Rajasthan High Court - Jodhpur

Mohanlal vs Hanumansingh on 23 February, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 300/2019

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For Appellant(s) : Mr. Amar Singh Choudhary. For Respondent(s) : Mr. Satya Prakash Sharma.

HON'BLE MR. JUSTICE ARUN BHANSALI

Judgment

23/02/2021

This appeal is directed against the judgment and decree

dated 3/4/2019 passed by the Addl. District Judge, Jodhpur

(2 of 7) [CFA-300/2019]

District, whereby, the suit filed by the plaintiffs for cancellation of

sale deed dated 31/12/2009 and for injunction has been

dismissed.

The suit was filed by the plaintiffs inter alia with the

submissions that the land ad measuring 22 Bigha 7 Biswa is

situated in village Pipar City, which was ancestral property of

plaintiffs and defendant nos. 2 to 9; the land was earlier recorded

in the name of Ram Sukh. After the death of Ram Sukh, by

mutation no. 962, the same was recorded in the name of his three

sons, Kanhaiya Lal, Har Narain and Heeral Lal; the plaintiffs and

defendant no.3 are children of Kanhaiya Lal and defendant nos. 4

to 6 are grand children of Kanhaiya Lal, whereas, defendant nos. 7

& 8 are daughters of Kanhaiya Lal. It was claimed that the land

recorded in the name of defendant no.2 - Kanhaiya Lal, their

father, was jointly owned by the plaintiffs and defendant nos. 2 to

8 being ancestral and each had 1/8th share; the property had not

been partitioned and the defendant no. 2, their father, without

consent from the plaintiffs and other co-tenants had transferred

the entire land to defendant no.1, Hanuman Singh, on

31/12/2009, which transfer was void qua the plaintiffs and other

defendants - co-tenants. It was prayed that the sale deed dated

31/12/2009 be partly cancelled to the extent of plaintiffs' share

and they be not dispossessed from the land in question.

Written statement was filed by defendant no.1 disputing the

averments made in the plaint. It was indicated that the disputed

land was not joint, the defendant no.2 - Kanhaiya Lal has

transferred his share to him. Father of defendant no.1, Heera Lal,

is co-tenant of the land in question and that the transfer is for

consideration and during the life time of Kanhaiya Lal his sons &

(3 of 7) [CFA-300/2019]

daughters cannot seek partition and, therefore, the suit be

dismissed.

Defendant nos. 2 to 8 other than defendant no.7 also filed

written statement and contested the averments made by the

plaintiffs.

Based on the pleadings of the parties, the trial court framed

three issues. On behalf of the plaintiff, four witnesses were

examined and three documents were exhibited. On behalf of the

defendants, defendant no.1 appeared as D.W.1.

The trial court after hearing the parties, decided the issue

no.1 & 2 together and came to the conclusion that from the

Jamabandi (Ex.1 & 2), it was apparent that the land in question

was standing in the name of plaintiffs' father, Kanhaiya Lal and his

brothers. Ex.1 indicated the land in the name of Ram Sukh, father

of Kanhaiya Lal and Ex.2 indicated the land in the name of

Kanhaiya Lal, Har Narain and Heera Lal, sons of Ram Sukh and as

Kanhaiya Lal, recorded khatedar, has transferred his share to

defendant no. 1 - Hanuman Singh, who is son of co-tenant,

Heeral Lal and from the documents it was apparent that Kanhaiya

Lal was owner to the extent of 1/3rd share, which was received by

him on death of his father Ram Sukh, the same was his self

acquired property and as the plaintiffs had failed to prove that the

disputed land was ancestral land, Kanhaiya Lal had the right to

transfer the property and, therefore, the plaintiffs were not

entitled to seek cancellation of sale deed and for grant of

injunction and consequently dismissed the suit.

Learned counsel for the appellants made submissions that

the trial court was not justified in coming to the conclusion that

the land in question was self acquired property of Kanhaiya Lal. It

(4 of 7) [CFA-300/2019]

was submitted that admittedly the land stood in the name of Ram

Sukh, grand father of plaintiffs and it was the specific case of the

plaintiffs that the land initially belonged to Chotha Ram, father of

Ram Sukh and as such in the hands of Kanhaiya Lal, their father,

the same was ancestral in nature and, therefore, the plaintiffs had

share in the suit property, which could not have been transferred

by Kanhaiya Lal alone and, therefore, the trial court committed

error in dismissing the suit.

