Punjab-Haryana High Court
Kartar Singh vs Gurdial Singh on 6 November, 2007
Equivalent citations: (2008)151PLR395
Author: Nirmal Yadav
Bench: Nirmal Yadav
JUDGMENT Nirmal Yadav, J.
1. The present regular second appeal has been filed by Kartar Singh, etc. who are successor-in-interest of vendee-Wary am Singh, challenging the judgment and decree dated 24.1.1980 passed by Additional District Judge, Patiala vide which the judgment and decree of the trial Court dismissing the suit of the plaintiffs-Gurdial Singh, etc., has been modified to the extent that respondent-plaintiff Gurdial Singh was entitled to possession of suit property to the extent of 1/4th share.
2. The relevant facts relating to the present controversy, in brief, are that Ganda Singh, son of Chuhar Singh was the owner of agricultural land and house in dispute. He died on 13.10.1956. He was survived by Kartar Kaur, widow of his predeceased son Ar-jun Singh. Kartar Kaur had three children: one son Gurdial Singh and two daughters Gurdial Kaur and Jagir Kaur. Gurdial Singh had been adopted by his maternal grand-father Gokal Singh during the life time of his grand-father Gonda Singh. After the death of Gonda Singh, mutation No. 64l dated 13.1.1957 with regard to his inheritance, was sanctioned in favour of Kartar Kaur on the basis of statement made by her son Gurdial Singh (plaintiff). Kartar Kaur having acquired ownership right in the suit property, entered into agreement to sell with Waryam Singh, father of the present appellant. Thereafter, the sale-deed was executed in favour of Waryam Singh on 12.6.1957 for a consideration of Rs. 10,000/- and possession of the suit property was also delivered to him.
3. Gurdial Singh, respondent No. 1 filed a suit for possession on 14.6.1968 claiming half share in the suit property. It was, mainly, pleaded that plaintiff is Jat by caste and dependent on agriculture pursuit and is, thus, governed by the Punjab Customary Laws. It was further claimed that after the death of Ganda Singh on 13.10.1956, he succeeded his property to the extent of half share and his mother Kartar Kaur succeeded the remaining half share. It was further pleaded that the defendants, who are sons of Waryam Singh, vendee, had no right and interest in the suit property. He was entitled to half share in the suit property, which had been sold by Kartar Kaur in favour of Waryam Singh and thus, defendants have no right to be in possession of the suit property to the extent of his share. Jagir Kaur and Gurdial Kaur, daughters of Arjan Singh were allowed to be impleaded as plaintiffs vide orders dated 9.11.1976 and 9.12.1976, respectively.
4. The appellants-defendants contested the suit mainly, on the ground that plaintiffs being Hindus are governed by Hindu laws in the matter of inheritance, alienation, etc. It was further pleaded that Kartar Kaur had become exclusive owner of the suit property after the death of Ganda Singh and, therefore, she was competent to execute the sale deed dated 12.6.1957. It was pleaded that Waryam Singh, the predecessor-in-interest of the defendants, was a bona fide purchaser and sale made in his favour was protected under Section 41 of the Transfer of Property Act, 1882, as sale-deed was executed by ostensible owner Kartar Kaur for consideration and legal necessity. With regard to the suit qua Jagir Kaur and Gurdial Kaur, it was pleaded that the same is liable to be dismissed being time barred as they have been impleaded as late as in the year 1976. According to defendants, Waryam Singh had acted in good father taking all reasonable care to ascertain that Kartar Kaur had power to transfer the suit property.
5. After taking into consideration the facts and pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the suit is within time? OPP
2. Whether the property in dispute belonged to Ganda Singh, deceased? OPP
3. Whether Ganda Singh died on 13.10.1956? OPP
4. Whether the plaintiff is the grandson of Ganda Singh, deceased and his heir? OPP
5. Whether the parties are governed by custom in the matters of alienation, etc.? If so what that custom is? OPP
6. Whether the defendant Nos. 1 to 8 have become owners of the suit land by adverse possession? OPD
7. Whether the defendant Nos. 1 to 8 are vendees for consideration without notice and are protected under Section 41 of the Transfer of Property Act? OPD 7A. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD 7B. Whether the suit is property valued for purposes of court-fee and jurisdiction and proper court fee has been paid? OPP 7C. Whether the plaintiffs are estopped from filing the suit? OPD 7D. Whether the defendant Nos. 1 to 7 effected improvements in the suit land? If so to what extent and what amount? OPD
8. Relief.
Issue No. 1 was decided in favour of the defendants holding that the suit qua Gurdial Kaur and Jagir Kaur was time barred. While deciding issue Nos. 4, 5 and 7, it was held that parties were governed by Hindu Succession Act, 1956. As Gurdial Singh, plaintiff was adopted by his maternal grand-father Gokal Singh, his rights and interest in the property of the natural family had abrogated. It was further held that sale in dispute is for consideration by ostensible owner Kartar Kaur and therefore, the same was protected under Section 41 of the Transfer of Property Act, 1882. With these findings, the trial Court dismissed the suit vide judgment and decree dated 20.5.1977.
