Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1083 (PNJ)

Mann Singh v. Ravinder Kaur

2008-05-22

PERMOD KOHLI

body2008
JUDGMENT Permod Kohli, J.:-When this appeal came to be admitted on 5.5.1980, no substantial question of law was framed, however, at the time of hearing, following substantial questions of law were projected by the counsel for the parties:- (1) What is the construction of document dated 6.10.1956 styled as Tamliknama and does it confer title in the immovable property in favour of the plaintiff even without delivery of possession? (2) Whether the judgment impugned suffers on account of non-consideration of relevant and material evidence and misreading thereof? (3) Whether vendor having received sale consideration before the Registering Authority is entitled to plead that the sale was without consideration? (4) Whether the vendor who has the knowledge of subsequent sale, can plead that the first sale was without consideration? 2. It is appropriate to notice the factual background of the case. Charanjit Singh and Teja Singh sons of Gurbux Singh were owners of land in equal shares. Charanjit Singh executed Tamliknama on 6.10.1956 in respect of 300 bighas of land, out of the total land described in the plaint in favour of Ravinder Kaur, his daughter who is the plaintiff in the suit. The land described in the Tamliknama was allegedly situated in Village Khaspur Tehsil Patiala. Admittedly, Ravinder Kaur was minor at the time of execution of Tamliknama. Charanjit Singh sold the suit land in favour of defendants no.1 and 2 vide sale deed dated 30.12.1957. Even after the sale of the aforesaid property in favour of defendants no. 1 and 2, Charanjit Singh executed a rectification deed on 17.7.1958 and allegedly rectified the Tamilknama dated 6.10.1956 by substituting the name of the Village Khaspur to Village Mahla Heri. Since Charanjit Singh was a big landlord who was required to seek permission/sanction for transfer of property, accordingly he obtained sanction for sale on 3.12.1957 in favour of defendants no.1 and 2. Defendant no.2- Kultar Kaur sold part of the land purchased by her in favour of defendants no.5 and 6 vide sale deed dated 11.12.1959 through Sadhu Singh, father of defendant no.1 as her attorney which was duly witnessed by Charanjit Singh. 3. Ravinder Kaur-plaintiff filed the present suit for declaration claiming to be the owner in possession of the suit land described in para “Urra” of the headnote of the plaint and for possession of the property mentioned in para “Arra” of the headnote. 3. Ravinder Kaur-plaintiff filed the present suit for declaration claiming to be the owner in possession of the suit land described in para “Urra” of the headnote of the plaint and for possession of the property mentioned in para “Arra” of the headnote. This suit was filed on 24.11.1967 allegedly on the basis of title acquired through Tamliknama dated 6.10.1956 and rectified on 17.7.1958. In the suit challenge was also made to the sale deed dated 30.12.1957 in favour of defendants no. 1 and 2. It was alleged in the plaint that the plaintiff became owner of 300 bighas of land on the basis of Tamliknama dated 6.10.1956 rectified on 17.7.1958 as in the original Tamliknama, name of the village was wrongly mentioned due to clerical mistake. The plaintiff also claimed that she was recorded in possession in Khasra Girdwari and in view of the fact that rectification deed was executed later on, no corresponding entry was made in the revenue record in her favour on the basis of the Tamliknama. The plaintiff also alleged that since the property was already transferred to the plaintiff, Charanjit Singh, could not have executed any sale deed in favour of defendants no.1 and 2 and thus the sale is void and even subsequent sale executed by Kultar Kaur in favour of defendants no.5 and 6 is also illegal. Defendants no.1, 5 and 6 contested the suit wherein they denied the due execution of the Tamliknama dated 6.10.1956 as also rectification deed dated 17.7.1958 and also denied the ownership and possession of the plaintiff over the land mentioned in para “Urra” and pleaded that the Tamliknama is a sham and fraudulent document. They also pleaded that description of the Property in the Tamliknama was misleading. They claimed to be the bona fide transferees of the land for consideration and are protected /under Section 41 of the Transfer of Property Act. Defendants also stated that they have already initiated partition proceedings which are at the final stage and the plaintiff has no competence, right or claim to challenge the sale in their favour. Defendants also pleaded