SHEEL DEVI Vs. LAL CHAND

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the suit of the plaintiff-respondents for declaration deserved to the decreed in their favour because Babu Ram and father of the plaintiff-respondents constituted a joint Hindu family with them and out of the suit land l/5th share was separate property of Babu Ram and 4/5th share was ancestral property in the hands of Babu Ram qua the plaintiff-appellants.

(2.) The case of the plaintiff-respondents as pleaded before the Courts below is that Babu Ram son of Tulsi Ram was recorded as owner in possession of the suit land in the jamabandl for the years 1982-83 (Ex.P1) and 1987-88 (Ex.P2). He died inter-state and was survived by his two sons Lal Chand and Sohan Lal who are the plaintiff-respondents and three daughters Sheila Devi, Usha Devi and Baby who are the defendant-appellants. After the death of Babu Ram, the Assistant Collector 1st Grade Samana had sanctioned mutation No. 5126 with respect to the suit property in favour of the plaintiff-respondents and the defendant- appellants in equal shares by an order dated 17.5.1989 (Ex.D1). The plaintiff-respondents namely Lal Chand and Sohan Lal who are sons of Babu Ram filed a suit for declaration to the effect that they were owners to the extent of 12/15th share in the suit land and mutation in favour of the plaintiff-respondents and defendant-appellants sanctioned on 17.5.1989 granting all of them equal shares was liable to be set aside. The relief of permanent injunction to restrain defendant-appellants from alienating the suit property in any manner has also been claimed. It would be appropriate to understand the controversy with the help of pedigree table which reads as unden- <FRM> Tulsi Ram ________________/_______________ / / / / / Waliati Babu Ram Charanji Lal Hukam Chand Uggar Sam (whose estate is in dispute) ______________/____________ / / / / / Lal Chand Sohan Lal Shiela Usha Baby (Plaintiff-respondents) (Defendant-appellants) </FRM>

(3.) The pedigree table shows that Tulsi Ram was the common ancestor who had five sons. However, Uggar Sain one of the sons had died issueless. After the death of Tulsi Ram the surviving five sons had acquired l/5th share in the joint Hindu Family Coparcenary/ancestral property. As Uggar Sain had died issue-less his 1/5th share was further acquired by four brothers in equal share. However, the share of Uggar Sain acquired by his four brothers has been considered to be their self acquired property. Therefore, Babu Ram one of the five brothers is found to have acquired l/5th share from the property of his father. Tulsi Ram which was considered joint Hindu Family coparcenary and ancestral property. However, the share of Uggar Sain who had died issue- less has been considered to be self acquired property of Babu Ram and his other brothers. On the basis of the afore-mentioned factual position, both the Courts below have decreed the suit in favour of the plaintiff-respondents. The views of the lower appellate Court is discernible from the perusal of para 7 of the judgment which reads as under-