Case Note & Summary
By special leave, the appellants challenged the judgment and order of the Punjab and Haryana High Court dated December 8, 1995 in RSA No. 2617/95, which had dismissed their second appeal and affirmed concurrent findings of the trial court and first appellate court. The dispute concerned agricultural land admeasuring 74 kanals 12 marlas comprised in Khewat Khata Nos.5/5, Khasra No.68/1(7-10) etc., situated in village Ghagga, Tehsil Samana, District Patiala. The appellants had earlier filed Suit No.8 of 9.2.1978 against Arjan Singh, son of Badan Singh, in the court of Sub Judge III Class, Patiala, seeking declaration that they were owners in possession of 5/6 share along with the defendant. Arjan Singh admitted in his pleadings that the property was ancestral Hindu Joint Family property and suffered a decree. Subsequently, the respondent filed the present suit for declaration that the earlier decree was a collusive decree and did not bind him. The trial court decreed the respondent's suit. The first appellate court confirmed the decree and the High Court dismissed the second appeal. Before the Supreme Court, learned senior counsel for the appellants contended that unless the respondent established the existence of a Joint Hindu Family of three succeeding generations, there could be no presumption that the property was coparcenary property. He argued that the view of the courts below that the property was coparcenary and that the respondent by birth was entitled to 1/6 share, and that the previous decree did not bind him, was incorrect. The Supreme Court found no force in this contention. It noted that in the previous suit, the parties themselves had taken the case that the property was ancestral and that Arjan Singh and his sons were members of a joint family. Once the existence of the joint family was not in dispute, necessarily the property held by the family assumed the character of coparcenary property, and every member of the family would be entitled by birth to a share unless any coparcener pleaded and proved that some or all properties were self-acquired and could not be blended. The Court reiterated that even self-acquired property can be blended into joint family hotchpotch, thereby acquiring coparcenary character. It observed that there was no pleading in the written statement that the property was not joint family property, and the very issues framed by the trial court proceeded on the premise that the property was ancestral joint family property. The Court held that the findings of all courts below that the property belonged to the Joint Hindu Family and that the respondent was entitled to 1/6 share by birth were well justified. On the question of the previous decree, the Court noted that the respondent was admittedly not a party to the earlier suit and the decree was granted without his consent. Therefore, the finding that the previous decree was collusive and did not bind him was a finding of fact based on appreciation of evidence and was not vitiated by any error of law. Consequently, the Supreme Court found no substantial question of law warranting interference and dismissed the appeal with no order as to costs.
Headnote
A) Hindu Law - Joint Family and Coparcenary Property - Burden and Proof of Coparcenary Character - General Hindu Law - When joint family existence is admitted, property held by family assumes coparcenary character and every member gets right by birth; self-acquired property can be blended into joint family hotchpotch if not separately pleaded and proved - Held that concurrent findings of coparcenary property based on previous admission and absence of contrary pleading are correct; respondent entitled to 1/6 share (Paras 1-2). B) Civil Procedure - Collusive Decree - Binding Effect on Non-Party - Code of Civil Procedure, 1908 (no specific section cited) - A decree obtained without a coparcener being made party and without his consent is collusive and does not bind him; such finding of fact cannot be interfered absent substantial question of law - Held appeal dismissed as concurrent findings of collusive decree were based on evidence and no substantial question of law arose (Paras 1-2).
Issue of Consideration
Whether the courts below erred in holding the suit property to be coparcenary property and granting respondent 1/6 share by birth; whether the previous consent decree was collusive and not binding on respondent who was not a party.
Final Decision
Supreme Court found no substantial question of law; held that once joint family existence was admitted, property assumed coparcenary character and respondent entitled by birth to 1/6 share; previous decree obtained without respondent as party and without his consent was collusive and not binding. Appeal dismissed with no order as to costs.
Law Points
- Once existence of joint family is not disputed
- property held by family assumes character of coparcenary property
- every coparcener entitled by birth to share
- self-acquired property can be blended into joint family hotchpotch
- decree obtained without making a coparcener party and without consent is collusive and not binding
- findings of fact on collusive decree not interferable absent substantial question of law.
