Sher Singh And Ors. vs Madan Lal & Anr.

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1571-2000 (O&M)
Judgment reserved on :02.07.2026
Judgment pronounced on : 14.09.2026
SHER SINGH AND ORS. . .. APPELLANTS
VERSUS
MADAN LAL (SINCE DECEASED) THROUGH LRS & ANR.
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE PARMOD GOYAL
Present: Mr. Aditya Vermani Advocate and
Mr. Ajay Pal Singh Gill, Advocate
for the appellants.
Mr. Rajinder Goel, Advocate
for respondent No.1.

PARMOD GOYAL , J.
1. The appellants-defendants have preferred the present regular
second appeal, being aggrieved by the impugned judgment and decree dated
30.05.1998 passed by the then Civil Judge (Junior Division), Gurgaon, and
judgment and decree dated 10.12.1999 passed by the then Additional District
Judge, Gurgaon, vide which the suit for declaration with consequential relief of
perpetual injunction and possession in favour of plaintiff-respondent No.1 was
decreed and the first appeal preferred by the appellants-defendants was
dismissed.
2. The plaintiff-respondent had filed the suit for declaration,
injunction and possession, claiming that the suit property was joint Hindu
family ancestral property and defendant No.1, being his father, was the Karta
of the said property. It was pleaded that after his retirement, when the plaintiff
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returned to his village and demanded his share in the agricultural produce, he
was informed that he no longer had any right in the suit property. On inquiry,
the plaintiff came to know that defendant No.1 had suffered collusive decrees
in favour of defendant Nos.2 to 5 in Civil Suit No.388 of 1983, decided on
27.07.1983 and Civil Suit No.660 of 1991, decided on 30.11.1991, both titled
as Sher Singh and others Vs. Maman Singh. By virtue of the said decrees, land
measuring 46 Kanal 12 Marla and 35 Kanal 6 Marla, respectively, forming part
of the suit land, was transferred in favour of defendant Nos.2 to 5. It also came
to the notice of the plaintiff that on the basis of the said decrees, mutations
bearing Nos.582 of 1983 and 699 of 1992 were entered in the revenue records.
Suit property was asserted to be joint Hindu family co-parcenary and ancestral
property, in which the parties had acquired rights by birth. Therefore,
defendant No.1 had no right to alienate the same in favour of defendant Nos.2
to 5 by suffering the aforesaid decrees, particularly in absence of the plaintiff.
Accordingly, it was prayed that the decrees passed in Civil Suit Nos.388 of
1983 and 660 of 1991 be declared illegal, null and void and not binding upon
the rights of the plaintiff, and that the plaintiff be declared owner/co-sharer in
possession of the suit land to the extent of 1/5th share.
3. The defendants contested the suit by filing detailed written
statement, wherein number of preliminary objections regarding maintainability
of the suit were raised. It was asserted that since the parties belonged to the
Ahir community, they were governed by the old Punjab Territory Customs and
the concept of joint Hindu family/coparcenary property was unknown to the
parties. It was further claimed that the plaintiff had severed his connection with
the family and had migrated to the village of his father-in-law, where he had
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inherited substantial property belonging to his father-in-law. Since defendant
Nos.2 to 5 were looking after defendant No.1, a family arrangement had taken
place in the year 1983, pursuant to which, out of love and affection, defendant
No.1 had relinquished his ownership rights in the suit property in favour of his
sons, defendant Nos.2 to 5. That the decrees dated 22.07.1983 and 20.11.1991,
suffered by defendant No.1 in favour of defendant Nos.2 to 5, were validly
passed and that the rights of defendant Nos.2 to 5 thereunder were legally
acquired. Accordingly, dismissal of the suit was prayed for.
4. From the pleadings of the parties, the following issues were
framed:
1. Whether plaintiff alongwith defendant no.1 his father and
defendants no.2 to 5 his brothers, constitutes a joint Hindu
family following Hindu Law in the matters of succession and
alienation etc? OPP
2. Whether suit land detailed in para no.1 of the plaint was
ancestral coparcenary property in the hands of defendant
no.1 being Karta/Manager of Joint Hindu family as alleged?
OPP
3. Whether judgment and decrees passed in suit no. 388 of
1983 decided on 22.07.83 titled Sher Singh and others Vs.
Maman Singh and other decree passed in suit No. 660 of
1991 decided on 30.11.91 titled Sher Singh Vs. Maman Singh
qua the suit land alongwith subsequent mutations sanctioned
on the basis of the above said decrees are illegal, null and
void and not binding on the rights of plaintiff on the grounds
detailed in para no. 6 of the plaint? OPP
4. Whether suit is no maintainable in the present form? OPD
5. Whether plaintiff has concealed material facts from the
court. If so to what effect? OPD
6. Whether parties to the suit belong to Ahir community
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following agricultural custom of old Punjab territory to
whom the concept of Joint Hindu family and coparcenary
property is not known? OPD
7. Whether defendant no.1 was owner in possession in
individual capacity of the suit land? OPD
8. Whether plaintiff had severred his connection from defendant
No.1 about 30 years ago, migrating to village Badli in Delhi
state? OPD
9. Whether defendants no.2 to 5 only used to render and are
still rendering service to defendant no.1. If so to what effect?
