IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4688 OF 2009
BHAGWANTI & ORS. APPELLANT(S)
VERSUS
ARJAN SINGH (DEAD) THROUGH LRS. RESPONDENT(S)
O R D E R
This appeal has been filed against the judgment of
the High Court dated 29.09.2005 by which the High Court
has dismissed the R.S.A. No.2258 of 1999 filed by the
appellant's predecessor-in-interest. The predecessor-in-
interest of the appellant filed a Civil Suit No.484 of
1984 along with his two other brothers as plaintiffs
No.1, 2 and 3 against Banarsi and Arjan Singh, who are
arrayed as defendant Nos.1 & 2. Suit was filed for
declaration to the effect that decree dated 10.05.1984
obtained by defendant No.2 against defendant No.1
regarding the ancestral land is without consideration,
legal necessity and is against the reversionary interest
of the appellants/plaintiffs. The suit was contested and
the Trial Court framed 11 issues and after answering the
1
issues dismissed the suit. The plaintiffs, who were
agnates to the defendant No.1 had challenged the decree
alleging that it is in nature of alienation which is not
permissible under the custom. It was the case of the
plaintiffs that under customary law defendant No.1 was
not entitled to alienation. One of the issue i.e. issue
No.3 was framed by the Trial Court "as to whether the
parties are governed by the custom in matter of
alienation and what that custom"? Trial Court returned a
finding that there is a custom, as pleaded, but there is
one exception to the custom that a person who has
rendered service to the alienater and who has some
special tie with him or has associated with him in the
management of the property, alienation to him is
permissible.
On the aforesaid ground, the Trial Court further
returned a finding that defendant No.2 was residing with
defendant No.1 and because of that both had special tie
with each other, hence exception to the custom was
applicable, and the suit was dismissed.
Against the said order, Civil Appeal was filed, which
was also dismissed by Additional District Judge, Ambala
reaffirming the findings returned by the Trial Court.
Aggrieved, Regular Second Appeal was filed by the
plaintiffs where the High Court took the view that
2
plaintiffs are merely agnates and the question of
succession could open only after the death of defendant
No.1, hence they had no locus to file the suit. The High
Court further noted that when this was put up to the
counsel for the appellant, an argument was made that
matter regarding customary law has been referred to five-
Judge Bench, hence the matter be deferred. The High Court
took the view that the present case was not a case where
the decision of the Full Bench be awaited. Consequently,
the appeal was dismissed.
Learned counsel for the appellants challenging the
judgment of the High Court contends that High Court
having not considered the matter on merits the matter
need to be reconsidered by the High Court on merits. He
further submits that under the customary law, the
alienation was not permissible. He has also referred to
five-Judge Bench judgment, which was under reference at
the time when the regular second appeal was decided. The
judgment is reported in Mihan and another Vs. Inder and
another , (2008) 3 R.C.R.(Civil) 124. Learned counsel for
the appellant lastly submitted that the decree was
collusive.
We have considered the submissions of counsel for the
appellants and perused the record.
3
The plaintiffs suit was based on the custom that sole
proprietor, who has no son, has no right of alienation,
hence the decree in favour of the defendant No.2 was
unsustainable. The Trial Court has properly framed the
issues and has answered the issue on customs, as pleaded,
but held that there is an exception to the custom that
for person who has special tie and who has rendered
service, there can be alienation. Those findings are
based on relevant materials and we do not find any ground
to interfere with those findings. The said findings were
also concurred by the First Appeal.
As far as submission of learned counsel for the
appellant that the High Court did not enter into the
merits of the case and decided only on the locus. It is
true that the High Court noted the aforesaid ground that
succession will open after the death of the defendant
No.1, hence there is no locus to the plaintiffs to file
the suit. Even, if the submission of learned counsel for
the appellants is correct that the High Court ought to
have consider other issues on the merits but in view of
the fact that two Courts i.e. Trial Court and the First
Appellate Court has concurrently decided the matter on
merits, we do not find any reason to remit to the High
Court to reconsider the matter. The appellants, who are
plaintiffs, have to stand on their own legs and they have
to prove their own case. As found, the decree, passed by
4
defendant No.1 in favour of defendant No.2, was
permissible even on custom. As far as submission
regarding decree was collusive, the Trial Court did not
accept the said plea and we also do not find any good
ground to accept such plea.
We do not find any ground in this appeal. The appeal
is, accordingly, dismissed.
...................J.
(ASHOK BHUSHAN)
...................J.
(NAVIN SINHA)
New Delhi
July 24, 2019
5
ITEM NO.101 COURT NO.12 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).4688/2009
BHAGWANTI & ORS. Appellant(s)
VERSUS
ARJAN SINGH (DEAD) THROUGH LRS. Respondent(s)
Date : 24-07-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ASHOK BHUSHAN
HON'BLE MR. JUSTICE NAVIN SINHA
For Appellant(s)
Mr. J.S. Chahal, Adv.
Mr. A. P. Mohanty, AOR
For Respondent(s)
Mr. P. N. Puri, AOR
Mrs. Reeta Dewan Puri, Adv.
Mr. Abhishek Puri, Adv.
