Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 187 (PNJ)

Ajit Singh v. Om Parkash

2014-01-23

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J.:- The plaintiff-appellant had filed the instant suit for possession, alleging that the suit land was owned and possessed by plaintiff as well as Dharam Singh, defendant no.5 in equal shares, as they constituted a joint Hindu family and the suit property was a coparcenary property. No partition had taken place between the parties. However, defendant no.5 sold the entire land without any necessity and consideration in favour of defendants no.1 and 2 vide registered sale deed executed on 13.6.1979 for a consideration of Rs.36,000/-. Defendant no.2 had further alienated his share in the land to defendants no.3 and 4 without any legal necessity only to defeat the rights of the plaintiff. Hence the suit. 2. In the written statement, defendants No.1 and 2 submitted that no Hindu joint family was in existence, as alleged. It was further denied that the property was Hindu coparcenary property. However, ownership of Dharam Singh as well as sale him was admitted. It was further stated that sale was effected in favour of defendants No.1 and 2 by defendant no.5 for repayment of his loan and he also wanted to purchase the land of better quality. It was further contended that defendant no.5 being the head and Karta of the family did this in good faith. It was further stated that defendant no.5 being Jat, was not governed by Hindu law, but the customs as prevalent in Sonepat district. Additional plea to the effect that the suit was not maintainable during the life of defendant no.5 was also taken. Thus, dismissal of the suit was prayed. 3. Defendant nos.3 and 4 also raised similar pleas. However, defendant no.5 was proceeded ex-parte and no written statement was filed by him. 4. On the basis of pleadings of the parties, following issues were framed:- “1. Whether the plaintiff and defendant No.5 constitute a Hindu Joint Family? OPP. 2. Whether the land in suit is ancestral and coparcentary property? OPP. 3. Whether the sale deed dated 13.6.79 by Dharam Singh defendant No.5 in favour of defendants 1 and 2 is without consideration and legal necessity? OPD. 4. Whether defendants 3 & 4 have purchased the share of defendant No.2? OPD. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 7. OPD. 4. Whether defendants 3 & 4 have purchased the share of defendant No.2? OPD. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 7. Whether the suit is collusive in between plaintiff and defendant No.5? OPD. 8. Relief.” 5. Issues no.1 and 2 were decided against the plaintiff holding that Hindu Jats of Sonepat district were competent to alienate immovable property without any legal necessity and the only constrain put by the customary law was of immorality. It was further held that the suit property was not inherited from the common ancestor. Issue nos.3 and 5 were also held against the plaintiff, whereas issues no.4, 6 and 7 were not pressed and in view of the aforesaid findings, suit of the plaintiff was dismissed. 6. Appeal filed by the plaintiff against the aforesaid judgment and decree of the trial Court was also dismissed. While dismissing the appeal, it was held that the land in question was inherited by Dharam Singh from his father and thus, was ancestral. Thus, findings on issues no.1 and 2 were reversed whereas findings on issue no.3 were again decided against the plaintiff-appellant, holding that the suit land was alienated by defendant no.5 for legal necessity and for consideration and in view of the aforesaid findings, the appeal was dismissed. 7. Still not satisfied, the plaintiff-appellant is in second appeal. The defendants have not raised any grievance against the findings which have been recorded against them by the Courts below. Thus, the only substantial question of law which arises in this case is:- “Whether the impugned sale of the land in question by defendant no.5 was for a legal necessity? 8. At this stage, it is relevant to notice the observations of the first Appellate Court which reads thus:- “I have examined plaintiff’s case under Hindu Law and have come to this conclusion that the alienation in question is not liable to be set aside. Alienor Dharam Singh is the father of the plaintiff. In Hindu law a father in his capacity as manager can validly sell or mortgage the ancestral family property including the son’s interest either for family necessity or for the benefit of the estate or for the discharge for his own antecedent debts which are not tainted with illegality or immorality. Alienor Dharam Singh is the father of the plaintiff. In Hindu law a father in his capacity as manager can validly sell or mortgage the ancestral family property including the son’s interest either for family necessity or for the benefit of the estate or for the discharge for his own antecedent debts which are not tainted with illegality or immorality. In such case when the alienation is impeached by the one the burden of proof is on the alienee to show that there was in