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Friday, March 22, 2013

partition - Will Deed - whether he is a beneficial owner or is a benami, is a question of fact. There was no averment made in the plaint with regard to the aforestated allegation. No issue to the said fact had been raised before the trial court. The said issue had been raised for the first time before the appellate court and in our opinion, the issue with regard to the fact could not have been raised before the appellate court for the first time and therefore, all submissions made in relation to the provisions of Benami Transfer (Prohibition) Act, 1988 and with regard to real ownership of the suit property cannot be looked into at this stage.the mental capacity of Sumitra Devi at the time of execution of the Will cannot also be looked into at this stage because the mental capacity of the testator to execute a Will being a question of fact, we would like to accept the findings arrived at by the court below and all allegations with regard to soundness of mind of Sumitra Devi at the time of execution of the Will or allegation with regard to undue influence of the present appellant with whom Sumitra Devi was residing at the time of her death cannot be looked into by this Court as they are the issues pertaining to fact. = the Will executed by Sumitra Devi was just and proper, the consequences of the Will would be like this: Rao Gajraj Singh was survived by his eight children and his widow – Sumitra Devi. As Rao Gajraj Singh died intestate, according to the provisions of the Hindu Succession Act, his property would devolve upon all his nine heirs i.e. his widow and eight children. So, everyone would get 1/9th share in the property of Rao Gajraj Singh. Though Sumitra Devi had executed her Will and had bequeathed the entire property in question to the present appellant namely Narinder Singh Rao, Sumitra Devi could not have bequeathed under her Will what she did not own. She was only 1/9th owner of the suit property so she could have bequeathed only her share i.e. 1/9th share in the suit property. As a result of the Will of Sumitra Devi, Narinder Singh Rao- the appellant would not only inherit his own share in the property, which he had inherited from his father Rao Gajraj Singh but he would also inherit share of his mother Sumitra Devi as per her Will. Thus, the present appellant would become the owner of 2/9th share of the suit property. In our opinion the final finding of the High Court that the appellant is the owner of 2/9th share of the suit property is, therefore, absolutely correct. 18. The averments with regard to court fee are not of importance at this stage as looking to the facts of the case, the court below has rightly come to the conclusion that the issue with regard to the court fee was a matter between the litigant filing the suit and the court and the defendants need not have bothered about the same. In view of the findings of fact arrived at by the courts below and the legal position clarified hereinabove and by the High Court, in our opinion, the High Court has committed no error and therefore, we see no reason to interfere with the impugned judgment. 21. For the aforestated reasons, the appeals are dismissed with no order as to costs.


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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6918-6919 OF 2011
NARINDER SINGH RAO .....APPELLANT
 VERSUS
AVM MAHINDER SINGH RAO ....RESPONDENTS
AND OTHERS
J U D G M E N T
ANIL R. DAVE, J.
1. Being aggrieved by the Judgment delivered in Civil Regular Second
Appeal No. 3937 of 2005 and Cross Objection No. 9-C of 2005 dated 21st
May, 2010 by the High Court of Punjab & Haryana at Chandigarh, these
appeals have been filed by original defendant No.1.
2. The facts giving rise to the appeals in a nutshell are as under:Page 2
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Rao Gajraj Singh and his wife Sumitra Devi were occupiers of the suit
property. The property appears to have been constructed somewhere in
1935 and as per the municipal record, it belonged to Rao Gajraj Singh. A
document was executed by Rao Gajraj Singh to the effect that upon death of
himself or his wife, the suit property would be inherited by the survivor.
The said writing was attested by Rao Devender Singh, the son of Rao Gajraj
Singh’s real sister.
Rao Gajraj Singh expired on 29th March, 1981 and thereafter Sumitra
Devi, who had eight children, started residing at Ranchi with the appellant.
Somewhere in 1980s, Sumitra Devi got constructed some shops in the
suit premises and the said shops were given on rent.
On 1st June, 1989, Sumitra Devi executed a Will whereby she
bequeathed the suit property to one of her sons, namely, Narinder Singh Rao
(the present appellant and original defendant No.1) and she expired on 6th
June, 1989.
3. After the death of Sumitra Devi, her four children, one of them being
the present respondent No.1, filed a suit for declaration claiming their right
in the suit property. Subsequently, the plaint was amended so as to make it a
suit for partition. According to the case of the said children, the Will was
not genuine and therefore, the said Will could not have been acted upon andPage 3
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as Sumitra Devi was survived by eight children, the suit property would be
inherited by all the children. Thus, each child had 1/8th share in the suit
property.
4. Even after death of Rao Gajraj Singh, the suit property continued to
remain in his name because nobody had got the property mutated in the
names of his heirs/legal representatives after his death.
