IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No. 2870 of 2002
Date of Decision: 27.1.2009
Mal Singh and others.
....... Appellants through Shri
S.D.Sharma, Senior
Advocate with Shri
K.S.Grewal, Advocate.
Versus
Mohinder Singh and others.
....... Contesting Respondents
through Shri
S.N.Chopra, Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This is an appeal for setting aside judgments and decrees dated
26.8.1998 and 15.2.2002 passed respectively by Civil Judge (Senior
Division), Fatehgarh Sahib (hereinafter described as `the trial Court’) and
Additional District & Sessions Judge, Fatehgarh Sahib (referred to
hereinafter as `the First Appellate Court’) whereby the suit of the plaintiffs-
respondents was decreed and the appeal of the defendants-appellants was
dismissed.
Briefly stated the facts of the case are as under:-
Originally, the suit was filed by Mohinder Singh and Gurnam
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Singh on 19.10.1971 for declaration to the effect that the gift deed No.1709
executed by Gian Singh, their brother, in favour of Pritam Kaur in respect
of the properties mentioned at letters `A’ and `B’ in the head note of the
plaint is null & void and was not binding on their rights being reversioners,
as also on the rights of other reversioners of Gian Singh on his death.
It was pleaded by the plaintiffs that Gian Singh was issueless
and without a wife and that they were his nearest best legal heirs. It was
further pleaded that Pritam Kaur had got no legal relation with Gian Singh
and that the gift deed had been executed and got registered in order to avoid
a pre-emption suit, whereas, in fact, Pritam Kaur had purchased the
properties in question. Gian Singh was stated to be governed by General
Customary Law of Punjab in the matters of alienation, inheritance and
adoption and he could not have executed the gift deed in question. The
recital in the gift deed that Pritam Kaur was the wife of Gian Singh was
stated to be wrong and got incorporated under her influence and in fact, she
was the purchaser. The suit properties were stated to be ancestral.
On 29.11.1971, Pritam Kaur and Gian Singh filed a joint
written statement stating therein that a male proprietor is competent to make
gift in favour of his nearest heir. It was averred that Pritam Kaur was the
wife of Gian Singh and, thus, she was his nearest heir. They denied that the
plaintiffs were the nearest best legal heirs of Gian Singh and pleaded that
even under the Customary Law, there was no bar against execution of such
a gift deed. The status of the suit properties being ancestral was also denied.
It was stated that Pritam Kaur, who was the daughter of late S.Gurbaksh
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Singh, Jagirdar of Village Kotla Shamshaspur, Tehsil Samrala, was married
to Gian Singh some 35 years back and they had been amicably living
together as husband and wife.
The plaintiffs filed replication on 1.12.1971 controverting the
averments of the defendants.
On the pleadings of the parties, the following issues were
framed on 2.12.1971:-
1. Whether the plaintiffs have the locus standi to file the
suit?OPP
2. Whether the property in dispute is ancestral qua the
plaintiffs and Gian Singh defendant?OPP
3. Whether the plaintiffs and Gian Singh are governed by
custom in matters of alienation of ancestral property, if so,
what that custom is?OPP
4. Whether Pritam Kaur defendant is not the wife of Gian
Singh?OPP
5. Whether the suit is properly valued for the purposes of court
fee and jurisdiction?OPP
6. Whether Gian Singh made a valid gift regarding the
property in dispute in favour of Pritam Kaur defendant?OPD
7. Whether the gift of the property in dispute in favour of
Pritam Kaur tantamounts to acceleration of succession, if so,
what is the effect?OPD
8. Relief.
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It is pertinent to mention here that Gian Singh died on
24.1.1972.
On 11.2.1972, the plaintiffs filed an amended plaint claiming a
decree for possession as well qua the suit properties and for declaration of
ownership and in the alternative for possession of the property mentioned at
Letter `C’ in the head note.
Pritam Kaur, on 17.2.1972, filed written statement to the
amended plaint denying the claim of the plaintiffs.
However, no additional issue was claimed.
Thereafter, the plaintiffs led their evidence in affirmative. Even
the defendant had examined two witnesses.
