Punjab-Haryana High Court
Udham Singh vs Balwant Singh on 3 March, 2025
Neutral Citation No:=2025:PHHC:029380
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2109-1990 (O&M)
Udham Singh (deceased) through LRs . . . . Appellants
Vs.
Balwant Singh . . . . Respondents
Reserved on: 28.02.2025
Pronounced on: 03.03.2025
****
CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
Argued by:- Mr. A.D.S. Sukhija, Advocate and
Mr. Ish Karan Singh Chhabra, Advocate
for the appellant.
Mr. Prabhjayjot Singh Chahal, Advocate and
Mr. G.S. Nagra, Advocate for the respondent.
DEEPAK GUPTA, J.
Suit for declara%on regarding property in dispute filed by plain%ff
Balwant Singh (respondent herein) was dismissed by the trial Court of learned
Sub-Judge 1st Class, Ajnala vide judgment dated 12.08.1987. However, the ap-
peal filed by the said plain%ff was accepted by the first appellate court of
learned Addi%onal District Judge, Amritsar vide judgment dated 17.09.1990,
thus, decreeing the suit. Against this reversal, defendant Udham Singh (appel-
lant herein) has approached this Court by way of the present Regular Second
Appeal.
2. Trial Court record was called. Same has been perused. In order to
avoid confusion, par%es shall be referred as per their status before the trial
Court.
3. Pritam Singh, the father of plain%ff Balwant Singh was recorded to
be owner of the suit land measuring 14 Kanal detailed in headnote of the plaint.
He executed an agreement dated 07.04.1981 in favour of defendant Udham
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Singh to sell the suit land to him. Based upon this agreement, Udham Singh
brought a suit for specific performance, which was decreed on 29.11.1983 vide
judgment Ex.D1. During the appeal filed by Pritam Singh against the said decree
dated 29.11.1983 for specific performance, said Pritam Singh expired and his le-
gal representa%ves including plain%ff of this case Balwant Singh were brought
on record. An applica%on was moved by the said plain%ff to amend the wri:en
statement so as to incorporate the plea that property in dispute was ancestral in
nature and that same could not be sold by his father Pritam Singh without any
legal necessity. However said applica%on was dismissed by the Appellate Court.
Ul%mately, the appeal filed by Pritam Singh through his LRs was dismissed on
20.08.1985 vide judgment Ex.D2. Pursuant to the decree for specific perfor-
mance passed by the Courts, impugned sale deed dated 26.12.1985 (Ex.DW2/1)
was executed in favour of defendant of present case Udham Singh through
process of the Court.
4.1 Plain%ff Balwant Singh (now respondent) son of Pritam then
brought the present suit on 05.06.1986 challenging the aforesaid sale deed
dated 26.12.1985 to be null, illegal and void. According to him, he along with his
father Pritam Singh cons%tuted a joint Hindu family, of which Pritam Singh was
the Karta. Suit property was ancestral in the hands of his father Pritam Singh
qua him. It was alleged that said Pritam Singh was a man of wasteful habits and
that there was no legal necessity to sell the suit land. As such, he prayed for
se>ng aside the sale deed dated 26.12.1985.
4.2 Defendant of the suit Udham Singh i.e. the appellant herein op-
posed the suit on various grounds including the fact that suit property was not
ancestral in nature.
4.3 Necessary issues were framed. Evidence produced by the par%es
was taken on record. Trial Court vide judgment dated 12.08.1987 held the suit
property to be ancestral in nature. It was further held by the trial Court that
though deceased Pritam Singh was the Karta of the joint Hindu family but the
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sale of the suit land by him was for the benefit of the joint Hindu family. Im-
pugned sale deed in favour of defendant was held to be legal and valid. Conse-
quent to these findings on the material issues, the suit was dismissed on
12.08.1987.
4.4 The Appellate Court, in the appeal filed by the plain%ff sought re-
port from the trial Court on two points:-
(i) Whether plain%ff and Pritam Singh cons%tuted a joint Hindu family and
if so, whether Pritam Singh was the Karta thereof.
(ii) Whether impugned sale deed in favour of defendant was effected for
legal necessity by Pritam Singh and/or was otherwise an act of good man-
agement on the part of Pritam Singh and was for the benefit for estate.
