Mohinder Singh and Others vs Karam Singh and Another

N.K. Kapoor, J.—This is defendants'' regular second appeal against the judgment and decree of the Additional District Judge affirming the judgment and decree of the trial Court whereby the suit filed by the plaintiff was decreed.

Briefly put, plaintiff claiming himself to be a member of the Joint Hindu Family challenged the sale deed executed by Harbhajan Singh on the ground that the sale being of coparcenery property and having been executed without consideration, without legal necessity and without any benefit to the estate is null and void and so the same is liable to be set aside and for possession of the land subject matter of the sale deed.

The claim of the plaintiff was resisted by the defendants on a number of grounds, namely, that the plaintiff is not the son of Harbhajan Singh; that the suit property is self acquired property of Harbhajan Singh and the sale deed was made for consideration and was an act of good management.

On the pleadings of the parties, following issues were framed:-

Whether the plaintiff and defendant No. 6 are the members of the Joint Hindu Family property of the suit property and is therefore coparcenary property? OPP.

Whether the sale deed dated 21.6.1982 and registered on 30.6.1982 is for consideration and legal necessity? OPD.

Whether defendants No. 1 to 5 are the bona fide purchaser for value and consideration as alleged? OPD.

Whether the plaintiff is entitled to the joint possession as alleged? OPP.

Relief.

The trial Court examined issues No. 1 to 3 together. The trial Court on the perusal of evidence came to the conclusion that the plaintiff is son of Harbhajan Singh and so decided this issue in favour of the plaintiff. Similarly, the Court came to the conclusion that the property in the hands of Harbhajan Singh was coparcenary/ancestral property and that the sale was made without any legal necessity. Accordingly, the Court held that the sale deed does not bind the plaintiff. Under issue No. 4, it was held that since Harbhajan Singh has died, the plaintiff is entitled to the possession of the suit property. Resultantly, the suit of the plaintiff was decreed holding that the sale deed is without legal necessity.

Before the appellate Court the matter was once again agitated with regard to the locus standi of the plaintiff to institute the suit; the nature of the property in the hands of Harbhajan Singh as well as the execution of sale deed by Harbhajan Singh as an act of good management for consideration and on account of legal necessity. Before the appellate Court, grievance was also made to the effect that issue No. 2 which reads as "whether the sale deed dated 21.6.1982 registered and registered on 30.6.1982 is for consideration and legal necessity? OPD", the onus to prove that the sale is for consideration was to be placed upon the plaintiff. This way the defendants have been prejudiced. The lower appellate Court noticed the defect in the framing of issue No. 2 and found to be of no consequence as primarily the challenge to the sale deed dated 21.6.1982 was on the ground of want of legal necessity. As regards the contention of the defendants that the evidence led by the plaintiff to prove his relationship with Harbhajan Singh has not been properly read, the Court found this objection to be devoid of any substance. For this, reference was made to the statements of the witnesses who came present and deposed that Karam Singh is son of Harbhajan Singh which statement was based on their relationship with Harbhajan Singh. Besides, the Court relied upon the school leaving certificate of Karam Singh giving his parentage. Keeping in view this evidence and placing reliance upon the decision of this Court in case reported as Puran Singh and Ors. v. Sampuran Singh and Ors. 1983 CLJ 401, held that the oral evidence led is in accordance with Sections 50 and 60 of the Evidence Act and so found no infirmity with the finding of the trial Court.

The appellant vendee did not address any argument with regard to the nature of the property i.e. coparcenary property as has been held by the trial Court. So the findings of the trial Court were affirmed in this regard. As regards the material issue, whether the sale in dispute has been effect for legal necessity, the Court found that the evidence led by the appellant was deficient. According to its conclusion, the vendee did not make proper enquiry so as to find whether legal necessity arise for selling the property or sale is for the benefit of the estate. Sole reliance was placed upon by the appellants on the recitals of the sale deed which the Court did not think it sufficient to hold the plea that the land was sold for legal necessity. Consequently, appeal was dismissed.

