JUDGMENT 1. - The subject-matter of both these cases being same and factual and legal averments being identical, they are being disposed of with this common judgment, copy of which shall be retained in each file. 2. Het Ram-appellant in above First Appeal, allegedly by an agreement to sale dated 3.4.1984 (Annex. 1) agreed to sale 16 bighas 10 biswas land situated in chak No. 3MSD, the details of which is mentioned in para 3 of the writ petition. The land was agreed to be sold at the rate of Rs. 11000/- per bigha and out of sale price, Rs. 80,000/- were allegedly paid to Het Ram in cash at the time of execution of Annx.1. The possession of the land was also alleged to have been given to Ram Kumar . 3. It was mentioned in Annx.1 that remaining amount was to be paid on 2.8.1984 when sale-deed was to be registered. Vide Annxs.2 and 3, this date was extended up to one month from getting the permission of sale from the revenue authorities. 4. Rajendra and Satpal-sons of Het Ram, filed a suit under sections 88 & 188 of the Tenancy Act, for declaration and partition, against their father Het Ram, uncle Hanuman and grand-mother Mst. Dhapi and against remaining three brothers, with the averments that the land was ancestral and had been inherited by Het Ram and his brother Hanuman after death of Lalu Ram, who was recorded khatedar under mutation No. 20 entered on 2.5.1957 to above effect. It was averred that Het Ram was not entitled to sell 16.5 bighas land as it was more than his notional share. It was also averred that Mst. Dhapi, widow of late Lalu Ram, was not given her share after death of her husband and she also filed a suit under section 88 of the Tenancy Act against Het Ram and Hanuman, which was decreed on 25.10.1985 and name of Mst. Dhapi was also added along with Het Ram and Hanuman. 5. It was also mentioned in the plaint that 15 bighas land of chak 5 & 6 LC situated in village 3 MSD, in the joint name of Het Ram and Hanuman, has already been sold by them jointly. The remaining 33 bighas land, situated in chak 3 MSD was in the joint name of Het Ram, Hanuman and Mst. 5. It was also mentioned in the plaint that 15 bighas land of chak 5 & 6 LC situated in village 3 MSD, in the joint name of Het Ram and Hanuman, has already been sold by them jointly. The remaining 33 bighas land, situated in chak 3 MSD was in the joint name of Het Ram, Hanuman and Mst. Dhapi, in which only 11 bighas fall in the notional share of Het Ram. It was further submitted that 5 sons of Het Ram, Rajendra, Satpal (plaintiffs), Krishna, Hansraj and Banshi Lal (defendants No. 6 to 8). Het Ram's wife Mst. Phula Devi (defendant No. 9) also had equal share in the notional share of Het Ram. Therefore, in 11 bighas notional share of Het Ram, the latter had only 1/7th share, which comes to 1.3 bighas and therefore, agreement to sale beyond his notional share could not be executed. 6. Ram Kumar, defendant No. 4, who was added subsequently, contested the suit and after evidence of both the parties, the Sub-Divisional Officer, Raisinghnagar vide order dated 7.2.1991, dismissed the suit because plaintiffs could not prove that land in question was ancestral land. 7. Aggrieved against that order, the plaintiffs filed appeal No. 8/91 before the Revenue Appellate Authority, Sriganganagar, which was also dismissed vide order Annx. 11 dated 23.6.1993. A second appeal before the Board of Revenue was, however, accepted vide order Annx. 12 dated 16.10.1998. Hence this writ petition u/Art. 226 before this Court. 8. Meanwhile, Ram Kumar filed a suit No. 48/87 against Het Ram for specific performance of agreement to sale, in the Court of Additional District Judge, Raisinghnagar, which after evidence of the parties, was decreed on 8.5.2000. Hence above First Appeal before this Court. 9. The points for determination before this Court are : (1) Whether the property in question was ancestral property in the hands of Het Ram and what was his notional share in the property? (2) Whether the judgment of the Board of Revenue Annx. 12 dated 16.10.1998 was illegal and misconceived and can not stand in the eye of law? (3) Whether Het Ram was competent to execute agreement to sale for 16.5 bighas land and the decree of specific performance passed by the Additional District Judge, Raisinghnagar was legal and proper, based on proper appreciation of law & evidence? POINT NO. 1 & 3 10. (3) Whether Het Ram was competent to execute agreement to sale for 16.5 bighas land and the decree of specific performance passed by the Additional District Judge, Raisinghnagar