discussion, the finding of the First
Appellate Court on second issue is also erroneous.
3.12 The First Appellate Court has also erred in observing that both
the sale deeds were without consideration. In the sale deed dated
28.03.1984, Ex.D2, the amount of sale consideration i.e. Rs.10,000/- was
paid before the Sub-Registrar. Moreover, in the previous suit, Sh. Chet
Singh filed the written statement, admitting receipt of the sale consideration.
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Neutral Citation No:=2024:PHHC:052865
RSA-1129-1989 (O&M) 2024:PHHC:052865
He also admitted the same fact before the Registrar and acknowledged the
receipt of payment. In the sale deed Ex.D-1, it is specifically recorded that
he has already received Rs.22,000/-. Sh. Chet Singh while filing the written
statement in the previous suit also reiterated the fact. In these
circumstances, there was no occasion for the First Appellate Court to hold
that the sale consideration has not been paid. Moreover, the sale deed is not
required to be set aside for failure to pay consideration unless there is a
specific recital to this effect in the sale deed. On a careful reading of the sale
deeds, it is crystal clear that the title that passed on to the vendee (appellant
Sh.Piara Singh), the moment, the sale deed was executed and registered.
4. Decision:-
4.1 Keeping in view the aforesaid discussion, the result is
inevitable. Hence, the appeal is allowed. The judgment of the First
Appellate Court is set aside and that of the trial Court is restored.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
April 18th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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