On 10.5.1973, the plaintiffs filed an application for amendment
of the plaint in view of the enforcement of the Punjab Custom (Power to
Contest) Amendment Act,1973 as the right under the custom to contest
alienation of ancestral property was abolished. They wanted to take up an
alternative plea of the applicability of Hindu Law and the property in
dispute being their coparcenary and of theirs being members of coparcenary
with their brother Gian Singh.
Pritam Kaur filed her reply dated 21.5.1973 to the aforesaid
application and pleaded that the plaintiffs are not entitled to take up the plea
as sought by them.
On 12.9.1973, the application for amendment was dismissed by
the trial Court as it was found to be mala fide and a new, different, and
inconsistent case was sought to be introduced.
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The plaintiffs thereafter filed an application on 23.10.1973
again for amendment of the plaint to the effect that the gift deed was the
result of fraud and misrepresentation of facts.
On 27.10.1973, Pritam Kaur filed her reply and sought the
dismissal of the application as well as the suit.
Prior to that, the defendant had moved an application on
22.10.1973 stating therein that the suit of the plaintiffs should be dismissed
as it was no longer maintainable after the commencement of the Punjab
Custom (Power to Contest) Amendment Act,1973, which was contested by
the plaintiffs, who averred that the said Act was not applicable to the
pending suits.
Vide its judgment dated 3.11.1973, the Sub Judge, Bassi held
that the ibid Act applied to the pending suits according to which no decree
could be passed declaring an alienation of ancestral property to be invalid.
Consequently, the suit was dismissed.
The plaintiffs filed an appeal against the judgment of the trial
Court, which was also dismissed by the Additional District Judge, Patiala.
In the Regular Second Appeal, this Court affirmed the
judgments of the Courts below vide order dated 25.9.1975.
The plaintiffs filed a Petition for Special Leave to Appeal
before the Supreme Court challenging the order of this Court,which
was,later on, converted into Civil Appeal No.263 of 1976.
The aforesaid appeal along with other similar appeals came up
for hearing before the Apex Court and their Lordships, vide order dated
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20.11.1990, observed as under:-
“As we find that in these appeals the cases of the appellants
under Hindu Law were not gone into by the High Court &
Lower Courts, we order the cases to be sent back forthwith to
the High Court and direct the High Court to examine the cases
of the willing appellants under Hindu Law after hearing the
parties and,if needed, giving them opportunity to adduce
further necessary evidence. The willing appellants may appear
before the High Court for necessary instructions in this
regard.”
After remand, a learned Single Judge of this Court heard the
learned counsel for the parties, accepted the appeal vide order dated
27.4.1995, set aside the impugned judgments and decrees and remitted the
case to the trial Court for decision afresh and in accordance with law. The
relevant portion of the said order reads as under:-
“It has been conceded by respective counsel for the parties that
there is no pleading to the effect that in the alternative their
case needs to be examined under Hindu Law. Obviously, in the
absence of such a pleading, the matter cannot be examined by
this Court. Thus, keeping in view the direction of the Apex
Court, the matter is remanded to the trial Court to decide the
same afresh in the light of the directions given by the Apex
Court vide order dated 20.11.1990. The trial Court, of
course,would permit the plaintiffs to file amended plaint if an
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application is filed in this regard as well as allow the
defendants to file amended written statement,if need be, and
thereafter allow the parties to adduce evidence in respect of the
contentions so raised and then decide the matter. Accordingly, I
accept the appeal, set aside the judgment and decree of the
Additional District Judge and remand the case to Subordinate
Judge, Fatehgarh Sahib for decision afresh in accordance with
law. The parties through their counsel are directed to appear in
the trial Court on 9.6.1995. Since the suit was filed sometime in
the year 1971, the trial Court is directed to decide the matter
expeditiously, preferably within this year.”
The parties, thereafter, were given opportunity by the trial
Court, to file amended plaint and written statement.
