Mewa Singh and Others vs Sampuran Singh

R.L. Anand, J.—This is a defendant''s appeal and has been directed against the judgment and decree dated 9.9.1999 passed by Addl. District Judge, Ludhiana, who affirmed the judgment and decree dated 31.5.1993 passed by Addl. Senior Sub Judge, Jagraon, who decreed the suit of the plaintiff-respondent Sampuran Singh for joint possession in the suit property.

Some facts can be noticed in the following manner :-

Sampuran Singh plaintiff filed a suit for declaration that the sale-deeds dated 24.1.1983 and 7.2.1983 executed by his father in favour of his other son Udham Singh, defendant No. 2 and sale-deeds dated 24.1.1983 and 7.2.1983 executed in favour of third son Chamkaur Singh, defendant No. 3, are null and void and do not effect his co-parcenary interest in the suit property situated within the revenue limits of village Sudhar, fully described in the head-note of the plaint. He pleaded in the plaint that he is the son of defendant No. 1 from his previous wife Rattan Kaur, who has since expired.

Defendants No. 2 and 3 are the sons of defendant No. 1 from his second wife Gurdev Kaur, who is still alive. The parties to the suit are governed by Hindu Law as applicable to the Jat Sikhs in the State of Punjab and as such constitute a co-parcenary body. It has been further pleaded that defendant No. 1 inherited 59 kanals 12 marlas of land out of the land in suit from his father Partap Singh which served as nucleous for the joint income of the Hindu family of which Mewa Singh is the Karta and with those joint funds be purchased 7 kanals 18 marlas of land and threw it on the common stock. The entire suit land measuring 67 kanals 18 marlas in this manner became a joint Hindu family ancestral property and it could not be alienated by defendant No. 1. It has been further pleaded that in order to defeat the claim of the plaintiff in the co-parcenary property, defendant No. 1 in connivance with defendants No. 2 and 3 with mala fide intention executed four sale-deeds in favour of defendants No. 2 and 3 whereby defendant No. 1 sold his entire share in the land measuring 15 kanals 12 marlas and his 1/2 share n the land measuring 15 kanals 12 marlas alleged to have been purchased by the funds of the joint family. The plaintiff has thus challenged the validity of the said sale-deeds on the ground that these have been purchased by the funds of the joint family. The plaintiff has thus challenged the validity of the said sale-deeds on the ground that these have been executed without consideration and against the benefit of the estate and this has been done in order to deprive the plaintiff of his share in the suit property as he is the son of the previous wife of defendant No. 1. It has been further pleaded that the plaintiff came to know about the execution of the sale-deeds somewhere in the month of November, 1987 and then he approached the defendants to get the sale-deeds cancelled but to no effect. Hence the suit.

The suit was contested by the defendants. A preliminary objection was taken that the plaintiff has no locus standi to file the suit; that the suit is not maintainable in the present form; that the suit has not been properly valued for the purposes of Court fee and jurisdiction; that the plaintiff is estopped by his act and conduct from filing the present suit and that the suit is barred by limitation. It was also pleaded that defendants No. 2 and 3 are the bona fide purchasers for valuable consideration and they are protected u/s 41 of the Transfer of Property Act. On merits, it was denied that the parties are not governed by Hindu law and it is not applicable to the Jat Sikhs of Punjab. The concept of co-parcenary and Karta etc. is not known to the Jat Sikhs. The parties are governed by custom applicable to the Jat of Punjab in the matter of alienation and succession. According to the custom prevalent amongst the Jats of Punjab a land holder remains absolute owner of the property held by him and his sons and grand-sons and great grand-sons etc. do not acquire any interest therein merely by virtue of birth. They succeed to the property only after the death of the land holder and during his life time the land holder remains absolute owner of the property held by him with absolute powers of alienation and disposition. It was also pleaded by the defendants that the plaintiff cannot say that the property held by defendant No. 1 is also open to challenge by him or by his other son. It was denied that the property inherited by Mewa Singh from his father was joint Hindu co-parcenary property. Rather it is pleaded that it was absolute property of defendant No. 1 and it cannot serve as nucleus for joint income of the family. It is admitted that defendant No. 1 executed four sale-deeds in favour of defendants No. 2 and 3 as he was absolute owner of the same and he had the right to do so. The story set up by the defendants is that in January, 1964, Gurdev Singh the only son of Joginder Singh brother of defendant No. 1 died in an accident and at the time of his death he had an expectant wife namely Mukhtiar Kaur, who gave birth to a female child. Joginder Singh, father of Gurdev Singh, deceased, along with his wife Basant Kaur, in order to save Mukhtiar Kaur and newly born daughter, adopted the plaintiff as their son. The customary ceremonies of adoption were performed in the village in the presence of respectables and relatives and by virtue of this Joginder Singh and his wife Basant Kaur, who started treating the plaintiff as their adopted son and likewise plaintiff started treating them as his adopted father and mother. By virtue of this adoption, plaintiff ceased to have any right including the right of in-heretance in the family of defendant No. 1. Thus on this account also it is pleaded that the plaintiff cannot challenge the alienation made by defendant No. 1.

