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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION  

CIVIL APPEAL NO. 432  OF 2002

HARI CHAND ROACH                       Appellant(s)

                    :VERSUS:

HEM CHAND AND ORS.                     Respondent(s)

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal emanates from the judgment of the  

High Court of Himachal Pradesh at Shimla delivered  

on 26th July, 2000 in Regular Second Appeal No.75 of  

1993.   

2. Brief facts which are necessary to dispose of  

this appeal are recapitulated as under.

3. In order to properly comprehend the inter se  

relationship of the parties, the Genealogycal family  

tree is reproduced herein.  

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3 Parcels – Undivided                 

 |

  |                         ______________________________________________

|   |    |     

 HARI RAM KHARIA DELU  (Died 1954)  (Living in Kaljer)   (Living in Shoongra) (Living in Soonthi    |  till death)     |

|    | |    |  

JAMNI, wife, HEMCHAND (Living in Soonthi  (Son)  till death)

| |

 __________________________   |    |  DEVUKU SANGMA  (Daughter) (Daughter)

died young     |     |

  __________________________________________   |    |     |    |  JEET RAM SANT RAM FULGNA DEVI VIDYAWATI (Son) (Son) (Daughter) (Daughter)

4. Admittedly,  Hari  Ram,  Kharia  and  Delu  were  

brothers and they inherited an undivided share in  

the  two  joint  family  properties,  one  situated  at  

Chak Nani measuring 55 Bigha 2 Biswas and the other  

situated   Chak  Kaljer,  measuring  103  Bigha  10  

Biswas.  

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5. Hari Ram died in 1954 without any male issue  

and he was survived by his widow Jamni and daughter  

Debku. After the death of Hari Ram, Jamni inherited  

the entire share of Hari Ram in both the Chaks and  

consequently mutation was carried out in her name in  

the year 1955.   

6. Jamni, wife of Hari Ram, gifted 18 Bigha 3  

Biswas of land at Chak Nani in favour of Jeet Ram,  

her grandson (son of her daughter) vide a registered  

deed on 17.10.1958, leaving balance of 36 Bigha 6  

Biswas of land at Chak Nani. It may be relevant to  

mention here that the gift deed clearly stated that  

she had given it to Jeet Ram and his wife because  

they had taken good care of her.  

7. Jamni filed  an application  for partition  of  

the land in Chak Kaljer against her two brothers-in-

law  Kharia and Delu.  A compromise was arrived at  

between them on 13.11.1963. As per the compromise,  

an oral gift was made by Jamni to Hem Chand son of  

Kharia by which she gifted 40 Bigha 10 Biswas of  

land at Chak Kaljer. As per the settlement dated  

4.6.1964  between  the  parties,  Jamni  received  36

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Bigha 6 Biswas of land at Chak Nani. Approximately  

36 Bigha of land was exchanged as per the family  

arrangement  between  the  parties.  Jamni  and  her  

daughter Debku were shown as the owner in possession  

of the Jamabandi record of rights.  

8. The appellant  Hari Chand  Roach purchased  36  

Bigha 6 Biswas of land from Jamni and Debku for a  

consideration of  Rs.40,000/- by  a registered  sale  

deed on 22.6.1979. Rs.9,000/- was paid at the time  

of giving possession of the land and the balance  

amount of Rs.31,000/- was paid in the presence of  

Sub Registrar and other witnesses.  

9. Kharia and Delu filed a suit on 12.7.1979 for  

declaration and possession and prayed that the sale  

deed  be  declared  void.  The  Trial  Court  i.e.  the  

Court  of  Sub  Judge,  1st Class,  Theog,  vide  its  

judgment dated 31.12.1987 dismissed the suit holding  

that Jamni and Debku had a limited interest in the  

estate.  Against  the  judgment  of  the  Trial  Court,  

appeals were filed by both the parties before the  

District Judge.  The learned  District Judge  partly  

allowed  the  appeal  of  the  present  appellant  on

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15.12.1992  and  dismissed  the  appeal  filed  by  the  

respondent  herein.  The  Trial  Court  judgment  was  

affirmed by the learned District Judge.   

10. The learned District Judge has dealt with the  

aspect  of  family  arrangement  in  great  detail  in  

paragraph 3 of her judgment, which reads as under:  

“Defendants Smt. Jamni and Debku as well as  

defendant  Hem  Chand  contested  the  suit.  

