Ram Lal & Ors vs Shiv Lal

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 08.06.2007 passed by learned District Judge, Shimla, H.P. (learned First Appellate Court) vide which the judgment and decree passed by the learned Civil Judge (Junior Division), Theog, dated 24.05.2005 were ordered to be set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that the plaintiff, defendant No.1 and their father Budhi Ram were co-owners in possession of the land comprised in Khewat No.13, Khatauni No.27, Kitas 2, measuring 0-17-35 hectares, Khewat No.14, Khatauni  No.  28,  Kitas  28,  measuring  2-91-67  hectares, Khewat No.14, Khatauni No. 29, Kitas 19, measuring 1-84-62 hectares, Khewat No. 14, Khatauni No. 30, Kitas 11, measuring 1-01-89, situated at Chak Roni, Pargana Chadara, Tehsil Theog, District Shimla, H.P. as per jamabandi for the year 1998-99 (hereinafter referred to as the suit land) having 1/3rd share each and consequential relief of permanent injunction for restraining the defendants from creating any obstacles in the common use and enjoyment of the suit land. It was asserted that the plaintiff and defendant No. 1 are the sons of Budhi Ram.  Plaintiff, defendant No.1 and Budhi Ram were constituting a joint Hindu Family. Budhi Ram and his sons had 1/3rd share in the suit land.  Budhi Ram died in the year 2000. Mutation of inheritance of his estate was attested in favour of plaintiff and defendants No.1 to 5 in equal shares. Budhi Ram had 1/ 3rd share, and only that share was to be mutated in favour of the legal heirs; however, the entire suit land was mutated in favour of the legal heirs. The plaintiff and defendant No. 1 entered into a family arrangement in March 2003 and partitioned the suit land. The houses were given to the plaintiff, and the plaintiff had agreed to pay ₹ 50,000/- to defendant No.1 in three installments. The plaintiff paid ₹ 15,000/- to defendant No. 1 on 14.03.2003. Defendant No.1 is not adhering to the compromise; hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendants by filing a written statement denying the contents of the plaint. However, the relationship between the parties was not disputed. It was specifically denied that the suit land was joint Hindu property, or that any coparcenary existed between the plaintiff, defendant No.1 and Budhi Ram. It was admitted that Budhi Ram had died and his estate was mutated in favour of all the legal heirs.  The family arrangement was also denied, and it was asserted that the plaintiff procured false documents to deprive the defendants of their rights. Hence, it was prayed that the suit be dismissed.

No replication was filed.

Learned Trial Court framed the following issues on 28.08.2004: -

Whether the suit property is a Joint Hindu Family and coparcenary property, if so, its effect? OPP

Whether in between plaintiff and defendant No.1, a family arrangement took place in March 2003, if so, its effect? OPP

Whether the plaintiff is entitled for the relief of injunction, as alleged? OPP

Whether the suit is not maintainable? OPD

Relief.

The parties were called upon to produce the evidence, and plaintiff Shiv Lal examined himself as PW-1, Kishan Lal (PW-2) and Rati Ram (PW-3). Defendants examined, defendant No.1 Ram Lal (DW-1), defendant No. 2 Kanta Devi (DW-2), defendant No. 5 Rukami Devi (DW-3) and defendant No. 4 Savitri (DW-4).

Learned Trial Court held that the mutation in favour of Budhi Ram was sanctioned after the commencement of the Hindu Succession Act, 1965. There was no evidence that Budhi Ram was a member of any coparcenary at the time of his father’s death. Plaintiff and defendant No.1 were born to Budhi Ram after devolution of interest. Therefore, the property in the hands of Budhi Ram had to be treated as self-acquired property. It was rightly mutated in favour of all the legal heirs after his death. Learned Trial Court answered issues No.1, 3 and

4 in negative, issue No. 2 as redundant and dismissed the plaintiff’s suit.

Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Shimla (learned First Appellate Court). Learned First Appellate Court held that the suit land was ancestral property of Budhi Ram because it was earlier owned by his father, Kanshi Ram.  Plaintiff and defendant No. 1 acquired a share in it by their birth in the coparcenary. Budhi Ram was left with 1/3rd share, which would devolve upon the legal heirs. Learned Trial Court erred in dismissing the suit.  Hence, the appeal was accepted, judgment and decree passed by the learned trial Court were set aside, and the suit was decreed.

Being aggrieved by the judgment and decree passed by the learned First Appellate Court, the defendants have filed the present appeal before this Court, which was admitted on the following substantial question of law on 24.07.2008: -

Has not the Lower Appellate Court committed a grave error of law and jurisdiction by not giving any finding regarding the claim of the plaintiff- respondent being member of Mitakshra coparcenary, especially when findings on issue No.1 were recorded by the Trial Court in favour of  defendants-appellants? Was not it incumbent for the Lower Appellate Court, before accepting the appeal, to record the reasons for not agreeing with the findings of the Trial Court?

I have heard Mr Bhupender Gupta, learned Senior Advocate, assisted by Mr Pranjal Munjal, Advocate, learned counsel for the appellants.

None had appeared on behalf of the respondent when the matter was listed for hearing; hence, none could be heard on his behalf.

Mr. Bhupender Gupta, learned Senior Advocate, for the appellants, submitted that the learned Trial Court had rightly held that the nature of the suit land in the hands of Budhi Ram was self-acquired. Learned First Appellate Court erred in holding that the nature of the property was ancestral. The mutation of inheritance was sanctioned in favour of Budhi Ram after the commencement of the Hindu Succession Act, 1956, and in the absence of any proof that the nature of the property was ancestral, it had to be treated as self-acquired property. Learned Trial Court had rightly dismissed the suit, and learned First Appellate Court erred in reversing the well- reasoned judgment of the learned Trial Court. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set aside.

I have given considerable thought to the submissions made at the bar and have also gone through the records carefully.

Substantial Question of Law.

Plaintiff Shiv Lal (PW-1) stated in para. 2 of his affidavit that the suit land was ancestral because it was inherited by his father Budhi Ram from his father. Therefore, he, Budhi Ram and defendant No.1 had an equal share in the suit property. The plaintiff has nowhere claimed that the nature of the suit land in the hands of Budhi Ram’s father was ancestral. It was laid down by the Hon’ble Supreme Court in Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387, that the burden lies upon the person to prove the ancestral nature of the property who asserts so. It was observed: -

“10….The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference on this behalf may be made to the judgments of this Court in Bhagwan Dayal v.Reoti Devi, AIR 1962 SC 287. Both parties have placed reliance on this judgment. In this case, this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family, there was no presumption that the rest of the coparceners continued to constitute a joint family. However, it was also held that at the same time, there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer [Bhagwati Prasad Sah v Dulhin Rameshwari Kuer, 1951 SCC 486: 1951 SCR 603], held as follows: (SCC p. 491, para 10)

“10. … Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.”

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In D.S. Lakshmaiah v. L. Balasubramanyam [D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310], this Court held as follows: (D.S. Lakshmaiah case [D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310], SCC p. 317, para 18)

“18. The legal principle, therefore, is that there is no presumption of property being joint family property only on account of the existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was a nucleus with which the joint family property could be acquired, there would be a presumption of the property being joint and the onus would shift on the person who claims it to be self- acquired property to prove that he purchased the property with his funds and not out of joint family nucleus that was available.”

A similar view was taken in Rukhmabai v. Lala Laxminarayan [Rukhmabai v. Lala Laxminarayan, (1960) 2 SCR 253: AIR 1960 SC 335] and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade [Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521]. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same”.

In the present case, the plaintiff did not claim or prove that the nature of the property in the hands of Budhi Ram’s father was ancestral, and the nature of the property in his hands has to be treated as self-acquired property.

