Ashok And Ors. v. Ganeshi And Ors.

JUDGMENT Adarsh Kumar Goel, J.

1. The appellants filed suit challenging alienation by decree dated 27.10.1978 in favour of the defendants on the ground that as per custom, ancestral property could not be alienated without legal necessity and without consent of the plaintiffs. Declaration was sought that the said decree did not affect plaintiffs rights.

2. The trial court decreed the suit. It was held, under Issue No. 2, that land transferred by way of decree was ancestral and alienation was in violation of custom as incorporated in para 59 of Rattigan's Digest on 'Customary Law', being without consideration and legal necessity. Accordingly, the following decree was granted;-

"In view of my findings on the above given issues, the plaintiffs succeed in establishing their claim and their suit for declaration to the effect that the judgment and decree dated 27.10.78 is liable to be set aside, and is not binding on their rights of inheritance to the land in suit after the death of defendant No. 1 is decreed."

3. The lower appellate court reversed the decree of the trial court, holding that part of the suit property i.e. 38 kanals 16 marlas was self-acquired; gift dated 10.10.1969 for 31 kanals and 15 marlas had been made in favour of Ashok and Mahabir, plaintiffs and alienation being by way of family settlement, was valid.

4. Learned counsel for the appellants submitted that accepting the finding of the lower appellate court to the effect that part of the suit property was self acquired, to be correct, the appellants were entitled to relief in respect of ancestral property, since the appellants were not party to the family settlement. The plaintiffs had acquired right of inheritance on the death of Ram Gopal and Ganeshi could not alienate property in respect of which the right of inheritance of the plaintiffs had been crystalised. He also submitted that finding of the trial court that gift in favour of the plaintiffs had never been questioned by the defendants, could not be held to be invalid or a ground justifying alienation of right of the plaintiffs for inheritance. He submitted that a substantial question of law arises, viz.:

"Whether rights of inheritance of the plaintiffs on the death of Ram Gopal in ancestral property could be affected by Ganeshi in the form of decree in favour of the defendants, without plaintiffs consent ?"

5. He submitted that decree dated 27.10.1978 should, thus, be held to be not binding on the plaintiff-appellants.

6. Learned counsel for the respondents submitted that the lower appellate court was justified in dismissing the suit as the appellants had been given by way of a gift, some part of the ancestral land and, therefore, family settlement which was reached by associating plaintiff No. 3 Padam Devi, was a fair settlement.

7. Before proceeding further, relationship of the parties which has been set out in pedigree table extracted in para I of the plaint, may be noticed:

"Pran Sukh Ganeshi |---|---| Ram Gopal (deceased) Dharambir Yugal Kishore alias married with Smt. Padam (defendant No. 6) Jugal Singh (defendant No. 7) Devi Smt. Daropdi married with Smt. Moorti | (defendant No. 3) (defendant No. 5) | | | | Jagbir Ranbir | (defendant No. 2) (defendant No. 4) |--| Ashok Mahabir

8. The plaintiffs are heirs of Ram Gopal who pre-deceased Ganeshi. In view of Section 6 of the Hindu Succession Act, 1956 (for short, the Act) one of the heirs, Padam Devi - being female, a deemed partition took place with regard to the undivided interest of Ram Gopal in the ancestral property. Succession, thus, opened up in favour of the plaintiffs. Their rights in the ancestral property were crystalised. Those rights could not be alienated by Ganeshi by admitting claim of the defendants on account of alleged family settlement. Consent of the plaintiffs for the family settlement is not shown to have been proved. Suit of the plaintiffs could not thus, be dismissed. Plea of respondents is that the plaintiffs had been given a part of the ancestral land by way of gift which could be adjusted in their share which they inherited on the death of Ram Gopal. This contention cannot be accepted. The trial Court rightly held that gift made was never questioned by the defendants and the same could not affect right of inheritance of the plaintiffs. The lower appellate court was, thus, in error in holding that alienation of the suit property by way of decree was valid being family settlement. The plaintiffs have not been shown to be party to the family settlement. They had already acquired right of inheritance before the family settlement. Without their consent, their right of inheritance could not be adversely affected.

9. In view of the above, answer to the question posed on behalf of the appellants has to be in favour of the appellants.

10. Accordingly, this appeal is allowed. Decree of the lower appellate court is set aside and that of the trial court is restored.