Jiwan Singh Subedar and ors. Vs. Ujagar Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/629316
SubjectCivil
CourtPunjab and Haryana High Court
Decided OnMay-22-2009
Judge Vinod K. Sharma, J.
Reported in(2009)155PLR803
AppellantJiwan Singh Subedar and ors.
RespondentUjagar Singh and ors.
DispositionAppeal dismissed
Cases ReferredUjagar Singh v. Mansha Singh
Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case.vinod k. sharma, j.1. the plaintiff/appellants have invoked the jurisdiction of this court under section 100 of the civil procedure code to challenge the judgment and decree dated 26.10.1993 passed by the learned courts below dismissing the suit filed by the plaintiff/appellants, for declaration to challenge the decree suffered by mansha singh son of deceased devi chand in favour of his sons i.e. defendants no. 1 to 3.2. the plaintiff/appellants brought a suit on the pleadings that the plaintiffs and deceased mansha singh are sons of deceased devi chand. mansha singh suffered a decree dated 3.4.1986 qua 1/4th share i.e. the suit land in favour of his sons defendant/respondents no. 1 to 3 in the court of additional senior sub judge, ropar. the decree was challenged on the ground that the property in dispute is owned and possessed by the plaintiffs in equal shares on the basis of family settlement dated 15.6.1980. the defendants no. 1 to 4 had no right over this property as the decree suffered in favour of ujagar singh etc. was illegal, wrong, ineffective and inoperative qua the rights of the plaintiff/appellants.3. consequential relief of injunction was also sought restraining the defendants from interfering in actual, physical possession of the plaintiffs over the suit land.4. plaintiff jiwan singh retired from army as subedar and mansha singh was in police. they were living together during the life time of their father devi chand. the land detailed in the plaint situated in village karah sahib and mohanpur was banjar which was lying vacant and was uncultivable. the case set up was that under the scheme 'grow more food' of the government, and due to the efforts of the plaintiffs, land in villages karah sahib and mohanpur was allotted to ex-servicemen cooperative society limited mohanpur on behalf of the plaintiffs and mansha singh was enrolled as members of the society. the land was allotted in the name of mansha singh though plaintiff jiwan singh and mansha singh were joint right-holders and cultivators of the land. the state of haryana entered the land of these two villages in name of the society to be given on patta from kharif 1952 to rabi 1972 for a period of 20 years. at the time of filing of the suit, land was being cultivated by deceased mansha singh as owner. the plaintiffs claim to have spent more than rs. 30,000/- for the improvement of the land. devi chand father of the plaintiffs and mansha singh died on 24.6.1970 and according to his will plaintiffs and mansha singh inherited the land situated in village samrala and khairabad in equal shares.5. on 15.6.1980 in the presence of the relations and witnesses the suit land described in the head-note of the plaint was entered in the name of mansha singh with all it rights and interest, even though it was given to the plaintiffs in equal shares as exclusive owners. mansha singh, on the other hand, took the land measuring 81 kanals 10 marlas in villages karah sahib and mohanpur, since then the parties have been in possession of these properties.with a view to grab the property in dispute of villages samrala and khairabad, ujagar singh etc. filed a suit to get the suit land of and a collusive decree for possession as owner was passed on 3.4.1986.6. the case of the plaintiffs was that on the basis of said decree the defendants no. 1 to 3 were threatening to take forcible possession of the suit land. the decree passed in favour of defendants no. 1 to 3 was assailed on the ground that the land was owned and possessed by the plaintiffs and mansha singh had no right to suffer a decree, as in the family settlement he had been given property of other two villages in haryana. it was also the case set up that mansha singh was estopped from denying the title, ownership and possession of the plaintiffs regarding the suit land. it was claimed that the decree suffered was ineffective qua the rights of the plaintiffs.7. it was also the case set up by the plaintiff/appellants that on an earlier occasion also a suit was filed in which the parties compromised and an application was made for recording compromise, but before the said compromise could be proved by leading evidence mansha singh died and in his place legal representatives of mansha singh were brought on record.8. the suit was withdrawn on account of formal defect with a permission to file a fresh one on the same cause of action. the second suit, therefore, was filed.9. the suit was contested wherein besides taking preliminary objections, the family settlement dated 15.6.1980 was disputed. it was also pleaded that as mansha singh was recorded as owner of the property therefore, had every right to suffer the decree. it was also the case of the defendant/respondents that the plaintiffs had no concern with the land situated in villages mohanpur and karah sahib as the same was got allotted by mansha singh in his name being