Ashwani and others Versus Smt. Murti Devi and others.

IN THE COURT OF SUKHPREET SINGH, ADDL. CIVIL JUDGE

(SENIOR DIVISION) SONIPAT.

UID [Link]-0228.
CNR No. HRSO020022462014.
Registration/CIS no.9963 of 2014.
Civil Suit No.301 of 2014.
Date of Institution: 26.11.2014.
Date of Decision: 29.11.2017.

1. Ashwani son,
2. Renu, daughter,
3. Pooja, daughter of Kalu Ram son of Ram Chander son of Inchha Ram,
resident of village Rai, Sub Tehsil Rai, District Sonipat.
...Plaintiffs.
Versus

1. Smt. Murti Devi wife of Kewal Singh son of Ram Mehar, resident of
[Link].23B, Village Kakrola, Delhi-110078.
2. Kalu Ram son of Ram Chander son of Inchha Ram, resident of village
Rai, Sub Tehsil Rai, District Sonipat.

...Defendants.

Suit for Declaration & Joint Possession.

Present: Shri [Link], Advocate for the plaintiffs.

Shri Ram Mehar Kaushik, Advocate for the defendant no.1.
Defendant no.2 already proceeded against ex parte vide order
dated 19.01.2015.

JUDGMENT

The plaintiffs have preferred the present suit seeking a decree of

declaration to the effect that the sale deed bearing no.3227 dated 17.2.2014

and its consequent mutation no.2749 are illegal, null and void and not

binding upon the rights of the plaintiff (hereinafter referred to as sale deed in

question) and further a decree of joint possession of the land comprised in

Khewat no.28, Khata no.32, rectangle and Killa no.11//4 (3-9), 6/1 (0-7), 7/1

(4-4), total measuring 8 Kanals 0 Marla, situated in the revenue estate of

 Ashwani and others Versus Smt. Murti Devi and others. 2

village Rai, Sub Tehsil Rai, District Sonipat (hereinafter referred to as suit

land).

2. In brief the case of the plaintiffs is that the defendant no.2 Kalu

Ram was owner in possession to the extent of 27/160 share in the suit land

and he sold away his 27/160 share in the suit land in favour of defendant

no.1 vide sale deed no.3227 dated 17.2.2014 and on the basis of the said sale

deed, mutation bearing no.2749 dated 23.5.2014 was entered and sanctioned.

The defendant no.2 – Kalu Ram also sold away his 755/915 share i.e. 37

Kanals 15 Marlas, out of the land measuring 45 Kanals 15 Marlas,

comprised in Khewat No.19/22min, Khata No.24 and 26, rectangle and Killa

no.11/4 (3-9), 6 (0-18), 7 (8-0), 14min North (6-18), 15min North (2-3),

14min South (1-2), 15min South (0-13), 16 (4-10), 17 (8-0), 24 (8-0), 25/2

(2-2) to one Smt. Pushpa Rani vide sale deed no.5548 dated 23.1.2003 for a

sale consideration of Rs.8,50,000/- only. The sale deed no.5548 dated

23.1.2003 was challenged by Kalu Ram and other co-sharers and the appeal

thereof is still pending in the Punjab and Haryana High Court, Chandigarh.

3. It has also been averred that the sale deed in question is illegal,

null and void on the grounds that the suit land in the hands of defendant no.2

was ancestral, thus, the plaintiffs were co-parceners along with their father

by birth; the suit land sold by defendant no.2 in favour of defendant no.1

was without legal necessity, consideration and without the prior permission

of the plaintiffs and that more than his share. The plaintiffs requested the

defendant no.1 to hand over the joint possession of the suit land sold by

defendant no.2 to them and to get the sale deed in question and its

consequent mutation as illegal, null and void and not binding upon the rights
 Ashwani and others Versus Smt. Murti Devi and others. 3

of the plaintiffs but, to no effect. Hence, the present suit.

4. Notice of the suit was served upon the defendants. The

defendant no.1 appeared and filed her written statement, whereas, defendant

no.2 did not appear and was proceeded against ex-parte.

5. The defendant no.1 in her written statement assailed the suit of

the plaintiffs on various grounds. Preliminary objections regarding

maintainability, cause of action, locus-standi, concealment of true and

material facts etc., estoppel and valuation etc. have been raised. On merits, it

has been submitted that the suit land was purchased by the defendant no.1

vide sale deerd no.3227 dated 17.2.2014 after paying valuable sale

consideration to the defendant no.2 as the defendant no.2 was fully

competent to sell out the suit land to the defendant no.1 as such, the sale

deed in question is legal, valid and binding upon the plaintiffs. There was no

need to obtain the consent of the plaintiffs prior to the sale of the suit land.

Remaining averments of the plaint have been categorically denied and the

dismissal of the suit has been prayed for.

