Punjab-Haryana High Court
Gurjant Singh And Ors. vs Surjit Singh And Ors. on 18 December, 2003
Equivalent citations: AIR2004P&H257, (2004)138PLR469, AIR 2004 PUNJAB AND HARYANA 257, (2004) 3 PUN LR 469, (2004) 3 RECCIVR 93, (2004) 4 CIVLJ 786
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This Regular Second Appeal has been filed by the plaintiffs against the judgment and decree passed by both the Courts-below vide which their suit for permanent injunction restraining the defendants from dispossessing them or interfering in their possession in respect of the land in dispute, has been dismissed.
2. Briefly stated, the facts of the case are that one Gujjar Singh was the owner of 300 bighas of land. He was having three sons and two daughters. In the year 1957, in a family settlement vide gift deed dated 9-11-1957, he gifted 250 bighas of land out of the aforesaid land to his sons and grandsons. Vide said gift deed. 1/3rd share of the gifted land was given to Surjit Singh (son), 1/3rd to Nachattar Singh (father of the plaintiffs) and 1/3rd to the grandsons Chand Singh and Mukand Singh son of Bhan Singh (predeceased son). On the basis of the aforesaid gift deed, a mutation bearing No. 238 dated 21-1-1958 (Ex. DD) was sanctioned in favour of the aforesaid persons regarding the land measuring 250 bighas, as per the share Indicated above. The remaining 50 bighas of land was kept by the aforesaid Gujjar Singh for his own use. In the year 1966, Gujjar Singh gifted 72 bighas 17 biswas of agricultural land to his four grandsons, namely, Gurjant Singh, Bhagwant Singh, Kaur Singh and Amrik Singh, sons of Nachattar Singh vide registered gift deed dated 17-10-1966 Ex. PA. All the aforesaid persons, who are plaintiffs in the present suit, were minor at the time of the aforesaid gift. However, the gift deed was signed by their father Nachattar Singh being natural guardian on their behalf. In the year 1973, the aforesaid Gujjar Singh expired. In 1978, when the defendants, who are the sons, daughters and grandsons of Gujjar Singh, tried to interfere into the possession of the aforesaid donees (sons of Nachattar Singh), they filed the suit for permanent injunction restraining the defendants from dispossessing the plaintiffs or interfering in any manner in their possession regarding the suit land which was gifted to them by their grandfather vide registered gift deed dated 17-10-1966 (Ex. PA).
3. Only defendant Nos. 1, 3 and 6 contested the aforesaid suit. They admitted the inter se relationship of the plaintiffs and defendant with Gujjar Singh and his death in the year 1973. They also admitted the gift deed dated 9-11-1957 made by Gujjar Singh in favour of Surjit Singh. Nahattar Singh and the grandsons of Bhan Singh regarding 250 bighas of land. However, the gift made by Gujjar Singh in favour of the plaintiffs, on the basis of which the suit was filed, it was pleaded that the same was the result of fraud and undue influence exercised by Nachattar Singh over Gujjar Singh because the former was an old and feeble man and was under their influence for more than ten years before his death. It was pleaded that the alleged gift was never, accepted by the plaintiffs or by anyone on their behalf. Further, they were not in possession of the land in question and the same remained in possession of Gujjar Singh till his death. It was further pleaded that Gujjar Singh was not competent to gift the land in question which was a coparcenary property. On the pleadings of the parties, the following issues were framed by the trial Court :--
1. Whether Gujjar Singh made a valid gift deed dated 17-10-66 in favour of the plaintiff ? OPP
2. Whether the property in dispute was a coparcenary property. If so its effect ? OPD.
3. Whether the plaintiffs are entitled to the Injunction prayed for ? OPP
4. Relief.
4. On issue No. 1, firstly, it was held that out of 300 bighas of land, Gujjar Singh made the registered gift deed regarding 250 bighas of land in favour of his two sons and two grandsons of one of the predeceased son and he kept with him only 50 bighas of land for his own use to maintain himself. When he made the gift in question on 17-10-1966, he was not having in his possession 72 bighas 17 biswas of land which he had gifted by the impugned gift deed. Therefore, he was not competent to gift away the land in question measuring 72 bighas 17 biswas. Secondly, it was held that when the gift in question was made on 17-19-1966, the plaintiffs were minors and the said gift was not accepted by anyone nor the acceptance of the said gift has been proved on record on behalf of the minors either by Gurnam Kaur (PW. 1), who appeared as a natural guardian of the plaintiffs, or by Nachattar Singh (DW. 1), the father of the plaintiffs. Therefore, it was held that the gift deed dated 17-10-1966 was invalid.