fact legal necessity or benefit to the family or the alienation was for discharging antecedent debts justifying the alienation or that the alienee honestly satisfied himself after proper and bonafide enquiries as to their existence. (AIR 1966 Kerala 305 ibid). Defendants have convinced and proved by producing reliable evidence that the alienor Dharam Singh needed money to discharge debts and the requisite inquiry was also made by them before they purchased the land in dispute from Dharam Singh, PW1 Smt. Shugan Kaur in her evidence expressed ignorance if her husband Dharam Singh was to pay debt to land mortgage bank to the tune of Rs.10/12,000/- or that Dharam Singh was to pay Rs.3000/- as mortgage money to Surat Singh or that Takavi loan was also to be discharged by Dharam Singh. Entries in the copies of revenue record reveal that Dharam Singh had taken loan from land mortgage bank and had mortgaged his land in 1974. Original mortgage deeds Exs.D2 and D3 reveal that Dharam Singh had mortgaged his land for Rs.1500/- with Surat Singh on 15.6.1977. He mortgaged his other land on 15.6.1977 to Surat Singh, for another sum of Rs.1500/-. The contents of copy Ex.D10 the mortagedeed show that he mortgaged a house for Rs.6000/- on 8.1.1981 to Zile Singh, Bhup Singh and Sube Singh. In sale deed Ex.D1 which is under dispute in this suit it is clearly mentioned that Dharam Singh needed money to discharge debts. It is stated in the sale deed that chunk of land out of the land under sale was mortgaged for Rs.11500/- with land mortgage Bank and part of land for Rs.3000/- with Shri Surat Singh. Out of the sale consideration, Rs.36,000/-, Dharam Singh had already received Rs.14500/- and had received Rs.21500/- before the Registrar from the vendee at the time of registration. Out of the sale consideration, Rs.36,000/-, Dharam Singh had already received Rs.14500/- and had received Rs.21500/- before the Registrar from the vendee at the time of registration. No where in her statement Smt. Shugan Kaur stated that her husband Dharam Singh suffered from bad vices or that he squandered the sale consideration for any bad or immoral cause. The vendees Om Parkash and Sukhbir are none else but the brothers of the alienor Dharam Singh. Endorsement on the back of mortgage-deed Ex.D3 show that the vendee OM Parkash had paid Rs.3000/- to the mortagee Surat Singh on 14.4.1979 and got that land redeemed which Dharam Singh had mortgaged to him (Surat Singh). Payment was made in the presence of several persons who attested the payment and Surat Singh accepted the amount. Receipts Exs.D4 to D8 which stand duly proved from the evidence of Om Parkash and Mahabir Singh Patwari that Dharam Singh deposited Rs.11631.35p on 14.6.1979 with the Sonepat Primary Cooperative Land Development Bank Ltd., Sonepat and Rs.40/- on 28.9.1979. Ex.D6 is the certificate issued by the Manager of Sonepat Primary Cooperative Land Development Bank, Sonepat vide which Dharam Singh had cleared loan of Rs.8000/- on 14.6.1979. Exs.D7 and D8 disclosed that Dharam Singh had discharged Takavi loan on 3.8.1979. It is thus clear from the evidence on record that the sale of the land in dispute by Dharam Singh was for consideration and legal necessity. Om Parkash and his witnesses have deposed that the vendees made proper and bonafide inquiries about the existence of the necessity and had done all that was reasonable to satisfy themselves as to the existence of the necessity. Plaintiff has not produced any rebuttal in this behalf. The recitals in the sale deed Ex.D1 corroborate evidence of the existence of legal necessity. Alienees were not bound to prove as to how the remaining amount of sale produce was applied by the alienor. Where sale is for necessity, whole amount will be presumed to have been expended for family benefit. Consequently, issue no.3 is decided against the plaintiff and in favour of the defendants.” 9. During the course of arguments learned counsel for the appellant could not dispute the fact that the respondents have brought on record the evidence in the affirmative to discharge their onus to prove the fact that alienation of the property in dispute by defendant no.5 was for a legal necessity. During the course of arguments learned counsel for the appellant could not dispute the fact that the respondents have brought on record the evidence in the affirmative to discharge their onus to prove the fact that alienation of the property in dispute by defendant no.5 was for a legal necessity. Further, it could not be disputed that there is not an iota of evidence brought on record by the plaintiff-appellant to rebut the aforesaid evidence. Thus, on the basis of evidence on record, a finding has been recorded that the alienation by defendant no.5 was for a legal necessity. In view thereof, the substantial question of law as framed is answered against the appellant and in favour of the respondents, holding that alienation of the suit property was for a legal necessity. 10. Thus, no fault can be found with the findings recorded by the Courts below. Dismissed. No costs.