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2013 DIGILAW 72 (CHH)

VEDRAM v. TIKARAM

2013-02-27

N.K.AGARWAL

body2013
JUDGMENT 1. Second Appeal No.82 of 1992 filed by the plaintiff - Vedram and Second Appeal No. 403 of 1992 filed by the defendant/purchaser - Lekhram arising out of the judgment and decree dated 13.09.1991 passed by the Additional District Judge, Sakti to the Court of District Judge, Bilaspur in Civil Appeal No. 29-A/1990 are being disposed of by this common judgment. 2. The plaintiff - Vedram filed a civil suit No. 25-A/1975 before the Civil Judge, Class-2, Sakti, for declaration that the plaintiff and defendants No. 2 to 5 are members of joint Hindu family and are co-owners of the disputed land and also that sale deed dated 28.02.1975 executed by his father, defendant - Hukum Singh, in favour of defendant - Lekhram, is null and void. A permanent injunction was also prayed for by the plaintiff for restraining the defendants from alienating the suit property to anyone else. 3. The case of the plaintiff, in brief, was that one Banmali was the owner of the disputed lands and in his life time, there was no partition but as per family arrangement, the plaintiff was looking after the lands in Mouza Amlipali, Binautha, Kuraina and Pujripali and was in its possession. Defendant-Tikaram was looking after the lands situated in Mouza Salhe and Sursi and was in its possession. Defendant - Hukum Singh was looking after the lands in Mouza Khaira and was in its possession. His rights accrue to him not on the death of the father or inheritance from the father but with the very fact of his birth, and therefore, the whole property was ancestral. It was also alleged that by consent of the parties, names of the parties were separately entered in the small khata of revenue records. 4. It was further case of the plaintiff that Hukum Singh - defendant, by a registered sale deed dated 28.02.1975 sold the lands mentioned in Schedule-B filed along with the plaint, for Rs.30,000/- in favour of Lekhram (appellant in S.A. No. 403 of 1992), without any legal necessity of alienating the suit lands and that the sale deed was void and was without consideration. 5. 5. The defendants vehemently opposed the relief claimed by the plaintiff and submitted their written statement stating therein that Banmali, during his lifetime, affected partial partition of the suit land on 21.12.1957 and thereafter also divided the remaining lands remained in his name on 24.08.1969 between his two sons - Tikaram and Hukum Singh and since then both of them were in possession of their respective lands. After partition, both the brothers did not remain as members of joint Hindu family. It was further averred that said Banmaji never had any right or title over the lands mentioned in Schedule-A to the written statement. The lands given to Tikaram are shown in Schedule-B and the lands given to Hukum Singh are shown in Schedule-C to the written statement. 6. The learned trial Judge dismissed the suit holding that Banmali, during his lifetime, had partitioned the lands between Tikaram and Hukum Singh. It was also held that Hukum Singh had alienated the lands to Lekhram for legal necessity. 7. The plaintiff - Vedram filed first appeal No. 29-A/1990. The learned first appellate Court partly allowed and decreed the suit vide impugned judgment and decree declaring the sale deed dated 28.02.1975 as void. 8. Being aggrieved and dissatisfied with the judgment and decree impugned, the plaintiff as well as-defendant - Lekhram have filed instant second appeals. 9. This Court admitted the Second Appeal No.82/1992 on the following substantial question of law: "Was the learned lower appellate Court bound to pass a decree for possession in view of the facts and circumstances of the case and committed a mistake in passing the impugned decree?" 10. The Second Appeal No. 403 of 1992 was also admitted for hearing on the following substantial question of law: "Whether the Court below was justified in reversing the finding recorded by the trial Court on Issue No.4 without meeting reasons recorded by the trial Court and thereby setting aside the judgment and decree of the trial Court to the above extent?" 11. Dr. N.K. Shukla, learned Senior Advocate with Shri S.B. Patel, learned counsel for the plaintiff - Vedram and Shri Sudhir Verma, learned counsel for the legal representatives of deceased - Hukum Singh, would submit : (i) Ex.D.1 to Ex.D.4 are documents effecting partition and not acknowledgments of partition. Dr. N.K. Shukla, learned Senior Advocate with Shri S.B. Patel, learned counsel for the plaintiff - Vedram and Shri Sudhir Verma, learned counsel for the legal representatives of deceased - Hukum Singh, would submit : (i) Ex.D.1 to Ex.D.4 are documents effecting partition and not acknowledgments of partition. Deed of partition requires registration under Section 17 of the Indian Registration Act, 1908 (for short 'the Act of 1908') and the above documents being unregistered documents are not admissible in evidence. (ii) Both the Courts below have reached to the conclusion that the properties in the hands of Banmali were his self-earned properties. In case of self-acquired properties, sons are only spes secessionists (expectation of succession) and no right is vested on the sons during the life time of father. Therefore, a family arrangement/ partition between them of self-acquired properties of the father creates an interest in the immoveable property, which requires registration. Ex.D.1 to D.4, being unregistered documents, are not admissible on this count also. (iii) Under the Hindu law, the moment a son is born; he gets a share in the father's property and becomes part of coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. It was also contended that Hukum Singh cannot sell the property to Lekhram except for legal necessity, the burden to prove that the properties were sold for legal necessity is on the transferee, in which, the transferee utterly failed to discharge the above burden. 