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2001 DIGILAW 1038 (PNJ)

Gurdev Singh v. Kartar Singh

2001-09-20

ADARSH KUMAR GOEL

body2001
JUDGMENT Adarsh Kumar Goel, J. - This judgment will dispose of RSA No. 264 of 1981 (filed by defendant No. 1 to 6) and RSA No. 330 of 1981 filed by the plaintiffs, as both these appeals arise out of same proceedings. 2. The appellate Court has decreed the suit of the respondents-plaintiffs to the extent of 1/4th share of the land inherited by Dalip Kaur as described in the plaint, modifying the decree of the trial Court decreeing the plaintiffs suit regarding the entire land of Dalip Kaur. 3. The respondents-plaintiffs claim the suit land which was inherited by Dalip Kaur their mother from her husband Wazir Singh with whom she had married after the death of her previous husband Mohinder Singh, father of the respondent- plaintiffs. She had no issue from the second marriage and she inherited the property from her second husband after his death. The appellant-defendant collaterals of the second husband defended the suit, denying the relationship of the respondent-plaintiffs to Dalip Kaur and also submitted that Dalip Kaur had a limited estate which would revert to the collaterals. The appellants- defendants also relied upon a will dated 2.11.1975 said to have been executed in favour of appellants-defendants 1 to 9 to the extent of 1/4th of her share in the land. The defendants also submitted that Dalip Kaur transferred 3/4th of her share in favour of defendants 5 and 6 by way of decree dated 17.10.1975. The Courts below found that the respondent-plaintiffs were the sons and daughter of the deceased Dalip Kaur and the will dated 2.11.1975 set by appellants-defendants 1 to 4 was surrounded by suspicious circumstances. The trial Court rejected the plea that there was transfer of 3/4th share by decree dated 17.10.1975 but this finding has been set aside by the appellate Court. 4. Mr. H.L. Sibal, Senior Advocate for the appellants in RSA No. 264 of 1981 did not challenge the finding relating to the relationship of the respondent- plaintiffs to the deceased Dalip Kaur but challenged the findings on the question of will. He has relied upon decision reported in Kamla Devi & others v. Kishori Lal Labhu Ram and others, 1962(64) P.L.R. 196 in support of his submission that intention of the testator had to be seen. He has relied upon decision reported in Kamla Devi & others v. Kishori Lal Labhu Ram and others, 1962(64) P.L.R. 196 in support of his submission that intention of the testator had to be seen. He has relied upon decision reported in Sushila Devi v. Pandit Krishna Kumar and others, AIR 1971 SC 2236 to the effect that not bequeathing property to children does not make the will bad. He also relied upon decision reported in Bhawan Kaur v. Kartar Kaur and others, 1994(5) SCC 135 to the effect that validity of will was not a question of fact. He also relied upon decision reported in Kartar Kaur and another v. Madho and others, 1996(1) JT 511 (paras 19 and 20) for submitting that the test for judging the validity of the will was whether a prudent person in the position of the testator could have made such a will. He also submitted that the Supreme Court has itself appreciated the evidence for deciding the question whether the will was valid and the said question could be gone into in the appeal. 5. Learned counsel for the appellants referred to the evidence of attesting witnesses and submitted that it was wrongly assumed that Dalip Singh one of the attesting witnesses was not a Lambardar and being related to the parties from an adjoining village, he was a natural witness. He also submitted that Tarlok Singh, another attesting witness was wrongly disbelieved on the around that he had been called by the appellants-defendants when according to the said witness he had been called by the testator herself. He also referred to the evidence of Kartar Singh plaintiff to the effect that he was not taking care of the testators and, therefore, there was nothing unnatural in excluding the plaintiff from inheritance. He also submitted that since the major portion of the property had already been given by way of a decree by the deceased there was nothing unnatural in making a will with regard 1/4th share of the land belonging to Wazir Singh. He also submitted that there was a joint family and the appellants were looking after the deceased even when deceased-husband had gone to participate in a war in Burma. 6. Mr. He also submitted that there was a joint family and the appellants were looking after the deceased even when deceased-husband had gone to participate in a war in Burma. 