Punjab-Haryana High Court
Kulwant Rai vs Satish Kumar Etc on 29 January, 2025
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2025:PHHC:013856
RSA No.1704 of 1997 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 13th of November, 2024
Pronounced on 29th of January, 2025
Regular Second Appeal No.1704 of 1997 (O&M)
Kulwant Rai ....Appellant
Versus
Satish Kumar @ Mithu and others ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Rakesh Gupta, Advocate
for the appellant.
Respondents No.2, 4 and 6 proceeded against ex parte
vide order dated 05.11.1997.
Mr. M.L. Sarin, Senior Advocate with
Mr. Ritesh Aggarwal, Advocate
for the remaining respondents.
PANKAJ JAIN, J.
Plaintiff is in second appeal.
2. For convenience, the parties hereinafter are referred to by
their original position in the suit i.e. the appellant as the plaintiff and
respondents No.1 to 6 as defendants No.2 to 7.
3. Plaintiff filed suit for declaration claiming that he is owner
in possession of the house described in the headnote of the plaint
shown as ABCD and in the alternate the entire building is a joint Hindu
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family and co-pacenary property and the plaintiff is entitled to 1/2 share
in the same. Further prayer is that sale deed dated 16.08.1985 executed
by Goinda Mal in favour of defendant-Satish Kumar @ Mithu be
declared as null and void. As per the case pleaded by plaintiff, he along
with his father defendant No.1 constitute a joint Hindu family. They
were joint in mess and residence and constituted joint Hindu family.
They separated their residence and mess few years back but the
property remained joint. The property shown as ABEF in the site plan
is ancestral and joint Hindu family property of the plaintiff and
defendants No.1 and 2. The same was partitioned by defendant No.1 in
the year 1982. Both plaintiff and defendant No.2 were put in
possession of their respective shares of suit property. The property was
partitioned in the presence of Bhagwant Rai, who is a close relative
(brother-in-law of Goinda Mal). Goinda Mal owned two properties i.e.
the property in dispute and some land at Jaitu. The land at Jaitu was
sold by deceased Goinda Mal. He kept the sale proceeds with him. The
suit property was partitioned amongst the plaintiff and defendant No.2.
4. Defendant No.2-Satish Kumar @ Mithu and Goinda Mal
filed joint written statement disputing the averments raised in the plaint.
It was denied that the property was a joint Hindu family or copacenary
property. It was asserted that Goinda Mal was absolute owner of the
property in dispute and sold the same to defendant No.2 for a
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consideration of Rs.40,000/- vide registered sale deed dated
13.08.1985. Defendant No.2 further mortgaged the property with
possession in favour of defendants No.3 to 7 who are in possession
thereof.
5. On the basis of the pleadings, suit filed by the plaintiff was
put to trial by the Court of First Instance, framing following issues.
"1. Whether the house append BF is joint Hindu family
and coparcenary property of defendants No.1 and 2
and plaintiff is owner of 1/3rd share? OPP
2. Whether in June, 1982, the house in dispute was
partitioned and the plaintiff got the rest of the house
ABCD except BFDC, which fell to the share of
defendant No.2? OPP
3. Whether defendant No.2 purchased the house from
defendant No.1 as bonafide purchaser for
consideration without notice? OPD
4. If issue No.3 is not proved, whether the plaintiff is
entitled to 1/3 share and sale in favour of defendant
No. 2 by defendant No. 1 is not valid? OPP.
5. Whether the suit for mere declaration lies? OPP.
6. Relief."
6. Trial Court while deciding issue w.r.t. nature of the property
held that there is no evidence that the property devolved upon Goinda
Mal under Section 8 of the Hindu Succession Act. It has come in
evidence that Goinda Mal had two sisters, who were not given any
share at the time of partition and, thus, the presumption is that the
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property was divided between the co-parceners. Trial Court thus held
that the property in question being co-parcenary property both plaintiff
and defendant No.2 had a right by birth in the property.
7. While deciding issue No.2 in favour of the plaintiff, Trial
Court observed that there is overwhelming evidence on record to show
that the partition had taken place as claimed by the plaintiff and the
same was executed. Defendant No.2-Satish Kumar @ Mithu executed
mortgage deeds Exhibit PX/1 and PX/2 showing property of the
Kulwant Rai on the southern side of the mortgage shops which shows
that the partition was acted upon.
8. On issue No.3, Trial Court found that defendant No.2 could
not prove transfer of sale consideration of Rs.43,000/- to Goinda Mal
deceased and thus purchase of the house by defendant No.2 being not
bona fide and without consideration, was not sustainable.
9. While answering issue w.r.t. maintainability of the suit,
Trial Court found that it is evident from the documents of defendant
No.2 himself that he admits possession of the plaintiff and thus the
simple suit for declaration was maintainable. Resultantly, Trial Court
decreed the suit filed by the plaintiff.
