//
you're reading...
legal issues

whether the family settlement and exchange of properties is valid ? – Jamni inherited the estate of her husband Hari Ram on his death in the year 1954. She had undivided shares in Chak Nani and Chak Kaljer. By a family arrangement, Jamni had relinquished her share in Chak Kaljer and instead, she took the share of her brothers-in-law Kharia and Delu in Chak Nani. Thus, Jamni and Debku became full owner of the Chak Nani and consequently had full right to dispose of the said property at Chak Nani. They had sold the property (at Chak Nani) to the appellant herein. The property was sold for consideration and in good faith.

Raja Sansar Chand of the small kingdom of Kang...

Image via Wikipedia

 1

 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 432 OF 2002

HARI CHAND ROACH Appellant(s)
 :VERSUS:
HEM CHAND AND ORS. Respondent(s)

 J U D G M E N T

Dalveer Bhandari, J.

1. This appeal emanates from the judgment of the

High Court of Himachal Pradesh at Shimla delivered

on 26th July, 2000 in Regular Second Appeal No.75 of

1993.

2. Brief facts which are necessary to dispose of

this appeal are recapitulated as under.

3. In order to properly comprehend the inter se

relationship of the parties, the Genealogycal family

tree is reproduced herein.
 2

 3 Parcels - Undivided

 |
 |
 ______________________________________________
 | | |
 HARI RAM KHARIA DELU
 (Died 1954) (Living in Kaljer) (Living in Shoongra)
(Living in Soonthi |
 till death) |
 | |
 | |
 JAMNI, wife, HEMCHAND
(Living in Soonthi (Son)
 till death)
 |
 |
 __________________________
 | |
 DEVUKU SANGMA
 (Daughter) (Daughter)
 died young
 |
 |
 __________________________________________
 | | | |
 JEET RAM SANT RAM FULGNA DEVI VIDYAWATI
 (Son) (Son) (Daughter) (Daughter)

 4. Admittedly, Hari Ram, Kharia and Delu were

 brothers and they inherited an undivided share in

 the two joint family properties, one situated at

 Chak Nani measuring 55 Bigha 2 Biswas and the other

 situated Chak Kaljer, measuring 103 Bigha 10

 Biswas.
 3

5. Hari Ram died in 1954 without any male issue

and he was survived by his widow Jamni and daughter

Debku. After the death of Hari Ram, Jamni inherited

the entire share of Hari Ram in both the Chaks and

consequently mutation was carried out in her name in

the year 1955.

6. Jamni, wife of Hari Ram, gifted 18 Bigha 3

Biswas of land at Chak Nani in favour of Jeet Ram,

her grandson (son of her daughter) vide a registered

deed on 17.10.1958, leaving balance of 36 Bigha 6

Biswas of land at Chak Nani. It may be relevant to

mention here that the gift deed clearly stated that

she had given it to Jeet Ram and his wife because

they had taken good care of her.

7. Jamni filed an application for partition of

the land in Chak Kaljer against her two brothers-in-

law Kharia and Delu. A compromise was arrived at

between them on 13.11.1963. As per the compromise,

an oral gift was made by Jamni to Hem Chand son of

Kharia by which she gifted 40 Bigha 10 Biswas of

land at Chak Kaljer. As per the settlement dated

4.6.1964 between the parties, Jamni received 36
 4

Bigha 6 Biswas of land at Chak Nani. Approximately

36 Bigha of land was exchanged as per the family

arrangement between the parties. Jamni and her

daughter Debku were shown as the owner in possession

of the Jamabandi record of rights.

8. The appellant Hari Chand Roach purchased 36

Bigha 6 Biswas of land from Jamni and Debku for a

consideration of Rs.40,000/- by a registered sale

deed on 22.6.1979. Rs.9,000/- was paid at the time

of giving possession of the land and the balance

amount of Rs.31,000/- was paid in the presence of

Sub Registrar and other witnesses.