The plaintiff filed a re-joinder to written statement in which he reiterated the allegations made in the plaint by denying those of the written statement and from the above pleadings of the parties, the following issues were framed by the learned trial Court :-

Whether the properties in suit is joint Hindu family co-parcenary property of the parties? OPP

Whether the family of Mewa Singh is governed by custom in the matter of alienation and adoption? OPD

Whether the suit is properly valued for the purposes of Court fee and jurisdiction? OPP

Whether the suit is within time? OPP

Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD

Whether the defendants Nos.2 and 3 are bona fide purchasers for consideration and are protected u/s 41 of the Transfer of Property Act? OPD

Whether the plaintiff has been validly adopted according to custom by Joginder Singh, as alleged, if so, its effect? OPD

Whether the sale-deeds dated 24.1.1983 and 7.2.1983 are void, illegal and do effect the interest of the plaintiff? OPP (Onus objected to).

Relief.

The parties led oral and documentary evidence in support of their respective cases and under issues No. 1 and 2 it was held by the trial Court that the property in question are joint Hindu family coparcenary property of the parties and the parties are not governed by custom. Rather they are Hindus and are governed by Hindu Succession Act. Issues No. 3 to 8 were decided against the defendants and it was even held that the plaintiff was never adopted by Joginder Singh and his wife Basant Kaur. Ultimately the suit of the plaintiff was decreed.

Aggrieved by the judgment and decree of the trial Court, the defendants filed the appeal and the same was also dismissed vide judgment and decree dated 9.9.1999 for the reasons given in paras 11 to 19 of the judgment and now aggrieved by the judgment and decree of the first appellate Court, the present Regular Second Appeal, which I am disposing of with the assistance rendered by Mr. M.L. Saggar, the learned counsel for the appellants.

Before I deal with the submissions raised by the learned counsel for the appellants, it will be appropriate for me to incorporate paras 11 to 19 of the judgment of the first Appellate Court as it would suffice and give a clear picture as to how the suit of the plaintiff was decreed and whether the plaintiff was granted any excess relief or not. The said paras read as follows :-

"11. The learned counsel for the appellants assailed the findings on issues No. 1 and 2 as erroneous. According to him, the parties are jats and they do not form coparcenary. They ever (were never ?) joint in mess, worship and business. They are not governed by Hindu Law regarding their alienation and succession. It is further contended that the parties had succeeded under custom whereunder the land holder is absolute owner of the property and his sons or grandsons do not acquire any interest merely by virtue of their birth. He also contended that rule of survivorship does not apply in the present case as such the alienation by defendant No. 1 is immune from challenge. He further contended that there is no evidence on the file that the land measuring 7K-16M was purchased with the joint Hindu family coparcenary funds but this much land is self-acquired property of the defendant No. 1. He further contended that the property was devolved by succession and not by survivorship.

