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2002 DIGILAW 1373 (PNJ)

Karam Singh v. Nazir Singh

2002-12-11

VINEY MITTAL

body2002
Judgment 1. Karam Singh appellant-defendant No.2 having remained concurrently unsuccessful in the two Courts below has approached this Court through the present Regular second appeal challenging the judgment dated 29/11/1986 passed by the Sub-Judge II Class, Malerkotala whereby the suit filed by the plaintiffs Nazir Singh and Gurbax Singh was decreed and also the judgment and the decree dated 24/03/1990 passed by the learned Additional Sessions Judge, Sangrur whereby the appeal filed by him was dismissed. 2. The plaintiffs Nazir Singh and Gurbax Singh filed a suit for declaration and for possession with the pleas that the parties to the suit are Hindus and governed by Hindu law in the matter of inheritance and succession. It was stated that the plaintiffs and defendants Nos.1 and 2 were members of Joint Hindu Family and were coparceners with Pali as its Karta. The said Pali had died on 1/07/1984. After his death, the land had devolved upon the parties to the suit being ancestral and the parties to the suit had share in the suit property right from birth. During his lifetime, the above said Pali has transferred some property of the suit land in the name of defendant No. 2 vide a collusive decree which was stated to be having no force of law and no effect qua the rights of the plaintiffs. It was also stated that the plaintiffs were not parties to the suit and, therefore, the same was not binding on their rights. 3. Vide the aforesaid decree (which was challenged in the present suit) the portion of the suit property was alienated in the name of defendant No. 2 i.e. Karam Singh (present appellant) by Pali, who was merely a Karta of Joint Hindu Family, without any legal necessity and, therefore, the decree was having no force of law and could not effect the rights of the plaintiffs. He further claimed that in the suit said Pali along with plaintiff No. 1 and defendant No.1 was owner in possession of the suit property to the extent of 1/3rd share each. Plaintiff No. 2 Gurubux Singh used to serve the said Pali and, therefore, on 5/03/1973. Pali had executed a valid Will in favour of plaintiff No. 2 and the said Will was got registered at the office of Sub Registrar, Malerkotla. Plaintiff No. 2 Gurubux Singh used to serve the said Pali and, therefore, on 5/03/1973. Pali had executed a valid Will in favour of plaintiff No. 2 and the said Will was got registered at the office of Sub Registrar, Malerkotla. Vide aforesaid Will, Pali had bequeathed his 1/3rd share in favour of plaintiff No. 2 and, therefore, after the death of Pali, plaintiff No. 2 became owner in possession of 1/9th share of the suit property and the remaining 2/9th share belonging to Pali had devolved upon defendants Nos. 1 and 3 to 7. 4. On the basis of aforesaid pleadings, the decree dated 7/02/1984 suffered by Pali in favour of Karam Singh was challenged. 5. Defendants Nos. 1 and 2 contested the suit and filed a joint written statement. Various pleas raised by the plaintiffs were controverted. It was denied that the plaintiffs and defendants Nos.1 and 2 ever constituted any Joint Hindu Family. The factum of the parties being coparceners were also denied. The decree in question was defended. It was further averred in the written statement that Pali was absolute owner of the suit property because it was personal property and he was competent to alienate it in the manner he liked. The execution of the Will in favour of the plaintiff Gurbux Singh was also denied. 6. A separate written statement was filed by defendants Nos. 3 to 7 who are children of the Dalip Kaur daughter of Pali. Besides, contesting the claim made by the plaintiffs, the counter claim was also made by them. They pleaded that the property was ancestral and coparcenery property in the hands of Pali. They further pleaded that their mother being daughter of Pali was also member of the Joint Hindu Family although she was not a coparcener. They also asserted that Pali had no right to transfer half share of the suit property in favour of defendant No. 2 during his lifetime. They pleaded that he could only alienate the suit property for legal necessity and benefit for the estate and not our rights. They also challenged the Will dated 5/03/1973 and claimed it was forged and fictitious document. Besides, contesting the claim of the plaintiffs and the pleas raised by defendants Nos. 1 and 2 they also claimed their share in the property to the extent of 1/9th. 7. They also challenged the Will dated 5/03/1973 and claimed it was forged and fictitious document. Besides, contesting the claim of the plaintiffs and the pleas raised by defendants Nos. 1 and 2 they also claimed their share in the property to the extent of 1/9th. 7. The learned trial Court held that the decree was void and ineffective qua the rights of the plaintiffs. It further held that the Will set up by the plaintiffs was duly proved and, therefore, decreed the suit on the basis of Will qua the share of Pali and the remaining being the share of Nazir Singh and Kehar Singh sons of Pali. 8. Two separate appeals were filed before the learned first appellate Court. The learned first appellate court, however, affirmed the findings recorded by the learned trial Court and dismissed both the appeals i.e. one filed by Tarsem Singh etc. and other filed by Kehar Singh etc. Defendant No. 2 Karam Singh still feeling aggrieved has approached this Court by way of the present Regular Second Appeal. 9. I have heard Shri J. S. Verka, the learned counsel for the appellant and Shri Arun Nehra, the learned counsel for the plaintiff respondents. 10. Shri J. S. Verka, the learned counsel for the appellant has submitted that the evidence on the record was not sufficient to prove that the property in question was ancestral property in the hands of Pali or that Pali along with his sons, namely, Nazir Singh and Kehar Singh constituted a coparcenery. Shri Verka has further maintained that Pali being the absolute owner of the property was free to execute any deed or suffer the decree in question without any challenge from anybody. 11. On the other hand, Shri Arun Nehra, the learned counsel for the plaintiff respondents has submitted that perusal of para No. 6 of the judgment of the learned Additional District Judge would show that the parties had made a specific statement at the bar before the learned first appellate Court to the effect that Pali had inherited the property from his father and that the same was coparcenery in nature. On the basis of the aforesaid statements, the learned lower appellate Court had confirmed the finding recorded by the learned trial Court that the land in dispute was coparcenery in the hands of Pali deceased, he having inherited the same from Deva Singh. On the basis of the aforesaid statements, the learned lower appellate Court had confirmed the finding recorded by the learned trial Court that the land in dispute was coparcenery in the hands of Pali deceased, he having inherited the same from Deva Singh. According to Shri Nehra, after having specifically made the aforesaid statement and after having given up the challenge to the finding so recorded by the learned trial Court it was not open to the appellant now at this stage to again reopen the said controversy. 12. I find force in the submission raised by Shri Arun Nehra. Specific finding was given by the learned trial Court to the effect that the land in dispute was ancestral in nature and Pali with his two sons constituted coparcenery. The said finding was never challenged by the parties to the suit before the learned first appellate Court rather specific statement was made by the parties agreeing with the said finding given by the trial Court. In this view of the matter, it is not open to the appellant now to reopen the aforesaid finding all over again. 13. Faced with this situation, learned counsel for the appellant submits that even as per the said finding Pali was owner to the extent of 1/3rd share. On that basis, Shri Verka submits that in any case the decree suffered by Pali could be made operative qua the share of Pali alone. Even this contention raised by Shri Verka has been contested by Shri Nehra relying upon the judgment of Full Bench of this Court in Manohar Lal V/s. Dewan Chand, AIR 1985 Punj and Har 313 where it has been held that when the property was proved to be ancestral and coparcenery then the alienation even qua the share of coparcener alienating the property could not be sustained. Thus, the submission made by Shri Verka on this account also must fail. 14. No other point has been raised before me. 15. Thus finding no merit in the present appeal, the same is hereby dismissed. No order as to costs. Appeal dismissed.