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2005 DIGILAW 107 (JK)

Ved Parkash v. Punchi Ram

2005-04-15

S.N.JHA

body2005
1. This second appeal by the plaintiffs is directed against the judgment and decree of the District Judge,,Rajouri dated 30th January, 1999 in appeal no.10/1997 affirmingthe decision of the Subordinate Judge, Rajouri in civil suit no. 114/ 1995. 2. The plaintiffs filed suit seeking declaration that the deed of disinheritance dated 18th November, 1985 executed by Punchi Ram, their father, as illegal, ineffective and inoperative, and permanent injunction restraining him from dislodging the plaintiffs from 2/6th of the property, including the house which is subject matter of suit. 3. The case of the plaintiffs-appellants is that they are displaced persons from Pakistan occupied area and the land was allotted to the family of the plaintiffs on per capita basis in pursuance of Cabinet Order no.587-C of 1954 in the year 1971. The defendant being head of the family came to acquire occupancy rights over the allotted land but every member of the family has inherited equal share in the property, and the defendant was not competent to divest the plaintiffs of their right and interest in the allotted land. The plaintiffs averred that the property had, in fact, already been partitioned under partition deed in the year 1973 and plaintiffs were accordingly in possession of their share in the property but the defendant in order to defeat their rights, executed the impugned deed of disinheritance which on the face of it is illegal. 4. The case of the defendant-respondent is that the land was allotted to his father, Lal Dass in the year 1949-50. The family then comprised, besides Lal Dass, his wife, daughter and son i.e. the defendant. At the time of allotment the plaintiffs were not even born. In 1971 Lal Dass died but no part of the property was allotted to the plaintiffs and the property has all along remained in his possession. 5. On pleadings of the parities, the trial court framed six issues for decision as under: 1. Whether suit land was allotted to defendant in the year 1971? 2. Whether plaintiffs were the members of defendants family at the time of allotment of the suit land? 3. Whether allotment has been made on per capita basis and plaintiffs are entitled to equal share therein? 4. Whether plaintiffs are in joint possession of the suit property along with defendant? 5. Whether deed of disinheritance executed by defendant is illegal and how? 6. 3. Whether allotment has been made on per capita basis and plaintiffs are entitled to equal share therein? 4. Whether plaintiffs are in joint possession of the suit property along with defendant? 5. Whether deed of disinheritance executed by defendant is illegal and how? 6. Whether plaintiffs have no locus standi to file this suit and why? 6. Both parties led evidence in support of their case. While the plaintiffs examined, besides themselves as their own witnesses, one Muhammad Hussain, the defendant did not examine any witness except himself. They also filed some documents. On the basis of the evidence on record the trial court held that the land was allotted in the year 1950; that the plaintiffs were not members of the family of the allottee i.e. Lal Dass - they were born respectively on 4th July,1961 and 16th April, 1968; that the allotment of land was not per capita; that the plaintiffs were not in joint possession of the property; and that the deed of disinheritance was not illegal as, being in the nature of will, it would take effect after the death of the executant i.e. the defendant Punchi Ram; and thus decided the first five issues against the plaintiffs and in favour of the defendant. In view of these findings, the-trial court observed that it was not necessary to decide issue no.6 relating to the locus standi of the plaintiffs to file the suit. 7. The first appellate court on consideration of the evidence on record and submissions made before it, observed that the allotment of property to the defendants father meant that the allotment was under Cabinet Order no.578-C, "which does not entitle the defendant-respondent to disinherit any members of the family from the suit property". However, after the death of Lal Dass the property devolved upon the surviving members by inheritance and in the absence of the plaintiffs, the property devolved upon the survivors of the family to whom the property was allotted. However, after the death of Lal Dass the property devolved upon the surviving members by inheritance and in the absence of the plaintiffs, the property devolved upon the survivors of the family to whom the property was allotted. Though the court did not say so in express words, what the court meant was that on the death of the allottee the property would devolve on the surviving members of the family to whom the property was allotted, that is, whose names found mention in the allotment or der as constituting the family strength and since the plaintiffs were not born at the time of allotment, they were not entitled to any share or interest in the property. On these findings the first appellate court held that the findings arrived at by the trial court cannot be interfered with. At the time of admission the following questions of law were framed for decision: i) Whether the failure on the part of Sub Judge as well as the District Judge to appreciate the statement of Ponchi Ram - defendant, admitting that the suit land was allotted to his father, makes the appreciation of evidence perverse to justify interference in 2nd appeal? ii) Whether the suit land has been inherited by the defendant, Poonchi Ram from his father. If so, does it fall within the definition of ancestral property? iii) Whether a son can be divested of his right to inherit the ancestral property by executing a deed of disinheritance, under Hindu Law? 8. I have heard counsel for the parties and perused the records. I am of the view that on the findings returned by the courts below the plaintiffs suit is fit to be decreed. The moot question for consideration is whether the plaintiffs acquired any right or interest by birth and if so, whether such right or interest could be taken away by so called deed of disinheritance executed by defendant? 