The mutation (Ex. P-4) mentions that Kanshi Ram had died and was survived by Budhi Ram.  This entry is dated 20.12.1957, and the mutation was attested on 26.02.1958. The Hindu Succession Act, 1956, was passed on June 17, 1956. Therefore, Kanshi Ram had died after the commencement of the Hindu Succession Act, and his estate would devolve under Section 8 of the Hindu Succession Act. It was laid down by the Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others (1986) 3 SCC 567 that once a person acquires the property under Section 8 of the Hindu Succession Act, he holds the property as self-acquired property and not as ancestral property. It was held:

“20. 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 the Schedule indicates heirs in Class I and only includes the son and does not include the son's son but does include the son of a predeceased son, to say that when son inherits the property in the situation contemplated by S. 8 he takes it as Karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under S. 8 to inherit, the latter would by applying the old Hindu law get a right by the birth of the said property contrary to the scheme outlined in S. 8. Furthermore, as noted by the Andhra Pradesh High Court the Act makes it clear by S. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under S. 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son: that would amount to creating two classes among the heirs mentioned in Class 1, the mate heirs in whose hands it will be joint Hindu family property and vis-a-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 S. 8 of the Act included widow, mother, daughter of predeceased son, etc.”

This judgment was subsequently followed in Yudhishthar vs. Ashok Kumar 1987(1) SCC 204 and Bhamar Singh vs. Puran 2008(3) SCC 87.

It was laid down by this Court in Master Anmol Sharma vs. Vikrant Seth, AIR 2019 HP 182, that where the mutation was attested after the commencement of the Hindu Succession Act, the property loses its nature as ancestral property. It was observed:-

3(xix). Thus, it is evident from the record that the suit property had lost its status of coparcenary property on 05.06.1985 when mutation no. 136 in respect of the property in question was attested in favour of Kamla Devi and defendant no. 2 Suresh Kumar (wife and son of Mukti Nath @ Mohan Lal Sharma). This mutation remained as it was, without there being any challenge to it from any quarter, including Mukti Nath @ Mohan Lal Sharma. Therefore, it can safely be concluded that on the date of execution of the agreement to sell, i.e. 09.03.1994, the suit property was not coparcenary. There was no embargo upon defendant no. 2, Suresh Kumar, to alienate and encumber the suit property in any manner. In any case, on the date of handing over the possession of the suit property to defendant no. 1, i.e. 14.10.2001, and on the date of execution of the sale deed, i.e. on 18.10.2001, there was no embargo upon defendant no. 2 to execute these documents in favour of defendant no. 1. The substantial question of law no. 1, is answered accordingly against the appellant.”

Judgment in Yudhisthar’s case (supra) was brought to the notice of the learned First Appellate Court. However, the learned First Appellate Court held that it did not apply to the present case because Yudhisthar’s case (supra) pertained to the acquisition of property by Karta. This was the misreading of the judgment in Yudhisthar’s case (supra) because the Hon’ble Supreme Court had dealt with the nature of the property in the hands of the successors of a Hindu.

Learned First Appellate Court relied upon the judgment of the Hon’ble Supreme Court in Anar Devi and others vs. Parmeshwar Devi & Ors, (2006)8 SCC 657, which deals with the devolution of the property under Section 6 of the Act, where a coparcener dies leaving behind any family or relative. In the present case, Budhi Ram was not proved to be holding ancestral property, and the cited judgment does not apply to the present case.

Thus, the learned First Appellate Court erred in holding that the nature of property in the hands of Budhi Ram was ancestral, which was to devolve as per Section 6 of the Hindu Succession Act. Therefore, this substantial question of law is answered accordingly.

In view of the above, the present appeal is allowed, and the judgment and decree passed by the learned First Appellate Court are ordered to be set aside, and the judgment and decree passed by the learned Trial Court are ordered to be restored.

The decree sheet be prepared accordingly.

All pending applications also stand disposed of.

Records be sent back forthwith.