6. Aggrieved by the judgment and decree of the trial Court, the plaintiffs, filed appeal before the Additional District Judge, Patiala. The 1st Appellate Court affirmed the finding of the trial Court to the effect that suit qua Gurdial Kaur and Jagir Kaur was barred by time. The 1st Appellate Court, however, upheld the plaintiffs claim on the ground that his family was governed by customs in all matters including adoption and thus, his adoption by maternal grand-father did not debar him from inheriting the property of his natural father. However, plaintiff-Gurdial Singh was held to be entitled to 1/4th share in the property left by his natural grand-father Ganda Singh. The 1st Appellate Court rejected the claim of the appellants-defendants that they were bona fide purchasers and accordingly, it was held that the appellants were not protected under Section 41 of the Transfer of Property Act, 1882. The above finding of the 1st Appellate Court was mainly, on the ground that there was no evidence on the file to show that Waryam Singh, the vendee had made any enquiry about the competence of Kartar Kaur to execute the sale deed
7. It was, therefore, held that Kartar Kaur could not alienate the entire suit property as she was owner only to the extent of 1/4 share. It was further held that sale pertaining to the shares of Gurdial Kaur and Jagir Kaur also could not be challenged as the suit was dismissed on the ground of limitation and, therefore, plaintiff-Gurdial Singh only succeeded to the extent of 1/4th share in the suit property.
8. Aggrieved by the findings of the 1st Appellate Court, the defendants filed the present appeal. This appeal was earlier decided by this Court on 11.2.2004 whereby the appeal was allowed and the finding of the lower appellate Court on issue No. 4 was reversed and suit of the respondents-plaintiffs was dismissed. The respondents-plaintiffs filed Civil Appeal No. 1499 of 2006 (Arising out of S.L.P. (C) No. 11674 of 2004). The Apex Court remitted the matter to this Court on the ground that substantial question of law was not formulated.
9. Having heard learned Counsel for the parties, I find that the following substantial questions of law are involved in the present regular second appeal for determination by this Court:
(i) Whether Gurdiai Singh ceased to have any right of succession in the estate of Ganda Singh after his adoption by his maternal grand-father, namely, Gokal Singh or he could claim any right in the property of his natural family after coming into force the Hindu Succession Act, 1956?
(ii) Whether the sale made by Smt. Kartar Kaur widow of Arjan Singh and daughter-in-law of Ganda Singh in favour of Waryam Singh, predecessor-in interest of appellants, is protected under Section 41 of the Transfer of Property Act, 1882, especially in view of the documentary and oral evidence that Gurdiai Singh, son of Kartar Kaur had himself admitted in Report No. 124 dated 1.1.1957 with regard to mutation having been sanctioned in favour of his mother Kartar Kaur?
10. Shri S.N. Saini learned Counsel for the appellants argued that the lower Appellate court was not justified in holding that plaintiff was governed by customary laws in the matter of adoption and succession. Learned counsel argued that an adoptive child will be deemed to be the child of his/her adoptive father or mother for all purposes with effect from the date of adoption and from such date all ties of the child with the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. Sub-Clause (b) of Section 12 of the Hindu Adoptions and Maintenance Act, 1956 has, of course, provided that any property which vested in the adoptive child before the adoption shall continue to vest in such person subject to the obligation, if any, attached to the ownership of such property. But, the aforementioned proviso is not applicable to the facts of the present case as the plaintiff-respondent has not claimed in his pleadings that he had acquired any vested right in the property of his natural parents before execution of adoption deed. The plaintiff has himself admitted that he had been adopted by his maternal grand-father during the lifetime of his grand-father Ganda Singh. He has also admitted that he had inherited the property owned by his grand-father Gokal Singh. He has further admitted that Arjan Singh did not have any other son. However, there is nothing on record that Gurdial Singh had inherited any property from his natural grand-father Ganda Singh, as his father Arjan Singh pre-deceased Ganda Singh and inheritance of Ganda Singh had opened after the death of Arjan Singh on 13.10.1956. According to PVV-4 Bachan Singh, Gurdial Singh was adopted by Gokal Singh 40 years ago thus, there is no evidence that plaintiff Gurdial Singh had inherited any property from his natural parents.
11. It is an admitted position that Arjan Singh predeceased Ganda Singh and inheritance of Ganda Singh opened in 1956 and at that time the parties were governed by Hindu Laws. As discussed above as per Section 12 of the Hindu Adoptions and Maintenance Act, an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the adopted child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. In these circumstances, Kartar Kaur, wife of Arjan Singh, pre-deceased son of Ganda Singh, and her two daughter, namely, Gurdial Kaur and Jagir Kaur were the only surviving heirs to claim the estate of left by Ganda Singh. The claim of Jagir Kaur and Gurdial Kaur has since been dismissed and no appeal has been filed against the judgment of the 1st Appellate Court. Thus, the sale pertaining to their share in the suit property has become final and cannot be challenged.