6. The plaintiff did not prefer any replication to the written

statement filed by the defendant no.1. On these pleadings of the parties the

following issues were framed by Shri Surender Kumar, the then learned

Addl. Civil Judge (Senior Division), Sonipat vide order dated 07.01.2017 :-

1. Whether the plaintiffs are entitled to a decree for declaration to

the effect that the sale deed no.3227 dated 17.0.20214 and its
mutation no.2749 are null and void and not binding on the
rights of the plaintiffs, as prayed for ? OPP.

2. If issue no.1 is proved in affirmative, whether the plaintiffs are

also entitled to a decree for joint possession of the suit land
detailed in para no.1 of the plaint ? OPP.

3. Whether the suit of the plaintiffs is not maintainable in the

 Ashwani and others Versus Smt. Murti Devi and others. 4

present form as prayed for ? OPD.

4. Relief.

7. In order to substantiate their case, the plaintiff no.1 himself

stepped into the witness box as as PW.1. Thereafter, learned counsel for the

plaintiffs closed the evidence after tendering the following documents :-

Ex.P1 Mutation no.1518.

Ex.P2 Mutation no.2063.
Ex.P3 Mutation no.2749.
Ex.P4 Copy of jamabandi for the year 1969-70.
Ex.P5 Copy of jamabandi for the year 1994-95.
Ex.P6 Copy of jamabandi for the year 2009-2010.
Ex.P7 Certified copy of sale deed no.3227 dated 17.2.2014.
Ex.P8 Sijra Nasab/pedigree table.

8. When called upon to lead evidence, defendants examined

Sudesh Kumar son of Ramphal as DW.1. Thereafter, learned counsel for the

defendants vide their statements closed the evidence after tendering the

following documents :-

Ex.D1 Copy of jamabandi for the year 2014-2015.

Ex.D2 Copy of jamabandi for the year 2014-2015.
Ex.D3 Copy of jamabandi for the year 2014-2015.
Ex.D4 Copy of jamabandi for the year 2014-2015.
[Link].1/A Special Power of Attorney.

9. In rebuttal evidence, the learned counsel for the plaintiffs has

tendered certified copy of sale deed no.3491 dated 3.12.2014 and closed the

evidence.

10. I have heard learned counsel for the parties and have appraised
 Ashwani and others Versus Smt. Murti Devi and others. 5

the evidence available on record along with other material facts and

particulars of the case. My issue wise findings with reasons thereof are as

hereunder:-

Issues no.1 and 2.

11. Both these issues are inter connected with each other, therefore,

in order to avoid any repetition and for the sake of brevity, these issues are

taken up together for discussion. The onus to prove these issues was upon

the plaintiffs. In order to discharge the onus, plaintiff no.1 himself stepped

into the witness box as PW.1 and has reiterated and reasserted the contents

made in the plaint by way of his sworn affidavit [Link].1/A.

12. On the other hand, DW.1 Shri Suresh Kumar has reproduced the

contents of the written statement in his affidavit [Link].1/A.

13. The learned counsel for the plaintiff has argued that the

defendant no.2 is their father and was owner in possession of the suit land

which he had sold to defendant no.1 vide sale deed no.3227 dated 17.2.2014.

It was further argued that the sale deed in question is liable to be set aside

because the suit land in the hands of defendant no.2 is ancestral and the

plaintiffs are co-parceners along with their father by birth. It was further

argued that the suit land was sold without legal necessity, consideration and

without benefit of the state. It was further argued that the property sold by

defendant no.2 to defendant no.1 is more than his share and was also sold

without the consent of the plaintiffs who are the co-sharers and have birth

right in the suit land. In the end, a prayer for decreeing the suit and to hand

over the joint possession to the plaintiff has been made.

14. On the other hand, learned counsel for the defendant no.1 has
 Ashwani and others Versus Smt. Murti Devi and others. 6

argued that she has purchased the land from defendant no.2 by paying a sale

consideration and defendant no.2 was fully competent to sell out the suit

land to defendant no.1. It was further argued that since the defendant no.2

has every legal right to sell the suit land so, there was no need to take any

consent of the plaintiffs. Lastly, it was argued that the defendant no.1 is in

possession of the suit land after purchasing the same by paying a valuable

sale consideration so, a prayer for dismissal of the suit has been prayed for.

15. In the present case, the plaintiffs came with the plea that the suit

land is ancestral in nature and the plaintiffs are coparceners along with their

father – defendant no.2 by birth. On the other hand, the defendant no.1 came

with the plea that the defendant no.2 had every right to sell the suit land.