5. On issue No. 2, it was held that though the 50% land in the hand of Gujjar Singh i.e. 300 bighas was ancestral property being inherited from his father and the remaining 50% property was non-ancestral, as the same was inherited by him from one Satoni, widow of Atra. However, on the basis of the admission made by the plaintiffs, Gurjant Singh in his cross-examination, this entire property in the hand of Gujjar Singh was held to be ancestral.
6. On issue No. 3, it has been held that the plaintiffs had failed to prove their possession on the suit property. In view of the aforesaid finding, the suit of the plaintiffs was dismissed.
7. The appeal filed by the plaintiffs against the aforesaid judgment was dismissed by the first Appellate Court. Hence, this Regular Second Appeal.
8. The learned counsel for the plaintiff-appellants raised the following points Involving substantial question of law :--
(a) When the registered gift-deed dated 17-10-1966, which was executed by donor Gujjar Singh in favour of his four minor grandsons (sons of Nachattar Singh) was signed by Nachattar Singh being natural guardian of the minors, then it amounts to acceptance of the gift on behalf of the minors, and contrary finding recorded by the Courts below in this regard is not sustain-able in the eyes of law.
(b) When out of 300 bighas of land owned by Gujjar Singh, 250 bighas of land was gifted by him in the year 1957 in favour of his sons and grandsons in equal share in a family settlement, and 50 bighas of land was kept by him for his own use and maintenance, then he was competent to alienate the said 50 bighas of land in any manner he liked and at least to that extent, the suit of the plaintiffs should-have been decreed.
(c) That the observation made by the Courts-below that the plaintiffs were not in possession of the suit land; is contrary to the documents available on the record and the said finding has been recorded only on the basis that the gift in question was not accepted by the minors in the year 1966. Hence, the same is not sustainable.
9. While addressing the arguments, the learned counsel for the appellants drawn the attention of this Court towards the registered gift-deed dated 17-10-1966 (Ex. PA) which was duly signed by Nachattar Singh as guardian of the minor (donees). The learned counsel for the appellant submitted that under Section 123 of the Transfer of Property Act, the gift can be accepted by donee himself or on his behalf. Since the plaintiffs-donees were minors at the time of the gift, they were not in capacity to accept the gift, therefore, the gift was accepted by their natural guardian Nachattar Singh by putting his signatures on the gift-deed. In this regard, learned counsel for the appellants referred to two decisions of this Court in Tirath v. Manmohan Singh, AIR 1981 Punj & Har 174 and Balwant Singh v. Mehar Singh, 1973 Pun LJ 668 : (AIR 1974 Punj & Har 130).
10. In Tirath's case (AIR 1981 Pun) & Har 174) (supra), it was held as under (para 10):-
"Where as gift-deed has been signed by the donees in token of their acceptance of the same, it is only the donor who can object to the delivery of possession. If the donor supports that a valid gift was made, then non-delivery of possession if any, becomes immaterial."
11. In Balwant Singh's case (AIR 1974 Punj & Har 130) (supra), it was held by this Court that if the donee had signed the gift-deed, it will amount to acceptance of the gift by the donee.
12. The leaned counsel for the appellants further submitted that merely because in the jamabandi for the year 1971-72, the land in question was shown in possession of Gujjar Singh, it cannot be presumed that the possession was not given to the plaintiffs. He further submitted that it has come in evidence that Gujjar Singh was residing with Nachattar Singh (father of the plaintiffs) and even as per the case of the defendants, he was being looked after by Nachattar Singh 10 years prior to his death. Therefore, it cannot be presumed that the gift was never accepted when particularly the gift-deed was signed by Nachattar Singh on behalf of the minors as a guardian. After acceptance of the gift, any person can cultivate the land for the benefit of the minors. From that, it cannot be presumed that the gift was not accepted.
