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2000 DIGILAW 131 (HP)

BISHAN SINGH v. VED PARKASH

2000-06-02

K.C.SOOD

body2000
JUDGMENT Kuldip Chand Sood, J.—This second appeal arises out of the judgment and decree of the learned Additional District Judge, Sirmaur District at Nahan dated 17th September, 1993. 2. In order to appreciate the controversy, the admitted facts may be noticed thus: Ved Parkash, Randeep Singh plaintiffs, Pradeep Singh and Rajinder (minors) defendants No. 2 and 3 are sons of Bishan Singh defendant No. 1. Plaintiffs Ved Prakash and Randeep Singh were born from Vidya Devi first wife of defendant No. 1 Bishan Singh. Pradeep Singh, defendant No. 2 was born from Smt. Shakuntla and Rajinder, defendant No. 3 from Smt. Rupo. The land comprised in Khata Khatauni No. 15/29 and 16/30 measuring 2-12 bighas and 152-13 bighas situate in Mauza Banona Hedbast No. 165, Pargana Giriwar, Tehsil Pachhad of District Sirmaur (hereinafter referred to as the suit land) was recorded in the ownership of Bishan Singh, defendant No. 1 and Kanso Devi his mother. Bishan Singh gifted half of his share in the suit land to his minor sons Pradeep Singh and Rajinder by a registered Gift deed dated 22nd October, 1983 (Ex. PW-l/C). Plaintiffs Ved Prakash and Randeep Singh filed a Civil Suit before the learned Senior Sub Judge, Sirmaur District Nahan, on the grounds that defendant Bishan Singh and the plaintiffs are the members of joint undivided Hindu Family and the suit land is ancestral of defendant No. 1 and plaintiffs, as the defendant No. 1 inherited the same from common ancestors i.e. grand-father of plaintiffs and father of defendant No. 1. The Gift, it is pleaded, has been made to deprive the plaintiffs of their legitimate rights in the suit land. The Gift deed, according to the plaintiffs, is illegal, void and not binding on the rights of the plaintiffs over the suit land. Plaintiffs pray for a declaration that the Gift made by defendant No. 1 in favour of defendants No. 2 and 3 by a registered Gift deed dated 22nd October, 1983 (Ex. PW-l/C) is illegal, void and not binding on the rights of the plaintiffs with a consequential relief of joint possession of the suit land with defendant No. 1. In the alternative, it is prayed that the defendants No. 1 to 3 may be restrained from creating any charge or alienation on the suit property. 3. The defendants resist the suit. The allegations are controverted. In the alternative, it is prayed that the defendants No. 1 to 3 may be restrained from creating any charge or alienation on the suit property. 3. The defendants resist the suit. The allegations are controverted. It is denied that the suit land is ancestral property of defendant No. 1 and plaintiffs. The case of the defendants is that defendant No. 1 Bishan Singh acquired 1/2 share of Smt. Kanka in this land and Smt. Kanso is also one of the co-sharer in the land in dispute and, therefore, the land under Gift cannot be said to be ancestral. It is the case of the defendants that the plaintiffs have no locus standi to challenge the Gift and the suit is not maintainable by them. 4. On the pleadings of the parties, the following issues were settled by the learned trial court : 1. Whether Gift deed No. 34 dated 22.10.1983 executed by Bishan Singh defendant in favour of defendant Nos. 2 and 3 are wrong void and illegal as alleged? OPP 2. Whether defendant Bishan Singh was not competent to execute Gift deed qua the suit land being ancestral property as alleged? OPP 3. Whether the suit is not maintainable in the present form, as alleged? OPD 4. Whether the plaintiffs are estopped by their act or conduct from filing the suit, as alleged? OPD 5. Whether the suit is bad for misjoinder of parties, as alleged? OPD 6. Whether the suit is not properly valued for the purposes of court fees and jurisdiction as alleged? OPD 7. Whether the suit is barred by limitation, as alleged? OPD 7-A.Whether defendants No. 2 and 3 are illegitimate sons of defendant No. 1 Bishan Singh as alleged? OPP 8. Relief. The learned trial court found that the portion of the suit land was acquired by defendant No. 1 Smt. Kanka Devi and, therefore, the entire property cannot be said to be ancestral in the hands of Bishan Singh, defendant No. 1, qua the plaintiffs. Learned trial court also found that the marriages of Bishan Singh with Smt. Shakuntla as well as Smt. Rupo are void but their children defendants No. 2 and 3 would be deemed to be legitimate for the purpose of succession. Therefore, the alienation made by Bishan Singh cannot be challenged by another coparcenar. 