4.5 ADer ge>ng the report dated 18.04.1990 from the trial Court, the
Appellate Court endorsed the findings to the effect that suit property was an-
cestral in nature in the hands of Pritam Singh. It was further held that plain%ff
and Pritam Singh cons%tuted a joint Hindu family and that Pritam Singh was
Karta thereof. It was held further that impugned sale deed was neither proved
to have been executed for legal necessity not it could be stated to be an act of
good management or benefit of the estate. As such, impugned sale deed dated
26.12.1985 was set aside. Consequently, the Appellate Court vide its judgment
dated 17.09.1990, allowed the appeal filed by the plain%ff and declared the sale
deed dated 26.12.1985 Ex.DW2/1 to be null, illegal and void. It was further di-
rected that plain%ff was en%tled to be put in possession of suit land subject to
payment of the sale considera%on as received by his father to defendant Udham
Singh.
5. Against the aforesaid reversal, defendant of the case has ap-
proached this Court. Vide order dated 14.11.1990 passed by this Court, dispos-
session of the defendant-appellant was stayed.
6. The principle conten%on raised by learned counsel for the appel-
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lant-defendant before this Court is that both the Courts below have commi:ed
grave error in holding the suit property to be ancestral in nature. It is pointed
out that as per the revenue record placed on record, as has been referred to by
the trial court as well as the Appellate Court, suit property was inherited by
plain%ff Balwant Singh from his father Pritam Singh. Said Pritam Singh had in-
herited the same from his father from Ujagar Singh. Learned counsel contends
that there is absolutely no evidence to show that Ujagar Singh, the grandfather
of the plain%ff Balwant Singh had inherited it from his father. It is argued that
since the suit property was not inherited from third degree of ancestors, there-
fore, it cannot be held to be the ancestral property.
7. On the other hand, it is argued by learned counsel for the respon-
dent that both the Courts below on the basis of evidence on record has rightly
held the suit property to be ancestral in nature and that there is no scope for in-
terference in the concurrent findings of facts in this regard.
8. I have considered submissions of both the sides and have perused
the record carefully.
9. Perusal of the judgments passed by the Courts below would reveal
that both the Courts, based upon the revenue record placed on file including
Revenue Excerpt Ex.PW1/1, Khatouni Ishtemal Ex.P3, Naksha Hakdarwar Ex.P4,
Khatouni Pamaiesh Ex.P5, Jamabandi for the year 1981-82 Ex.P2 found that suit
property was originally owned by Ujagar Singh and aDer his death, the same
was inherited by Pritam Singh i.e. father of the plain%ff along with his brothers
and aDer the death of Pritam Singh, the suit property was inherited by the plain-
%ff. Once it is found that suit property was originally owned by Ujagar Singh i.e.
grandfather of the plain%ff and there is nothing to show that Ujagar Singh had
inherited the same from his father, the ques%on is as to whether the said prop-
erty was ancestral in the hands of Pritam Singh qua the plain%ff.
10. Here itself, it may be no%ced that suit property has been inherited
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by plain%ff Balwant Singh from his father Pritam Singh, who had expired aDer
coming into force of the Hindu Succession Act, 1956.
11. In "Arshnoor Singh v. Harpal Kaur" AIR 2019 Supreme Court 398,
Hon'ble Supreme Court was confronted with the ques%on as to whether the suit
property was ancestral in the hands of Inder Singh, who had inherited it from
his father Lal Singh on his death and whose death had taken place prior to com-
ing into force of the Hindu Succession Act, 1956. It was held by Hon'ble
Supreme Court as under:-
"7. With respect to the first issue, it is the admi:ed posi%on that Inder Singh
had inherited the en%re suit property from his father Lal Singh upon his death.
As per the Muta%on Entry dated 16.01.1956 produced by Respondent No. 1, Lal
Singh's death took place in 1951. Therefore, the succession in this case opened
in 1951 prior to the commencement of the Hindu Succession Act, 1956 when
Inder Singh succeeded to his father Lal's Singh's property in accordance with
the old Hindu Mitakshara law.
