Punjab-Haryana High Court
Sukhdev Singh vs Hardev Singh And Others on 6 March, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 1080 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 1080 of 2012 (O&M)
Date of Decision : March 06, 2012
Sukhdev Singh .... Appellant
Vs.
Hardev Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Sandeep Singh Deol, Advocate
for the appellant.
* * *
L. N. MITTAL, J. (Oral) :
C. M. No. 2903-C of 2012 :
Allowed as prayed for. Main Appeal :
Plaintiff Sukhdev Singh, who was non-suited by the trial court, but has been partly successful in the lower appellate court, has filed the instant second appeal.
Plaintiff and defendant no.1 are real brothers, whereas defendants no.2 to 4 are their real sisters. Defendant no.3 has since died and is represented by respondents no.3 to 5 herein as her legal representatives. R. S. A. No. 1080 of 2012 (O&M) 2
Plaintiff is owner of half share of house no.6/55 (property no.1), whereas remaining half share in the suit house was owned by Jasbir Kaur (mother of the parties). Jasbir Kaur was also owner of properties no.2 to 4, detailed in head-note B, C and D in the plaint. As regards property no.1, plaintiff claimed to be exclusive owner in possession thereof alleging that he is owner of half share thereof having purchased it vide two sale deeds dated 09.07.1963 and 21.04.1978 and he also became owner of the remaining half share by adverse possession. The plaintiff also alleged that gift deed dated 04.06.2001, allegedly executed by Jasbir Kaur in favour of defendant no.1 regarding all her properties, is illegal and null and void because Jasbir Kaur was ill since long and was infirm and bed-ridden and was mentally and physically unfit to execute the gift deed. She died on 05.04.2003 at the age of 75 years. Defendant no.1 also obtained Will dated 20.09.2000 from Jasbir Kaur by coercion etc. Accordingly, plaintiff sought declaration that the aforesaid gift deed is null and void and plaintiff is exclusive owner in possession of the suit house (property no.1) and is joint owner in possession of the remaining three properties as per share by natural inheritance from Jasbir Kaur.
Defendants no.2 to 4 admitted the claim of the plaintiff by filing written statement.
Defendant no.1 contested the suit and pleaded that gift deed R. S. A. No. 1080 of 2012 (O&M) 3 dated 04.06.2001 and Will dated 20.09.2000 executed by Jasbir Kaur in favour of defendant no.1 are legal and valid and accordingly, defendant no.1 is owner in possession of half share of property no.1 and is owner in possession of remaining three properties and plaintiff has no share therein. Averments of the plaintiff were controverted. Various other pleas were also raised. It was also pleaded that plaintiff had also started litigation during lifetime of Jasbir Kaur regarding inheritance of his father Kartar Singh. Jasbir Kaur filed written statement in the said suit making reference to the gift deed and admitting its execution. It was denied that Jasbir Kaur was physically and mentally unfit to execute gift deed and Will in question. Plaintiff and defnedants no.2 to 4 have no right, title or interest in the properties of Jasbir Kaur.
Learned Civil Judge (Senior Division), Tarn Taran, vide judgment and decree dated 02.03.2010, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been partly allowed by learned Additional District Judge, Tarn Taran, vide judgment and decree dated 20.12.2011, and thereby, plaintiff's suit has been decreed partly restraining defendant no.1 from forcibly dispossessing the plaintiff from suit house (property no.1) except in due course of law without seeking partition. Suit regarding remaining relief claimed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has filed the instant second appeal. R. S. A. No. 1080 of 2012 (O&M) 4
I have heard learned counsel for the appellant and perused the case file.
In order to prove the case of the plaintiff, there is solitary bald and oral statement of plaintiff himself, besides testimony of draftsman Kulwant Singh (PW-1) who only proved site plans. On the other hand, defendant no.1 has examined witnesses of impugned Will and gift deed and also Scribes thereof, besides himself stepping into the witness-box and examining some other witnesses. Plaintiff had also earlier filed a Civil Suit regarding inheritance of Kartar Singh - father of the parties. In the said suit, present defendant no.1 and Jasbir Kaur (mother of the parties) were also defendants. In that suit, Jasbir Kaur filed written statement stating that she had executed the gift deed. Copy of the said written statement has been proved in the instant suit.
Defendant no.1 has thus led sufficient evidence to prove due execution of gift deed and Will in question by Jasbir Kaur in his favour. There is overwhelming credible evidence led by defendant no.1 in this regard. The said evidence almost stands unrebutted. Self-serving oral statement of the plaintiff creates no doubt about genuineness and validity of aforesaid gift deed and Will because plaintiff was not party to the same and was not even present when the said documents were executed. Consequently, even counsel for the appellant has not been able to advance R. S. A. No. 1080 of 2012 (O&M) 5 any meaningful argument to assail the finding of the courts below regarding due execution of the Will and gift deed.