member of the co-operative society, which was taken on lease only.10. on merits, the averments made in the plaint were denied. it was also pleaded that mansha singh was cultivating the land in these two villages in his own capacity and that no amount was spent by the plaintiffs for improvement of the land. it was admitted that the suit land in villages khairabad and samrala was jointly cultivated by the plaintiffs and mansha singh on the basis of registered will executed by their father. the compromise said to have been arrived during the pendency of the previous suit was also denied. other grounds to assail the impugned judgment and decree were specifically denied.11. in the replication the averments made in the plaint were reiterated and that of the written statement were denied.12. on the pleadings of the parties, learned trial court was pleased to frame the following issues:1. whether the property in dispute is owned and possessed by the plaintiffs in equal shares? opp2. whether the decree dated 3.4.1986 in civil suit no. 365 of 1985 ujagar singh v. mansha singh is collusive, ineffective inoperative, qua the rights of the plaintiffs? opp3. whether the suit is not maintainable in the present form? opd4. whether the plaintiffs have no locus standi to file the present suit? opd5. whether the suit is not properly valued for the purposes of court fee and jurisdiction? opd6. whether the plaintiffs are entitled to the declaration prayed for? opp7. relief.13. on appreciation of evidence, learned trial court on issue no. 1 has been pleased to hold that the property in dispute was owned and possessed by the. plaintiffs along with mansha singh i.e. through legal heir, and not exclusively by the plaintiffs as alleged in the plaint.14. issue no. 2 was decided against the plaintiffs and decree impugned i.e. the decree dated 3.4.1986 was upheld in view of the fact that mansha singh was held to be owner in possession of l/4th share of the property. it was held that mansha singh had authority to suffer decree in favour of his sons.15. on issue no. 3, learned trial court was pleased to hold that it was not shown as to how the suit filed was not maintainable, and issue no. 3 was decided against the defendant-respondents, whereas issues no. 4 and 5 were decided against the defendant-respondents being not pressed.16. on issue no. 6, learned trial court was pleased to hold that the suit of the plaintiffs for declaration to challenge the decree could not be accepted.17. the suit for declaration filed by the plaintiff/ appellants was dismissed. however, keeping in view the fact that plaintiffs were found to be in possession of the property as co-sharers. it was held that plaintiffs could not be dispossessed forcibly except by following due process of law. the relief of injunction was granted to limited extent. learned lower appellate court affirmed the judgment and decree passed by the learned trial court.18. learned counsel for the appellants contends that this appeal raises the following substantial question of law for consideration by this court:whether the family settlement entered into between the parties could be nullified by the document which was inadmissible for want of registration?19. in support of the substantial question of law learned counsel for the appellants has vehemently contended that in the present case settlement dated 15.6.1980 has been set aside on the basis of compromise ex.p.1 which was not a registered document. the contention, therefore, is that once by way of ex.p.1 the title in immovable property worth more than rs. 100/- was created for the first time, it required registration, and in the absence thereof it could not be read in evidence.20. it is also the contention of the learned counsel for the appellants that if ex.p.1 is, taken out of consideration then there was a settlement dated 15.6.1980 under which respondent mansha singh was left with no right or title in the property situated in villages samrala and khairabad, therefore, the decree suffered in favour of defendants was required to be set aside.21. the oral settlement dated 15.6.1980 was not depicted in the revenue record. the parties continued to be shown as joint owners of property in dispute and therefore, it could not be held that the settlement dated 15.6.1980 was proved. even if for the sake of arguments, the contentions raised by the learned counsel for the appellants is considered on touchstone of law, it is to be held that it was not open to the plaintiff/appellants to challenge ex.p.1 to be not admissible in evidence, for want of registration as it was relied upon by the plaintiff/appellants themselves. it is not open to the party setting up a document to challenge it for want of registration.22. if the matter is seen from another angle still the contentions raised by the learned counsel for the appellants, cannot be accepted as by way of document ex.p.1 no rights were created for the first time but was only a declaration of existing rights of the parties. ex.p.1, therefore, was not required to be registered as contended. the substantial question of law raised is answered against the appellants.23. the judgments and decree of the learned courts below is upheld. the appeal is dismissed being without merit, but with no order as to costs.
Judgment:

