LAW FOR ALL

Wednesday, August 31, 2011

The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100 CPC. In the month of May, 1991, the 1st respondent -- M/s. Tirgun Auto Plast Private Limited - applied to the Punjab Financial Corporation (for short, `Corporation') for a term loan of Rs. 47.60 lac and special capital assistance (soft loan) of Rs. 4 lac. The term loan of Rs. 46 lac and soft loan of Rs. 4 lac was disbursed by the Corporation to the 1st respondent in the month of October, 1991 on execution of the mortgage deed. Vide this mortgage deed, the 1st respondent mortgaged its various assets in favour of the Corporation. On the 1st respondent's failure to pay the due amount along with interest, the Corporation on March 19, 1998 took over the mortgaged property comprising land, building and machinery in exercise of its power under Section 29 of the State Financial Corporations Act, 1951 (for short, `1951 Act'). 4. The 1st respondent (hereinafter referred to as `plaintiff'), on February 17, 2001, filed a suit for declaration, mandatory injunction and other reliefs against the Corporation - 2nd respondent in the Court of Civil Judge (Junior Division), Chandigarh. Inter alia, the plaintiff prayed that the takeover of its assets and all subsequent sale proceedings by the Corporation be declared illegal, null and 2 void and inoperative; the direction be issued to the Corporation to charge interest at the rate of 12.5 per cent per annum (prevailing rate) on the loan from the date of commencement of production to the date of takeover and the Corporation be also directed to restore back the possession of the suit property to it.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7532 OF 2011

(Arising out of SLP (Civil) No. 30105 of 2010)

M/s. Shiv Cotex .... Appellant

Versus

Tirgun Auto Plast P. Ltd. & Ors. ....Respondents

JUDGMENT

R.M. Lodha, J.

Leave granted.

2. The purchaser, who was not party to the suit but

impleaded as 2nd respondent in the first appeal and was arrayed as

such in the second appeal, is the appellant being aggrieved by the

judgment and order of the High Court of Punjab and Haryana

whereby the Single Judge of that Court allowed the second appeal

preferred by the plaintiff (1st respondent) and set aside the

concurrent judgment and decree of the courts below and remanded

1

the suit to the trial court for fresh disposal after giving the plaintiff an

opportunity to lead evidence.

3. In the month of May, 1991, the 1st respondent --

M/s. Tirgun Auto Plast Private Limited - applied to the Punjab

Financial Corporation (for short, `Corporation') for a term loan of

Rs. 47.60 lac and special capital assistance (soft loan) of Rs. 4 lac.

The term loan of Rs. 46 lac and soft loan of Rs. 4 lac was disbursed

by the Corporation to the 1st respondent in the month of October,

1991 on execution of the mortgage deed. Vide this mortgage deed,

the 1st respondent mortgaged its various assets in favour of the

Corporation. On the 1st respondent's failure to pay the due amount

along with interest, the Corporation on March 19, 1998 took over the

mortgaged property comprising land, building and machinery in

exercise of its power under Section 29 of the State Financial

Corporations Act, 1951 (for short, `1951 Act').

4. The 1st respondent (hereinafter referred to as `plaintiff'),

on February 17, 2001, filed a suit for declaration, mandatory

injunction and other reliefs against the Corporation - 2nd respondent

in the Court of Civil Judge (Junior Division), Chandigarh. Inter alia,

the plaintiff prayed that the takeover of its assets and all subsequent

sale proceedings by the Corporation be declared illegal, null and

2

void and inoperative; the direction be issued to the Corporation to

charge interest at the rate of 12.5 per cent per annum (prevailing

rate) on the loan from the date of commencement of production to

the date of takeover and the Corporation be also directed to restore

back the possession of the suit property to it.

5. The Corporation (sole defendant) in the suit traversed

the plaintiff's claim and set up the plea that plaintiff could not pay the

due amount under the loan despite repeated notices necessitating

the action under Section 29 of the 1951 Act. The Corporation

asserted that fair procedure was followed and no illegality was

committed by it in proceeding under Section 29 of the 1951 Act. The

Corporation also raised objections regarding the maintainability of

the suit on the grounds of limitation and jurisdiction of the Civil Court.

6. The trial court having regard to the pleadings of the

parties framed issues (six in all) on July 19, 2006. Issue no. 1 was

to the following effect:

"Whether impugned action of defendant is illegal

and if it is proved, whether plaintiff is entitled for

decree of declaration and mandatory injunction?"

The burden to prove the above issue was kept on the plaintiff.

3

7. Thereafter, the suit was fixed for the evidence of the

plaintiff on November 1, 2006. However, no evidence was let in on

that day. The matter was then adjourned for the evidence of the

plaintiff on March 2, 2007. On that day also the plaintiff did not

produce evidence and the matter was adjourned to May 10, 2007.

On May 10, 2007 again plaintiff did not produce any evidence. The

trial court was, thus, constrained to proceed under Order XVII Rule

3(a) of the Code of Civil Procedure, 1908 (for short, `CPC') and

passed the following order :

"Matter is fixed for conclusion of the plaintiff's evidence

being last opportunity. No plaintiff's witness is present

and neither any cogent reason has been put forth for

such failure fully knowing the fact that today is the third

effective opportunity for conclusion of plaintiff's

evidence. Hence, matter is ordered to be proceeded

under Order 17, Rule 3(a) C.P.C. and plaintiff's

evidence is deemed to be closed. Heard. To come up

after lunch for orders."

8. On May 10, 2007 itself in light of the above order, the

trial court dismissed the suit in its post lunch session.

9. After dismissal of the suit, the Corporation sold the

mortgaged property by auction to the appellant for Rs. 64.60 lac

(Sixty four lac and sixty thousand only).

4

10. Against the judgment and decree of the trial court

passed on May 10, 2007, the plaintiff preferred civil appeal in the

court of Additional District Judge, Chandigarh. In the appeal, the

plaintiff made an application on December 21, 2007 for impleadment

of the appellant and its partners as respondent nos. 2 to 5. The

application for impleadment was granted and the appellant and

respondent nos. 3 to 5 herein were added as parties.