5. Learned trial court also found that the marriages of Bishan Singh with Smt. Shakuntla as well as Smt. Rupo are void but their children defendants No. 2 and 3 would be deemed to be legitimate for the purpose of succession. Therefore, the alienation made by Bishan Singh cannot be challenged by another coparcenar. 5. Feeling dis-satisfied, the plaintiffs filed an appeal before the learned Additional District Judge, Sirmaur District at Nahan, who vide his impugned judgment and decree held that the suit property was undivided Hindu family property and the females could not become coparceners on the devolution of succession and, therefore, Kanka Devi being the female could not have inherited the share of her father in the suit land. Learned Additional District Judge, also concluded that the part of the suit property which Bishan Singh got from Smt. Kanka will be considered to be a joint Hindu family property by doctrine of blending. The first Appellate Court held that as the Gift was not accepted by the next friend of the minor donees, therefore, the gift is invalid in view of the provisions of Sections 122 and 123 of the Transfer of Property Act. Having found the Gift, in favour of defendants No. 1 and 2, to be invalid, the learned first Appellate Court curiously passed a decree for declaration in favour of the plaintiffs to the effect that the plaintiffs are the "co-owners to the extent of 2/5 share" on half of the suit land and defendant No. 1 Bishan Singh "is entitled to 1/10 share" and defendants No. 2 and 3 "to 7/10 share" of the suit land and passed a degree for joint possession and injunction till the suit land is partitioned. It is to be noticed that this relief was neither asked for in the plaint nor was the subject matter of discussion before the learned trial court. 6. The second appeal was admitted by this Court on the following substantial questions of law : 1. "Whether respondents have right to challenge Gift deed dated 20.10.83 made by appellant-1 during life time of appellant- 1 even though appellant-1 has not challenged the Gift"? 2. "Whether property coming in the hands of appellant-1 from female (sister) will become coparcenary property on the basis of Doctrine of Blending is applicable in the instant case"? 7. "Whether respondents have right to challenge Gift deed dated 20.10.83 made by appellant-1 during life time of appellant- 1 even though appellant-1 has not challenged the Gift"? 2. "Whether property coming in the hands of appellant-1 from female (sister) will become coparcenary property on the basis of Doctrine of Blending is applicable in the instant case"? 7. I have heard Kanwar Kuldip Singh, Senior Advocate, for the appellants and Mr. Bhupender Gupta, Senior Advocate for the respondents and gone through the record. 8. The learned trial court in para 21 of its judgment held as follows: "21. As per my above discussion, it cannot be said that the suit land is ancestral property in the hands of defendant No. 1 qua the plaintiffs. I may also point out that even defendants No. 2 and 3 cannot be considered as illegitimate sons of defendant No. 1 for the purpose of succession and, therefore, any alienation made by Bishan Singh cannot be challenged by any other coparcener.” The learned first Appellate Court reversing the findings of the trial court and holding the suit land to be coparcenary property and defendants No. 2 and 3 to be entitled to 7/10 share thereby conceding the valdity of the gift. QUESTION No. 2 : 9. There is no dispute that the property in dispute was once owned by grand-father of defendant No. 1, namely, Gulab Singh. Gulab Singh had two sons, Udey Ram and Sunder Singh. Both Udey Ram and Sunder Singh inherited the property of Gulab Singh in equal share which included the suit land. After the death of Sunder Singh, his share was inherited by his daughter Kanka. Kanka gifted her share to Bishan Singh, defendant No. 1. Thus, the half share in the suit property in any case came to defendant No. 1, Bishan Singh, from Kanka and l/4th share in the suit land came to Bishan Singh from his father Udey Ram, the remaining l/4th share admittedly belong to Smt. Kanso, mother of defendant No. 1. Now the half share in the suit land which came to defendant No. 1 from Smt. Kanka under a gift cannot be said to be ancestral in the hands of defendant No. 1, Bishan Singh. 10. Now the half share in the suit land which came to defendant No. 1 from Smt. Kanka under a gift cannot be said to be ancestral in the hands of defendant No. 1, Bishan Singh. 