5. The said suit was dismissed and therefore, the original plaintiffs,
along with others, preferred an appeal. After hearing the learned advocates
and considering the facts of the case, the lower appellate court dismissed the
said appeal though allowed the appeal on the question of court fee.
6. Being aggrieved by the judgment delivered by the lower appellate court,
original plaintiff No.1 filed a second appeal, being Civil Regular Second
Appeal No. 3937 of 2005. On the issue with regard to court fee, cross
objection was filed by the present appellant. The said appeal was partly
allowed whereas the cross objection was dismissed on 25th May, 2010 and
being aggrieved by the judgment delivered in the said appeal, the present
appeal has been filed by the appellant, who is original defendant no.1.
7. It is pertinent to note as to how the High Court has decided the Second
Appeal and for that purpose let us look at the findings, which are as under:Page 4
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The ultimate findings arrived at by the court below are to the effect
that the writing executed by Rao Gajraj Singh, which stated that upon death
of himself or his wife, the suit property would be inherited by the survivor,
was neither in the nature of a Will nor in the nature of transfer of the
property because the said writing was neither registered as required under
the provisions of the Indian Registration Act, 1908 nor was attested by two
witnesses as it should have been done, had it been a Will. Thus, the writing
executed by Rao Gajraj Singh, in the eyes of law, was only a piece of paper,
having no legal effect. Factually also, the said writing was not a Will
because it was not attested by two attesting witnesses as is required to be
done for execution of a valid Will. It is also a fact that the said writing had
not been registered and by virtue of the said writing either complete
ownership or share of Rao Gajraj Singh was not transferred to Sumitra Devi,
thus, the High Court in its impugned judgment rightly ignored the said
writing executed by Rao Gajraj Singh.
 8. Upon the death of Rao Gajraj Singh, no mutation entry was made in
the Municipal Corporation records to show as to who had inherited the
property in question and the said property continued to remain in the name
of late Rao Gajraj Singh.Page 5
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9. By virtue of the Will executed by Sumitra Devi, whereby the property
had been bequeathed to the present appellant, the appellant claims complete
ownership over the suit property.
10. So far as inheritance of the suit property by the present appellant in
pursuance of the Will dated 1st June, 1989 executed by Sumitra Devi is
concerned, the finding of the lower appellate court is to the effect that the
Will was validly executed by Sumitra Devi, which had been attested by two
witnesses, one being an advocate and another being a medical practitioner.
Though there was an allegation to the effect that Sumitra Devi was not
keeping good health at the time when she had executed the aforesaid Will
and she was not having sound and disposing mind at the time of execution of
the Will, the said submission made before the courts below was not
accepted. Upon appreciation of evidence adduced, it was held that the Will
was validly executed and Sumitra Devi was competent to execute the Will
which had been duly attested by two competent witnesses. In the
circumstances, the courts below came to the conclusion that the Will was
validly executed. The question with regard to the state of mind of the
testatrix and execution of the Will being a question of fact, the High Court
rightly accepted the findings arrived at by the lower appellate court. As the
said finding has been accepted by the High Court, in our opinion, even thisPage 6
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Court would not re-appreciate the said fact. In the circumstances, so far as
the validity of the Will is concerned, it is treated to have been executed
properly. The next question which was to be considered by the High Court
was with regard to the ownership right of the suit property. The property
was in the name of Rao Gajraj Singh and no evidence of whatsoever type
was adduced to the effect that the property originally belonged to Sumitra
Devi. Looking to the said fact, the findings arrived at by the High Court that
the suit property belonged to Rao Gajraj Singh cannot be disturbed. As Rao
Gajraj Singh died intestate and was the owner of the property at the time of
his death, the suit property should have been inherited by his widow, namely
Sumitra Devi and his eight children in equal share, as per the provisions of
the Hindu Succession Act, 1956. In that view of the matter, the High Court
arrived at the conclusion that the suit property would be inherited by all the
9 heirs i.e. Sumitra Devi and her eight children and therefore, Sumitra Devi
had inherited only 1/9th of the right and interest in the suit property whereas
1/9th of the right and interest in the suit property belonged to each child of
Rao Gajraj Singh.
