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2004 DIGILAW 459 (PNJ)

Sital Singh v. Jamna Bai

2004-04-21

SATISH KUMAR MITTAL

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Judgment Satish Kumar Mittal, J. 1. In this appeal, the sole question arises for consideration is whether the sale made by Karta of the Joint Hindu Family of the coparcenary property is liable to be set aside in toto or it is valid and binding to the extent of the share of the vendor coparcener or Karta. 2. The instant appeal has been filed by the plaintiff against the judgment and decree passed by the first appellate Court vide which the decree passed by the trial Court in his favour has been modified and his suit qua l/3rd share of the vendor coparcener, namely Kartar Singh, in the land in question has been dismissed, and the decree for the remaining 2/3rd share has been upheld. 3. In the instant appeal, respondent Nos. 2 and 3 have filed cross-objections to the effect that suit of the plaintiff is not liable to be decreed at all. 4. In this case, one Kartar Singh was having half share in the land measuring 149 Kanals 9 Marias. Another half share was owned and possessed by his brother Gurdit Singh. The said Kartar Singh was having two sons i.e. the appellant Sital Singh and respondent No. 6 Harmit Singh. Out of his half share, he sold 2 kanals 9 marlas of land to respondent No. 3 Gulab Chand vide registered sale deed dated 11.4.1975; 9 kanals 1/2 marla of land to respondent No. 2 Jagga Singh vide registered sale deed dated 25.7.1977 and suffered a collusive decree dated 2.2.1978 regarding half share of the land measuring 149 kanals 9 marlas in favour of respondent No. l Jamna Bai. 5. The plaintiff Sital Singh challenged the aforesaid three alienations by filing the instant suit. He placed that the property in question was the coparcenary property in the hands of Kartar Singh. It was further pleaded that the plaintiff and defendant Nos. 4 to 6 constituted a Hindu Joint Family and are being governed by Mitakshra Law and under the Hindu Law, therefore, no coparcener can alienate any portion of the coparcenary property without any legal necessity and without the benefit of the Joint Hindu Family. The plaintiff claims that he being the coparcener acquired interest by birth in the coparcenary property. 6. The aforesaid suit was contested by defendant Nos. l and 2 by filing separate written statements. The plaintiff claims that he being the coparcener acquired interest by birth in the coparcenary property. 6. The aforesaid suit was contested by defendant Nos. l and 2 by filing separate written statements. It was pleaded that the land in question was the self-acquired property of Kartar Singh. It was further pleaded that the plaintiff and defendant Nos. 4 to 6 are Rai Sikhs by caste and they are not governed by Hindu Law but they are governed by customary law. It was also pleaded that Kartar Singh alienated the property in question by the impugned transactions to meet with the cost and expenses of the marriage of his daughter, therefore, the alienations made by him were for legal necessity and were for consideration. 7. After considering the evidence led by respective parties, the trial Court found that the plaintiff and defendant Nos. 4 to 6 constituted Joint Hindu Family and the land in question was its ancestral property. It was further held that the plaintiff and defendant Nos. 4 to 6 being Rai Sikhs were being governed by Hindu Law and not by the customary law. It was also held that the three alienations in question made by Kartar Singh were without any legal necessity, hence were null and void. After recording the aforesaid findings suit of the plaintiff was decreed. 8. Against the said judgment and decree, defendant No. 3 Smt. Jamna Bai filed an appeal before the first Appellate Court. Before the first Appellate Court, counsel for the contesting respondents made little efforts to assail the findings of the trial Court on any of the issues. However, only one contention was raised by him on the basis of two judgments of this Court in Jawala Singh and another v. Lachhman Dass and others,1 A.I.R. 1974 Punjab and Haryana 188 and Mohinder Singh and others v. Ishar Singh and others,2 1979 H.L.R. 307, to the effect that the alienations made by Kartar Singh be upheld to the extent of his share in the coparcenary i.e. l/3rd share. The said contention was accepted in view of the law laid down in the aforesaid two judgments and the judgment of the trial Court was modified to that extent. The said contention was accepted in view of the law laid down in the aforesaid two judgments and the judgment of the trial Court was modified to that extent. The suit of the plaintiff qua l/3rd share of Kartar Singh in the coparcenary property was dismissed and his suit qua 2/3rd share in the property in question qua his share and share of his brother was decreed. 