Firstly, it is to be seen whether the suit property is joint Hindu coparcenary property. The Joint Hindu family is purely a creature of law and cannot be act of the parties. There is presumption of Joint Hindu family between father and sons. Further ancestral property is property of male Hindu in which his male issue i.e. sons, grand-sons and great grand sons acquire interest by birth. In the present case the property in dispute was originally owned by Ghulla. The pedigree tables Ex. P1 and Ex. P5 show that originally the property was owned by Ghulla and after Ghulla, his two sons namely Deva Singh and Dalel Singh succeeded the said property and after death of Deva, the property was succeeded by Charan Singh and after Charan Singh it was inherited by Partap Singh. After the death of Partap Singh the ancestral property came into the hands of Mewa Singh. Thus the pedigree table shows that the property was inherited by survivorship. As a male got his interest by birth so the property in dispute is ancestral property and joint Hindu family coparcenary property.

Thus the land measuring 59K.-12M came to appellant No. 1 by survivorship from his father Partap Singh. Now coming to the land measuring 7K-16M, it is contended by learned counsel for the appellants that since it is purchased with his own funds by appellant No. 1, so it cannot be taken as common ancestral property. There is overwhelming evidence on the file to show that the land measuring 7K.-12M was purchased by Mewa Singh from the income of the ancestral land measuring 59K-12M. The appellant had failed to prove that the family had any other source of income for purchasing land measuring 7K-16M. Even Bhag Singh DW4 the witness produced by appellant has admitted that the entire suit land was ancestral in his favour.

Regarding new acquisition the contention of respondent/plaintiff is supported by law laid down in A.I.R 1959 S C 906 and K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, . In both these authorities it was held that when a Karta/member of Joint family made an acquisition of property without any independent source of income then presumption arises that new acquisition was joint family property. These authorities are fully applicable to the facts of the present case. Therefore, on the basis of above discussion it was rightly held that entire suit land 67K-12M is Joint Hindu coparcenary property.

Now the next question arises which law is applicable for the governing of the Hindu coparcenary property. The parties are Jat Sikhs. Sections 2 & 4 of the Hindu Succession Act reads as under :-

"Section 2 of the Hindu Succession Act:

(a) to any person, who is a Hindu by developments including a Virashaiva a Lingyat or a follower of the Brahmo, Prathana or Arya Samaj.

(b) to any person who is a Budhist, Jain, or Sikh by religion; and

(c) to any person who is not a Muslim, Christian, Parsei or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law by any custom or usage as part of the law in respect to any of the mattes dealt with herein if this Act has not been passed.

Section 4 of the Act reads as under :-

Save as otherwise expressly provided in this Act :

(a) Any text rule of interpretation of Hindu Law or any custom or usage or part of that law in force immediately before commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act, shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act;

For the removal of doubts, it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural, holding or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings."

As per Section 2 of the Hindu Succession Act, the Sikhs are Hindus and thus Hindu Law will apply to Sikh Jats.

In (1976)78 P L R 342, Pritam Singh v. The Assistant Controller of Estate Duty, Patiala, it was held that it is undisputed that for purposes of Hindu Succession Act the Sikhs are Hindus and their personal law is Hindu Law. Consequently, the personal law i.e. Hindu Law will apply to the Sikh Jats in matters of succession unless a custom at variance with the Hindu Law is alleged and proved. If the parties are governed by their personal law and the mere fact that there has been a departure from personal law in one respect it does not necessarily follow that the personal law has been abrogated.

The bare perusal of the above shows that after coming into force of the Hindu Succession Act, by virtue of its Section 4, the Punjab Agriculture custom so far as it was applicable to Hindus in matters of succession has been completely abrogated. Now all the Hindus as defined in Section 2 of the ibid Act in mattes of succession are governed by Hindu Law and the provisions of Hindu Succession Act, 1956. The Hindu Succession Act has not abolished joint Hindu family and the joint Hindu family property and it does not interfere with the special rights of those who are members of a Mitakshara coparcenary except in the manner and to the extent mentioned in Section 6 and 30 of the ibid Act.

