Bhoop Singh vs Ram Singh and Others

S.S. Sudhalkar, J.—This Judgment shall dispose of Regular Second Appeals No. 1549 and 1273 of 1979 as the same arise out of the common judgment of learned Additional District Judge, Hissar dated 18.12.1978.

For knowing the relationship of the parties in short, the pedigree table is reproduced as below:-

Jiwan Ram | |--------------|----------------- --------------|-----------------| Mam Chand Rakha Ram Nand Ram Nabha Ram Mukh Ram | Kheta Ram--------------------------- ---------------- | | | | | | Sardha Ram Ganpat Parbhu Dhanna Ganpat Hans Raj Harpat Jai Ram (Def.No.2)(Def.No.3) (Def.No.4)

Pirthi Singh Bhoop Singh (Def. No. 1) |----------------|-------------|-------------------|----------------| Tulsi Ram Bhoora Ram Tota Ram Sada Kaur Data Ram (Plf.No.3) (Plf.No.2) (Plf.No.l-C) |-------------|------------------| Ram Singh DevKaran Lachhman (Plf.No.l) (Plf.No.l-A) (Plf.No.lB)

It is contended that Hans Raj, brother of Ganpat died prior to the institution of the suit and he was unmarried. His, mother had pre-deceased him and his estate was inherited by Ganpat. Ganpat, son of Nanha Ram was defendant in the earlier suit No. 215 of 3.4.1973 decided on 6.4.1973. That suit was filed by Bhoop Singh who is defendant No.1 in the suit and the appellant of Regular Second Appeal No. 1549 of 1979.

Bhoop Singh had filed the said suit against Ganpat for declaration to the effect that he was owner in possession of the property mentioned in the head note of the plaint and on the death of Ganpat hie would become owner of the said suit property and the defendant would be deemed to be owner of the said property from the date of filing of the suit. He had prayed that his name may be mutated in the revenue record. It is also alleged that in that suit that Ganpat had then no brother or sister and was staying with Bhoop Singh. He also contended that Bhoop Singh was rendering service to Ganpat. It is also contended that because of this, Ganpat was very much pleased with him, and six months before he had promised to transfer the said property in favour of Bhoop Singh. It is also contended that Ganpat had promised Bhoop Singh that on the death of Ganpat, he will be deemed to be in possession of the said property. Bhoop Singh had further pleaded that because the intentions of Ganpat changed, be had to file the suit. He also prayed for declaration that he had become owner in possession of the suit property. A certified copy of the plaint has been produced in the suit at Ex.P.1, whereas Ex.P.5 is the decree passed in the suit and it shows that the decree was passed in favour of Bhoop Singh in view of the written statement filed by Ganpat defendant The operative part of the decree is as below:

"it is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owner in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant, in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct. Pleader''s fee fixed Rs. 16/-.

It is further ordered that there is no order as to costs."

As stated earlier, the suit from which this second appeal has arisen was filed against Bhoop Singh and others. For exact position as to the parties it will be seen that respondents No.1 to 8 of R.S.A. No. 1549 of 1979 were the plaintiffs in the suit. Bhoop Singh - the appellant was defendant No. 1. Respondents Prabhu Ram, Danna Ram and Harpat were defendants No. 2, 3 and 4 in the suit. It may be mentioned that Harpat, Defendant No.4 originally did not contest the suit but did file cross-objections against the decree in the appeal before the lower Appellate Court and the cross objections being dismissed has come up in Regular Second Appeal in this Court.

The contention of the plaintiffs is that plaintiffs No. I to 4 had 1/3 share in the suit land and they are in possession of the same as owners and plaintiff No. 5 is the grand- son of Rakha Ram who is real brother of Ganpat deceased and, therefore, has 1/9 share in the suit-land. It is also contended that the decree and the judgment dated 6.7.1973 (in the prior suit) transferring the suit-land is illegal and not binding on the plaintiffs and that previous suit only disclosed that Ganpat had agreed to transfer the rights in favour of Bhoop Singh and if it was Hiba, mere agreement cannot transfer the rights and the suit should have been dismissed. It is also contended that the suit-land was ancestral land and Ganpat had inherited the land from his father and his father had inherited from his grand father, and that as per agriculture custom, the ancestral land cannot be transferred without legal necessity and without the consent of male collaterals.

It is also contended that the value of the suit-land was more than Rs. 100/-and without registration of the property, the rights could not be transferred merely because the decree dated 6.4.1973 had been passed by the competent court. It is also contended that the defendants did not recognize the share of the plaintiffs in the land in suit and started interfering in possession of the plaintiffs and hence this suit for declaration was filed. In the alternative, it is prayed that if the property is believed to be in possession of the defendants, the possession of the same be awarded to the plaintiffs.

Bhoop Singh, defendant No.1, had contested the case of the plaintiffs. The main points of contest were that Ganpat used to reside with defendant No. 1 who used to look after him and, therefore, Ganpat agreed to transfer his ownership in his life time and that it was also agreed by Ganpat that after his death defendant No. 1 shall be deemed to be in possession of the suit-land. Therefore, there does not remain any dispute about the same.

The next contention is that Ganpat had adopted defendant No. 1 according to the custom. It is also contended that before the death of Ganpat, he executed Hiba in favour of defendant No. 1 to avoid any dispute and it, therefore, tantamount to acceleration of succession. The allegation regarding agriculture custom also denied.

