(O&M) Ram Piari & ORS. v. Maya Devi & ORS.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH **** RSA No.832 of 1991 (O&M) Reserved on : 07.04.2025 Pronounced on : 21.04.2025 Ram Piari through her LRs and another .....Appellants Vs.
Maya Devi through her LRs and others .....Respondents CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. A.K. Garg, Advocate for appellant No.1(i). Mr. Tarunveer Vashisht, Advocate for appellant No.1(ii) and appellant No.2.
Mr. S.S. Salar, Advocate for respondents No.1 through LRs, 1(a) to (c).
DEEPAK GUPTA, J.
Two of the defendants, namely, Ram Piari and Nirmala Devi are before this Court in the present Regular Second Appeal against judgment & decree dated 19.11.1990 of the First Appellate Court of learned Addi1onal District Judge (III), Sangrur declaring sole plain1ff - Maya Devi to be owner of the suit property to the extent of 7/9th share, by se9ng aside the judgment & decree dated 02.11.1988 of the trial Court of learned Addi1onal Senior Sub Judge, Sangrur, whereby the share of the plain1ffMaya Devi was held to be only 1/36th. 2.
Trial Court record was called. The same has been perused. In order to avoid confusion, par1es shall be referred as per their status before the trial Court.
3.
Par1es are real siblings. Dispute is regarding 47 bighas 14 biswas of land situated in revenue estate of Village Deh Kalan, Tehsil and District Sangrur, fully detailed & described in head-note of the plaint, which Page No.1 out of 12 pages
was once owned by Balasa Ram son of Jeona Ram, the father of the par1es. On the death of Balasa Ram, he was succeeded by his widow - Smt. Kartar Kaur, five daughters, namely, Maya Devi, Surjit Kaur, Ram Piari alias Piari Devi, Nirmala Devi and Gurdev Kaur; and three sons, namely, Hukam Chand, Hari Chand and Bhim Chand. ADer the death of Balasa Ram and prior to death of his widow Kartar Kaur, one of their daughters, namely, Gurdev Kaur had expired unmarried.
4.
Civil Suit bearing CS No.334 of 1985 was filed by Maya Devi against her three sisters, namely, Surjit Kaur, Ram Piari & Nirmala Devi - defendants No.1 to 3, by claiming that all three of them had relinquished their share in the suit property in her (plain1ff's favour). She claimed to be owner in possession of 3/9th share i.e. 1/9th share each of her three sisters on the basis of relinquishment and by also asser1ng that even by way of adverse possession, she had become owner of their share. It was further claimed by the plain1ff that by virtue of Muta1on No.1177, 2/9th share of her mother - Kartar Kaur had been inherited by her. 5.
Later on, three brothers, namely, Hukam Chand, Hari Chand and Bhim Chand were also impleaded as defendants No.4 to 6. 6.
Defendants No.1 to 3 i.e. three sisters of the plain1ff filed wriHen statement admi9ng en1re claim of the plain1ff. They also made a statement to that effect before the Court on 01.02.1986. Two of the brothers, namely, Hari Chand and Bhim Chand also admiHed the claim of the plain1ff by filing wriHen statement to that effect. 7.
Suit was contested only by one of the brothers - defendant Hukam Chand, who denied any relinquishment of share by the three sisters in favour of plain1ff - Maya Devi. He denied that plain1ff- Maya Devi inherited the share in the suit property of their mother - Smt. Kartar Kaur and assailed the validity of the Muta1on No.1177. He also claimed the suit property to be ancestral and co-parcenary in nature in the hands of Balasa Ram. He prayed for dismissal of the suit.
Page No.2 out of 12 pages
8.
It may be noted here itself that on 09.09.1986, an applica1on was moved by one of the defendants - Piari Devi, i.e., the sister of the plain1ff claiming that she had not signed any document nor had made any statement and that her thumb impression and that of her two sisters had been forged. Though the said applica1on was taken on record but no order was passed on the same.
9.
Necessary issues were framed. Evidence produced by the par1es was taken on record.
10.
Trial Court held the suit property to be ancestral in nature; that plain1ff failed to prove any relinquishment of their share by her sisters i.e. defendants No.1 to 3 in her favour; and that muta1on in itself did not prove inheri1ng of the share of mother - Kartar Kaur by the plain1ff in the absence of any document suppor1ng the muta1on. With these findings, the trial Court held that plain1ff was en1tled to 1/36th share in the suit property, which she inherited in her own rights. Suit was accordingly partly decreed vide judgment dated 02.11.1988.
