High Court Punjab-Haryana High Court

Mrs. Manjit Madan vs Surjit Singh on 30 January, 2009

Punjab-Haryana High Court
Mrs. Manjit Madan vs Surjit Singh on 30 January, 2009
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.
R.S.A. No. 2929 of 2008 (O&M)
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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.

R.S.A. No. 2929 of 2008 (O&M)
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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
R.S.A. No. 2929 of 2008 (O&M)
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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
R.S.A. No. 2929 of 2008 (O&M)
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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’
R.S.A. No. 2929 of 2008 (O&M)
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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
R.S.A. No. 2929 of 2008 (O&M)
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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.