9. Against the aforesaid judgment and decree, the plaintiff has filed the instant Regular Second Appeal, in which defendant Nos. l and 2 have filed cross-objections to the effect that the alienations made by Kartar Singh are valid. 10. Learned counsel for the appellant submitted that decision of this Court in Jawala Singhs case (supra) was subsequently overruled by the Full Bench of this Court in Manohar Lal and another v. Dewan Chand and others,3 (1985-1)87 P.L.R. 689, where it was held that an alienation made by a coparcener or Karta of the family being made without the consent of the coparceners, without any legal necessity or for the benefit of the estate, is liable to be set aside wholly, and such alienation cannot be held valid even for the share of the alienating coparcener. Learned counsel for the appellant submitted that the other judgment of this Court in Mohinder Singhs case (supra), therefore, the same stands impliedly overruled. Thus, in view of the aforesaid position, the modification in the judgment of the trial Court made by the first Appellate Court is liable to be set aside and suit of the plaintiff should be decreed in toto. 11. Learned counsel for respondent Nos. 2 and 3-cross objectors could not rebut the position of law laid down by the Full Bench of this Court in Manohar Lals case (supra). However, learned counsel vehemently canvassed that the finding recorded by the Courts below that the parties are being governed by the Hindu Law and not by customary law is wrong. He submitted that the plaintiff and defendant Nos. 4 to 6 were being governed by custom and under the Customary Law, a son or any coparcener has no right to contest the alienation made by the father as the provisions of the Punjab Custom (Power to Contest) Act, 1920 have been abolished by the Punjab Act No. 12 of 1973. 12. 4 to 6 were being governed by custom and under the Customary Law, a son or any coparcener has no right to contest the alienation made by the father as the provisions of the Punjab Custom (Power to Contest) Act, 1920 have been abolished by the Punjab Act No. 12 of 1973. 12. Though learned counsel for the contesting respondents admitted that in the pleadings, the respondents have not taken the plea regarding abolition of the customary right to contest the alienation, but submitted that he can raise such plea even at the stage of Regular Second Appeal, being purely legal one. 13. After considering the rival contentions of learned counsel for the parties and perusing the record, I am of the opinion that this appeal deserves to be allowed. Before the first Appellate Court, counsel for the contesting respondents-cross objectors did not challenge the finding of facts recorded by the trial Court on various issues i.e. constitution of Joint Hindu Family, the property in question being coparcenary property of the aforesaid Joint Hindu Family, the alienations made by Kartar Singh were being without any legal necessity and not for the benefit of the management of the coparcenary property, the plaintiff and defendant Nos. 1 to 4 being governed by the provisions of Hindu Law and not by the customary law. The decree of the trial Court was modified only on the basis of the judgment of Jawala Singhs case (supra). The aforesaid two judgments have been overruled by the Full Bench of this Court in Manohar Lals case (supra) and learned counsel for the contesting respondents could not assail the legal position laid down by this Full Bench judgment of this Court. Now, his contentions that the plaintiff and defendant Nos. l to 4 did not constitute Joint Hindu Family; the property in question was not the coparcenary property and the plaintiff and defendant Nos. l to 4 are not governed by Hindu Law, as they are being governed by the customary law, cannot be gone into, in view of the law laid down by the Honble Apex Court in Kulwant Kaur and others v. Gurdial Singh Mann and others,4 (2001-2)128 P.L.R. 492 (S.C.), as in the Regular Second Appeal, this Court has no jurisdiction to enter into the finding of facts recorded by both the Courts below. 14. 14. In view of the aforesaid discussion, the instant appeal is allowed. The impugned judgment and decree of the first Appellate Court is set aside and the judgment and decree of the trial Court is restored. The cross-objections filed by respondent Nos. 2 and 3 are, therefore, dismissed. 15. No order as to costs.