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2011 DIGILAW 1809 (PNJ)

Ajmer Kaur v. Amarjit Kaur

2011-09-26

KANWALJIT SINGH AHLUWALIA

body2011
JUDGMENT Kanwaljit Singh Ahluwalia, J. Civil Misc. No. 9307-C of 2011 Civil Misc. Application is allowed. Delay of 144 days in re-filing of the appeal is condoned. Regular Second Appeal No. 3350 of 2011 The plaintiff, having failed in two rounds of litigation, has approached this Court by filing the present regular second appeal. 2. Briefly stated, the plaintiff had instituted a suit for declaration to the effect that she being a daughter of Dalip Kaur widow of Bhajan Singh, was her natural legal heir and therefore, she was entitled to succeed her estate under Section 15 of the Hindu Succession Act, 1956 and she is owner to the extent of 1/5th share of land measuring 117 kanals, detail and description whereof has been given in the head note of the plaint. In the suit, she has sought annulment of the sale deed dated 29.9.2003 made by Dalip Kaur in favour of her unmarried daughter Amarjit Kaur, sister of the appellant/plaintiff and subsequent mutation executed on the basis thereof. It was stated that at the time of execution of the sale deed, Dalip Kaur was of unsound mind. It was further prayed that the suit for joint possession of 1/5th share qua the land on the basis of the title be decreed and as consequential relief, issuance of permanent injunction restraining defendant No.1 from alienating the share of the plaintiff/appellant in the suit land to any one in any manner, was also sought. 3. It will be appropriate, at the first instance, to narrate the Registrar. This sale deed was termed as “Tabdeel Malqiat” (change of ownership) undisputed facts:- a) Bhajan Sigh was married with Dalip Kaur and she gave birth to one son and five daughters; b) Bhajan Singh had made a registered Will dated 1.6.1979 in favour of his wife Dalip Kaur; c) After the death of Bhajan Singh, Dalip Kaur succeeded to his estate and became absolute owner of the suit property; d) Sukhdev Singh son of Bhajan Singh and Dalip Kaur, had pre-deceased them; e) Dalip Kaur had executed the sale deed in favour of her unmarried daughter Amarjit Kaur-defendant/respondent No.1, on 29.9.2003 and the same was registered in the office of the Joint Sub Registrar. The sale deed was termed as “Tabdeel Malqiat” (change of ownership) f) The sale deed and the subsequent mutation thereof have been assailed by the appellant/plaintiff whereas her other three sisters namely Seono, Surjit Kaur and Charanjit Kaur, defendants No.2, 3 and 4 to the suit, have raised no such objection and are satisfied with the transfer of the land by Dalip Kaur in favour of their sister Amarjit Kaur. 4. Both the Courts below have examined the evidence led by the parties threadbare. After analyzing and dissecting the evidence, they placed implicit reliance upon the attesting witnesses namely DW.1 Rakesh Kumar Garg, Deed Writer and DW.2 Gurbachan Singh to hold that at the time of execution of the Tabdeel Malqiat, Dalip Kaur was of sound mind. They have further held that the plaintiff had not come to the Court with clean hands and have found the plea of the plaintiff that Tabdeel Malqiat dated 29.9.2003, had been executed by her mother in favour of her sister defendant No.1-Amarjit Kaur, when she was not having sound state of mind, to be not proved in view of the direct evidence of the witnesses. 5. Vide order dated 17.8.2011, passed by this Court, records of the Courts below were called and the same having been perused, learned counsel for the appellant has proceeded to argue the matter. 6. In view of the findings of fact, returned by both the Courts below, Mrs. Sangita Dhanda, Advocate, appearing for the appellant/plaintiff, has submitted that she will only raise a legal argument before this Court and the argument, so raised, according to learned counsel, constitutes the following as a substantial question of law, for consideration of this Court: “Whether Tabdeel Malqiat dated 29.9.2003 Ex.P2, on the day of its registration, required affixation of stamp fee or not and if so, what is its effect?” 