Learned counsel for the appellants has challenged the concurrent findings of the Courts below on the ground that there has been misreading of evidence which has consequently resulted in failure of justice. According to the counsel, even as per documentary evidence adduced by the plaintiff, it is difficult to infer that the property in dispute is ancestral or coparcenary property. Since there has been a misreading of the relevant record, the same can be examined by this Court. Elaborating, the counsel urged that Waryam Singh was the proceedessor-in-interest of father of the plaintiff and on whose death the property was inherited by two brothers, namely, Gurdial Singh and Bhajan Singh. Mutation in their favour was sanctioned on 2.2.1944 in Chak No. 56, Tehsil Anupgarh, Rajasthan. It has also come on record that Harbhajan Singh sold part of his holding vide sale deed dated 28.5.1958. Since Gurdial Singh died issueless, his share was also inherited by Harbhajan Singh and so the property which came to Harbhajan Singh from his brother cannot be termed to be coparcenary property qua the plaintiff by any principle of law. Thus, at best the ancestral/coparcenary nature of the property is to the extent of 1/2 share of the land now subject matter of adjudication. The matter with regard to coparcenary/ancestral nature of the property can be examined by the Court even when his counsel under some mistaken impression did not press this issue before the appellate Court. According to the counsel, any such concession by such a counsel does not bind the party. This way the appellants are not precluded from addressing the Court in respect of this issue. Further arguing, the counsel stressed that the Courts below have erred in law in concluding that the sale is not an act of good management or for legal necessity. The appellants after making proper enquiry agreed to purchase the land from Harbhajan Singh. In fact, the appellants formed a view that since the earlier sale made by Harbhajan Singh in the year 1959-60 had not been challenged by the plaintiff, it gave an impression that Harbhajan Singh has a right to dispose of the property without any bar. In any case, it was an act of good management. Accordingly, the appeal deserves to be accepted.

Counsel for the respondent, on the other hand, argued that both the courts on consideration of oral as well as documentary evidence adduced by the parties have come to the conclusion that the sale of the coparcenary property by the vandor-Harbhajan Singh is null and void and so does not bind the plaintiff. This being a finding of fact and otherwise not vitiated in any manner cannot be subject matter of adjudication under Section 100 of the Code of Civil Procedure. According to the counsel, documentary evidence adduced by the plaintiff to prove the ancestral nature of the property stands unrebutted. The plaintiff has been able to prove without any shadow of doubt the ancestral/coparcenary nature of the property. Precisely for this reason, this issue was not pressed before the lower appellate Court. Thus, the appellants are debarred from reopening the issue which they have already conceded. As regards the objection that Karam Singh is not the son of Harbhajan Singh, this too is devoid of any merit. The oral evidence coupled with school leaving certificate clearly prove this issue. Similarly, the plea of the appellants that the sale is an act of good management or that the same was made for legal necessity is wholly devoid of any merit. The trial Court on consideration of evidence led in respect of this issue concluded as under:-

".........The vendees could not prove on record any cogent evidence to prove that the vendor had legal necessity to sell the suit property to the extent of Rs. 49,000/-. They could not prove the legal necessity of Harbhajan Singh even to the extent of single penny. There is no evidence on the file to prove as to where the vendor utilized such a huge amount. The mere recital in the sale deed is not sufficient to prove the legal necessity. No land was purchased by Harbhajan Singh vendor. There is also no mention regarding the name of the person from whom the enquiry regarding the legal necessity was made. They have not led any evidence to prove that Harbhajan Singh was to repay any pre-existing loan or he was suffering from any disease and he needed money for the same. Labh Singh defendant No. 7 through whom the sale deed was got registered as Mukhtiar-i-am has stated that vendor Harbhajan Singh had no legal necessity to sell the suit land. The other attesting witnesses also could not prove that Harbhajan Singh was in need of any money for any legal necessity. I, therefore, hold that Harbhajan Singh vendor defendant No. 6 (now deceased) had no legal necessity to sell the suit property and mere mention in the sale deed that money was required for the purchase of land do not prove the legal necessity......" Similarly, the lower appellate Court while examining this aspect of the matter agreed to the conclusion arrived at by the trial Court and affirmed its finding that the land in dispute has not been sold for legal necessity or for the benefit of the estate. So the appeal deserves to be dismissed with costs.

