Anshul Singhal vs Swarna Devi

Rajiv Sharma, J.—This Regular Second Appeal has been instituted against judgment and decree dated 8.3.2013 passed by learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 14-CA/13 of 2010.

"Key facts" necessary for adjudication of the present appeal are that appellant/plaintiff (herein after referred to as ''plaintiff'' for brevity sake) has filed a suit against the respondents/defendants (herein after referred to as ''defendants'' for brevity sake) for declaration to the effect that release deed No. 140 dated 19.6.1990 executed by his father defendant No. 2 (Dinesh Chand), as per array of parties in original civil suit, in favour of defendant No. 1 Shri Kuldeep Chand (since deceased) represented through his legal heirs of land comprised in Khewat/Khatuani No. 109/186, 187, 188, Khasra No. 1951, 1957, 1960 and 1963 measuring 1056.31 sq mtrs situate at Mauza Nahan, District Sirmaur, Himachal Pradesh (herein after referred to as ''suit property'' for brevity sake), is wrong, illegal, null and void. Plaintiff has averred that the suit property in the hands of his father was joint Hindu family and coparcenary property in which plaintiff has 1/48th share being son of defendant No. 2. He also averred that the relinquishment deed was got prepared and executed in his favour by defendant No. 1 by exercising undue influence and providing liquor whereas defendant No. 2 being Hindu coparcener could not have relinquished the suit property.

Suit was contested by defendant No. 1 alone, by filing written statement. He denied that suit property in the hands of defendant No. 2 (Dinesh Chand) was Hindu family and coparcenary property. According to him, suit property in the hands of defendant No. 2 was self-acquired property and plaintiff was not a coparcener.

Learned Civil Judge (Junior Division) framed issues on 1.6.2005. He dismissed the suit and plaintiff filed an appeal before the District Judge, who also dismissed the same on 8.3.2013, hence, this Regular Second Appeal.

Ms. Shashi Kiran, Advocate, on the basis of substantial questions of law framed, vehemently argued that the property in the hands of defendant No. 2 was coparcenary property. She also contended that the relinquishment deed No. 140 dated 19.6.1990 was illegal and void.

Plaintiff while appearing as PW-1 has admitted that when the suit was filed his father was very much alive. He was in his senses and also in perfect health. PW-2, Dharam Singh has led his evidence by filing affidavit Ext. PW-2/A. He had seen the original record of deed No. 140 dated 19.6.1990 in the office of Sub Registrar Nahan and also seen the certified copy of the deed No. 140 dated 19.6.1990, which was prepared from the original record.

PW-3 Naginder Thakur has deposed that he prepared the deed of Shri Dinesh Chand in favour of Kuldeep Chand regarding relinquishment of property and the original record was available in the office of Sub Registrar Nahan. He has admitted in his cross-examination that defendant No. 2 has got executed relinquishment deed out of his free will and it was dictated to him. He also stated that he had read over the contents of Ext. PW1/B to defendant No. 2 and he admitted the same to be correct.

Defendant No. 2 Dinesh Chand has neither appeared in the Court nor has challenged the relinquishment deed Ext. PW1/B. The will was executed by Shanti Swaroop, grandfather of the plaintiff, in favour of his son defendant No. 2 and it was given effect vide mutation Ext. PW-1/C and PW1/D i.e. Jamabandi for the year 1988-89 and Misal Hakiyat Bandobast Jadid. PW-1 has admitted in his cross-examination execution of will in favour of his father by his grandfather. The will was never challenged by the plaintiff. Thus, it can not be held that property in the hands of defendant No. 2 was coparcenary property. The relinquishment deed has been duly proved on record.

It is settled law by now that an ancestral property ceases to be ancestral if it comes into the hands of an owner otherwise than by descent or by reason merely of his connection with the common ancestor. Other such means amount to acceleration of succession. In order to constitute a coparcenary property, it is essential that property comes into the hands of a male descendant through descent and not by other mode. Suit property in the hands of defendant No. 2 was a self acquired property.

This Court in case RSA No. 252 of 2002 titled as AIR 2009 HP 13 , has held as under:

" 18. In view of the detailed discussion made hereinabove, it is held that the property which the defendants have received from their father Sh. Shiv Lal is neither ancestral nor coparcenary property. Since the property has been received by Sh. Shiv Lal from his father Sh. Ram Nath by way of Will, the property is not coparcenary. Sh. Shiv Lal has rightly bequeathed his property by way of Will. Ex. DW-8/A and gift deed x. DW-8/B. Whether the property in question constitutes ancestral/coparcener property is a question of fact and both the Courts below have given concurrent findings with regard to the nature of the property."

In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.