was legal and proper, based on proper appreciation of law & evidence? POINT NO. 1 & 3 10. In the agreement to sale (Annx. 1) it is mentioned that Het Ram, along with his brother Hanuman, in joint khatedari was having 1/2 share, which comes to 16.5 bighas. It is further stated in Annx. 1 that Het Ram and Hanuman have divided their share with mutual settlement and were in possession of their respective share. Though the suit for declaration and partition filed by sons of Het Ram was dismissed because the revenue record was not produced on behalf of plaintiffs by which only it could have been shown that the property was ancestral one and similar was the outcome of appellate Court. However, the Board of Revenue, while disposing of the second appeal vide Annx. 12, came to conclusion, on the basis of certified copies of mutation, j amabandi and judgment of the Assistant Commissioner (Colonisation) dated 25.10.1985 that the land in question was in the khatedari of Lalu Rain and upon his death mutation No. 20 was entered on 2.7.1957, in the joint name of Het Ram and Hanuman. Above documents were placed on record under Order 41, Rule 27 CPC. A revision petition No. 168/97 was also filed before this Court against that order of Board of Revenue, which was dismissed vide order dated 22.2.2000. 11. The submissions of learned counsel for Ram Kumar that no opportunity to produce counter evidence was given by the Board of Revenue, is not tenable because no such plea was raised before the Board of Revenue nor any attempt was made to counter the certified copies of revenue record produced u/R. 27 O. 41 CPC. During the arguments, learned counsel could not indicate any documentary evidence to counter the certified copies of mutation, jamabandi and judgment of the Assistant Commissioner (Colonisation) dated 25.10.1985. Even in the written statement filed by Ram Kumar in the revenue suit, it has not specifically been pleaded that property was self-acquired property in the hands of Het Ram. When in the agreement to sale Annx. Even in the written statement filed by Ram Kumar in the revenue suit, it has not specifically been pleaded that property was self-acquired property in the hands of Het Ram. When in the agreement to sale Annx. 1 it has been specifically mentioned that Hanuman and Het Ram both have 1/2 share in 33 bighas land, that by itself indicates that the property in the hands of Het Ram was ancestral property. 12. In the specific performance suit filed in the Court of Additional District Judge, Raisinghnagar also, nowhere Ram Kumar has pleaded & proved that the land in question is self-acquired land of Het Ram. In such a situation, the conclusion arrived at by the Board of Revenue that the property was ancestral, is based upon documentary evidence placed on the file. Unless and until any documentary evidence to the contrary was produced, either in the litigation filed before the civil Court or the revenue Court, it can not be presumed that the property in question was self-acquired property of Het Ram. Therefore, it has rightly been held by the Board of Revenue that the land in question belonged to Lalu Ram and upon his death, mutation No. 20 was entered in the joint name of Hanuman and Het Ram. 13. So far as partition between Het Ram and Hanuman is concerned, learned counsel for petitioner submitted that Hanuman and Het Ram, two brothers arrived at mutual settlement by which 16.5 bighas has fallen in the share of Het Ram, who was in possession of the same prior to execution of Annx. 1. Above plea of the learned counsel for petitioner could not be sustained unless and until such settlement was proved before Court of law. No written settlement has been ever produced till date. According to Section 53 of the Tenancy Act, a division of holdings shall be effected by agreement between co-tenants in respect of such division of such holding, by the decree or order of the competent Court, passed in a suit, by one or more of the co-tenants, for the purpose of dividing the holding. In every suit so filed, all the cotenants and land holders shall be made party. In the case of agriculture land, the Tehsildar concerned was the land holder who also have to be made a party. 14. In every suit so filed, all the cotenants and land holders shall be made party. In the case of agriculture land, the Tehsildar concerned was the land holder who also have to be made a party. 