Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1173 (PNJ)

Gurdas Ram v. Sukhdevi

2003-08-22

SATISH KUMAR MITTAL

body2003
JUDGMENT Satish Kumar Mittal, J. - Gurdas Ram defendant No. 1 (appellant herein) has filed the instant Regular second Appeal against the judgment and decree passed by both the Courts below, vide which suit of Gian Chand plaintiff (whose legal representatives are respondents No. 1 and 2 herein) for possession of the land in question was decreed and the suit qua possession of the house and Taur in question was dismissed. 2. Gian Chand and one Punnu Ram were the real brothers. They inherited 89 kanals 14 Marlas of land from their father Mayyia Singh. The said land was the Hindu ancestral property in the hand of Mayyia Singh and both the aforesaid persons succeeded to the said property from their father by survivorship under the Hindu Law. Punnu Ram was bachelor and blind. Vide registered gift deed dated 15.2.1974, Punnu Ram transferred his half share in the aforesaid property including one house and Taur owned by Mayyia Singh in favour of the appellant Gurdas Ram. The plaintiff Gian Chand challenged the aforesaid gift deed in favour of the appellant by filing the instant suit and claimed possession of the land, house and Taur mentioned in the plaint. 3. The case of the plaintiff was that he and Punnu Ram were constituting Joint Hindu Family and were being governed by Hindu Law in the matter of alienation and succession. They succeeded the properties in dispute from their father Mayyia Singh by survivorship and the same were their coparcenary property. It was further the case of the plaintiff that Punnu Ram was not competent to alienate his undivided share in the joint coparcenary property in favour of the appellant by way of gift. The said gift deed was alleged to be illegal, null and void and against the coparcenary interest of the Joint Hindu Family. It was also averred that Punnu Ram was 90 years of age and was blind; he was not aware of his own interest; and the gift deed in question was got executed from him by Gurdas Ram appellant by keeping him in illegal confinement. Therefore, the impugned gift deed was result of undue influence and coercion. It was also averred that Punnu Ram was 90 years of age and was blind; he was not aware of his own interest; and the gift deed in question was got executed from him by Gurdas Ram appellant by keeping him in illegal confinement. Therefore, the impugned gift deed was result of undue influence and coercion. It was also pleaded by the plaintiff that out of the land in dispute, 15 Kanals 11 Marlas of land was mortgaged with Ram Singh etc., vide mortgage deed dated 26.6.1944, which was got redeemed by the plaintiff on 1.5.1968, therefore, the plaintiff also claimed charge on the aforesaid land. 4. The appellant contested the aforesaid suit by alleging that Gian Chand and Punnu Ram neither constituted any Joint Hindu Family not the property in question was their coparcenary property in any manner. It was further pleaded that both the brothers were Rajputs by caste which was predominantly an agricultural tribe of District Hoshiarpur and was being governed by custom. It was pleaded that the property which was gifted to him by Punnu Ram was his individual property, of which he was absolute owner and was fully competent to alienate the same by way of gift to him. 5. On the pleadings of the parties, the learned trial court framed the following issues : 1. Whether the suit is properly valued for purposes of court fee and jurisdiction ? 2. Whether Gian Chand and defendant No. 2 formed Joint Hindu Family with Punu ? 3. Whether the property in dispute was coparcenary property of Gian Chand deceased and defendant No. 2 ? 4. Whether the defendant No. 2 made a valid gift on 15.2.1974 in favour of defendant No. 1 ? 5. Whether the plaintiff has right to challenge the alienation in dispute ? 6. Whether the defendants are governed by custom in matter of alienations ? If so, what that custom is and to what effect ? 6A. Whether Gian Chand deceased plaintiff redeemed the mortgage dated 26.6.1944 ? If so to what effect ? OPP 7. Relief. 6. 5. Whether the plaintiff has right to challenge the alienation in dispute ? 6. Whether the defendants are governed by custom in matter of alienations ? If so, what that custom is and to what effect ? 6A. Whether Gian Chand deceased plaintiff redeemed the mortgage dated 26.6.1944 ? If so to what effect ? OPP 7. Relief. 6. The learned trial court, after considering the respective evidence led by both the parties on the aforesaid issues, held that Gian Chand and Punnu Ram were constituting the Joint Hindu Family; the property in dispute was the coparcenary property in their hands; they were not governed by custom, but were being governed by Hindu Law in the matters of succession and alienation, and that Punnu Ram was not competent to gift away the undivided interest in the aforesaid coparcenary property. As far as the house and Taur in question are concerned, it was held to be non-ancestral property of the parties and the suit regarding the house and Taur was dismissed. 7. Feeling aggrieved against the aforesaid judgment and decree, appellant Gurdas Ram filed appeal before the Additional District Judge, Hoshiarpur, which was dismissed and the aforesaid findings of the learned trial court on all the issues were affirmed. Hence, this Regular Second Appeal. 