The plaintiffs-respondents filed amended plaint verbatim the
same which was filed earlier in the year 1972. The essential pleadings
were:-
(1)that Gian Singh was governed by the General Customary
Law in the matter of alienation, inheritance and adoption till
the enforcement of Hindu Succession Act and Hindu
Adoption and Maintenance Act and that a male proprietor
could not alienate the ancestral property by way of sale,
mortgage, exchange, gift and will without consideration and
legal necessity in the presence of his collaterals;
(2) that the plaintiffs-respondents were the nearest best legal
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heirs of Gian Singh and his property qua them was
ancestral;
(3) that Gian Singh was issueless and without a wife;
(4) that Gian Singh had no legal relationship with Pritam Kaur
(defendant no.1) and that she has been brought on thescene
by certain persons, who are interested in damaging their
reversionary rights; and
(5) that the recital in the gift deed to the effect that Pritam Kaur
daughter of Gurbax Singh was the wife of Gian Singh was
wrong.
Pritam Kaur (defendant no.1) had died on 18.6.1992 and,
thereafter, present appellant no.1 – Mal Singh, claiming himself to be her
legal heir on the basis of will dated 31.1.1972 executed by defendant no.1,
filed written statement controverting the averments made in the amended
plaint. It was also averred by Mal Singh that deceased-Pritam Kaur had sold
some of the suit properties to different persons including defendant nos. 2 to
14 on the basis of the gift deed dated 1.10.1971 as well as the operation of
the natural succession being the widow of Gian Singh.
In the replication dated 21.11.1995 filed to the amended written
statement filed by Mal Singh, the plaintiffs-respondents, for the first time,
averred that Pritam Kaur daughter of Inder Singh of village Badlam Kalan
was the wife of Gian Singh and that she had died on 2.2.1968 and that they
alone were the legal heirs of said Pritam Kaur.
It is important to point out here that all throughout in the suit
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filed in the year 1971 and in the amended plaints filed in 1972 as well as
1995, Pritam Kaur daughter of Gurbax Singh was impleaded as defendant
and in the replication dated 21.11.1995, as stated above, Pritam Kaur
daughter of Inder Singh was introduced as wife of Gian Singh by the
plaintiffs-respondents.
On 18.12.1995, the trial Court framed the following issues on
the basis of the fresh pleadings of the parties:-
1. Whether Pritam Kaur D/o Inder Singh was the wife of Gian
Singh and not defendant no.1 as alleged? OPP
2. Whether property in dispute is coparcenary property of
undivided family consisting of plaintiffs and their brother
Gian Singh?OPP
3. Whether defendant No.1 is the widow of Gian Singh?OPD
4. Whether Gian Singh executed gift deed in favour of
defendant No.1? If so, its effect?OPD
5. If issue No.4 is proved, whether the alleged gift deed is the
result of fraud and misrepresentation for the reasons stated in
the replication?OPP
6. Whether defendant no.1 executed registered will dt.
31.1.1972 in favour of Mal Singh S/o Avtar Singh, her
alleged nephew? OPD
7. If issue no.6 is proved, whether the will is forged and
fabricated document in connivance with other
defendants?OPP
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8. Whether the suit is bad for non-joinder of necessary
parties?OPD
9. Whether suit is not maintainable as alleged?OPD
10. Whether defendants no. 2 to 14 are bona fide purchasers as
alleged in the written statement?OPD
11. Relief.
After giving opportunity to the parties to lead further evidence
and hearing their counsel, the trial Court, vide its judgment 26.8.1998,
passed a decree of declaration and possession with costs to the effect that
the plaintiffs are the owners of the suit property being brother of Gian Singh
having reversionary rights in the suit properties because Gian Singh died
issueless and his wife died before his death and are entitled to possession of
the suit property.
The First Appellate Court, vide its judgment dated 15.2.2002,
affirmed the findings of the trial Court recorded on all the issues and
dismissed the appeal of the appellants, i.e., Mal Singh and subsequent
vendees of the suit properties.
However, while determining controversy, both the Courts
below came to the conclusion that the suit properties were not ancestral, but
discarded the gift deed made by Gian Singh in favour of Pritam Kaur
daughter of Gurbax Singh by holding that Pritam Kaur daughter of Inder
Singh was his wife. The will dated 31.1.1972 executed by Pritam Kaur
daughter of Gurbax singh in favour of appellant no.1-Mal Singh was also
discarded.
