R.S.A. No. 2929 of 2008 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 2929 of 2008 (O&M)
Date of decision: 30.1.2009
Mrs. Manjit Madan
....Appellant
Versus
Surjit Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. A.S. Grewal, Advocate,
for the appellant.
*****
VINOD K. SHARMA, J (ORAL)
This regular second appeal is directed against the judgments
and decree dated 19.9.2007 and 29.7.2008 passed by the learned Courts
below vide which suit filed by the plaintiff/respondent for declaration
that the plaintiff is owner in possession of Kothi No. 106, Section 28-A,
Chandigarh, after the death of his father with consequential relief of
permanent injunction restraining the defendant/appellant from
dispossessing the plaintiff from the said Kothi and from interfering in
peaceful possession, and enjoyment of the same, has been decreed.
The plaintiff brought a suit claiming that the property in
dispute was purchased by Lochan Singh S/o Mohan Singh and Smt.
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Jaswant Kaur, father and mother of the plaintiff/respondent by way of
registered sale deed dated 7.10.1974. Lochan Singh and Jaswant Kaur
executed their separate ‘Wills’, duly registered with the Sub Registrar,
U.T., Chandigarh,vide which they bequeathed the property falling to
their share in favour of the plaintiff/respondent.
The suit was contested by the appellant/defendant on the plea
that she was entitled to half share over the property, as the ‘Will’
executed in favour of the plaintiff/respondent was not a genuine
document and was surrounded by suspicious circumstances.
On the pleadings of the parties, the learned trial Court was
pleased to frame the following issues: –
“1. Whether the plaintiff is entitled to decree for
declaration as prayed for? OPP
2. Whether the plaintiff is entitled to decree for
permanent injunction as prayed for? OPP
3. Whether the suit is not maintainable in the
present form? OPD
4. Whether the suit is not properly valued for the
purpose of Court fee and jurisdiction? OPD
5. Whether suit is bad on account of non joinder
of necessary parties, if so, who are the
necessary parties and to what effect? OPD
6. Relief.”
The learned trial Court, on appreciation of evidence, decided
issue Nos 1 and 2 in favour of the plaintiff/respondent, whereas, issue
Nos. 3, 4 and 5 were decided against the defendant/appellant.
Consequently, the suit was decreed.
The findings recorded by the learned trial Court stand affirmed
by the learned lower appellate Court.
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Mr. A.S. Grewal, learned counsel, appearing on behalf of the
appellant, contends that the following substantial questions of law arise
for consideration in this appeal: –
“1. Whether Section 45 of the Transfer of Property
Act, 1882 applies to bequeaths and gifts?
2. Whether the ‘Wills’ have been proved to be
genuine in view of fact that the son of the
witness has denied the signatures of his father?
3. Whether the latter part of Section 45 of the
Transfer of Property Act, 1882 applies if there
is no evidence of ratio of moneys paid towards
the purchase of joint property?
4. Whether the learned Courts below have failed
to appreciate the fact that the ‘Wills’ in
question only transferred 2/3rd and 1/3rd share
respectively to the respondent?
5. Whether the Courts below have failed to deal
with the question regarding balance 50% share
of 2/3rd share and balance 50% share in the
demised premises?
6. Whether the judgment/decree has attained
finality in view of the fact that interim
application moved has not been decided?
7. Whether the judgment/decree has attained
finality in view of the fact that the learned
District Judge has not dealt with the question
of amendment of pleadings?”
In support of the substantial questions of law, learned counsel
for the appellant contends that the learned Courts below committed an
error in rejecting the plea of the defendant/appellant that the total suit
property was not bequeathed in favour of defendant/appellant as per true
interpretation of the ‘Will’ executed by executants.
The contention of the learned counsel for the appellant was
that the learned Courts below committed an error in relying on Section
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45 of the Transfer of Property Act to hold that the plaintiff/respondent
had become owner of the property in dispute, as the provisions of
Section 45 of the Transfer of Property Act are not applicable in case of
‘Will’ or gift. In support of the contention, reliance has been placed on
Division Bench judgment of Madras High Court in 1911, Vol. 34, page
80, Arakal Joseph Babriel Vs. Domingo Inas and others.
