Important Points
High Court in second appeal cannot make out a new case.
A gift by a coparcener of his undivided interest in the coparcenary property is void.
Principles to determine whether a document is void or voidable, reststed.

Judgment

Dr. Arijit Pasayat, J. —

1.These appeals are directed against a common Judgment of a learned Single Judge of the Punjab and Haryana High Court disposing of three Second Appeals filed under Section 100 of the Code of Civil Procedure, 1908 (in short ‘CPC’). All the three appeals and the cross objections filed related to certain acts of one Shivdev Singh. All the appeals and cross objections were dismissed except with certain modifications.

2.The background facts in a nutshell are as follows :

Shiv Dev Singh was allotted land measuring 811 kanal 14 marlas out of which he effected sale of 440 kanals earlier. The said sale is not disputed in the present proceedings. Shiv Dev Singh earlier married Harbans Kaur and from the said wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four daughters who are also plaintiffs along with Lt. Col. Rattan Singh in Civil Suit No.172 of 3.9.1994 were born. Smt. Harbans Kaur died in the year 1986. Shiv Dev Singh thereafter married Iqbal Kaur and from wedlock of Shiv Dev Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur, Sukhjinder Kaur and Baljinder Singh and Balwinder Singh were born. The dispute in these appeals is in respect of the land measuring 337 kanals 10 marlas. Shiv Dev Singh executed a gift deed on 19.12.1962 in favour of Jaspal Singh, one of the sons of Shiv Dev Singh in respect of land measuring 10 kanals 5 marlas. The said gift deed was disputed by his another son Lt. Col. Rattan Singh and four daughters in Civil Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of 2000 before the High Court arose out of the said suit.

The said suit was for declaration to the effect that they are co owners in joint possesson to the extent of = share, and that the property in the hands of Shiv Dev Singh was ancestral. In the written statement, the defendant denied that the land was ancestral. It was asserted that same was self acquired property of Shiv Dev Singh. It was pleaded that since 19.12.1962 when Shiv Dev Singh gifted the land in his favour, possession was delivered to him and ever since he is continuing in possession as owner of the suit land. Jaspal Singh, the donee, was minor at the time of execution of gift deed. The learned trial Court recorded a finding that the suit land was ancestral in the hands of Shiv Dev Singh and that alienation of ancestral property effected by father of a Hindu governed by Mitakshara law could be challenged in terms of Article 109 of the Limitation Act, 1963 (in short the ‘Limitation Act’) within 12 years from the date when alienee takes possession of the property alienated. Since Jamabandi for the year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79 (Exhibit D-9), Jamabandi for the year 1983-84 (Exhibit D-10) record Jaspal Singh as a person in possession, the Court returned a finding that Jaspal Singh came into possession more than 12 years before the filing of the suit and thus, the suit is beyond the period of limitation.

Shiv Dev Singh also executed two separate sale deeds on 25.2.1980 and 27.3.1980 in respect of land measuring 73 kanals 11 marlas in favour of Pritam Kaur, widow of Thakur Singh, who happened to be sister of Iqbal Singh, wife of Shiv Dev Singh. After the death of Pritam Kaur on 1.4.1990, the same devolved upon defendant Baljinder Singh, minor son of Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will dated 30.1.1984. The said sale deeds were disputed by Lt.Col. Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second Appeal No.2549 of 2000 before the High Court arose out of said suit.

In the said suit, the challenge is to the sale deeds dated 25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold the land in favour of Pritam Kaur, his sister-in-law through his attorney Jaspal Singh. In the said suit it was alleged that the suit land was ancestral having been inherited from his forefathers and that the sale deeds were without legal necessity and thus null and void. It was alleged that the defendant, son of J