that in fact the suit has been filed by Charanjit Singh, defendant through his daughter. Defendants also stated that they have already initiated partition proceedings which are at the final stage and the plaintiff has no competence, right or claim to challenge the sale in their favour. Defendants also pleaded that in fact the suit has been filed by Charanjit Singh, defendant through his daughter. It may be noticed here that Kultar Kaur, defendant no.2 in her written statement admitted the claim of the plaintiff and pleaded that the sale in her favour and in favour of defendant no.1- Mann Singh was sham and fictitious. On the basis of the pleadings of the parties, the trial court framed following issues: “1. Whether Charanjit Singh defendant executed Tamliknama dated 6.10.56 in favour of plaintiff and then executed deed of rectification on 17.7.56 in favour of the plaintiff regarding the suit land the plaintiff became owner of the suit property under these deeds? OPP 2. Whether the plaintiff is in possession of the land mentioned in sub para “Ura” of the plaint, if so, since when and to what effect? Onus on the defendants except Kultar Kaur. 3 If Issue no.1 is proved, is the Tamliknama in question a factitious, sham, fraudulent document? OPO 4. Whether the Tamliknama in dispute is liable to be ignored on account of inaccurate and incomplete and insufficient and misleading description of the property in question as alleged in the written statement? Onus on the defendants no.1, 5 and 6. 5. Whether the suit is barred on the basis of doctrine of estoppel? OPD 6. Whether defendants no.1, 5 and 6 are bona fide transferees for value and without notice and their title is protected under Section 41 of the Transfer of Property Act? Onus on defendants no.1, 5 and 6. 7. Whether the petition has become final and cannot be challenged as alleged in para no.10 of the written statement? OPD 8. Whether the suit is bad for non-joinder of the necessary parties? OPD 1, 5 and 6. 9. Whether Charanjit Singh defendant owned and possession land in excess of the permissible limit on the date he executed the Tamliknama in dispute? If so, whether the said Tamliknama is void oh that account? OPD. 10. Whether the plaintiff is a mere figure head and the real plaintiff is Charanjit Singh defendant? OPD : 11. 9. Whether Charanjit Singh defendant owned and possession land in excess of the permissible limit on the date he executed the Tamliknama in dispute? If so, whether the said Tamliknama is void oh that account? OPD. 10. Whether the plaintiff is a mere figure head and the real plaintiff is Charanjit Singh defendant? OPD : 11. Whether the sale deed alleged to have been executed in favour of defendants no.1 and 2 is merely a paper transaction and was never acted upon? 12. Whether the plaintiff is competent to raise the plea of issue no. 11? 13. Whether the plaintiff is entitled to the injunction prayed for as alleged in para 4-B of the plaint? 14. Relief.” 4. After the parties led their respective evidence, issues no. 1, 3, 4 and 9 were taken up together for consideration. The trial court, while considering the aforementioned issues returned a finding that Charanjit Singh was possessed of the land in excess of the permissible limits, but it was not accompanied with the delivery of possession of the gifted land which was essential to complete the gift and thus, the Tarnliknama was not a valid document. Hence plaintiff has failed to prove that she is owner of the land in dispute. While considering issue no.2, the trial court relied upon Khasra Girdawari, Ex.P2, P3, P4 and P 19 and formed opinion that the plaintiff was in possession of land mentioned in para “Urra” of the headnote of the plaint since 1956 and the land mentioned in para “Arra” of the headnote is in possession of defendants nos.5 and 6 Dilip Singh and Chanan Singh. While deciding issues no.6, 11 and 12, the trial court also came to the conclusion that the sale in favour of defendants no.1 and 2 was without consideration, but sale in favour of defendants no.5 and 6 was held to be bona fide. However, in ultimate analysis, the plaintiffs possession was protected to the extent land is mentioned in para “Urra” and other relief in the plaint was denied vide judgment and decree dated 7.1.1976. 5. Aggrieved of the aforesaid judgment and decree, plaintiff Ravinder Kaur filed Civil Appeal No.30 of 1976 and Mann Singh, defendant no. 1 also filed Civil Appeal No.27 of 1976. Both the appeals were dismissed by the lower appellate court vide its judgment and decree dated 14.12.1979. 