Punjab-Haryana High Court
Gurdial Kaur vs Gian Kaur And Others on 9 May, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No. 239 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.239 of 2011 (O & M)
Date of Decision: 09.05.2014
Gurdial Kaur
... Appellant(s)
Versus
Gian Kaur and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. P. L.Singla, Advocate
for the appellant.
Paramjeet Singh, J. (Oral)
CM No.689-C of 2011 Having heard learned counsel for the appellant and in view of grounds mentioned in application, delay of 523 days in filing the appeal is condoned.
Application stands allowed.
RSA No.239 of 2011 This regular second appeal of plaintiff is directed against the Kumar Parveen 2014.05.13 15:42 I attest to the accuracy and integrity of this document RSA No. 239 of 2011 2 judgment and decree dated 01.04.2008 passed by learned Civil Judge (Jr. Divn.), Moga whereby suit for declaration filed by appellant-plaintiff has been dismissed and against the judgment and decree dated 06.02.2009 passed by learned Additional District Judge, Moga whereby appeal preferred by appellant-plaintiff has also been dismissed.
For convenience sake, hereinafter, reference to parties is being made as per their status in the suit.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the plaintiff claiming herself to be married daughter of defendant no.1 filed suit for declaration to the effect that transfer of joint Hindu family property i.e. land in dispute by defendant no.1 being karta, vide registered sale deed dated 15.05.1998, in favour of defendant no.2 was illegal, fraudulent, bogus and without consideration, therefore, liable to be set aside. She has also claimed partition and possession of suit land to the extent of 1/3rd share being one of the coparceners with defendants no.1 and 2. It was pleaded in plaint that defendant no.2 is real sister of the plaintiff. The plaintiff and defendants no.1 and 2 constituted joint Hindu family. Defendant no.1 was Karta of the joint Hindu family. The property in dispute was joint Hindu family property in the hands of defendant no.1. The plaintiff and defendants no.1 and 2 are coparceners. They are having equal shares in the property in dispute. Defendants no.1 and 2 in collusion with each other had manipulated transfer of joint Kumar Parveen 2014.05.13 15:42 I attest to the accuracy and integrity of this document RSA No. 239 of 2011 3 Hindu family property by way of execution of sale deed dated 15.05.1998 in favour of defendant no.2. Defendant no.1 could not sell more than his 1/3rd share in joint Hindu family property without her consent. Defendant no.1 had executed Will dated 28.07.1994 bequeathing the property in dispute in her favour and in favour of defendant no.2 to the extent of ½ share each. Although he was able to execute Will only to the extent of 1/3rd share, even then he has executed the sale deed in question. Hence, suit was filed.
Upon notice, defendants no.1 and 2 resisted the suit and filed written statement taking various preliminary objections. On merits, it was denied that property in dispute was joint Hindu family property in the hands of defendant no.1. It was also denied that plaintiff was one of the coparceners. Defendant no.1 was exclusive owner of the land in dispute and, therefore, he had transferred the land in dispute in favour of defendant no.2 for sale consideration, vide registered sale deed dated 15.05.1998. Defendant no.1 had no son and he lived with defendant no.2 right from the date of her marriage. Defendant no.1 had never executed any Will in favour of the plaintiff. Other averments in plaint were denied.
Replication was filed in which facts pleaded in written statement were denied and those of the plaint were reiterated. Out of pleadings of the parties, the Court of first instance framed following issues:
"1. Whether the suit property forms joint Hindu Kumar Parveen 2014.05.13 15:42 I attest to the accuracy and integrity of this document RSA No. 239 of 2011 4 family coparcenary property?OPP
2. If issue no.1 is proved whether the plaintiff is one of the coparceners?OPP
3. Whether sale deed dated 15.05.1998 executed by defendant no.1 in favour of the defendant no.2 is liable to be set aside being illegal, void, fake and without consideration?OPP
4. Whether the plaintiff is entitled to the declaration being owner in possession to the extent of 1/3rd share?OPP
5. Whether the plaintiff is entitled to possession of 1/3rd share out of the suit property?OPP 5A. Whether the defendant no.1 executed Will dated 28.7.1994 in favour of plaintiff and defendant no.2 regarding the suit land? If so its effect?OPP 5B Whether the plaintiff has no locus standi to file the present suit?OPD 5C. Whether the plaintiff has no cause of action to file the present suit?OPD
6. Relief."
After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal which has also been dismissed by the lower Appellate Court. Hence, this second appeal.
Learned counsel for the appellant has referred to following substantial questions of law formulated in the grounds of appeal for consideration by this Court:
(i) Whether ownership rights of the property Kumar Parveen 2014.05.13 15:42 I attest to the accuracy and integrity of this document RSA No. 239 of 2011 5 received under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act will be ancestral where the occupancy tenant rights of the property are ancestral?
(ii) Whether the property between the father and daughters will be joint Hindu family property when there is no other male member?
(iii) Whether the sale deed without consideration is a sham transaction?
(iv) Whether the judgments and decrees passed by the courts below are perverse and are liable to be set aside?
Learned counsel for the appellants has contended that findings of both the courts below are perverse and illegal on account of misreading of material evidence. Both the courts below have wrongly recorded that property in dispute is the self-acquired property of Bishan Singh. The sale deed executed by Bishan Singh in favour of Gian Kaur was without any consideration.
I have considered the contentions of learned counsel for the appellant.
Defendant no.1 became the owner of the property in dispute on 15th June, 1952 by operation of law and mutation (Ex.P-10) was sanctioned in this regard. There is a concurrent finding that revenue documents (Ex.P-3 to P-9) show that land in dispute came into the hands of defendant no.1 under the Punjab Occupancy Tenants(Vesting of Proprietary Rights) Act, 1951 and, therefore, the same was self-acquired property and cannot be treated as ancestral. Reliance in this regard can Kumar Parveen 2014.05.13 15:42 I attest to the accuracy and integrity of this document RSA No. 239 of 2011 6 be placed upon Faqiria and others v s. Mst. Rajo and another, 1956 Punjab Law Reporter 194. Since there is a specific admission of defendant no.1 regarding execution of sale deed (Ex.PW 4/A) in favour of defendant no.2 for valid sale consideration, therefore, the plaintiff cannot raise a plea that the said sale deed was without any consideration. It has also been rightly recorded that Will (Ex.P-2) dated 28.07.1994 allegedly executed by defendant no.1 in favour of plaintiff and defendant no.2 has become infructuous and does not confer any title in favour of the plaintiff because during his life-time, defendant no.1 had already sold the suit property to defendant no.2 under a valid sale.
Learned counsel for the appellant has failed to show that findings recorded by both the courts below are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. Consequently, concurrent findings recorded by both the courts below do not warrant interference in this second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal.
No other point has been urged.
Dismissed in limine.
09.05.2014 (Paramjeet Singh)
parveen kumar Judge
Kumar Parveen
2014.05.13 15:42
I attest to the accuracy and
integrity of this document