Research › Search › Judgment

Uttarakhand High Court · body

2009 DIGILAW 227 (UTT)

MOHINDER KAUR DHILLON v. SAWINDER KAUR DHILLON

2009-05-04

PRAFULLA C.PANT

body2009
JUDGMENT This appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 24.01.2002, passed by Addl. District Judge/III F.T.C., Dehradun, in Original Suit No. 01 of 1998, whereby the petition for grant of succession certificate filed by the appellant was dismissed (The application for grant of succession certificate, when contested seriously, was registered as suit by the trial court). 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case, giving rise to this appeal, are that Sardar Gurdeep Singh Dhillon whom the parties are related died on 24.09.1977, at Dehradun. The pedigree by which the parties are related to each other, is as under : It is alleged by the appellant that S. Gurdeep Singh Dhillon used to live ordinarily at 156, Rajpur Road, Dehradun. The case of the appellant is that after the death of S. Gurdeep Singh Dhillon, a family arrangement took place on 09.01.1982, about his property situated in Delhi {Flat No. R-791 (ground floor), New Delhi} which came in the share of the appellant No. 1. The said flat is under tenancy of Union of India through Military Estate Officer. When the appellant No. 1 claimed rent from the said tenant, she was asked to obtain succession certificate. Hence, the application was moved under Section 372 of the Indian Succession Act, 1925, before the District Judge, Dehradun, for grant of succession certificate of said property.] 4. The respondents Sawinder Kaur Dhillon and Jagjit Kaur contested the application for grant of succession certificate and filed their objections in which they alleged that though S. Gurdeep Singh Dhillon died at Dehradun on 24.09.1977, but he was resident of Amritsar, as such, the court at Dehradun had no jurisdiction to entertain the petition/suit for grant of succession certificate in respect of property situated at Delhi. The two respondents specifically denied having entered into alleged family arrangement dated 09.01.1982. It is specifically stated by them in their objections that property flat No. R-791 (ground floor) New Rajender Nagar, New Delhi, never fallen in the share of the appellant No. 1. The two respondents specifically denied having entered into alleged family arrangement dated 09.01.1982. It is specifically stated by them in their objections that property flat No. R-791 (ground floor) New Rajender Nagar, New Delhi, never fallen in the share of the appellant No. 1. It is further alleged by the two respondents that the appellant No. 1 has concealed Will dated 04.06.1976 executed by S. Gurdeep Singh Dhillon before his death by which he bequeathed property situated at Dehradun in favour of the appellant No. 1, and remaining property in favour of his two sons namely, Lt. Col. Harbhajan Singh and S. Mohinder S. Dhillon. After death of S. Mohinder Singh Dhillon, his share was inherited by respondents Smt. Jagjit Kaur and her children namely, Smt. Kawalinder Kaur and Ruby Gill. After death of Lt. Col. Harbhajan Sindh Dhillon his share was inherited by his widow respondent Sawinder Kaur and his son Col. Surjeet Singh Dhillon and two daughters namely, Sukhbhajan Kaur and Smt. Indrajeet Kaur. Also, the share of predeceased son of S. Gurdeep Singh Dhillon was inherited by his widow Smt. Jatinder Kaur. The respondents in their objections pleaded that earlier, an application under Section 372 of the Indian Succession Act, 1925, was moved before Senior Sub Judge, Amritsar, which was registered as Case No. 05 of 1980 to which present appellant No. 1 was also a party. It is alleged that the appellant No. 1 has concealed said fact. 5. On the basis of the pleadings of the parties, the trial court framed following issues : i) Whether, Sri Gurdeep Singh Dhillon was permanent resident of Dehradun, at the time of his death? ii) Whether, all the heirs of the deceased have not been impleaded? iii) Whether, any family arrangement took place on 09.01.1982 between the heirs of S. Gurdeep Singh Dhillon in respect of flat No. R-791 (ground floor), New Rajendra Nagar, New Delhi? If so, its effect? iv) Whether, there is no legal impediment in granting succession certificate in favour of the applicant? v) Whether, this court has no jurisdiction to try the case? vi) Whether, the petition is bad for non-joinder of legal heirs/necessary parties? vii) Whether, the petition is barred by time? If so, its effect? iv) Whether, there is no legal impediment in granting succession certificate in favour of the applicant? v) Whether, this court has no jurisdiction to try the case? vi) Whether, the petition is bad for non-joinder of legal heirs/necessary parties? vii) Whether, the petition is barred by time? viii) What is the effect of judgment passed by Senior Sub Judge, Amritsar, in Case No. 05 of 1980, in respect of Will dated 04.06.1976/ ix) Who is the owner of property bearing municipal No. R-791, situated in New Rajendra Nagar, Delhi? x) Whether, the petition is not legally maintainable, as alleged? xi) To what relief, if any, is the petitioner entitled? 6. After recording the evidence and hearing the parties, the trial court held that it has no territorial jurisdiction over the property in suit. If further held that S. Gurdeep Singh Dhillon was not the permanent resident of Dehradun. On issue Nos. 2 and 6, the trial court found that the suit is bad for non-joinder of necessary parties. Issue Nos. 3 and 4 are also decided against the petitioners (present appellants) [Appellant No. 2 Maninder Kaur and appellant No. 3 Gurdeep Kaur appeared to have been impleaded during the pendency of the suit/petition]. However, only issue Nos. 7 and 8 were decided in favour of the petitioners. Issue Nos. 9 and 10 were also decided against the petitioners and, accordingly, the suit/petition was dismissed. Aggrieved by the said judgment and decree dated 24.01.2002, passed by learned Addl. District Judge/III F.T.C., Dehradun, in Suit No. 01 of 1998, the petitioners have filed this appeal. 