5. Aggrieved of the aforesaid judgment and decree, plaintiff Ravinder Kaur filed Civil Appeal No.30 of 1976 and Mann Singh, defendant no. 1 also filed Civil Appeal No.27 of 1976. Both the appeals were dismissed by the lower appellate court vide its judgment and decree dated 14.12.1979. The lower appellate court affirmed the findings of trial court on issues no. 1, 3 and 4, as also issues no.6, 11 and 12. Lower appellate date court also recorded that no arguments were addressed on issues no. 5, 7, 8, 9 and 10. 6. Defendant no.1 has come up in appeal being RSA No.890 of 1980 and the plaintiff has preferred cross objections. Lengthy arguments have been addressed by the learned counsel for the parties. There are certain concurrent findings of fact recorded by both the Court which may be noticed here under:- (1) Possession of the suit property was not delivered to the plaintiff under the gift deed (Tamliknama). (2) Entries of possession in Khasra Girdawri Ex.P2 to P4 for the years 1956-57, 1958-59 are not genuine and the plaintiff was not in possession of the suit property on the basis of the gift. (3) Pre- consolidation khasra numbers of property mentioned in Tamliknama do not tally with the new Khasra numbers, after consolidation. (4) Tamliknama dated 6.10.1956 and Rectification Deed dated 17.7.1958 are not valid, without delivery of possession. 7. It has been argued on behalf of the appellant that when the sale deed Ex.DW3/ A was executed by Charanjit Singh in favour of appellant, Mann Singh and KuItar Kaur, defendant no.2, there was no report of Tamliknama in the Roznamcha Waqyati maintained by the Patwari and thus defendants no.1 and 2 and subsequently defendants no.5 and 6 are the bona fide purchasers. It is further stated that if Charanjit Singh had genuinely transferred the suit land to his daughter Ravinder Kaur, plaintiff by virtue of the Tamliknama, he would not have sold the property to defendants no.1 and 2 nor could be a party to the subsequent sale in favour of defendants no.5 and 6 in respect of the share of KuItar Kaur. With a view to establish that Charanjit Singh was a party to the sale deed in favour of defendants no.5 and 6, reference is made to power of attorney, Ex.DW11/A executed by Kultar Kaur in favour of Sadhu Singh, father of Mann Singh, defendant no. With a view to establish that Charanjit Singh was a party to the sale deed in favour of defendants no.5 and 6, reference is made to power of attorney, Ex.DW11/A executed by Kultar Kaur in favour of Sadhu Singh, father of Mann Singh, defendant no. 1 (appellant herein), whereunder KuItar Kaur authorised Sadhu Singh to sell 63 bighas and 16 biswa of land purchased by her from Charanjit Singh in favour Dilip Singh and Chanan Singh, defendants no.5 and 6. The said power of attorney was executed on 8.12.1959. It is pertinent to note that Charanjit Singh is one of the attesting witnesses to power of attorney whereby KuItar Kaur sold aforementioned land to defendants no.5 and 6. It is accordingly submitted that if Charanjit Singh had already transferred the suit land to his daughter Ravinder Kaur in the year 1956 and the sale in favour of Kultar Kaur and Mann Singh was not a genuine document and without consideration Charanjit Singh could not have been a party to further sale of the share of Kultar Kaur to defendants no.5 and 6. 8. Both the courts have declared the sale in favour of appellant (defendant no. 1) and KuItar Kaur, defendant no.2 as null and void, without consideration. With a view to arrive at the findings that the sale is without consideration. Both the courts have relied upon statement of Charanjit Singh, written statement and statements of Kultar Singh and Arjun Singh and Bhura Singh, DW-8 and DW9. Kultar Kaur in her written statement as also in her statement as a witness supported the plaintiffs case rather it was a consent written statement. When she appeared as a witness, she stated that sale consideration of Rs. 40,000/- was paid by Sadhu Singh on behalf of Mann Singh and Kultar Kaur and this money was provided to him by Charanjit Singh. Charanjit Singh also appeared as a witness and stated that amount of Rs.40,000/- of sale consideration was paid by him to Sadhu Singh for being tendered at the time of registration of sale deed, on behalf of defendants no.1 and 2. Charanjit Singh also appeared as a witness and stated that amount of Rs.40,000/- of sale consideration was paid by him to Sadhu Singh for being tendered at the time of registration of sale deed, on behalf of defendants no.1 and 2. It is also interesting to note that there was, no issue which was required to be proved by Kultar Kaur as she had admitted the claim of the plaintiff, but she still chose to appear as a witness and also produced Bhura Singh and Arjun Singh, DW8 and DW9 attesting witnesses of the sale deed in her favour who stated the sale consideration of Rs40,000/- was paid by Charanjit Singh to Sadhu Singh which was later paid by Sadhu Singh, to Charanjit Singh before the Sub Registrar. 