Thus the parties are governed by Hindu Law in the matter of succession. Thus there is presumption under the Hindu law that Hindu Family is joint and joint status continues and does not cease to be joint and undivided merely because its members are not joint either in mess or worship. Thus there is no force in the contention of learned counsel for the appellant that the respondent is living separately and has separate mess so joint family ceases to exist. Moreover the appellants failed to prove by cogent evidence that they are governed by custom in matters of alienation. Thus after coming into force the Hindu Succession Act, the contention of the learned counsel for the appellant that parties are still governed by custom is without any force. In Babru Vs. Basakha Singh and Others, it was held in para No. 8 as under :-

"Joint Hindu Family and Joint Hindu Family property. This concept is not abolished. In no manner interferes with the special rights of those who are members of the Mitakshara coparcenary except in the manner and to the extent mentioned in Sections 6 and 30".

This authority is fully applicable to the facts of the present case. Therefore the learned trial Court has rightly decided issue No. 1 and 2 in favour of the plaintiff.

The learned counsel for the appellant assailed the findings of issue No. 6 as erroneous. The perusal of the evidence on the file shows that the appellant has badly failed to prove that the alienation made by defendant No. 1 in favour of defendants No. 2 and 3 was for the legal necessity, there is nothing on the file to show that the alienation was made to clear the debts or for the welfare of the coparcenary property. There is overwhelming evidence to show that not even single penny was paid before the Sub-Registrar at the time of registration of the sale deeds. Defendants No. 2 and 3 sons of defendant No. 1 have also failed to prove their source of income for making the payment of Rs. 84,000/- to defendant No. 1. The attesting witnesses of the receipts Ex.D5 and Ex.D6 stated that nothing was paid in their presence. The sale deeds are also silent regarding any necessity for alienating coparcenary property. Keeping in view the evidence on the file the trial Court has rightly decided this issue in favour of the plaintiff."

Now I would like to clear a myth which was prevailing in the mind of the learned counsel appearing on behalf of the appellants when he raised argument at the motion stage. It is true that the plaintiff filed a suit for declaration that the registered sale-deeds executed by defendant No. 1 in favour of defendants No. 2 and 3 are void, illegal and these sale-deeds do not effect his coparcenary interest in the suit land measuring 67 kanals 18 marlas described in the head-note of the plaint and the plaintiff also sought a decree for joint possession to the extent of 1/4th share. But we have to see what relief was granted to the plaintiff. The trial Court never granted a declaration to the plaintiff nor possibly it could be that he is entitled to joint possession to the extent of 1/4th share because second wife of Mewa Singh is still alive. It was not a suit for partition by the plaintiff nor possibly it could be so during the life time of his father Mewa Singh. In fact, the suit of the plaintiff was that he is a coparcener and constitutes a coparcenary with his father and two step brothers and he has a right in the property by birth and, therefore, he is entitled to challenge the sale-deeds executed by defendant. No. 1 in favour of defendants No. 2 and 3 because those sale-deeds are putting cloud on the coparcenary rights of the plaintiff in the ancestral property and those sale-deeds do not confer any valid title in favour of defendants No. 2 and 3 as these have been executed neither for legal necessity nor for the benefit of the estate nor for any consideration. Moment the relief is granted to the plaintiff to the effect that the property in the hands of defendant No. 1 was coparcenary and the sale-deeds are not binding, in such a situation the plaintiff becomes the member of the coparcenary and he gets the right to file a suit for declaration.