11. The Additional District Judge, Chandigarh after hearing

the parties, dismissed the civil appeal on March 20, 2008.

12. Being not satisfied with the concurrent judgment and

decree of the two courts below, the plaintiff preferred second appeal

before the High Court which, as noticed above, has been allowed by

the Single Judge on September 20, 2010 and the suit has been

remanded to the trial court for fresh decision in accordance with law.

13. The judgment of the High Court is gravely flawed and

cannot be sustained for more than one reason. In the first place,

the High Court, while deciding the second appeal, failed to adhere to

the necessary requirement of Section 100 CPC and interfered with

the concurrent judgment and decree of the courts below without

5

formulating any substantial question of law. The formulation of

substantial question of law is a must before the second appeal is

heard and finally disposed of by the High Court. This Court has

reiterated and restated the legal position time out of number that

formulation of substantial question of law is a condition precedent

for entertaining and deciding a second appeal. Recently, in the

case of Umerkhan v. Bismillabi @ Babulal Shaikh and Ors. (Civil

Appeal No. 6034 of 2011) decided by us on July 28, 2011, it has

been held that the judgment of the High Court is rendered patently

illegal, if a second appeal is heard and judgment and decree

appealed against is reversed without formulating the substantial

question of law. The legal position with regard to second appellate

jurisdiction of the High Court was stated by us thus:

"13. In our view, the very jurisdiction of the High Court in

hearing a second appeal is founded on the formulation of

a substantial question of law. The judgment of the High

Court is rendered patently illegal, if a second appeal is

heard and judgment and decree appealed against is

reversed without formulating a substantial question of law.

The second appellate jurisdiction of the High Court under

Section 100 is not akin to the appellate jurisdiction under

Section 96 of the Code; it is restricted to such substantial

question or questions of law that may arise from the

judgment and decree appealed against. As a matter of

law, a second appeal is entertainable by the High Court

only upon its satisfaction that a substantial question of law

is involved in the matter and its formulation thereof.

Section 100 of the Code provides that the second appeal

6

shall be heard on the question so formulated. It is,

however, open to the High Court to reframe substantial

question of law or frame substantial question of law afresh

or hold that no substantial question of law is involved at

the time of hearing the second appeal but reversal of the

judgment and decree passed in appeal by a court

subordinate to it in exercise of jurisdiction under Section

100 of the Code is impermissible without formulating

substantial question of law and a decision on such

question. This Court has been bringing to the notice of the

High Courts the constraints of Section 100 of the Code

and the mandate of the law contained in Section 101 that

no second appeal shall lie except on the ground

mentioned in Section 100, yet it appears that the

fundamental legal position concerning jurisdiction of the

High Court in second appeal is ignored and overlooked

time and again. The present appeal is unfortunately one

of such matters where High Court interfered with the

judgment and decree of the first appellate court in total

disregard of the above legal position."

14. Unfortunately, the High Court failed to keep in view the

constraints of second appeal and overlooked the requirement of the

second appellate jurisdiction as provided in Section 100 CPC and

that vitiates its decision.

15. Second, and equally important, the High Court upset the

concurrent judgment and decree of the two courts on misplaced

sympathy and non - existent justification. The High Court observed

that the stakes in the suit being very high, the plaintiff should not be

non-suited on the basis of no evidence. But, who is to be blamed for

this lapse? It is the plaintiff alone. As a matter of fact, the trial court

7

had given more than sufficient opportunity to the plaintiff to produce

evidence in support of its case. As noticed above, after the issues

were framed on July 19, 2006, on three occasions, the trial court

fixed the matter for the plaintiff's evidence but on none of these

dates any evidence was let in by it. What should the court do in

such circumstances? Is the court obliged to give adjournment after

adjournment merely because the stakes are high in the dispute?

Should the court be a silent spectator and leave control of the case

to a party to the case who has decided not to take the case forward?

It is sad, but true, that the litigants seek - and the courts grant -

adjournments at the drop of the hat. In the cases where the judges

are little pro-active and refuse to accede to the requests of

unnecessary adjournments, the litigants deploy all sorts of methods

in protracting the litigation. It is not surprising that civil disputes drag

on and on. The misplaced sympathy and indulgence by the

appellate and revisional courts compound the malady further. The

case in hand is a case of such misplaced sympathy. It is high time

that courts become sensitive to delays in justice delivery system and

realize that adjournments do dent the efficacy of judicial process and

if this menace is not controlled adequately, the litigant public may

lose faith in the system sooner than later. The courts, particularly

8

trial courts, must ensure that on every date of hearing, effective

progress takes place in the suit.

16. No litigant has a right to abuse the procedure provided in

the CPC. Adjournments have grown like cancer corroding the entire

body of justice delivery system. It is true that cap on adjournments

to a party during the hearing of the suit provided in proviso to Order

XVII Rule 1 CPC is not mandatory and in a suitable case, on

justifiable cause, the court may grant more than three adjournments

to a party for its evidence but ordinarily the cap provided in the

proviso to Order XVII Rule 1 CPC should be maintained. When we

say `justifiable cause' what we mean to say is, a cause which is not

only `sufficient cause' as contemplated in sub-rule (1) of Order XVII

CPC but a cause which makes the request for adjournment by a

party during the hearing of the suit beyond three adjournments

unavoidable and sort of a compelling necessity like sudden illness of

the litigant or the witness or the lawyer; death in the family of any

one of them; natural calamity like floods, earthquake, etc. in the area

where any of these persons reside; an accident involving the litigant

or the witness or the lawyer on way to the court and such like cause.

