Punjab-Haryana High Court
Ranjit Singh vs Kanwaljit Singh And Ors. on 23 February, 2004
Equivalent citations: AIR2004P&H211, AIR 2004 PUNJAB AND HARYANA 211, (2004) 2 RECCIVR 525, (2004) 3 LANDLR 321, 2004 HRR 2 283
JUDGMENT M.M. Kumar, J.
1. This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code) challenging concurrent findings of facts recorded by both the Courts below and decreeing the suit of the plaintiff-respondents.
2. The plaintiff respondents 1 to 4 filed Civil Suit No. 368 of 2001 on 5-7-1989 seeking a declaration to the effect that they along with defendant -appellant, their father and defendant-respondents 5 to 10 who are their brothers and sisters were owners in joint possession in equal shares of the suit land. It was further alleged that the Will, if any, in possession of the defendant appellant was null and void and is not binding upon their rights as the same was procured fraudulently and by misrepresentation. Another prayer for passing of a decree for permanent injunction was also made for restraining the defendant-appellant and defendant-respondents from alienating, mortgaging and transferring the suit land in any manner as a consequential relief. The following pedigree table would show the relationship inter se between the defendant-appellant and plaintiff-respondents/defendant-respondents :--
Ava Singh | Ranjit Singh (defendant-appellant) | Joginder Kaur - wife (Expired) | _____________________________|______________________________________________ | | | | | | | | Smt. Parduman Jarnail Smt. Jaswinder Lakhwi- Kanwal- Mohin-
Dalbir Singh Singh Harbh- Singh nder jit der
Kaur (Def.- (Def.- ajan (Def.- Kaur Singh Singh
Def.- Res. 8) Res. 9) Kaur Res. 10) (Def.- (Def.- |
Res. 5) (Def.- Res.7) Res. 1) |
Res. 6) |
(since died through
his L. Rs.
deft.-respts. 2 to 4)
3. The suit was opposed by the defendant -appellant and defendant-respondents 8 and 9. They filed their written statement raising various objections. The plaintiff-respondent also filed replication. On the basis of the pleadings of the parties, the following issues were framed :--
(1) Whether the plaintiffs and defendants No. 2 to 7 are joint owners in possession in equal shares of the land in question as detailed and described in para No. 2 of the plaint? OPP. (2) Whether the plaintiffs are entitled to a decree for declaration with consequential relief of permanent injunction against defendant No. 1 qua the suit land as prayed for? OPP. (3) Whether the defendant No. 1 can be treated as benamidar of the suit property as alleged? OPD (4) Whether the suit of the plaintiffs is hopelessly time barred? OPD (5) Whether the suit of the plaintiffs is not maintainable in the present form? OPD. (6) Relief.
4. On issues No. 1 to 3, the Civil Judge returned the findings that the Will on which reliance was placed did not see the light of the day and no such document could have been executed by deceased Joginder Kaur wife of the defendant-appellant. On the basis of various pieces of documentary as well as oral evidence, the trial Court concluded that there were suspicious circumstances creating a doubt with regard to truthfulness of the plea concerning Will set up by the defendant appellant, namely, that during her life-time Joginder Kaur wife of the defendant-appellant had executed a Will in respect of the suit land in his favour. Consequently, the mutation which was based on the Will was also held to be meaningless as mutation itself cannot create or extinguish a title nor it has presumptive value regarding the title. The trial Court has placed reliance on a judgment of the Supreme Court in the case of Smt. Sawarni v. Smt. Inder Kaur, 1996 (6) SCC 223 : AIR 1996 SC 2823.
5. The edifice of the whole case of the defendant-appellant based on the Will and mutation had crumbled, the question concerning limitation for filing suit was also decided in favour of plaintiff-respondents 1 to 4. The views of the trial Court on the aforementioned issues are as under :
"In para No 7 of the plaint, the plaintiffs have pleaded that about a month back they came to know about the sanctioning of untation in favour of defendant No. 1 on the basis of some bogus and forged Will and then they approached the defefendant No. 1 who refused to admit the claim of the plaintiff and thus the present suit having been filed on 4-7-1989 is well within the period of limitation. As per the findings made under issues No. 1 to 3, the plaintiffs had got right in the suit property after the death of their mother in the year 1967. In para No. 5 of the plaint, it has been specifically mentioned that the plaintiffs had been treating themselves to be in joint possession of the suit land after the death of their mother and about a month back (from the date of filing of the suit) they came to know about sanctioning of the mutation, and thus the present suit has been filed. In view of these specific pleadings the suit is held to be well within the period of limitation. Moreover, our Hon'ble High Court in Vijay Pal Singh v. Vijay Kumar Singh, 1999 (1) Civil Court Cases 342 (P&H) has held that suit for declaration of title is not barred so long as plaintiff's right to property itself is subsisting. Thus, on being fortified with the observations made in the aforesaid authority and the facts and circumstances of the case, the suit is held well within the period of limitation and accordingly this issue is decided against defendant No. 1."