9. Kharia and Delu filed a suit on 12.7.1979 for

declaration and possession and prayed that the sale

deed be declared void. The Trial Court i.e. the

Court of Sub Judge, 1st Class, Theog, vide its

judgment dated 31.12.1987 dismissed the suit holding

that Jamni and Debku had a limited interest in the

estate. Against the judgment of the Trial Court,

appeals were filed by both the parties before the

District Judge. The learned District Judge partly

allowed the appeal of the present appellant on
 5

15.12.1992 and dismissed the appeal filed by the

respondent herein. The Trial Court judgment was

affirmed by the learned District Judge.

10. The learned District Judge has dealt with the

aspect of family arrangement in great detail in

paragraph 3 of her judgment, which reads as under:

 "Defendants Smt. Jamni and Debku as well as
 defendant Hem Chand contested the suit.
 Defendants Smt. Jamni and Debku in their
 joint written statement raised manifold
 preliminary objections. Firstly according
 to them the suit was not properly valued
 for purposes of court fee and jurisdiction
 and secondly that the plaintiffs cannot
 claim relief of possession without raising
 the necessary pleadings as the plaintiffs
 have no subsisting right to file the suit.
 In reply on merits, they described
 themselves to be the owner in possession of
 the disputed land. The deceased plaintiffs
 Kharia and Delu had one more brother namely
 Hari Ram who was the husband of deceased
 defendant Jamni and father of defendant
 Debku. They had land in two revenue chaks
 namely Kaljer and Nani although in three
 villages. Villages Kaljer and Shoongra
 were forming part of Chak Kaljer while
 6

village Soonthi was forming part of Chak
Nani. By way of family arrangement deceased
plaintiff Kharia was living in Chak Kaljer
while deceased plaintiff Delu and their
husband/father (Hari Ram) were living in
Chak Nani. On the death of Hari Ram, his
estate devolved upon the replying
defendants and the mutations were
accordingly attested in their favour. Thus
they became the absolute owner and were in
possession of the land qua the share of
deceased Hari Ram. In the year 1962-63
defendant Jamni applied for partition of
the land but there was a compromise between
the plaintiffs and Smt. Jamni and as per
that compromise defendant Jamni gifted her
share in the land in favour of Hem Chand
and son of deceased plaintiff Kharia vilde
mutation no.115 in Chak Kaljer while in
return the deceased plaintiffs gave the
land to the two defendants namely Smt.
Jamni and Debku in Chak Nani vide mutation
No.43 but these mutations are stated to be
wrong. Provisions of Section 14(2) of
Hindu Succession Act, 1956 (in short called
Act) is not application to the present case
as the two replying defendants were the
absolute owners of the land and were also
in its possession and accordingly were
competent to sell the same in favour of
defendant Hari Chand for consideration. As
the sale is valid and legal and as such
 7

 after such sale Shri Hari Chand has become
 the exclusive owner of the land and is also
 in its possession. The sale consideration
 is described to Rs.40,000/- which was duly
 received by them. The plaintiffs never
 objected to such a sale although they had
 knowledge of it. All other averments made
 in the plaint have been denied."

11. The learned District Judge in the concluding

portion of her judgment has observed as under:

 "Undisputedly Hari Ram, brother of of
 deceased plaintiffs Kharia and Delu was
 having 1/3rd share in the lands in two Chaks
 namely Kaljer and Nani and on his death
 vide mutation No.19 and 70 Exts. D8 and D9
 respectively, his 1/3rd share was inherited
 by the widow namely deceased defendant Smt.
 Jamni. These two mutations were attested in
 the year 1955 and accordingly her name came
 to be entered in the copies of jamabandies
 qua 1/3rd share in the column of ownership
 and possession along with deceased
 plaintiff Kharia and Delu as borne out from
 the copy of jamabandi for the year 1954-55
 Ext.D6. In the year 1956 the Act came into
 force and obviously in view of the
 provisions of Section 6 of the Act daughter
 and widow being the legal heirs of class
 one were entitled to succeed to the share
 8