OPD
10. Whether suit has been filed within time? OPP
11. Whether suit has not been properly valued for the purposes
of Court fee and jurisdiction? OPD
12. Whether plaintiff has no locus standi to file the present suit?
OPD
13. Relief.
5. Issue No.1 was decided in favour of the plaintiff and it was held
that the plaintiff was a member of the Joint Hindu Family. The land comprising
Khewat No.153/141/142, Khatoni No.209, Rect. No.26, Killa Nos.21/2 (5-0)
and 22/1 (1-4); Rect. No.11, Killa Nos.11/2 (5-7), 12/1/2 (1-15), 17/2 (1-12),
18 (8-0), 19 (8-0) and 28 (8-0); and Rect. No.20, Killa No.4 (7-14), was held to
be ancestral property. While deciding Issue No.2, the learned Trial Court held
that the aforesaid property was ancestral coparcenary property, whereas the
remaining property was self-acquired property of defendant No.1, as the same
had been acquired by defendant No.1 by way of pre-emption and not by way
of inheritance from his forefathers. Issue Nos.4 and 5 were decided against the
defendants. Issue Nos.6, 8 and 9 were also decided against the defendants. The
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learned Trial Court held that though the parties were governed by the customs
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applicable to Ahir agriculturists of Gurgaon District which permits gifts,
however, the Court decrees could not be treated as gifts and, therefore, Issue
Nos.6, 8 and 9 were decided against the defendants. Issue Nos.7, 11 and 12
were decided in favour of the plaintiff and against the defendants. Issue No.3
was also decided against the defendants. It was held that no family settlement
could have taken place in the absence of the plaintiff, who was the son of
defendant No.1 and a member of the Joint Hindu Family. It was further held
that since defendant Nos.2 to 4 had no pre-existing right in the property, the
decrees passed in their favour were compulsorily registrable. As the said
decrees were not registered, they were held to be non-operative against the
rights of the plaintiff.
6. Consequently, the suit was decreed and the decrees dated
22.07.1983 and 20.11.1991 passed in Civil Suit No.388 of 1983 and Civil Suit
No.660 of 1991, respectively, were declared illegal, void and non-operative
against the rights of the plaintiff. The property held to be ancestral while
deciding Issue No.2 was held to be the property in which the plaintiff would
acquire rights by birth, whereas the remaining property was held to have
vested with defendant No.1. The suit was accordingly disposed of.
7. The learned First Appellate Court decided Issue No.10 against the
defendants and held that the suit was within limitation. It was held that the
period of limitation would commence from the date of knowledge, which, in
the present case, was concluded to be the year 1993. The learned First
Appellate Court further held that Article 109 of the Limitation Act would apply
instead of Article 58, as pleaded by the defendants, since the suit related to the
rights of the plaintiff in the coparcenary property. The learned First Appellate
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Court also rejected the claim of the defendants that they were governed by
customs, observing that no such plea had been taken by them in the earlier
suits bearing Civil Suit No.388 of 1983 and Civil Suit No.660 of 1991. Both
the said suits had been filed by defendant Nos.2 to 5 against defendant No.1 on
the basis of the alleged family settlement in respect of the Joint Hindu Family
property. It was held that, having admitted in the earlier suits that they were
governed by the concept of Joint Hindu Family, the defendants could not, in
the present suit, take a contrary plea of custom so as to deny the existence of
Joint Hindu Family/coparcenary rights. The learned First Appellate Court
further concluded that the ancestral property falling into the hands of defendant
No.1 in view of the Intkaab was governed by the concept of coparcenary,
whereas the other properties acquired by defendant No.1 by way of pre-
emption were his individual properties.
8. Appellants-defendants have challenged impugned judgment and
decrees on the following three main grounds:-
i. That property was not ancestral property but was self-acquired
property as defendant No.1 had acquired the said property by way
of pre-emption suits preferred by him and property so acquired
cannot be held to be ancestral property.
ii. That parties being Ahir of Gurugram District and agriculturist are
governed by customs and institutions/concept of joint hindu
family/coparcenary are not applicable and the property could have
been gifted by defendant No.1 in favour of other family members.
iii. That respondent-plaintiff No.1 served his ties with the family as he
was working in Indian Railway and residing outside village and
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was not in touch with defendant No.1 for last 40 years.
