- (1.) Sole plaintiff Rohit Chauhan is the appellant before us. His grandfather Budhu had three sons, namely, Gulab Singh, Zile Singh and one Ram Kumar. Gulab Singh, father of the plaintiff, has been arrayed as defendant no. 2, whereas son of Zile Singh i.e. Surinder Singh figures as defendant no. 1 in the suit. In partition between Budhu and his three sons, defendant no. 2 got 1/4 share i.e., 72 Kanals of land. In the said partition Budhu also got 72 Kanals of land and he bequeathed 1/4 of his share i.e., 18 Kanals to each of his three sons and kept with himself 18 Kanals. After the death of Budhu, defendant no. 2 inherited 1/3 share i.e., 6 Kanals and in this way plaintiff's father Gulab Singh, defendant no. 2,got 96 Kanals of land. Defendant No.2 during his lifetime also acquired 8 Kanals of land from the income of the properties which he got in partition amongst his father and brothers. At the time of partition defendant no. 2 was unmarried. But later on, Gulab Singh was married to defendant no. 7, Rajesh Rani and from the wedlock the plaintiff as also defendant no. 6 were born. Plaintiff was born on 25th of March, 1982. Plaintiff alleged that his father defendant no. 2 executed two separate sale deeds on 19th of May, 2000 selling 8 Kanals of land acquired from joint family funds to defendant nos. 3 to 5. It is further allegation of the plaintiff that his father illegally gifted 96 Kanals of land in favour of defendant no. 1 Surinder Singh, the son of his real brother Zile Singh by way of release deed dated 28th of May, 2004. On the basis of the release deed and the sale deeds, the defendants claiming interest therein got their names mutated and attested in the revenue records. It is the case of the plaintiff that the property received by his father is ancestral property and, therefore, alienation of the same by him is null and void. On the basis of the aforesaid pleadings, the plaintiff prayed for declaration that the release deed, sale deeds and the mutation entries made on that basis are illegal, null and void and not binding on him, Varsha (defendant no. 6) and Rajesh Rani (defendant no. 7).
(2.) Defendant no. 1 contested the suit and, according to him, the plaintiff, his mother Rajesh Rani and minor sister Varsha were living separately from defendant No. 2 and there was no good relation between them. They were not even on talking terms. According to defendant no. 1, he and his family members were rendering service and giving honour to defendant no. 2 and he was residing with them as their family member. Defendant no. 1 further averred that out of love, affection and service rendered by him, defendant no. 2 was pleased and, as such, he executed a release deed in his favour and on that basis mutation entries were made. It is the plea of defendant no.1 that the land in question became the self acquired property of defendant no. 2 after partition and, therefore, he was competent to transfer the property in the manner he desired. Defendant no. 1 further alleged that the sale deed executed by defendant no. 2 in favour of defendant nos. 3 to 5 is legal and valid. Defendant no. 2 supported the case of defendant no. 1 and adopted the written statement filed by him. Defendant nos. 3 to 5 filed their separate written statements and supported the plea of defendant no. 1 and averred that the sale deeds and the release deed were validly executed. On the basis of the aforesaid pleading of the parties various issues have been framed including the following issues: "1.Whether the plaintiff is entitled to a decree for declaration to the effect that impugned release deed dt.28.5.2004 and mutation no.3365 entered and attested in lieu of impugned release deed and further two sale deeds dt.19.5.2000 bearing no.272/1 and 273/1 and mutation no.3110 and 3106 entered and attested on the basis of impugned two sale deeds and further revenue entries are wrong, illegal and not binding on the rights of the plaintiff and defendants no. 6 & 7 -
(3.) The trial court, on analysis of the materials placed on record and the legal position, came to the conclusion that the property which defendant no. 2 got by virtue of the partition decree amongst his father and brothers was although separate property qua other relations but it attained the characteristics of coparcenary property after the plaintiff Rohit Chauhan was born. The finding recorded by the trial court in this regard reads as follows: "21. No doubt Gulab Singh got some of his share in the property described in para no. 1(a) of the plaint through his father Budhu vide mutation no. 3089 in which the father Budhu suffered a decree in favour of defendant no. 1 along with Zile Singh and Ram Kumar of 3/4th share but in the year 1969 when the said decree was passed Gulab Singh was unmarried and he had got alienated the land which had come to his share when Rohit Chauhan, Plaintiff came into existence i.e. on 25.3.1982. Meaning thereby that the property which Gulab Singh had got by the decree was although his separate property qua other relation but became JHF property immediately when Rohit Chauhan was born thereby getting characteristic of coparcenary property." Accordingly, the trial court decreed the suit.;