HARI CHAND ROACHversusHEM CHAND AND ORS.

                    [2010] 12 S.C.R. 1125


                    HARi CHAND ROACH                               A
                               V.
                  HEM CHAND AND ORS.
               (Civil Appeal No. 432 of 2002)

                     OCTOBER 28, 2010                              B
   [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]


     Partition - Hindu joint family property - Family settlement
- Widow inheriting 1!3rd undivided share of her deceased           c
husband in two joint family properties - Family arrangement
between widow and her brothers-in-law - Widow relinquishing
her share and instead taking shares of her brothers-in-law -
Widow and her daughter selling the said property - Sale deed
- Challenge to, by brothers-in-law - Held( By virtue of the        D
family arrangement, widow and her daughter became absolute
owner of the said property and had full right to dispose of the
said property - It cannot be said that they had no pre-existing
right in the said land - Property was sold for consideration       E
and the sale was valid - Hindu Law.

     The three brothers - 'HR', 'K' and 'D" inherited an
undivided share in two joint family properties at places
'CN' and 'CK'. 'HR' expired and his wife 'J' inherited 113rd       F
of the undivided shares of 'HR' at places 'CN' and 'CK'.
'J' gifted part of the properties at place 'CN' in favour of
her daughter's son. Thereafter, 'J' entered into a family
arrangement with her brothers-in-law-'K' and 'D'. In terms
                                                                   G
thereof, she relinquished her share at place 'CK' and
instead took shares of 'K' and 'D' in properties at place
'CN'. 'J' and 'DB'-daughter of 'J' then sold certain

                            1125                                   H
    1126   SUPREME COURT REPORTS            [2010] 12 S.C.R.


A properties to the appellant. 'K' and 'D' filed a suit for
  possession and declaration that the sale deed was void.
  The trial court dismissed the suit. In appeal, the order
  passed by the trial court was upheld. In the second
  appeal, the Single Judge of the High Court held that 'J'
8
  and 'DB' had no pre-existing right in the said land.
  Therefore, the appellant filed the instant appeal.

       Allowing the appeal, the Court
c      HELD: 1.1 It is clear from all the documents and
  pleadings that because of the family arrangement, 'J' and
  'DB' became the absolute owners of the land at placa.
  'CN', measuring 36 Big has and 6 Biswas. They later on ·
D relinquished their undivided shares in 'CK' measuring 103
  Big has and 3 Biswas. The Single Judge of the High Court
  decided the second appeal preferred against the
  judgment of the District Judge on basis of the pleadings
  and the documents on record. But unfortunately the
E
  Single Judge observed that 'J' and 'DB' had no pre-
  existing right in the land in dispute and because of the
  said finding the Single Judge arrived at absolutely wrong
  conclusion. Thus, the said finding is set aside. [Para 13,
F 17] [1134-A; 1135-G-H]

       1.2 'J' inherited the estate of her husband 'HR' on his
  death in the year 1954. She had undivided shares at place
  'CN' and at place 'CK'. By a family arrangement, 'J'
G relinquished her share at place 'CK' and instead, she took
  the share of her brothers-in-law 'K' and 'D' at place 'CN'.
  Thus, 'J' and 'D' became full owner of the land at place
  'CN' and, consequently, had full right to dispose of the
H
  HARi CHAND ROACH v. HEM CHAND AND ORS.                     1127


said property. They had sold the property at place 'CN'               A
to the appellant. The property was sold for consideration
and in good faith. Thus, on consideration of the totality
of the facts and circumstances of the case, the impugned
judgment of the High Court cannot be sustained and is
                                                                      B
set aside. [Paras 18 and 19] [1136-A-C]

     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
432 of 2002.

     From the Judgment & Order dated 26.7.2000 of the High
                                                                      c
Court of Himachal Pradesh at Shimla in Second Appeal
R.S.A.No. 75 of 1993.

     C.U. Singh, Dharmesh Misra, Tara V. Ganju, Akansha,              D
Ritesh Sharma (for Pradeep Kumar Bakshi) for the Appellant.

    Ashok Kumar Chhabra, Alok Prakash (for Madhu
Moolchandani) for the Respondents.
                                                                      E
     The Judgment of the Court was delivered by

     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           F
of 1.993.