6. Mr. Viney Mittal, Senior Advocate, for the respondents in RSA 264 of 1981 and for the appellants in RSA No. 30 of 1981 supported the finding of the Courts below and submitted that the will was not genuine and had been rightly rejected. The respondent-plaintiffs were natural heirs of the deceased and were entitled to the decree granted by the Courts below. He also submitted that lower appellate Court erred in returning finding on issue No. 2 relating to decree dated 17.10.1975 in favour of defendants 5 and 6 in respect of 3/4th share out of 1/4th share belonging to Dalip Kaur and modifying the decree of the trial Court by decreeing the suit to the extent of 1/4th share out of 1/4th share of the land. He submitted that the decree being void, the plaintiffs were entitled to inherit the entire share of Dalip Kaur. 7. After hearing the learned counsel for the parties, I do not find any ground to interfere in RSA 264 of 1981. The Courts below have rightly rejected the will. The appellants-defendants even denied the relationship of the respondent-plaintiffs to the deceased. Even if learned counsel for the appellants is right in submitting that Kartar Singh-plaintiff was not taking care of the testator who was living with the collaterals of second husband of Dalip Kaur, it would not mean that the widow would have disinherited the natural heir. Even if the natural heirs are to be disinherited, that fact will be mentioned in the will. If two views are possible, the finding of the Courts below cannot be said to be perverse. The attesting witnesses have not been believed by the Courts below. I am unable to find any merit in the contention of the learned counsel for the appellants that there is any misreading of evidence in observing that Tarlok Singh was called by Jagjit Singh or the other grounds given for not accepting the evidence of the attesting witnesses. 8. Now I take up RSA No. 330 of 1981 filed by the plaintiffs. 8. Now I take up RSA No. 330 of 1981 filed by the plaintiffs. The defendants opposed the suit of the plaintiffs to the extent of 3/4th share of Dalip Kaur out of her total 1/4th share in the suit land on the ground that Dalip Kaur had already transferred the said share by a decree dated 17.10.1975 Exhibit D2. This aspect was dealt with by the Courts below under issue No. 2. The trial Court held that transfer of land by Dalip Kaur by way of decree was nothing but a gift and the same having not been done in the manner provided under Section 123 of the Transfer of Property Act, the same was void. The trial Court referred to plaint in the previous suit (leading to decree Exhibit D-2) which was Exhibit DW7/A on the record of this case in which defendants 5 and 6 as plaintiffs stated that they were real grand sons of Dalip Kaur, Dalip Kaur had given 3/16th share of the land to them about five years prior to the filing of the suit in a family partition and they were in possession since then. The plaintiffs contended the defendants 5 and 6 had no antecedent title and, therefore, there could be no partition or a family settlement with regard to the property which was exclusively the property of Dalip Kaur. It was also contended that defendants 5 and 6 were wrongly claiming themselves to be real grandsons, they were minors aged 7/8 years and 5/6 years respectively as per the statement of DW1 and, the therefore, they could not take possession of the suit land. The trial Court accepted this plea and held that it was doubtful whether Dalip Kaur ever signed written statement admitting the claim of defendants 5 and 6 in the previous suit and it was further doubtful whether she actually appeared in Court. The appellate Court reversed the finding of the trial Court on issue No. 2. It was held that collusive decree was binding on the parties and the same could be challenged only by a third party. It was held that defendants 5 and 6 claimed antecedent title by asserting that Dalip Kaur had given them 3/4 share in the land by way of family partition and Dalip Kaur having admitted the same, there was no occasion for them to prove their version. It was held that defendants 5 and 6 claimed antecedent title by asserting that Dalip Kaur had given them 3/4 share in the land by way of family partition and Dalip Kaur having admitted the same, there was no occasion for them to prove their version. It was further observed that there was no transfer of title through the decree. The appellate Court also held that the identity of Dalip Kaur was duly proved from the evidence of DW1 Jangir Singh and in the absence of any evidence to show that some other lady appeared in Court and filed written statement, evidence of Jangir Singh had to be accepted. 