14. In the matter at hand, no partition has been effected as per provision referred above. Simply because in Annx. 1 it was also mentioned that by way of settlement both the brothers are in possession of their respective share, is not permissible under law. In the Courts below also, no such evidence has been produced that Het Ram and Hanuman are separately in possession of their independent share. In such a situation, it has not legally been proved that there was partition between Het Ram and Hanuman. 15. During course of arguments, a photocopy of the order dated 27.1.1963 of the Assistant Collector, Suratgarh was submitted, showing that a partition decree between Dhana Ram, Het Ram and Hajari has been passed in which 16.10 bighas land has fallen in the share of each person. Though no certified copy of the above order has been submitted either before this Court or before any ofthi' Courts below. However, in order to impart justice. I have gone through this order too. By agreement Annx. 1, 8 bighas 6 biswas of murabba No. 146/329, 4 biswas of murabba No. 151/329, 4 bighas of murabba No. 146/330 and 4 bighas of murabba No. 150/330, of chak No. 3 MSD; were agreed to be sold, however, vide decree dated 27.1.1963, no land referred in Annx. 1 has fallen in the share of Het Ram. Had vide order dated 27.1.1963 any land has fallen in the share of Het Ram, same may have been mentioned before the Courts below. 16. So far as notional share of Het Ram is concerned, it is submitted that even assuming the property being ancestral one, Lalu Ram died in the year 1957 and therefore, provisions of Hindu Succession Act were applicable. As per provisions of Section 8 of the above Act, Het Ram got the property as successor of his father, which was not ancestral in his hands, therefore, sons could not claim any share in it. 17. According to learned counsel for the petitioner, Section 8 of the Act of 1956 recognises persons mentioned in Schedule-I as heirs and not any other person. 17. According to learned counsel for the petitioner, Section 8 of the Act of 1956 recognises persons mentioned in Schedule-I as heirs and not any other person. According to Schedule-I, son, daughter and widow are Class-I heirs of person dying intestate and get equal shares. Learned counsel relied on Wealth-tax Commissioner, Kanpur v. Chandra Sen, AIR 1986 SC 1753 as also Yudhister v. Ashok Kumar, AIR 1987 SC 558 . 18. I have carefully considered these pronouncements, in which points involved were not identical to the matter in hand. 19. In Chandra Sen's case (supra), there was a partition of joint family business between father and his only son. After the partition,' they continued the business in the name of partnership firm. The son formed a joint family with his own sons. The father died and the amount standing in the account of the firm against deceased father devolved on his son. The authorities while assessing wealth-tax in respect of family of the son, included the devolved amount in computing the wealth. In the above facts, the Apex Court held that the son inherited the property as an individual and not as `karta' of his own family and therefore, upon death of father, the share of deceased in the partnership firm could not be included in computing wealth of family of the assessee son. 20. Similarly, in Ashok Kumar's case (supra), bona fide requirement of the landlord, purchasing the disputed premises in which tenant was living as licensee of his father, which was insufficient to meet his reasonable and bona fide requirements, was in question. The landlord sold that house half year before the eviction suit. No evidence was led to show that the sale was effected with intention to defeat tenant's claim. 21. It seems that learned counsel, tinder some misconception, referred these pronouncements because the issue in question is not even remotely related to the matter dealt with by Hon'ble Supreme Court in these matters. 22. On the contrary, in similar facts and situation, the Apex Court in Gurupad v. Hira Bat, AIR 1978 SC 1239 , was dealing with identical question and has extensively dealt with Sections 6 & 7 8 of the Act of 1956 vis-a-vis position in old Hindu Law and rights of coparcener under Mitakshra Law of Coparcenary Property was decided. 22. On the contrary, in similar facts and situation, the Apex Court in Gurupad v. Hira Bat, AIR 1978 SC 1239 , was dealing with identical question and has extensively dealt with Sections 6 & 7 8 of the Act of 1956 vis-a-vis position in old Hindu Law and rights of coparcener under Mitakshra Law of Coparcenary Property was decided. In paras 6 to 14, Hon'ble Apex Court came to conclusion that after coming into force of the Hindu Succession Act, 1956, to ascertain interests in the coparcenary property under Mitakshra Law, preconditions under section 6 are to be satisfied. 