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Feeling aggrieved, the defendants have filed this appeal.
I have heard the learned counsel for the parties and have
perused the record.
In my opinion, the following substantial questions of law arise
for determination in this appeal:-
(1)Whether the judgments of both the Courts below can be
termed as judgments per incuriam because the judgment of
the Supreme Court was only for examining the plea under
Hindu Law and whether by misinterpreting & ignoring such
a mandate, the Courts below have committed an
insurmountable illegality on account of patent lack of
jurisdiction?
(2) Whether the respondents are completely estopped by their
act and conduct to raise an altogether a new plea of
relationship of Gian Singh with Pritam Kaur which was not
at all raised upto the Supreme Court till remand and allowing
of such a plea by the Courts below which is diametrically
opposed to the one pleaded earlier, is legally incorrect?
(3) Whether the Courts below had got jurisdiction to travel
beyond the parameters of remand given by the Apex Court?
(4) Whether a party can rake up an issue of fact which was
abandoned at the earlier stage of litigation and whether a
Court can look into the evidence which is not based on the
pleadings?
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In the circumstances of the case, the question which needs
determination first is as to whether the Courts below were justified in
travelling beyond the domain of the directions given by the Apex Court
while remanding the matter and which were reflected in the order of this
Court while remitting the matter to the trial Court.
At the cost of repetition, the observations of the Apex Court as
well as those of this Court made while remanding the matter, are reproduced
below for proper appreciation:-
” Observations of the Apex Court contained in order
dated 20.11.1990.
“As we find that in these appeals the cases of the appellants
under Hindu Law were not gone into by the High Court &
Lower Courts, we order the cases to be sent back forthwith to
the High Court and direct the High Court to examine the cases
of the willing appellants under Hindu Law after hearing the
parties and,if needed, giving them opportunity to adduce
further necessary evidence. The willing appellants may appear
before the High Court for necessary instructions in this regard.
xx xx xx xx xx xx xx xx xx
Observations of this Court contained in order dated
27.4.1995.
“It has been conceded by respective counsel for the parties that
there is no pleading to the effect that in the alternative their
case needs to be examined under Hindu Law. Obviously, in the
absence of such a pleading, the matter cannot be examined by
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this Court. Thus, keeping in view the direction of the Apex
Court, the matter is remanded to the trial Court to decide the
same afresh in the light of the directions given by the Apex
Court vide order dated 20.11.1990. The trial Court, of
course,would permit the plaintiffs to file amended plaint if an
application is filed in this regard as well as allow the
defendants to file amended written statement,if need be, and
thereafter allow the parties to adduce evidence in respect of the
contentions so raised and then decide the matter. Accordingly, I
accept the appeal, set aside the judgment and decree of the
Additional District Judge and remand the case to Subordinate
Judge, Fatehgarh Sahib for decision afresh in accordance with
law. The parties through their counsel are directed to appear in
the trial Court on 9.6.1995. Since the suit was filed sometime in
the year 1971, the trial Court is directed to decide the matter
expeditiously, preferably within this year.”
It is abundantly clear from the above extracted observations
that the Apex Court had remanded the case only qua a limited aspect of the
matter, i.e., regarding the applicability of Hindu Law and that too was to be
availed by the willing appellants before it. This Court also, while answering
the Regular Second Appeal, had confined itself to the observations of the
Apex Court and opportunity to be given to the parties to set up pleadings
was also necessarily required to be confined to the narrow compass for
which the remand had been made, implying thereby that the plaintiffs-
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respondents had to incorporate a specific plea in the amended plaint
regarding the suit properties being ancestral, coparcenary and the parties
being governed by the Hindu Law of succession.
Under no circumstance, a new plea could not be raised in the
amended plaint in order to set up a case which was not pleaded earlier.
The learned trial Court was, therefore, clearly in error when it
permitted itself to travel into the domains which were alien to the earlier
pleadings.
