GANESH (D) BY LRS. & ORS. versus ASHOK & ANR.

Citation: [2011] 4 S.C.R. 215 · Decided: 04-04-2011 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2011] 4 S.C.R. 215 
GANESH (D) ~y LRS. & ORS. 
v. 
ASHOK & ANR. 
(Civil Appeal No(s). 5514 of 2005) 
APRIL 4, 2011 
[MARKANDEY KAT JU AND GYAN SUD HA MISRA, JJ.] 
PARTITION: 
A 
B 
Family settlement - Land gifted to sons of pre- deceased c 
son of the tenure-holder- Later, by way of a family settlement 
other agricultural lands settled amongst other heirs - Decree 
in a civil suit passed in terms of the settlement - Subsequent 
suit by sons of the deceased son for declaration of decree in 
earlier suit as null and void - Held: Lands with the tenure-
0 
holder were not ancestral property :-- A family settlement is not 
a transfer of property - The first appellate court rightly held 
that the family settlement was bona fide to avoid dispute in 
the family :-- High Court, in second appeal, was not justified 
in setting aside the finding of fact recorded by the first 
E 
appellate court, which was the last court of facts - Judgment 
of High Court set aside and that of first appellate court 
restored - Code of Civil Procedure, 1908 - s. 100 - Second 
appeal - Scope of- Transfer of property- Family settlement, 
not transfer of property. 
F 
The plaintiffs-respondents, who were the sons of the 
pre-deceased son of defendant no. 1, while they were 
minors, filed a suit through their mother for declaration 
that the decree passed in Civil Suit No. 476 of 1978 be 
declared as null and void and a declaration be made that G 
the plaintiffs had a right to inherit the suit land on the 
death of defendant No. 1 and in the alternative for 
declaration that the alienation of the suit land made by 
defendant no. 1 In favour of defendants nos. 2 to 5 by the 
215 
H 
216 
SUPREME COURT REPORTS 
[2011] 4 S.C.R. 
A judgment and decree in the said suit was null and void. 
The defendants contested the suit contending that the 
plaintiffs had already been gifted certain agricultural 
lands; and in order to avoid dispute in the family, 
defendants nos. 2 to 5 were given the lands under a 
B family settlement. The trial court decreed the suit, but the 
first appellate court dismissed the suit. However, the High 
Court, in second appeal, reversed the judgment of the 
first appellate court. Aggrieved, the defendants filed the 
appeal. 
c 
Allowing the appeal, the Court 
HELD: 1.1. The judgment of the High Court cannot 
be sustained. It is well settled that the High Court in 
second appeal cannot interfere with the findings of fact 
D of the first appellate court. The first appellate court held 
that the land with the tenure-holder was not the ancestral 
property and there was no proof that the land descended 
from his father. [para 12-13] [220-D-F] 
E 
1.2. A family settlement is not a transfer of property, 
as rightly held by the first appellate court. The first 
appellate court held that the family settlement was bona 
fide to avoid disputes in the family. The decree in Civil 
Suit No. 476 of 1978 was only in pursuance of that family 
settlement and, therefore, it could not be interfered with. 
F A perusal of the judgment of the first appellate court 
which was the last court of facts indicates that the 
findings of fact given by it are based on relevant 
evidence. Therefore, the High Court was not justified in 
interfering with those findings. [para 14-15] [220-G-H; 221-
G A-B] 
H 
1.3. The impugned judgment and order of the High 
Court is set aside and that of the first appellate court 
~~restored. [para 16] [221-C] 
GANESH (D) BY LRS. & ORS. v. ASHOK & ANR. 
217 
Kale & Ors. vs. Deputy Director of Consolidation 1976 
A 
(2) SCR 202 =AIR 1976 SC 807 - cited 
Case Law Reference: 
1976 (2) SCR 202 
Cited 
Para 11 
B 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
5514 of 2005. 
From the Judgment & Order dated 29.3.2005 of the High 
Court of Punjab & Haryana at Chandigarh in Regular Second 
C 
Appeal No. 476 of 1984. 
Ajay Majithia, R.S. Ahuja, Rajesh Kumar, Dr. Kailash 
Chand for the Appellants. 
Shivaji M. Jadhav for the Respondents. 
The Judgment of the Court was delivered by 
MARKANDEY KATJU, J. 1. This appeal has been filed 
against the judgment and order dated 29.3.2005 of the Punjab 
D 
& Haryana High Court at Chandigarh in Regular Second 
E 
Appeal No. 476 of 1984. 
2. Heard learned counsel for the parties and perused the 
record. 
3. The respondents herein filed a Civil Suit being No. 58 FI 
of 1980 with a prayer that the judgment and decree passed in 
Civil Suit No. 476of1978 titled Jagbir and others vs. Ganeshi 
and others dated 2

Excerpt shown. Read the full judgment & AI analysis in Lexace.