Counsel for the appellant, however, contended that the impugned gift deed is not valid because the same was neither accepted by the donee - defendant no.1 nor was accompanied by delivery of possession. It was contended that for a gift deed to be valid, it has to be accompanied by delivery of possession. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court namely Baby Ammal vs. Rajan Asari reported as 1997 (1) R. C. R. (Civil) 742 and Asokan vs. Lakshmikutty and others reported as 2008 (1) R. C. R. (Civil) 507 and also a judgment of this court passed in the case of Mann Singh vs. Ravinder Kaur reported as 2008 (4) R. C. R. (Civil) 340.
I have carefully considered the aforesaid contentions, but the same are completely meritless and frivolous.
In the first instance, the plaintiff did not even plead that the gift deed was not accepted by defendant no.1. In the absence of pleading, the plaintiff-appellant cannot raise this contention for the first time in second appeal. Secondly, the gift deed was duly accepted by defendant no.1 and he is also in possession of properties no.2 to 4, pursuant to gift deed. Delivery of possession of the said properties to defendant no.1 depicts that the gift deed was duly accepted. Thirdly, delivery of possession is not R. S. A. No. 1080 of 2012 (O&M) 6 essential to constitute a legal and valid gift in Hindus, although it is essential ingredient of a valid gift in Muslims. This is also apparent from the judgments of Hon'ble Supreme Court in the cases of Baby Ammal (supra) and Asokan (supra). Section 122 of the Transfer of Property Act also provides that the gift deed has to be accepted during the lifetime of the donor, but it does not provide that gift has to be accompanied by delivery of possession. In the case of Mann Singh (supra), it was in fact not a gift deed, but was some conveyance deed without consideration.
Counsel for the appellant laid emphasis on the fact that defendant no.1 has admitted that plaintiff is in exclusive possession of suit house property no.1. On this basis, it was contended that gift was never accepted as possession of suit house was never delivered to defendant no.1. The contention is again misconceived and devoid of substance. Defendant no.1 has not admitted that plaintiff throughout remained in exclusive possession of the suit house. Defendant no.1 only admitted that presently, plaintiff is in possession of the suit house. Consequently, it cannot be said that defendant no.1 never came in possession of the suit house. Moreover, in earlier suit filed by the plaintiff regarding inheritance of their father, defendant no.1 herein, by filing written statement, also accepted the gift. Delivery of possession of the remaining three properties to defendant no.1 also amounts to acceptance of gift by him. There is also recital in the gift R. S. A. No. 1080 of 2012 (O&M) 7 deed regarding delivery of possession of the suit house (share of the donor) to defendant no.1 - donee. Said presumption may be rebuttable, but has not been rebutted by the donee. It also depicts acceptance of gift by defendant no.1.
It is thus manifest that Jasbir Kaur executed valid gift deed as well as valid Will in favour of defendant no.1 and consequently, plaintiff has no right, title or interest in the suit properties left by Jasbir Kaur except plaintiff's own half share in the suit house property no.1 purchased by him.
Plea of the plaintiff that he has become owner of the remaining half share of the suit house by adverse possession is completely unacceptable. Plaintiff, as co-sharer in the suit house, could not claim adverse possession without pleading and proving ouster of the other co- sharers i.e. of Jasbir Kaur and after gift deed, of defendant no.1. No such ouster of Jasbir Kaur or defendant no.1 has been pleaded or proved. Self- serving statement of plaintiff is also not sufficient to prove such ouster or to prove acquisition of ownership by plaintiff by adverse possession. Even otherwise, plaintiff cannot seek declaration of his title on the basis of adverse possession because plea of adverse possession is available as defence and not as basis of claim for the plaintiff to seek declaration of ownership by adverse possession. In this view, I am supported by two judgments of this Court namely Dewaki and others vs. Dayawanti and R. S. A. No. 1080 of 2012 (O&M) 8 others reported as (2006-3) The Punjab Law Reporter 133 and Bhim Singh and others vs. Zile Singh and others reported as (2006-3) The Punjab Law Reporter 159. It may also be added that in view of valid Will also, plaintiff has no right, title or interest in the properties left by Jasbir Kaur and defendant no.1 is exclusive owner of the said properties. Gift deed has also been held to be valid, and therefore, pursuant to gift deed also, defendant no.1 is owner of the suit properties belonging to Jasbir Kaur.
For the reasons aforesaid, I find no merit in this second appeal. Judgments and decrees of the courts below do not suffer from any perversity, illegality or jurisdictional error warranting interference in second appeal. Finding of the courts below is based on proper appreciation of evidence and is not shown to be based on misappreciation or misreading of evidence. The said finding is the only reasonable finding that can be arrived at on the basis of evidence led by the parties. Finding of the trial court regarding possession of the suit house has already been modified by the lower appellate court. No question of law, much less substantial question of law, arises for adjudication in this second appeal.
The appeal is found to be meritless and is accordingly dismissed in limine.
March 06, 2012 ( L. N. MITTAL ) monika JUDGE