7. Admittedly, parties are related with the pedigree, shown above. It is not disputed that S. Gurdeep Singh Dhillon owned properties at Amritsar, Delhi and Dehradun. It is also not disputed between the parties that S. Gurdeep Singh Dhillon died on 24.09.1977, at Dehradun, and before his death executed Will dated 04.06.1976, through which property at Dehradun was bequeathed in favour of his daughter Mohinder Kaur (appellant No. 1). The trial court has found on the basis of the evidence of parties that the remaining properties were bequeathed in favour of the remaining sons of the deceased. 8. Mr. Manoj Tiwari, learned counsel for the appellants drew attention of this Court to agreement dated 09.01.1982, executed between the appellant no. 1 and respondents Sawinder Kaur and Jagjeet Kaur at Amritsar. 8. Mr. Manoj Tiwari, learned counsel for the appellants drew attention of this Court to agreement dated 09.01.1982, executed between the appellant no. 1 and respondents Sawinder Kaur and Jagjeet Kaur at Amritsar. In para 2 of said agreement, which is not a registered agreement it has been stated that Mohinder Kaur would be entitled to inherit the flat No. R-791 (ground floor), New Rajendra Nagar, New Delhi, and respondents Sawinder Kaur and Jagjeet Kaur and their children would have no claim over it. Learned counsel for the appellants further argued that it is a family arrangement, as such, needs no registration, and the trial court has erred in law in holding that the said document cannot be read in evidence. This Court does not find any force in the contention of learned counsel for the appellants for the reason that had it been a case where the appellant No. 1 had some share in the property at Delhi, it could have been said that agreement dated 09.11.1982 is nothing but a family partition arrangement. But, it is not so. The Will dated 04.06.1996 through which the appellant No. 1 inherited the property at Dehradun, contains last paragraph which reads as under : “I make it clear that my daughter, Km. Mohender Kaur Dhillon will also have no right of inheritance or claim in any of the properties, owned by me that may be left by me at the time of my death, or to which I may in my own right become entitled to before my death. All my other property will inherited by my sons Harbhajan Singh, Mohinder Singh equally.” In view of above para of the Will, the appellant no. 1 inherited property situated only at Dehradun and she had no interest in the property at Delhi left by her father S. Gurdeep Singh Dhillon. That being so, the trial court has rightly refused to read in evidence the agreement dated 09.01.1982, which is an unregistered deed, as the family partition arrangement dated 09.01.1982, being violative of provisions of Indian Registration Act, cannot be read in evidence, and this Court is of the view that the trial court has committed no error of law on this point. Even otherwise, ten years after the alleged agreement dated 09.01.1982, which is paper No. 65-B in the trial court’s record, Mohinder Kaur (appellant No. 1) has herself executed another deed relinquishing her interest in property No. R-791, R-792, New Rajendra Nagar, New Delhi, in favour of Sawinder Kaur and Jagjeet Kaur (copy of said deed is paper No. 66-B in the trial court record). 9. As to the territorial jurisdiction there is ample evidence on record, which is also discussed by the trial court, particularly, the copies of the passports and other papers which show that S. Gurdeep Singh Dhillon, though died at Dehradun, but was a domicile of Amritsar. Therefore, the trial court has rightly found that it had no territorial jurisdiction in respect of the only property situated at Delhi. Had it been a case where a succession certificate is sought, in respect of the properties of Dehradun, Delhi and Amritsar, it could have been said that the court at Dehradun too had jurisdiction, but in the present case, succession certificate has been sought in respect of the only property at Delhi i.e. R-791 (ground floor) New Rajendra Nagar, New Delhi. 10. Mr. V.K. Kohli, Sr. Advocate appearing on behalf of the respondents drew attention of this Court to Section 376 of the Indian Succession Act, 1925, which reads as under : “376. Extension of certificate. – (1) A district judge may, on the application of the holder of a certificate under this Part, extend the certificate to any debt or security not originally specified therein, and every such extension shall have the same effect as if the debt or security to which the certificate is extended had been originally specified therein. (2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividends on, or the negotiation or transfer of, any security to which the certificate has been extended may be conferred, and a bond or further bond or other security for the purposes mentioned in Section 375 may be required, in the same manner as upon the original grant of a certificate.” It is argued on behalf of the respondents that the court of Senior Sub Judge, Amritsar, before whom succession case No. 05 of 1980 was instituted earlier for succession certificate, could have issued another certificate in respect of any other property left by the same deceased. It has come on record that the case No. 05 of 1980 was filed by Sawinder Kaur and Jagjeet Kaur (present respondents) against Mohinder Kaur and others for succession certificate in respect of five debts with Punjab and Sind Bank Ltd. (four of such debts related to Amritsar Branch, while the fifth one related to Karol Bagh Branch, New Delhi, as is apparent from paper No. 65-B in the trial court record). In my opinion Section 376 of the Indian Succession Act, 1925, has no application to the present case for the simple reason that facility of extension of certificate is provided only to the holder of a certificate. Before the court at Amritsar, holders of the certificate were the respondents Sawinder Kaur and Jagjeet Kaur, and not the present appellant No. 1 Mohinder Kaur. 11. For the reasons as discussed above, this Court does not find any force in this appeal, which is liable to be dismissed. The same is dismissed. However, no order as to costs.