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PUNJAB & HARYANA HIGH COURT
J.V.Gupta, J.
Prithi
Versus
Yatinder Kumar
Second Appeal No. 1543 of 1982,
Decided On : DECEMBER 12, 1984
ANCESTRAL PROPERTY - COPARCENARY PROPERTY - HINDU SUCCESSION ACT, 1956 - SECTION 8 - SUIT FOR DECLARATION AND POSSESSION - NECESSARY PARTIES - ESTOPPEL - CIVIL PROCEDURE CODE, 1908 - ORDER 1 RULE 9 - ORDER 41 RULE 22 - INTERPRETATION.
Fact of the Case:
Plaintiffs, sons of Hari Kishan Dass, filed suits for declaration and possession, claiming that sale deeds executed by their sister, Shashi Prabha, were valid only to the extent of 1/16th share and invalid for the remaining land. The trial court dismissed the suits, finding that the suit property was ancestral and Shashi Prabha was entitled to inherit 1/4th share. The lower appellate court reversed the finding of non-joinder of necessary parties and decreed the suits.
Finding of the Court:
The High Court held that the defendants were entitled to challenge the findings of the trial court on the issue of the property being ancestral, even without filing cross-objections. The court found that the property in the hands of Hari Kishan Dass was not ancestral, as he had acquired it from his brother Ram Chand, who died issueless. Therefore, the property was not coparcenary property in the hands of Hari Kishan Dass qua the plaintiffs. The court also held that Shashi Prabha was a necessary party to the suit, as the challenge was to her right to sell 1/4th share of the property. The court further held that the plaintiffs were estopped from filing the suits, as they had taken benefit of the mutation order, which showed Shashi Prabha as the owner of 1/4th share, before the Special Collector.
Issues: 1. Whether the defendants were entitled to challenge the findings of the trial court on the issue of the property being ancestral, without filing cross-objections? 2. Whether the property in the hands of Hari Kishan Dass was ancestral? 3. Whether the property was coparcenary property in the hands of Hari Kishan Dass qua the plaintiffs? 4. Whether Shashi Prabha was a necessary party to the suit? 5. Whether the plaintiffs were estopped from filing the suits?
Ratio Decidendi: 1. The defendants were entitled to challenge the findings of the trial court on the issue of the property being ancestral, even without filing cross-objections, as they were entitled to support the decree by showing that the finding against them in the court below in respect of any issue ought to have been in their favor (Order 41 Rule 22 of the Civil Procedure Code, 1908). 2. The property in the hands of Hari Kishan Dass was not ancestral, as he had acquired it from his brother Ram Chand, who died issueless. Therefore, the property was not coparcenary property in the hands of Hari Kishan Dass qua the plaintiffs. 3. Shashi Prabha was a necessary party to the suit, as the challenge was to her right to sell 1/4th share of the property. 4. The plaintiffs were estopped from filing the suits, as they had taken benefit of the mutation order, which showed Shashi Prabha as the owner of 1/4th share, before the Special Collector.
Final Decision: The appeals were allowed, the judgment and decree of the lower appellate court were set aside, and those of the trial court, dismissing the plaintiffs' suits, were restored.
1. This judgment will dispose of R. S. A. Nos. 1543, 1637 to 1642 and 1660 of 1982 which arise out of eight suits which were consolidated by the trial Court and were disposed of by one judgment.
2. Ganeshi Lal was the common ancestor of the plaintiffs. During his lifetime, vide mutation Exhibit P-1 dt. 12th Dec. 1901, he transferred his property in favour of his only son Kanshi Nath, who died in the year 1902. On the death of Kanshi Nath, his property was mutated in favour of his two sons, namely Hari Kishan Dass and Ram Chand vide mutation Exhibit P-2 Dt. 4th April, 1902. Ram Chand died unmarried. On his death, his estate was mutated in favour of his brother Hari Kishan Dass vide matation Exhibit P-3 dt. 26th Dec. 1902. Hari Kishan Dass died on 1st Feb. 1970. On his death, his estate was mutated in favour of his three sons (plaintiffs) and one daughter Shashi Prabha vide mutation Exhibit P-4 dt. 28th Sept. 1970, in equal shares i.e. 1/4th each. Hari Kishan Dass had property in more than one district and being a big landowner his case for determining the surplus land was tried by the Special Collector, The Special Collector in his order dt. 21st June, 1976 (Exhibit D-2) relied upon mutation Exhibit P-4, whereunder all the four heirs of Hari Kishan Dass got 1/4th share each and passed the orders accordingly. In the Jamabandi also for the year 1976-77 (Exhibits P-21 to P-26) the shares of all the heirs of Hari Kishan Dass were shown to be 1/4th each. Shashi Prabha daughter of Hari Kishan Dass thus being the owner of 1/4th share of the estate of her father, sold some land out of the same by executing eight different sale deeds dt. 14th May, 1973. The vendee-defendants are the appellants in all these appeals. The plaintiffs who are the three sons of Hari Kishan Dass deceased filed the suits on 12th May, 1976, for declaration and possession to the effect that the sale deeds were valid to the extent of 1/16th share out of the land sold and qua the remaining land these were nullity and ineffectual against the rights of the plaintiffs. The plaintiffs also prayed for joint possession of the property on that basis. The allegations were made in the plaints that the suit land was an ancestral property in the hands of late Hari Krishan Dass and the plaintiffs were coparceners in this property by virtue of their birth in the family and the property in the hands of Hari Kishan Dass was a coparcenary property. So Hari Kishan Dass was owner of only 1/4th share in the property and the plaintiffs were also owners of 1/4th share each in the property, as the parties are governed by the Mitakashra school of thought. In para 4 it was further pleaded that late Hari Kishan Dass died intestate on 1st Feb. 1970, leaving the plaintiffs and defendant No. 4 Shashi Prabha (whose name was later on deleted by the plaintiffs) as his class-I heirs under the Hindu Succession Act. So the share of the plaintiffs in the coparcenary property came to 5/16th share each a 1/16th share in respect of Smt. Shashi Prabha defendant No, 4. On these allegations, it was alleged that the sale deeds executed by Shashi Prabha in favour of the vendee-defendants in excess of her rights in the property were invalid to the extent of 15/16th share in the whole property and were valid only to the extent of 1/16th share, to which Smt. Shashi Prabha was entitled to succeed on the death of their father Hari Kishan Dass. As observed earlier, the name of Shashi Prabha from the array of the defendants was deleted vide Court order dt. 1st Oct. 1976 on the statement of the learned counsel for the plaintiffs, before framing of the issues. Shashi PShashi Prabha, though had not filed any written statement. Thus, the suit was contested by the vendee defendants on the ground that Shashi Prabha vendor was shown in the revenue record as owner of 1/4th share correctly and she rightly sold her share in the estate, of her father Hari Kishan Dass and the sale deeds executed by her were legal and
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