13. The learned counsel for the appellants further submitted that at least the suit of the plaintiffs to the extent of 50 bighas, which comprises of three khasra numbers, which were not the subject matter of the earlier gift deed, should have been decreed. Regarding the possession, learned counsel for the appellants submitted that prior to the death of Gujjar Singh, the land in question was being cultivated by Gujjar Singh for the benefit of minors and thereafter his death, the land in question was shown in possession of Nachattar Singh. The possession of Nachattar Singh has already been established by the statements of Bhajan Singh (PW. 2) and Gurnam Kaur (P.W. 1).
14. On the basis of the aforesaid submissions, the learned counsel for the appellants submitted that both the Courts-below have erred in law while dismissing the suit of the plaintiffs.
15. On the other hand, learned counsel for the respondents submitted that in the Instant case the possession of the gift land was not handed over to the donee. In the revenue record, Gujjar Singh, donor was recorded in possession of the land in question, therefore, without handing over the possession, the gift was not complete. He submitted that it has not been established on record that the possession of the land which was gifted to the minors was handed over to them. He further submitted that there is no evidence on the record to show that who had accepted the gift on behalf of the minors. The mother of the donee, who appeared as a natural guardian in the suit, did not state that she had accepted the gift on behalf of the minors nor the father Nachattar Singh when appeared in the witness-box has so stated. The learned counsel further submitted that in view of the finding recorded by the first Appellate Court on issue No. 2 that the property in question was ancestral property in the hand of the donor, the gift made by him cannot be held to be valid. He further submitted that even though 50% property in the hand of donor Gujjar Singh came from Smt. Satoni, widow of Atra and the same was non-ancestral property in his hand but the said property was put into hotchpotch, therefore, the entire property will be deemed to be ancestral property in the hand of Gujjar Singh. As such he was not competent to make the gift of the part of the said property. In support of his contention, learned counsel for the respondents relied upon two decisions of this Court in Smt. Kesar Bai (Dead) through LRs v. Ran Singh, 2003 (3) Rec Civ R 94 : (AIR 1003 Pun) & Har 289) and Sher Singh v. Gamdoor Singh. 1997 (2) Hindu LR81 : (AIR 1997 SC 1333).
16. I have heard the arguments of the learned counsel for both the parties and have perused the record of the case.
17. In this appeal, two substantial questions of law are involved. Firstly, whether in the instant case the gift was deemed to be validly accepted on behalf of the minors when the said gift deed was signed by the natural guardian of the minors, and secondly, whether the 50 bighas of land kept by Gujjar Singh for his own use and maintenance in the year 1957 after gifting away 250 bighas of land to his three sons or his grandsons in equal share in a family settlement was competent to gift away the said land in any manner he likes. Undisputedly, when the gift-deed in question was executed by Gujjar Singh, donees were minors. On behalf of the minors, the said gift-deed was thumb marked by Nachattar Singh, their father being the natural guardian. The first appellate Court observed that Nachattar Singh was not examined to establish that he had signed/thumb marked the gift-deed on account of acceptance of the same on behalf of the minors. In my opinion, the said reasoning is not valid. Merely because Nachattar Singh was not examined to specifically depose that he had accepted the gift-deed on behalf of the minors, was not required if the gift-deed in question was duly signed/thumb marked by Nachattar Singh describing him as a guardian of the minors. That is sufficient as far as the acceptance of the gift is concerned for making a valid gift, as has been so held by this Court in Tirath's case (AIR 1981 Pun) & Har 174) (supra) and Balwant Singh's case (AIR 1974 Pun) & Har 130) (supra). Therefore, the gift deed in question was valid and the same cannot be held to be invalid on the ground that the gift in question was not accepted on behalf of the minors.