Broad facts have been noticed in the earlier part of the judgment. The sale executed by Harbhajan Singh in respect of the coparcenary/ancestral property has been challenged by his son Karam Singh on the ground that the same was without consideration and legal necessity or for the benefit of the estate and so does not bind the plaintiff in any manner. Challenge to the concurrent findings of the Courts below is two fold. Firstly, that Karam Singh plaintiff is not the son of the vendor and the oral evidence led by the plaintiff to prove his relationship with Harbhajan Singh is inadmissible. Secondly, there has been misreading of revenue record by both the Courts. Though primarily these issues are of fact, yet on account of persuasiveness of the counsel for the appellants, the evidence with regard to relationship as well as documentary evidence with regard to nature of the property have again been perused. Statements of the witnesses with regard to relationship of Karam Singh are consistent. The witnesses have deposed on the basis of relationship and their knowledge. Nothing could be pointed out by the learned counsel for the appellants which could persuade me to change the conclusion arrived at by the Courts below. As regards the contention of the counsel with regard to the nature of the property, the argument advanced is rather far fetched. In fact, no clear basis has been made by the defendants in their written statement. In fact, it proceeds on the assumption that Gurdial Singh''s property was inherited by Harbhajan Singh and so such a property could not be deemed to be ancestral/coparcenary property vis-a-vis the plaintiff. On the contrary, the stand of the plaintiff is quite consistent that the property was owned by Waryam Singh which was inherited by Harbhajan Singh and such a property vis-a-vis the plaintiff was ancestral/coparcenary property. The sole attempt of the learned counsel for the appellants is that the matter be re-examined threadbare i.e. reopen the matter in the regular second appeal. It is well settled that this Court has no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact howsoever gross the error may be. As noticed in the earlier part of the judgment, the trial Court after carefully considering the evidence led held the property sold to be coparcenary/ancestral property. This finding was not challenged by the appellants before the lower appellate Court. Accordingly, I find no ground to differ with the conclusion arrived at by the Courts below.

As regards the contention that proper enquiry has been made before purchasing the suit property, the trial Court held it otherwise. The appellate court again appraised the evidence but found no ground to differ with the conclusion of the trial Court. The lower appellate Court noticed that the vendees in their written statement did not make mention as to what was the legal necessity of the vendor. In fact, the vendees did not mention that they made proper and bonafide enquiry regarding the legal necessity of the vendor. There was also no proof on record that money was required to repay some pre-existing debts or for domestic use. Thus after considering all the relevant factors, the lower appellate court affirmed the findings of the trial Court. No meaningful argument has been advanced by the learned counsel for the appellate in this regard.

As a last resort, learned counsel for the appellants placed reliance upon Section 30 of the Hindu Succession Act for the proposition that the sale made by Karta to the extent of his share is protected. Section 30 of the Hindu Succession Act reads as under:-

"30. Testamentary succession : Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.

Explanation :- The interest of a male Hindu in a Mitakshara coparcenary property, the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act, or in any other law for the time being inforce, be deemed to be property capable or being disposed of by him or by her within the meaning of this section."

According to the counsel, as per explanation, of Section 30, the interest of a male Hindu in Mitakshera coparcenary property is deemed to be property capable of being disposed of by him or by her within the meaning of this section. This being the position, even if it be taken that the sale was in respect of coparcenary/ancestral property, the same is valid to the extent of share of such a coparcener.

Somewhat similar point came up for consideration in case reported as The Madras State Bhoodan Yagna Board Madurai v. Subramania Athithan and Ors. AIR 1973 Mad 277 and the Court held as under :-

"Mr. Alagiriswami appearing for the appellant, contended that the gifts made by the first defendant would be valid at least to the extent of his share in the joint family properties. His submission is that under the Hindu Succession Act, the first defendant is entitled to make a will of his property and if, on the death of the first defendant, such a will can take affect, there is no reason for not applying the same principles to a case of gift by the first defendant. It is true that section 30 of the Hindu Succession Act confers power upon a member of a joint family to make a will in respect of his interest in the joint Family property. But that principle cannot be extended to a case of gift which is a transaction inter vivos, unless the statute itself specifically recognises it. Section 4 of that Act which sets out the overriding effect of that Act merely provides that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in that Act. That Act has not made any provision for making a gift by a manager of a joint family of his interest in the joint family property and as such Section 30 does not avail to the appellant and we are clearly of the opinion that the gifts by the first defendant are invalid even as regards his interests in the joint family properties." 15. The apex Court in case reported as Mukund Singh Vs. Wazir Singh, , repelled the contention of the counsel that Section 30 of the Hindu Succession Act applies not only to disposition by will or other testamentary instruments but also to instruments inter vivos. It was held that on the plain terms of Section 30, it is impossible to read Section 30 as applying to disposition inter vivos. In this case, one Harnam Singh made a gift of agriculture land in favour of the appellant in appeal. Wazir Singh who had been adopted as his son by Harnam Singh according to Hindu rites and caremonies, challenged the gift of the land which he asserted belonged to the Hindu Joint Family of Harnam Singh and himself. The Court came to the conclusion that the land gifted formed part of the coparcenary property and so the gift was void. This decision was affirmed by the High Court. The apex Court while dismissing the appeal held that a gift of coparcenary property by a member is void. Relying upon the decision of the Madras High Court in The Madras State Bhoodan Yagna Board Madurai''s case (supra) as well as of Supreme Court of India in Mukund Singh''s case (supra), I find no merit in this contention of the appellants also.

Resultantly, finding no merit in the appeal, the same is dismissed. No order as to costs.