12. The 1st Appellate Court has held plaintiff-Gurdial Singh to be the owner of 1/4th share in the suit property. However, in view of the above discussion, he is not entitled to any share in the property left by Ganda Singh. It may be mentioned here that along with present appeal, the appellants had moved an application for bringing on record some additional evidence viz. extract of report No. 124 dated 1.1.1957 regarding mutation No. 641 entered and sanctioned after the death of Ganda Singh. The said application was allowed by this Court vide order dated 28.1.2004. It would be worthwhile to reproduce the extract of the above report:
No. 124 - Regarding death mutation No. 641 dated 1.1.1957 corresponding to 18.9.2013 Tuesday.
This report has been lodged today by Mr. Gurdial Singh son of Arjan Singh caste Jat-resident of Village Chuharpur, in the presence of Ujagar Singh, Lambardar Simbron to the effect that his grand-father Shri Ganda Singh son of Chuhar Singh caste Jat, resident of Village Simbron dated 13.10.1956, has expired on 13.10.1956 on account of his natural death. As my father Arjan Singh died during the life time of my grand-father and I was adopted by some one of Village Chuharpur. My mother Kartar Kaur, widow, of Arjan Singh daughter-in-law of Ganda Singh, who had daughters, is the heir and in possession of the property. The property of Ganda Singh may be mutated in her favour, and there is no other rightful heir. Therefore, the report has been entered.
Report witnesses Lambardar Ujagar Singh of Village Simbron.
A perusal of the above report clearly shows that Gurdial Singh had himself admitted that he was adopted by someone of village Chuharpur and his mother was the heir and in possession of suit property of Ganda Singh. A prayer was also made that the said property be mutated in favour of his mother Kartar Kaur. It was further categorically stated that there was no other rightful heir. On the basis of said statement of plaintiff-Gurdial Singh, the mutation was sanctioned by the Tehsildar vide order dated 13.1.1957.
13. Learned counsel for the respondents argued that a perusal of the Miscellaneous Application would show that appellants were not having any knowledge about the Rapat Roznamcha No. 124 dated 1.1.1957 as well as the mutation, therefore, they cannot take the plea in the additional evidence, that they had made enquiries about the ownership of Kartar Kaur. In such circumstances, the vendee Waryam Singh and his successors-in-in-terest are not protected under the provisions of Section 41 of the Transfer of Property Act, 1882.
14. In the present case, the marginal witnesses of the sale-deed, namely, Sampuran Singh and Kartar Singh have proved the due execution of the sale-deed by Kartar Kaur in favour of Waryam Singh. Sampuran Singh categorically stated that at the time of registration of sale-deed Rs. 6,000/- were paid before the Sub-Registrar while Kartar Singh stated that property was purchased by Waryam Singh for a consideration of Rs. 10,000/-. A perusal of the sale-deed shows that it was executed for a legal necessity and Rs.4,000/- were received by the vendor at the time of agreement on 27.5.1957 and Rs. 1,223/- were deposited towards mortgage money. There is no evidence on record that the recital in the sale-deed is a result of any fraud or misrepresentation or undue influence. Moreover, the plaintiff has also failed to produce any cogent evidence that he is governed by customary laws in the matter of adoption and succession.
15. From the above discussion, it is abundantly clear that widow Kartar Kaur along with two daughters, Jagir Kaur and Gurdial Kaur of Arjan Singh, pre-deceased son of Ganda Singh, had in-herited the suit property. The suit qua Jagir Kaur and Gurdial Kaur, has already been dismissed. The plaintiff-Gurdial Singh had no right to challenge the sale-deed executed by Kartar Kaur in favour of Waryam Singh, predecessor-in-inter-est of appellants-defendants. It is well established that it is not the duty of the vendee to ascertain the nature of the property. He/she has to only ascertain the authority of the ostensible owner to transfer the property and that such owner shall act in good faith. The plaintiff failed to bring any evidence on record to prove that the vendee had no ascertained about the ostensible owner of the property nor there is any evidence that plaintiff-Gurdial Singh and the two other daughters-in Arjan Singh had ever raised any objection at the time of execution of sale-deed. Rather, Gurdial Singh, plaintiff, himself got recorded the statement in favour of his mother Kartar Kaur with regard to mutation of inheritance of Ganda Singh. Both the question of law formulated in this appeal are, thus, answered in favour of the appellants.
As a result of the above discussion, the appeal is accepted, the findings of the 1st Appellate Court are reversed and suit tiled by the plaintiff-Gurdial Singh stands dismissed.