9. In present case, both the Courts below have given finding of fact
after referring to Intakhab (Ex.PW7/A) that suit property comprised in khewat
No.153/141/142 khatoni No.209, rect.No.26, killa No.21/2(5-0), 22/1(1-4),
rect No.11, killa No.11/2(5-7), 12/1(1-15), 18(8-0), 19(8-0), 17/2(1-12), 28(8-
0), rect. No.20 Killa No.4(7-14) was ancestral property as said property was
inherited by defendant No.1 as per Intakhab (Ex.PW7/A) from his forefathers
and remaining property subject mater of judgment and decrees dated
27.07.1973 and 30.11.1991 was held to be self-acquired having been acquired
by suit preferred by defendant No.1 on the basis of pre-emption rights.
10. Though the learned counsel for appellant has tried to argue that
the entire land was acquired by way of pre-emption, however, has failed to
show any document proving that land noted above, held to be ancestral
property as made out from Intakhab (Ex.PW7/A) jamabandi for the years
1934-1935 (Ex.PA), 1930-1931 (Ex.P6) and Ex.D1 to Ex.D3 was acquired by
way of pre-emption.
11. The findings of learned Court of first instance on this issue is
noted with approval :
“As pointed out by the counsel for the plaintiff, a coparcenary
consist of a father and his three linead male descendants, hence
for the property to acquire the status of “Ancestral Property”, it
is essential that it should have been vested upon a person
through his great grandfather. On that analogy, coming to the
facts of the case in hand after carefully perusing the Intakhab
Ex.PW7/A and also Ex.D1, Ex.D2 and Ex.D3 it becomes quite
clear that the entire property is not ancestral and substantial
part of it was acquired by Maman Singh by filing a suit for
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possession by way of pre-emption of the agricultural land. The
property acquired by way of pre-emption does not acquired the
status of ancestral property over which the sons have no right by
birth hence out of the entire property mentioned in para No.2 of
the plaint the following land in my opinion is of ancestral nature.
The land comprising khewat No.153/141/142 Khatoni No.209,
Rect. No.26, Kila No.21/2(5-0), 22/1(1-4), Rect No.11, Killa
No.11/2(5-7), 12/1/2(1-15), 18(8-0) 17/2(1-12), 28(8-0), Rect.
No.20 killa No.4(7-14) is ancestral. Hence out of the land
mentioned in para No.2 of the plaint part of it is ancestral and
some of it is not ancestral. Hence this issue is accordingly
disposed of.”
12. From revenue records, it is therefore clearly made out that the
conclusion by learned Courts below is based on evidence on record. Plaintiff-
respondent No.1 has duly succeeded in proving that part of suit property was
Joint Hindu Family co-parcenary property in the hands of defendant No.1.
Moreover, in the present case, defendant Nos.1 to 5 are bound by their own
admissions made by way of previous suits and judgment and decree dated
27.07.1983 and 30.11.1991, from which they are deriving rights over suit
property in the present case also. They cannot be allowed to blow hot and cold
at the same time. Once they have taken the plea that the suit property was Joint
Hindu Family property and a family settlement had taken place between them
which denotes partition between the defendants, they are estopped from raising
plea of custom as has been raised by them. Moreover, Court decree and family
settlement cannot be held to be a gift even if case of defendants, that Karta was
free to give gift as per his choice is accepted for sake of arguments.
13. In the present case, it is not the case of defendants that suit
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property was gifted by defendant No.1 to defendant Nos.2 to 5, rather it was
the case of defendants that a family settlement was arrived at denoting
partition. However, in said family settlement, one of the sons of defendant
No.1 i.e. plaintiff was not joined and therefore, the said family partition cannot
be held binding upon the rights of plaintiff-respondent No.1 as has rightly been
held by both the Courts below. The Courts below have rightly appreciated the
evidence led before it and had found that the alleged family partition which
was basis for passing of judgments and decrees dated 27.07.1983 and
30.11.1991 can never be held against plaintiff-respondent No.1 in absence of
his participation in said family settlement/partition.
14. Therefore, in the present case, the conclusion drawn by both the
Courts below that suit property was coparcenary property which could not
have been alienated in absence of participation of plaintiff-respondent No.1
cannot be held to be erroneous or perverse. Both the Courts have rightly held
that merely because plaintiff-respondent No.1 was working in Indian Railways
and was not residing in village, would not result in the conclusion that he has
forgiven his rights as a coparcener. Rights of a coparcener are created or
extinguished only by way of birth and death. A coparcener remains coparcener
during his lifetime unless the coparcenary comes to an end by way of partition
by metes and bounds. In the present case, no such partition has ever taken
place with plaintiff-respondent No.1. Therefore, plaintiff-respondent No.1
continued to be coparcener in coparcenary property and is entitled to his share
in the coparcenary property upon partition.
15. Therefore, there is no merit in the appeal preferred by appellants-
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defendants, same is liable to dismissed.
16. Pending application(s), if any, stands disposed of.
14.09.2026 (PARMOD GOYAL)

Manoj/Sunil/Ravinder JUDGE

Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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