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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMOL RATTAN SINGH, J.
Ajmer Singh and others - Appellants
Versus
Rajinder Singh (through LRs) & Ors. - Respondents
RSA No.2507, 2509 of 1985 (O&M)
Decided On : 12-09-2017
The suit property was ancestral property, but the father of the parties, Bishan Singh, gifted the suit land away, to the extent of 39 kanals and 4 marlas of such ancestral land, to his 3rd daughter, i.e., defendant Angrej Kaur, such gift would only have been valid to the extent of Bishan Singh's own share in the ancestral land, in terms of the Explanation to Section 30 of the Act of 1956. The suit property being ancestral property, but with the father of the parties, Bishan Singh having gifted the suit land away, to the extent of 39 kanals and 4 marlas of such ancestral land, to his 3rd daughter, i.e., defendant Angrej Kaur, such gift would only have been valid to the extent of Bishan Singh's own share in the ancestral land, in terms of the Explanation to Section 30 of the Act of 1956.
Fact of the Case:
The suit property was ancestral property, but the father of the parties, Bishan Singh, gifted the suit land away, to the extent of 39 kanals and 4 marlas of such ancestral land, to his 3rd daughter, i.e., defendant Angrej Kaur, such gift would only have been valid to the extent of Bishan Singh's own share in the ancestral land, in terms of the Explanation to Section 30 of the Act of 1956.
Finding of the Court:
The suit property being ancestral property, but with the father of the parties, Bishan Singh having gifted the suit land away, to the extent of 39 kanals and 4 marlas of such ancestral land, to his 3rd daughter, i.e., defendant Angrej Kaur, such gift would only have been valid to the extent of Bishan Singh's own share in the ancestral land, in terms of the Explanation to Section 30 of the Act of 1956.
Issues: Whether the suit property is ancestral property or not of the parties.
Ratio Decidendi: The suit property being ancestral property, but with the father of the parties, Bishan Singh having gifted the suit land away, to the extent of 39 kanals and 4 marlas of such ancestral land, to his 3rd daughter, i.e., defendant Angrej Kaur, such gift would only have been valid to the extent of Bishan Singh's own share in the ancestral land, in terms of the Explanation to Section 30 of the Act of 1956.
Final Decision: The suit property being ancestral property, but with the father of the parties, Bishan Singh having gifted the suit land away, to the extent of 39 kanals and 4 marlas of such ancestral land, to his 3rd daughter, i.e., defendant Angrej Kaur, such gift would only have been valid to the extent of Bishan Singh's own share in the ancestral land, in terms of the Explanation to Section 30 of the Act of 1956.
Amol Rattan Singh, J.
CM No.11125-C of 2013 & CM 11238-C of 2013
By these applications, the appellants seek to bring on record, in each appeal, the legal representative of appellant no.1 Ajmer Singh (one of the LRs. of the original defendant). The applications having been filed along-with a supporting affidavit on 09.10.2013 and no reply having been filed thereto, despite notice issued, these applications are allowed and Jaspal Singh son of the late Ajmer Singh, is brought on record as the LR of appellant no.1.
By this application, restoration of the accompanying appeal is sought, which was dismissed in default on 12.04.2013, nobody having appeared for two dates in succession after the matter was taken up on 02.04.2013, (though it was taken up for the first time on that date, after notice was issued and it was admitted to regular hearing on 18.09.1985).
As a matter of fact, both the appeals, i.e. RSA nos.2707 and 2509 of 1985, were dismissed in default on the same date, with separate applications thereafter filed seeking restoration of each of the appeals.
RSA no.2507 of 1985 was restored upon CM No.11239-C-2013 having been allowed, vide an order of this Court dated 18.03.2016.
However, very obviously inadvertently, the application (CM No.11126-C of 2013) filed in RSA no.2509 of 1985 was not decided on that date possibly because somehow it was not listed before the Bench.
Subsequently, it was never brought to the notice of this Court that the said application has never been allowed and in fact, both the appeals have been argued by learned counsel on both sides, taking it that both the appeals were restored to their original number and status, with RSA no.2507 of 1985 having been so restored. Hence, there would be no reason to not pass a formal order actually restoring the accompanying appeal also, i.e. RSA no.2509 of 1985, the issue of this appeal having been dismissed in default along-with the other one, never having been raised by counsel for the respondent-plaintiff after the other appeal was restored.
Yet, what is stated in the application seeking restoration, may be noticed, even so.
It is stated in the application, duly supported by the affidavit of appellant no.3, Tej Pal Singh, that he and appellant no.2 and the son of the late appellant no.1, came to know of the status of the case on 01.10.2013 from the learned counsel who had filed the appeal, who had since been elevated to the Bench and had even retired thereafter.
Upon coming to know that the appeal had been dismissed in default on 12.04.2013, they engaged the present counsel and had there after filed this application.
Along with the application, an amended memo of parties has been filed, showing the appellant no.1 now represented through his son, Jaspal Singh, as his LR, with a copy of the death certificate of appellant no.1 (Ajmer Singh) also annexed with the application, as has been the will of Ajmer Singh.
Notice having been issued in this application (along-with the application seeking impleadment of Jaspal Singh as the LR of appellant no.1 Ajmer Singh), vide an order dated 23.10.2013, no reply has been filed thereto, hence the non-applicants-respondent obviously have no objection to the accompanying appeal (RSA no. 2509 of 1985) being restored, with RSA no.2507 of 1985 already having been restored as noticed.
The application is consequently allowed and RSA no.2509 of 1985 is ordered to be restored to its original number and status, the appeal in any case having been argued on merits by both sides.
RSA Nos. 2507 and 2509 of 1985
Both these second appeals have been instituted by the legal representatives of the defendant in two suits filed by the respondent-plaintiff (now also represented by his legal representatives). The suits of the plaintiff having been decreed in his favour and both the first appeals filed by the present appellants also having been dismis
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