7.1. Mulla in his commentary on Hindu Law (22nd Edi)on) has stated the
posi%on with respect to succession under Mitakshara law as follows:
Page 129 - "A son, a grandson whose father is dead, and a great
grandson whose father and grandfather are both dead, succeed
simultaneously as single heir to the separate or self-acquired property of
the deceased with rights of survivorship."
Page 327 - "All property inherited by a male Hindu from his father,
father's father or father's father's father, is ancestral property. The
essen%al feature of ancestral property according to Mitakshara law is
that the sons, grandsons and great grandsons of the person who inherits
it, acquire an interest, and the rights a:ached to such property at the
moment of their birth.
A person inheri%ng property from his three immediate paternal
ancestors holds it, and must hold it, in coparcenary with his sons, son's
sons, and son's son's sons, but as regards other rela%ons, he holds it, and
is en%tled to hold it as his absolute property." (emphasis supplied)
7.2. In Shyam Narayan Prasad v. Krisha Prasad & Ors., (2018) 7 SCC 646, this
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Court has recently held that :
"12. It is se:led that the property inherited by a male Hindu from his
father, father's father or father's father's father is an ancestral property.
The essen%al feature of ancestral property, according to Mitakshara Law,
is that the sons, grandsons, and great grandsons of the person who
inherits it, acquire an interest and the rights a:ached to such property at
the moment of their birth. The share which a coparcener obtains on
par%%on of ancestral property is ancestral property as regards his male
issue. ADer par%%on, the property in the hands of the son will con%nue
to be the ancestral property and the natural or adopted son of that son
will take interest in it and is en%tled to it by survivorship."
(emphasis supplied)
7.3. Under Mitakshara law, whenever a male ancestor inherits any property
from any of his paternal ancestors up to three degrees above him, then his
male legal heirs up to three degrees below him, would get an equal right as
coparceners in that property.
7.4. In Yudhishter v. Ashok Kumar, (1987) 1 SCC 204, this Court held that :
"11. This ques%on has been considered by this Court in Commissioner of
Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [1986] 161 ITR
370 (SC), where one of us (Sabyasachi Mukharji, J) observed that under
the Hindu Law, the moment a son is born, he gets a share in father's
property and become part of the coparcenary. His right accrues to him
not on the death of the father or inheritance from the father but with
the very fact of his birth. Normally, therefore whenever the father gets a
property from whatever source, from the grandfather or from any other
source, be it separated property or not, his son should have a share in
that and it will become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu family with him.
This Court observed that this posi%on has been affected by Sec%on 8 of
the Hindu Succession Act, 1956 and, therefore, aDer the Act, when the
son inherited the property in the situa%on contemplated by Sec%on 8,
he does not take it as Karta of his own undivided family but takes it in his
individual capacity."
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(emphasis supplied)
7.5. ADer the Hindu Succession Act, 1956 came into force, this posi%on has
undergone a change. Post - 1956, if a person inherits a self-acquired property
from his paternal ancestors, the said property becomes his self-acquired
property, and does not remain coparcenary property.
7.6. If succession opened under the old Hindu law, i.e., prior to the
commencement of the Hindu Succession Act, 1956, the par%es would be
governed by Mitakshara law. The property inherited by a male Hindu from his
paternal male ancestor shall be coparcenary property in his hands vis à vis his
male descendants up to three degrees below him. The nature of property will
remain as coparcenary property even aDer the commencement of the Hindu
Succession Act, 1956.
7.7. In the present case, the succession opened in 1951 on the death of Lal
Singh. The nature of the property inherited by his son Inder Singh was
coparcenary in nature. Even though Inder Singh had effected a par%%on of the
coparcenary property amongst his sons in 1964, the nature of the property
inherited by Inder Singh's sons would remain as coparcenary property qua their
male descendants up to three degrees below them.