11.1 In the appeal filed by plain1ff - Maya Devi, the finding to the effect that suit property was ancestral in nature was not disturbed. It was further held that defendants No.1 to 3 had admiHed the claim of the plain1ff and had also made statement to that effect before the Court and so, no further proof regarding the relinquishment in favour of the plain1ff was required.
11.2 During pendency of the above appeal, Hukam Chand also transferred his share in favour of plain1ff- Maya Devi and as such, the Appellate Court vide its judgment dated 19.11.1990 held that plain1ff was owner to the extent of 7/9th share (1/9th share of her own; 2/9th share inherited from her mother on the basis of a Will; 3/9th share relinquished by three sisters in her favour, and 1/9th share as sold by Hukam Chand in her favour). Accordingly, while se9ng aside the judgment & decree dated 02.11.1988 of the trial Court, the Appellate Court held the plain1ff- Maya Page No.3 out of 12 pages
Devi to be owner of 7/9th share in the suit property. 12.1 Against the above-said judgment dated 19.11.1990 of the First Appellate Court, two of the defendants, Ram Piari and Nirmala Devi, i.e. two sisters of plain1ff- Maya Devi filed the present Regular Second Appeal, contending that plain1ff had claimed declara1on only regarding 1/3rd share in the suit property and that Appellate Court wrongly declared the plain1ff to be owner to the extent of 7/9th share.
12.2 S1ll further, it is contended that there was neither any pleading nor any evidence in respect of any Will of Smt. Kartar Kaur in favour of plain1ff- Maya Devi and so, the Appellate Court wrongly held the plain1ff to be owner of 2/9th share of Kartar Kaur in her favour at its own. 12.3 Another conten1on raised by the appellants is that the appeal has been decided by the First Appellate Court based upon the admission of defendants- appellants, namely, Nirmala Devi and Ram Piari despite the fact that an applica1on dated 09.09.1986 had been moved to withdraw from that admission. It was claimed that the appellants had not assailed the judgment dated 02.11.1988 of the trial Court because by that judgment, their (appellants') rights were not affected but their rights have now been affected in view of the judgment of the First Appellate Court. 12.4 With these submissions, prayer is made to set aside the judgment and decree as passed by the First Appellate Court. 13.
During pendency of the present appeal before this Court, appellant No.1 - Ram Piari; contes1ng respondent- plain1ff- Maya Devi; and respondents Surjit Kaur & Hari Chand expired. Their respec1ve legal representa1ves were brought on record.
14.
An applica1on bearing CM No.13887-C of 2014 was moved by respondent- Maya Devi under Order 41 Rule 27 read with Sec1on 151 CPC to place on record documents Annexures R.1 to R.5 pertaining to Civil Suit No.393 of 1986 filed by one of the defendants of the present case, namely, Page No.4 out of 12 pages
Hukam Chand, i.e., one of the brothers of the plain1ff against the other siblings. Vide order dated 12.12.2014, this Court had directed to hear the said applica1on along with the main case.
15.
During further proceedings, applica1on bearing CM No.3387-C of 2023 has been moved by both the legal representa1ves of appellant No.1 - Ram Piari to place on record their respec1ve affidavits so as to withdraw this appeal.
16.
At the 1me of arguments before this court, learned counsel for the appellants made two fold submissions. The first submission is that decree for declara1on was sought by Maya Devi only regarding 1/3rd share in the suit property and so, Appellate Court commiHed error in declaring the plain1ff to be owner to the extent of 7/9th share. The second submission is that as First Appellate Court has decreed the claim of the plain1ff based upon the wriHen statement; and the statements as made by the appellants before the trial Court, so the Appellate Court could not have ignored the applica1on dated 09.09.1986, which was moved for withdrawal of the admission. With these submissions, prayer is made to set aside the judgment & decree passed by the First Appellate Court. 17.
