In a second appeal regarding a partition suit, the High Court upheld a family settlement agreement that excluded a widow and her unmarried daughter from ancestral property, dismissing the appeal on grounds of limitation and the validity of the settlement.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
-1-
RSA No.2355 of 1987
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2355 of 1987 Reserved on 28.05.2014 Date of decision: 01.07.2014
Bant Kaur and another
....Appellants
Versus
Baldev Singh (since deceased) through LRs and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Argued by: -
Mr. Kanwal Goyal, Advocate, for the appellants. Mr. Aman Dhir, Advocate, for respondents No.1 and 2. Mr. Amarjit Markan, Advocate, for respondents No.11 to 14. Mr. N.K. Vadehra, Advocate, for respondents No.15 and 16.
PARAMJEET SINGH, J.
This regular second appeal by appellants/plaintiffs is directed against the judgment and decree dated 10.10.1985 passed by learned Sub Judge Ist Class, Nabha (Patiala), whereby the suit for possession filed by the plaintiffs was dismissed as well as against the judgment and decree dated 16.02.1987 passed by learned Additional District Judge, Patiala, whereby the appeal preferred by the appellants/plaintiffs has also been dismissed.
Following pedigree table will illustrate the relationship of the
parties: -
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-2-
RSA No.2355 of 1987
Attar Singh Dalip Singh Bant Kaur (widow) Bant Singh Bachan Kaur (widow) (pltff. No.1) (D. No.7) Baldev Singh Jagdev Singh Gurnam Singh Sukhdev Singh Choti Jaswinder Kaur (son) (son) (son) (deceased (daughter) married (D. No.1) (D. No.2) (D. No.3) unmarried (pltf. No.2) (daughter) son) Teja Singh Dalbara Singh Sher Singh Jarnail Kaur Amarjit Kaur (son) (son) (son) (daughter) (daughter) (D. No.4) (D. No.5) (D. No.6)
For convenience sake, reference to parties is being made as per their status in the civil suit.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal, as pleaded, are that Bant Singh was the last male holder of the land in question. He died in December, 1983 leaving behind two widows, namely, Bant Kaur – plaintiff No.1 and Bachan Kaur – proforma defendant No.7. Sukhdev Singh, who died unmarried 17/18 years earlier, Baldev Singh defendant No.1, Jagdev Singh defendant No.2, Gurnam Singh defendant No.3, two daughters, namely, Jaswinder Kaur already married and Chhoti plaintiff No.2 were born to Bant Kaur whereas defendants No.4 to 6, namely, Teja Singh, Darbara Singh and Sher Singh and two daughters, namely, Jarnail Kaur and Amarjit Kaur were born to Bachan Kaur. It is pleaded case of the plaintiffs that Bant Singh along with his said children and widows constituted Joint Hindu
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-3-
RSA No.2355 of 1987
Family of which he was karta and the agricultural land except for the one that was purchased in the names of defendants No.4 to 6 by sale deed dated 20.02.1970, was ancestral property having been inherited by Bant Singh from his father and consequently belonged to Joint Hindu Family. Bant Singh gifted 1/3rd share of his land to his three sons (defendants No.4 to 6) from Bachan Kaur on the basis of oral gift deed dated 09.08.1956 and mutation (Ex.P20) in this regard was sanctioned in their names, which stands incorporated in the jamabandi for the year 1959-60 (Ex.P21). Bant Singh sold part of the land to Sher Singh and Bahadur Singh sons of Jiwa Singh for a sum of Rs.8,000/- vide registered sale deed dated 20.02.1970.
It is pertinent to mention here that defendants No.1 to 3 filed a civil suit against their father Bant Singh and his sons from Bachan Kaur vide plaint dated 08.03.1971 (Ex.P1) for possession of the land in dispute contending that it was a Joint Hindu Family property and their father had illegally gifted 1/3rd share of it to his sons (defendants No.4 to 6) from other wife and the same is not binding on their rights, title or interest. That suit was contested by Bant Singh and his sons from Bachan Kaur. However, a compromise (Ex.D1) was reached between the parties and plaintiff No.1 Bant Kaur widow vide judgment (Ex.P10) and the decree (Ex.P9) passed in terms of the compromise.
In this background, plaintiffs filed suit challenging the legality of the gift of 1/3rd of landed property given by Bant Singh to defendants No.4 to 6 and compromise decree (Ex.P9) contending that same are void
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-4-
RSA No.2355 of 1987
and inoperative because of the property being Joint Hindu Family property, Bant Singh was not competent either to gift or suffer a decree with respect to this land. Plaintiffs are entitled to their shares as natural heirs of Bant Singh as per provisions of the Hindu Succession Act, 1956.