7.8. The judgment in U<am v. Saubhag Singh (supra) [AIR 2016 SC 1169: 1
(2016) 4 SCC] relied upon by the Respondents is not applicable to the facts of
the present case. In U:am, the appellant therein was claiming a share in the
coparcenary property of his grandfather, who had died in 1973 before the
appellant was born. The succession opened in 1973 aDer the Hindu Succession
Act, 1956 came into force. The Court was concerned with the share of the
appellant's grandfather in the ancestral property, and the impact of Sec%on 8 of
the Hindu Succession Act, 1956. In light of these facts, this Court held that aDer
property is distributed in accordance with Sec%on 8 of the Hindu Succession
Act, 1956, such property ceases to be joint family property in the hands of the
various persons who have succeeded to it. It was therefore held that the
appellant was not a coparcener vis à vis the share of his grandfather.
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7.9. In the present case, the en%re property of Lal Singh was inherited by his
son Inder Singh as coparcenary property prior to 1956. This coparcenary
property was par%%oned between the three sons of Inder Singh by the court
vide a decree of par%%on dated 04.11.1964. The shares allo:ed in par%%on to
the coparceners, con%nued to remain coparcenary property in their hands qua
their male descendants. As a consequence, the property allo:ed to Dharam
Singh in par%%on con%nued to remain coparcenary property qua the
Appellant."
12. It is clear from the aforesaid legal posi%on that normally, when-
ever father gets a property from whatever source, from the grandfather or from
any other source, being separate property or not, his son should have a share in
it and it became part of the joint Hindu family of his son and grandson and
other member, who form joint Hindu family with him. However, this posi%on
has been affected by Sec%on 8 of the Hindu Succession Act, 1956. ADer coming
into force of the said Act, when the son inherits the property in the situa%ons
contemplated by Sec%on 8, he does not take it as Karta of his undivided family
but takes it in his individual capacity.
13. In the present case, Pritam Singh had expired during 1983-84 i.e.
aDer coming into force of the Hindu Succession Act, 1956 and then succession
opened qua plain%ff in respect of the property held by Pritam Singh. Earlier the
property had been inherited by Pritam Singh along with his brothers from his fa-
ther Ujagar Singh. There is nothing on record to show that Ujagar Singh had in-
herited it from his father i.e. plain%ff's father's father's father. In these facts and
circumstances, by applying the legal posi%on explained by Hon'ble Supreme
Court in Arshnoor Singh's case (supra); Yudhishter v. Ashok (supra); Commis-
sioner of Wealth Tax, Kanpur v. Chander Sen (supra); and U<am v. Subhag
Singh (supra), it is held that suit property in the hands of Pritam Singh was not
ancestral qua plain%ff Balwant Singh.
14. In Arshnoor's case, suit property was held to be ancestral as Inder
Singh's father Lal Singh had inherited it 1951 i.e. prior to coming into force of
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the Hindu Succession Act. However, in present case, firstly grandfather of plain-
%ff had not inherited suit property from his father; and secondly, succession for
plain%ff Balwant opened in 1983-84 on the death of his father, so, it is held that
suit property was not ancestral in the hands of Pritam Singh qua plain%ff Bal-
want Singh. Once it is so, there is no ques%on of ascertaining, as to whether the
sale deed dated 26.12.1985 in favour of Udham Singh- defendant, executed
through process of the Court pursuant to the decree passed in a suit for specific
performance filed by Udham Singh defendant (appellant herein) was null and
void or not, on account of the fact that it was without legal necessity. Since the
suit property was not ancestral and rather, it was self-acquired property in the
hands of Pritam Singh, the father of the plain%ff, therefore there is no ques%on
of the impugned sale deed being declared as null and void on the ground of be-
ing without legal necessity or not an act of good management.
15. Consequently, the impugned judgment passed by the Appellate
Court is hereby set aside. The judgment of the trial Court, dismissing the suit of
the plain%ff-respondent is hereby restored but for different reasons. The suit is
being dismissed, not because the suit property was ancestral and plain%ff failed
to prove the impugned sale deed to be not for legal necessity; rather, the suit is
being dismissed, as plain%ff has u:erly failed to prove the suit property to be
ancestral in nature.
16. Consequently, the present appeal is hereby accepted. The suit of
the plain%ff-respondent is hereby dismissed. Par%es are leD to bear their own
costs.
(DEEPAK GUPTA)
JUDGE
March 03, 2025
Nee ka Tuteja
Whether speaking/reasoned? Yes
Whether reportable? Yes
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