The list is only illustrative and not exhaustive. However, the absence

of the lawyer or his non-availability because of professional work in

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other court or elsewhere or on the ground of strike call or the change

of a lawyer or the continuous illness of the lawyer (the party whom

he represents must then make alternative arrangement well in

advance) or similar grounds will not justify more than three

adjournments to a party during the hearing of the suit. The past

conduct of a party in the conduct of the proceedings is an important

circumstance which the courts must keep in view whenever a

request for adjournment is made. A party to the suit is not at liberty

to proceed with the trial at its leisure and pleasure and has no right

to determine when the evidence would be let in by it or the matter

should be heard. The parties to a suit - whether plaintiff or

defendant - must cooperate with the court in ensuring the effective

work on the date of hearing for which the matter has been fixed. If

they don't, they do so at their own peril. Insofar as present case is

concerned, if the stakes were high, the plaintiff ought to have been

more serious and vigilant in prosecuting the suit and producing its

evidence. If despite three opportunities, no evidence was let in by

the plaintiff, in our view, it deserved no sympathy in second appeal

in exercise of power under Section 100 CPC. We find no

justification at all for the High Court in upsetting the concurrent

judgment of the courts below. The High Court was clearly in error in

10

giving the plaintiff an opportunity to produce evidence when no

justification for that course existed.

17. In the result, the appeal is allowed and judgment and

order of the High Court passed on September 20, 2010 is set aside.

There shall be no order as to costs.

.........................J.

(Aftab Alam)

.......................... J.

(R.M. Lodha)

NEW DELHI.

AUGUST 30, 2011.

11

whether the gift by father from joint family is valid – “Gifts of affection- The father’s power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v Narayana (1922 (49) IA 168) the Privy Council held that “the father has undoubtedly the power under the 21 « advocatemmmohan

whether the gift by father from joint family is valid – “Gifts of affection- The father’s power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v Narayana (1922 (49) IA 168) the Privy Council held that “the father has undoubtedly the power under the 21 « advocatemmmohan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 598 OF 2005

Baljinder Singh ....

Appellant

Versus

Rattan Singh .....Respondent

(With C.A. Nos. 605/2005 and 601/2005)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. These appeals are directed against a common judgment

of a learned Single Judge of the Punjab and Haryana High

Court disposing of three Second Appeals filed under Section

100 of the Code of Civil Procedure, 1908 (in short `CPC'). All

the three appeals and the cross objections filed related to

certain acts of one Shivdev Singh. All the appeals and cross

objections were dismissed except with certain modifications.

2. The background facts in a nutshell are as follows:

Shiv Dev Singh was allotted land measuring 811 kanal

14 marlas out of which he effected sale of 440 kanals earlier.

The said sale is not disputed in the present proceedings. Shiv

Dev Singh earlier married Harbans Kaur and from the said

wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four

daughters who are also plaintiffs along with Lt. Col. Rattan

Singh in Civil Suit No.172 of 3.9.1994 were born. Smt.

Harbans Kaur died in the year 1986. Shiv Dev Singh

thereafter married Iqbal Kaur and from wedlock of Shiv Dev

Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur,

Sukhjinder Kaur and Baljinder Singh and Balwinder Singh

were born. The dispute in these appeals is in respect of the

land measuring 337 kanals 10 marlas. Shiv Dev Singh

executed a gift deed on 19.12.1962 in favour of Jaspal Singh,

one of the sons of Shiv Dev Singh in respect of land measuring

10 kanals 5 marlas. The said gift deed was disputed by his

another son Lt. Col. Rattan Singh and four daughters in Civil

Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of

2000 before the High Court arose out of the said suit.

The said suit was for declaration to the effect that they

are co owners in joint possesson to the extent of = share, and

that the property in the hands of Shiv Dev Singh was

ancestral. In the written statement, the defendant denied that

the land was ancestral. It was asserted that same was self

acquired property of Shiv Dev Singh. It was pleaded that since

19.12.1962 when Shiv Dev Singh gifted the land in his favour,

possession was delivered to him and ever since he is

continuing in possession as owner of the suit land. Jaspal

Singh, the donee, was minor at the time of execution of gift

deed. The learned trial Court recorded a finding that the suit

land was ancestral in the hands of Shiv Dev Singh and that

alienation of ancestral property effected by father of a Hindu

governed by Mitakshara law could be challenged in terms of

Article 109 of the Limitation Act, 1963 (in short the `Limitation

Act') within 12 years from the date when alienee takes

possession of the property alienated. Since Jamabandi for the

year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79

(Exhibit D-9), Jamabandi for the year 1983-84 (Exhibit D-10)

record Jaspal Singh as a person in possession, the Court

returned a finding that Jaspal Singh came into possession

more than 12 years before the filing of the suit and thus, the

suit is beyond the period of limitation.

Shiv Dev Singh also executed two separate sale deeds on

25.2.1980 and 27.3.1980 in respect of land measuring 73

kanals 11 marlas in favour of Pritam Kaur, widow of Thakur

Singh, who happened to be sister of Iqbal Singh, wife of Shiv

Dev Singh. After the death of Pritam Kaur on 1.4.1990, the

same devolved upon defendant Baljinder Singh, minor son of

Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will

dated 30.1.1984. The said sale deeds were disputed by Lt.Col.

Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second

Appeal No.2549 of 2000 before the High Court arose out of

said suit.

In the said suit, the challenge is to the sale deeds dated

25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold

the land in favour of Pritam Kaur, his sister-in-law through

his attorney Jaspal Singh. In the said suit it was alleged that

the suit land was ancestral having been inherited from his

forefathers and that the sale deeds were without legal

necessity and thus null and void. It was alleged that the

defendant, son of Jaspal Singh is in illegal and unauthorized

possession of the suit land without any legal right for the last

four years. The plaintiff alleged that the cause of action

accrued in the year 1993 when the share of compensation

amount in respect of the land acquired by the Improvement

Trust was not allowed to be withdrawn by the plaintiff at the

instance of Iqbal Kaur, second wife of Shiv Dev Singh. The

defendant in written statement pleaded that the sales in

question are not in any way illegal, without consideration

and/or void. Shiv Dev Singh was the sole owner of the suit

land. The suit land remained in possession of Smt. Pritam

Kaur as owner ever since the sale in her favour. It was alleged

that cause of action, if any, arose to the plaintiff to challenge

the alienation on the date of execution of the sale deeds. The

learned trial Court dismissed the suit holding that the suit is

barred by limitation governed by Article 109 of the Limitation

Act as revenue record since Jamabandi 1983-84 (Exhibit D-5)

records the name of Pritam Kaur in the column of ownership

and cultivation. The said Jamabandi entry was recorded after

mutation in favour of Pritam Kaur and was sanctioned in the

year 1980.