23. The position was made clear that when a male Hindu dies, after commencement of ,his Act, having interest in Mitakshra coparcenary property, `his interest' in the property will devolve by survivorship upon the surviving members of the coparcenary and not according to the Act of 1956. However, as per proviso of above section, if the deceased had left behind him surviving a female relative, specified in Class-I (i.e. daughter or widow) or a male relative specified in that clause, who claims through such female relative; the interest of the deceased in Mitakshra coparcenary property shall devolve by testamentory or intestate succession, as the case may be and not by survivorship. According to explanation-I of Section 6, interest of Hindu Mitakshra Coparcener has been deemed to be 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. Meaning thereby in a coparcenary property, if there is a surviving female member of Class-I, the property of the coparcener will not devolve upon surviving member by survivorship but it will devolve by succession. 24. Even according to development by succession, the interest of the family member, who had passed away, will devolve by succession as per Class-I heirs of Schedule-I of the Hindu Succession Act. 25. In the matter at hand, when it has been found proved that Lalu Ram was recorded khatedar of the land, upon his death his two sons and one widow were entitled to `his interest' (notional share) in equal shares. In the year 1957 when Lalu Ram died, his interest in the coparcenary property was ⅓ along with his two sons Het Ram and Hanuman. In the year 1957 when Lalu Ram died, his interest in the coparcenary property was ⅓ along with his two sons Het Ram and Hanuman. The above ⅓ share has to be devolved on Class I heirs mentioned in Schedule-I i.e. upon his two sons and Mst. Dhapi Devi widow of Lalu Ram, in equal shares. In 33 bighas land left by Lalu Ram, interest of Lalu Ram was only 11 bighas and remaining 11 bighas each land fell in the share of his two sons Het Ram and Hanuman upon their birth as member of coparcenary and 11 bighas notional share of Lalu Ram upon his death again devolved equally on his two sons and widow, which comes to 3.66 bighas. Therefore, upon death of Lalu Ram, Hanuman got 11+3.66 bighas, Het Ram 11+3.66 bighas whereas widow Mst. Dhapi got 3.66 bighas only. 26. The interest of Het Ram was, therefore, 14.66 bighas, which became coparcenary property in his hands as soon a son was born to him, who also became entitled to equal share in the coparcenary property. Therefore, his five sons got equal share along with him as soon they were born. The disposable share of Het Ram in the coparcenary property was ⅙th of 14.66 bighas along with his sons, which comes to 2.44 bighas only. 27. The Apex Court in Sher Singh v. Gamdur Singh, JT 1997 (1) SC 396 while dealing with similar legal question, held as under : "It is settled law that even self-acquired property can also be blended in the joint family hotchpotch, enveloping the character of coparcenary property. In case of ancestral property, it is coparcenary property. Every member on birth is entitled to a share in the coparcenary property." 28. In this case also, Hon'ble Apex Court was dealing with plaintiff's share in the agriculture land which was ancestral. 29. In S.M. Gowda v. Comptroller, State Duty, JT 1997(6) SC 51 , the Apex Court was dealing with similar matter and held that ancestral properties are HUF property, received on partition of HUF by deceased having no other coparcener. The Apex Court was of the view that descendant has received the property on partition as sole coparcener and received it as individual and not by survivorship. The Apex Court was of the view that descendant has received the property on partition as sole coparcener and received it as individual and not by survivorship. The property obtained at partition between father and brothers and taken as individuals, the family members i.e. widow and unmarried daughter will be entitled as per Section 8(1)(a). While dealing with Section 8, it was held that joint family property will be passing to a single coparcener by survivorship but shall be subject to shares of female members enumerated in Section 8(1)(a) of the Hindu (Woman's Rights) Act, 1933. According to Hon'ble Apex Court, coparcenary is a narrower body than a joint family and consists only of male persons who have got interest by birth in the property. 