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2004 DIGILAW 714 (PNJ)

Kartar Kaur v. Pal Singh

2004-07-16

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - This appeal is directed against judgment dated 11.8.1982 passed by the Additional District Judge, Sirsa vide which the judgment and decree passed by the Senior Sub Judge, Sirsa dated 16.11.1979 has been set aside. 2. The relevant facts for the disposal of this appeal are that Bhag Singh was the owner of agricultural land measuring 43 kanals and 13 marlas. Bhag Singh was have three sons namely Lachhman Singh, Ahjit Singh and Bhagat Singh and one daughter namely Jeeto. Respondents-Pal Singh and Rajinder Singh, sons of Bhagat Singh instituted a suit against their grand-father Bhag Singh seeking declaration that they are the owners in possession of the land owned by Bhag Singh alleging that they had purchased the said land for Rs. 12,000/- in the year 1963. They also pleaded that they became the owners by way of adverse possession and had taken the land on lease for a period of 99 years. They also pleaded that Bhag Singh conceded the claim of respondents and a consent decree dated 11.8.1976 Ex. D-2 was passed in their favour declaring them to be the owner in possession of that land. They also averred that Bhag Singh had executed a Will Ex. D-1 which was registered on 29.7.1976 bequeathing his estate in their favour. 3. The appellants filed a suit for declaration with consequential relief of possession that they are not bound by the decree dated 16.11.1979 which is null and void and has been procured by mis-representation of facts. They also pleaded that Bhag Singh executed a registered Will dated 27.5.1976 in favour of his sons and daughter. It was contended that they as well as Bhagat Singh, father of respondents - Pal Singh and Rajinder Singh and their sister Jito were the owners in equal shares of the land in suit left behind by Bhag Singh in pursuance of testamentary disposition made in their favour. 4. The suit was contested by Pal Singh and Rajinder Singh and their father Bhagat Singh. They filed joint written statement and controverted the allegations and pleaded that the Will propounded by the appellants stood revoked in view of the last testamentary disposition made by the deceased Bhag Singh on 29.7.1976 in their favour. The appellants are to be non-suited on the ground that decree dated 11.8.1976 suffered by Bhag Singh in favour of the respondents was legal and valid one. The appellants are to be non-suited on the ground that decree dated 11.8.1976 suffered by Bhag Singh in favour of the respondents was legal and valid one. On the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiffs, defendant Nos. 3 and 4 are entitled to inherit the estate of Bhag Singh on the basis of Will dated 27.5.1976 ? OPP 2. Whether the decree dated 11.8.1976 in suit No. 260 styled as Pal Singh v. Bhag Singh in favour of defendant Nos. 1 and 2 was procured by misrepresentation and concealment of facts and, as such, is of no value in the eyes of law, as alleged ? OPP 3. Whether the mutation on the basis of said decree is also illegal ? OPP 4. Whether Will dated 27.5.1976 was cancelled by Bhag Singh on 29.7.1976 and another Will was executed in favour of defendant Nos. 1 and 2 on that date ? OPP 5. Whether the suit has not been properly valued for Court-fee and jurisdiction and, if so, to what extent ? OPP 6. Whether the suit is not maintainable in the present form ? OPP 5. The trial Court decided all the issues in favour of the plaintiff- appellants and decreed the suit. 6. Pal Singh and others filed an appeal before the learned Additional District Judge, Sirsa. The learned Ist Appellate Court vide order dated 11.8.1992 set aside the judgment and decree dated 16.11.1979 passed by the learned Senior Sub Judge, Sirsa. Aggrieved by which, the present appeal has been preferred. 7. Mr. G.S. Grewal, Senior counsel appearing for the appellants submitted that the learned Additional Sessions Judge has set aside the judgment and decree passed by the Senior Sub Judge, Sirsa on surmises and conjectures. He further submitted that the decree has been passed on the basis of statement made by Bhag Singh grand-father of Pal Singh and Rajinder Singh, respondents. He contended that the said decree does not confer any right, title or interest in favour of the respondents. He further contended that there was specific pleadings in the suit that Pal Singh and Rajinder Singh had purchased the land from their grand-gather Bhag Singh for a consideration of Rs. 12,000/-. He submitted that since the value of the immovable property admittedly was more than Rs. He further contended that there was specific pleadings in the suit that Pal Singh and Rajinder Singh had purchased the land from their grand-gather Bhag Singh for a consideration of Rs. 12,000/-. He submitted that since the value of the immovable property admittedly was more than Rs. 100/- it requires compulsory registration under Section 17(1)(b) of the Registration Act, 1908. He contended that in the said suit, there was contradictory stands of Pal Singh and Rajinder Singh i.e. on the one hand they allege that they had purchased the land from Bhat Singh for a consideration of Rs. 12,000/- and on the other hand their case is that Bhag Singh had leased out the land in their favour of 99 years for a sum of Rs. 900/- per year and the other stand is that Bhag Singh had bequeathed his property in their favour by executing a Will dated 29.7.1976. He also submitted that if Bhag Singh had sold the land in favour of the respondents, then there was no need to execute the Will dated 29.7.1976. He further submitted that the respondents have also pleaded that they are in possession of the land in dispute and their possession has matured into ownership by way of adverse possession. He further submitted that once there was a plea that the respondents had taken the land on lease, then the plea of adverse possession was not sustainable, but the learned lower Court without appreciating the pleading, on the statement of Bhag Singh passed the decree which is null and void and has no value in the yes of law. 8. Mr. V.G. Dogra, learned counsel for the respondents has argued that the Bhag Singh owner of the property has made a statement on the basis of which a valid and legal decree has been passed. He contended that even if the decree is ignored, the respondents are entitled to inherit the property on the basis of Will dated 29.7.1976. He contended that execution of the Will was fully proved from the deposition of Jit Singh, Gian Chand and Y.P. Nanda. He further contended that there was no suspicious circumstances to discard this Will, but the learned lower Appellate Court has erroneously discarded the same on the basis of surmises and conjectures. 