Ms. Seema Chettri, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed order.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file)
6
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4688 OF 2009
BHAGWANTI & ORS. APPELLANT(S)
VERSUS
ARJAN SINGH (DEAD) THROUGH LRS. RESPONDENT(S)
O R D E R
This appeal has been filed against the judgment of
the High Court dated 29.09.2005 by which the High Court
has dismissed the R.S.A. No.2258 of 1999 filed by the
appellant's predecessor-in-interest. The predecessor-in-
interest of the appellant filed a Civil Suit No.484 of
1984 along with his two other brothers as plaintiffs
No.1, 2 and 3 against Banarsi and Arjan Singh, who are
arrayed as defendant Nos.1 & 2. Suit was filed for
declaration to the effect that decree dated 10.05.1984
obtained by defendant No.2 against defendant No.1
regarding the ancestral land is without consideration,
legal necessity and is against the reversionary interest
of the appellants/plaintiffs. The suit was contested and
the Trial Court framed 11 issues and after answering the
1
issues dismissed the suit. The plaintiffs, who were
agnates to the defendant No.1 had challenged the decree
alleging that it is in nature of alienation which is not
permissible under the custom. It was the case of the
plaintiffs that under customary law defendant No.1 was
not entitled to alienation. One of the issue i.e. issue
No.3 was framed by the Trial Court "as to whether the
parties are governed by the custom in matter of
alienation and what that custom"? Trial Court returned a
finding that there is a custom, as pleaded, but there is
one exception to the custom that a person who has
rendered service to the alienater and who has some
special tie with him or has associated with him in the
management of the property, alienation to him is
permissible.
On the aforesaid ground, the Trial Court further
returned a finding that defendant No.2 was residing with
defendant No.1 and because of that both had special tie
with each other, hence exception to the custom was
applicable, and the suit was dismissed.
Against the said order, Civil Appeal was filed, which
was also dismissed by Additional District Judge, Ambala
reaffirming the findings returned by the Trial Court.
Aggrieved, Regular Second Appeal was filed by the
plaintiffs where the High Court took the view that
2
plaintiffs are merely agnates and the question of
succession could open only after the death of defendant
No.1, hence they had no locus to file the suit. The High
Court further noted that when this was put up to the
counsel for the appellant, an argument was made that
matter regarding customary law has been referred to five-
Judge Bench, hence the matter be deferred. The High Court
took the view that the present case was not a case where
the decision of the Full Bench be awaited. Consequently,
the appeal was dismissed.
Learned counsel for the appellants challenging the
judgment of the High Court contends that High Court
having not considered the matter on merits the matter
need to be reconsidered by the High Court on merits. He
further submits that under the customary law, the
alienation was not permissible. He has also referred to
five-Judge Bench judgment, which was under reference at
the time when the regular second appeal was decided. The
judgment is reported in Mihan and another Vs. Inder and
another , (2008) 3 R.C.R.(Civil) 124. Learned counsel for
the appellant lastly submitted that the decree was
collusive.
We have considered the submissions of counsel for the
appellants and perused the record.
3
The plaintiffs suit was based on the custom that sole
proprietor, who has no son, has no right of alienation,
hence the decree in favour of the defendant No.2 was
unsustainable. The Trial Court has properly framed the
issues and has answered the issue on customs, as pleaded,
but held that there is an exception to the custom that
for person who has special tie and who has rendered
service, there can be alienation. Those findings are
based on relevant materials and we do not find any ground
to interfere with those findings. The said findings were
also concurred by the First Appeal.
As far as submission of learned counsel for the
appellant that the High Court did not enter into the
merits of the case and decided only on the locus. It is
true that the High Court noted the aforesaid ground that
succession will open after the death of the defendant
No.1, hence there is no locus to the plaintiffs to file
the suit. Even, if the submission of learned counsel for
the appellants is correct that the High Court ought to
have consider other issues on the merits but in view of
the fact that two Courts i.e. Trial Court and the First
Appellate Court has concurrently decided the matter on
merits, we do not find any reason to remit to the High
Court to reconsider the matter. The appellants, who are
plaintiffs, have to stand on their own legs and they have
to prove their own case. As found, the decree, passed by
4
defendant No.1 in favour of defendant No.2, was
permissible even on custom. As far as submission
regarding decree was collusive, the Trial Court did not
accept the said plea and we also do not find any good
ground to accept such plea.
We do not find any ground in this appeal. The appeal
is, accordingly, dismissed.
...................J.
(ASHOK BHUSHAN)
...................J.
(NAVIN SINHA)
New Delhi
July 24, 2019
5
ITEM NO.101 COURT NO.12 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).4688/2009
BHAGWANTI & ORS. Appellant(s)
VERSUS
ARJAN SINGH (DEAD) THROUGH LRS. Respondent(s)
Date : 24-07-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ASHOK BHUSHAN
HON'BLE MR. JUSTICE NAVIN SINHA
For Appellant(s)
Mr. J.S. Chahal, Adv.
Mr. A. P. Mohanty, AOR
For Respondent(s)
Mr. P. N. Puri, AOR
Mrs. Reeta Dewan Puri, Adv.
Mr. Abhishek Puri, Adv.
Ms. Seema Chettri, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed order.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file)
6