In the first plaint which was filed in 1971 and thereafter
amended in 1972, the plaintiffs had pleaded the few essentials which have
been reproduced above and which are being extracted here for the purpose
of reference:-
1. that Gian Singh was governed by the General Customary
Law in the matter of alienation, inheritance and adoption till
the enforcement of Hindu Succession Act and Hindu
Adoption and Maintenance Act and that a male proprietor
could not alienate the ancestral property by way of sale,
mortgage, exchange, gift and will without consideration and
legal necessity in the presence of his collaterals;
(2)that the plaintiffs-respondents were the nearest best legal
heirs of Gian Singh and his property qua them was
ancestral;
(3) that Gian Singh was issueless and without a wife;
(4) that Gian Singh had no legal relationship with Pritam Kaur
R.S.A.No.2870 of 2002-15-
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(defendant no.1) and that she has been brought on thescene
by certain persons, who are interested in damaging their
reversionary rights; and
(5) that the recital in the gift deed to the effect that Pritam Kaur
daughter of Gurbax Singh was the wife of Gian Singh was
wrong.
In the plaint filed by the plaintiffs after the remand also, the
aforemetioned essentials were pleaded. It was nowhere averred therein that
Gian Singh’s wife was Pritam Kaur daughter of Inder Singh and that she had
died in the year 1968. This fact was pleaded for the first time in the
replication as aforesaid and that too at the point of time when Pritam Kaur
daughter of Gurbax Singh (defendant no.1) had expired in the year 1992. It
is also to be noted that in the plaint filed in the year 1971 and amended in
the year 1972, Pritam Kaur daughter of Gurbax Singh was impleaded as
defendant by the plaintiffs themselves. At that time, Gian Singh and Pritam
Kaur both were alive and had filed a joint written statement. The trial
Court, therefore, was totally bereft of the factual aspects of the matter that
could have been brought had Pritam Kaur daughter of Gurbax Singh had
been alive.
In any eventuality, this plea could not have been allowed to be
raised by the trial Court and that too in the replication.
In the Law of Pleadings, the plaintiff is required to state his
case concisely and specifically which is put to the defendant, who, on
notice, is required to admit or deny or put up his version to the case set up
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by the plaintiff. The replication, even though part of the pleadings, cannot
substantiate the positive case which is required of a plaintiff to be set up,
more-so when the facts of the instant case reveal that such a case was never
pleaded by the plaintiffs and it was a mere denial that Gian Singh died wife
less and issueless and that Pritam Kaur daughter of Gurbax Singh had no
relation with him. The plaintiffs were clearly required to state that Pritam
Kaur daughter of Gurbax Singh was not related to Gian Singh and that
Pritam Kaur daughter of Inder Singh was his wife who died in the year
1968.
This case having not been set up and being contrary to the
terms of remand, was, in my opinion, a completely new case which was
pleaded and which could not have been allowed by the trial Court.
Once the terms of remand are specific and centric to an issue,
then the Courts below cannot travel beyond such a centricity as pin-pointed
by the superior Court.
Had it been a case of a generic order,merely setting aside the
judgments of the Courts below and directing the matter to be tried afresh,
then probably the case could have been different. Even then, the parties are
to broadly abide by the pleadings which have already been stated.
That apart, the plea of fraud qua the gift deed was also taken for
the first time in the year 1995 when the donor and recipient had died. On
the parity of reasoning given above, such plea could not have been
permitted to be raised in the year 1995 and thus, the trial Court as well as
the First Appellate Court were wrong in travellling beyond the terms of
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order of remand.
In so far as the status of the suit properties being ancestral is
concerned, both the Courts below have held that the same were not ancestral
while recording their findings qua issue no.2. This was the crucial issue
which was required to be determined considering the nature of the terms of
remand. Once this had been determined, then no other issue was required to
be gone into and the evidence that has been led regarding Pritam Kaur
daughter of Inder Singh being the wife of Gian Singh was clearly beyond
the pleaded case of the parties.
It is a settled proposition of law that no amount of evidence can
be looked into if the same has not been specifically pleaded.
