SHER SINGH AND ORS. versus GAMDOOR SINGH

Citation: [1996] SUPP. 10 S.C.R. 105 · Decided: 13-12-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Dismissed

Judgment (excerpt)

SHER SINGH AND ORS. 
v. 
GAMDOOR SINGH 
DECEMBER 13, 1996 
[K. RAMASWAMY AND G.T. NANAVATI, JJ.] 
Joint Family property-Suit filed by appellants against A for declaration 
of share in property-Admission made by A that property was ancestral joint 
A 
B 
. f amity property-Decree passed accordingly-Suit filed by respondent for dec-
laration that decree in earlier suit was collusive and not binding on him as C 
he was not a party to previous suit-Decree granted by Trial Court holding 
that respondent being a member of joint family was entitled to I/6th 
share-Decree affirmed in first and second appeal-Appeal before Supreme 
Court-Held both the parties proceeded on the premise that it was a co-par-
cenary property belonging to the Joint Hindu Family-The finding recorded D 
by all the courts is that the property belonged to Joint Hindu Family-There-
fore, thefinding that the respondent is entitled to I/6th share by virtue of his 
birth is well justified and the finding that the previous decree does not bind 
him as being tainted with fraud, is not vitiated by any error of law. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16965 of E 
1996. 
From the Judgment and Order dated 8.12.95 of the Punjab & 
Haryana High Court in R.S.A. No. 2617 of 1995. 
Ujjagar Singh, Devender Verma and Mrs. Naresh Bakshi for the F 
Appellants. 
Ms. Shalu and Rakesh Kr. Sharma for the Respondent. 
The following Order of the Court was delivered : 
Leave granted. 
We have heard learned counsel on both sides. 
This appeal, by special leave, 'arises from the judgment and order of 
the Punjab and Haryana High Court, made on December 8, 1995 in RSA 
G 
No. 2617/95. 
H 
105 
SUPREMECOURTREPORTS(1996] SUPP. lOS.C.R: 
A 
The appellants had filed Suit No. 8 of 9.2.1978 against Arjan Singh, 
son of Badan Singh in the Court of Sub-Judge, III Class, Patiala for 
declaration that the plaintiffs in that suit were owners and were in posses-
sion from 1968 to the extent of 5/6th share, along with the defendant, of 
agricultural land admeasuring 74 kanals 12 marlas comprised in Khewat 
B Khata Nos. 5/5 Khasra Nos. 68/1 (7-10) etc. situated in village Ghagga, 
Tehsil Samana, District Patiala. Arjan Singh had admitted in his pleadings 
that the property was ancestral Hindu Joint Family property and suffered 
a• decree. The present suit came to be filed by Gamdoor Singh, the 
respondent in this case for a declaration that the decree therein was 
collusive decree and did not bind him. The Trial Court granted the decree. 
C On appeal it was confirmed and Second Appeal was dismissed. Thus this 
appeal by Special Leave. 
It is contended by Shri Ujjagar Singh, learned senior counsel for the 
appellants, that unless the respondent establishes that there exists Joint 
D Hindu Family of three succeeding generations, there is no presumption 
that the property is the co-parcenary property. Therefore, the view of the 
courts below that it is a co-parcenary property and that the respondent by 
virtue of his birth in the family is entitled to 1/6th share in the property 
and the previous !lecree to which he was not a member does not bind him, 
is not _correct in law. We do not find any force in the contention. It was 
E their own case in the previous suit that it is ancestral property and that 
Arjan Singh and his sons are members of the joint family. Once the 
existence of joint family was not in dispute, necessarily the property held 
by the family assumed the character of a co-parcenary property and every 
· member of family would be entitled by birth to a share in the co-parcenary 
F property unless any one of the co-parceners pleads, by separate pleadings, 
and proves that some of the properties or all the properties are his 
self-acquired properties and could not be blended in the co-parcenary 
property. 
It is settled law that even the salf-acquired property can also be 
G blended into the joint family hotchpoch enveloping the character of co-par-
cenary property. It is also not pleaded in the written statement that it is 
not joint family property. The very first issue raised by the Trial Court 
which was not objected to was whether the property was ancestral property 
of the parties? The second issue was whether the plaintiff is entitled to 
H joint possession of the suit land and the third issue was whether the 
SHER SINGH v. GAMDOORSINGH 
107 
previous decree bound the respondent? Under those circumstances, both A 
the parties proceeded on the premise that it was a 

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