Defendants Smt.  Jamni and  Debku in  their  

joint  written  statement  raised  manifold  

preliminary objections.  Firstly according  

to them the suit was not properly valued  

for purposes of court fee and jurisdiction  

and  secondly  that  the  plaintiffs  cannot  

claim relief of possession without raising  

the necessary pleadings as the plaintiffs  

have no subsisting right to file the suit.  

In  reply  on  merits,  they  described  

themselves to be the owner in possession of  

the disputed land.  The deceased plaintiffs  

Kharia and Delu had one more brother namely  

Hari Ram who was the husband of deceased  

defendant  Jamni  and  father  of  defendant  

Debku. They had land in two revenue chaks  

namely Kaljer  and Nani  although in  three  

villages.   Villages  Kaljer  and  Shoongra  

were  forming  part  of  Chak  Kaljer  while

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village Soonthi  was forming  part of  Chak  

Nani. By way of family arrangement deceased  

plaintiff Kharia was living in Chak Kaljer  

while  deceased  plaintiff  Delu  and  their  

husband/father  (Hari  Ram)  were  living  in  

Chak Nani.  On the death of Hari Ram, his  

estate  devolved  upon  the  replying  

defendants  and  the  mutations  were  

accordingly attested in their favour. Thus  

they became the absolute owner and were in  

possession  of  the  land  qua  the  share  of  

deceased  Hari  Ram.  In  the  year  1962-63  

defendant  Jamni  applied  for  partition  of  

the land but there was a compromise between  

the  plaintiffs and Smt. Jamni and as per  

that compromise defendant Jamni gifted her  

share in the land in favour of Hem Chand  

and son of deceased plaintiff Kharia vilde  

mutation  no.115  in  Chak  Kaljer  while  in  

return  the  deceased  plaintiffs  gave  the  

land  to  the  two  defendants  namely  Smt.  

Jamni and Debku in Chak Nani vide mutation  

No.43 but these mutations are stated to be  

wrong.   Provisions  of  Section  14(2)  of  

Hindu Succession Act, 1956 (in short called  

Act) is not application to the present case  

as  the  two  replying  defendants  were  the  

absolute owners of the land and were also  

in  its  possession  and  accordingly  were  

competent  to  sell  the  same  in  favour  of  

defendant Hari Chand for consideration. As  

the sale is valid and legal and as such

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after such sale Shri Hari Chand has become  

the exclusive owner of the land and is also  

in its possession. The sale consideration  

is described to Rs.40,000/- which was duly  

received  by  them.   The  plaintiffs  never  

objected to such a sale although they had  

knowledge of it.  All other averments made  

in the plaint have been denied.”

11. The learned District Judge in the concluding  

portion of her judgment has observed as under:

“Undisputedly  Hari  Ram,  brother  of  of  

deceased  plaintiffs  Kharia  and  Delu  was  

having 1/3rd share in the lands in two Chaks  

namely  Kaljer  and  Nani  and  on  his  death  

vide mutation No.19 and 70 Exts. D8 and D9  

respectively, his 1/3rd  share was inherited  

by the widow namely deceased defendant Smt.  

Jamni. These two mutations were attested in  

the year 1955 and accordingly her name came  

to be entered in the copies of jamabandies  

qua 1/3rd share in the column of ownership  

and  possession  along  with  deceased  

plaintiff Kharia and Delu as borne out from  

the copy of jamabandi for the year 1954-55  

Ext.D6. In the year 1956 the Act came into  

force  and  obviously  in  view  of  the  

provisions of Section 6 of the Act daughter  

and widow being the legal heirs of class  

one were entitled to succeed to the share

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of deceased Hari Chand in equal share in  

the  two  Chaks.   Accordingly,  they  filed  

applications for partition of the land of  

their respective shares but on 3rd June 1964  

some settlement was arrived at between the  

deceased  plaintiffs  Kharia  and  Delu  and  

deceased defendant Smt. Jamni and defendant  

Smt. Debku as a result of such settlement,  

on  3-6-64  Smt.  Jamni  orally  gifted  1/3rd  

share  in  the  land  in  Chak  Kaljer  vide  

mutation No.115 in favour of plaintiff Hem  

Chand son of deceased plaintiff Kharia and  

in  return  the  deceased  plaintiffs  Kharia  

and Delu got 1/3rd share of the land in Chak  

Nani mutated on the same day vide mutation  

No.43  in  favour  of  Smt.  Jamni  and  Debku  

making them the limited owners of the land.  

