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2014 DIGILAW 759 (PNJ)

Surjit Kaur v. Balwinder Singh

2014-04-28

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J.:- This is plaintiffs’ second appeal challenging the judgments and decrees of the Courts below whereby their suit for possession of the suit land being the daughters and legal heirs of Niranjan Singh-deceased was dismissed. 2. It is the case of the appellants that the land in question was initially owned by Niranjan Singh son of Sajjan Singh, resident of village Kotli Dewan, who died on 20.04.1999. Niranjan Singh used to remain ill and due to old age he had also lost his senses and had not been maintaining his mental balance. The defendants No.1 to 3 are the real brothers whereas defendant No.4 is the real sister of the plaintiffs. 3. It is the further case of the appellants that sale deed No.131 dated 16.4.1999 allegedly executed by Niranjan Singh in favour of defendant-Mangal Singh was null and void on the ground that at the time of alleged sale deed, deceased Niranjan Singh, the father of the plaintiffs, was not in a position to execute the same on account of his old and ill health and as such the alleged sale deed was the result of fraud and misrepresentation. No sale consideration was passed and Niranjan Singh was never in need of any money. The suit land is the ancestral and Joint Hindu Family property of the plaintiffs and the defendants and Niranjan Singh was the Karta of this Joint Hindu Family and the alleged sale deed was not for any legal necessity. The defendant-Mangal Singh was a very clever and cunning person and by committing fraud, he got the alleged sale deed executed in his favour from the father of the plaintiffs and the defendants i.e. Niranjan Singh, who had lost his mental balance and senses. The aforesaid sale deed has been entered without any consideration and Mutation No.2626 sanctioned on the basis of above said sale deed was also liable to be set aside and the same was also not binding upon the rights of the plaintiffs. Since the defendants refused to accept their claim, hence the necessity arose to file the instant suit. 4. Upon notice, defendants appeared and contested the suit. Defendants No.1 and 2 filed a joint written statement taking the various preliminary objections. Since the defendants refused to accept their claim, hence the necessity arose to file the instant suit. 4. Upon notice, defendants appeared and contested the suit. Defendants No.1 and 2 filed a joint written statement taking the various preliminary objections. They admitted the claim of the plaintiffs, further stating that after setting aside the sale deed dated 16.4.1999 regarding the suit land, they be also declared as owners being the legal heirs of Niranjan Singh. 5. Defendant No.3 filed his separate written statement with regard to maintainability of the suit etc and because of pendency of similar litigation with regard to the suit property pending in the Court of Additional Civil Judge (Senior Division), Sri Muktsar Sahib, whereby plaintiffs have already filed a written statement as defendants No.4 and 6 admitting the claim therein. Further,another civil suit titled as “Balwinder Singh and others vs. Mangal Singh” was also pending in the Court of Additional Civil Judge (Senior Division), Sri Muktsar Sahib, for cancellation of sale deed in question and in that suit, present defendants No.1 and 2, who were the plaintiffs, had filed an application under Order 23 Rule 1 of the CPC for withdrawal of the civil suit. On merits, it is admitted that Niranjan Singh was the original owner of the suit land who has since died and denied that he used to remain ill and had lost his senses and mental balance. It was stated that he was in sound disposing mind. The relationship between the parties has also been admitted and rest of the paras of the plaint were denied and prayed that the suit be dismissed with costs. 6. From the pleadings of the parties, following issues were framed:- 1. Whether the suit land was joint Hindu Family coparcenary property in the hand of Niranjan Singh deceased? OPP 2. Whether sale deed No.131 dated 16.4.1999 is null and void, without consideration and without legal necessity? OPP 3. Whether plaintiffs are entitled for possession of 1/3rd share of total land measuring 43 kanals 19 marlas? OPP 4. Whether Niranjan Singh son of Sajjan Singh was mentally fit to execute the disputed sale deed dated 16.4.1999 in favour of Mangal Singh defendant? OPP 5. Whether suit is not maintainable? OPD 6. Whether plaintiffs have not approached the Court with clean hands and concealed the material facts? OPD 7. OPP 4. Whether Niranjan Singh son of Sajjan Singh was mentally fit to execute the disputed sale deed dated 16.4.1999 in favour of Mangal Singh defendant? OPP 5. Whether suit is not maintainable? OPD 6. Whether plaintiffs have not approached the Court with clean hands and concealed the material facts? OPD 7. Whether the plaintiffs have not affixed the proper Court fee? OPD 8. Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD 9. Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD 10. Whether suit is within the period of limitation? OPD 11. Relief. 7. After hearing learned counsel for the parties and after considering the oral as well as documentary evidence on record adduced by both the parties, trial Court dismissed the suit vide judgment and decree dated 30.4.2012. 8. Feeling aggrieved from the judgment and decree of the trial Court, plaintiffs filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 19.2.2014. 