9. Certain revealing facts have come on record. A part of the property sold to defendants no.1 and 2 was acquired by the Government for which compensation was received by defendants no.1 and 2 being the recorded owners on the basis of the sale deed dated 30.12.1957 (Ex.DW3/ A). Kultar Kaur sold 63 bighas and 16 biswa of land, out of the aforesaid property to defendants no.5 and 6 through her attorney Sadhu Singh, father of defendant no.1, (appellant herein). Charanjit Singh was a witness to the deed of attorney and never objected to the sale of the land by Kultar Kaur in favour of defendants no.5 and 6 through her attorney Sadhu Singh, father of defendant no.1 (appellant herein). Neither the plaintiff nor Charanjit Singh objected to the sale or even the receipt of compensation for the acquired land. It is also evident from the record that during the trial, the defendants produced Atma Singh, the Sub Registrar (Tehsildar) who registered the document Ex.DW3/A. This witness DW4 not only proved the registration of the sale deed, but also payment of sale consideration in his presence which was paid by Sadhu Singh to Charanjit Singh. No question in cross-examination was asked to the witness. The scribe, namely, Sampat Kumar, DW3 also appeared as a witness and proved the execution of the sale deed by Charanjit Singh and he was also not cross-examined in any manner. During the cross-examination of Kultar Kaur, she admitted that Charanjit Singh engaged advocate on her behalf and the entire expenses were incurred by him. The scribe, namely, Sampat Kumar, DW3 also appeared as a witness and proved the execution of the sale deed by Charanjit Singh and he was also not cross-examined in any manner. During the cross-examination of Kultar Kaur, she admitted that Charanjit Singh engaged advocate on her behalf and the entire expenses were incurred by him. She also admitted that out of the sale consideration of Rs.40,000/-, she paid Rs.13500/­ to Sadhu Singh, as part of the sale consideration out of her share of Rs.20,000/-. She further stated that for the rest of the amount of Rs.6500/-, it was agreed that after the purchase of the land a part of the land would be sold through Sadhu Singh and he will recover the balance amount of Rs.6500/-. It is admitted case of the parties that Kultar Kaur gave power of attorney to Sadhu Singh for sale of part of her land in favour of defendants no.5 and 6. 10. have scanned the evidence on record. Unfortunately, this part of the evidence has not been noticed by the courts below which is not only relevant and material, but provides insight to the entire story. 11. Both the courts committed an error by ignoring relevant evidence and picked up some of the evidence of the witnesses to return findings. There has been not only misreading of evidence but even relevant and important part of evidence referred to above is not considered by the courts below in arriving at the findings that the sale in favour of defendants no.1 and 2 Was without consideration. The findings are thus perverse. 12. Mr. Setia, learned Sr. Counsel appearing on behalf of the plaintiff-respondent has, however, referred to certain facts on record to contend that the sale in favour of defendants no.1 and 2 was sham and fictitious. According to Mr. Setia, Charanjit Singh was a big landlord and in view of the ceiling of the landholdings, he executed the sale deed regarding part of his land in favour of defendants no.1 and 2 to overcome the forfeiture of surplus land and come out of the ceiling limits. It is argued that with a view to achieve this, he executed the sale deed in favour of defendants no.1 and 2 which was never intended to actually transfer the land in their favour. It is argued that with a view to achieve this, he executed the sale deed in favour of defendants no.1 and 2 which was never intended to actually transfer the land in their favour. It is further argued that it was in view of this fact that he himself paid the sale consideration to Sadhu Singh to be paid to him before the Sub Registrar, which fact is established during the statements of Charanjit Singh, Kultar Kaur and marginal witnesses to the sale deed, namely, Arjun Singh and Bhura Singh. He has further referred to the evidence and stated that Sadhu Singh had no money. He had no independent source of income and Mann