The two mutations dated 3-6-64 are Ext. P10  

and  P3,  respectively.  The  factum  of  a  

settlement  having  arrived  amongst  the  

deceased plaintiffs and deceased Smt. Jamni  

is  further  born  out  from  mutation  No.42  

Ext. P9 vide which some of the land stood  

mutated  in  favour  of  Jeet  Ram  in  whose  

favour  that  land  was  gifted  by  a  verbal  

gift by Smt. Jamni in the year 1959 vide  

mutation Ext. D10 in February, 1959.”      

12. It may be pertinent to mention here that in  

the suit filed by Kharia and Delu, a joint written  

statement was filed by Jamni and Debku – defendant

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Nos.1 & 2.  In the said written statement they have  

stated  about  the  family  arrangement,  which  reads  

under:

“That  by  family  arrangement  the  

plaintiff  Kharia  was  and  is  living  in  

village Kaljer, Shri Delu plaintiff was and  

is living in village Shoongra and Shri Hari  

Ram deceased (the predecessor in interest  

of the replying defendants) was living at  

village  Soonthi  till  his  death.   These  

three brothers, Kharia, Delu and Hari Ram  

had separate residence, food, worship and  

cultivation of the land. That on the death  

of Shri Hari Ram which occurred about 24  

years  ago,  his  estate  devolved  upon  the  

replying  defendants,  the  mutation  No.19  

Chak Nani and mutation No.70 Chak Kaljer  

about inheritance were attested in favour  

of the replying defendants. On the death of  

Shri  Hari  Ram  defendants  became  the  

absolute owners in possession of the land  

qua  the  share  of  Shri  Hari  Ram.  That  

somewhere  in  1962  or  1963,  the  replying  

defendant No.1 applied for partition of the  

land in the Court of A.C. 1st Grade, Theog.  

In  that  partition  application  the  

plaintiffs and the defendant No.1 effected  

the  compromise  and  in  pursuance  of  that  

compromise the parties agreed to partition  

the land privately in accordance with the  

family arrangement and agreed to treat the

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family  arrangement  as  complete  partition  

between them.  This compromise took place  

in the year 1963.  That in pursuance of  

that compromise the replying defendant No.1  

agreed to get her as well as the name of  

defendant  No.2  removed  from  the  revenue  

papers of villages Kaljer and Shoongra of  

Chak Kaljer and the plaintiffs also agreed  

to get their names removed from the revenue  

papers of village Soonthi of Chak Nani. The  

plaintiff Shri Delu had no issue at that  

time, thus he preferred to keep his Khata  

with Kharia plaintiff. The plaintiffs asked  

the defendants to attest the mutation in  

favour of Hem Chand the only son of Shri  

Kharia plaintiff and thus mutation No.115  

Chak  Kaljer  was  entered  and  attested  in  

favour of Hem Chand. The mutation No.115  

showing the gift of the land is wrong and  

contrary  to  facts.  The  plaintiffs  in  

pursuance of the compromise also attested  

mutation No.43 Chak Nani in favour of the  

replying  defendants.  That  in  that  the  

mutation  No.43  Chak  Nani  and  mutation  

No.115 Chak Kaljer were relating to private  

partition. The mutations were effected with  

a  view  to  give  effect  to  the  private  

partition.  

In the alternative, if the mutation  

No.43 Chak Nani and mutation No.115 Chak  

Kaljer  are  not  treated  as  mutations  of  

private partition, the same be treated as

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mutations of exchange in which the parties  

have exchanged the lands of their exclusive  

ownership. It is thus wrong and denied that  

the  defendants  No.1  &  2  were  given  only  

limited rights.”   

13. It  is  clear  from  all  these  documents  and  

pleadings that  because of  the family  arrangement,  

Jamni and Debku became the absolute owners of the  

land at Chak Nani, measuring 36 Bigha 6 Biswas. They  

later on relinquished their undivided shares in Chak  

Kaljer measuring 103 Bigha 3 Biswas. A second appeal  

was preferred against the judgment of the learned  

District  Judge  before  the  High  Court  of  Himachal  

Pradesh at Shimla. Learned Single Judge of the High  

Court decided the second appeal and aptly observed  

as under:  

“From the oral testimony of plaintiff No.1  

Hem Chand corroborated by PW-2 Mast Ram,  

PW-3  Narayan  Singh  and  PW-4  Puran,  it  

stands clearly proved that Smt. Jamani had  

inherited estate of her husband Hari Ram to  

the extent of 1/3rd share out of the total  

shares.”

