Ganeshi (D) through
LRS & Ors. Vs. Ashok & ANR
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 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.
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 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 land in favour of plaintiff
Nos.1 & 2, this resulted in a family unrest and hence defendant No. 1
pacified all the members of the family by way of a family settlement. It was
denied that the land was ancestral. It was also denied that defendant No.1 was
under the influence of his surviving sons.
9.
The
trial court decreed the suit holding that the judgment and decree dated
27.10.1978 amounts to alienation and without consideration and legal necessity.
It was held that the decree created new rights in defendants Nos.2 to 5, and it
cannot be said to be based on family settlement. Any alienation of immovable
property of value of Rs. 100/- had to be registered and in the present case,
the alienation is not by a registered document.
10.
The
trial court held that the suit land was ancestral property of Ganeshi qua the
plaintiffs. This finding is based on admission of Ganeshi that he has inherited
the property from his father Pran Sukh. The trial court also held that
defendant No.1 was governed by the custom in the matter of alienation, and
under that custom ordinarily ancestral immovable property is inalienable except
for legal necessity or with the consent of the male lineal descendants.
11.
The
defendants filed an appeal which was allowed by the first appellate court by the
judgment of the District Judge, Faridabad dated 2.11.1983. The first appellate court
held that plaintiffs Nos.1 & 2 (respondents in the first appeal) was given
land in 1969 by way of gift by Ganeshi and because of this there was some
unrest in the family, and hence the family settlement was made. The first
appellate court relied upon the 6judgment of this Court in Kale & Ors. vs. Deputy
Director of Consolidation AIR 1976 SC 807 which held that in order to sustain a
family settlement it is not necessary that there must be evidence of antecedent
title of the parties.
12.
The
first appellate court held that the land was not ancestral property of Ganeshi
because there was no proof that the land had descended from the father of
Ganeshi. It was held that Ganeshi held the land in question along with some
co-sharer's who acquired the same in whatever manner after the death of Bhim
Kaur.
13.
In
second appeal, the High Court has set aside the judgment of the first appellate
court and restored the judgment of the trial court. In our opinion, the judgment
of the High Court cannot be sustained. It is well settled that the High Court in
second appeal cannot interfere with the findings of fact of the first appellate
court.
14.
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. The decree in Civil Suit No.476 of 1978
was only in pursuance of that family settlement, and hence it could not be
interfered with.
15.
We
have carefully perused the judgment of the first appellate court which was the
last court of facts and we are of the opinion that the findings of fact given
by it are based on relevant evidence. Hence the High Court was not justified in
interfering with those findings.
16.
For
the foregoing reasons, the appeal is allowed. The impugned judgment and order of
the High court is set aside and that of the first appellate court is restored. There
shall be no order as to costs.
....................................J.
(Markandey Katju)
....................................J.
(Gyan sudha Misra)
New
Delhi;
April
04, 2011
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