Shiv Dev Singh also executed a registered will dated

1.8.1969 in favour of his wife Iqbal Kaur. At the time of death

of Shiv Dev Singh on 9.6.1988 he was owner of land

measuring 107 kanals 13 Marlas. Lt. Col. Rattan Singh and

his four sisters filed suit for declaration to claim = share of

the said land on the basis of natural succession and for joint

possession in Civil Suit No.170 of 3.9.1994. Regular Second

Appeal No.2548 of 2000 before the High Court arose out of the

said suit.

The said suit was for declaration and in the alternative

for joint possession filed, inter alia, on the ground that they

are owners of = share of the land. It was averred that Shiv

Dev Singh son of Sahib Singh was owner of 107 kanals 13

marlas of land which was inherited from his forefathers and it

was ancestral. Shiv Dev Singh died on 9.6.1988 leaving

behind plaintiffs and defendants Nos. 1 and 4 to 6 and Smt.

Lakhwinder Kaur as his legal heirs. Lakhwinder Kaur died on

18.6.1993 leaving behind defendants Nos. 2 and 3 as her legal

heirs. It was averred that defendant no.1 has claimed a will in

her favour. The deceased Shiv Dev Singh has not executed

any valid will in favour of defendant No.1 and the alleged will

is false and fabricated. It was further alleged that the plaintiffs

have succeeded to the estate of Shiv Dev Singh to the extent of

= share and the defendants succeeded to the remaining =

share of his estate. Defendant No.1 relied upon will dated

1.8.1969 and claimed that she has become the exclusive

owner in possession of the suit land. In evidence, the

defendants produced son of the scribe and one of the attesting

witnesses of the will. The trial Court held that the said will is

proved to have been executed and is not surrounded by

suspicious circumstances. One of the reasons for coming to

such view by the trial Court was that Lt. Col. Rattan Singh

has got 8 acres of land earlier and thus, the plaintiffs cannot

make any grievance.

3. However, in three separate appeals, the first Appellate

Court reversed the findings recorded by the trial Court. The

first Appellate Court held that Civil Suit No.171 and 172 of

1994 are within the period of limitation as cause of action

arose to them when they were excluded from the Joint Hindu

Family property in the year 1992. However, in respect of the

will, the first Appellate Court held that it is surrounded by

suspicious circumstances and consequently decreed the suit

holding that the estate of Shiv Dev Singh will vest on the

coparceners Rattan Singh, Jaspal Singh and Iqbal Kaur wife of

Rattan Singh in equal shares and thus plaintiff Lt. Col. Rattan

Singh would have 1/3rd share and the defendants Jaspal

Singh and Iqbal Kaur would have 2/3rd share.

4. Aggrieved by the findings recorded by the learned First

Appellate Court, Second Appeals were filed.

5. The plaintiffs also filed cross objections in each of the

appeals claiming that the judgment and decree of the first

Appellate Court granting 1/3rd share to Rattan Singh is

incorrect as a matter of fact plaintiff Rattan Singh has =

share.

6. In Second Appeals the findings of the Courts below that

the land is joint Hindu Family coparcenary property was not

disputed. This fact was not disputed even before the learned

trial Court. It was also not disputed that the sale deeds were

executed without legal necessity and Shiv Dev Singh was not

competent to gift the property. However, what was disputed is

that the suit challenging alienation by way of gift in the year

1962 and sale deeds in the year 1980 by way of suit filed in

the year 1994 were clearly beyond the period of limitation as

prescribed under Article 109 of the Indian Limitation Act,

1963 (in short the `Limitation Act'). The first Appellate Court

had recorded a finding that the plaintiffs acquired knowledge

of alienation by way of gift and sale in the year 1992 after Lt.

Col. Rattan Singh retired from army. Learned counsel for the

appellants before the High Court disputed such finding as one

based upon perversity. It was that it is impossible to believe

that the gift deed executed in the year 1962 mutation of which

was recorded in the year 1967 came to the notice of the

plaintiffs only in the year 1992 since plaintiff Lt. Col. Rattan

Singh was visiting the village every year during his annual

leave. However, since the first Appellate Court has believed

the statement of the plaintiff to record a finding that he

acquired the knowledge of alienation of the year 1992, it

would a finding of fact. High Court was of the view that even if

a different view was possible to be taken it would not entitle

the High Court to take a different view in Second Appeal. The

finding recorded by the first Appellate Court was held to have

been arrived at after discussing the relevant oral and

documentary evidence. Therefore, the High Court proceeded

on the assumption that plaintiff Lt. Col. Rattan Singh came to

know about the alienation in the year 1992.

7. The High Court formulated following substantial

questions of law for consideration:

1. Whether the gift deed executed by Shiv Dev Singh

in favour of son Jaspal Singh on 19.12.1962 is void

or voidable?

2. Whether the sale deeds dated 25.2.1980 and

27.3.1980 executed by Shiv Dev Singh in favour of

Pritam Kaur, his sister in law, is void or voidable?

3. Whether the suit for possession is within the period

of limitation or such suit is barred by limitation in

terms of Article 109 of the Limitation Act, 1963?

4. Whether Will dated 1.8.1969 executed by deceased

Shiv Dev Singh in favour of his wife Iqbal Kaur is

proved to be duly executed and is not surrounded

by suspicious circumstances?

5. What will be the share of the plaintiffs in the suit

property consequent to the decision on the above

questions of law?

8. The genealogy as given below indicating the relationship

between the parties was taken note of by the High Court.

Shivdev Singh

Harbans Kaur - Wife Iqbal Kaur (wife) Pritam Kaur

(Sister of Iqbal)

____________________________________________________ _______________________________________________

! ! ! ! ! ! ! ! !