Vinod K. Sharma, J.

1. The plaintiff/appellants have invoked the jurisdiction of this Court under Section 100 of the Civil Procedure Code to challenge the judgment and decree dated 26.10.1993 passed by the learned courts below dismissing the suit filed by the plaintiff/appellants, for declaration to challenge the decree suffered by Mansha Singh son of deceased Devi Chand in favour of his sons i.e. defendants No. 1 to 3.

2. The plaintiff/appellants brought a suit on the pleadings that the plaintiffs and deceased Mansha Singh are sons of deceased Devi Chand. Mansha Singh suffered a decree dated 3.4.1986 qua 1/4th share i.e. the suit land in favour of his sons defendant/respondents No. 1 to 3 in the court of Additional Senior Sub Judge, Ropar. The decree was challenged on the ground that the property in dispute is owned and possessed by the plaintiffs in equal shares on the basis of family settlement dated 15.6.1980. The defendants No. 1 to 4 had no right over this property as the decree suffered in favour of Ujagar Singh etc. was illegal, wrong, ineffective and inoperative qua the rights of the plaintiff/appellants.

3. Consequential relief of injunction was also sought restraining the defendants from interfering in actual, physical possession of the plaintiffs over the suit land.

4. Plaintiff Jiwan Singh retired from Army as Subedar and Mansha Singh was in police. They were living together during the life time of their father Devi Chand. The land detailed in the plaint situated in village Karah Sahib and Mohanpur was Banjar which was lying vacant and was uncultivable. The case set up was that under the scheme 'grow more food' of the Government, and due to the efforts of the plaintiffs, land in villages Karah Sahib and Mohanpur was allotted to Ex-servicemen Cooperative Society Limited Mohanpur on behalf of the plaintiffs and Mansha Singh was enrolled as members of the Society. The land was allotted in the name of Mansha Singh though plaintiff Jiwan Singh and Mansha Singh were joint right-holders and cultivators of the land. The State of Haryana entered the land of these two villages in name of the Society to be given on Patta from Kharif 1952 to Rabi 1972 for a period of 20 years. At the time of filing of the suit, land was being cultivated by deceased Mansha Singh as owner. The plaintiffs claim to have spent more than Rs. 30,000/- for the improvement of the land. Devi Chand father of the plaintiffs and Mansha Singh died on 24.6.1970 and according to his will plaintiffs and Mansha Singh inherited the land situated in village Samrala and Khairabad in equal shares.

5. On 15.6.1980 in the presence of the relations and witnesses the suit land described in the head-note of the plaint was entered in the name of Mansha Singh with all it rights and interest, even though it was given to the plaintiffs in equal shares as exclusive owners. Mansha Singh, on the other hand, took the land measuring 81 kanals 10 marlas in villages Karah Sahib and Mohanpur, since then the parties have been in possession of these properties.

With a view to grab the property in dispute of villages Samrala and Khairabad, Ujagar Singh etc. filed a suit to get the suit land of and a collusive decree for possession as owner was passed on 3.4.1986.

6. The case of the plaintiffs was that on the basis of said decree the defendants No. 1 to 3 were threatening to take forcible possession of the suit land. The decree passed in favour of defendants No. 1 to 3 was assailed on the ground that the land was owned and possessed by the plaintiffs and Mansha Singh had no right to suffer a decree, as in the family settlement he had been given property of other two villages in Haryana. It was also the case set up that Mansha Singh was estopped from denying the title, ownership and possession of the plaintiffs regarding the suit land. It was claimed that the decree suffered was ineffective qua the rights of the plaintiffs.

7. It was also the case set up by the plaintiff/appellants that on an earlier occasion also a suit was filed in which the parties compromised and an application was made for recording compromise, but before the said compromise could be proved by leading evidence Mansha Singh died and in his place legal representatives of Mansha Singh were brought on record.

8. The suit was withdrawn on account of formal defect with a permission to file a fresh one on the same cause of action. The second suit, therefore, was filed.

9. The suit was contested wherein besides taking preliminary objections, the family settlement dated 15.6.1980 was disputed. It was also pleaded that as Mansha Singh was recorded as owner of the property therefore, had every right to suffer the decree. It was also the case of the defendant/respondents that the plaintiffs had no concern with the land situated in villages Mohanpur and Karah Sahib as the same was got allotted by Mansha Singh in his name being member of the Co-operative Society, which was taken on lease only.

