REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5514 OF 2005

Ganeshi (D) through LRs & Ors.

..

Appellants

-versus-

Ashok & Anr.

.. Respondents

J U D G M E N T

Markandey Katju, J.

1.

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

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the suit land be declared null and void and a declaration be given that the

plaintiffs have a right to inherit 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.

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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 the 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 plaintiff’s 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

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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 be