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2010 Supreme(P&H) 1536
PUNJAB & HARYANA HIGH COURT
Vinod K.Sharma, J.
Hardial Singh
Versus
Nahar Singh (Deceased) Through Lrs.
Regular Second Appeal No. 1365 of 1990,
Decided On : APRIL 29, 2010
The main legal point established in the judgment is the determination of property as joint Hindu family coparcenary property based on Hindu Law principles and the rights of male issue.
Headnote:
Joint Hindu Family Property - Ancestral Property - Hindu Law
Fact of the Case:
The plaintiff filed a suit for declaration challenging a judgment and decree that transferred joint Hindu coparcenary property to the defendant. The trial court held in favor of the plaintiff, declaring the property as joint Hindu family coparcenary property and setting aside the decree. The lower appellate court modified the decree, affirming the plaintiff's claim to half of the land transferred.
Finding of the Court:
The court found that the property was joint Hindu family coparcenary property and set aside the decree, granting the plaintiff ownership of half of the land transferred.
Issues: The main issues were whether the property was joint Hindu family coparcenary property, the legality of the decree, and the plaintiff's locus standi to file the suit.
Ratio Decidendi: The court relied on Hindu Law principles to determine the nature of the property and the rights of the parties. It held that property inherited from paternal ancestors is ancestral property, and the rights of male issue are established at birth. The court also considered the absence of male issue in determining the nature of the property.
Final Decision: The court set aside the decree and granted the plaintiff ownership of half of the land transferred, affirming the property as joint Hindu family coparcenary property.
Vinod K.Sharma, J.
1. This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 13.3.1990 passed by the learned courts below in a suit for declaration filed by the plaintiff/respondent.
2. Nahar Singh, plaintiff/respondent filed a suit for declaration, to challenge the judgment and decree dated 16.12.1983 passed in Civil Suit No.392 of 9.8.1983 titled Hadial Singh v. Inder Singh, vide which Inder Singh son of Pali alias Nika Singh transferred 23 Bighas 9 biswas and 12 Biswasis of suit land in favour of Hardial Singh appellant. The decree was said to be unlawful, and having no effect on the rights of the plaintiff son of Pali, on the plea that the suit land was joint Hindu coparcenary property.
3. Consequential relief of permanent injunction was prayed, restraining the appellant from alienating the suit land, in any, manner.
4. Plaintiff/respondent claiming himself to be the brother of Inder Singh, claimed the suit land to be joint Hindu coparcenary property of plaintiff and defendant No.2.
5. Defendant No.2 was Karta of joint Hindu family. Suit land was inherited by the plaintiff and defendant No.2 from their father Pali alias Nika Singh, who had inherited the property from his father Attar Singh.
6. It was the case of the plaintiff that defendant No.2 was not competent to transfer the suit land in favour of defendant No.l without legal necessity. Transfer, therefore, was said to be against law. Impugned decree dated 16.12.1983, was said to be collusive, and having no effect on the rights of the plaintiff, therefore, liable to be set aside. It was pleaded that defendant No.l. had no right to alienate the suit property. During the pendency of the suit defendant No.2 Inder Singh died and his name was deleted from array of parties, as the plaintiff Nahar Singh claiming himself to be the brother of Inder Singh, was his only legal heir.
7. The suit was contested by appellant/defendant No.l, by taking a plea that judgment and decree dated 16.12.1983 was legal and was passed in consonance with law.
8. Application was moved by the plaintiff/respondent, under Order 1 Rule 10 of the Code in the suit in which decree dated 16.12.1983 was passed. The application was dis- , missed. Therefore, the suit was said to be barred by principles of res judicata.
9. On merit, averments made in the plaint were denied.
10. On the pleadings of the parties learned trial court framed the following issues:-
1. Whether the plaintiff and Inder Singh constituted joint Hindu family? OPP
2. If issue No.l is proved, whether the suit property is joint Hindu family co-parcenary property? If so, its effect? OPP
3. Whether the decree dated 16.12.1983 is unlawful as alleged? If so, its effect? OPP
4. Whether the plaintiff has locus standi to file the present suit? OPP
5. Relief.
11. Learned trial court took up issues No.l to 3, together and on the basis of oral and documentary evidence placed on record, decided all these issues in favour of the plaintiff and against the defendant. The learned court held that the plaintiff and Inder Singh constituted a joint Hindu family with the plaintiff/respondent. The suit property was, therefore, held to be joint Hindu family coparcenary property.
12. In view of the findings on issues No.l and 2, decree dated 16.12.1983 was held to be unlawful, and having no effect, on the rights of the plaintiff/respondent.
13. On issue No.4, it was held that the plaintiff had locus standi to file the suit.
14. The suit was decreed and the plaintiff was held to be the owner of the suit land. The decree dated 16.12.1983 was set aside with consequential relief of permanent injunction, restraining the defendant/appellant from alienating the suit property.
15. The defendant/appellant preferred an appeal. The appeal was partly accepted, and the decree was modified. The suit of the plaintiff for declaration to challenge the decree being against law, null and void and ineffective against the plainti