Refu1ng the afore-said conten1ons, it is argued by learned counsel for contes1ng respondent No.1 - plain1ff Maya Devi that there is no scope for interference in the impugned judgment. AHen1on is drawn towards the fact that in the judgment dated 04.04.1989 (Annexure R.3) in the other li1ga1on, which was ini1ated by one of the brothers, Hukam Chand, it had been held that plain1ff- Maya Devi had received 2/9th share of Smt. Kartar Kaur on the basis of registered Will. Besides, in present case, three sisters i.e. defendant Nos.1 to 3, who included the present two appellants, had admiHed the en1re claim of the plain1ff not only by filing wriHen statement to that effect but also by making a statement before the Court on 01.02.1986 and that they were duly iden1fied by their Advocate and so, it does not lie in their mouth that admission had been withdrawn Page No.5 out of 12 pages
simply by moving an applica1on on 09.09.1986. With these submissions, prayer is made for dismissal of the appeal.
18.
This Court has considered submissions of both the sides at depth and have also appraised the en1re record with the able assistance provided by counsel for both the sides.
19.
CM No.13887-C of 2014: Seven siblings i.e. four sisters and three brothers are in the present applica1on, which was ini1ated by plain1ff- Maya Devi. All these seven siblings were also party to another li1ga1on bearing Civil Suit No.393 of 1986, which was ini1ated by one of the brothers, Hukam Chand and which was also regarding the same property. Annexure R.1 is the copy of the plaint of that Civil Suit No.393 of 1986. In that suit, Hukam Chand had claimed suit property to be ancestral and that his share in the property was 72/252. Except for one of the brothers, Bhim Chand, all other siblings had contested that suit by filing wriHen statement, copy of which is Annexure R.2. Trial Court decided that li1ga1on vide judgment dated 04.04.1989, copy of which is Annexure R.3. Hukam Chand had filed appeal against that judgment but later on withdrew the same and copy of the final order is Annexure R.4. No reply to this applica1on was filed by the appellants so as to contest this applica1on or to produce any document in rebuHal.
20.
Since the documents Annexures R.1 to R.4 pertain to the judicial record and regarding the li1ga1on, which was between the same par1es and in respect of the same property, so, applica1on is allowed and documents Annexures R.1 to R.4 are taken on record. 21.
Proceeding further, the trial Court vide judgment dated 02.11.1988 held the suit property to be ancestral in nature. The Appellate Court did not disturb this finding. In another Civil Suit No.393 of 1986, which was filed by Hukam Chand also, the suit property was held to be ancestral in nature as per judgment dated 04.04.1989 (Annexure R.3). Appeal against that judgment was withdrawn as per order dated Page No.6 out of 12 pages
17.11.1990 (Annexure R.4). These documents Annexures R.3 and R.4 have been placed on record by the respondent - Maya Devi (plain1ff) herself in the addi1onal evidence and as such, there remains no dispute in holding that suit property was ancestral in nature in the hands of Balasa Ram, the father of the par1es.
22.
Although the First Appellate Court did not disturb the finding of the trial Court to the effect that the suit property was ancestral in nature, but decided the share of the par1es, as if the suit property was selfacquired in the hands of Balasa Ram by holding that aDer the death of Balasa Ram, 1/9th share each was inherited by his nine legal heirs; that on the death of Gurdev Kaur, her 1/9th share was inherited by mother - Kartar Kaur, who thus became owner of 2/9th share; that Kartar Kaur by way of a Will bequeathed her share in favour of Maya Devi and in this way, Maya Devi - plain1ff became owner of 1/3rd share. The First Appellate Court held that the other three sisters i.e. defendants No.1 to 3 had relinquished their 1/9 share each and besides, during pendency of the appeal before the First Appellate Court, Hukam Chand had sold 1/9th share to Maya Devi and in this way, Maya Devi had become owner of 7/9th share. The First Appellate Court did not do any exercise regarding the correct share of the par1es based upon the finding that suit property was ancestral in nature. 23.
This exercise i.e. finding the correct share, based upon the ancestral nature of suit property, has been done by the trial Court in its judgment dated 04.04.1989 (Annexure R.3) in Civil Suit No.393 of 1986. It will be apt to reproduce the relevant findings to that effect:- "17.