Learned counsel for the respondents supported the

impugned decree. It was submitted that though the plaintiffs

claimed the land to be ancestral, however, they failed to prove the

same inasmuch as from Ex.1 and 2 it was apparent that the land

in question belonged to Ram Sukh and on his death it was

succeeded by his three sons and in their hands the same was self

acquired property and, therefore, Kanhaiya Lal had the right to

transfer the suit property, therefore, the judgment impugned

passed by the trial court does not call for any interference.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as the record of the trial court.

The suit was filed by the plaintiffs by claiming the land in

question as ancestral property. Para 3 of the plaint inter alia reads

as under:

"3- ;g fd fooknxzLr Hkwfe ij igys Jh pkSFkkjke tks oknhx.k ds iwoZt Fks ,oa muds i"pkr ;g vkjkth muds iq= jkelq[k ds uke ntZ dh xbZA jkelq[k dk LoxZokl gksus ij mDr vkjkth muds rhu iq= vFkkZr dUgS;kyky] gjukjk;.k o ghjkyky ds uke ntZ dh xbZ tks tfj;s mrjkf/kdkj ukekUrjdj.k la[;k 962 ¼uks lks cklB½ ds ntZ dh xbZA udy tekcUnh 2031 ¼nks gtkj bdrhl½ ls 2034 ¼nks gtkj pkSrhl½ nkos ds lkFk is"k dh tk jgh gSA"

(5 of 7) [CFA-300/2019]

A perusal of the above would indicate that it was the specific

case of the plaintiffs that the land initially belonged to Chotha Ram

and same was succeeded by Ram Sukh, plaintiffs' grand father

and on the death of Ram Sukh the same was succeeded by

Kanhaiya Lal, plaintiffs' father, Har Narain and Heera Lal,

plaintiffs' uncles. The said plea raised in para 3 of the plaint was

resisted by the defendants by indicating that the land in question

was owned by Kanhaiya Lal, Har Narain and Heera Lal, which is

evidenced by Jamabandi of Samvat year 2031 - 2034 and rest of

the averments were denied being incorrect.

The documentary and oral evidence, which was led by the

plaintiffs - appellants, comprised of two Jamabandi, which were

filed as Ex.1 and Ex.2, while Ex.1 pertained to Jamabandi of

Samvat year 2031 to 2034, the same indicated Ram Sukh as the

tenant and Ex. 2 Jamabandi for Samvat year 2052 - 2055

indicated Kanhaiya Lal, Har Narain and Heera Lal as khatedar

tenants of the land in question.

Once the case of the plaintiffs, as noticed hereinbefore, was

specific that the land in question initially belonged to Chotha Ram,

their great grand father, it was necessary for the plaintiffs to

substantiate the same by way of evidence. The documents, as

noticed hereinbefore, indicated the land belonging to Ram Sukh,

their grand father only and even in the oral evidence led by the

plaintiffs, no indication in this regard was made. Further even the

defendants, who appeared in the witness box, even they were also

not cross examined on the aspect of land belonging to Chotha

Ram and Ram Sukh succeeding to the same.

In view thereof, the finding of the trial court that the land in

question was owned by Ram Sukh and the same was succeeded

(6 of 7) [CFA-300/2019]

by his three sons, Kanhaiya Lal, Har Narain and Heera Lal cannot

be said to be beyond the record and/or perverse in any manner. In

fact, the plaintiffs have failed to prove that the land in question

belonged to Chotha Ram and was succeeded by Ram Sukh and

then by Kanhaiya Lal and his brothers.

The law on the nature of property in the hands of those

succeeding under Section 8 of the Hindu Succession Act, 1956

('the Act, 1956') has been laid down by Hon'ble Surpeme Court in

Commissioner of Weath Tax vs. Chander Sen & Ors. : (1986) 3

SCC 567, wherein, it was inter alia laid down as under:

"22. In view of the preamble to the Act, i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. ............It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis- a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc."

Similarly, in Yudhishter vs. Ashok Kumar : (1987) 1 SCC

204, it was held as under:

"10. This question has been considered by this Court in CWT v. Chander Sen, 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

(7 of 7) [CFA-300/2019]

this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th edn. pages 924-26 as well as Mayne's Hindu Law, 12th edn. Pages 918-19. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th edn. at pages 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th edn. page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a- vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."

In view of the law laid down by the Supreme Court in the

case of Chander Sen (supra) and Yudhishter (supra), it is apparent

that the property, which belonged to Ram Sukh, who admittedly

died intestate, devolved on Kanhaiya Lal, Har Narain and Heera Lal

and in their hands the same was self acquired property and,

therefore, Kanhaiya Lal could have dealt with the property in the

manner he liked and the transfer made by him cannot be said to

be void, as alleged, and, therefore, the findings recorded by the

trial court cannot be faulted.