Rattan Gurbachan Manjit Kuldip Balwinder Jaspal Lakhwinder Sukhwinder Baljit

Singh Kaur Kaur Kaur Kaur Singh Kaur Kaur Kaur

(R-1 in (R-2 in (R-2 in (R-2 in (R-2 in (App.No (since (App.no.5 (App.No.

All C.A.No. C.A.No. C.A. C.A.No. 1 in C.A. deceased) in C.A. No. 6 in C.A.

Appeals ) 605 and 605 and 605 & 605 and No.605 605 and No. 605 and

601 of 601 of 601 of 601 of and App. App.No.4 App.No.5 in

2005) 2005) 2005) 2005) No.6 in in C.A. C.A.601 of

C.A.601 601 of 2005)

Of 2005) 2005)

___________________________

! !

Baljinder Singh Gurtej Singh

(App. In C.A. (App.No.2 in

No.598/2005) in C.A.605 and

App.No.1 in C.A

No.601 of 2005)

9. After analyzing the legal position and the applicable

Hindu Law the High Court inter alia came to the following

conclusions:

"In the judgment and decree passed by the

learned first Appellate Court holding that

Rattan Singh plaintiff will have 1/3rd share is

not sustainable as the share of Shiv Dev Singh

was excluded for the reason that Shiv Dev

Singh during his life time sold 50-60 acres of

land and, thus he ceased to have any share in

the suit land. The said reasoning is not

sustainable in law. The sale effected by Shiv

Dev Singh during his life time will diminish the

joint property of all the coparceners. Such sale

is not disputed and, therefore, such sale is for

the benefit of coparcenary body and, thus, it

cannot be said that such sale was out of the

share of Shiv Dev Singh alone. In terms of

Explanation 1 to Section 6 of the Hindu

Succession Act, 1956, the notional partition is

to be presumed immediately before the death

of Shiv Dev Singh. Therefore, Shiv Dev Singh

will have equal share within Rattan Singh,

Jaspal Singh and Iqbal Kaur.

Immediately before the death of Shiv Dev

Singh, the coparceners were Shiv Dev Singh

himself, Rattan Singh plaintiff, Iqbal Kaur (wife

of Shiv Dev Singh), and Jaspal Singh. The

married daughters from the first wife Harbans

Kaur or from the second wife Iqbal Kaur were

not coparceners and, thus not entitled to any

share. Thus, Shiv Dev Singh, Rattan Singh,

Jaspal Singh and Iqbal Kaur shall have 1/4th

share each as coparcener. One fourth share of

Shiv Dev Singh will fall equally to the share of

one son and four daughters from his first wife

Harbans Kaur one son and three daughters

from the second wife Iqbal Kaur and Iqbal

Kaur herself i.e. 1/4th share to each of the

legal heirs of Shiv Dev Singh at the time of his

death".

10. It was inter alia held that the deed of gift purported to

have been executed by Shivdev Singh in favour of Jaspal

Singh was surrounded by mysterious circumstances and was

not a genuine document. So far as the sale deeds in favour of

Pritam Kaur are concerned it was held that Article 65 of the

Limitation Act was applicable. While the challenge in the first

suit relating to the sale deeds was filed on 1.9.1994, the other

suits challenging the gift purported to have been made on

19.12.1962 and the will purported to have been executed on

1.8.1969 were filed on 3.9.1994.

11. In the present appeals, challenge to the High Court's

judgment was on various grounds. We shall deal with them

separately.

12. So far as the appeal relating to the effect of the sale deed

is concerned, it was submitted that the High Court had made

out a new case about applicability of Article 65 of the

Limitation Act, while the trial Court and the first Appellate

Court had proceeded on the basis that Article 109 was

applicable. Similarly, the basic issue was whether the sale

deed was void or voidable. So far as the appeal relating to

validity of the gift made by Shivdev Singh is concerned,

according to learned counsel, the relevant issue is whether he

made the gift and if the answer to the question is in the

affirmative, to what extent could he had made the gift. Here

again the question was whether the gift was void or voidable.

So far as the appeal relating to the validity of the Will is

concerned, it was submitted that the Courts below failed to

notice that there was nothing suspicious about execution of

the Will and the evidence on record clearly established that

the Will had been executed out of free will and was not tainted

in any way.

13. In response, learned counsel for the respondent

submitted that the High Court has analysed the legal and the

factual position in great detail and has rightly dismissed the

appeals.

14. The first issue in the appeals relates to the validity of the

sale deeds. Articles 65 and 109 operate in different fields. The

trial Court categorically found that Article 65 was not

applicable and Article 109 was applicable to the facts of the

case. The first Appellate Court in essence accepted that Article

109 was applicable, which provided for a period of 12 years to

set aside the alienation effected by a father from the date

when the alienee was in possession of the property. Though

the first Appellate court accepted that Article 109 was

applicable, yet it was held that the spirit of Article 109 is that

by taking over the possession of the land which is subject

matter of the suit the alienee inter alia gives a notice to the

persons governed by Mitakashara School of Law to agitate

their rights, if any. Otherwise, their remedy would become

barred by limitation. It was held that the starting point of

limitation would be somewhere in the year 1992 when he

came to know of the alienation made by the father.

Consequently, the cause of action accrued in the year 1992

when he gained knowledge about the existence and execution

of the sale deeds. Therefore, the period of 12 years as laid

down in Article 109 was to be reckoned from the year 1992

and since the suit had been filed in 1994 it is within the

period of limitation.

15. A bare perusal of the High Court's order it is seen that

the High Court proceeded on the basis that the applicable

Article is Article 65 and not Article 109. It is to be noted that

there was no issue framed about applicability of Article 65. On

the contrary, the issue framed related to the applicability of

Article 109. There was no pleading by the plaintiff about

applicability of Article 65. Even in the counter affidavit filed

before this Court in the concerned Civil Appeal, the categorical

stand is Article 110 is applicable. In para 8 of the counter

affidavit filed in Civil Appeal No.598 of 2005 it has been stated

that the suit of the respondent (plaintiff) is within time under

Article 110 and counting from the date of knowledge, the suit

filed is clearly within the period of limitation. The effect of

Exhibit D-11 and the deed on which the appellants placed

strong reliance has not been considered by the first Appellate

Court and it reversed the findings of the trial Court. On the

question of position relating to applicability of Article 109

there is practically no discussion by the learned counsel.