There is no dispute between the par1es about the facts of this case. When Balasa Ram expired, he leD behind him widow Kartar Kaur, his three his sons, namely, Hukam Chand (plain1ff), Hari Chand and Bhim Chand (defendants) and five daughters, namely, Surjit Kaur, Maya Devi, Nirmala Devi and Piari Devi (defendants) and Gurdev Kaur. It is also proved that later on Gurdev Kaur (now deceased) daughter of Balasa Ram expired and thereaDer, Kartar Kaur (mother of the par1es) expires. Now the ques1on Page No.7 out of 12 pages
arises as to what property was inherited by Hukam Chand plain1ff at the 1me of death of his father Balasa Ram.
18.
Both the par1es relied upon the provisions of Sec1on 8 of Hindu Succession Act and submiHed that no1onal par11on has to be presumed at the 1me of death of Balasa Ram. But (sic By) this no1onal par11on, 1/5th share came to the share of Balasa Ram, 1/5th share each came to the share of his three sons, namely, Hukam Chand, Hari Chand and Bhim Chand and 1/5th share came to the share of Kartar Kaur widow of Balasa Ram. 1/5th share of Balasa Ram devolved on his widow, three sons and five daughters in equal share and each of them acquired 1/9th share out of the estate leD by Balasa Ram. Hukam Chand plain1ff, therefore, became the owner of 1/5th share + 1/45th share i.e. 2/9th share. Hukam Chand, Hari Chand and Bhim Chand became the owner of 2/9th share each, while the five daughters of Balasa Ram, namely, Surjit Kaur, Maya Devi, Gurdev Kaur, Nirmala Devi and Piari Devi became the owners of 1/45th share each." 24.
It was, thus, held that Hukam Chand on the death of his father Balasa Ram had become owner to the extent of 2/9th share i.e. 1/5th share in his own rights on the basis of no1onal par11on plus 1/45th share out of share of Balasa Ram. It has been further found that on the death of Gurdev Kaur, her 1/45th share received by her in the no1onal par11on went to her mother - Smt. Kartar Kaur. In this way, Kartar Kaur had become owner of 11/45th share i.e. 1/5th share of her own out of the ancestral property based upon no1onal par11on + 1/45th share inherited out of the share of Balasa Ram on his death + 1/45th share inherited from deceased daughter - Gurdev Kaur. Trial Court in its judgment dated 04.04.1989 (Annexure R.3) also held that by virtue of registered Will, Smt. Kartar Kaur had bequeathed her share in the suit property in favour of plain1ff- Maya Devi. 25.
The afore-said findings were not assailed by the present appellants, Smt. Ram Piari and Smt. Nirmala Devi, despite the fact that they too were party to that li1ga1on ini1ated by Hukam Chand and had even filed the contested wriHen statement.
Page No.8 out of 12 pages
26.
As such, it is held that it does not lie in the mouth of the appellants to contend that the First Appellate Court wrongly held the plain1ff - Maya Devi to be en1tled to the share of Kartar Kaur based upon a Will. The finding of the First Appellate Court to the effect that Maya Devi had inherited the share of Kartar Kaur based upon registered Will is upheld. 27.
The First Appellate Court in its judgment dated 19.11.1990 has also found that three sisters of Maya Devi i.e. Surjit Kaur, Nirmala Devi and Ram Piari had admiHed to have relinquished their rights in the suit property in favour of plain1ff Maya Devi. In this regard, conten1on raised on behalf of appellant No.2 - Nirmala Devi that an applica1on was moved to withdraw this admission on 09.09.1986 is found to be factually incorrect. Perusal of the applica1on dated 09.09.1986 available at Page No.31 of the trial Court record would reveal that that applica1on was moved only by defendant- Piari Devi alias Ram Piari; and not by Nirmala Devi. The order passed on 09.09.1986 in the margin of this applica1on would reveal that Piari Devi had appeared in person for moving that applica1on and the trial Court had directed to put up the applica1on with the main case. 28.
It is no doubt true that the trial Court did not decide the said applica1on i.e. 09.09.1986 and even the First Appellate Court did not take cognizance thereof but at the same 1me, it is important to no1ce that both the legal representa1ves of the appellant - Ram Piari (who only had moved applica on dated 9.9.1986) have moved applica1on bearing CM No.3387-C of 2023 to take on record their respec1ve affidavits so as to withdraw the appeal, as their predecessor - Ram Piari had not only filed wriHen statement admi9ng the claim of plain1ff- Maya Devi but had also made a statement to that effect before the Court on 01.02.1986. Both the affidavits are taken on record.
29.