The suit was held maintainable and a decree was passed in favour of plaintiff-respondents 1 to 4 declaring that the plaintiff-respondents, defendant-appellant and defendant-respondents are owners and in joint possession of the suit land. The defendant-appellant has been restrained from alienating the suit property for more than his share.
6. On appeal, the only argument advanced and rejected was that the suit filed by the plaintiff-respondents simply seeking a declaration without possession of the land in dispute was not maintainable because the defendant-appellant has been recorded to be in possession of the land in dispute in the revenue record. The learned Additional District Judge, Karnal rejected the aforementioned argument by observing as under :--
"......... Admittedly Joginder Kaur was owner in possession of the land in dispute. It is also not disputed that she died in 1967. As per provisions of Section 15 of the Hindu Succession Act, 1956 this property devolved upon the plaintiffs and defendants who were her sons, daughters and husband (First class heirs). The plaintiffs claimed that instead of getting the land mutated in the above fashion defendant No. 1 on the basis of some bogus and forged un-registered Will got this land mutated in his favour vide mutation No. 11959 (Ex. D4). This led to the filing of the present suit. Had defendant No. 1 been able to establish on file that he was in exclusive possession of this land by virtue of the alleged Will the mutation Ex. D4 could be endorsed and the suit could be termed to be not maintainable. But in the case in hand the appellant failed to show the light of the day to any such Will. He even could not examine one of the attesting witnesses as was mandatory for proving the execution of the Will. In the absence of any such evidence on file the self-serving statement of this defendant/appellant Ranjit Singh that the Will was executed in his favour by Joginder Kaur deceased is not going to further his cause. The Will is such a document which comes into force after the death of the testator and it deviates the natural succession. That being so the onus is always upon the propounder of the Will to establish the execution of such Will and genuineness thereof. In the case in hand what to speak of proving the execution and genuineness of this Will even this Will has not been placed on file. In these premises learned lower Court was justified in holding that defendant No. 1 had no right to inherit this land independently rather the plaintiffs and defendants (all) were entitled to inherit this land in terms of Section 15(1) of the Hindu Succession Act as mentioned hereinabove. In view thereof the possession of defendant No. 1 on this land was as one of the co-sharers. When he has nowhere pleaded the ouster of the plaintiffs or defendants No. 2 to 7 from this land at any point of time the possession held him as co-sharer shall be deemed to be the possession of all the co-sharers."
7. Mr. B.S. Bedi, learned counsel for the defendant-appellant has raised two-fold submissions before me which are as follows; (a) that the suit filed by the plaintiff-respondent was not maintainable without making a prayer for the decree for possession of the suit land as defendant-appellant has been in possession as per the revenue record. In support of his submission, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Ram Saran v. Smt. Ganga Devi, AIR 1972 SC 2685 and Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957. He has also relied upon a judgment of this Court in the case of Kidara v. Mange, 2001 (2) PLR 659; and (b) that the defendant-appellant is a benamidar of the suit property as it was purchased in the name of Joginder Kaur by the defendant-appellant.
8. Having heard the learned counsel and perusing the judgments and decrees of both the Courts below, I am of the considered opinion that this appeal is liable to be dismissed because no substantive question of law warranting admission of the appeal has been raised. The Will on which reliance has been placed by the defendant-appellant has never seen the light of the day nor it was produced before the Courts below. The mutation on the basis of the Will got entered by the defendant-appellant was again a bogus and fraudulent transaction as has been found by both the Courts below. As a matter of fact these findings were not even assailed by the defendant-appellant before the first appellate Court. It was in these circumstances that the first appellate Court has held that the suit land has to be considered in joint possession of the plaintiff-respondents, defendant-appellant as well as defendant-respondents in equal shares as provided by Section 15 of the Hindu Succession Act, 1956 because all of them were the first class heirs being sons, daughters and husband.
9. The argument of the learned counsel regarding maintainability of the suit has to be examined in light of the findings returned by both the courts below, namely, that the defendant-appellant was a co-sharer in the suit land. The mutation as well as the Will having been found to be bogus and fraudulent would not adversely affect that status. Similarly, the entry into the revenue record had also come into existence from the fraudulent and bogus mutation. In these circumstances, the suit land can never be considered exclusively owned and possessed by the defendant-appellant.