8. Shri Harbhagwan Singh, the learned senior counsel for the appellant, has made two submissions. Firstly that the appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence before the learned first appellate court, whereby he sought permission to produce additional evidence to show that Gian Chand and Punnu Ram were governed by custom in the matters of alienation and they were Rajputs belonging to a predominantly agricultural tribe of Tehsil Garhshankar. The said application was illegally dismissed by the learned first appellate court, whereas the said additional evidence was material and necessary for effective determination of the controversy in question and the issues involved in the present appeal. Secondly, learned counsel for the appellant submitted that there was sufficient material and admission of the parties, which clearly establish that the finding recorded by the Courts below to the effect that the parties were being governed by Hindu Law and not by custom is wholly erroneous and is liable to be reversed. Secondly, learned counsel for the appellant submitted that there was sufficient material and admission of the parties, which clearly establish that the finding recorded by the Courts below to the effect that the parties were being governed by Hindu Law and not by custom is wholly erroneous and is liable to be reversed. Learned counsel for the appellant submitted that the property owned by Mayyia Singh did not devolve upon the aforesaid two brothers by way of survivorship, but actually under the custom they inherited the said property in equal shares from their father, in which they had a definite share and the same could have been alienated by any permissible mode to any person. Learned counsel for the appellant further submitted that the gift deed dated 15.2.1974, which was held to be duly proved, clearly confer the absolute ownership regarding the property in question in favour of the appellant. 9. After hearing the arguments of learned counsel for the appellant and perusing the records of the case, I do not find any substance in either of the submissions made by him. The application of the appellant seeking permission to lead additional evidence was rejected by the learned appellate court on 25.10.1982 by recording the following reasons :- "3. I have heard the learned counsel for the parties and have gone through the record. 4. No evidence worth the name was led by the defendants to show that Punnu and Gian Chand were governed by custom in matters of alienations. So much so even Gurdas Ram defendant did not state even a word that they were so governed. Provisions of Order 41 Rule 27 CPC can be brought into play only when it is felt that in the absence of that evidence the court is unable to deliver a judgment in a satisfactory manner. Object of the provisions of Order 41 rule 27 C.P.C. is not to enable one party to fill up the lacuna of its case. So this application is dismissed." 10. I do not find any illegality or infirmity in the aforesaid order. Object of the provisions of Order 41 rule 27 C.P.C. is not to enable one party to fill up the lacuna of its case. So this application is dismissed." 10. I do not find any illegality or infirmity in the aforesaid order. When the appellant neither led any evidence nor even stated a word in his statement that Gian Chand and Punnu Ram were governed by custom and they were Rajputs belonging to a predominantly agricultural tribe following custom in the matters of alienation, the learned first appellate court was fully justified in not permitting the appellant to produce additional evidence to prove that the aforesaid two brothers were being governed by custom. The parties were aware of their respective case before the learned trial court. The specific issues were framed, including issue No. 6 to the effect as to whether the defendants are governed by custom in matter of alienations, if so, what that custom is and to what effect. In spite of this specific issue and pleadings, the appellant did not lead any evidence on this aspect. He cannot be permitted in first appeal or Regular Second Appeal to lead evidence on that issue to fill up the lacuna. After going through the judgments of the Courts below, I do not find any infirmity of illegality in the findings recorded on various issues. The finding of the Courts below that the agricultural land which is the subject matter of the suit was the Joint Hindu Family property in the hands of Mayyia Singh and the same devolved upon Gian Chand and Punnu Ram by survivorship is based upon the documentary evidence available on the record i.e. excerpt (Ex.P10), Jamabandi for the year 1936-37 (Ex.P13) and Khatauni Pamaish (Ex.P14 and Ex.P15), which were prepared on the basis of jamabandi for the year 1944-45. Once it was held that the aforesaid agricultural land in question was coparcenary property of the aforesaid two brothers, then a coparcener has no right to gift away the corparcenary property to anybody, and if he does so, the gift would be void. Once it was held that the aforesaid agricultural land in question was coparcenary property of the aforesaid two brothers, then a coparcener has no right to gift away the corparcenary property to anybody, and if he does so, the gift would be void. This proposition of law is well settled as held by the Honble Supreme Court in Dwarampudi Nagaratnamba v. Kunuku Ramayya and another, AIR 1968 Supreme Court 253, wherein it has been held that the properties gifted being coparcenary properties, the donor had no power to make gift even of his undivided interest and hence the gift was void. It was further held that the invalid gifts could not be validated by the subsequent disruption of the Joint Hindu Family. Thus, both the Courts below have recorded a pure findings of facts. No substantial question of law is involved in the instant appeal nor any such question has been canvassed before me by learned counsel for the appellant. In view of the aforesaid discussion, I do not find any merit in the instant appeal and the same is hereby dismissed. No order as to costs. Appeal dismissed.