18. Secondly, the first appellate Court has held that the gift-deed in question was invalid because Gujjar Singh, donor was not competent to make the gift of 72 bighas 17 biswas of land as he had already disposed of 250 bighas of land by gift in favour of his sons and grandsons and he was having only 50 bighas of land on the date of the execution of the gift deed. Therefore, on the said date, he was not in a position to gift the land measuring 72 bighas 17 biswas.
19. In my opinion, the said finding of the first appellate Court is also erroneous. Admittedly, three Khasra numbers i.e. Khasra Nos. 267, 268 and 269 measuring 50 bighas were not the subject-matter of the earlier gift-deed made by Gujjar Singh in favour of his sons and grandsons. The said land was kept by Gujjar Singh for his personal use and cultivation in the earlier family settlement in which he had equally distributed his 250 bighas of land among his three sons. In my opinion to the extent of 50 bighas of land, the gift deed executed by Gujjar Singh in favour of the plaintiffs was valid. Merely because the gift-deed was executed for 72 bighas 17 biswas of land, the same cannot be invalid regarding the whole land including the aforesaid 50 bighas. I am of the opinion that the 50 bighas of land in the hand of Gujjar Singh at the time of execution of the gift-deed was not his ancestral property for two reasons. Firstly that in the year 1957. Gujjar Singh in a family settlement given 250 bighas of land out of 300 bighas to his sons and grandsons in equal shares and kept 50 bighas of land for self-use and maintenance, that was so done in a way of family partition and after the said partition, the 50 bighas land kept by him for his maintenance could not have been termed as his ancestral property. Secondly, that out of 300 bighas of land in the hand of Gujjar Singh, he received 150 bighas of land from Smt. Satoni, widow of Atra and the said land was not ancestral in his hand. In spite of evidence to the said effect available on the record, the Courts-below have held the land in question as ancestral land on the ground that the plaintiff Gurjant Singh and defendant Surjit Singh in their statements have admitted that the land in question was ancestral property of Gujjar Singh. Merely, on the basis of such admission, 50 bighas of land in the hand of Gujjar Singh cannot be held to be ancestral property particularly when the documentary evidence is available contrary to such admission on the record. Therefore, the finding recorded by the Courts below that on the date of execution of the gift-deed Gujjar Singh was not competent to alienate at least 50 bighas of land in favour of the plaintiffs, is not sustainable.
20. The Courts-below have also dismissed the suit of the plaintiffs on the ground that they were not in possession of the suit land. This finding of the trial Court is only based upon conjectures and the fact that the gift-deed executed by Gujjar Singh was never accepted by the minors or on their behalf by anybody else. Once the gift-deed in question was signed by Nachattar Singh as guardian on behalf of the minors, it will be deemed that valid gift-deed was executed and the possession was delivered. Merely because subsequently in the revenue record Gujjar Singh was recorded in possession of the aforesaid khasra numbers, it does not mean that the land was never gifted and possession was never delivered. In the instant case, a finding has been recorded by the Courts-below that the defendants were in possession of the land in question. He said finding was recorded only on the basis of Khasra girdawari for the year 1977-78 while totally ignoring the jamabandis for the years 1972-73. 1973-74 and 1974-75 wherein Nachattar Singh, father of the plaintiffs, was shown to be in cultivating possession. Since the plaintiffs were minors and they were cultivating the gifted land through their father Nachattar Singh, therefore, the finding recorded by the Courts-below contrary to these documents, is not valid. It is well settled that there is no presumption attached to a Khasra girdwari. However, contrary to it, presumption is attached to the jamabandis under Section 44 of the Punjab Lands Revenue Act. Thus, in my opinion, there is no valid material available on the record on the basis of which the finding recorded by the Courts-below regarding possession of the defendants on the suit land can be sustained.
21. In view of the aforesaid discussion, the appeal is allowed. The impugned judgments and decrees passed by both the Courts-below are set aside and suit of the plaintiffs to the extent of 50 bighas of land comprised in Khasra Nos. 267, 268 and 269 is hereby decreed and the defendants are restrained from dispossessing the plaintiffs or interfering in any manner in their pos-session on the said land.