Defendants No.1 to 3, for the obvious reasons, did not contest the claim of the plaintiffs whereas defendants No.4 to 7 contested the same by filing their joint written statement. It was pleaded that decree dated 22.10.1971 (Ex.P9) is based on the family settlement, which was reached in terms and conditions contained in the settlement deed (Ex.D1) to which Bant Kaur was a party and she voluntarily thumb marked the same and it cannot be challenged now. Plaintiffs have filed the suit in collusion with defendants No.1 to 3 and the suit is even otherwise barred by limitation. It was denied that the land purchased by defendants No.4 to 6 vide sale deed dated 20.10.1970 from Jiwa Singh was in exchange of the Joint Hindu Family property. Besides this, various other preliminary objections were also raised.
Plaintiffs filed replication to the written statement denying the averments in the written statement and reiterating the averments in the plaint.
Court of first instance, on the basis of pleadings of the parties, framed following issues: -
2. Whether plaintiff and defendants constitute Joint Hindu
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-5-
RSA No.2355 of 1987
Family? OPP
3. Whether judgment and decree dated 22.10.1971 in favour of defendants No.1 to 6 is void, illegal, null, in-effective, in-operative against the rights of plaintiffs as alleged in para No.5 of the plaint? OPP
4. Whether plaintiffs are owners of the property in dispute? OPP
5. Whether the suit is not maintainable in the present form? OPD
6. Whether plaintiffs are estopped to file this suit by their act and conduct? OPD
7. Whether suit is bad for non-joinder of necessary parties? OPD
8. Whether suit is within time? OPP
9. Whether suit is properly valued for the purpose of court fee and jurisdiction? OPP
10. Whether plaintiffs have no locus standi to file this suit? OPD
11. Whether suit has been filed by plaintiffs in collusion with the defendants No.1 to 3? OPD
12. Relief.”
After considering the evidence on record, Court of first instance decided issues No.1 to 6, 8 and 10 in favour of contesting defendants and dismissed the suit of the plaintiffs. The appeal preferred by plaintiffs against the judgment and decree of the Court of first instance has also been dismissed by the lower appellate Court. Hence, this second appeal.
I have heard learned counsel for the parties and perused the
record.
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-6-
RSA No.2355 of 1987
At the time of admission no substantial question of law was framed, however, during the pendency of the present appeal, following substantial questions of law have been placed on record: -
2. Whether in view of facts and circumstances in the case in hand, the learned Courts below were justified in holding the suit to be beyond limitation specially when specific date of dispossession was mentioned in the plaint?
3. Whether the learned Courts below committed a grave illegality by not holding the property to be ancestral property especially when the property purchased from the funds by selling the Joint Hindu Family and ancestral property?”
Learned counsel for the appellants referred to substantial questions of law and vehemently contended that findings recorded by the Courts below with regard to ancestral coparcenary nature of the property are not sustainable in the eyes of law and relied upon the judgments of Hon'ble Supreme Court in Vice-Chairman, Kendriya Vidyalya Sangathan and another v. Girdharilal Yadav, 2004 (6) SCC 325, Sher Singh and others v. Gamdoor Singh, 1997 (2) SCC 485 and the judgment of this Court in Sher Singh v. Mahabir Singh, 2002 (3) RCR (Civil) 32 . Learned counsel for the appellants further contended that plaintiffs, specifically plaintiff No.2, were not the party to the compromise. Plaintiffs are entitled to share in the property in question, the findings recorded by both the Courts below are not sustainable and
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-7-
RSA No.2355 of 1987
are liable to be set aside and the suit of the plaintiffs deserves to be decreed.
On the other hand, learned counsel for respondents No.11 to 16 contended that gift deed dated 09.08.1956 cannot be challenged by plaintiffs i.e. widow and unmarried daughter of Bant Singh. They were not members of the coparcenary and their rights have been protected in the partition/compromise. Earlier also, sons of plaintiff No.1 had challenged the gift deed in favour of defendants No.4 to 6 by filing a civil suit but the said suit was compromised and a settlement had been reached amongst the parties and plaintiff No.1 is a signatory to that compromise; plaintiff No.2 was minor and was represented by plaintiff No.1 and Bant Singh father of plaintiff No.2. The said writing clearly divided the property between the parties and it is a clear case of settlement and partition. There was no question of subsistence of coparcenary and Joint Hindu Family property. Partition was effected on 22.10.1971 and the suit has been filed on 11.04.1984 i.e. after more than 12 years, which is barred by limitation.
I have considered the contentions raised by learned counsel for the parties.
The only spinal issue for determination in the present case is whether the family settlement (Ex.D1) on the basis of which decree dated 22.10.1971 (Ex.P9) was passed in the suit of defendants No.1 to 3 against their father and defendants No.4 to 6, is valid or not? After appreciating the evidence on record, learned Sub Judge upheld the
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-8-
RSA No.2355 of 1987
validity of the said compromise/settlement and had recorded a finding that Bant Kaur was a party to the settlement and had thumb marked the same. The compromise/agreement brought about disruption of the Joint Hindu Family and division of the property belonging to it.