9. He contended that execution of the Will was fully proved from the deposition of Jit Singh, Gian Chand and Y.P. Nanda. He further contended that there was no suspicious circumstances to discard this Will, but the learned lower Appellate Court has erroneously discarded the same on the basis of surmises and conjectures. 9. After hearing the counsel for the parties and perusing the record, I am of the considered opinion that this appeal has merit and deserves to succeed. 10. The point under consideration is whether the decree suffered by Bhag Singh creates any right, title or interest in favour of the respondents or whether the Will dated 27.5.1976 was cancelled by Bhag Singh on 29.7.1976 and another Will dated 29.7.1976 was executed in sound and disposing mind in favour of the respondents ? 11. The respondents have not placed on record any document to show that they had purchased the land in dispute from Bhag Singh for a sum of Rs. 12,000/-. As per the admission of the respondents, the value of the immovable property was more than Rs. 100/-. Therefore, the said property cannot be transferred without getting the same registered as per the provisions of the Registration Act, 1908. 12. The immoveable property worth more than Rs. 100/- can create a right, title or interest in favour of a party, if it has been duly registered under the provisions of the Registration Act, 1908. 13. In Bhoop Singh v. Ram Singh Major and others, AIR 1996 SC 196, it has observed as under :- "16. We have to view the reach of Clause (vi) which is an exception to sub- section (1) bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immoveable property of the value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. 17. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. 17. It would, therefore, be the duty of the Court to examine in each case whether the parties have pre-existing right to the immoveable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immoveable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable." 14. The respondents have also taken a stand in the earlier suit they became the owner of the property by way of adverse possession. This plea of the respondents was contradictory to their own pleadings. Once the respondents were admitting that Bhag Singh was the owner of the property, they cannot take the stand of adverse possession. For proving the adverse possession, a party should prove that the possession was hostile and it was in the knowledge of the entire world including the true owners that possession was without paying any rent or batai. In that suit, the respondents have not pleaded that from which date their possession was adverse and hostile. Even, it has not been mentioned on which date the respondents had purchased the property from their grand-father Bhag Singh and that they have denied the title of Bhag Singh. It is pertinent to mention here that in the said suit, the respondents have taken a stand that they had taken the land on lease from Bhag Singh for 99 years for a sum of Rs. 900/- per year and they have never denied the title of Bhag Singh. Therefore, the plea of adverse possession was not available to the respondents. 15. If the respondents were the owner of the land by way of adverse possession, there was no occasion for them to get the land on lease from Bhag Singh. So the contention raised by learned counsel for the appellants has the force that once the property had been purchased by Pal Singh and Rajinder Singh, then there was no question of leasing out the land by Bhag Singh. So the contention raised by learned counsel for the appellants has the force that once the property had been purchased by Pal Singh and Rajinder Singh, then there was no question of leasing out the land by Bhag Singh. There is also no evidence on record to show that any lease was in favour of the respondents. 16. The respondents have also propounded a Will dated 29.7.1976. In the Will it has been scribed that the earlier Will dated 27.5.1976 executed by Bhag Singh has been cancelled. The Will propounded by the respondents is shrouded by suspicion. Once Bhag Singh had executed a Will dated 27.5.1976 in favour of his sons and a daughter, there was no justification to change that Will, that too after a short span of two months. The Will dated 29.7.1976 has been attested by Jit Singh, who has appeared as DW-3. He has not deposed that the Will was read over and explained to Bhag Singh, testator. In his cross- examination, Jit Singh has admitted that mental condition of Bhag Singh was not good. He used to take opium. On the day when he had executed the Will, he was under the influence of opium. The scribe of the Will was DW-2 Gian Chand and the other attesting witness of the Will was Y.P. Nanda. They have not deposed in their statements that they put the signatures and thumb impression in the presence of the testator and the testator put his thumb impression after explaining the contents of the Will to him. From the statement of Jit Singh, it is crystal clear that thumb impression of testator i.e. Bhag Singh was obtained on the Will dated 29.7.1976 under the influence of some intoxicant. Bhag Singh was of 90 years at the time of executing the Will. He was an opium addict as deposed by Jit Singh, DW-3. Therefore, the possibility of getting the thumb impression of Bhag Singh under the influence of opium cannot be ruled out. As it has been discussed above that Bhag Singh had executed a Will in favour of his sons and a daughter on 27.5.1976, then there was no occasion for Bhag Singh to discard them from the property and bequeathing the property in favour of his grand-sons even discarding his own sons. As it has been discussed above that Bhag Singh had executed a Will in favour of his sons and a daughter on 27.5.1976, then there was no occasion for Bhag Singh to discard them from the property and bequeathing the property in favour of his grand-sons even discarding his own sons. Therefore, it can safely be said that the Will dated 29.7.1976 is not a genuine one, hence the property of Bhag Singh will devolve upon all his natural legal heirs as per Will dated 27.5.1976. For the reasons recorded above, this appeal is accepted. The judgment and decree dated 11.8.1982 passed by learned Additional District Judge is set aside whereas the judgment and decree dated 16.11.1979 passed by Senior Sub Judge, Sirsa is restored. Appeal allowed.