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2018 Supreme(P&H) 4789
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Suresh Kumar And Others - Appellant
Versus
Luv Kumar And Others - Respondent
RSA No.111 of 2012 (O&M)
Decided On : 21-12-2018
Rajesh Arora, Advocate, for the Appellants; Mr. N.D. Achint, Advocate, for the Respondent Nos. 1 to 5 and 15; Mr. Amit Jain, Advocate, for the Respondent Nos. 11 and 12; Mr. Sandeep Verma, Advocate for Mr. Minderjeet Yadav, Advocate, for the Respondent Nos. 6, 8, 13, 14, 16, 17 and 18; Mr. Atul Yadav, Advocate, for the Respondent No. 24(in CM No.3077-C of 2014)
The main legal point established in the judgment is the determination of the nature of the property as ancestral/joint Hindu family property, the devolution of coparcenary property, and the applicability of the Hindu Succession (Amendment) Act 2005.
Headnote:
Joint Hindu Family Property - Hindu Succession Act - [Section 6, Section 8, Hindu Succession (Amendment) Act 2005] - The court found that the property in question was proved to be ancestral/joint Hindu family property in the hands of Jawala Parshad. The court also discussed the devolution of coparcenary property among surviving coparceners, the effect of wrong mutation entries, and the applicability of the Hindu Succession (Amendment) Act 2005. The court held that the Amendment Act did not apply to the daughters after the demise of Jawala Parshad, and the property descended from generations. The court also addressed the cause of action for filing a suit and the accrual of limitation from the date when possession is threatened.
Fact of the Case:
The plaintiffs filed a suit for declaration with permanent injunction claiming that the suit land was ancestral and coparcenary property of Jawala Parshad and his sons. The defendants contested the suit, denying the coparcenary nature of the property and raising customary law as a defense.
Finding of the Court:
The court found that the property was proved to be ancestral/joint Hindu family property and that the mutation was not in accordance with the law. The court also held that the Hindu Succession (Amendment) Act 2005 did not apply to the daughters after the demise of Jawala Parshad. The court further determined that the cause of action accrued when the plaintiffs' possession was threatened, not from the date of the execution of the sale deeds and mutation.
Issues: The issues included the nature of the property, the devolution of coparcenary property, the applicability of the Amendment Act, and the accrual of cause of action for filing a suit.
Ratio Decidendi: The court's decision was based on the proof of the property as ancestral/joint Hindu family property, the interpretation of the Hindu Succession Act and its Amendment, and the determination of the cause of action for filing a suit.
Final Decision: The court set aside the judgments and decrees passed by the lower courts and decreed the suit of the plaintiffs with costs throughout.
JUDGMENT
Raj Mohan Singh, J. - CM No.3077-C of 2014
Prayer made in this application is for impleadment of the applicant as respondent No.24.
For the reasons mentioned in the application, the same is allowed. Applicant-Attar Singh is ordered to be impleaded as party respondent No.24.
Amended memo of parties is taken on record.
RSA No.111 of 2012 (O&M)
Plaintiffs No.3, 5, 6 and 8 have preferred this Regular Second Appeal against the concurrent judgments and decrees passed by the Courts below in a suit for declaration with permanent injunction.
2. Brief facts of the case are that the plaintiffs filed a suit for declaration with permanent injunction with the averments that the suit land as shown in the plaint was originally owned and possessed by Jawala Parshad predecessor-in-interest of the plaintiffs, defendants No.1 to 4 and proforma defendants No.8 to 13. He was Karta of the joint Hindu family and the land was ancestral in the hands of Jawala Parshad qua the plaintiffs and proforma defendants No.8 to 13. Jawala Parshad inherited the land from his father Chhaju Ram in the year 1918, who was owner in possession of the same.
3. Plaintiffs further averred that the land was ancestral and coparcenary property of Jawala Parshad and his sons namely Hari Singh, Surat Singh, Karan Singh and Jagdish as they had constituted a joint Hindu family and Hindu Undivided Family. Jawala Parshad and the sons had birth right in the suit property being coparceners. At the time of death of Jawala Parsad, he had only %th share being one of the coparceners and all the four sons were having %th share each in the suit property. The suit property was jointly owned and possessed by the coparceners at the time of death of Jawala Parshad. %th share of Jawala Parshad was inherited by his sons and daughters in equal shares being notional share of Jawala Parshad and the remaining /th share was owned and possessed by his sons exclusively being coparceners. Only notional share of %th belonging to Jawala Parshad was available for inheritance by the legal heirs in accordance with law and the same was to be devolved upon them as per law of Succession.
4. Plaintiffs averred that due to mistake of revenue staff, a mutation No.180 of inheritance was wrongly sanctioned on 14.05.1967 and the entire land was mutated in favour of all the sons and four daughters in equal shares to the extent of entitling them 1 /8th share each. Infact all the four sons inherited 9/40 share each and daughters inherited 1/40 share each because the daughters could have succeeded only to the extent of %th share belonging to Jawala Parshad on notional basis of coparcenership. Mutation No.180 was claimed to be illegal, null and void. Defendants No.1 to 4 never remained in possession of any share of the suit property at any point of time. It was further pleaded that due to wrong recording of mutation, defendants No.1 to 4 took illegal benefit of the same and sold /th share out of the suit land in excess of 1/40th share in favour of defendants No.5 to 7 and the same was also claimed to be illegal. The sale deeds were executed on 04.11.1997 and 05.11.1997 and mutations were also sanctioned accordingly. All the three sale deeds in respect of 14 Kanals 7 Marlas of land each in favour of defendants No.5 to 7 were claimed to be illegal, null and void.
5. The suit was contested by defendants No.1, 2 & 9 denying that Jawala Parshad had only Vsth share being only coparcener at the time of his death. Mutation No.180 dated 14.05.1967 was claimed to be legal. Concept of coparcenership of joint Hindu family was denied in the community of Ahirs as they were governed by customary laws in the matter of succession and alienation in District Gurgaon and the State of Punjab and Haryana. All the heirs of Jawala Parshad had inherited the property in equal shares. Father of the plaintiffs and other sons of Jawala Parshad never challenged the mutation of inheritance despite notice after the death of Hari Singh and his wi