16. It is, therefore, crystal clear that the High Court

proceeded to decide the issue relating to period of limitation

by making out a new case for which there was no pleading

and even no question of law was framed.

17. The question whether the sale deed was void or voidable

has to be adjudicated in the light of principles set out by this

Court in several decisions. We shall deal with this aspect in

detail while considering the appeal relating to the gift.

18. In Thamma Venkata Subbamma (dead) by Lrs. V.

Thamma Rattamma and Others (1987 (3) SCC 294) it was

observed as follows:

"12. There is a long catena of decisions

holding that a gift by a coparcener of his

undivided interest in the coparcenary property

is void. It is not necessary to refer to all these

decisions Instead, we may refer to the

following statement of law in Mayne's Hindu

Law, eleventh Edn., Article 382:

"It is now equally well settled

in all the Provinces that a gift or

devise by a coparcener in a

Mitakshara family of his undivided

interest is wholly invalid....A

coparcener cannot make a gift of his

undivided interest in the family

property, movable or immovable,

either to a stranger or to a relative

except for purposes warranted by

special texts.

13. We may also refer to a passage from

Mulla's Hindu Law, fifteenth edn., Article 258,

which is as follows:

Gift of undivided interest. - (1)

According to the Mitakshara law as

applied in all the States, no

coparcener can dispose of his

undivided interest in coparcenary

property by gift. Such transaction

being void altogether there is no

estoppel or other kind of personal

bar which precludes the donor

from asserting his right to recover

the transferred property. He may,

however, make a gift of his interest

with the consent of the other

coparceners.

14. It is submitted by Mr. P. P. Rao, learned

counsel appearing on behalf of the

respondents, that no reason has been given in

any of the above decisions why a coparcener is

not entitled to alienate his undivided interest

in the coparcenary property by way of gift. The

reason is, however, obvious. It has been

already stated that an individual member of

the joint Hindu family has no definite share in

the coparcenary property. By an alienation of

his undivided interest in the coparcenary

property, a coparcener cannot deprive the

other coparceners of their right to the

property. The object of this strict rule against

alienation by way of gift is to maintain the

jointness of ownership and possession of the

coparcenary property. It is true that there is

no specific textual authority prohibiting an

alienation by gift and the law in this regard

has developed gradually, but that is for the

purpose of preventing a joint Hindu family

from being disintegrated.

17. It is, however, a settled law that a

coparcenary can make a gift of his undivided

interest in the coparcenary property to another

coparcener or to a stranger with the prior

consent of all other coparceners. Such a gift

would be quite legal and valid".

19. We may also refer to a passage from Mulla's Hindu Law,

Seventeenth Edn., (Article 258), which is as follows:

"Gift of undivided interest- (1)According to

Mitakshara law as applied in all the States, no

coparcener can dispose of his undivided

interest in coparenary property by gift. Such

transaction being void altogether there is no

estoppel or other kind of personal bar which

precludes the donor from asserting his right to

recover the transferred property. He may,

however, make a gift of his interest with the

consent of the other coparcener".

20. In Mayne's Hindu Law, XIV Edn. It has been noted as

follows:

"Gifts of affection- The father's power to make

gifts through affection within reasonable limits

of ancestral movable property has been fully

recognized. In Ramalinga v Narayana (1922

(49) IA 168) the Privy Council held that "the

father has undoubtedly the power under the

Hindu Law of making within reasonable limits,

gifts of movable property to a daughter".

By Will- But such gifts through affection of

joint family property when they are by will, are

invalid, because the right of the coparceners

vests by survivorship at the moment of the

testator's death, and there is accordingly

nothing upon which the will can operate. In

Subbarami v. Ramamma ((1920 (43) Mad 824)

the Madras High Court held that a will made

by a Hindu father bequeathing certain family

properties for the maintenance of his wife was

invalid as against his infant son through it

would have been a proper provision if made by

him, during his lifetime. This may be in a

sense right. There is however no compelling

logic in not regarding wills "as gifts to take

effect upon death at least as to the property

which they can transfer and the persons to

whom it can be transferred". Convenience

would seem rather to point to the extension to

the sphere of Hindu Law of the general

principle of jurisprudence that what a man

can give by act inter vivos, he can give by will".

21. In view of the decision in Venkata Subbamma's case

(supra), the decision of the High Court so far the gift is

concerned, does not warrant any interference.

22. So far as the question whether the gift is void or voidable

much depends on the factual scenario. The distinction

between void or voidable is summarized as follows:

"De Smith, Woolf and Jowell in their treatise

Judicial Review of Administrative Action, 5th,

para 5-044, have summarized the concept of

void and voidable as follows:

"Behind the simple dichotomy of

void and voidable acts (invalid and

valid until declared to be invalid)

lurk terminological and conceptual

problems of excruciating

complexity. The problems arose

from the premise that if an act,

order or decision is ultra vires in the

sense of outside jurisdiction, it was

said to be invalid, or null and void.

If it is intra vires it was, of course,

valid. If it is flawed by an error

perpetrated within the area of

authority or jurisdiction, it was

usually said to be voidable; that is,

valid till set aside on appeal or in

the past quashed by certiorari for

error of law on the face of the

record."

Clive Lewis in his work Judicial Remedies in

Public Law at p.131 has explained the

expressions "void and voidable" as follows:

"A challenge to the validity of an act

may be by direct action or by way of

collateral or indirect challenge. A

direct action is one where the

principal purpose of the action is to

establish the invalidity. This will

usually be by way of an application

for judicial review or by use of any

statutory mechanism for appeal or

review. Collateral challenges arise

when the invalidity is raised in the

course of some other proceedings,

the purpose of which is not to

establish invalidity but where

questions of validity become

relevant."