Singh, defendant no.1 was a minor. Even if the contention of Mr. Setia is accepted, it clearly exhibit a fraud on the part of Charanjit Singh. If he has executed the sale deed in favour of defendants no.1 and 2 fraudulently, he cannot be beneficiary of his own fraud. The argument of Mr. Setia that Charanjit Singh had executed the sale deed in favour of defendants no.1 and 2 (Mann Singh and Kultar Kaur) with a view to save the surplus land being escheated to state itself contradicts the entire case of the plaintiff. If Charanjit Singh had already transferred 300 bighas of land to plaintiff Ravinder Kaur allegedly by way of gift, he ceased to be the owner of the land and thus there was no necessity of transferring the same land again to defendants no.1 and 2 by sale. Charanjit Singh is a party to the Tamliknama and also to the sale in favour of defendants no.1 and 2. The argument does not appeal and is otherwise contrary to facts on record. Charanjit Singh has also not made any such statement either in the written statement and while appearing as a witness. This argument seems to be ingenuinity of the counsel, but without any support from the record. It is also relevant to note that if the sale in favour of defendants no.1 and 2 itself was without consideration and illegal as pleaded by the plaintiff, how could sale in favour of defendants no.5 and 6 on behalf of Kultar Kaur be valid. It is also relevant to note that if the sale in favour of defendants no.1 and 2 itself was without consideration and illegal as pleaded by the plaintiff, how could sale in favour of defendants no.5 and 6 on behalf of Kultar Kaur be valid. However, fact remains that both the courts have upheld the sale in favour of defendants no.5 and 6 and rightly so as the said sale was at the instance of Kultar Kaur through Sadhu Singh. It is also important to note that Charanjit Singh as also Baldev Singh, husband of Kultar Kaur are marginal witnesses to the power of attorney. This clearly establishes a nexus between plaintiff, Charanjit Singh and Kultar Kaur. 13. In view of my above observations that there has been misreading of the evidence and material and relevant part of the evidence has been totally ignored by the courts below. The findings recorded by the courts below that the sale in favour of defendants no.1 and 2 (appellant Mann Singh and Kultar Kaur) was without consideration are not sustainable and are hereby set aside. Defendants no.1 and 2 have established by cogent and reliable evidence that the sale consideration of Rs.40,000/- was paid by defendants no.1 and 2 to Charanjit Singh at the time of registration of sale deed dated 30.12.1957. 14. One of the substantial questions of law framed above is the nature of the document dated 6.10.1956 styled as “Tamliknama”. The said document reads as under: “Copy of Transfer Deed No.380, dated 6.10.56, executed by S. Charanjit Singh in respect of land valuing Rs.20,000/-, registered before the Registrar, District Patiala. I, Charanjit Singh son of S. Gurbaksh Singh, Jat, Maansahiya am a resident of Patiala. I am the owner of land measuring 1825-7 situated at Khaspur, Tehsil and District Patiala as per Jamabandi for the year 1955-56 and Farad Intkhab, comprised in Khata Khewat No.1/1, Khasra Nos. (numbers as specified in the vernacular document), Plots 370 measuring 1825-7, Chahi 713-8, Rosli 978-11 Bhud Awal 65-11, Gair Mumkin 57-17 to the extent of ½ share. Out of this land, I have transferred land measuring 300-0 together with all rights, the value of which is Rs.20,000/-(Rupees Twenty Thousand) in favour of my daughter Ravinder Kaur. I have delivered the possession of this land to the Transferee today. Now, neither I nor any of my heirs have any concern with the transferred land. Out of this land, I have transferred land measuring 300-0 together with all rights, the value of which is Rs.20,000/-(Rupees Twenty Thousand) in favour of my daughter Ravinder Kaur. I have delivered the possession of this land to the Transferee today. Now, neither I nor any of my heirs have any concern with the transferred land. She has become absolute owner in my place. I would get the mutation sanctioned from the Revenue Department. Therefore, I while enjoying my five right senses and good intellect, have got this Transfer Deed scribed, so that it may serve as an authority at the time of need. Farad Intkhab is enclosed herewith. Dated: 6th October 1956 Corresponding to 21 Asu 2013...” 