9. The answer to the question lies in sub clause (2) of clause 15B of Cabinet Order no.578- C of 1954 dated 7th May, 1954. The said Order has been framed by the Government of Jammu and Kashmir in exercise of powers conferred by clauses (e-i) and (g) of section 39(2) of the Jammu and Kashmir Evacuees (Administration of Property)Act, 2006 (1949 AD). The said Order has been framed by the Government of Jammu and Kashmir in exercise of powers conferred by clauses (e-i) and (g) of section 39(2) of the Jammu and Kashmir Evacuees (Administration of Property)Act, 2006 (1949 AD). Under the afore said clauses the government may make rules providing for the manner in which, and the conditions subject to which, Custodian may allot any immovable property vested in him, and the circumstances in which leases and allotments may be cancelled or terminated or the terms of the allotments or leases varied. Clause 15B of the said Cabinet Order lays down the procedure regarding survivorship. Sub-clause (2) being relevant for our purposes may be quoted as under: "15-B. Procedure regarding survivor-ship. - (2) If an allottee dies, his interest in the allotted land shall devolve on other members of his family in whose favour allotment of land has been originally made or regularised under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such allotment excluding those who may have died earlier or may have left the family on account of marriage or adoption. 10. From a bare reading of the above provision it is clear that on the death of the allottee his interest in the allotted land would devolve on other members of the family in whose favour allotment of land was originally made or regularised under these rules, and also on those who may have become members of the family by way of marriage, birth or adoption after such allotment. It would thus appear that the provision is in two parts. Under the first part, on the death of the allottee his interest in the allotted land devolves on other members of his family in whose favour allotment of land has "originally been made or regularised". Under the second part, the interest of the property devolves also on those who become members of the family by virtue of marriage, birth or adoption after such allotment. Had the provision consisted of only first part, the conclusion arrived at by the courts below would have been correct. The plaintiffs not being members of the family of the allottee at the time of allotment, and the original allotment not being in their favour, they would not have acquired any right or interest in the allotted land. Had the provision consisted of only first part, the conclusion arrived at by the courts below would have been correct. The plaintiffs not being members of the family of the allottee at the time of allotment, and the original allotment not being in their favour, they would not have acquired any right or interest in the allotted land. However, in view of the admitted case of the defendant that the plaintiffs were born on 4th July, 1961 and 16th April, 1968, there cannot be any doubt that the two became members of the family of Lal Dass by virtue of the second part. It is significant to point out here that Lal Dass is said to have died afterwards in 1971. Thus there is no doubt that on his death in 1971 interest in the property devolved also on the plaintiffs. It is to be kept in mind that clause 15B(2) embodies the principle of succession by survivorship and is in accord with the rule of succession by survivorship under the Hindu Law with respect to a Hindu governed by Mitakshara school dying intestate. Under this rule a person becomes entitled to property by reason of his surviving another person who had an interest in it. The rule is particularly applicable to co-parceners. It is not necessary to dwell upon the incidents of survivorship as the present case is governed by the statutory provisions of clause 15B(2) of the Cabinet Order. The court below appears to have understood the term survivor as surviving member of the original family of the allottee - loosely, a co-allottee -overlooking the second part of the clause 15B(2) and thus reached a wrong conclusion. 11. A doubt was raised on behalf of the respondent as to the retrospectivity of the Cabinet Order no.578-C. It was submitted that allotment was made in 1949-50 whereas the Cabinet Order was issued in 1954. In my opinion, it is not necessary to go into this question, for, as seen above, clause 15B(2) refers not only to fresh allotment of land to be made under the Cabinet Order but also allotment regularised thereunder. In my opinion, it is not necessary to go into this question, for, as seen above, clause 15B(2) refers not only to fresh allotment of land to be made under the Cabinet Order but also allotment regularised thereunder. In other words, the fact that in the instant case on the findings returned by the courts below, the allotment had been made in favour of Lal Dass in the year 1950 does not mean that the allotment would not be covered by the provisions of the Cabinet Order. As a matter of fact, it is not the case of the defendant that Cabinet Order is not applicable. Indeed, the defendant himself produced copy of form A". On perusal of the format it becomes clear that it refers to the allotment of land to non-camping displaced families other than those settled in Poonch town be made in accordance with the procedure laid down in clause 8. The appellate court refused to place reliance on the document on the ground that it was carbon copy and defendant did not examine the concerned official of the department to prove the same. I fail to understand as to how, if the form A" at all was relevant document, the fact that the defendant - and not the plaintiffs - produced the carbon copy thereof, and did not examine the concerned official to prove it, could be used against the plaintiffs. Be that as it may, in view of the admitted case of the parties that the allotment of land being under Cabinet Order no.578-C, the defendant cannot escape the provision of clause 15B(2). The plaintiffs having acquired share on the death of the Lal Dass, the same could not be taken away by any unilateral act such as execution of so called deed of disinheritance. Even if the instrument was to be treated as will, as interpreted by the trial court, to take effect after the death of defendant, it is plain that the suit having been brought by the plaintiffs during his lifetime, they cannot be deprived of their share in the property. 12. In these premises I am satisfied that the plaintiffs suit was fit to be decreed and the courts below committed error of law in dismissing it. 12. In these premises I am satisfied that the plaintiffs suit was fit to be decreed and the courts below committed error of law in dismissing it. In the result, the appeal is allowed, the judgments and decrees of the courts below are set aside and the suit of the plaintiffs is decreed with costs through out. Let decree be drawn up.