23. In Sunil Kumar and Anr. v. Ram Parkash and Ors. (AIR

1988 SC 576) it was noted in paras 23 and 24 as follows:

23. The managing member or karta has not

only the power to manage but also power to

alienate joint family property. The alienation

may be either for family necessity or for the

benefit of the estate. Such alienation would

bind the interests of all the undivided

members of the family whether they are adults

or minors. The oft quoted decision in this

aspect, is that of the Privy Council in

Hanuman Parshad v. Mt. Babooee, [1856] 6

M.I.A. 393. There it was observed at p. 423: (1)

"The power of the manager for an infant heir to

charge an estate not his own is, under the

Hindu law, a limited and qualified power. It

can only be exercised rightly in case of need,

or for the benefit of the estate." This case was

that of a mother, managing as guardian for an

infant heir. A father who happens to be the

manager of an undivided Hindu family

certainly has greater powers to which I will

refer a little later. Any other manager however,

is not having anything less than those stated

in the said case. Therefore, it has been

repeatedly held that the principles laid down

in that case apply equally to a father or. other

coparcener who manages the joint family

estate.

Remedies against alienations:

24. Although the power of disposition of joint

family property has been conceded to the

manager of joint Hindu family for the reasons

aforesaid, the law raises no presumption as to

the validity of his transactions. His acts could

be questioned in the Court of law. The other

members of the family have a right to have the

transaction declared void, if not justified.

When an alienation is challenged as being

unjustified or illegal it would be for the alienee

to prove that there was legal necessity in fact

or that he made proper and bona fide enquiry

as to the existence of such necessity. It would

be for the alienee to prove that he did all that

was reasonable to satisfy himself as to the

existence of such necessity. If the alienation is

found to be unjustified, then it would be

declared void. Such alienations would be void

except to the extent of manager's share in

Madras, Bombay and Central Provinces. The

purchaser could get only the manager's share.

But in other provinces, the purchaser would

not get even that much. The entire alienation

would be void. [Mayne's Hindu Law 11th ed.

para 396].

24. In Sadasivam v. K. Doraisamy (AIR 1996 SC 1724) it was

found that when the father has executed sale deed in favour of

a near relative and the intention to repay debt or legal

necessity has not been proved as a sham transaction.

25. In Words and Phrases by Justice R.P. Sethi the

expression `void' and `'voidable' read as under:

"Void- Black's Law Dictionary gives the

meaning of the word "void" as having different

nuances in different connotations. One of

them is of course "null or having no legal force

or binding effect". And the other is "unable in

law, to support the purpose for which it was

intended". After referring to the nuances

between void and voidable the lexicographer

pointed out the following: "The word `void' in

its strictest sense, means that which has no

force and effect, is without legal efficacy, is

incapable of being enforced by law, or has no

legal or binding force, but frequently the word

is used and construed as having the more

liberal meaning of `voidable'. The word `void' is

used in statute in the sense of utterly void so

as to be incapable of ratification, and also in

the sense of voidable and resort must be had

to the rules of construction in many cases to

determine in which sense the legislature

intended to use it. An act or contract neither

wrong in itself nor against public policy, which

has been declared void by statute for the

protection or benefit of a certain party, or class

of parties, is voidable only". (Pankan Mehra

and Anr. v. State of Maharashtra and Ors.

(2000 (2) SCC 756).

Per Fazal Ali, J- The meaning of the word

"void" is stated in Black's Law Dictionary (3rd

Edn.) to be as follows:

"Null and void; ineffectual;

nugatory; having no legal force or

binding effect; unable in law to

support the purpose for which it

was intended; nugatory and

ineffectual so that nothing can cure

it; not valid". Keshavan Madhava

Menon v. State of Bombay (1951

SCR 228).

The expression "void" has several facets.

One type of void acts, transactions, decrees

are those which are wholly without

jurisdiction, ab initio void and for avoiding the

same no declaration is necessary, law does not

take any notice of the same and it can be

disregarded in collateral proceeding or

otherwise. Judicial Review of Administration

Action, 5th Edn., para 5-044 (See also Judicial

Remedies in Public Law at page 131;

Dhurandhar Prasad Singh v. Jai Prakash

University and Ors. (2001 (6) SCC 534)

The other type of void act, e.g. may be

transaction against a minor without being

represented by a next friend. Such a

transaction is a good transaction against the

whole world. So far as the minor is concerned,

if he decides to avoid the same and succeeds

in avoiding it by taking recourse to appropriate

preceding the transaction becomes void from

the very beginning. Another type of void act

may be one, which is not a nullity, but for

avoiding the same, a declaration has to be

made. (See Government of Orissa v Ashok

Transport Agency and Ors (2002 (9) SCC 28)

The meaning to be given to the word

"void" in Article 13 of the Constitution is no

longer res integra, for the matter stands

concluded by the majority decision of the

Court in Keshavan Madhava Menon v. The

State of Bombay (1951) SCR 228. We have to

apply the ratio decidendi in that case to the

facts of the present case. The impugned Act

was a existing law at the time when the

Constitution came into force. That existing law

imposed on the exercise of the right

guaranteed in the citizens of the India by

Article 19(1)(g) restrictions which could not be

justified as reasonable under clause (6) as it

then stood and consequently under Article 13

(1) that existing Law became void "to the

extent of such inconsistency". As explained in

Keshavan Madhava Menon's case (supra) the

Law became void in toto or for all purposes or

for all times or for all persons but only "to the

extent of such inconsistency", that is to say, to

the extent it became inconsistent with the

provisions of Part III which conferred the

fundamental rights on the citizens. It did not

become void independently of the existence of

the rights guaranteed by Part III. (See Bhikaji

Narain Dhakras and Ors. v. The State of

Madhya Pradesh and Anr. (1955 (2) SCR 589).

The word "void" has a relative rather than

an absolute meaning. It only conveys the idea

that the order is invalid or illegal. In

Halsbury's Laws of England, 4th Edn. (Re-

issue) Vol. 1(1) in para 26, p.31 it is stated

thus: "If an act of decision, or an order or

other instrument is invalid, it should, in

principle, be null and void for all purposes;

and it has been said that there are no degrees

of nullity. Even though such an act is wrong

and lacking in jurisdiction, however, it

subsists and remains fully effective unless and

until it is set aside by a court of competent

jurisdiction. Until its validity is challenged, its

legality is preserved". (See State of Kerala v.

