RSA No.1780 of 2000 (O&M) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on 26

th

of May, 2025

Pronounced on 25

th

of August, 2025

RSA No.1780 of 2000 (O&M)

Dilbag Singh and another .....Appellants

Versus

Maghar Singh and others .....Respondents

CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN

Present : Mr. G.S. Sandhu, Advocate

for the appellants.

Mr. M.L. Saggar, Senior Advocate with

Mr. Omesh Garg, Advocate

for respondents No.2 to 5.

PANKAJ JAIN, J.

Plaintiffs are in second appeal.

2. For convenience, the parties hereinafter are referred to by their

original position before the Court of the First Instance, i.e. the appellants as

plaintiffs and respondents as defendants.

3. Plaintiffs filed suit for possession of land measuring 8 Kanals 0

Marla. The challenge is to the Sale Deed dated 29.05.1986 in favour of

defendants No.1 to 4 and Mortgage Deed dated 02.05.1985 in favour of

defendant No.5 executed by No.6.

4. As per the plaintiffs, they being co-parceners have right in the

RSA No.1780 of 2000 (O&M) 2

property by birth as the property is a co-parcenary ancestral property.

Defendant No.6, their father sold the same without any legal necessity and

without consideration.

5. Suit was contested by the defendants. Defendants No.1 to 4

filed joint written statement denying the status of the plaintiffs as co-

parceners or co-owners in the property in dispute. It was pleaded in the

written statement that as per Mortgage Deed dated 02.05.1985 qua land

measuring 7 Kanals 8 Marlas stands mortgaged with possession by Baland

Singh, defendant No.6 in favour of defendant No.5 for a valuable

consideration of Rs.30,000/- and for legal necessity to pay mortgage debt

qua earlier Mortgage Deed dated 05.08.1983 to one Jai Kumar. In order to

pay the entire mortgage debt, Sale Deed dated 29.05.1986 was executed in

their favour by defendant No.6. Sale Deed was also executed to meet

household expenses, repair of house etc. Thus sale deed was executed as

family was in due need of money

5.1. Defendant No.5 though filed separate written statement but

pleaded on the lines of the written statement filed by defendants No.1 to 4

and also added that defendant No.6 apart from mortgaging the property, in

question, also mortgaged land measuring 9 Kanals 6 Marlas for an amount

of Rs.12,000/- in favour of one Kuldip Singh vide Mortgage Deed dated

31.08.1981.

5.2. Defendant No.6 admitted the claim of the plaintiffs.

6. On the basis of the pleadings, Court of the First instance framed

RSA No.1780 of 2000 (O&M) 3

the following issues:

“1. Whether the plaintiffs constitutes joint hindu family with

the defendant no.6? OPP.

2. Whether the suit land is coparcener and ancestral property?

OPP.

3. If issue No.1 & 2 are proved whether allegations made by

defendant no.6 vide sale deed dated 29/5/1986 and

mortgage deed dated 2/5/1985 in favour of defendant no.1

to 5 is legal necessity? OPD 1 to 5

4. Whether the plaintiffs are governed by customory law?

OPD.

5 Whether the plaintiffs are entitled to decree for possession

and injunction prayed for by them? OPP.

6. Relief.”

7. While deciding Issue No.1, the Court of the First Instance found

that it stands proved from the pedigree table that Mukhtiar Singh, great

grandfather of the plaintiffs, was the original owner. From him the property

was inherited by Bant Singh, grandfather of the plaintiffs and from Bant

Singh, property travelled to defendant No.6, father of plaintiffs. Court of

the First Instance thus held that the plaintiffs constituted joint Hindu family

with defendant No.6 and are co-parceners. Property in the hands of

defendant No.6 being a co-parcenery property, plaintiffs have a birth right in

the same.

7.1. Trial Court while deciding Issue No.3 found that the family had

no necessity to sell the land when Sale Deed (Exhibit D3), was executed in

favour of defendants No.1 to 4. Court of the First Instance found that on

29.05.1986 when the Sale Deed, Exhibit D-3, was executed by defendant

RSA No.1780 of 2000 (O&M) 4

No.6 in favour of defendants No.1 to 5, on the same date, defendant No.5

borrowed a sum of Rs.16,000/- from Jasbir Kaur wife of defendant No.6 and

mother and attorney of plaintiffs against promisory note. The said fact stood

proved by way of judgment, Exhibit P-22. Resultantly, the Court of the First

Instance decreed the suit filed by the plaintiffs.