 of deceased Hari Chand in equal share in
 the two Chaks. Accordingly, they filed
 applications for partition of the land of
 their respective shares but on 3rd June 1964
 some settlement was arrived at between the
 deceased plaintiffs Kharia and Delu and
 deceased defendant Smt. Jamni and defendant
 Smt. Debku as a result of such settlement,
 on 3-6-64 Smt. Jamni orally gifted 1/3rd
 share in the land in Chak Kaljer vide
 mutation No.115 in favour of plaintiff Hem
 Chand son of deceased plaintiff Kharia and
 in return the deceased plaintiffs Kharia
 and Delu got 1/3rd share of the land in Chak
 Nani mutated on the same day vide mutation
 No.43 in favour of Smt. Jamni and Debku
 making them the limited owners of the land.
 The two mutations dated 3-6-64 are Ext. P10
 and P3, respectively. The factum of a
 settlement having arrived amongst the
 deceased plaintiffs and deceased Smt. Jamni
 is further born out from mutation No.42
 Ext. P9 vide which some of the land stood
 mutated in favour of Jeet Ram in whose
 favour that land was gifted by a verbal
 gift by Smt. Jamni in the year 1959 vide
 mutation Ext. D10 in February, 1959."

12. It may be pertinent to mention here that in

the suit filed by Kharia and Delu, a joint written

statement was filed by Jamni and Debku - defendant
 9

Nos.1 & 2. In the said written statement they have

stated about the family arrangement, which reads

under:

 "That by family arrangement the
 plaintiff Kharia was and is living in
 village Kaljer, Shri Delu plaintiff was and
 is living in village Shoongra and Shri Hari
 Ram deceased (the predecessor in interest
 of the replying defendants) was living at
 village Soonthi till his death. These
 three brothers, Kharia, Delu and Hari Ram
 had separate residence, food, worship and
 cultivation of the land. That on the death
 of Shri Hari Ram which occurred about 24
 years ago, his estate devolved upon the
 replying defendants, the mutation No.19
 Chak Nani and mutation No.70 Chak Kaljer
 about inheritance were attested in favour
 of the replying defendants. On the death of
 Shri Hari Ram defendants became the
 absolute owners in possession of the land
 qua the share of Shri Hari Ram. That
 somewhere in 1962 or 1963, the replying
 defendant No.1 applied for partition of the
 land in the Court of A.C. 1st Grade, Theog.
 In that partition application the
 plaintiffs and the defendant No.1 effected
 the compromise and in pursuance of that
 compromise the parties agreed to partition
 the land privately in accordance with the
 family arrangement and agreed to treat the
 10

family arrangement as complete partition
between them. This compromise took place
in the year 1963. That in pursuance of
that compromise the replying defendant No.1
agreed to get her as well as the name of
defendant No.2 removed from the revenue
papers of villages Kaljer and Shoongra of
Chak Kaljer and the plaintiffs also agreed
to get their names removed from the revenue
papers of village Soonthi of Chak Nani. The
plaintiff Shri Delu had no issue at that
time, thus he preferred to keep his Khata
with Kharia plaintiff. The plaintiffs asked
the defendants to attest the mutation in
favour of Hem Chand the only son of Shri
Kharia plaintiff and thus mutation No.115
Chak Kaljer was entered and attested in
favour of Hem Chand. The mutation No.115
showing the gift of the land is wrong and
contrary to facts. The plaintiffs in
pursuance of the compromise also attested
mutation No.43 Chak Nani in favour of the
replying defendants. That in that the
mutation No.43 Chak Nani and mutation
No.115 Chak Kaljer were relating to private
partition. The mutations were effected with
a view to give effect to the private
partition.
 In the alternative, if the mutation
No.43 Chak Nani and mutation No.115 Chak
Kaljer are not treated as mutations of
private partition, the same be treated as
 11

 mutations of exchange in which the parties
 have exchanged the lands of their exclusive
 ownership. It is thus wrong and denied that
 the defendants No.1 & 2 were given only
 limited rights."

13. It is clear from all these documents and

pleadings that because of the family arrangement,

Jamni and Debku became the absolute owners of the

land at Chak Nani, measuring 36 Bigha 6 Biswas. They

later on relinquished their undivided shares in Chak

Kaljer measuring 103 Bigha 3 Biswas. A second appeal

was preferred against the judgment of the learned

District Judge before the High Court of Himachal

Pradesh at Shimla. Learned Single Judge of the High

Court decided the second appeal and aptly observed

as under:

 "From the oral testimony of plaintiff No.1
 Hem Chand corroborated by PW-2 Mast Ram,
 PW-3 Narayan Singh and PW-4 Puran, it
 stands clearly proved that Smt. Jamani had
 inherited estate of her husband Hari Ram to
 the extent of 1/3rd share out of the total
 shares."