M.K. Kunhikannan Nambiar Manjeri

Manikoth, Naduvil (dead) and ors. (1996 (1)

SCC 435).

"Voidable act" is that which is a good act

unless avoided, e.g. if a suit is filed for a

declaration that a document is fraudulent, it is

voidable as the apparent state of affairs is the

real state of affairs and a party who alleges

otherwise is oblige to prove it. If it is proved

that the document is forged and fabricated

and a declaration to that effect is given, a

transaction becomes void from the very

beginning. There may be voidable transaction

which is required to be set aside and the same

is avoided from the day it is so set aside and

not any day prior to it. In cases, where legal

effect of a document cannot be taken away

without setting aside the same, it cannot be

treated to be void but would be obviously

voidable. Government of Orissa v. Ashok

Transport Agency and Ors. (2002 (9) SCC 28)".

26. So far as the appeal relating to Will is concerned, it is to

be noted that the Courts below including the High Court have

come to the conclusion that its execution is surrounded by

suspicious circumstances.

27. The defendants have relied upon will dated 1.8.1969

executed by Shiv Dev Singh in favour of his wife Iqbal Kaur.

Will Ex.D-1 is sought to be proved by DW-1 Sham Lal son of

Jitender Nath scribe of the Will and DW-2 Surinder Nath

Vohra, the attesting witness DW-1 Sham Lal has identified the

handwriting of his father and deposed that his father died in

the year 1993. DW-2 Surinder Nath Vohra has deposed that

the Will was executed by Shiv Dev Singh at Kharar in his

presence. At that time, Shiv Dev Singh was in sound disposing

mind. It has come on record that Dharam Singh, husband of

Lakhwinder Kaur daughter of Shiv Dev Singh was residing at

Chandigarh. Shiv Dev Singh used to stay with Dharam Singh

when he used to visit Chandigarh in connection with

litigation. However, the Will was not executed and registered

at Chandigarh but at Kharar. Surinder Nath Vohra is not

known to the testator but attested the Will at the asking of

Dharam Singh. Still further, in Will Exhibit D-1 there is no

reference about Rattan Singh who is none else but real son of

the testator. The first Appellate Court found that the

reasoning given by the learned trial Court that Shiv Dev Singh

gave 8 acres of land to Rattan Singh and, therefore, it was not

necessary for him to assign any reason was found to be

incorrect because the said land measuring 8 acres came to

him from his grand father as he was born after 4 daughters.

The first Appellate Court found that even if Shiv Dev Singh

had been given 8 acres, there is no reason as to why such

mention was not made in the Will. Consequently, the first

Appellate Court returned a finding that the execution of the

Will Exhibit D-1 is not proved and its execution is surrounded

by suspicious circumstances.

28. The finding recorded about the genuineness of the Will is

essentially factual. The Courts below have analysed the

factual position in great detail. Nothing infirm in the

conclusions could be shown by learned counsel for the

appellant.

29. In view of the aforesaid circumstances it would be proper

for the High Court to re-hear the appeal relating to

applicability of Article 129 of the Limitation Act

and to

decide the matter taking note of the factual position.

30. The other appeals are dismissed. The appeals are

accordingly disposed of.

...............................J.

(Dr. ARIJIT PASAYAT)

................................J.

(TARUN CHATTERJEE)

New Delhi,

August 5, 2008

advocatemmmohan

 whether the

gift in	 question had  become complete	under Section 123 of

the TP	Act? It	 is seen  from the recitals of the gift deed

that Motilal  Gopalji gifted the property to the respondent.

In other  words, It  was a  conditional gift.  There  is  no

recital of  acceptance nor is there any evidence in proof of

acceptance. Similarly,	he had	specifically stated that the

property would	remain in  his possession till he was alive.

Thereafter, the	 gifted property  would become	his property

and he	was entitled  to collect mesne profits in respect of

the existing  rooms  throughout	 his  life.  The  gift	deed

conferred only	limited right upon the respondent-donee. The

gift was  to become  operative after  the death of the donor

and he was  to be entitled to have the right to transfer the

property absolutely  by way  of gift or he would be entitled

to collect the mesne profits. It would thus be seen that the

donor had  executed a conditional gift deed and retained the

possession and	enjoyment of  the property  during his	life

time. The  recitals in	the cancellation  deed is consistent

with the  recitals in the gift deed. He had expressly stated

that the respondent had cheated him and he had not fulfilled

the  conditions	  subject  to	which  there   was  an	oral

understanding between  them. Consequently, he mentioned that

the conditional	 gift given  to him  was cancelled.  He also

mentioned that	the possession	and enjoyment  remained with

him during  his life  time. He	stated, "I  have to  execute

immediately this  deed of  cancelling the  conditional	gift

deed between  us. Therefore  I hereby cancel the conditional

gift deed 15-5-65 of Rs.9000/- in words rupees nine thousand

presented at the Serial no. 2153 on 15-5-65 in the office of

the Sub-Registrar  Baroda for  registration. Therefore,	 the

said conditional gift deed dated 15-5-65 is hereby cancelled

and meaningless. The property under the conditional gift has

not been and is not to be transferred in your name.: Thus he

expressly made	it clear  that he  did	not  hand  over	 the

possession  to	the  respondent	 nor  did  the	gift  become

complete during	 the life  time of  the donor. Thus the gift

had  become   ineffective  and	 inoperative.  It  was	duly

cancelled. The question then is: whether the appellant would

get the	 right to  the property?  It is	 not in dispute that

after the  cancellation deed  dated June  9, 1965 came to be

executed, duly	putting an  end to the conditional gift deed

dated May  15, 1965,  he executed  his last  will on May 17,

1965, and died two days thereafter.advocatemmmohan

Tuesday, August 30, 2011

whether the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate « advocatemmmohan

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Wednesday, August 31, 2011

advocatemmmohan

Tuesday, August 30, 2011

whether the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate « advocatemmmohan