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2021 DIGILAW 463 (RAJ)

Mohanlal v. Hanuman Singh

2021-02-23

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal is directed against the judgment and decree dated 3/4/2019 passed by the Addl. District Judge, Jodhpur District, whereby, the suit filed by the plaintiffs for cancellation of sale deed dated 31/12/2009 and for injunction has been dismissed. 2. The suit was filed by the plaintiffs inter alia with the submissions that the land ad measuring 22 Bigha 7 Biswa is situated in village Pipar City, which was ancestral property of plaintiffs and defendant nos. 2 to 9; the land was earlier recorded in the name of Ram Sukh. After the death of Ram Sukh, by mutation no. 962, the same was recorded in the name of his three sons, Kanhaiya Lal, Har Narain and Heeral Lal; the plaintiffs and defendant no.3 are children of Kanhaiya Lal and defendant nos. 4 to 6 are grand children of Kanhaiya Lal, whereas, defendant nos. 7 & 8 are daughters of Kanhaiya Lal. It was claimed that the land recorded in the name of defendant no.2 - Kanhaiya Lal, their father, was jointly owned by the plaintiffs and defendant nos. 2 to 8 being ancestral and each had l/8th share; the property had not been partitioned and the defendant no. 2, their father, without consent from the plaintiffs and other co-tenants had transferred the entire land to defendant no.1, Hanuman Singh, on 31/12/2009, which transfer was void qua the plaintiffs and other defendants - co-tenants. It was prayed that the sale deed dated 31/12/2009 be partly cancelled to the extent of plaintiffs' share and they be not dispossessed from the land in question. 3. Written statement was filed by defendant no.1 disputing the averments made in the plaint. It was indicated that the disputed land was not joint, the defendant no.2 - Kanhaiya Lal has transferred his share to him. Father of defendant no.1, Heera Lal, is co-tenant of the land in question and that the transfer is for consideration and during the life time of Kanhaiya Lal his sons & daughters cannot seek partition and, therefore, the suit be dismissed. 4. Defendant nos. 2 to 8 other than defendant no.7 also filed written statement and contested the averments made by the plaintiffs. 5. Based on the pleadings of the parties, the trial court framed three issues. On behalf of the plaintiff, four witnesses were examined and three documents were exhibited. 4. Defendant nos. 2 to 8 other than defendant no.7 also filed written statement and contested the averments made by the plaintiffs. 5. Based on the pleadings of the parties, the trial court framed three issues. On behalf of the plaintiff, four witnesses were examined and three documents were exhibited. On behalf of the defendants, defendant no.1 appeared as D.W.I. 6. The trial court after hearing the parties, decided the issue no.1 & 2 together and came to the conclusion that from the Jamabandi (Ex.1 & 2), it was apparent that the land in question was standing in the name of plaintiffs' father, Kanhaiya Lal and his brothers. Ex.1 indicated the land in the name of Ram Sukh, father of Kanhaiya Lal and Ex.2 indicated the land in the name of Kanhaiya Lal, Har Narain and Heera Lal, sons of Ram Sukh and as Kanhaiya Lal, recorded khatedar, has transferred his share to defendant no. 1 - Hanuman Singh, who is son of co-tenant, Heeral Lal and from the documents it was apparent that Kanhaiya Lal was owner to the extent of l/3rd share, which was received by him on death of his father Ram Sukh, the same was his self acquired property and as the plaintiffs had failed to prove that the disputed land was ancestral land, Kanhaiya Lal had the right to transfer the property and, therefore, the plaintiffs were not entitled to seek cancellation of sale deed and for grant of injunction and consequently dismissed the suit. 7. Learned counsel for the appellants made submissions that the trial court was not justified in coming to the conclusion that the land in question was self acquired property of Kanhaiya Lal. It was submitted that admittedly the land stood in the name of Ram Sukh, grand father of plaintiffs and it was the specific case of the plaintiffs that the land initially belonged to Chotha Ram, father of Ram Sukh and as such in the hands of Kanhaiya Lal, their father, the same was ancestral in nature and, therefore, the plaintiffs had share in the suit property, which could not have been transferred by Kanhaiya Lal alone and, therefore, the trial court committed error in dismissing the suit. 8. Learned counsel for the respondents supported the impugned decree. 