The trial Court has held that the defendant Bhoop Singh was not adopted son of Ganpat and that the impugned decree was against law and facts. Other issues regarding maintainability of the suit or suit being time barred or bad for non-joinder necessary parties are not argued in this second appeal.

I have heard parties at length and perused the document produced on record.

At the time of arguments, Shri Mittal learned Senior Advocate has fairly conceded that the lower Appellate Court did not believe the adoption in view of the facts that Bhoop Singh was more than 15 years of age and that he was a married man and Shri Mittal also fairly conceded during his arguments that he does not press the appeal on the ground of adoption. Shri Mittal has argued that he relies on the decree passed in the prior suit. The main point argued by Shri Mittal is, therefore that Ganpat could alienate his property and that he has properly alienated the same. The argument is challenged by Shri Malhotra, learned counsel appearing for the other side. Mr. Mittal has cited before me the case of Smt. Dipo Vs. Wassan Singh and Others, wherein it was held by the Supreme Court that when a last male holder of property died leaving no male issue, no surviving member in joint family to take property by survivorship, therefore, sister of the deceased would be entitled to inherit property of the deceased in preference to collaterals. In Mulla''s principles of Hindu Law (15th Edition), it is stated at page 289 as under:

"If A inherits property, whether movable or immovable, from his father or father''s father, father''s father''s father, it is ancestral property as regards his male issue. If A has no son, son''s son, or son''s son''s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof and he can deal with it as he pleases.....A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son''s sons and son''s son''s sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property. On relying on the above observations, the Supreme Court has held that the defendants were collaterals and as regards them the property was not ancestral property and hence the plaintiff was the preferential heir. He has also relied on the judgment in Arjan Singh Vs. Smt. Pingle Devi and Others, , wherein it was held that the person having no son is competent to alienate ancestral property inherited by him. He has also relied on Treaty of Punjab Customs" by Ratigon''s Digest. The lower Appellate Court has quoted the same and it will be not out of place to repeat the same. The same is as under:

"Alienation in favour of relations between whom and the alienor there is some special tie as by their having been brought up by him or by their being associated with him or by their assisting him in cultivation or rendering him services in the management of the land when he was himself incapable of doing so, are very generally recognised by custom."

I, in view of the above reasons, uphold the arguments of Mr. Mittal on this point.

The question to be considered now is whether the decree required registration or not. If we see scheme of Section 17 of the Indian Registration Act (hereinafter referred to as the Act), u/s 17(2)(vi) decrees of the Court and the compromised decrees regarding the property which is subject matter in suit are exempted. However, reading of the beginning words of Sub-section (2) of Section 17 clearly shows that exceptions made by that Sub-section are regarding the provisions for registering documents mentioned in Section 17(1)(b) and 17(1)(c) of the Act only. It is, therefore, clear that this exemption from registration does not apply to the documents which are covered u/s 17(1)(a) Of the Act. So, however, if the decree in question in the present case is treated to create a gift, then of course it cannot be held to be a valid gift because it is not registered.

The decree itself does not mention whether it is a sale or gift of the immovable property. As per the plaint in the said prior suit Bhoop Singh was rendering service to Ganpat and, therefore, Ganpat having become pleased with him promised to transfer his land to Bhoop Singh. This clearly shows that it was only a compromise to transfer the land because Ganpat was pleased with Bhoop Singh. It was not an agreement to sell the land for consideration of the service rendered. There is also a mention that the possession of certain properties was to be taken on the death of Ganpat and that the provisions being only regarding possession and not ownership it cannot be treated as a will also.

Considering all these circumstances, the nature of the document of the compromised decree would only be that of gift of the immovable property (if it is held that the decree was not collusive) and when decree purported to create a gift then it should have been registered and when it is not registered, no value can be attached to it and this Court will have to ignore the same and it cannot create a right in favour of the decree-holder.

The lower Appellate Court has also held that the impugned decree was a collusive decree with a view to defeat the rights of other heirs who have bonafide claim over the property of Ganpat. I hold that even if it is held that the decree was collusive it would only amount to a substitute for the instrument of transfer (in this case a gift). However then also it requires registration.

Therefore, the impugned decree did not convey any right, title or interest in favour of Bhoop Singh and therefore the subsequent question regarding the property being transferable or not becomes secondary. However, I find that Ganpat being the last male holder and having died issueless and his mother had predeceased him, the principles of the case of Smt. Dipo v. Wassan''s case (Supra) would be applicable and, therefore, there would have been no bar in transferring the property if Ganpat had gifted away the property by registered gift deed. Therefore, the appeal bearing No. 1549 of 1979 filed by Bhoop Singh is without merit and deserves to be dismissed.

Regarding R.S.A. No. 1273 of 1979, it can be seen that the appellant did not contest the suit and did not even support the plaintiffs and thought it proper to abstain from taking part in the suit, and therefore he cannot be given the benefit of the decree. However, if the said appellant i.e. defendant No. 4 has any share in the property of Ganpat as argued, he may, if so advised, file a separate suit for partition and at this stage of second appeal I do considered I find that the lower Appellate, Court was right in dismissing the cross-objections.

In view of the above, both the appeals being without merit are dismissed with costs.