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2011 Supreme(UK) 216
2011 (1) UAD 844
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Markandey Katju and Hon’ble Mrs. Justice Gyan Sudha Misra
Civil Appeal No. 5514 of 2005
GANESHI (D) BY LRS. & ORS. – Appellants
Versus
ASHOK & ANR. – Respondents
Decided on : 04.04.2011
For the Appellants :Mr. Ajay Majithia, Mr. R.S. Ahuja, Mr. Rajesh Kumar, Dr. Kailash Chand, Advocates
For the Respondents:Mr. Shivaji M. Jadhav, Advocate
Headnote:(A) Family Settlement — In order to sustain a family settlement it is not necessary that there must be evidence of antecedent title of the parties. — AIR 1976 SC 807 relied on. (Para 11)
(B) Second Appeal — It is well settled that the High Court in second appeal cannot interfere with the findings of fact of the first appellate court. (Para 13)
(C) Family Settlement — A family settlement is not a transfer of property, as rightly held by the first appellate court — The first appellate court held that the family settlement was bona fide to avoid disputes in the family. (Para 14)
¼v½ ikfjokfjd le>kSrk & fdlh ikfjokfjd le>kSrs dks ykxw fd;s tkus ds okLrs fd ml ds lEcU/k esa i{kdkjksa ds laHkkfor LokfeRo dk lk{; miyC/k djk;k tkuk visf{kr gS] vko';d ugha gSA ¼izLrj 11½
¼c½ f}rh; vihy & ;g izfrikfnr fl)kUr gS fd f}rh; vihy esa mPp U;k;ky; }kjk izFke vihyh; U;k;ky; ds rF;ksa ds fu.kZ; es agLr{ksi ugha fd;k tk ldrkA
¼izLrj 13½
¼l½ ikfjokfjd le>kSrk & ,d ikfjokfjd le>kSrk lEifRr dk dksbZ varj.k i= ugha gksrk tks fd izFke vihysV U;k;ky; }kjk lgh gh fu.kZ; fn;k x;k gS & izFke vihysV U;k;ky; }kjk ;g fu.kZ; fn;k x;k Fkk fd ikfjokfjd le>kSrk ifjokj esa dksbZ fookn u gksus ls cpkus dk ewy nLrkost gSA ¼izLrj 14½
Markandey Katju, J. — This appeal has been filed against the judgment and order dated 29.3.2005 of the Punjab & Haryana High Court at Chandigarh in regular Second Appeal No. 476 of 1984.
2. Heard learned counsel for the parties and perused the record.
3. The respondents herein filed a Civil Suit being No. 58 of 1980 with a prayer that the judgment and decree passed in Civil Suit No. 476 of 1978 titled Jagbir and others Vs. Ganeshi and others dated 27.10.1978 relating to the suit land be declared null and void and a declaration be given that the plaintiffs have a right to inherent the suit land on the death of defendant No. 1 and in the alternative for declaration that the alienation of the suit land made by defendant No. 1 in favour of defendants 2 to 5 by the aforesaid judgment and decree dated 27.10.1978 is null and void being against the custom and will not operate against the right for succession of the plaintiffs and other heirs of defendant No. 1 on his death. Plaintiffs Nos. 1 and 2 were minors and the suit was filed on their behalf by the mother Smt. Padam Devi who was also one of the plaintiffs.
4. The case of plaintiff Nos. 1 and 2 was that they are the sons of one Ramgopal and Padam Devi, widow of deceased Ramgopal. It was alleged that the plaintiffs as well as the other defendants were the descendants of defendant No. 1 as given in the pedigree table given in para of the plaint. The plaintiffs Nos. 1 and 2 are minors and they filed the present suit through their mother Smt. Padam Devi. It was alleged that defendant No. 1 is a Hindu Jat and is governed by the agricultural custom according to which ancestral immovable property cannot be alienated except for legal necessity and consideration.
5. It was alleged that defendant No. 1 Ganeshi had three sons, being Ramgopal, Dharambir and Jugal. Ramgopal, father of the plaintiffs died some years ago. It was also alleged that defendant No. 1 was under the influence of his surviving sons namely, Dharambir and Yugal Kishore @ Jugal Singh. Defendant No. 2 is the son and defendant No. 3 is the wife of Dharambir. Defendant No. 4 is the son and defendant No. 5 is the wife of Yugal Kishore @ Jugal Singh.
6. It was alleged that a month before filing of the plaint, the plaintiffs came to know that in order to deprive them of their right to inherit the suit land on the death of defendant No. 1, defendant Nos. 2 to 5 filed a collusive suit against defendant no. 1 bearing suit No. 476 of 1978 in the Court of sub-Judge, IInd Class, Palwal for declaration that they are owners of the suit land. Defendant No. 1 suffered that decree against him on his admission on 27.10.1978. It was alleged that the said decree could not extinguish the rights of ownership of the plaintiffs in respect of the suit land, and it was null and void and would not operate against the plaintiffs right of succession on the death of defendant No. 1. It was further alleged that plaintiffs Nos. 1 and 2 are sons of Ramgopal and the land is ancestral property. According to agricultural custom defendant No. 1 could not transfer the suit land in favour of defendant Nos. 2 to 5 who were not his heirs to the exclusion of the plaintiffs who were his heirs. It was further alleged that, in the alternative, the said decree amounts to alienation and without consideration and legal necessity. It was alleged that defendants Nos. 6 & 7 have colluded with defendant Nos. 1 to 5.
7. The defendants contested the suit. It was alleged in the written submissions that defendant No. 1 did not transfer and alienate the land in suit in favour of the answering defendants, but the suit land was settled on them by way of family settlement arrived at between the defendants. Some agricultural land was already gifted by defendant No.1 in favour of plaintiffs Nos. 1 and 2. It was because of that reason that the family settlement was arrived at in order to avoid family dispute.
8. It was alleged that since defendant No. 1 gifted some of his la