8. In appeal preferred by defendants, the findings recorded by the

Trial Court on Issue No.1 stand reversed. The Lower Appellate Court found

that the Court of the First Instance erred in holding that the property in

dispute was co-parcernary property owned by plaintiffs and defendant No.6.

Lower Appellate Court found that from Mukhtiar Singh, the property

devolved upon Bant Singh, the grandfather of the plaintiffs not by way of

survivorship but by way of registered Will dated 29.12.1997. On death of

Mukhtiar Singh, property came in the hands of Baland Singh, defendant

No.6 father of the plaintiffs. Lower Appellate Court while relying upon

ratio of law laid down by Supreme Court in the case of ‘Commissioner of

Wealth Tax, Kanpur etc. vs. Chander Sen etc.’ AIR 1986 SCC 1753

found that where the property comes to the hands of father by succession

and not by survivorship, it loses its character of being a co-parcenary

property. Lower Appellate Court thus held that the plaintiffs having no

right in the self acquired property of defendant No.6, they do not have locus

to maintain the present suit.

9. Ld. Counsel appearing for the appellants has assailed the

findings recorded by Lower Appellate Court on Issue No.1. He submits that

RSA No.1780 of 2000 (O&M) 5

even though the property travelled in the hands of Bant Singh by way of

registered Will dated 29.12.1997 executed by Mukhtiar Singh but defendant

No.6 Baland Singh got property from his father Bant Singh after he died

intestate. Thus, property in hands of Baland Singh is ancestral property and

the plaintiffs have right in the same.

10. Per contra, Mr. Saggar, Sr. Counsel appearing for the

respondents has relied upon ratio of law laid down by Supreme Court in

Chander Sen’s case (supra) and ratio of law laid down by this Court in the

case of Major Singh vs. Angrez Singh and others, 2024(3) PLR 386,

wherein this Court followed the dictum of law laid down in Chander Sen’s

case ibid.

11. The facts being not much in dispute, the only issue that arises

for consideration of this Court is :

“Whether the property in the hands of Baland Singh can

be held to be ancestral property qua the plaintiffs or is

his self-acquired property as the survivorship came to an

end after Mukhtiar Singh executed Will in favour of Bant

Singh?”

12. The law stands settled by Supreme Court in Chander Sen’s case

(supra) which was reiterated by Supreme Court in the case of Uttam vs.

Saubhag Singh and others (2016) 4 SCC 68 holding as under:

“20. Some other judgments were cited before us for the

RSA No.1780 of 2000 (O&M) 6

proposition that joint family property continues as such even with

a sole surviving coparcener, and if a son is born to such coparcener

thereafter, the joint family property continues as such, there being

no hiatus merely by virtue of the fact there is a sole surviving

coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu

Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8

SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC

419, were cited for this purpose. None of these judgments would

take the appellant any further in view of the fact that in none of

them is there any consideration of the effect of Sections 4, 8 and

19 of the Hindu Succession Act. The law, therefore, insofar as it

applies to joint family property governed by the Mitakshara

School, prior to the amendment of 2005, could therefore be

summarized as follows:-

(i) When a male Hindu dies after the commencement of the

Hindu Succession Act, 1956, having at the time of his death

an interest in Mitakshara coparcenary property, his interest

in the property will devolve by survivorship upon the

surviving members of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section

30 Explanation of the Act, making it clear that

notwithstanding anything contained in the Act, the interest

of a male Hindu in Mitakshara coparcenary property is

property that can be disposed of by him by will or other

testamentary disposition.

(iii) A second exception engrafted on proposition (i) is

contained in the proviso to Section 6, which states that if

such a male Hindu had died leaving behind a female

relative specified in Class I of the Schedule or a male

relative specified in that Class who claims through such

female relative surviving him, then the interest of the

deceased in the coparcenary property would devolve by

testamentary or intestate succession, and not by

survivorship.

(iv) In order to determine the share of the Hindu male

RSA No.1780 of 2000 (O&M) 7

coparcener who is governed by Section 6 proviso, a

partition is effected by operation of law immediately before

his death. In this partition, all the coparceners and the male

Hindu’s widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by

reason of the death of a male Hindu leaving self-acquired

property or by the application of Section 6 proviso, such

property would devolve only by intestacy and not

survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the

Act, after joint family property has been distributed in

accordance with section 8 on principles of intestacy, the

joint family property ceases to be joint family property in

the hands of the various persons who have succeeded to it

as they hold the property as tenants in common and not as

joint tenants.