9. While dismissing the appeal, lower Appellate Court affirmed the findings that the sale deed in question was duly executed and registered for a valid consideration and was not the result of any kind of fraud or misrepresentation. Moreover, the sale of the land in question was effected by Niranjan Singh for legal necessity. The Court found that the plaintiff/appellants have failed to prove that the said sale deed was the result of fraud and misrepresentation. The Court further found that the suit was also hit by the principle of Order 2 Rule 2 of the CPC as they were also party in the previous suit challenging the sale deed in question and was dismissed vide judgment (Ex.D8). It was further found that in the instant appeal, appellants could not prove that the property in dispute is Joint Hindu Family Coparcenary and ancestral property and the property in question has been held as self-acquired property in the hands of Niranjan Singh and that the sale deed could have been challenged within three years from its execution and thus, the suit which was filed on 20.11.2005 was beyond the limitation. 10. 10. Still not satisfied, plaintiffs have filed the instant appeal submitting that following substantial questions of law arise in this appeal:- i. Whether as described by Mitakshara School of Hindu Law and a Commentary of Sir Dinshaw Fardunji Mulla on Hindu Law, if a self-acquired property in the hands of a person devolves upon his son by way of succession does not become ancestral property in hands of inheriter qua his sons/legal heirs? If so; ii. Whether such person inheriting self-acquired property of his father by way of succession is entitled to alienate the same, if he had legal heirs/sons, without consent of his legal heirs/sons and without legal necessity? iii.Whether onus to prove legal necessity for selling land was not upon defendant Mangal Singh that he failed to discharge? iv.Whether without adducing any evidence to effect that the amount of sale consideration was actually passed, the sale transaction can be declared valid in favour of the vendee, particularly? 11. Learned counsel for the appellants has vehemently argued that Niranjan Singh, father of the parties, had inherited the suit property by way of succession from his father Sajjan Singh and not by survivorship. As such, the property in dispute became ancestral in the hands of Niranjan Singh and he was not entitled to alienate the said property in any manner, contrary to the provisions of Sections 6, 8 and 30 of the Hindu Succession Act, 1956 (for short “the Act”). However, both the Courts below have erred in appreciating the legal position with respect to character of property in dispute and has wrongly held that the said property is not an ancestral property in the hands of Niranjan Singh. 12. Learned counsel for the appellants has further argued that the suit property became ancestral qua legal heirs of Niranjan Singh who acquired interest in the said land by birth and thus, Niranjan Singh was not entitled to alienate the suit land in any manner without consent of his legal heirs and without any legal necessity. Counsel for the appellants has also argued that the Courts below have further erred in law while not distinguishing coparcenary property and ancestral property. It is his further argument that coparcenary property devolves by way of survivorship whereas ancestral property devolves upon a legal heir by succession on the death of holder of the property. Counsel for the appellants has also argued that the Courts below have further erred in law while not distinguishing coparcenary property and ancestral property. It is his further argument that coparcenary property devolves by way of survivorship whereas ancestral property devolves upon a legal heir by succession on the death of holder of the property. According to the counsel for the appellants, both the Courts below have ignored the position of law that once a holder of self-acquired property dies leaving behind his son or any other legal heir in the absence of any testamentary document that legal heir shall inherit property of his father by succession, the said property will assume the character of ancestral and if the inheritor is a son, he will constitute a coparcenary with a son. According to the learned counsel for the appellants, the judgments delivered by both the Courts below have held that the suit property is not a coparcenary property, whereas, the appellants have specifically pleaded that the suit property is ancestral and Joint Hindu Family Property which is distinct from that of coparcenary property. The appellants have nowhere claimed that the suit property is coparcenary property, but had claimed that the property is ancestral at the hands of Niranjan Singh qua them. However, both the Courts below have erred in not distinguishing the character of property and considering it as ancestral and have considered the ancestral property a synonym of coparcenary property. 13. Suffice is to say that even if the property in hand is ancestral at the hands of Niranjan Singh qua appellants, still they have no locus standi to file the instant suit claiming their right in the suit property as it is not in dispute that under Section 6 of Hindu Succession Act, 1956, a female has no right in the ancestral property and right of inheritance has been recognized and inserted in Section 6 of the Act, in favour of daughters w.e.f. 9.9.2005, wherein it has been specifically mentioned that alienation of ancestral property made prior to 20.12.2004 cannot be reopened. Admittedly, in the instant case, the sale deed in question was executed on 16.4.1994 i.e. much prior to the amended law. 14. In view thereof, argument as raised, does not arise and is liable to be rejected. 15. No other argument was raised. 16. Thus, no substantial questions of law, as raised, arise in this appeal. Admittedly, in the instant case, the sale deed in question was executed on 16.4.1994 i.e. much prior to the amended law. 14. In view thereof, argument as raised, does not arise and is liable to be rejected. 15. No other argument was raised. 16. Thus, no substantial questions of law, as raised, arise in this appeal. Dismissed.