9. Mr. Viney Mittal, Senior Advocate has challenged the finding of the appellate Court on issue No. 2, resulting in dismissal of plaintiffs suit with regard to the aspect covered by the decree Exhibit D2. He submitted that defendants No. 5 and 6 had no antecedent title and the said title was created by the decree which was an unregistered instrument and in absence of registration, the said decree could effect title in the immovable property nor could be admitted into evidence. He has relied upon the decision of the Supreme Court in Bhoop Singh v. Ram Singh, (1996-1)112 PLR 559 (SC) and particularly paras 12, 13, 16 and 17. 10. Mr. Sibal, Senior Advocate, appearing on behalf of defendants No. 5 and 6 has supported the finding of the appellate Court and submitted that the decree in question did not require registration in view of the provisions of Section 17(2)(vi) of the Registration Act, 1908. He submitted that the decision in Bhoop Singhs case (supra) has to be read with earlier Constitution Bench Judgment of the Supreme Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and others, A.I.R. 1966 S.C. 292, para 13 wherein it was inter alia observed as under : "These observations do not mean that some title must exist as a fact in the person entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is." 11. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is." 11. The observations referred to in the above portion of the judgment are the observations made in the earlier Supreme Court judgment in Sahu Madho Das v. Mukan Ram, 1955(1) S.C.R. 22 to the following effect : "It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, such party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary." 12. Mr. Sibal submitted that a family arrangement implied antecedent title of some sort but the said antecedent title did not mean a recognised or established right as such. He submitted that any short of claim by a family member could form basis of a family partition or family settlement and even if such a family partition or settlement results in transfer of title in a moveable property, the same would not be compulsorily registerable for the reason that in a family settlement, it is to be presumed that the person receiving the property under the arrangement always had title to the same and such assumed title is the "antecedent title" which could be recognised or declared by the Court. It is submitted that such mode of transfer cannot be held to be gift in view of Constitution Bench Judgment in Tek Bahadurs case (supra). It is submitted that such mode of transfer cannot be held to be gift in view of Constitution Bench Judgment in Tek Bahadurs case (supra). He submitted that observations in Bhoop Singhs case (supra) to the effect that a compromise decree which created title or interest in the property for the first time did not refer to the decree where interest had already been created under some family arrangement as in such a case the right is not being acquired under the order or decree of the Court but is being recognised under the decree of the Court. 13. Mr. Mittal replied that admittedly Dalip Kaur was the owner being widow of Wazir Singh and defendants 5 and 6 were not the heirs of Dalip Kaur and, therefore, they had no pre-existing right. On the other hand, Mr. Sibal submitted that defendants 5 and 6 were the part of the larger joint family and were grand sons of brother of Dalip Kaurs husband. It is submitted that the land was joint and a family petition could be arrived at in respect of a joint land even with members of larger family. 14. I have considered the rival contentions on the issue. No doubt in Tek Bahadurs case (supra) it has been laid down that the Court has to examine in each case whether parties have pre-existing right to immovable property this judgment does not deal with the parameters for determining when a person can be said to be having pre-existing right whether pre-existing right can exist only when a person has a share in the estate or whether such right can be put forward by a member of the larger family by claiming that such right was created under any oral family settlement, which is subsequently admitted in Court proceedings. In my view, the pre-existing right could also cover a claim of a member of larger family under an oral arrangement which is subsequently confirmed in Court proceeding. In this view of the matter, I am of the view that the appellate Court was justified in holding that the decree Exhibit D-2 was not void. I, therefore, hold that RSA 330 of 1981 is also liable to be dismissed. In view of the above, both RSA 264 of 1981 and 330 of 1981 are dismissed. Petition dismissed.