10. In appeal preferred by defendant No.2, Lower Appellate
Court reversed the findings recorded by the Trial Court holding that
property inherited by son from his father after Hindu Succession Act
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was not a co-parcenary property and the property having devolved
upon plaintiff in terms of Section 8 of the Hindu Succession Act being
not an ancestral co-parcenary property, Goinda Mal was exclusive
owner of the property. Lower Appellate Court further held that no
suggestion was put to defendant No.2 Satish Kumar @ Mithu that he
had not paid any money to Goinda Mal and thus the evidence recorded
by the Trial Court w.r.t. the sale deed without consideration can't be
sustained. Lower Appellate Court thus allowed the appeal preferred by
defendant No.2.
11. Learned Counsel for the appellant while assailing the
judgment passed by the Lower Appellate Court submits that there is
overwhelming evidence on record to prove that the parties i.e. plaintiff
and defendant No.2 had partitioned the property in question. The
property, in question, was a joint Hindu family property which was
partitioned by Goinda Mal in favour of his sons putting them in
possession of 1/2 share each. The partition stands fully proved by
testimony of PW-6 Sadhu Ram and the close relative of the parties
Bhagwant Rai. Thus, Lower Appellate Court wrongly reversed the
findings recorded by the Trial Court dismissing the suit filed by the
plaintiff. In order to hammer-forth his contention, counsel for the
appellant relies upon ratio of law laid down in the case of Baggar
Singh (deceased) and others vs. Nand Kaur and others, 2023(2)
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R.C.R.(Civil) 368, H. Vasanthi vs. A. Santha (Dead) through Lrs.
and others, 2023 AIR (Supreme Court) 3873, Kisansing Mohansing
Balwar and others vs. Vishnu Balkrishna Jogalekar, 1951 AIR
(Bombay) 4, Pushpa Devi vs. The Commissioner of Income-tax,
New Delhi, (1977) 4 SCC 184, Damodar Krishnajit Nirgude vs.
Commissioner of Income Tax, 1961 SCC Online Bom 122 and
Commissioner of Income Tax vs. Dilbagh Rai, 1979(1) ILR Punjab
305.
12. Per contra, Mr. M.L. Sarin, learned Senior Counsel
representing the respondent(s) submits that there is no evidence on
record that the property was a joint Hindu family property and thus
Lower Appellate Court has rightly held that the property, in question,
was a self acquired property of Goinda Mal. He further submits that
there is nothing on record to suggest the possession of the plaintiff and
thus simple suit for declaration was not maintainable. He further
submits that a fact admitted need not be proved. He contends that a
property that devolved upon father under Section 8 of the Hindu
Succession Act, cannot be held to be a co-parcenary property. Where
the ancestral and non-ancestral properties are so intermingled that the
ancestral and non-ancestral cannot be separated, property shall attain
character of self-acquired property. He submits that from partition
amongst brothers of Goinda Mal, it has come on record that the
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property inherited by Goinda Mal and his brothers, also included the
property owned by their mother. The same has not devolved upon them
by survivorship but by succession and thus the property cannot be held
to be ancestral in the hands of Goinda Mal. Thus, no fault can be found
with the findings recorded by the Lower Appellate Court. In support of
his arguments, he relies upon ratio of law laid down by Supreme Court
in the case of Diety Pattabhiramaswamy vs. S. Hanymayya and
others, AIR 1959 Supreme Court 57, Mara and others vs. Mst.
Nikko alias Punjab Kaur and another, AIR 1964 Supreme Court
1821, Commissioner of Wealth-tax, Kanpur, etc. vs. Chander Sen
etc., AIR 1986 Supreme Court 1753, Yudhishter vs. Ashok Kumar,
AIR 1987 Supreme Court 558, Ram Saran and another vs. Smt.
Ganga Devi, AIR 1972 Supreme Court 2685, Vinay Krishna vs.
Keshav Chandra and another, AIR 1993 Supreme Court 957 and
Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust,
Virudhunagar vs. Chandran and others, (2017) 3 SCC 702.
13. I have heard counsel for the parties and have gone through
records of the case.
14. Plaintiff/Kulwant Rai and defendant No.2/Satish Kumar @
Mithu are sons of Goinda Mal/defendant No.1. Plaintiff relies upon
partition deed, Exhibit P-1 to claim that the property in dispute was
partitioned by Goinda Mal. 1/2 share marked as ABCD in the site plan
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was handed-over to the plaintiff. The other share, marked as BFDC,
fell to the share of defendant No.2. Defendant No.2 while constructing
shops over his partition, applied for sanction of the site-plan wherein
partition ABCD was specifically stated to be ownership of the plaintiff.
