Birmati And Others vs Virender And Others

RSA-2493-2023 (O&M)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


RSA-2493-2023 (O&M)


Birmati and others ...Appellants
Versus
Virender and others ...Respondents

Reserved on: 11.11.2026

Pronounced on: 12.11.2026
Pronounced fully/operative part: Fully

CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA

Argued by: Mr. Mani Ram Verma, Advocate and
Mr. Nipun Verma, Advocate for the appellants.


DEEPAK GUPTA, J.
The plaintiffs are in regular second appeal against the judgment &
decree dated 03.05.2023 passed by learned Additional District Judge, Rewari,
whereby their first appeal against the judgment & decree dated 01.03.2017 of
learned Civil Judge (Senior Division), Rewari, dismissing their suit for declaration,
has been dismissed.
2. The dispute pertains to agricultural land measuring 87 kanal 2 marla,
situated in the revenue estate of village Lisana, Tehsil and District Rewari. The
plaintiffs, namely Birmati, Manoj and Saroj, are daughters of Umrao Singh. Their
case is that the suit property was ancestral coparcenary property, originally
owned by their great-grandfather Dhanna, which subsequently devolved upon
Chiranji and thereafter upon their father Umrao Singh. Claiming rights as
coparceners, they challenged the sale deed dated 04.04.2012 executed in favour
of defendants No.1 to 4 pursuant to a decree for specific performance, besides
challenging the Will dated 05.05.2003 allegedly executed by their father in
favour of defendants No.5 to 7 and the consequential revenue mutations.
3. The material facts concerning the earlier litigation are not in dispute.
Umrao Singh had entered into an agreement to sell dated 02.08.1984 with
Prabhu Singh, predecessor-in-interest of defendants No.1 to 4. A suit for specific
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RSA-2493-2023 (O&M)

performance arising therefrom culminated in a decree dated 06.08.1998. The
said decree was challenged before this Court in RSA No.2334 of 1998, wherein
the present plaintiffs were impleaded as legal representatives of Umrao Singh
vide order dated 12.09.2006. The regular second appeal was dismissed on
18.08.2009, and the Special Leave Petition preferred before the Hon'ble
Supreme Court was also dismissed on 30.11.2009.
4. Thereafter, during execution proceedings, objections raised on
behalf of the judgment-debtors were dismissed on 24.03.2012. The sale deed
bearing Vasika No.55 was executed through the process of the Court on
04.04.2012. Subsequently, possession of the property was delivered to the
decree-holders through their attorney Rajender Singh on 20.07.2015, as
reflected in the report Ex.D8.
5. The plaintiffs instituted the present suit on 16.01.2013, asserting
that the property was ancestral coparcenary property and their father could not
have alienated the same without their consent or without legal necessity. They
also alleged that the Will dated 05.05.2003 was forged and fabricated and did
not represent the conscious act of their father.
6. The suit was contested by defendants No.1 to 4, who asserted their
rights under the decree for specific performance and the consequential sale
deed. It was pleaded that the plaintiffs were fully aware of the earlier
proceedings, had participated therein and could not reopen the concluded
controversy by instituting another suit.
7. On appreciation of the oral and documentary evidence, learned trial
Court dismissed the suit. It was held that the plaintiffs had failed to establish
their asserted coparcenary rights, that the challenge to the alienation was barred
by limitation and that the sale deed had been executed in implementation of a
decree, which had attained finality. The trial Court also found that the plaintiffs
had failed to establish their possession and that a suit seeking declaration
without the consequential relief of possession was not maintainable.
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RSA-2493-2023 (O&M)