13. The same view finds echo in the case of ‘Govindbhai

Chhotabhai Patel vs. Patel Ramanbhai Mathurbhai’, (2020) 16 SCC 255

wherein Supreme Court observed as under:

"11. This Court in three Judge Bench in C.N. Arunachala

Mudaliar [C.N. Arunachala Mudaliar v. C.A. Muruganatha

Mudaliar, (1953) 2 SCC 362 : 1954 SCR 243: AIR 1953 SC 495]

considered the question as to whether the properties acquired by

defendant No. 1 under Will are to be regarded as ancestral or

selfacquired property in his hands. It is a case where the plaintiff

claimed partition of the property in a suit filed against his father

and brother. The stand of the father was that the house property

was the self-acquired properties of his father and he got them

under a Will executed in the year 1912. It was held that father of a

Joint Hindu family governed by Mitakshara law has full and

uncontrolled powers of disposition over his self-acquired

RSA No.1780 of 2000 (O&M) 8

immovable property and his male issue could not interfere with

these rights in any way. The Court while examining the question as

to what kind of interest a son would take in the self-acquired

property of his father which he receives by gift or testamentary

bequest from him, it was held that Mitakshara father has absolute

right of disposition over his self-acquired property to which no

exception can be taken by his male descendants. It was held that it

was not possible to hold that such property bequeathed or gifted to

a son must necessarily rank as ancestral property. It was further

held that a property gifted by a father to his son could not become

ancestral property in the hands of the donee simply by reason of

the fact that the donee got it from his father or ancestor.

12. The Court found that such questions have been answered in

different ways by different High Courts. The Calcutta High Court

held [Muddun Gopal Thakoor v. Ram Buksh Pandey, (1863) 6 WR

71] that properties become ancestral property in the hands of his

son as if he had inherited it from his father but in other High

Courts, the question is treated as one of construction to be decided

in each case with reference to its facts as to whether the gifted

property was intended to pass to the sons as ancestral or self-

acquired property.

13. The Bombay High Court in Jugmohan Das v. Sir Mangal

Das (1886) I.L.R. 10 Bom 528 held that if the son takes by devise,

the property continues to be self-acquired in his hands. A man can

give away his self-acquired property to whomsoever it pleases,

including his own sons and that property so given would be

considered self-acquired in the hands of the donee. The Court held

as under:

"I now come to the question, whether a son, to whom a

father leaves his self-acquired property by will, takes the

estate by devise or by descent. This is a most important

point, perhaps the most important point in the case. For, if

the son takes by devise, the property would, in my opinion,

continue to be self-acquired in his hands, and a ready means

RSA No.1780 of 2000 (O&M) 9

would be afforded by the use of the testamentary power of

checking enforced partitions..

xx xx xx

The principle is now settled beyond question, that under

Hindu law a man may alienate his property to the same extent by a

will as he might by a gift inter vivos. In the Tagore Case

[Juttendromohun Tagore v. Ganendromohun Tagore, 1872 SCC

OnLine PC 36: (1872-73) Supp IA 47] IA at p. 68 their Lordships

of the Privy Council say: (SCC OnLine PC)

"A gift by will is, until revocation, a continuous act of gift

up to the moment of death, and does then operate to give

the property disposed of to the persons designated as

beneficiaries. They take, upon the death of the testator, as if

he had given the property in his life-time."

A bequest by will, therefore, is a gift made in contemplation of

death. It only differs from a gift in the fact that it takes effect at a

future time instead of immediately. But it must clearly be governed

and controlled by the general rules regarding gift. Now, there is no

doubt that a man can give away self-acquired property to

whomsoever he pleases, including his own sons; and there is no

doubt that property so given would be considered self-acquired in

the hands of the donee. It would, therefore, follow that property

given by will would equally be self-acquired in the hands of the

devisee."

14. Such view of the Bombay High Court was accepted by the

Allahabad High Court Parsotam v. Janki Bai, ILR 29 All 354 and

the Lahore High Court Amarnath v. Guran, AIR 1918 Lahore 394.

This Court in C.N. Arunachala Mudaliar [C.N. Arunachala

Mudaliar v. C.A. Muruganatha Mudaliar, (1953) 2 SCC 362: 1954

SCR 243: AIR 1953 SC 495] approved the view [Jugmohan Das v.