Hence, it is no where denied in the pleadings of the defendants that the suit

land is not a co-parcenary property. In order to prove the nature of the suit

land, plaintiffs have placed on record Sijra Nasab Ex.P.8 and also placed on

record mutations Ex.P.1 and Ex.P2. Besides this, jamabandis Ex.P.4 to

Ex.P.6 have been placed on record. These entire documents show the suit

land came to defendant no.2 through his fore-fathers. In support of their

contention, learned counsel for the plaintiffs have placed reliance upon the

law laid down in case of Sheo Ram Versus Rajaram and others, 2016 (3),

Civil Court Cases 688 (P&H) in which, it was held that the party claiming

any property to be joint family property has to prove that it was inherited

from father, father's father, father's father's father without intervention of a

female in the chain. In the present case, there is no intervention in the line

of inheritance. The learned counsel for the plaintiffs has also placed reliance

upon the law laid down in case of Narayanan Nair Versus Taluk Land
 Ashwani and others Versus Smt. Murti Devi and others. 7

Board, 1990 (Civil Court Cases 79 (Kerala) in which, it was held that

ancestral property meaning that all property which a man inherits from a

direct male ancestor nor exceeding three degrees higher than himself in

ancestral property. Hence, the plaintiffs have been able to establish that the

land in question is the ancestral property and they along with their father are

the members of the Joint Hindu Family.

16. Reference has also been made to Mewa Singh and others

Versus Sampuran Singh, 2000 (3) Civil Court Cases 573 (P&H) wherein, it

was held that child gets an interest in property by birth as co-

parcenary/ancestral property and has the right to challenge the alienation

made by father if it is against the norms of Hindu Law i.e. without legal

necessity, not for the benefit of the estate and as an act of mis-management.

In the present case, as discussed earlier, plaintiffs have got interest in the

property by birth and have the right to challenge the alienation made by their

father by way of the sale deed Ex.P.7. Reference in this regard has also been

made to Tara Chand and others Versus Vidya Dhar and another, 2014 (2)

Civil Court Cases 687 (P&H), wherein, it was held that Karta of Hindu joint

family has no unlimited right of sale of joint family property. Sale of

immovable property could be sustained to bind a coparcener only if it is

supported by legal necessity or for family benefit. Proof of legal necessity is

always on the purchaser whose evidence must be cogent and consistent with

the recitals in the sale deed about the necessity. But, in the present case, the

defendant no.1 has no where pleaded that the suit land was sold for a legal

necessity. Similarly, in the law laid down in case of Digvijay Singh and

others Versus Sant Ram and others, 2014 (1) Civil Court Cases 255
 Ashwani and others Versus Smt. Murti Devi and others. 8

(Rajasthan) and Nagammaand others Versus [Link] and others,

2008 (2) Civil Court Cases 434 (A.P) (DB), it was held that onus of proof is

on the purchaser to prove that property was alienated for legal necessity or

that he had made proper and bonafide enquiry as to existence of legal

necessity. If sale is not for legal necessity, it will not bind the other members

of the family.

17. It is also relevant to mention that the defendant no.1 has not

stepped into the witness box rather Shri Suresh Kumar DW.1 appeared on

her behalf as a special power of attorney. During the cross-examination, he

has admitted that he is not a party to the sale deed but, he was present at the

time of payment of sale consideration but, this fact has no where pleaded by

defendant no.1 in her written statement. The learned counsel for the

plaintiffs has also placed reliance upon the law laid down in case of Hari

Singh Vs. Sasvinder Kaur alias Sasvinder Ghai and others, 2011 (3),

LJR, 401 (P&H) wherein, it was held that the power of attorney holder can

act on behalf of principal and then power is confined to acts done by the

holder granted by the instrument. If the attorney holder has done the same

acts in pursuance of power of attorney, he cannot depose for the principal for

the acts done by the principal and not by him.

18. Hence, the plaintiffs have been able to establish the coparcenary

nature of the land in question and have been able to establish their right by

way of birth. The defendant no.1 failed to prove the legal necessity

regarding the sale of the suit land. Hence, the sale deed in question Ex.P.7

and its consequent mutation Ex.P.3 are hereby set-aside. Accordingly, both

the issues are decided in favour of plaintiffs and against defendants.

 Ashwani and others Versus Smt. Murti Devi and others. 9

Issue No.3.

19. The onus to prove this issue was upon the defendants but this

issue has neither been pressed during the course of arguments nor any

evidence has been led in this regard. However, in view of my findings on

issues no.1 and 2, he is held that the suit of the plaintiff is maintainable.

Accordingly, this issue is decided against the defendants and in favour of

plaintiffs.

Relief.
20. As a consequence of the findings recorded under above issues,

suit of the plaintiffs succeeds and the same is hereby decreed with costs to

the effect that the sale deed bearing no.3227 dated 17.2.2014 Ex.P.7 and the

subsequent mutation bearing no.2749 Ex.P.3 are illegal, null and void and

are set-aside. The defendant no.1 is directed to hand over the actual physical

possession of the suit land to the plaintiffs within a period of three months

from today. Decree-sheet be drawn accordingly and file be consigned to

the records after due compliance.

(Sukhpreet Singh)(HR0228)
Announced. Addl. Civil Judge (Sr. Divn.),
29.11.2017. Sonipat

Note: All the pages of this judgment have been checked & signed by me.

(Sukhpreet Singh)
Addl. Civil Judge (Sr. Divn.),
Sonipat 29.11.2017.
Joginder Sharma