8. Learned First Appellate Court independently examined the evidence
and affirmed these findings. Consequently, the appeal was dismissed vide
judgment and decree dated 03.05.2023.
9. Assailing the concurrent findings, Learned counsel for the appellants
contends that both Courts have committed a substantial error of law in applying
a limitation period of three years to the plaintiffs' challenge to the alienation. It is
submitted that the suit is governed by Article 109 of the Limitation Act, 1963,
which prescribes a period of twelve years for a suit by a Hindu governed by
Mitakshara law to set aside his father's alienation of ancestral property. It is
further argued that the plaintiffs acquired an enforceable cause of action only
when the sale deed was executed on 04.04.2012, and therefore, the suit
instituted in January 2013 was well within limitation.
10. Learned counsel further submits that the plaintiffs, being daughters,
are entitled to the same coparcenary rights as sons by virtue of Section 6 of the
Hindu Succession Act, 1956, as amended in 2005. Reliance is placed upon
Beereddy Dasaratharami Reddy v. V. Manjunath and another, 2022 SAR (Civil)
215, and N.S. Balaji v. Presiding Officer, Debt Recovery Tribunal, 2024 (1) CCC
56 (SC) , to contend that an alienation of joint Hindu family property without legal
necessity is open to challenge and that the plaintiffs cannot be non-suited merely
because their father had entered into an agreement to sell.
11. Having considered the submissions and examined the judgments of
both Courts below, this Court finds no ground warranting interference in the
concurrent decrees, for the reasons recorded hereinafter.
Applicability of Article 109 of the Limitation Act
12. Article 109 of the Limitation Act, 1963 provides as follows:
Period of Time from which period/
Description of suit
limitation begins to run
By a Hindu governed by Mitakshara law to set
When the alienee takes
aside his father's alienation of ancestral Twelve years
property
possession of the property
13. Thus, the period prescribed under Article 109 is twelve years, and
the starting point is the date, on which the alienee takes possession of the
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property. The Article does not prescribe the date of execution of the sale deed as
the commencement of limitation. The contention that limitation necessarily
commenced on 04.04.2012, merely because the sale deed was executed on that
date, is therefore not in conformity with the express language of the provision.
14. It is equally important to observe that Article 109 applies to a suit of
the specified description, namely, one seeking to set aside the father's alienation
of ancestral property. Its applicability necessarily depends upon the nature of the
property, the character of the alienation and the substantive right asserted by
the plaintiff. A mere assertion in the plaint that the property is ancestral does
not, by itself, establish the existence of an enforceable coparcenary interest.
15. In the present case, the plaintiffs have not instituted an ordinary suit
challenging an independent sale transaction entered into by their father. The
sale deed dated 04.04.2012 was executed by the Court in implementation of a
decree for specific performance arising out of an agreement dated 02.08.1984.
That decree had already survived challenge before this Court and the Hon'ble
Supreme Court. The plaintiffs were themselves parties to the earlier appellate
proceedings and had also contested the execution proceedings.
16. The distinction is material. Although an agreement to sell does not,
by itself, create an interest in immovable property in view of Section 54 of the
Transfer of Property Act, 1882, the enforceability of the agreement in the
present case had already been judicially determined. The subsequent execution
of the sale deed was the culmination of that adjudication and not a fresh
voluntary alienation independently undertaken by Umrao Singh in 2012.
17. Even assuming, for the sake of argument, that Article 109 could
govern an otherwise maintainable challenge to the alienation, that provision
cannot be invoked to nullify the binding effect of a decree, which has attained
finality. The question of limitation is distinct from the questions of
maintainability, preclusion by earlier adjudication and the plaintiffs' substantive
entitlement to the relief claimed.
18. Therefore, even if the plaintiffs' contention regarding the
applicability of the twelve-year limitation period is accepted for the limited
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purpose of examining their argument, it would not automatically entitle them to
a declaration invalidating the sale deed. They must independently establish that
they possessed an enforceable right in the property and that such right remained
available for adjudication notwithstanding the earlier proceedings.
Effect of the earlier decree and participation of the plaintiffs
19. The most important circumstance against the appellants is their
participation in the earlier litigation. They were impleaded as legal
representatives in RSA No.2334 of 1998 on 12.09.2006. The said appeal was
dismissed on 18.08.2009 and the Special Leave Petition was dismissed on
30.11.2009. Their objections in execution proceedings were also dismissed on