As such, legal representa1ves of appellant - Ram Piari having filed affidavits to withdraw the appeal; and appellant - Nirmala Devi having not moved any applica1on to withdraw from admission made in the wriHen Page No.9 out of 12 pages
statement and statement dated 1.2.1986 made before the trial court; nondecision on the applica1on dated 09.09.1986 by the trial Court has become insignificant and, therefore, the appellants cannot get the benefit out of the same. Consequently, conten1on of Ld. counsel for the appellants to that effect is rejected.
30.
Another conten1on of ld. counsel for the appellants to the effect that declara1on was sought only regarding 1/3rd share in the suit property by the plain1ffs and so, First Appellate Court wrongly held her to be en1tled for 7/9th share is also found to be mis-conceived. It is to be no1ced that plain1ff had claimed share of her three sisters, Surjit Kaur, Nirmala Devi and Ram Piari on the basis of relinquishment by them, without touching her (Maya Devi - plain1ff's) own rights. As such, the conten1on that the Appellate Court exceeded the relief is found to be devoid of any merit.
31.
Proceeding further, the present Civil Suit No.334 of 1985 ini1ated by Maya Devi was decided by the trial Court on 02.11.1988; whereas, another Civil Suit No.393 of 1986 filed by one of the brothers, Hukam Chand was decided by the trial Court on 04.04.1989 vide judgment Annexure R.3. Maya Devi had filed appeal against judgment dated 2.11.1988; whereas Hukam Chand had filed appeal against judgment dated 04.04.1989 Annexure R3. During pendency of both those appeals, another development took place, inasmuch as Hukam Chand sold his share in the suit property to one of his sisters, Maya Devi i.e. plain1ff of the present li1ga1on.
32.
In the en1rety of facts and circumstances as above, now it is required to be seen as to what will be the share of the par1es. As suit property was ancestral in nature, so aDer the death of Balasa Ram, the trial Court in its judgment dated 04.04.1989 (Annexure R.3) rightly held the share of the par1es as under:- Hukam Chand 2/9th (1/5th inherited in his own rights + 1/45th Page No.10 out of 12 pages
share of Balasa Ram) Hari Chand 2/9th share (1/5th inherited in his own rights + 1/45th share of Balasa Ram) Bhim Chand 2/9th share (1/5th inherited in his own rights + 1/45th share of Balasa Ram) Kartar Kaur 1/5th share inherited in his own rights + 1/45th share inherited from Gurdev Kaur - deceased daughter + 1/45th share inherited from Balasa Ram i.e. total - 11/45th share.
1/45th share each Surjit Kaur, Nirmala Devi, Ram Piari and Maya Devi 33.
As Smt. Kartar Kaur bequeathed her share in the suit property in favour of Maya Devi by way of a registered Will, therefore, the share of Maya Devi worked out to be 11/45th + 1/45th share i.e. 4/15th share. 34.
The three sisters - Ram Piari, Nirmala Devi and Surjit Kaur relinquished their 1/15 share (i.e. 1/45th share each) in favour of Maya Devi and as such, the share of Maya Devi became 4/15th + 1/15th i.e. 1/3rd. 35.
Then, Hukam Chand sells his share i.e. 2/9th in favour of Maya Devi and so, finally the share of Maya Devi in the suit property becomes to be 1/3rd + 2/9th share = 5/9th share.
36.
Consequently, it is held that final shares of the par1es in the suit property are as under:- Defendant- Respondent No. 5 - Bhim Chand :
2/9th share Defendant- Respondent No. 4 - Hari Chand :
2/9th share Plain1ff - Respondent No. 1 - Maya Devi :
5/9th share Defendants - Respondents No. 2 & 3 and :
NIL appellants - Ram Piari, Surjit Kaur, Nirmala Devi and Hukam Chand 37.
Consequent to the en1re discussion as above, the present Page No.11 out of 12 pages
appeal is hereby disposed of by holding that the appellants have no share in the suit property; that share of respondent No.1 - Maya Devi is 5/9th in the suit property and that of respondents - Hari Chand and Bhim Chand is 2/9th share each. Par1es are leD to bear their own costs. 38.
Disposed of accordingly.
April 21, 2025 (DEEPAK GUPTA) Renu JUDGE Whether Speaking/reasoned Yes/No Whether Reportable Yes/No Page No.12 out of 12 pages