14. Similarly, at Page 17 of the judgment the
 12

learned Single Judge observed as under:

 "After family settlement, when Smt. Jamani
 approached Kharia and Delu, they gladly
 accepted her request to part with their
 respective shares of the land in mauja Nani
 which is the subject matter of the
 controversy."

15. The learned Single Judge also observed as

under:

 "From the entire oral and documentary
 evidence led by the patties, it stands
 proved that the land in dispute fell in
 the shares of Kharia and Delu
 predecessors-in-interest of the plaintiffs
 after the family settlement was arrived
 at between them and Smt. Jamani widow of
 Hari Ram. It is an admitted case of the
 parties that after the death of Hari Ram
 his entire estate was inherited by his
 widow Smt. Jamani. This fact stands
 proved on record from copies of mutations
 Exts.P-4 to P-6 in which it has clearly
 been shown in the remarks column dated
 22.2.1955 and 21.2.1955, respectively,
 that the estate of Hari Ram had devolved
 upon Smt. Jamani and the mutation of
 inheritance stood sanctioned in her
 favour. On careful appraisal and
 13

 consideration of these documents, it is
 proved that after the death of Hari Ram
 his widow Smt. Jamani had inherited 1/3rd
 share of her husband and she became
 absolute owner in possession of the estate
 inherited by her. Copy of mutation No.30
 Ex.P-7 would go to show that Smt. Jamani
 gifted 1/3rd of her share of the land
 inherited by her situated in mauja Nani in
 favour of Jeet Ram and mutation in respect
 of the said land was sanctioned by the
 revenue official on 21.3.1959. Again Smt.
 Jamani gifted 1/3rd of her share to Hem
 Chand, plaintiff No.1 of the land situate
 in mauja Kaljer and mutation of the said
 land came to be attested in his favour by
 the revenue authority on 3.6.1964, vide
 copy marked as Ext.P-10 on the record.
 Thus, the documents relied upon by the
 parties would clearly prove that after
 becoming absolute owner of the share of
 her husband, Smt. Jamani had gifted her
 share in favour of Jeet Ram and plaintiff
 No.1 in the year 1959 and 1964."

16. In our considered view, it is not necessary to

examine the applicability of Sections 14(1) and

14(2) of the Hindu Succession Act, 1956 in the facts

and circumstances of this case.
 14

17. All the above quoted observations of the

learned Single Judge of the High Court are based on

the pleadings and the documents on record. But

unfortunately at page 22 of the judgment, the

learned Single Judge observed that Jamni and Debku

had no pre-existing right in the land in dispute and

because of this finding, the learned Single Judge

has arrived at absolutely wrong conclusion.

Consequently, this finding is set aside.

18. We are clearly of the view that Jamni

inherited the estate of her husband Hari Ram on his

death in the year 1954. She had undivided shares in

Chak Nani and Chak Kaljer. By a family arrangement,

Jamni had relinquished her share in Chak Kaljer and

instead, she took the share of her brothers-in-law

Kharia and Delu in Chak Nani. Thus, Jamni and Debku

became full owner of the Chak Nani and consequently

had full right to dispose of the said property at

Chak Nani. They had sold the property (at Chak Nani)

to the appellant herein. The property was sold for

consideration and in good faith.

19. On consideration of the totality of the facts
 15

and circumstances of this case, the impugned

judgment of the High Court cannot be sustained and

consequently the same is set aside. The appeal is

accordingly allowed, leaving the parties to bear

their own costs.

 .....................J
 (DALVEER BHANDARI)

 .....................J
 (DEEPAK VERMA)New Delhi;
October 28, 2010.

About advocatemmmohan

ADVOCATE

Blog Stats

  • 2,897,920 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other subscribers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: