Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 129 (HP)

BHAGA RAM v. PARVEEN KUMAR

2000-06-01

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—This regular second appeal by defendant No. 1 Bhaga Ram has been directed against the judgment and decree dated 6.9.1993 of the learned District Judge, Hamirpur, whereby the judgment and decree dated 31.8.1987 of the learned Senior Sub Judge, Hamirpur were set aside and the suit of the plaintiffs (respondents No. 1 and 2) for declaration was decreed. 2. The subject matter of the dispute between the parties is the land measuring 8 Kanals 4 Marias, being l/4th share of the land measuring 32 Kanals 15 Marias comprising of Khasra Nos. 8, 34, 7, 6, 19, 23, 26, 30, 36 and 284/33 of Tika Tohlwin, specifically detailed in the plaint and hereinafter referred to as the land in dispute. 3. One Beli Ram, father of the plaintiffs and respondents No. 3 and 4 was the owner of the land in dispute. He sold the same to defendant No. 1 for Rs. 17,000/- vide registered sale deed dated 18.5.1982. The plaintiffs have assailed such alienation by their father. It is pleaded that the land in dispute was ancestral in the hands of Beli Ram. The plaintiffs and their father are governed by agricultural custom in the matters of alienation and succession according to which the ancestral property cannot be alienated without a legal necessity and consent of the reversioners. It is further pleaded that sale was made by Beli Ram without consideration and legal necessity. The sale consideration as recorded in the sale deed is fictitious. Shri Beli Ram was a debaunch, drunkard, aquanderor, gambler and extravagant and the land in dispute was sold just in order to satisfy his ill habits. 4. Defendant No. 1, while resisting the suit admitted the sale of the land in dispute in his favour. He pleaded that the sale was for valuable consideration and legal necessity. The ancestral nature of the land in dispute and the fact that the plaintiffs and their father are governed by agricultural custom in the matters of alienation and succession was denied. It was also pleaded that Beli Ram required money for the marriage of his daughter and for construction of the house. Besides, he was under heavy debts. 5. On the pleadings of the parties, following issues were framed by the learned trial court:— 1. Whether the plaintiffs and Sh. Beli Ram are governed by custom in matters of alienation and succession? Besides, he was under heavy debts. 5. On the pleadings of the parties, following issues were framed by the learned trial court:— 1. Whether the plaintiffs and Sh. Beli Ram are governed by custom in matters of alienation and succession? If so, what that custom is? OPP. 2. Whether the land in suit is ancestral qua the plaintiffs and Beli Ram? OPP. 3. Whether the sale in dispute is for consideration and legal necessity? OPD. 4. Whether the suit does not lie in the present form? OPD. 5. Whether the plaintiffs are estopped from filing the suit? OPD. 6. Whether the suit is within time? OPP. 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 8. Relief. 6. The learned trial court decided issues No. 1, 4, 5, 6 and 7 in favour of the plaintiffs. Under issue No. 2, which was found against the plaintiffs, the learned trial court came to the conclusion that the land in dispute was not ancestral in the hands of Beli Ram. While returning the finding under Issue No. 3 in favour of the defendant No. 1, the learned trial court held that the sale by Beli Ram in favour of the defendant No. 1 was for consideration and legal necessity. Consequently, the suit of the plaintiffs was dismissed by the learned trial court vide judgment and decree dated 31.8.1987. 7. On appeal having been preferred by the plaintiffs, the learned District Judge did not agree with the findings of the learned trial court on issues No. 2 and 3. Such findings of the learned trial court were set aside. The learned District Judge held that the land in dispute was ancestral in the hands of Beli Ram and that the sale made by him was without legal necessity. Resultantly, a decree for declaration was granted in favour of the plaintiffs to the effect that the sale made by Beli Ram in favour of defendant No. 1 is not binding on the reversionary rights of the plaintiffs. 8. The present second appeal at the instance of the defendant No. 1 was admitted for hearing on 2.6.1995 on the following two substantial questions of law: "1. Whether the District Judge has misread and mis-appreciated the oral and documentary evidence on record to come to the conclusion that the property in dispute is ancestral? 2. 8. The present second appeal at the instance of the defendant No. 1 was admitted for hearing on 2.6.1995 on the following two substantial questions of law: "1. Whether the District Judge has misread and mis-appreciated the oral and documentary evidence on record to come to the conclusion that the property in dispute is ancestral? 2. Whether, after coming into force of the Hindu Succession Act, 1956, the provisions of Kangra Custom, which restricts the power of alienation by male Hindu stands abrogated?" 9. During the course of hearing the learned counsel for defendant No. 1 has readily conceded that question No. 2 as formulated above, does not arise in the present case since no question of custom pertaining to succession is involved. 10. While holding that the land in dispute was ancestral in the hands of Beli Ram, the learned District Judge in paras 9 and 10 of his judgment has observed in the following terms : "......in mutation No. 23 (Ext. P.I) though the suit land had been mutated in the name of Beli Ram on the basis of oral gift dated 7.8.33, but in the remarks column it has been further mentioned that said Beli Ram has been the only son of said Lahnu Ram. It is not disputed that thereafter said Beli Ram has been the owner of the suit land. Though according to the mutation No. 23 (Ext. P.I), said Beli Ram had received the suit land from his father Lehnu son of Mangal under an oral gift deed dated 7.8.33 but he being the only son of said Lehnu would have succeeded to the suit property as the only heir, even if there has been no oral gift in his favour. Therefore, the suit land shall be deemed to be succeeded by said Beli Ram from his father Lehnu. Thus, the suit land was ancestral in the hands of said Beli Ram qua his sons, the plaintiffs. 10. The findings of the lower court that since the suit land was not by Beli Ram from his father under the oral gift, it cannot be held as ancestral, are not correct under the law because otherwise also said Beli Ram being the only son of said Lehnu Ram would have succeeded to the suit land, as they only heir to his father Lehnu. Thus, the findings of the lower court on this point are liable to be set aside and it is held that the suit land has been ancestral in the hands of said Beli Ram deceased qua the plaintiffs.....” 11. It is well settled that all property which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, would be ancestral property in his hands, 12. Lehnu son of Mangal was the father of Beli "Rath. There is nothing on the record to show that the land in dispute was ancestral in the hands of Lehnu. Therefore, it has to be presumed that the land in dispute was the self acquired property of Lehnu. Ex. P.I, mutation, shows that Beli Ram had acquired the land in dispute from his father by way of a gift during the life time of his father. The land in dispute never devolved upon Beli Ram by way of succession. 13. In C.N. Arunachala Mudaliarv. C.A. Muruganatha Mudaliar and another, AIR 1953 SC 495, it was held that to find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked into and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. But when the father obtains the grand-fathers property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. In other words, a property gifted or bequeathed by a father to his son cannot become ancestral property in the hands of the donee or legatee simply because that the donee or legatee got it from his father or ancestor. 14. In view of the above settled law by the apex court the findings of the learned District Judge holding the land in dispute as ancestral are based neither on proper reading and appreciation of evidence nor on proper application of law. Such findings are, as such, liable to be set aside. 15. As a result, the appeal is allowed. 14. In view of the above settled law by the apex court the findings of the learned District Judge holding the land in dispute as ancestral are based neither on proper reading and appreciation of evidence nor on proper application of law. Such findings are, as such, liable to be set aside. 15. As a result, the appeal is allowed. The judgment and decree dated 6.9.1993 of the learned District Judge are set aside and that of the learned trial court 31.8.1987 are restored. The parties are left to bear their own costs. 16. The interim order dated 12.12.1997 passed in CMP No. 625 of 1997 shall stand vacated. Appeal allowed.