10. Mulla in his Hindu Law under para 230 observed that the property inherited as obstructed heritage, that is, property inherited by a Hindu from a person other than his father, fathers father, or fathers fathers father is called "self acquired" property with the incidence that even that person be joint, such a property would be exclusive to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. Interpreting proviso and Explanation 1 to 6 of the Hindu Succession Act, 1956 their Lordships of the Apex Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others, (1978) 3 SCC 383, held that when a male dies after the commencement of the Hindu Succession Act, 1956 having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the caparcenary and not in accordance with this Act; provided that, if the deceased had left him surviving a female relative specified in class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship (emphasis supplied). Explanation I to the section provides : "For the purposes of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. 11. In the present case, Sunder Singh at the time of his death left behind his daughter (Class I heir) and, therefore, his daughter became full owner to the extent of his half share under intestate succession and, therefore, she could validly gift her share to defendant No. 1. This property indeed cannot be said to be coparcenary in the hands of Bishan Singh, defendant No. 1. 12. This property indeed cannot be said to be coparcenary in the hands of Bishan Singh, defendant No. 1. 12. So far doctrine of Blending is concerned, the same will not be applicable in the facts and circumstances of this case. Law regarding blending of separate property with joint family property is well settled. The property which is self acquired of a member of a joint Hindu family may assume the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Reference may be made to Lakkireddi Chinna Venkata Reddi and others v. Lakkireddi Lakshmama AIR 1963 SC 1601. In the present case, there is no evidence to show that defendant No. 1 abandoned his separate claim on the half share of the suit land. Question No. 2 is answered accordingly. QUESTION No. 1 : 13. Learned first Appellate Court has held that the Gift is not valid as the same was not accepted by defendants No. 2 and 3. In the present case, done defendants No. 2 and 3 were minors at the time of gift of the half share in the suit land by their father defendant No. 1. Therefore, question of delivery of possession and acceptance thereof does not arise. In Smt. Sunder Bai died by L.R. Kishorilal v. Anandi Lal died and after him Smt. Mohaniwali and others, AIR 1983 All 23, it was observed a perusal of the gift deed shows "that Kashi Prasad was a minor aged about eight and a half years, and, according to Rajju, the donor, he had brought up Kashi Prasad, and Kashi Prasad was living under his care. There was no such question of acceptance as the minor was under the care of the donor himself." 14. In Ponnuchami Servai v. Balasubramanian and others, AIR 1982 Mad 281, it was held that where the father alone is the guardian of the person as well as the property of a minor and where the father himself has executed gift deed in favour of the minor son and the parties are continuing to live together even after the gift, acceptance of the gift can be presumed as the acceptance can only be by the father as guardian of minor. 15. 15. The impugned gift in the circumstances cannot be invalidated on the grounds that it has not been accepted by the guardian of the minors and the possession having not been delivered to them. 16. The plaintiffs, otherwise have also no right to challenge the gift on the ground of non-delivery of possession of the suit land by defendant No. 1 to his minor sons defendants No. 2 and 3. This Court in Smt Bhanumati Chouhan v. Chetan Singh and others, 1996(2) Shim. L.C. 90, relying upon Kali Dass Mullick v. Kanhya Lal Pundit, XI Indian Appeal 218, held that it is not open to a third party to challenge the validity of the gift on the ground that it was not followed by possession. Such a question can only be raised by the donor or a person claiming under the donor. The conclusion is inevitable that the plaintiffs in this case have no right to challenge the Gift dated 20th October, 1983 made by the appellant/defendant No. 1 in favour of his minor sons defendants No. 2 and 3. The question is answered accordingly. 17. No other point is urged. 18. In result, the appeal is allowed. The impugned judgment and decree of the learned first Appellate Court in Civil Appeal No. 7-N 13 of 90 dated 17th September, 1993 is set aside and the judgment and decree of the learned trial court dated 13th December, 1989 subject to the observations hereinbefore is restored. The parties are, however, left to bear their own costs. Appeal is allowed.