REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5514 OF 2005

Ganeshi (D) through LRs & Ors. .. Appellants

-versus-

Ashok & Anr. ..     Respondents  

J U D G M E N T

Markandey Katju, J.

1. This  appeal  has  been  filed  against  the  judgment  and  order  dated  

29.3.2005 of the Punjab & Haryana High Court at Chandigarh in Regular  

Second 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 of 1980 with a  

prayer that the judgment and decree passed in Civil Suit No. 476 of 1978  

titled Jagbir and others vs. Ganeshi and others dated 27.10.1978 relating to  

1

the suit land  be declared null and void and a declaration be given that the  

plaintiffs have 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 2 to 5 by the aforesaid judgment  

and decree dated 27.10.1978 is null and void being against the custom and  

will not operate against the right for succession of the plaintiffs and other  

heirs of defendant No. 1 on his death.  Plaintiffs Nos.1 and 2 were minors  

and the suit was filed on their behalf by the mother Smt. Padam Devi who  

was also one of the plaintiffs.   

4. The case of  plaintiff Nos.1 and 2 was that they are the sons of one  

Ramgopal and Padam Devi, widow of deceased Ramgopal.  It was alleged  

that the plaintiffs as well as the other defendants were the descendants of  

defendant No. 1 as given in the pedigree table given in para of the plaint.  

The plaintiffs Nos. 1 and 2 are minors and they filed the present suit through  

their mother Smt. Padam Devi.   It  was alleged that defendant No. 1 is a  

Hindu Jat and is governed by the agricultural custom according to which  

ancestral immovable property cannot be alienated except for legal necessity  

and consideration.  

2

5. It  was  alleged  that  defendant  No.1  Ganeshi  had  three  sons,  being  

Ramgopal, Dharambir and Jugal.  Ramgopal , father of the plaintiffs died  

some years ago.  It  was also alleged that defendant No. 1 was under the  

influence of his surviving sons namely, Dharambir and Yugal Kishore @  

Jugal Singh.    Defendant No. 2 is the son and defendant No. 3 is the wife of  

Dharambir.  Defendant No. 4 is the son and defendant No. 5 is the wife of  

Yugal Kishore @ Jugal Singh.  

6. It was alleged that a month before filing of the plaint, the plaintiffs  

came to know the that in order to deprive them of  their right to inherit the  

suit  land on the death of defendant No. 1, defendant Nos. 2 to 5 filed a  

collusive suit against defendant No. 1 bearing suit No. 476 of 1978 in the  

Court of sub-Judge, IInd  Class, Palwal for declaration that they are owners  

of the suit land.   Defendant No. 1 suffered that decree against him on his  

admission on 27.10.1978.   It  was alleged that the said decree could not  

extinguish the rights of ownership of the plaintiffs in respect of the suit land,  

and it was null and void and would not operate against the plaintiff’s right of  

succession  on  the  death  of  defendant  No.1.   It  was  further  alleged  that  

plaintiffs  Nos.1  and  2  are  sons  of  Ramgopal  and  the  land  is  ancestral  

property.   According  to  agricultural  custom  defendant  No.1  could  not  

3

transfer the suit land in favour of defendant Nos.2 to 5 who were not his  

heirs to the exclusion of the plaintiffs who were his heirs.    It was further  

alleged that,  in the alternative,  the said decree amounts to alienation and  

without consideration and legal necessity.   It  was alleged that defendants  

Nos.6 & 7 have colluded with defendant Nos.1 to 5.  

7. The  defendants  contested  the  suit.   It  was  alleged  in  the  written  

submissions that defendant No. 1 did not transfer and alienate the land in  

suit in favour of the answering defendants, but the suit land was settled on  

them by way of family settlement arrived at between the defendants.    Some  

agricultural land was already gifted by defendant No.1 in favour of plaintiffs  

Nos.1 and 2.  It was because of that reason that the family settlement was  

arrived at in order to avoid family dispute.  

8. It was alleged that since defendant No.1 gifted some of his land in  

favour of plaintiff  Nos.1 & 2,  this  resulted in a family unrest  and hence  

defendant No. 1 pacified all the members of the family by way of a family  

settlement.  It was denied that the land was ancestral.  It was also denied that  

defendant No.1 was under the influence of his surviving sons.  

4

9. The trial court decreed the suit holding that the judgment and decree  

dated 27.10.1978 amounts to alienation and without consideration and legal  

necessity.  It was held that the decree created new rights in defendants Nos.2  

to 5, and it cannot be said to be based on family settlement.  Any alienation  

of immovable property of value of Rs. 100/-  had to be registered and in the  

present case, the alienation is not by a registered document.  

10. The  trial  court  held  that  the  suit  land  was  ancestral  property  of  

Ganeshi qua the plaintiffs.  This finding is based on admission of Ganeshi  

that he has inherited the property from his father Pran Sukh.  The trial court  

also held that defendant No.1 was governed by the custom in the matter of  

alienation, and under that custom ordinarily ancestral immovable property is  

inalienable except for legal necessity or with the consent of the male lineal  

descendants.    

11. The  defendants  filed  an  appeal  which  was  allowed  by  the  first  

appellate  court  by  the  judgment  of  the  District  Judge,  Faridabad  dated  

2.11.1983.   The  first  appellate  court  held  that  plaintiffs  Nos.1  &  2  

(respondents in the first appeal) was given land in 1969 by way of gift by  

Ganeshi and because of this there was some unrest in the family, and hence  

the family settlement was made.   The first appellate court relied upon the  

5

judgment  of  this  Court  in  Kale  &  Ors.  vs.  Deputy  Director  of  

Consolidation AIR 1976 SC 807 which held that in order to sustain a family  

settlement it is not necessary that there must be evidence of antecedent title  

of the parties.   

12. The first appellate court held that the land was not ancestral property  

of Ganeshi because there was no proof that the land had descended from the  

father of Ganeshi.  It was held that Ganeshi held the land in question along  

with some co-sharer’s who acquired the same in whatever manner after the  

death of Bhim Kaur.

13. In second appeal, the High Court has set aside the judgment of the  

first  appellate  court  and restored the  judgment  of  the trial  court.   In  our  

opinion,  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 of the first appellate court.   

14. 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  

6

No.476 of 1978 was only in pursuance of that family settlement, and hence  

it could not be interfered with.  

15. We have carefully perused the judgment of the first appellate court  

which was the last court of facts and we are of the opinion that the findings  

of fact given by it are based on relevant evidence.  Hence the High Court  

was not justified in interfering with those findings.

16. For  the  foregoing  reasons,  the  appeal  is  allowed.   The  impugned  

judgment  and  order  of  the  High  court  is  set  aside  and  that  of  the  first  

appellate court is restored.  There shall be no order as to costs.

………………………………J. (Markandey Katju)

………………………………J. (Gyan sudha Misra)

New Delhi; April 04, 2011

7