It has been thus contended that the suit land already stood partitioned
prior to execution of the sale deed in favour of defendant No.2 by
defendant No.1. Title of 1/2 share already vested in the plaintiff and
thus defendant No.1 had no right, title or interest left in the property to
execute sale deed qua 1/2 share in favour of defendant No.2 and sale
deed qua same, is bad.
14.1. Reliance is being placed upon ratio of law laid down in H.
Vasanthi's case (supra) to submit that there is no prohibition to effect a
partition otherwise than through an instrument in writing by duly
complying with the requirement of law. Division of the property may
also be effected only through a settlement or oral understanding. The
oral understanding between the parties can be well inferred from
overwhelming evidence in form of mortgage deed and site plan, which
shows that the property, in question, was indeed partitioned between
the plaintiff and defendant No.2. Plaintiff having proved on record
Exhibits PW5/A, PW5/B and PW5/C furnished by defendant No.2 in
the Municipal Committee, it stands proved that 1/2 share marked as
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ABCD came to the share of plaintiff and thus, Trial Court rightly held
plaintiff to be owner of 1/2 share.
15. Ld. Counsel for the appellant further relying upon ratio of
law laid down in the case of Venkat S/o. Baburao Gaimale vs. Anitha
W/o. Umakanth and others, 2020(1) Kar. L.R. 492 submits that the
plaintiff is being denied his share without any valid reason and thus the
suit for declaration simpliciter would be maintainable.
16. On being put to specific query w.r.t. nature of the property
in the hands of defendant No.1, counsel for the plaintiff claims that the
same was a joint Hindu family property. Since the same was
partitioned vide Exhibit P-1, the said fact stands proved.
17. In the considered opinion of this Court, partition Exhibit P-
1 and further documents Exhibits PW5/A, PW5/B and PW5/C are not
enough to prove the nature of property in hands of defendant No.1. The
nature of the property would be ascertained by the source of acquisition
of estate by defendant No.1. In terms of document Exhibit PW/B,
appellant/plaintiff-Kulwant Rai inherited the aforesaid property from
his father Goinda Mal, who received the same from his father Harditta
Mal. As per Exhibit P-1, Goinda Mal and his brothers inherited the
property from Harditta Mal and Rajo Devi,. Meaning thereby, Goinda
Mal inherited joint properties of Harditta Mal and their mother Rajo
Devi. The only property inherited by Goinda Mal is the present plot. It
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has not come on record as to which property was inherited from
Harditta Mal and which property was inherited from Rajo Devi.
Meaning thereby, the property inherited is from the common pool from
which it is not ascertainable as to which property has come from Rajo
Devi and which property has come from Harditta Mal. The precise
situation has been canvassed by the Supreme Court in the case of Mara
and others vs. Mst. Nikko alias Punjab Kaur and another (supra)
wherein Apex Court observed as under :
"7. Now, it has been ruled in the Punjab consistently that
where lands are so mixed up that the ancestral and non-
ancestral portions cannot be separated they must be regarded
as non-ancestral, unless it is shown which are ancestral and
which are not. This was laid down by the Privy Council in
Attar Singh v. Thakar Singh, 35 Ind App. 206 (PC). It was
held by Mr. Justice Kapur (as he then was) in Indar Singh v.
Gulzara Singh, AIR 1951 Punjab 345 basing himself upon
Saif-ul-Rahman v. Mohammad Ali Khan, ILR 9 Lahore
95 and Jagtar Singh v. Raghbir Singh, ILR 13 Lahore 165
that land ceases to be ancestral if it comes into the hands of an
owner otherwise than by descent. Once these conclusions are
reached, it is quite obvious that the decision of the District
Judge not to apply the answer to question No. 52 to non-
ancestral land was right. It may be mentioned that the answers
to questions refer to ancestral property only and this is now
firmly established. In fact, it was not denied at the hearing."
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18. In view of above, this Court finds it hard to agree with the
submission made by counsel representing the appellant that the
property in hands of Goinda Mal was a joint Hindu family property.
There was no joint nucleus that led to acquisition of the property.
Rather the same was inherited by Goinda Mal from his parents namely
Harditta Mal and Rajo Devi, which is in-severable. The inevitable
conclusion is that the property in hands of Goinda Mal was his self-
acquired property. Partition propounded by the plaintiff, cannot be read
to vest any right, title or interest in him. Goinda Mal was within his
right to deal with the same in whatsoever manner he liked. There being
no cloud on his competence to execute the sale deed in favour of
defendant No.2, this Court finds that the suit preferred by the
plaintiff/appellant sans merit and deserves dismissal.
19. As a sequence of the discussion held herein-above, instant
second appeal is ordered to be dismissed.
20. Pending application(s), if any, shall also stand disposed off.
January 29, 2025 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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