The principal argument which was raised by the learned counsel for the appellants is that the parties in this case are Jat Sikhs and they are governed by custom. The concept of Hindu Coparcenary is unknown to the Jat Sikhs and, therefore, the provisions of Hindu Succession Act are not applicable to the facts in hand. The learned counsel submitted that the Courts below have placed reliance upon the judgment of Full Bench reported as (1976)78 P.L.R. 342, Pritam Singh v. The Assistant Collector of Estate Duty, Patiala. He also submitted that there is one more judgment reported as (1976)78 P.L.R. 311, Labh Singh v. Estate Officer, to the similar effect But the judgment of Labh Singh''s case (supra) has been referred to the larger Bench in R.S.A. No. 2134 of 1982 titled ''Harminder Singh v. Hardial Singh, and the said reference is still pending. Therefore, it is a fit case which should be admitted for hearing in depth till the decision of the larger Bench comes. In my opinion, this argument is only for the sake of dragging the issue and nothing more. With the coming into force of Hindu Succession Act and by virtue of the provisions of Sections 2 and 4 of this Act, there is no ambiguity now left that Jat Sikhs who are Sikhs by religion and who follow Guru Granth Sahib in the performance of their marriages etc. are now governed by the Hindu Succession Act. Any custom or usage which was in force immediately before the commencement of this Act ceases to have any effect with respect to any matter for which the provisions are made in the present Act itself and in these circumstances with the introduction of the Hindu Succession Act, every Sikh, whether he is a Jat Sikh or non-Jat Sikh, in the matter of succession, marriage or adoption etc. will be considered as Hindu like a clean shaven Hindu.

It was then submitted by the learned counsel for the appellants that the plaintiff ceases to be a member of the Joint Hindu Family, moment the plaintiff was adopted by Joginder Singh and Basant Kaur on the death of their son Gurdev Singh, who left behind Mukhtiar Kaur who was expecting a child. According to the appellants, the moment the plaintiff was transplanted in the family of Jogidner Singh, the brother of Mewa Singh, the plaintiff ceased to be the member of the coparcenary of their family and, therefore, he has left no interest in the coparcenary property, if any. This argument is again misconceived and misplaced. Before the defendants could succeed on this argument, if they have challenged the findings on this issue before the first Appellant Court. Before the first Appellate Court findings of issues No. 1, 2 and 6 were only challenged. The findings on issue No. 7 were never assailed by the defendants before the first Appellant Court. Still I would like to deal with the argument which has been raised. There is no evidence on the record that after the date of alleged adoption, the father''s name of the plaintiff has been changed from Mewa Singh to Joginder Singh. The plaintiff has proved on record the ration-card and voter-list in which the father''s name of the plaintiff has been shown as Mewa Singh, so much so in the pass-book regarding his account in the co-operative society father''s name of Sampuran Singh plaintiff is Mewa Singh. Finally the plaintiff has proved on record Ex. PX, the sale-deed executed by Partap Singh, his grand father, in favour of Mukhtiar Kaur with whom the plaintiff entered into Karewa marriage. In this document also the name of the father of the plaintiff has been shown as Mewa Singh. When there is no evidence of giving and taking adoption as required under the Hindu Adoptions and Maintenance Act, how there can be a valid adoption. At the time of alleged adoption the plaintiff was about 20 years of age and as per Section 10 of the Hindu Adoptions and Maintenance Act a person who had completed the age of 15 years could not be adopted. In this view of the matter, there is no satisfactory proof that the plaintiff was ever adopted by Joginder Singh. In such a situation the plaintiff continues to be a member of the joint Hindu family headed by Mewa Singh and if Mewa Singh, defendant No. 1, had any coparcenary ancestral property, Sampuran Singh plaintiff has the interest by birth and if Mewa Singh deals the property adverse to the interest of Sampuran Singh, such coparcener can always file a suit for declaration and can challenge the hostile acts and acts of mis-management committed on the part of coparcener or by a Karta.

It was further submitted by the learned counsel that it is not proved on the record that the property in the hands of Mewa Singh was a joint Hindu coparcenary property. In particular the counsel for the appellants invited my attention to the judgment of the first Appellate Court and especially para No. 12 of the same where the following lines :-

"In the present case the property in dispute was originally owned by Ghulla. The pedigree tables Ex. P1 & Ex.P5 show that originally the property was owned by Ghulla and after Ghulla, his two sons namely Deva Singh and Dalel Singh succeeded to the said property and after death of Deva, the property was succeeded by Charan Singh and after Charan Singh it was inherited by Partap Singh and after the death of Partap Singh the ancestral property came into the hands of Mewa Singh. Thus the pedigree table shows that the property was inherited by survivorship. As a male got his interest by birth so the property in dispute is ancestral property and joint Hindu family coparcenary property."