     2 .. Brief facts which are necessary to dispose of this appeal
are recapitulated as under.
                                                                      G
     3. In order to properly comprehend the inter se relationship
of the parties, the Genealogycal family tree is reproduced
herein.

                                                                      H
    1128       SUPREME COURT REPORTS                [201 OJ 12 S.C.R.


A
                         3 Parcels - Undivided




B
    HARi RAM                     KHA RIA                     DELU
     (Died 1954)             (Living n Kaljer) (Living in Shoongra)
    (Living in Soonthi             I
     till death)                   I
           I                       I
c          I                        I
     JAMNI, wife,             HEMCHAND
    (Living in Soonthi          (Son)
     till death)
           I
D          I
     DEVUKU                             SANG MA
     (Daughter)                        (Daughter)
                                       died young
E                                         I
                                          I
    JEET RAM         SANT RAM       FULGNA DEVI         VIDYAWATI
    (Son)             (Son)         (Daughter)          (Daughter)
F
       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
G Biswas and the other situated Chak Kaljer, measuring 103
  Big ha 10 Biswas.

         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
H
   HARi CHAND ROACH v. HEM CHAND AND ORS. 1129
            [DALVEER BHANDARI, J.]

Ram in both the Chaks and consequently mutation was carried            A
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           B
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
                                                                       c
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             D
of land at Chak Kaljer. As per the settlement dated 4.6.1964
between the parties, Jamni received 36 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
                                                                       E
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        F
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               G
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       H
    1130     SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   District Judge partly allowed the appeal of the present appellant
    on 15.12.1992 and dismissed the appeal filed by the
    respondent herein. The Trial Court judgment was affirmed by
    the learned District Judge.

B        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
c       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
D
        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
E
        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 village Soonthi was
        forming part of Chak Nani. By way of family arrangement
F
        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
G
        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
H
 HARi CHAND ROACH v. HEM CHAND AND ORS.                   1131
          [DALVEER BHANDARI, J]
    gifted her share in the land in favour of Hem Chand and        A
    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       8
    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            C
    consideration. As the sale is valid and legal and as such
    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
                                                                   0
    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:
                                                                   E
    "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. 08 and 09 respectively, his
    1/3rd share was inherited by the widow namely deceased
                                                                   F
    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       G
    copy of jamabandi for the year 1954-55 Ext. 06. 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 of deceased Hari Chand in equal share in the
                                                                   H
    1132     SUPREME COURT REPORTS                  (2010] 12 S.C.R.


A       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
B       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 C;1ak Nani mutated on the same
        day vide mutation No.43 in favour of Smt. Jamni and
c       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
D       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. 010 in
        February, 1959."

E        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 Nos.1 & 2. In the said written statement
    they have stated about the family arrangement, which reads
    under:
F
                "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,
G        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
H
HARi CHAND ROACH v. HEM CHAND AND ORS. 1133
         [DALVEER BHANDARI, J.]

 inheritance were attested in favour of the replying            A
 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        B
 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 family arrangement as complete             c
 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
                                                                D
 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      E
 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             F
 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.
                                                                G
      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
 mutations of exchange in which the parties have
 exchanged the lands of their exclusive ownership. It is thus   H
    1134    SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A       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
8
  Bigha 6 Biswas. They later on relinquished their undivided
  shares in Chak Kaljer measuring 103 Big ha 3 Biswas. A
  second appeal was preferred against the judgment of the
  learned District Judge before the High Court of Himachal
C 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
D       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 learned
    Single Judge observed as under:
E       "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."

F       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
G       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
H
 HARi CHAND ROACH v. HEM CHAND AND ORS.                    1135
          [DALVEER BHANDARI, J.]

    remarks column dated 22.2.1955 and 21.2.1955,                   A
    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
    consideration of these documents, it is proved that after
    the death of Hari Ram his widow Smt. Jamani had                 s
    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         c
    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        D
    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."
                                                                    E

    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.                                                               F

     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          G
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.

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    1136      SUPREME COURT REPORTS              [2010] 12 S.C.R.


A          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-
B 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.
c        19. On consideration of the totality of the facts 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.
D
    N.J.                                         Appeal allowed.