Punjab-Haryana High Court
Avtar Singh Through Lrs vs Joginder And Others on 20 March, 2024
Neutral Citation No:=2024:PHHC:042146
RA-RS-4-2024 in
RSA-2070-2008 -1-
AVTAR SINGH (DECEASED) THROUGH LRS
VS
JOGINDER AND OTHERS
Present: Mr. Sunil Chadha, Sr. Advocate
with Mr. Taanvi Dhull, Advocate
and Mr. Raghav Chadha, Advocate
for the review applicant.
Mr. Amit Kumar Saini, Advocate
for respondent No.1, 3 & 4.
**
1. A review of the order passed by this Court while disposing of
RSA-2074-2008 on 01.10.2021, has been sought after liberty was granted by
the Hon'ble Supreme Court in Special Leave Petition (Civil)-Diary
No.25019 of 2021, on 19.01.2024, with the following order.:-
"Learned counsel appearing for the petitioner(s) submits
that his client(s) would not like to proceed with this
matter but apply for review of the judgment impugned
before the High Court itself.
In the event the review petition is dismissed, it shall
be open to the petitioner(s) to approach this Court
against the main judgment.
The present petition is dismissed as withdrawn
with liberty as prayed for."
2. Keeping in view the facts of the case, the learned Senior
counsel was requested to file a brief note of his submissions, which reads as
under:-
"FACTUAL POSITION:
i) Sh. Samund Singh inherited the suit property from his
father Sh. Kaula Singh. Sh. Kaula Singh had inherited
the suit property from his father Sh. Ladha who in turn
had inherited the same from his father Sh. Bigha. Thus
the suit property in the hands of Sh. Samund Singh was
ancestral property. In this regard, kindly reier to the
statement of PW-3 and Exhibits P/2 (Summary Report)
and P/18A (Pedigree Table/Family Tree-Kursinama).
Exhibit P-15/A is Mutation No. 108 dated 25.08.1937
regarding oral gift of land measuring 128 Bighas 12
Biswas 10 Biswasi by Sh. Samund Singh in favour of his
five sons including Joginder Singh.
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ii) Sh. Samund Singh had four sons, namely, Joginder
Singh (respondent no. 1), Chanan Singh, Dalip Singh and
Bant Singh. Sh. Joginder Singh further had seven sons
and four daughters. Out of the said eleven children of Sh.
Joginder Singh, three including the appellant/plaintiff
Avtar Singh and his two sisters are from his first
marriage and remaining eight i.e. six sons and two
daughters are from his second marriage. Said six sons of
Sh. Joginder Singh from his second marriage are arrayed
as respondents/defendants no.2 to 7.
iii) Total land which Sh. Samund Singh inherited was 149
Kanals 15 Marlas. Respondents/defendants no. 2 to 7
filed a Civil Suit No. 201 dated 21.10.1994 against their
father Sh. Joginder Singh (respondent no.1) seeking
declaration that they are the owners in possession in
equal shares of suit land measuring 94 Kanals 14 Marlas
(out of aforesaid total land measuring 149 Kanals 15
Marlas) as well as one house. The said civil suit dated
21.10.1994 filed by respondents/defendants no.2 to 7 was
decreed vide judgment and decree dated 27.03.1995 on
the basis of admission of the claim by respondent no. 1
through his written statement filed to the said civil suit.
iv) On coming to know about the aforesaid collusive
decree dated 27.03.1995, the appellant/plaintiff filed the
present civil suit seeking declaration and permanent
injunction as stated above, which suit has been illegally
dismissed by both the courts below on the ground that the
suit property in the hands of Sh. Joginder Singh came
through a gift and a Will and as such, it lost the character
of an ancestral property.
GROUNDS TO SEEK REVIEW:
i) In paragraphs no. 4.1 and 5.1 of the Judgment/Order
dated 01.10.2021, which is under review, this Hon'ble
Court held that since the appellant/plaintiff never
questioned the correctness of the transfer of the property
via gift by Samund Singh in favour of his four sons in the
year 1937, therefore, appellant/plaintiff cannot be
permitted to set up a new ground in the present appeal
for the first time. In this regard, suffice is to submit that it
is not in dispute that vide Mutation No. 108 (Exhibit P-
15A), on 24.08.1937, Samund Singh made an oral gift of
land measuring 128 Bighas 12 Biswas and 10 Biswasi
(149K-15M) in favour of his four sons namely Joginder
Singh, Chanan Singh, Dalip Singh and Bant Singh and
out of the land which Joginder Singh so inherited of his
own and also form his brother Chanan Singh, through a
collusive decree dated 27.03.1995, he (Joginder Singh)
made his six sons (from his second marriage) owner to
the tune of 94K-14M. In this regard, suffice is to submit
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that firstly as per Section 123 of the Transfer of Property
Act, a gift deed has to be a registered document and as
such, through the alleged oral gift deed, Samund Singh
could not transfer any land in favour of his four sons
even if the same was the self-acquired property of
Samund Singh, although it is the proven case of the
appellant/applicant that it was an ancestral property
even in the hands of the Samund Singh. From 06.05.1925,
Sections 54, 107 and 123 of the Transfer of Property Act,
1882 (for short TPA) to all Municipalities in the Punjab
and to all notified areas declared and notified under
Section 241 of the Punjab Municipal Act, 1911. Even if,
this Hon'ble Court holds that the provision of Section 123
of TPA is not applicable in respect of suit land then also
in terms of the Registration Act, 1908, transfer of suit
land through the oral gift deed cannot be legally
recognized, the same being of a value of more than Rs.
100/-.
ii) In fact, it is the illegal finding of both the Courts
below that since through aforesaid Mutation No. 108 (Ex.
P-15A), estate of Sh. Samund Singh devolved upon his
aforesaid four sons, namely, Sarvshri Joginder Singh,
Chanan Singh, Dalip Singh and Bant Singh on the basis
of oral gift deed dated 24.08.1937, therefore, the estate
so devolved upon Sh. Joginder Singh lost the ancestral
character. Similarly, both the Courts below also illegally
came to conclude that as per Mutation No. 358 (Exhibit
P-8), respondent no. 1 (Sh. Joginder Singh) inherited
some property on the basis of a Will from his brother
Chanan Singh and as such, even the said property was
not the ancestral property in the hands of Sh. Joginder
Singh. The said findings of both the Courts below are
absolutely contrary to the settled law i.e. an ancestral
property can neither be gifted nor willed away and the
same has to devolve upon only on the basis of natural
succession.
iii) Since the suit property in the hands of Sh. Joginder
Singh was ancestral in nature, as is quite apparent from
the summary report (Exhibit P-2), therefore, civil court
decree dated 27.03.1995 suffered by Sh. Joginder Singh
also had no legal effect on the right/share of the
appellant/plaintiff in the suit property. In support of this
proposition of law, reliance is being placed upon the
judgments rendered by the Hon'ble Supreme Court of
India reported as "Gurdas Ram v. Sukhdevi (2004 (1)
RCR (CIVIL) 363) as well as 'Smt. Gomtibai (dead)
through LRs and others v. Mattulal (dead) through
LRs' (AIR 1997 Supreme Court 127).
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iv) In view of the aforesaid factual as well as legal
submissions, neither the alleged gift deed dated
24.08.1937 by Sh. Samund Singh in favour of his four
sons could be acted upon in the absence of any written
instrument and registration thereof nor the alleged Will
executed by Sh. Chanan Singh in favour of Sh. Joginder
Singh in respect of an ancestral land could be acted
upon.
v) The collusive decree dated 27.03.1995 in respect of
ancestral land, which respondent no. 1 suffered in favour
of respondents no.2 to 7 has no binding force for two
reasons, i.e. in the suit filed by the respondents no.2 to 7
against respondent no.1, appellant/plaintiff being one of
the co-sharers in the suit property was not impleaded as
a party and also for the reason that the said decree was
not registered. No evidence/proof has been brought on
record to even prima facie show that the said collusive
decree had been suffered on the basis of any earlier
family settlement/memorandum. In this regard, reliance is
being placed upon the judgment rendered by this Hon'ble
Court in the case of Jai Narain Vs. Smt. Sona Devi
(2006 (2) CIVIL COURT CASES 99). No doubt that
respondents/defendants no. 2 to 7 in their written
statement alleged that there was a family arrangement
between them and respondent-defendant no. 1 by which it
was decided that the said suit land will be transferred by
respondent-defendant no. 1 in favour
respondents/defendants no. 2 to 7 in equal shares to the
extent of 94K-14M. However, respondents/defendants no.
2 to 7 never got any mutation entered in their favour in
the revenue record regarding the alleged family
arrangement, thus, making the veracity of such claim
absolutely feeble and non-reliable. In the
Judgment/Order dated 01.10.2021 under review, no
discussion/finding as such has been rendered in respect
of issue no. 2 i.e. whether decree dated 27.03.1995 in
favour of defendants no. 2 to 7 is null and void, if so its
effect. In this regard, suffice is to state that defendants
no. 2 to 7 are the six sons of S. Joginder Singh from his
second wife whereas the appellant/applicant is the son of
S. Joginder Singh from his first wife. It is only in order to
deprive the appellant/applicant (S. Avtar Singh) from any
property/share that the said collusive decree dated
27.03.1995 came to be executed. Since the said decree
had not been registered, therefore, the same has no value
in the eyes of law and ought to have held to be null and
void.
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vi) It is a settled proposition of law that if self-acquired
and ancestral property are mixed and inseparable then
the entire property becomes ancestral property.
vii) The moot point in the present case is regarding the
fact as to whether the suit property is an ancestral
property or not. It is pertinent to note that it is the
specific stand of respondents-defendants 1 to 4, 6 & 7 in
paragraphs no. 5 & 6 of their written statement (Page 18
of the L.C.R.) that the above-said suit property is not
ancestral in nature as it got devolved upon the
defendant/respondent no. 1 i.e. Joginder Singh by way of
an oral gift deed from his father i.e. Sh. Samund Singh
and subsequently the same was mutated vide mutation
no. 108 in the year 1937. However, despite the said stand
of the respondents-defendants 1 to 4, 6 & 7 that the suit
property is not ancestral in nature,
respondents/defendants no. 2,5,6,&7, during the
pendency of the present Civil Suit No. 128/99, filed a suit
bearing Civil Suit No. 42 of 2006 against respondents-
defendants no. 1, 3 & 4 to declare them in joint
possession of a part of the suit property in dispute to the
extent of 55K-1M by terming the same to be a Hindu
Family Ancestral Coparcenary Property. In order to
prove the same, appellant/plaintiff on 16.02.2006 filed an
application for additional evidence to bring on record the
above said Civil Suit No. 42 of 2006 and in reply to the
above-said application, respondents-defendants admitted
the factum of said suit and consequently, the said
application was allowed vide the order dated 07.03.2006,
and the said civil suit came to be exhibited as EX. P/21
(Page 206 of L.C.R., specifically paragraph no. 4 of the
exhibited plaint). In view of the said categorical
admission of respondents-defendants no. 2,5,6,&7,
clearly goes a long way to show that the suit property is
ancestral in nature, thus, by no way contesting
defendants no. 2,5,6,&7 can rely on two different stands
which acutely contradicts each other. It is further
pertinent to note here that both the courts below have
completely been oblivious towards the fact that the
respondent-defendant no. 5 i.e. Sh. Ajmer Singh in his
written statement dated 03.01.2000 has categorically
admitted each and every claim of the appellant-plaintiff
and in paragraph no. 5 of the said written statement, he
has categorically admitted that the respondent-defendant
No. 1 has acquired the said suit property by his fore-
fathers and is an ancestral property (Page 15 of
L.C.R.)."
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3. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
4. Sh. Samund Singh was the common ancestor of the parties. In
the year 1937, he orally gifted land measuring 128 bighas, 12 biswas and 10
biswasis in favor of his four sons namely Joginder Singh, Sh. Chanan Singh,
Sh. Dalip Singh and Sh. Bant Singh, whereas, his fifth son had predeceased
him. Subsequently, these four sons of Sh. Samund Singh partitioned the
property vide mutation No.440. Sh. Joginder Singh had married twice. From
his first wife, the plaintiff (Sh. Avtar Singh) was born, whereas, from his
second marriage, he had six sons. During the lifetime of Sh. Joginder Singh,
his brother Sh. Chanan Singh died and on the strength of a registered Will
dated 28.03.1980, Sh. Joginder Singh, Sh. Dalip Singh and Sh. Bant Singh
inherited some property by a registered Will dated 28.03.1980, executed by
their brother Sh. Chanan Singh on 27.03.1995 and a suit in favor of
defendant No.2 to 7 was decreed as Sh. Joginder Singh acknowledged a
prior family settlement. On 16.07.1999, Sh. Avtar Singh (plaintiff) filed the
suit for grant of decree of declaration that he is in joint possession of suit
property measuring 149 kanal and 15 marlas and a house after declaring that
judgment and decree dated 27.03.1995, is illegal, null and void. Both the
Courts dismissed the suit. The regular second appeal filed by the plaintiff
was also dismissed.
5. The submission No.(i) of the review applicant has no substance
for the following two reasons:-
a. The review applicant Sh. Avtar Singh while filing the
suit never questioned the correctness of oral gift in the
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year 1937. He did not implead Sh. Dalip Singh, Sh. Bant
Singh or their heirs of Sh. Samund Singh as party to the
suit.
b. It is the case of the learned Senior counsel that from
06.05.1925, Sections 54, 107 and 123 of the Transfer of
Property Act, 1882 (hereinafter referred to as the 1882
Act'), were extended to all Municipalities in Punjab and
to all notified areas declared and notified under Section
241 of the Punjab Municipal Act, 1911 (hereinafter
referred to as the '1911 Act'). Admittedly, the suit
property is located in village Mandiala Khurd, Tehsil
Samrala, District, Ludhiana. It is not the review
applicant's case that the property was located in the area
of the municipalities or all notified areas declared and
notified under Section 241 of the 1911 Act.
6. With respect to submission No.(ii), (iii) & (iv) it may be noted
here that the review applicant was required to prove that the property was
ancestral. First of all, it has come on record that the plaintiff has separated
from the family and is settled and residing in Ludhiana for the last 30-35
years before the filing of the suit. The review applicant has separate income
and expenditure. He had acquired 40 bighas of land and house in village
Bekalan, which was subsequently sold by him.
7. Moreover, it has come on record that Sh. Joginder Singh not
only received the land by virtue of oral gift from Sh. Samund Singh in the
year 1937, but also inherited some property from his brother Sh. Chanan
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Singh by virtue of a registered Will dated 28.03.1980. It is well settled that if
the ancestral and non-ancestral property is mixed up and it is impossible to
identify ancestral property, all the properties shall be considered non-
ancestral. Reliance in this regard can be placed on the judgment in Mara
and others versus Mst. Nikko @ Punjab Kaur, AIR 1964 (SC) 21.
8. This Court has carefully read the judgment passed in Gurdas
Ram's case (supra). This judgment is passed by a Single Bench of this Court
and not by the Supreme Court. It is with respect to a co-parcenary property,
whereas, it is the case of the plaintiff that the property is ancestral. Smt.
Gomtibai's case (supra), is arising from Hyderabad. It is with respect to
requirement of registration of gift. Section 123 of the 1882 Act was not
extended to the entire area of Punjab before 01.01.1955. Hence, with
greatest respect, the aforesaid judgment will not be applicable.
9. With respect to submission No.(v), (vi) & (vii), it may be noted
that the plaintiff has not made any attempt to identify the properties which
were received by Sh. Joginder Singh from two different sources, which have
been elaborated. Thus, the entire property is considered non-ancestral.
Moreover, the plaintiff is proved to be living separately for the last 30-35
years. Both the Courts on appreciation of evidence have come to a
conclusion that the review-applicant separated.
10. This Court has carefully read the judgment passed in Jai
Narain's case (supra).
11. It may be noted here that this judgment lays down that
registration of a consent decree is required. With highest respect, the
aforesaid view now cannot be followed particularly, when the Hon'ble
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Supreme Court in Khushi Ram and others Vs Nawal Singh, (2021) 16 SCC
279, Ravinder Kaur Grewal and others Vs Manjeet Kaur, (2020) 9 SCC
706 and Mohammade Yousuf and others Vs Raj Kumar and others, (2020)
10 SCC 264, have held that a consent decree passed by the Court
acknowledging a prior family settlement is not required to be registered if it
is concerning the suit property.
12. The second limb of argument of the learned Senior counsel also
does not have substance because the plaintiff has no right in the property as
the property was non-ancestral. The plaintiff was required to be a party if he
had some pre-existing right in the property.
13. Moreover, the scope of review is well defined. Order XLVII
Rule 1 of the Code of Civil Procedure, 1908, lays down that review of
judgment is permissible only if there is some mistake or error apparent on
the face of the record or for any other sufficient reasons. However, the
review applicant has failed to draw the attention of the Court to any apparent
error.
14. Hence, the review application is dismissed.
March 20th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
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