24.03.2012.
20. It is not the case of the plaintiffs that the decree for specific
performance has been set aside or modified by any competent Court. The sale
deed dated 04.04.2012 was executed pursuant to that decree. Consequently, the
present suit, insofar as it seeks to invalidate the sale deed on grounds, which
were available during the earlier proceedings, would necessarily involve
reopening the controversy already adjudicated.
21. The principle of finality of judicial proceedings cannot be defeated
by challenging a consequential act performed in execution of a decree. The
executing Court is required to give effect to the decree and cannot ordinarily
travel beyond its terms. Equally, a separate suit cannot be employed as a
substitute for remedies, which were available in the original proceedings.
22. It is true that mere participation as a legal representative does not,
in every case, amount to an adjudication of an independent personal right, which
was neither pleaded nor decided. However, in the present case, the plaintiffs
were aware of the agreement, the decree and the execution proceedings. The
Courts below have specifically noticed that the plea of independent coparcenary
rights and absence of legal necessity was not raised in the execution objections,
although the relevant facts were already within their knowledge.
23. In these circumstances, the plaintiffs cannot successfully contend
that the execution of the sale deed in 2012 furnished an entirely fresh and
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independent cause of action enabling them to reopen the concluded
proceedings. The bar arising from the finality of the earlier adjudication is not
displaced merely by describing the consequential sale deed as a new alienation.
Effect of Section 6 of the Hindu Succession Act
24. Learned counsel for the appellants has also invoked the amended
Section 6 of the Hindu Succession Act, 1956, to assert that daughters are
coparceners by birth and possess rights equal to those of sons. The legal position
in this regard is settled by the Constitution Bench judgment in Vineeta Sharma v.
Rakesh Sharma and others, (2020) 9 SCC 1. The right of a daughter as a
coparcener is not dependent upon her father being alive on 09.09.2005.
However, the statutory protection afforded to dispositions or alienations made
before 20.12.2004 must also be given effect.
25. In the present case, the agreement to sell was executed on
02.08.1984, much before the aforesaid cut-off date. The decree for specific
performance was also passed on 06.08.1998. Although the consequential sale
deed was executed in 2012, the transaction had its origin in the agreement of
1984 and had already become the subject of a binding judicial decree in 1998.
The execution of the sale deed in compliance with that decree cannot be treated
as an altogether fresh alienation for the purpose of defeating the rights
crystallised under the earlier adjudication.
26. The judgment in Beereddy Dasaratharami Reddy v. V. Manjunath
and another, reported as (2021) 19 SCC 263 , does not advance the appellants'
case. The Hon'ble Supreme Court held that the Karta of a joint Hindu family is
competent to enter into an agreement to sell joint family property and that the
signatures of every coparcener are not essential for its validity. It was further
held that an alienation made for legal necessity or benefit of the estate binds the
undivided members of the family. Although a coparcener may challenge an
alienation after it has taken place on the ground of absence of legal necessity,
such challenge must be established on the facts of the particular case.
27. The aforesaid judgment, therefore, does not lay down that every
alienation of ancestral property made without the express consent of all
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bind the joint family estate, subject to the recognised limitations under Hindu
law.
28. Similarly, in N.S. Balaji v. Presiding Officer, Debt Recovery Tribunal
, the Hon'ble Supreme Court reiterated that a Karta can
and others (supra)
alienate or mortgage joint Hindu family property without obtaining the consent
of every member, including a minor coparcener. It was clarified that such an
alienation may subsequently be challenged, where it is not for legal necessity or
the benefit of the estate. The Hon'ble Supreme Court declined interference in