7. To examine the substantial question of law, formulated above, it will be necessary to see the document Ex.P2. A specific note has been given therein, on behalf of Dalip Kaur, executant, that “I have married my other daughters. My above said daughter Amarjit Kaur is unmarried and she is residing with me and is also serving me”. Learned counsel has placed implicit reliance upon a notification Ex.D2 dated 8.1.2004, relevant portion whereof reads as under:- “No. S.O.1/C.A..S/1899/S.9/2004. A specific note has been given therein, on behalf of Dalip Kaur, executant, that “I have married my other daughters. My above said daughter Amarjit Kaur is unmarried and she is residing with me and is also serving me”. Learned counsel has placed implicit reliance upon a notification Ex.D2 dated 8.1.2004, relevant portion whereof reads as under:- “No. S.O.1/C.A..S/1899/S.9/2004. -In exercise of the powers conferred by clause (a) of sub-section (1) of Section 9 of the Indian Stamp Act, 1899 (Central Act No.2 of 1899), and all other powers enabling him in this behalf, the Governor of Punjab is pleased to remit, on and with effect from the 21st December, 2001, the Stamp duty chargeable in case of transaction of transfer by a female owner of agricultural land and rural residential property, during her life time, in favour of her heirs as provided in clause (a) of sub-section (1) of Section 15 of the Hindu Succession Act, 1956. However, where the owner of the property is unmarried or is issueless and having no heirs as provided clause (a) of sub-section (1) of Section 15 of he Hindu Succession act, 1956, then this concession also be available to heirs as provided in clauses (b) to (e) of sub-section (1) of Section 15 of the Hindu Succession Act, 1956: Provided that this remission would be applicable to rural agricultural land and rural residential property outside the Lal Lakir only...” 8. Learned counsel has further submitted that vide notification Ex.D2 dated 8.1.2004, affixation of the stamp duty was ordered to be remitted, therefore, before 8.1.2004, it was incumbent for the executant to affix the stamp fee. It is submitted that since at the time when Tabdeel Malqiat was executed, the stamp fee was not affixed. The document cannot be used for any purpose even collateral. In support of this contention, learned counsel for the appellant has placed reliance upon the judgment rendered by Hon'ble the Apex Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra 2009(1) Recent Civil Reports 615. There is no quarrel with this proposition. A crucial question for this Court to answer is as to whether on the day the sale deed was executed i.e. on 29.9.2003, whether the stamp fee was mandatory or it was exempted. 9. A perusal of Tabdeel Malqiat Ex.P2 specifically states that affixation of the stamp fee has been exempted vide notification No. S.O.1/66/C.A.2/1899 S.9/2001. A crucial question for this Court to answer is as to whether on the day the sale deed was executed i.e. on 29.9.2003, whether the stamp fee was mandatory or it was exempted. 9. A perusal of Tabdeel Malqiat Ex.P2 specifically states that affixation of the stamp fee has been exempted vide notification No. S.O.1/66/C.A.2/1899 S.9/2001. Therefore, vide this notification, from the year 2001, the stamp fee was exempted if a document was to be executed between the same family members. Notification dated 8.1.2004, relied upon by learned counsel for the appellant, goes to further extent to say that those documents which have been executed after 21.12.2001 in case stamp duty has been paid, that will be remitted, in other words refunded. Furthermore, it will be pertinent to mention here that a reliance was placed upon this very notification dated 21.12.2001 by a Division Bench of this Court in Gurdial Singh v. State of Punjab 2008(3) The Punjab Law Reporter 236 to say that no stamp duty would be chargeable in case of transaction or transfer by an owner of agricultural land and rural residential property to his Class-I heirs. Since the notification was already issued in the year 2001 and affixation of the stamp duty was exempted, the argument raised that the document Ex.P2 i.e. Vasika Tabdeel Malqiat dated 29.9.2003 suffers from any infirmity, no longer survives. 10. No other argument has been raised by learned counsel for the appellant. This Court is of the view that the substantial question of law, so formulated and proposed by learned counsel for the appellant, no way arises for its consideration in view of the notification issued by the Government of Punjab in the year 2001. 11. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. Appeal dismissed.