30. In Hira Bai's case (supra), the Apex Court was dealing with widow's share in the coparcenary property and by referring to explanation I of Section 6 of the Act of 1956, Hon'ble Apex Court restored to simple, expedient and fictional approach that interest of Hindu Mitakshra shall be deemed to be the share in the property that would have been allotted on partition of that property that had taken place immediately before his death. 31. That assumption once made, is irrevocable. The assumption which the statute requires to be made is that a partition had, in fact, taken place and must permeate entire process of ascertainment of ultimate share of the heirs through all stages. To make the assumption at the initial stage for the limited purpose of ascertaining share of the deceased and then to ignore it for calculating the quantum of share of the heirs, is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that share of the heirs must be ascertained on the basis that they have separated from one another and have received a share in the partition, which has taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as concrete reality, something that can not be recalled, which is a share allotted to a coparcener in an actual partition. 32. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as concrete reality, something that can not be recalled, which is a share allotted to a coparcener in an actual partition. 32. In the matter at hand, when Lalu Ram recorded khatedar, died somewhere in the year 1957, he left behind his two sons Het Ram and Hanuinan as also widow Mst. Dhapi Bai. Therefore, at the time of his death, the notional share of Lalu Ram was ⅓ and remaining ⅓ each was share of Het Ram and Hanuman, being born male child of the coparcener. Thus, at the time of death of Lalu Ram, interest of Lalu Ram in the coparcenary property was ⅓. That was further divided as per clause (I) among Class I heirs of the Act of 1956, who are son, daughter and widow. Lalu Ram had left behind two sons and one widow, who were Het Ram, Hanuman and Mst. Dhapi. All the three got equal share i.e. ⅓ each from the notional share of Lalu Ram, as stated above. 33. Similarly, the property which has fallen in the share of Het Ram, being ancestral property, was a coparcenary property in his hands and his 5 sons got right in that coparcenary property by birth. According to above analogy and law expressly laid down, the share of Het Ram in the above property was ⅙, the remaining ⅚ being share of his 5 sons. Above ⅙ share could only be transferred by Het Ram by way of sale, will etc. 34. It is an admitted fact that 15 bighas land of Indira Gandhi Canal area has been jointly sold by Het Ram and Hanuman prior to execution of the agreement Annx. 1. Out of remaining 33 bighas land, inherited from Lalu Ram, share of Het Ram was 11 bighas by birth and ⅓ of 11 i.e. 3.6 bighas upon death of Lalu Ram, total of which comes to 14.6 bighas. Similarly was the share of Hanuman whereas share of Mst. Dhapi was only 3.6 bighas. 35. 1. Out of remaining 33 bighas land, inherited from Lalu Ram, share of Het Ram was 11 bighas by birth and ⅓ of 11 i.e. 3.6 bighas upon death of Lalu Ram, total of which comes to 14.6 bighas. Similarly was the share of Hanuman whereas share of Mst. Dhapi was only 3.6 bighas. 35. Even if upon death of Lalu Ram, mutation of the land left by him was entered in the joint name of Het Ram and Hanuman, that by itself will not deny right of their mother Dhapi because mutations are fiscal proceedings, aimed at collecting revenue and do not create any right in favour of any person. Though subsequently, upon the revenue suit filed by Dhapi, her name as also entered along with names of Het Ram and Hanuman and mutation was entered in the joint name of all the three persons, hov, ever, by above analogy, Dhapi Bai has got only ⅓ share from the interest left by her husband (⅓ of 11 bighas). 36. Lastly, it was contended by learned counsel for Ram Kumar that even in Annx. 1 it has been specifically mentioned that Het Ram was selling the land for the purpose of purchasing a new land and after getting Rs. 80,000/- as advance money, Het Ram did purchase share of his own brother Hanuman by agreement of sale. Therefore, agreement Annx. 1 was for the benefit of his sons. This plea of the learned counsel is also not tenable because till date no such land has been purchased by Het Ram. Had any land been purchased, perhaps sons of Het Ram may have rest contended with it and may not have filed the suit for declaration and division of the holding in the revenue Court. 