As much capital was made by submitting that in the pedigree table it is not indicated that the properties are inherited................... on the part of the Civil Court to say that the property is not ancestral. Ex.P2 is the jamabandi which carries a presumption of correctness u/s 44 of the Punjab Land Revenue Act clearly indicating that the suit land in the year 1956-67 was owned by Partap Singh son of Charan Singh. This very land in the jamabandi for the year 1981-82 came in the hands of Mewa Singh. The jamabandi for the year 1981-82 is Ex.P3. There is one more jamabandi for the year 1981-82 Ex.P4 which also deals with this very property. The statement of the plaintiff is also to this effect. In these circumstances, it was obligatory on the part of the defendant No. 1 to show that the property in his hands had come from a different source than from his father Partap Singh. Moment it is established that the property in the hands of Mewa Singh came from his father Partap Singh, the sons of Mewa Singh get an interest in the property by birth as co-parcenary/ancestral property and have the right to challenge the alienation, if any made by their father if it is against the alienation, if any made by their father if it is against the norms of Hindu Law i.e. without legal necessity, not for the benefit of the estate and as an act of mis-management.

It was then argued by the learned counsel for the appellants that there is no proof on the record that the land measuring 7 kanals 16 mar las was ever purchased from the nucleous of the joint property by Mewa Singh and in these circumstances to that extent no declaration can be granted to the plaintiff that he has an interest by birth. This argument is again not acceptable to this Court for the reason that once it is alleged and proved by the plaintiff that Mewa Singh had no independent source of income but to thrive on the income of the land held by him which he got from his father, all acquisitions by Mewa Singh with the nucleous of the joint Hindu family property will be considered as joint.

The learned counsel for the appellants further submitted that Partap Singh was the owner of the property as per jamabandi Ex.P2 and according to this document Par-tap Singh was the recorded owner of the land measuring 170 kanals 18 marlas, but in the jamabandi Ex.P3 Mewa Singh has been shown owner of the land measuring 59 kanals 12 marlas and again in the jamabandi Ex.P4 he has been shown owner of 15 kanals 12 marlas and there is no record to show how Mewa Singh become the owner of the land. Moreover the mutation of inheritance of Partap Singh has not been placed on record. This argument is also not acceptable to this Court. If the documents Ex.P2 and P3 are read in conjunction with each other, there is no difficulty in holding that the property in the hands of Mewa Singh was ancestral. The khasra members mentioned in jamabandi Ex.P3 also figure in jamabandi Ex.P2 and so far as the mention in Ex.P4 is concerned, this indicates that 1/2 share of the land measuring 15 kanals 12 marlas was in the name of Mewa Singh. This are is that which the plaintiff alleged that it has been acquired with the funds of joint family. There is not an iota of evidence at all to show that Mewa Singh had his personal source of income so as to acquire any property in his own individual name treating it to be non-ancestral. In this view of the matter, the entire property in the hands of Mewa Singh was ancestral.

Lastly, it was submitted by the learned counsel for the appellants that the suit of the plaintiff for joint possession to the extent 1/4th share was not maintainable because his share in the coparcenary/property was not fixed. The learned counsel for the appellants has not rightly appreciated the relief which has been granted by the Courts below. No doubt, the plaintiff claimed for joint possession to the extent of 1/4th share but the relief which was granted by the trial Court was that the plaintiff has been able to prove that he has a right in the suit property and as such the decree for joint possession in the suit property is granted. His share has not been defined because it can increase and decrease with the increase and decrease of the coparcenary. Even the first Appellate Court has not been granted any additional relief to the plaintiff. So far as the sales made by defendant No. 1 in favour of defendants No. 2 and 3 are concerned, it is proved on the record that the said sales are without any legal necessity and the case of defendants No. 2 and 3 is not protected u/s 41 of the Transfer of Property Act. In fact, no argument was raised on this issue by Mr. Saggar. Be that as it may, I have viewed this appeal from different angles of visions and there is no merit in this appeal. The same is hereby dismissed in limine. I also do not consider it a case of notice of motion. No costs.