Mangal Das, ILR (1886) 10 Bom 528] of the Bombay High Court

and held as under:

"9. .. It was held, therefore, that the father of a joint

Hindu family governed by Mitakshara law has full and

RSA No.1780 of 2000 (O&M) 10

uncontrolled powers of disposition over his self-acquired

immovable property and his male issue could not interfere

with these rights in any way. This statement of the law has

never been challenged since then and it has been held by the

various High Courts in India, and in our opinion rightly,

that a Mitakshara father is not only competent to sell his

selfacquired immovable property to a stranger without the

concurrence of his sons [Vide Muddun v. Ram, 6 WR 71]

but he can make a gift of such property to one of his own

sons to the detriment of another [Vide Sital v. Madho, ILR

1 All 394]; and he can make even an unequal distribution

amongst his heirs [Vide Bawa v. Rajah, 10 WR 287].

10. So far the law seems to be fairly settled and

there is no room for controversy. The controversy arises,

however, on the question as to what kind of interest a son

would take in the self-acquired property of his father which

he receives by way of gift or testamentary bequest from

him, vis-a-vis his own male issue. Does it remain self-

acquired property in his hands also, untrammeled by the

rights of his sons and grandsons or does it become ancestral

property in his hands, though not obtained by descent, in

which his male issue become coowners with him?...…

11. In view of the settled law that a Mitakshara

father has right of disposition over his selfacquired property

to which no exception can be taken by his male

descendants, it is in our opinion not possible to hold that

such property bequeathed or gifted to a son must

necessarily, and under all circumstances, rank as ancestral

property in the hands of the donee in which his sons would

acquire co-ordinate interest.."

15. Still further, it was held that the father's gifts are exempt

from partition. The reason for this distinction is that the theory of

equal ownership between the father and the son in the ancestral

property is not applicable to the father's gifts at all. The Court held

RSA No.1780 of 2000 (O&M) 11

as under: (C.N. Arunachala Mudaliar [C.N. Arunachala Mudaliar

v. C.A. Murugantha Mudaliar, (1953) 2 SCC 362 : 1954 SCR

243 : AIR 1953 SC 495], AIR pp. 499-500, paras 12-13]

"12. .But when the father obtains the grandfather's

property by way of gift, he receives it not because he is a

son or has any legal right to such property but because his

father chose to bestow a favour on him which he could have

bestowed on any other person as well. The interest which he

takes in such property must depend upon the will of the

grantor. A good deal of confusion, we think, has arisen by

not keeping this distinction in mind. To find out whether a

property is or is not ancestral in the hands of a particular

person, not merely the relationship between the original and

the present holder but the mode of transmission also must

be looked to; and the property can ordinarily be reckoned as

ancestral only if the present holder has got it by virtue of his

being a son or descendant of the original owner. The

Mitakshara, we think, is fairly clear on this point. It has

placed the father's gifts under a separate category altogether

and in more places than one has declared them exempt from

partition. Thus in Chapter I, Section 1, Placitum 19

Mitakshara refers to a text of Narada which says:

"Excepting what is gained by valour, the wealth of a wife

and what is acquired by science which are three sorts of property

exempt from partition; and any favour conferred by a father."

xx xx xx

15. Another argument is stressed in this connection,

which seems to have found favour with the learned Judges

of the Patna High Court who decided the Full Bench case

[Vide Bhagwat v. Mst. Kaporni, ILR 23 Pat 599] referred to

above. It is said that the exception in regard to father's gift

as laid down in placitum 28 has reference only to partition

between the donee and his brothers but so far as the male

RSA No.1780 of 2000 (O&M) 12

issue of the donee is concerned, it still remains partible.

This argument, in our opinion, is not sound. If the provision

relating to self-acquisition is applicable to all partitions,

whether between collaterals or between the father and his

sons, there is no conceivable reason why placitum 28,

which occurs in the same chapter and deals with the

identical topic, should not be made applicable to all cases of

partition and should be confined to collaterals alone. The

reason for making this distinction is undoubtedly the theory

of equal ownership between the father and the son in the

ancestral property which we have discussed already and

which in our opinion is not applicable to the father's gifts at

all. Our conclusion, therefore, is that a property gifted by a

father to his son could not become ancestral property in the

hands of the donee simply by reason of the fact that the

donee got it from his father or ancestor."

(emphasis in original)

16. This Court further held in C.N. Arunachala Mudaliar case

[C.N. Arunachala Mudaliar [C.N. Arunachala Mudaliar v. C.A.

