Dismissed

Krishan Minor and Anr. v. Chand Ram and Ors.

Punjab & Haryana HC24 Jan 2012RSA/4213/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court rejected the appellants' challenge to the first appellate court's decision. The High Court held that while the suit land was ancestral, the father-plaintiff had the right to alienate his absolute 1/3rd share, and the first appellate court's judgment was not perverse or erroneous, leading to the dismissal of the appeal.

What did the court decide?

The second appeal was dismissed, affirming the validity of the father's alienation of his own 1/3rd share and the invalidity of the transfer of the rest of the ancestral property.

Krishan Minor and Anr. Vs Chand Ram and Ors. — Partition | Punjab & Haryana HC (2012)

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RSA No.4213 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.4213 of 2011

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Date of Decision: January 24, 2012

Krishan and another

.......Appellants

Versus

Chand Ram and others

.......Respondents

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

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Present: Mr.Anil Ghanghas, Advocate for the appellants.

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TEJINDER SINGH DHINDSA, J.

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The defendant-appellants are in second appeal before this

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Court.

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Briefly stated, the plaintiff-respondent filed a suit for declaration to the effect that he is the owner in possession of 5/12^th share in the land measuring 4 Bighas 16 Biswas comprised in Khasra No.1268, Khewat No.279, Khatouni No.623 situated in village Chhapar as per jamabandi for the year 1988-89. The plaintiff contended that defendant No.2 also had 5/12^th share and the proforma defendants collectively had 2/12^th share in the suit land. Such a declaration was sought as a consequence of his prayer to hold the judgment and decree dated 27.5.1995 passed in civil suit No.314 of 6.5.1995 to be null and void and not binding upon the rights of the plaintiff as the same was towards transfer of ancestral property. The case set up by the plaintiff was that the suit land was the

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RSA No.4213 of 2011

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coparcenary property of plaintiff and defendant No.2. Chandgi was the father of the plaintiff, defendant No.2 and the proforma defendants. Chandgi died in the year 1999. The plaintiff, defendant No.2 and Chandgi each had 1/3^rd share in the suit land and since Chandgi died intestate, his 1/3^rd share in the suit land devolved on the plaintiff, defendant No.2 and proforma defendants in equal shares. On such basis, it was pleaded that the plaintiff and defendant No.2 each have 5/12^th share in the suit land and the proforma defendants i.e. the daughters of Chandgi collectively would have 2/12^th share. The plaintiff became aware that a judgment and decree dated 27.5.1995 had been passed in civil suit No.314 of 6.5.1995 in pursuance to which the suit land was transferred by Chandgi in the name of defendant No.1. It was pleaded in the plaint that such decree was null and void as Chandgi had no right to transfer the said property the same being ancestral in nature.

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Upon notice, defendant No.2 filed a written statement and a Court Guardian was appointed for defendant No.1 who was minor. The written statement filed by defendant No.2 was adopted as such by defendant No.1, and in the written statement, there is a clear admission that the suit property was ancestral in nature. It was also averred in the written statement that Chandgi had transferred the suit land in the name of defendant No.1 on his own sweet will and he was enjoying good health at that point of time.

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Upon the pleadings of the parties, following issues were framed by the trial Court:

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Whether plaintiff is entitled to a decree for declaration as

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prayed for and judgment and decree in civil suit No.314/95

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RSA No.4213 of 2011

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and its mutation No.1744 attested on 8.7.1996 are illegal, null and void and not binding on the rights of the plaintiff and entries in the jamabandi incorporated on the basis of that mutation No.1744 are also liable to be corrected?OPP

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Whether present suit is time barred?OPD

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Whether present suit is not maintainable in the present form?OPD

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Whether plaintiff has no cause of action to file the present suit?OPD

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Relief.

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The trial Court took note of the fact that a clear admission had been made by the defendants in the written statement of the fact that the suit property was ancestral, which was further corroborated by document Exhibit P7/A i.e. a mutation of the suit land, bearing No.255 dated 1.6.1941 as per the entries therein the suit land was devolved upon Chandgi from his father by way of inheritance. Accordingly, the trial Court held that the judgment and decree passed in civil suit No.314 on 27.5.1995 in terms of which Chandgi had transferred the entire suit land in favour of defendant No.1 could not be sustained as he had no right in law to alienate the said property being ancestral in nature. As such, issue No.1 was decided in favour of the plaintiff. The trial Court held the plaintiff and defendant No.2 each to have 5/12^th share in the suit land. Each of the proforma defendant was held to have 1/12^th share of the suit land.

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Defendant-appellants preferred a civil appeal and vide impugned judgment and decree dated 7.9.2011, the Additional District Judge, Bhiwani partly accepted the appeal. The first Appellate Court

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RSA No.4213 of 2011

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affirmed the findings of the trial Court insofar as the nature of the suit property being ancestral in nature is concerned. However, insofar as the share of Chandgi in the ancestral property i.e. to the extent of 1/3^rd share is concerned, the first Appellate Court has held that he was competent to alienate the same in terms of the impugned judgment and decree dated 27.5.1995 passed in civil suit No.314 of 6.5.1995. Accordingly, the findings of the trial Court have been upheld except to the extent of 1/3^rd share of Chandgi which had been held not to be illegal of which Chandgi was admittedly the absolute owner to that extent.

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I find no error in law in the impugned judgment passed by the first Appellate Court. The admitted position of fact between the parties was that the suit land was ancestral in nature. Insofar as 1/3^rd share of Chandgi is concerned, he being the absolute owner was competent to alienate the same. However, the remaining share of the suit land could not have been transferred only in the name of defendant No.1 in pursuance to the impugned judgment and decree dated 27.5.1995 passed in civil suit No.314 of 6.5.1995 being ancestral in nature. The findings of the first Appellate Court are not perverse and as such, warrant no interference.

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No question of law, much less substantial question of law, arises for determination in the second appeal.

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The present appeal must fail and is, accordingly, dismissed. 10. Appeal dismissed.

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JANUARY 24, 2012 SRM

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( TEJINDER SINGH DHINDSA ) JUDGE

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Note: Whether to be referred to Reporter? Yes/No

Krishan Minor and Anr. v. Chand Ram and Ors.

Case brief

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Krishan Minor and Anr. v. Chand Ram and Ors.

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