Lower appellate Court also, after appreciating evidence on record, has recorded a categorical finding in para 11, which reads as under: -
“The contesting defendants examined Baldev Sahai scribe of the document Ex.D.1 dated 22.10.71 as DW.1 and its marginal witness Maghar Singh DW.4 and Amar Singh DW.5. It is pertinent to mention that DW.5 Amar Singh is common relative of the parties being the real maternal uncle of Bant Singh, who could not be expected to have any bias against either of the parties and indeed, none could be brought out by his cross-examination. Joginder Singh, real brother of Bant Singh is also the marginal witness of Ex.D.1. Bant Kaur in the witness-box as PW.5 displayed ignorance if his said brother had signed the settlement deed. Significantly, she admitted having thumb marked the said document though she claimed having done so at the village which seems unlikely in view of the testimony of the said witnesses. It was for this reason that she did not have the courage to challenge the genuineness of her thumb on Ex.D.1. She made no reference to the said settlement in her plaint and the suppression of this material fact would detract from the credibility of the claim made by her and on the contrary it lends weight to the plea of the contesting respondents that she had brought the suit in collusion with her sons, which indeed is reinforced by their not entering into contest.”
There is clear-cut finding by the Courts below that plaintiff
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-9-
RSA No.2355 of 1987
No.1 has admitted her thumb impression over the compromise. DW5 Amar Singh common relative of the parties, who happens to be real maternal uncle of Bant Singh, also admitted the partition. It is clear that the settlement is voluntary in nature and Bant Kaur was willing party to it as her sons did not challenge the factum of validity of the same at any stage and Bant Kaur had filed the suit herself after more than 12 years after the settlement. Otherwise also, compromise which is part of decree (Ex.P9) is fair and equitable and provision has been made for maintenance of plaintiffs with a stipulation that if her sons neglected to maintenance, she would be entitled to the produce of 20 bighas of land. The gift of 1/3rd share of the land, which Bant Singh had made orally on 09.08.1956 in favour of his sons from Bachan Kaur, was also taken into account at the time of compromise to make the distribution of the property equitable. There is no dispute that in the Pepsu Government oral gift was permissible and rapat roznamcha has also been made to that effect in the record of the revenue authorities. Bant Kaur and her unmarried daughter were not coparceners and it was legally permissible for Bant Singh as karta to work out an arrangement with his sons, who were coparceners, for the division of the property belonging to the family in order to obviate the possibility of any dispute arising between them after his death, specifically when Bant Singh was having children from two wives. There is categorical finding by lower appellate Court that compromise (Ex.D1), which forms part of decree (Ex.P9), is in substance family settlement which is binding on all the parties thereto,
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
-10-
RSA No.2355 of 1987
including Bant Kaur. Ratio of law laid down by Hon'ble Supreme Court in Ram Charan v. Girja Nandini, AIR 1966 SC 323 squarely covers the issue in this case. Otherwise also, the findings recorded by both the Courts below with regard to ancestral nature of the property are pure findings of fact which cannot be interfered with by this Court in second appeal.
Hon'ble Lahore High Court in Munsha Singh v. Uttam Singh and others, AIR 1922 Lahore 65 held as under: -
“No question as to the validity or existence of any alleged custom is before us, the only point being whether the decision of the learned District Judge as to the ancestral nature of Hukmi's land is correct. Now Mr. Fakir Chand is on safe ground when he alleges that a decision on a point such as this is one of fact and ordinarily speaking such a finding cannot be assailed in second appeal. On the other hand if the finding has been arrived at on no evidence whatever or on purely conjectural grounds such a finding can be gone into and examined by this Court sitting in second appeal.”
In view of above, I do not find any illegality or perversity in the impugned judgments.
In view of this, no question of law muchless substantial
question of law, as claimed, arises for consideration in this appeal.
Dismissed.
No order as to costs.
(Paramjeet Singh) Judge
July 01, 2014 R.S.
Singh Ravinder 2014.07.03 17:55 I attest to the accuracy and integrity of this document Chandigarh
3 issues framed by the court
Whether the family settlement excluding the plaintiff widow and daughter from the ancestral property is valid and binding?
Whether the plaintiff is estopped or barred by limitation from challenging the family settlement.
Whether the findings regarding the non-ancestral nature of the disputed property to the plaintiff are perverse.
Colour shows how this judgement treated each authority
Vice-Chairman, Kendriya Vidyalya Sangathan and another v. Girdharilal YadavReferred¶65
Vice-Chairman, Kendriya Vidyalya Sangathan and another v. Girdharilal Yadav, 2004 (6) SCC 325 · Who else cites this
Sher Singh and others v. Gamdoor SinghReferred¶65
Sher Singh and others v. Gamdoor Singh, 1997 (2) SCC 485 · Who else cites this
Sher Singh v. Mahabir SinghReferred¶65
Sher Singh v. Mahabir Singh, 2002 (3) RCR (Civil) 32
Ram Charan v. Girja NandiniExplained¶87
Ram Charan v. Girja Nandini, AIR 1966 SC 323 · Who else cites this
Munsha Singh v. Uttam Singh and othersExplained¶88
Munsha Singh v. Uttam Singh and others, AIR 1922 Lahore 65 · Who else cites this
1 provisions across 1 enactments
Bant Kaur
Bachan Kaur
Baldev Singh through LRs
Paramjeet Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