Murugantha Mudaliar, (1953) 2 SCC 362 : 1954 SCR 243 : AIR

1953 SC 495] that on reading of the Will as a whole, the

conclusion becomes clear that the testator intended the legatees to

take the properties in absolute rights as their own selfacquired

property without being fettered in any way by the rights of their

sons and grandsons. In other words, he did not intend that the

property should be taken by the sons as ancestral property.

Consequently, the appeal was allowed and the suit for partition by

the son against his father was dismissed.

17. In other case reported as [Pulavarthi Venkata Subba Rao &

Ors. v. Valluri Jagannadha Rao (deceased) by his Heirs & LRs &

Ors. AIR 1967 Supreme Court 591], life estate was given by

Valluri Jagannadha Rao to his two sons, Srivatsankara Rao and

Narasimha Rao. There was a condition that if any of his sons left

no son, the sons of his other son would be entitled to the properties

at the end of the life estate. The High Court held that the properties

RSA No.1780 of 2000 (O&M) 13

taken by two sons of Narasimha Rao under Will were their

separate properties and not ancestral properties as there was no

such intention in the Will. This Court held as under:

"8. The contention of the judgment-debtors was that

there were two persons who were legatees under the will.

They took the villages not as ancestral properties but as

self-acquired properties, and the peshkash payable on these

two villages must be divided between them before Section

3(ii), proviso (D) of the Act was made applicable. The

contention on the side of the decree-holders was that these

properties were held by an undivided Hindu family and the

sons of Narasimha Rao took the properties under the will as

ancestral properties, and the peshkash in respect of the two

villages must be added together for the purpose of the

application of the said proviso. The High Court held that the

properties taken by the two sons of Narasimha Rao under

the will, were their separate properties and not ancestral

properties, as there were no words to show a contrary

intention. The High Court also referred to the conduct of the

respondents in partitioning the villages and held that the

property was held not jointly but in definite shares. The

High Court, therefore, held that the peshkash in respect of

the two villages could not be aggregated. The High Court,

accordingly, broke up the peshkash in respect of

Kalagampudi and the three-fifth share of Pedamamidipalli

into two halves and held that as each son of Narasimha Rao

was required to pay only his share, the peshkash paid by

them individually did not exceed Rs. 500 mentioned in

proviso (D), and that the judgmentdebtors were, therefore,

agriculturists. This part of the case was not challenged

before us by the learned Advocate-General of Andhra

Pradesh. Indeed, the decision of the High Court is supported

by C.N. Arunachala Mudaliar v. C.A. Muruganatha

Mudaliar [C.N. Arunachala Mudaliar v. C.A. Muruganatha

Mudaliar, (1953) 2 SCC 362 : 1954 SCR 243 : AIR 1953

SC 495], in respect of the character of the property inherited

RSA No.1780 of 2000 (O&M) 14

by the two sons of Narasimha Rao, and this fundamental

fact could not be questioned..."

18. Learned counsel for the appellants has referred to

Shyam Narayan Prasad [Shyam Narayan Prasad v. Krishna

Prasad, (2018) 7 SCC 646; (2018) 3 SCC (Civ) 702]. That is a

case in which the property in question was held to be ancestral

property by the Trial Court. The plaintiffs therein being sons and

grandson of one of the sons of Gopal Prasad, the last male holder

was found to have equal share in the property. The question

examined was whether the property allotted to one of the sons of

Gopal Prasad in partition retains the character of coparcenary

property. It was the said finding which was affirmed by this Court.

This Court held as under: (SCC p.651, para 12)

"12. It is settled that the property inherited by a male

Hindu from his father, father's father or father's father's

father is an ancestral property. The essential feature of

ancestral property, according to Mitakshara Law, is that the

sons, grandsons, and great grandsons of the person who

inherits it, acquire an interest and the rights attached to such

property at the moment of their birth. The share which a

coparcener obtains on partition of ancestral property is

ancestral property as regards his male issue. After partition,

the property in the hands of the son will continue to be the

ancestral property and the natural or adopted son of that son

will take interest in it and is entitled to it by survivorship."

14. The property in hands of Bant Singh being his self acquired

property, the same lost its character of being ancestral property. It further

travelled by operation of law and not survivorship.

15. Thus, finding no merit in present appeal, the same is ordered to

be dismissed.

RSA No.1780 of 2000 (O&M) 15

16. Pending application(s), if any, shall also stand disposed off.

August 25, 2025 (Pankaj Jain)

Dpr Judge

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No