The suit was filed during the life time of donor-Gian Singh,
who supported the gift deed in favour of Pritam Kaur daughter of Gurbax
Singh. If, at all, this alleged recipient was not the wife of Gian Singh and
Pritam Kaur daughter of Inder Singh was his real wife, as alleged by the
plaintiffs in their replication, then this fact should have come forthright in
the pleadings in the year 1971/1972 itself, but for absolutely no reasons, this
fact was kept concealed from the Court and as stated above, was released
from the cocoon in the year 1995 when both Gian Singh and Pritam Kaur
daughter of Gurbax Singh had died.
It is not the case of the plaintiffs that such a fact was not known
to them and it could not possibly have been because Gian Singh was their
collateral.
I am, therefore, of the considered opinion that the fact
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regarding Pritam Kaur daughter of Inder Singh being the wife of Gian Singh
was clearly beyond the domain of the controversy and the pleadings &
consequent evidence to that effect as well as the findings recorded by both
the Courts below were uncalled for.
The plea of the plaintiffs that this fact was not objected to is
without any merit as I have observed earlier that it could not have been
stated at all and the pleadings to this effect could not have been considered.
The contention of the learned counsel for plaintiffs-respondents
that no rejoinder to the replication was filed is being noticed to be rejected.
The record shows that the appellants had made an attempt to file a
rejoinder,but their prayer was declined by the trial Court. The revision
petition preferred against the order of the trial Court was also dismissed.
It will be useful to notice here the provisions of the Code of
Civil Procedure, relating to the power of remand. Rules 23 and 25 of Order
41 deal with this subject. The same read as under:-
“23. Remand of case by Appellate Court.- Where the Court
from whose decree an appeal is preferred has disposed of the
suit upon a preliminary point and the decree is reversed in
appeal, the Appellate Court may, if it thinks fit, by order
remand the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a copy of
its judgment and order to the Court from whose decree the
appeal is preferred, with directions to re-admit the suit under its
original number in the register of civil suits, and proceed to
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determine the suit; and the evidence (if any) recorded during
the original trial shall, subject to all just exceptions, be
evidence during the trial after remand.
25.Where Appellate Court may frame issues and refer them
for trial to Court whose decree appealed from.- Where the
Court from whose decree the appeal is preferred has omitted
to frame or try any issue, or to determine any question of
fact, which appears to the Appellate Court essential to the
right decision of the suit upon the merits, the Appellate
Court may,if necessary, frame issues, and refer the same for
trial to the Court from whose decree the appeal is preferred
and in such case shall direct such Court to take the additional
evidence required;
and such Court shall proceed to try such issues, and shall
return the evidence to the Appellate Court together with its
findings thereon and the reasons therefor within such time as
may be fixed by the Appellate Court or extended by it from
time to time.”
A reading of the above quoted provisions makes it clear that
under Rule 25, the remand is limited while a complete remand is
permissible under Rule 23.
If one were to examine the order of the Apex Court, as also of
this Court, it is clearly evident that there was a partial remand limited to
only one issue and the rest of the findings could not have been disturbed by
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permitting the parties to rake up new pleas or by permitting the plaintiffs to
set up a totally new case.
The questions of law, as framed above, are, therefore, answered
in the terms that both the Courts below were clearly in error in travelling
beyond the domain of the terms of the order of remand and also that for the
first time, the plaintiffs-respondents were precluded from raising the plea of
fraud, also the fact that Pritam Kaur daughter of Gurbax Singh was not the
wife of Gian Singh and instead Pritam Kaur daughter of Inder Singh was his
wife and that no evidence to that effect could have been looked into.
Consequently, the appeal is allowed and the impugned
judgments and decrees are set aside with the observation that since the suit
properties have been held to be not ancestral, the only issue that was
required to be determined stands answered in favour of the appellants and as
a direct consequence thereof, the gift deed executed in favour of Pritam
Kaur daughter of Gurbax Singh which was held to be valid in the earlier
proceedings, is again held to be valid.
January 27,2009 ( Mahesh Grover ) "SCM" Judge