Surinder Kaur vs Kamaldeep Singh

Rakesh Kumar Garg, J.—This is plaintiffs second appeal challenging the judgments and decrees of the Courts below where his suit for declaration to the effect that she is owner in possession of the suit land with consequential relief of permanent injunction has been dismissed. As per the pleadings, defendant No. 2-Vir Singh was owner in possession of 1/4th share of total land measuring 178 Kanals 1 Maria as detailed in the headnote of the suit. The said land was Joint Hindu Family Coparcenary property, which has devolved upon defendant No. 2-Vir Singh from his grandfather. Appellant along with defendants Nos. 2 and 3 (Vir Singh son of Kala Singh and Harwinder Singh son of Vir Singh) formed Joint Hindu Family coparcenary property. Defendant No. 1 (now respondent), who is a clever person, in connivance with defendant No. 3 got executed a gift deed on 13.9.2004 from defendant No. 2 and transferred the entire ancestral property in favour of respondent-defendant No. 1. Defendant No. 2 was not competent to gift the entire ancestral coparcenary joint Hindu family property. The gift deed is illegal, null and void and not binding upon the rights of the plaintiff-appellant and, thus, declaration was prayed for grant of a decree that appellant was owner of 1/12th share of land measuring 178 Kanals 1 Maria and the gift deed dated 13.9.2004 executed by defendant No. 2 in favour of defendant No. 1 was illegal, null and void with consequential relief of permanent injunction restraining the respondent from alienating/encumbering the land in dispute in any manner.

Upon notice, defendant Nos. 1 and 2 filed a joint written statement raising various preliminary objections, submitting that the appellant have become a member in the Joint Hindu Family coparcenary property vide amendment of the Hindu Succession Act (Amended Act 2005) whereas the alleged gift deed was executed on 8.9.2004, whereas, Section 6 of the Hindu Succession Act, as amended, does not invalidate any alienation of the property made prior to 20.12.2004. Thus, the plaintiff had no right to challenge the gift deed in. hand. It was also claimed that Vir Singh-defendant No. 2 was absolute owner of the suit property which was his self-acquired property and was never a Joint Hindu Family property. The gift deed was executed by Vir Singh-defendant No. 2 out of love and affection, in lieu of services rendered by the respondent qua defendant No. 2 and his wife and, thus, dismissal of the suit was prayed for.

Defendant No. 3 filed a separate written statement denying the averments made in the suit and seeking dismissal of the suit with special Costs.

Separate replications were filed to the written statements of the defendants.

After hearing both the counsel for the parties and perusing record, trial Court found that appellant has tailed to prove the nature of the property by placing on record any document to show that the property was a coparcenary property. The trial Court further found that Vir Singh defendant No. 2, being exclusive owner of the property, had every right to dispose of his property according to his desire and, thus, he has executed the gift deed validly in favour of respondent, which was duly executed and mutated in favour of respondent No. 1, who is in cultivating possession over the same.

Keeping in view the aforesaid findings, the trial Court further found that provisions of Section 6 of the Hindu Succession Act (as amended) have no application in the facts and circumstances of the case and the suit was not maintainable.

Feeling aggrieved of the aforesaid findings of the trial Court, appellant filed an appeal before the First Appellate Court, which was also dismissed vide impugned judgment and decree dated 15.5.2013. The relevant paragraphs of the impugned judgment read thus:--

After hearing the learned counsel for the appellant and the learned counsel for the respondent, I am of the view, with the amendment of Hindu Succession Act (Amendment) Act, 2005, in the Hindu family governed by Mitakshra law, the daughter of the coparcener shall (a) by birth become coparcener, in her own right, in the same manner as the son(b) have the same right in the coparcener property as she would have had, if she had been a son; (c) be subject to the same modification in respect of the other coparcenary property as that of a son. In reference to Hindu Mitakshara Coparcener, it shall be included, reference to a daughter of coparcener.

Provided, that nothing contained, in this sub Section, shall affect, or invalidate any disposition, or alienation including any partition, testamentary disposition of property, which had taken place before the 20th day of December, 2004.

However, in the present case, in hand, the appellant has challenged the gift deed, dated 8.9.2009, made by Vir Singh, since deceased n favour of respondent Kamaldeep Singh i.e. Before 20th day of December, 2004. It means, this amendment, in the Succession Act, 2005, shall have no effect, on this gift deed.

Whereas, so far as nature of the property/suit land, in the hands of Vir Singh is concerned, in order to prove, that the suit property, in the hands of Vir Singh, was joint Hindu family property, the appellant has produced copy of the jamabandi for the year 1924/25 Ex. P2 and its Punjabi translation Ex. P2/A, in which, Kala Singh, father of Vir Singh, has been shown as owner, in possession of Khasra No. 1834/665(1-19), 685(0-12) 1850/1024(1-13). Thereafter, in the jamabandi, for the year 1964-65 Ex P3, Vir Singh alongwith his brother Mohinder Singh, Ajmer Singh, Jaswant Singh, have been shown owners, in possession of Khasra No. 1759/78, 975, 1742/667/1837/667 etc. However, the property, mentioned in this jamabandi Ex. P3, does not connect with the suit property, mentioned in jamabandi Ex. P2. Moreover, during consolidation proceedings, not only Khasra No. have been changed, but area of the property has also been changed. So, as such, in order to connect the property, in the hands of Kala Singh, with the property inherited by Vir Singh, the appellant was supposed to get the excerpt, prepared from the Sadar Kanungu, Muktsar. However, it was not got prepared. Even Naqsha Haqdarwar, Khatuni Istemal and Khatuni Pamaish, were very much relevant to co-relate the suit property, in the hands of Vir Singh with the property, shown in the name of Kala Singh, in Jamabandi Ex. P2. However, there is no such record, on the file.