37. The Board of Revenue as also the Courts below though have proceeded according to Sections 6 & 8 of the Hindu Succession Act, 1956, however, the share of Het Ram in the coparcenary property has been wrongly arrived at. Same stands corrected to the above extent.Point No. 3 38. In the suit filed under section 6 of the Act, prayer for specific performance of the agreement of sale Annx. 1 has been made. Though signature on Ex. 1 has not been denied by Het Ram, however, his plea was that on some other pretext, the signatures were obtained fraudulently. Same stands corrected to the above extent.Point No. 3 38. In the suit filed under section 6 of the Act, prayer for specific performance of the agreement of sale Annx. 1 has been made. Though signature on Ex. 1 has not been denied by Het Ram, however, his plea was that on some other pretext, the signatures were obtained fraudulently. After framing of the necessary issues and evidence of the parties, the Additional District Judge came to conclusion that Annx. 1 has been executed by Het Ram and specific performance of this agreement has been directed by the Court below. 39. I have also gone through the evidence led by both the parties and have come to conclusion that when not only plaintiff-Ram Kumar but also number of his witnesses have proved this document. The petition-writer who prepared this document and attesting witness,-s in whose presence the documents were executed and signed by Het Ram, have also been examined in the Court below on behalf of plaintiff. All of them have stated in unison that Het Ram got those documents executed in their presence and had signed it, as also received Rs. 80,000/- as part of sale price. To counter above evidence, Het Ram has examined himself only, stating that his signatures were obtained fraudulently on the pretext of executing some other document, which has not been found favour with the trial Court. During the course of arguments also, learned counsel for the appellant could not indicate any error of fact and law in the conclusion arrived at by the trial Court. 40. I also, upon re appreciation of the evidence referred above, have come to conclusion that Ex. 1 agreement has been executed by Het Ram, after accepting part of sale price Rs. 80,000/-. However, by agreement Ex. 1, Het Ram could pass title only to the extent of his share. Similarly, he could not execute agreement of sale for specific land unless and until division of the holding according to Section 53 of the Tenancy Act has been effected by meats & bounds. 41. Our own High Court in a similar situation, in Chattar Singh v. Arjun Singh, 1994 (1) RLW 363 also held likewise. Similarly, he could not execute agreement of sale for specific land unless and until division of the holding according to Section 53 of the Tenancy Act has been effected by meats & bounds. 41. Our own High Court in a similar situation, in Chattar Singh v. Arjun Singh, 1994 (1) RLW 363 also held likewise. There was a transfer by a person not authorised to dispose of the transferable property not his own, however, the defendant vendor was directed to execute the sale deed in favour of the plaintiff to the extent of his share in the land, which was 3 bighas and 2.5 biswas. 42. As held above, Het Ram inherited total 14.6 as ancestral land. It being coparcenary property in the hands of Het Ram, his notional share in it along with his 5 sons, is ⅙th which was alienable. Resulting thereby, out of 14 bighas 6 biswas, he could pass title only to the extent of 2.4 bighas; which is his notional share in the ancestral property held by him as one of the coparcener. 43. Consequently, the writ petition as also the First Appeal are partly accepted with direction that Het Ram will execute the agreement of sale Annal to the extent of his share 2.4 bighas, which is his transferrable interest. As Rs. 80,000/- have already been paid and found proved by the Courts below and the land was agreed to be purchased at the rate of Rs. 11,000/- per bigha. The excess amount shall be refunded to Ram Kumar. Het Ram is directed to execute sale deed to the extent of his above share. No specific part of the land could be sold by Het Ram. Therefore, after the sale deed is executed and registered, Ram Kumar will have to file a suit for division of the holding under section 53 of the Tenancy Act to get the above land partitioned by meats & bounds. A decree to above effect be framed. Costs are made easy.Appeal partly allowed. *******