that case.
29. Both judgments recognise the right of a coparcener to question an
alienation in appropriate circumstances. Neither judgment, however, lays down
that a coparcener can disregard a decree for specific performance, which has
attained finality or institute successive proceedings to challenge the same
transaction without satisfying the requirements of law.
30. The present case is distinguishable on precisely this ground. The
plaintiffs had participated in the earlier appellate proceedings, the decree for
specific performance had attained finality, and the sale deed was executed
through the Court in implementation thereof. The appellants have failed to
establish how the principles laid down in the cited judgments would enable them
to invalidate the sale deed notwithstanding these circumstances.
Concurrent findings regarding possession and the relief claimed
31. There is yet another material aspect. The plaintiffs instituted a suit
seeking declaration regarding the Will, sale deed and consequential mutations.
They did not seek recovery of possession.
32. The Courts below have concurrently found, on the basis of the
evidence, particularly Ex.D8, that possession of the suit property was delivered
to Rajender Singh, attorney of the decree-holders, through the process of the
Court on 20.07.2015. The plaintiffs disputed this fact but failed to establish their
continuing possession by cogent evidence.
33. It is relevant that the delivery of possession took place during the
pendency of the suit. Therefore, the mere fact that the plaintiffs did not claim
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possession at the time of institution of the suit in January 2013 cannot, by itself,
be treated as conclusive against them. Nevertheless, once the subsequent
delivery of possession was brought on record and was established by evidence,
the plaintiffs were required to seek appropriate consequential relief, if otherwise
available in law. No such relief was sought.
34. Section 34 of the Specific Relief Act, 1963 does not permit a Court to
grant a mere declaration where the plaintiff, being able to seek further relief,
omits to do so. The concurrent finding that the plaintiffs failed to establish
possession and did not seek consequential relief is supported by the material
noticed in the judgments of Courts below. No perversity in that finding has been
demonstrated.
Challenge to the Will dated 05.05.2003
35. The plaintiffs have also challenged the Will dated 05.05.2003
allegedly executed by Umrao Singh in favour of defendants No.5 to 7. The Courts
below have concurrently found that the plaintiffs failed to establish the
allegations of forgery, fabrication or want of conscious execution.
36. The plaintiffs did not produce the Will itself in evidence or establish
the specific circumstances rendering it invalid. The allegation that it was
obtained by fraud remained unsupported by satisfactory evidence. It is settled
that fraud must be specifically pleaded and proved and cannot be inferred
merely from suspicion or from the fact that the disposition is unfavourable to a
particular legal heir.
37. Moreover, the rights of defendants No.1 to 4 flow from the earlier
decree for specific performance and the consequential sale deed. The validity or
otherwise of the Will does not, by itself, invalidate the rights acquired pursuant
to that decree. Thus, the challenge to the Will furnishes no independent ground
for interference with the concurrent decrees.
Substantial question of law
38. The jurisdiction of this Court under Section 100 CPC is confined to
substantial questions of law. Concurrent findings of fact cannot be disturbed
merely because another view of the evidence may be possible. Interference is
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warranted where such findings are perverse, based on no evidence, or suffer
from a material error of law affecting the ultimate decision.
39. In the present case, the contention regarding Article 109 of the
Limitation Act has been specifically examined. Even assuming that the plaintiffs
are entitled to invoke the said Article, the suit cannot succeed merely on the
question of limitation, in view of the earlier adjudication, the failure to establish
an enforceable right warranting invalidation of the transaction, and the other
independent grounds on which the Courts below have dismissed the suit.
40. The concurrent decrees are supported by the established history of
the litigation and the evidence on record. The appellants have failed to
demonstrate that the conclusions reached by the Courts below are perverse or
contrary to any binding principle of law.
41. Consequently, no substantial question of law arises for
consideration in the present appeal. Accordingly, the regular second appeal is
dismissed. The judgments and decrees dated 01.03.2017 and 03.05.2023 passed
by the Courts below are affirmed. Pending miscellaneous application(s), if any,

shall also stand disposed of.

12.11.2026 (DEEPAK GUPTA)

Yogesh
JUDGE


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


Uploaded on: 12.11.2026
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