Apart from it, the appellant has proved the copy of the mutation Ex. P10, whereby, the inheritance of Kala Singh was entered'' in the name of Vir Singh, alongwith other four brothers. However, it is not mentioned, in this mutation, as to in which manner, the same was inherited by them i.e. On the basis of the will, or by way of natural succession. Therefore, in these circumstances, I am of the opinion, that that trial court has rightly held, that Appellant does not prove the nature of the property by filling the excerpt, or any document to show that the property, in the hands of Vir Singh, had come from his grandfather. So as such, it shall be deemed to be separate property of Vir Singh" and these findings of the trial court are very correctly arrived at.

Since, the property, in the hands of Vir Singh, was his self acquired property, as such, during his life time, he could deal with the property in the manner, he likes. As such, the gift deed of his property made by him, during his life time, vide gift deed, dated 13.9.2004, in favour of the respondent, is legal and valid and appellant has no right to challenge the same, during the life time of Vir Singh. So, as such, Even, the suit of the appellant is not maintainable. Therefore, I find no illegality, of irregularity, in the judgment passed by the trial court. Hence, the finding so the trial court, recorded, on issues No. 1 to 6, are affirmed.

So far as Findings recorded by the trial court, on issues No. 7 and 8 are concerned, since it has already been held by me, that the suit of the appellant is not maintainable, during the life time of Vir Singh and Vir Singh was competent to dispose of the property, by way of gift deed and Section 6 of the Hindu Succession Act, was not amended, then this gift was made, so could not be challenged, by daughter being made before the amendment, in Hindu Succession Act, 2005. Therefore the findings of the trial court, on both these issues No. 7 and 8, are also affirmed.

Still not satisfied, the plaintiff has filed the instant regular second appeal challenging the judgments and decrees of both the Courts below, submitting that the following substantial questions of law arise in this appeal for consideration.

a. Whether Ex. P1 to P12 have been taken to consideration while deciding the case in hand by the Ld. Appellate Court wherein it has been amply proved by the appellant that the Land in question is an ancestral property and not self acquired property of Vir Singh?

b. Whether the impugned judgments and decrees of the Courts below are sustainable before the eyes of law as the same being result of non consideration of the evidence in proper and prospective manner?

c. Whether the judgments of the Courts below are sustainable in law as the material as well as relevant evidence has not been considered and findings have been arrived by the Courts below on inadmissible evidence and not perverse?

I have heard the learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below.

On perusal of the revenue record produced on record, it has been found that Kala Singh, father of defendant No. 2- Vir Singh, was owner in possession of Khasra No. 1834/665 (1-19), 685(0-12) 1850/1024(1-13) as shown in jamabandi for the year 1924-25 (EX.P-2) and thereafter in the jamabandi for the year 1964-65 Ex. P3, Vir Singh along with his brothers Mohinder Singh, Ajmer Singh and Jaswant Singh have been shown as owner in possession of Khasra Nos. 1759/78, 975, 1742/667/1837/667 etc. However, the property mentioned in the jamabandi Ex. P3, does not connect with the suit property as described in jamabandi Ex. P2. Admittedly, during consolidation proceedings, Khasra numbers of the property as well as the dimensions/measurements have also been changed. In order to connect the suit property in the hands of Kala Singh with the property inherited by Vir Singh, the appellant was supposed to get the excerpt prepared from the revenue authorities. However, no such excerpt was got prepared and produced before the Court. Even the other relevant documents such as "Naqsha Haqdarwar", "Khatauni Istemal" and "Khatuni Pamaish", were very much relevant to co-relate the suit property in the hands of Vir Singh with the property shown in the name of Kala Singh, but no such revenue record was produced. In view thereof, no exception can be taken to the findings of the Courts below that appellant has failed to prove the nature of the property as Joint Hindu Family property in the hands of defendant No. 2.

At this stage, it may also be relevant to mention that even if it is assumed for the sake of arguments that the property in question was Joint Hindu Family property, the suit of the appellant is still liable to fail. Even in that eventuality, as admitted, the execution of the gift deed had taken place on 8.9.2004/13.9.2004 whereas the amendment of the Hindu Succession Act, on the basis of which the appellant is claiming to be a coparcener of the Joint Hindu Family property, has been made applicable to the alienation of Joint Hindu Family properties made after 20.12.2004. Thus, in that event also, the appellant has no case even if the property in question was Joint Hindu Family property at the hands of Vir Singh-defendant No. 2 on the date of gift deed as she had no right in the said property.

No other argument has been raised. No substantial question of law, as noticed in this appeal, arises for consideration of this Court.

Dismissed.