advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, August 23, 2016

could not have bequeathed under her Will what she did not own.= 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.

                                                              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



                              1 J U D G M E N T





1 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:
      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 and 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:

      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.
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 this 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  her
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.

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.
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
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, 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.



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.