I find no force in the contention raised by the learned counsel
for the appellant. It is pertinent to mention here that the learned Courts
below have not applied Section 45 of the Transfer of Property Act to
non-suit the defendant/appellant, as is contended. The appellant had
merely raised a plea that the mention of 2/3rd share and 1/3rd share in the
‘Will’ though it had to be presumed to be 50% share, is a suspicious
circumstance. This plea that mention of 2/3rd share and 1/3rd share is a
suspicious circumstance to reject the ‘Will’, cannot be sustained, once the
husband and wife executed the ‘Will’ claiming that their share was only
1/4th and 3/4th. The learned Courts rightly held that by virtue of both the
‘Wills’, the total suit property stood transferred to the
respondent/plaintiff.
On the second substantial question of law, the learned counsel
for the appellant contends that the ‘Will’ was not proved, as son of one of
the attesting witnesses has denied the signatures of his father on the
‘Will’ and, therefore, the learned Courts below committed an error in law
in accepting the ‘Will’ to be genuine.
The learned Courts below, on appreciation of evidence, have
recorded a concurrent finding of fact that the son of one of the witnesses
was not deposing correctly due to the relationship with the
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defendant/appellant. Rather the ‘Will’ was proved by other attesting
witness. This contention of the learned counsel for the appellant also
cannot be accepted. The ‘Will’ has been rightly held to be genuine.
On the third substantial question of law, as framed, the learned
counsel for the appellant contends that the second part of Section 45 of
the Transfer of Property Act was applicable, as no mention was made in
the sale deed as to the share of the vendees. In support of this
contention, the learned counsel for the appellant placed reliance on the
judgment of the Hon’ble Madras High Court in Tehmina Vs. The
Official Assignee AIR 1976 Madras 222.
This plea of the learned counsel for the appellant also cannot
be accepted. There is no dispute inter se between the vendees, as both
husband and wife in their respective ‘Wills’ have bequeathed their share
in favour of their son. It is not in dispute that the ‘Wills’ were executed
at the same time. The third substantial question of law, as framed, also
does not arise for consideration.
In support of forth substantial question of law, as framed, the
learned counsel for the appellant contends that once it was proved on
record that no share was mentioned in the sale deed, therefore, in view of
the law laid down by the Hon’ble Madras High Court in Tehmina Vs.
The Official Assignee AIR 1976 Madras 222, it has to be presumed that
both the husband and wife were owner to the extent of 50% share.
Taking this into consideration, it has to be presumed that the ‘Will’
executed by the father bequeathing 2/3rd share in the suit property was
bad in law, as he had no right to bequeath property, more than his share.
The contention is that it has to be presumed that he executed the ‘Will’
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qua 50% share only and thus, the remaining share which was not
transferred by way of ‘Will’ was to be inherited in the ratio of 50:50. In
view of this eventuality, the suit qua 1 kanal of the land was required to
be dismissed.
This plea of the learned counsel for the appellant is mis-
conceived. It is not in dispute that mother had bequeathed her share in
favour of her husband with a stipulation that if husband pre-deceases,
then it would go to her son. Thus, it is seen that in any case the
executants bequeath their property in favour of plaintiff.
The fifth substantial question of law as raised is also similar,
does not arise for consideration in this appeal.
In support of sixth substantial question of law, the learned
counsel for the appellant contends that an application moved by the
defendant/appellant for stay of alienation of property was not decided by
the learned trial Court, and is still pending and, therefore, the judgments
and decree passed by the learned Courts below deserve to be upset on
this ground alone.
This argument is totally mis-conceived. Interim order, if any,
passed on an interim application, not affecting the final decision of the
case merge with the final judgment and decree. Merely because
injunction application is not decided can be ground to set aside judgment
and decree of learned Courts below, passed on merits. The plea raised
cannot be said to be question of law, muchless substantial question.
The seventh substantial question of law, as framed, by the
learned counsel for the appellant is also totally mis-conceived. It is not
in dispute that the application moved by the defendant/appellant for
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amendment of written statement was dismissed by the learned trial
Court. Though it is the case of the appellant that before the learned
lower appellate Court, the said decision was challenged, but nothing
finds mentioned in the judgment passed by the learned lower appellate
Court. Nothing has been shown if application was moved by the
appellant before the learned lower appellate Court, as to why the
contention raised was not adjudicated. The amendment application was
rightly dismissed by learned trial Court. The order was thus not
challenged before the learned lower appellate Court, though mentioned
in grounds.
In view of the settled law, it has to be presumed that the said
point was not raised and, if raised is deemed to have been rejected.
In view of findings recorded above, the substantial questions
of law, as framed, are answered against the appellant/defendant.
No merit.
Dismissed in limine.
(Vinod K. Sharma)
Judge
January 30, 2009
R.S.