14. Similarly,  at  Page  17  of  the  judgment  the

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learned Single Judge observed as under:

“After family settlement, when Smt. Jamani  

approached  Kharia  and  Delu,  they  gladly  

accepted  her  request  to  part  with  their  

respective shares of the land in mauja Nani  

which  is  the  subject  matter  of  the  

controversy.”

15. The  learned  Single  Judge  also  observed  as  

under:

“From  the  entire  oral  and  documentary  

evidence  led  by  the  patties,  it  stands  

proved that the land in dispute fell in  

the  shares  of  Kharia  and  Delu  

predecessors-in-interest of the plaintiffs  

after  the family settlement was arrived  

at between them and Smt. Jamani widow of  

Hari Ram. It is an admitted case of the  

parties that after the death of Hari Ram  

his  entire  estate  was  inherited  by  his  

widow  Smt.  Jamani.   This  fact  stands  

proved on record from copies of mutations  

Exts.P-4 to P-6 in which it has clearly  

been  shown  in  the  remarks  column  dated  

22.2.1955  and  21.2.1955,  respectively,  

that the estate of Hari Ram had devolved  

upon  Smt.  Jamani  and  the  mutation  of  

inheritance  stood  sanctioned  in  her  

favour.   On  careful  appraisal  and

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consideration  of  these  documents,  it  is  

proved that after the death of Hari Ram  

his widow Smt. Jamani had inherited 1/3rd  

share  of  her  husband  and  she  became  

absolute owner in possession of the estate  

inherited by her.  Copy of mutation No.30  

Ex.P-7 would go to show that Smt. Jamani  

gifted  1/3rd of  her  share  of  the  land  

inherited by her situated in mauja Nani in  

favour of Jeet Ram and mutation in respect  

of  the  said  land  was  sanctioned  by  the  

revenue official on 21.3.1959.  Again Smt.  

Jamani  gifted  1/3rd of  her  share  to  Hem  

Chand, plaintiff No.1 of the land situate  

in mauja Kaljer and mutation of the said  

land came to be attested in his favour by  

the  revenue  authority  on  3.6.1964,  vide  

copy  marked  as  Ext.P-10  on  the  record.  

Thus,  the  documents  relied  upon  by  the  

parties  would  clearly  prove  that  after  

becoming  absolute  owner  of  the  share  of  

her  husband,  Smt.  Jamani  had  gifted  her  

share in favour of Jeet Ram and plaintiff  

No.1 in the year 1959 and 1964.”    

16. In our considered view, it is not necessary to  

examine  the  applicability  of  Sections  14(1)  and  

14(2) of the Hindu Succession Act, 1956 in the facts  

and circumstances of this case.

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17. All  the  above  quoted  observations  of  the  

learned Single Judge of the High Court are based on  

the  pleadings  and  the  documents  on  record.  But  

unfortunately  at  page  22  of  the  judgment,  the  

learned Single Judge observed that Jamni and Debku  

had no pre-existing right in the land in dispute and  

because of this finding, the learned Single Judge  

has  arrived  at  absolutely  wrong  conclusion.  

Consequently, this finding is set aside.   

18. We  are  clearly  of  the  view  that  Jamni  

inherited the estate of her husband Hari Ram on his  

death in the year 1954. She had undivided shares in  

Chak Nani and Chak Kaljer. By a family arrangement,  

Jamni had relinquished her share in Chak Kaljer and  

instead,  she took the share of her brothers-in-law  

Kharia and Delu in Chak Nani. Thus, Jamni and Debku  

became full owner of the Chak Nani and consequently  

had full right to dispose of the said property at  

Chak Nani. They had sold the property (at Chak Nani)  

to the appellant herein. The property was sold for  

consideration and in good faith.  

19. On consideration of the totality of the facts

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and  circumstances  of  this  case,  the  impugned  

judgment of the High Court cannot be sustained and  

consequently the same is set  aside.  The appeal is  

accordingly  allowed,  leaving  the  parties  to  bear  

their own costs.  

.....................J (DALVEER BHANDARI)

.....................J (DEEPAK VERMA)

New Delhi; October 28, 2010.