11. Though the Will executed by Sumitra Devi has been treated as a
validly executed Will, Sumitra Devi, who had only 1/9th of the right and
interest in the suit property, could not have bequeathed more than herPage 7
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interest in the suit property. If Sumitra Devi was not a full-fledged owner of
the suit property, she could not have bequeathed the entire suit property to
the present appellant- Narinder Singh Rao who has claimed the entire
property by virtue of the Will executed by Sumitra Devi. At the most
Sumitra Devi could have bequeathed her interest in the property which was
to the extent of 1/9th share in the said property. So the High Court rightly
came to the conclusion that the 1/9th share in the suit property belonging to
Sumitra Devi would be inherited by the present appellant - Narinder Singh
Rao by virtue of the Will executed by her. In addition to his own right and
interest in the suit property to the extent of 1/9th share, which the present
appellant had inherited from his father, the present appellant would get 1/9th
share in the suit property as he also inherited share of his mother Sumitra
Devi whereas all other children of Rao Gajraj Singh would get 1/9th share
each in the suit property. Thus, the present appellant would be having 2/9th
share in the suit property.
12. In our opinion, the aforestated findings arrived at by the court below
are absolutely just and proper. So far as findings of facts are concerned, the
same have been finally decided by the court below and therefore, we would
not like to interfere with the findings of the fact.Page 8
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13. So far as legal issues are concerned, in our opinion, the court below
did not make any error while coming to the aforestated conclusions after
applying law to the facts of the case.
14. The learned counsel appearing for the parties had made lengthy
submissions, however, in our opinion not a single submission made on
behalf of the appellant is impressive.
15. On behalf of the appellant, the submissions were made to the effect
that the suit property in fact belonged to Sumitra Devi though it was in the
name of Rao Gajraj Singh.
The provisions of Benami Transfer (Prohibition)
Act, 1988 had been referred to by the learned counsel appearing for the
appellant.
The question whether the suit property in fact belongs to an
individual i.e. whether he is a beneficial owner or is a benami, is a question
of fact. There was no averment made in the plaint with regard to the
aforestated allegation. No issue to the said fact had been raised before the
trial court. The said issue had been raised for the first time before the
appellate court and in our opinion, the issue with regard to the fact could not
have been raised before the appellate court for the first time and therefore,
all submissions made in relation to the provisions of Benami Transfer
(Prohibition) Act, 1988 and with regard to real ownership of the suit
property cannot be looked into at this stage.
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16. The submissions made with regard to the mental capacity of Sumitra
Devi at the time of execution of the Will cannot also be looked into at this
stage because the mental capacity of the testator to execute a Will being a
question of fact, we would like to accept the findings arrived at by the court
below and 
all allegations with regard to soundness of mind of Sumitra Devi
at the time of execution of the Will or allegation with regard to undue
influence of the present appellant with whom Sumitra Devi was residing at
the time of her death cannot be looked into by this Court as they are the
issues pertaining to fact. 
We, therefore, do not accept the submissions made
with regard to validity of the Will executed by Sumitra Devi.
17. As we have come to the conclusion that
the Will executed by Sumitra
Devi was just and proper, the consequences of the Will would be like this: Rao Gajraj Singh was survived by his eight children and his widow – Sumitra Devi. As Rao Gajraj Singh died intestate, according to the provisions of the Hindu Succession Act, his property would devolve upon all his nine heirs i.e. his widow and eight children. 
So, everyone would get 1/9th
share in the property of Rao Gajraj Singh. Though Sumitra Devi had executed her Will and had bequeathed the entire property in question to the present appellant namely Narinder Singh Rao, Sumitra Devi could not have bequeathed under her Will what she did not own. She was only 1/9th owner
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of the suit property so she could have bequeathed only her share i.e. 1/9th share in the suit property. 
As a result of the Will of Sumitra Devi, Narinder
Singh Rao- the appellant would not only inherit his own share in the property, which he had inherited from his father Rao Gajraj Singh but he would also inherit share of his mother Sumitra Devi as per her Will. 
Thus,
the present appellant would become the owner of 2/9th share of the suit property. 
In our opinion the final finding of the High Court that the
appellant is the owner of 2/9th share of the suit property is, therefore, absolutely correct.
18. The averments with regard to court fee are not of importance at this
stage as looking to the facts of the case, the court below has rightly come to
the conclusion that the issue with regard to 
the court fee was a matter
between the litigant filing the suit and the court and the defendants need not have bothered about the same. 
19. The learned counsel appearing for both sides have cited several
judgments. The propositions laid down in the said judgments cannot be
disputed, however, the fact remains that the said judgments do not render
any assistance to the appellant in view of the aforestated facts.
20. In view of the findings of fact arrived at by the courts below and the
legal position clarified hereinabove and by the High Court, in our opinion,
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the High Court has committed no error and therefore, we see no reason to
interfere with the impugned judgment.
21. For the aforestated reasons, the appeals are dismissed with no order as
to costs.
 ………..……………............J.
 (R.M. LODHA)
 ………..……………............J.
 (ANIL R. DAVE)
New Delhi
MARCH 22, 2013.

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