- (1.) The substantial questions of law that arise for consideration in this second appeal are: 1. Whether the property held by maternal uncle Arjan Singh of the plaintiff will devolve on succession or by survivorship to the defendants as male coparceners being brother's sons of Arjan Singh ? 2. Whether right of sale or mortgage exercised by a coparcener consistent only with a case of divided status or whether undivided property could be subject to alienation ?
(2.) The plaintiff's suit for joint possession of 5/7th share in the property claimed to be the estate of one Arjan Singh was resisted by Arjan Singh's brother's sons. The contention was that the property in specific khasra numbers belonged to Arjan Singh and the plaintiff relied on jamabandi entries that showed entitlement of Arjan Singh to half share in some items and to whole of the property in some items. The defendants pleaded that the properties did not belong separately to Arjan Singh but they belonged to joint family consisting of Arjan Singh and Chanan Singh. Chanan Singh had pre-deceased Arjan Singh and the properties were enjoyed in common by Arjan Singh and the defendants as members of a Hindu undivided family. It was elicited in evidence and admitted by the plaintiff that there had been no partition of the properties between Arjan Singh and Chanan Singh by metes and bounds and that they were ancestral properties. The trial Court decreed the suit holding that the reference to half share of some items and execution of sales and mortgages by Arjan Singh and Chanan Singh's children proved separate enjoyment of the property and therefore, the property in suit must only be taken to be the separate properties to which the plaintiffs were entitled to stake the claim as heirs under the Hindu Succession Act. The Appellate Court reversed the judgment and made pointed reference to the admission of the plaintiffs that there had been no partition between Arjan Singh and Chanan Singh and that both of them obtained properties from their ancestors. The Court found that sale or mortgage by one or the other coparceners ought not to be taken as proof of partition and the property on the death of Arjan Singh on 14.12.1998 would go only by devolution of interest by survivorship under Section 6 of the Hindu Succession Act and not by succession.
(3.) The point which is urged before this Court is that the alleged admissions made by the plaintiff ought not to prevail over the jamabandi entries themselves which show clearly the entitlement of Arjan Singh to half share in specified items and full entitlement for some items while the defendants have been shown as having half share only in some items and there were also reference to mortgages and sales of some of the items which dealt with by the defendants. If these entries would show a separate enjoyment, then it should only be taken that brothers had divided the properties during the life time and the provisions of Section 8 of the Hindu Succession Act alone will operate to provide for a per capita distribution in the light of Section 8 read with Schedule I part IV and Section 10 of the Hindu Succession Act which provides for an equal distribution for Class II heirs.;