IMPORTANT POINT
In absence of determination of shares among heirs by family arrangement or otherwise no one could alienate any portion of the property.

JUDGMENT

R.M. LODHA, J. —

This appeal, by special leave, is directed against the judgment dated January 7, 2004 passed by the High Court of Punjab and Haryana whereby the second appeal preferred by present respondents 1(i) to (vi) was allowed and the judgment and decree dated December 21, 1981 passed by the Additional District Judge (III), Kurukshetra was set aside and the judgment and decree dated August 31, 1981 passed by Sub-Judge, Ist Class, Kaithal was restored.

2. Soran, resident of Village Bandrana, Tehsil Kaithal, District Kurushetra, Haryana died intestate leaving two wives – Nanhi and Shingari, one son Ram Kala and three daughters Chameli, Panmehswari and Boghri him surviving. Soran’s first wife was Pratapi who pre-deceased him. Ram Kala was born out of that wedlock. Chameli, Panmeshwari and Boghri are daughters of Shingari from the loins of Soran. Prior to her marriage with Soran, Shingari was married to Lachhman and a son Man Singh was born from her first marriage.

3. Man Singh (since deceased - now represented by his wife - hereinafter referred to as ‘the appellant’) filed a suit against his mother Shingari on March 6, 1979 in the Court of Sub-Judge, IInd Class, Kaithal. The prayer was for ‘a decree for declaration to the effect that the plaintiff is owner in possession of the land mentioned in para no. 1(a)(b) of the plaint in place of the defendant’ based on the family settlement entered into between him and his mother on January 1, 1978. He averred that on the basis of the family settlement, he was given possession of the land mentioned in para 1 of the plaint and his mother agreed that she would get the revenue entries of the suit land corrected in his favour but those entries have not been corrected. He alleged that his mother was seeking to back out of the family settlement.

4. Shingari filed written statement on March 9, 1979 and admitted appellant’s claim in the suit. As there was no contest from Shingari, the Sub-Judge, IInd Class, Kaithal decreed appellant’s suit as prayed on that day itself.

5. The appellant, as noted above, was Shingari’s son born of her first marriage with Lachhman and he had no claim in the property left by Soran. The claim made by the appellant against his mother was founded on the basis that his mother had acquired 1/5th share in the property after the death of Soran. Having come to know of the decree passed in favour of the appellant, Ram Kala (since deceased - now represented by his legal heirs - hereinafter referred to as the ‘first respondent’) instituted a suit against appellant and Shingari praying therein that the decree dated March 9, 1979 be declared null and void and the appellant be restrained from interfering with the possession of the first respondent in respect of the said land. The first respondent set up the case that the property of Soran has devolved on his heirs according to the Hindu Succession Act, 1956 and Shingari inherited 1/10th share in the property left by his father and she had no right to alienate the suit land in favour of the appellant.

6. The appellant traversed the averments made by the first respondent and set up diverse pleas justifying the decree dated March 9, 1979.

7. On the basis of the pleadings of the parties, the trial court framed as many as nine issues and after recording the evidence, decreed the suit filed by the first respondent on August 31, 1981 and held that the decree dated March 9, 1979 was null and void and not binding on the first respondent.

8. As against the decree passed by the Sub-Judge, Ist Class, Kaithal, the appellant preferred civil first appeal which was heard by Additional District Judge (III), Kurukshetra. The Additional District Judge partly allowed the appeal; modified the decree passed by the Sub-Judge Ist Class, Kaithal on August 31, 1981 by holding that the findings recorded by the trial court on issue nos. 5 and 6 were wrong but maintained that the decree dated March 9, 1979 would not affect the rights of the fi