8. Learned counsel for the respondents supported the impugned decree. It was submitted that though the plaintiffs claimed the land to be ancestral, however, they failed to prove the same inasmuch as from Ex.1 and 2 it was apparent that the land in question belonged to Ram Sukh and on his death it was succeeded by his three sons and in their hands the same was self acquired property and, therefore, Kanhaiya Lal had the right to transfer the suit property, therefore, the judgment impugned passed by the trial court does not call for any interference. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as the record of the trial court. 10. The suit was filed by the plaintiffs by claiming the land in question as ancestral property. Para 3 of the plaint inter alia reads as under: 11. A perusal of the above would indicate that it was the specific case of the plaintiffs that the land initially belonged to Chotha Ram and same was succeeded by Ram Sukh, plaintiffs' grand father and on the death of Ram Sukh the same was succeeded by Kanhaiya Lal, plaintiffs' father, Har Narain and Heera Lal, plaintiffs' uncles. The said plea raised in para 3 of the plaint was resisted by the defendants by indicating that the land in question was owned by Kanhaiya Lal, Har Narain and Heera Lal, which is evidenced by Jamabandi of Samvat year 2031 - 2034 and rest of the averments were denied being incorrect. 12. The documentary and oral evidence, which was led by the plaintiffs - appellants, comprised of two Jamabandi, which were filed as Ex.1 and Ex.2, while Ex.1 pertained to Jamabandi of Samvat year 2031 to 2034, the same indicated Ram Sukh as the tenant and Ex. 2 Jamabandi for Samvat year 2052 - 2055 indicated Kanhaiya Lal, Har Narain and Heera Lal as khatedar tenants of the land in question. 13. Once the case of the plaintiffs, as noticed hereinbefore, was specific that the land in question initially belonged to Chotha Ram, their great grand father, it was necessary for the plaintiffs to substantiate the same by way of evidence. 13. Once the case of the plaintiffs, as noticed hereinbefore, was specific that the land in question initially belonged to Chotha Ram, their great grand father, it was necessary for the plaintiffs to substantiate the same by way of evidence. The documents, as noticed hereinbefore, indicated the land belonging to Ram Sukh, their grand father only and even in the oral evidence led by the plaintiffs, no indication in this regard was made. Further even the defendants, who appeared in the witness box, even they were also not cross examined on the aspect of land belonging to Chotha Ram and Ram Sukh succeeding to the same. 14. In view thereof, the finding of the trial court that the land in question was owned by Ram Sukh and the same was succeeded by his three sons, Kanhaiya Lal, Har Narain and Heera Lal cannot be said to be beyond the record and/or perverse in any manner. In fact, the plaintiffs have failed to prove that the land in question belonged to Chotha Ram and was succeeded by Ram Sukh and then by Kanhaiya Lal and his brothers. 15. The law on the nature of property in the hands of those succeeding under Section 8 of the Hindu Succession Act, 1956 ('the Act, 1956') has been laid down by Hon'ble Surpeme Court in Commissioner of Weath Tax vs. Chander Sen & Ors. : (1986) 3 SCC 567 , wherein, it was inter alia laid down as under: "22. In view of the preamble to the Act, i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family.............It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and visa-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc." Similarly, in Yudhishter vs. Ashok Kumar : (1987) 1 SCC 204, it was held as under: "10. This question has been considered by this Court in CWT v. Chander Sen, where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become 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 part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited 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. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th edn. pages 924-26 as well as Mayne's Hindu Law, 12th edn. Pages 918-19. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th edn. at pages 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th edn. page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th edn. page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." 16. In view of the law laid down by the Supreme Court in the case of Chander Sen (supra) and Yudhishter (supra), it is apparent that the property, which belonged to Ram Sukh, who admittedly died in testate, devolved on Kanhaiya Lal, Har Narain and Heera Lal and in their hands the same was self acquired property and, therefore, Kanhaiya Lal could have dealt with the property in the manner he liked and the transfer made by him cannot be said to be void, as alleged, and, therefore, the findings recorded by the trial court cannot be faulted. 17. In view of the above discussion, the appeal filed by the appellants has no substance and the same is, therefore, dismissed.