15. From the text 0 f the document, it is evident that no consideration has been mentioned for transferring the land in favour of Ravinder Kaur-plaintiff Rs.20,000/- shown as value of the land is only for the purposes of payment of the stamp duty and registration fee. The document cannot be termed as a transfer deed for consideration. The document also does not show that the land has been given by Charanjit Singh for any other non-monetary consideration. But since the beneficiary under the document is the daughter, it can be termed as a relinquishment or gift deed. 16. Mr. Setia has, however, argued that the Tamliknama is a transfer deed and he has relied upon the judgment of the Hon’ble Supreme Court rendered in the case of Ram Gopal v. Nand Lal and others, AIR (38) 1951, Supreme Court 139 wherein Hon’ble Supreme Court has made following observations:­ “7.In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the wards which have actually be employed: vide Rajendra Prasad v. Gopal Prasad, 57 LA. 296: (AIR (17) 1930 P.C. 2’i2). In the present case, the instrument of grant has been described as a “Tamliknama” which means a document by which “Maliki” or ownership rights are transferred and the document expressly says that the grantee has been made a “Malik” or owner. 296: (AIR (17) 1930 P.C. 2’i2). In the present case, the instrument of grant has been described as a “Tamliknama” which means a document by which “Maliki” or ownership rights are transferred and the document expressly says that the grantee has been made a “Malik” or owner. There are no express words making the gift heritable & transferable; nor on the other hand is there any statement that the transferee would enjoy the properties only during her life time and that they would revert to the grantor after her death,” 17. No doubt in the aforesaid observations of the Hon’ble Supreme Court, a document styled as Tamliknama where the owner transfers the right has been approved by the Hon’ble Apex Court as a document not with limited rights. However, the fact remains that there is no monetary consideration in the document and the plaintiff being daughter of Charanjit Singh, the executant of the document, it may be termed as a gift Therefore, both the courts below have rightly observed that the document is a gift deed. Simultaneously both the courts below have observed that plaintiff was not in possession of the suit property and hence the gift itself is invalid. I find no fault with these observations. 18. So far as question no.2 is concerned, Charanjit Singh having received consideration before the Sub Registrar and without asking any question cannot be permitted to plead that the sale is without consideration. The sanctity has to be attached to the endorsement of the Registering Officer regarding payment of the sale consideration, particularly, when he has appeared as a witness and stated that sale consideration was paid in his presence. Surprisingly, no question was asked to him. Once the payment of sale consideration is proved at the time of registration before the registering authority, the source of sale consideration become:; immaterial. Even if it is assumed that Charanjit Singh himself provided the sale consideration to be paid to him, it cannot be said that the document is without consideration. Though I have held here-in-above that there is sufficient material to establish that sale consideration was paid by defendants through Sadhu Singh which finds support from the statement of Kultar Kaur that she had contributed Rs.13500/- to Sadhu Singh as part of sale consideration. In such circumstances, Charanjit Singh is not entitled to plead that the sale was without consideration. 19. In such circumstances, Charanjit Singh is not entitled to plead that the sale was without consideration. 19. It is established by evidence that Kultar Kaur sold 63 bighas and 16 biswa of land. Charanjit Singh had the knowledge of the same. Rather he facilitated the sale by being a witness to the power of attorney executed by Kultar Kaur in favour of Sadhu Singh for the purposes of sale of the aforesaid land to defendants no.5 and 6. If the original sale deed in favour of Kultar Kaur was without consideration why Charanjit Singh did not object the sale by Kultar Kaur. There is no explanation tendered nor Mr. Setia has been able to show anything from record. It is also admitted position that Tamlikmama was never entered in the revenue record and no consequential mutation was ever entered. Substantial questions framed are accordingly answered in the above manner. In the totality of the circumstances, this appeal succeeds. The judgment and decree impugned is hereby set aside and sale deed dated 30.12.1957 is hereby upheld. Consequently, cross objections are also dismissed being without any merit. --------------------