12. On the other hand, Shri Shree Kumar Agrawal, learned Senior Advocate with Shri Sanjeev Agrawal, counsel for the appellant - Lekhram, placing reliance upon the judgment of Supreme Court in the case of Santosh Hazari Vs. 12. On the other hand, Shri Shree Kumar Agrawal, learned Senior Advocate with Shri Sanjeev Agrawal, counsel for the appellant - Lekhram, placing reliance upon the judgment of Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179 , submitted that the trial Court, based on evidence available on record, has held the property has been sold by Hukum Singh to Lekhram for legal necessity and without meeting the reasons assigned by the trial Court, the first appellate Court has erroneously reversed the findings and the findings recorded by the first appellate Court on the above head are perverse and rot sustainable in law. 13. I have heard learned counsel for the parties and perused the records of both the Courts below. 14. The trial Court, while dismissing the plaintiff's suit in toto, has also recorded a finding that Hukum Singh had alienated the lands to Lekhram for legal necessity. The above finding was reversed by the first appellate Court. After going through the evidence on record, in my opinion, the first appellate Court has reversed the finding of the trial Court on this point without meeting the reasons assigned by the trial Court without considering the material piece of evidence available on record and on facts, the reversal finding recorded by the first appellate Court is not sustainable in law. 15. Further, although under the old Hindu law, the moment a son is born; he gets share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become a part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. BUT this position has since been affected by Section 8 of the Hindu Succession Act. BUT this position has since been affected by Section 8 of the Hindu Succession Act. Since the Preamble to the Act reiterates that the Act is to 'amend' and codify the law and Section 4 thereof makes it clear that one should look to the Act in case of doubt and not to the pre-existing Hindu law, the express words of Section 8 of the Act would prevail over the aforesaid general law. When therefore, son inherits the property in the situation contemplated by Section 8 he does not take it as karta of his own undivided family but takes it in his individual capacity. The Schedule to the Act referred to in Section 8(a) indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son. (Please see Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others (1986) 3 SCC 567 and Yudhister Vs. Ashok Kumar 2(1987) 1 SCC 204) 16. Admittedly, the suit property was self-acquired property of Banmali. Banmali died on 21.04.1972, i.e., after coming into force of Hindu Succession Act. The parties were not joint in food and worship. As per Section 8 of the Act of 1956, self-earned property of Banmali, after his death, shall devolve upon his two sons and wife, being only relatives specified in Class I of the Schedule and it would be difficult to hold that the property which devolved on sons under Section 8 of the Act of 1956 would be Hindu Undivided Family property in their hands vis-a-vis their own sons. 17. After death of Banmali, the property devolved upon his two sons-Tikaram, Hukum Singh and wife, who succeeded together to the property as tenants in common, as per Section 19 of the Act of 1956 and the plaintiff would have no right at all in the property in the lifetime of his father and was also not entitled to challenge the alienation made by his father - Hukum Singh on the ground that his father has sold the property without legal necessity. 18. 18. The Court below, ignoring the above correct proposition of law, on which, matter should have been decided, decided the case addressing itself on the issues which do not arise at all, i.e., admissibility of documents Ex.D.1 to Ex.D.4 and whether or not the lands were sold by Hukum Singh to Lekhram for legal necessity. 19. The plaintiff has no right or title in the suit lands in the life time of his father, and therefore, has no right either to challenge the alienation or claim joint possession and the Court below committed gross illegality in decreeing the plaintiff's suit in part. 20. For the aforementioned reasons, the appeal preferred by Vedram (S.A.No.82/1992) is liable to be and is hereby dismissed and the appeal preferred by Lekhram (S.A.No.403/1992) deserves to be and is hereby allowed. The substantial questions of law framed in both the appeals are answered accordingly. 21. No order as to costs. 22. A decree be drawn accordingly. Appeal of purchaser allowed.