10. It is true that if a defendant is in possession and the suit has not been filed for restoration of possession but merely for a declaration, then such a suit would not be maintainable. However, in the instant case, the suit has not been simply for a declaration but for a declaration to the effect that the plaintiff-respondents and defend ant-appellant as well as defendant-respondents are owners in joint possession in equal share of the suit land. A further prayer for restraining the defendant-appellant from alienating the suit land more than his share was also made which has been accepted. Therefore, the judgments of the Supreme Court in the cases of Ram Saran (supra); Vinay Krishna (supra) and that of this Court in the case of Kedara (supra) have no application to the facts of the instant case because in those cases a mere declaration of ownership was prayed without anything more. I am further of the view that fraud vitiates everything which is an additional factor present in the instant case. Therefore, the argument raised by the learned counsel is without any merit.
11. The other argument that the defendant-appellant was a benamidar also deserves to be rejected because firstly no such argument was raised before the first appellate Court and secondly by virtue of Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 (for brevity, 'the Act'), the defendant-appellant is precluded from setting up any such plea. Sections 3 and 4 of the Act read as under :--
"3. Prohibition of benami transactions.--(1) No person shall enter into any benami transaction.
(2) Nothing in Sub-section (1) shall apply to the purchase of properly by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transactions shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this Section shall be non-cognizable.
4. Prohibition of the right to recover property held benami.-- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply.--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family : or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
12. The aforementioned provisions have been interpreted by the Supreme Court in the cases of R. Rajagppal Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630 : (AIR 1995 SC 238); Nand Kishore Mehra v. Sushila Mehra, (1995) 4 SCC 572 : (1995 AIR SCW 3306) and Rebti Devi v. Ram Dutt, (1997) 11 SCC 714 : (AIR 1998 SC 310). In R. Rajagopal Reddy's case (supra) it has been made clear that the defendant cannot set up the plea claiming that he is the real owner of the land because it saves only those pleas which were pending on 19-5-1988. In the present case the suit was filed on 5-7-1989. The following observations of their Lordships laying down six principles would show that the argument of the learned counsel is liable to be rejected even on merit and the same read as under :--
"(1) Firstly, while Section 4(1) prohibited a plea of benami to be raised in a suit, claim or action and again Section 4(2) precluded a defence of banami in suits, claims or actions,-- these two provisions did not come in the way of a decision on such pleas in matters pending as on 19-5-1988 if such pleas were already raised before 19-5-1988, by one party or other. This was because such pleas which were already raised before 19-5-1988 were not intended to be affected by the Act, if they were raised in suits, claims or actions pending as on 19-5-1988. The repeal provision in Section 7 repealed Section 82 of the Trust Act only in that manner to that extent.
(2) Secondly, on the express language of Section 4(1), any right inhering in the real owner in respect of any property held benami would be not enforceable once Section 4(1) operated, even if such transaction had been entered into prior to 19-5-1988. The same prohibition applied on the basis of such a plea after 19-5-1988. The Act could be said to be retrospective only to that extent. But from this it did not follow that where such a plea was already taken before 19-5-1988 to the effect that the property was held benami, such a plea got shut out merely because the proceeding in which such plea was raised before 19-5-1988 was pending on 19-5-1988.
(3) Thirdly, where a suit had been filed before 19-5-1988, and in any written statement filed on or after 19-5-1988, a plea of benami was raised, then such a plea of benami could not also be gone into. If how-ever such a plea in defence had been raised before 19-5-1988, the Act did not preclude that question from being decided in proceedings which were pending on 19-5-1988, Mithilesh Kumari v. Prem Behari Khare (1989) 2 SCC 95 : (AIR 1989 SC 1247) case was wrong in holding that such a defence could not be decided after 19-5-1988 even though the plea was raised before 19-5-1938.
(4) Fourthly, if such an interpretation as stated in (1) to (3) was given, it could not be validly contended that as question of invalid discrimination arises between cases where suits were filed on or before 19-5-1988 and those filed after 19-5-1988.
(5) Fifthly, even though the word "suit" might include appear or further appeals, Sections 4(1) and 4(2) could not be made applicable to these subsequent stages.
(6) Sixthly, pleas by plaintiffs or applicants and defences after 19-5-1988 of real owners against benamidars were barred under Section 4(1) and Section 4(2), only to the extent indicated above."
13. It is appropriate to mention that in Rebti Devi's case (supra) two more principles were added which are not relevant to the controversy raised before me. Therefore, I am of the considered view that the defendant-appellant cannot set up the plea of benamidar in defence as the suit itself has been filed in 1989 i.e. after the specified date (19-5-1988).
14. For the reasons recorded above, this appeal fails and the same is dismissed.