10. On merits, the averments made in the plaint were denied. It was also pleaded that Mansha Singh was cultivating the land in these two villages in his own capacity and that no amount was spent by the plaintiffs for improvement of the land. It was admitted that the suit land in villages Khairabad and Samrala was jointly cultivated by the plaintiffs and Mansha Singh on the basis of registered Will executed by their father. The compromise said to have been arrived during the pendency of the previous suit was also denied. Other grounds to assail the impugned judgment and decree were specifically denied.

11. In the replication the averments made in the plaint were reiterated and that of the written statement were denied.

12. On the pleadings of the parties, learned trial court was pleased to frame the following issues:

1. Whether the property in dispute is owned and possessed by the plaintiffs in equal shares? OPP

2. Whether the decree dated 3.4.1986 in civil suit No. 365 of 1985 Ujagar Singh v. Mansha Singh is collusive, ineffective inoperative, qua the rights of the plaintiffs? OPP

3. Whether the suit is not maintainable in the present form? OPD

4. Whether the plaintiffs have no locus standi to file the present suit? OPD

5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD

6. Whether the plaintiffs are entitled to the declaration prayed for? OPP

7. Relief.

13. On appreciation of evidence, learned trial court on issue No. 1 has been pleased to hold that the property in dispute was owned and possessed by the. plaintiffs along with Mansha Singh i.e. through legal heir, and not exclusively by the plaintiffs as alleged in the plaint.

14. Issue No. 2 was decided against the plaintiffs and decree impugned i.e. the decree dated 3.4.1986 was upheld in view of the fact that Mansha Singh was held to be owner in possession of l/4th share of the property. It was held that Mansha Singh had authority to suffer decree in favour of his sons.

15. On issue No. 3, learned trial court was pleased to hold that it was not shown as to how the suit filed was not maintainable, and issue No. 3 was decided against the defendant-respondents, whereas issues No. 4 and 5 were decided against the defendant-respondents being not pressed.

16. On issue No. 6, learned trial court was pleased to hold that the suit of the plaintiffs for declaration to challenge the decree could not be accepted.

17. The suit for declaration filed by the plaintiff/ appellants was dismissed. However, keeping in view the fact that plaintiffs were found to be in possession of the property as co-sharers. It was held that plaintiffs could not be dispossessed forcibly except by following due process of law. The relief of injunction was granted to limited extent. Learned lower appellate court affirmed the judgment and decree passed by the learned trial court.

18. Learned Counsel for the appellants contends that this appeal raises the following substantial question of law for consideration by this Court:

Whether the family settlement entered into between the parties could be nullified by the document which was inadmissible for want of registration?

19. In support of the substantial question of law learned Counsel for the appellants has vehemently contended that in the present case settlement dated 15.6.1980 has been set aside on the basis of compromise Ex.P.1 which was not a registered document. The contention, therefore, is that once by way of Ex.P.1 the title in immovable property worth more than Rs. 100/- was created for the first time, it required registration, and in the absence thereof it could not be read in evidence.

20. It is also the contention of the learned Counsel for the appellants that if Ex.P.1 is, taken out of consideration then there was a settlement dated 15.6.1980 under which respondent Mansha Singh was left with no right or title in the property situated in villages Samrala and Khairabad, therefore, the decree suffered in favour of defendants was required to be set aside.

21. The oral settlement dated 15.6.1980 was not depicted in the revenue record. The parties continued to be shown as joint owners of property in dispute and therefore, it could not be held that the settlement dated 15.6.1980 was proved. Even if for the sake of arguments, the contentions raised by the learned Counsel for the appellants is considered on touchstone of law, it is to be held that it was not open to the plaintiff/appellants to challenge Ex.P.1 to be not admissible in evidence, for want of registration as it was relied upon by the plaintiff/appellants themselves. It is not open to the party setting up a document to challenge it for want of registration.

22. If the matter is seen from another angle still the contentions raised by the learned Counsel for the appellants, cannot be accepted as by way of document Ex.P.1 no rights were created for the first time but was only a declaration of existing rights of the parties. Ex.P.1, therefore, was not required to be registered as contended. The substantial question of law raised is answered against the appellants.

23. The judgments and decree of the learned courts below is upheld. The appeal is dismissed being without merit, but with no order as to costs.