Delhi District Court
In Re vs Smt. Inder Kaur on 1 September, 2011
IN THE COURT OF MS. SEEMA MAINI :
ADDITIONAL DISTRICT JUDGE-3 (NORTH) : DELHI
R.C. Appeal No. : 69/10
Unique Case I.D. No. : 02401C0603222010
In re:
Ram Rattan Singh Namdhari
S/o Late S. Atma Singh Namdhari
R/o D-35, Rana Partap Bagh,
Delhi-110007. Appellant
Versus.
1.Smt. Inder Kaur, Deceased Through
(A) Sh. Gurbachan Singh
S/o Sh. Lachman Singh,
R/o D-10, Rana Partap Bagh,
Delhi-110007.
Also At 64, Addison Road,
Birmingham-14, England.
(B) Sh. Kartat Singh
S/o Sh. Lachman Singh,
R/o D-10, Rana Partap Bagh,
Delhi-110007.
Also At 19, Magnolia Drive,
Cheetam Hill,
Manchester-8, England
(Deleted vide order dated 22.7.93)
(C) Sh. Gurdarshan Singh
S/o Sh. Lachman Singh,
R/o D-10, Rana Partap Bagh,
Delhi-110007.
Also At 79,Walford Road,
Spark Hill, Birmingham-11
England
(D) Sh. Lachman Singh, Deceased through
i) Ms. Sona Rani D/o Sh. Lachman Singh
ii) Ms. Roopa Rani D/o Sh. Lachman Singh
iii) Ms. Hira Rani D/o Sh. Lachman Singh
RCA No. 69/10 Page no. 1 / 24
R/o D-10, Rana Partap Bagh,
Delhi-110007.
2. Sh. Lal Singh S/o Sh. Hira Nand Bhatra
R/o D-10, Rana Partap Bagh, Delhi-110007.
3A. Smt. Satwant Kaur, Wd/o Maharaj Nihal Singh
(Deleted vide order dated 22.03.77)
3B. Sh. Thakur Shamsher Singh S/o Maharaj Nihal Singh
(Deleted vide order dated 22.03.77)
3C. Sh. Vallabh Vasheshar Singh S/o Maharaj Nihal Singh
(Deleted vide order dated 22.03.77)
All C/o India Backward Classes League,
Ram Nagar, New Delhi.
4. Sardarni Lilawati Wd/o S. Atma Singh
R/o 35-D, Rana Partap Bagh, Delhi.
(Deleted vide order dated 22.03.77)
5. Sardarni Jug @ Jugesh Kumari
Wd/o S. Atam Singh
R/o 17-A/11, WEA Karol Bagh,
New Delhi
(Deleted vide order dated 22.03.77) Respondents
Date of filing of the appeal : 07.08.1969
Date on which order was reserved : 16.08.2011
Date of Judgment : 01.09.2011.
APPEAL AGAINST THE JUDGMENT / DECREE DATED
27.01.1969 PASSED BY THE COURT OF LD. S.J.I.C. DELHI.
APPEARANCE:
Sh. H.S. Sahni, Counsel for the appellant.
Sh. Sanjay Dua, Counsel for the respondents.
RCA No. 69/10 Page no. 2 / 24
JUDGMENT :-
1. Vide this judgment, I shall dispose off the instant appeal preferred by the appellant / plaintiff Ram Rattan Singh Namdhari against the respondents / defendants, against the judgment / decree dated 27.01.1969, passed by the Ld. S.C.I.C, Delhi, in civil suit bearing no. 231/1969 titled Ram Rattan Singh Namdhari vs. Smt. Inder Kaur etc (5 defendants in all), seeking partition and possession of 1/3rd share of the vacant plot bearing no. D-10,Rana Partap Bagh, Delhi. Vide the said judgment dated 17.01.1969, suit of the plaintiff was dismissed.
2. The brief facts of the case, necessary for the disposal of the appeal, as revealed from the Trial Court Record are that plaintiff / appellant being a minor son of Late Sh. Atma Singh Namdhari, at that time, filed the suit in question, against the five defendant, through one Sh. K.R. Bhagat, advocate, as his next friend, who is / was the maternal uncle of the plaintiff, having no interest adverse to that of the minor.
3. It was stated that Late Sh. R.B.S. Boota Singh owned a large number of immovable properties in East Pakistan and Delhi. He died in 1910 leaving behind four LRs and all his property left behind by him came under the management of Court of Wards in about 1929. In 1943, the Court of Wards partitioned the said property amongst the said four LRs and later released the property from the Court of Wards. In this partition, one of the properties which came under the management of Court of Wards, which was partitioned by metes and bounds, was known as Mahaldar Khan Bagh and presently known as Rana Partap Bagh. It was stated that apart from the other properties, which came into the share of Sh. Atma Singh Namdhari, youngest son of Sh. R.B.S. Boota Singh, a portion of Mahaldar Khan Bagh (Rana Partap Bagh), known as Block D, RCA No. 69/10 Page no. 3 / 24 also came to his share and was taken possession by him.
4. It was stated that the Delhi Land & Finance Co. (P) Ltd., Delhi entered into an agreement with the legal representatives of S. Harnam Singh and S. Jaidev Singh (two elder sons of said Sh. R.B.S. Boota Singh) and S. Hardial Singh, lunatic, third son of said Sh. R.B.S. Boota Singh, through his manager and the District Judge, Delhi to develop and sell the properties of said three sons of Sh. R.B.S. Boota Singh i.e. Block A, B, and C, Rana Partap Bagh, to the public but the property of S. Atma Singh Namdhari, i.e. Block D, Rana Partap Bagh remained in his possession and was not sold.
5. It was stated that the plot no. D-10, Block D, Rana Partap Bagh, formed a part of the property which came into share of S. Atma Singh, on partition by the Court of Wards and hence belonged to S. Atma Singh and after his death his heirs or legal representatives i.e. the plaintiff and defendant no. 4 and 5 in equal shares. It was stated that the property left by Late S. Atma Singh has not been partitioned so far and the said plot bearing no. D-10, Block D, Rana Partap Bagh was never sold by S. Atma Singh to anybody, nor could he sell any property or part of any property released by the Court of Wards, without the permission of the Local Government, and that such permission was never obtained.
6. It was stated that the defendant no. 1 alleged that she had purchased the property / plot bearing no. D-10, Rana Partap Bagh, sometime in March, 1955 from defendant no. 2, who allegedly purchased it on 16.08.1954 from defendant no. 3, who was one of the executors of the registered Will dated 05.12.1953 of Late S. Atma Singh Namdhari, who died on 07.01.1954. The said allegations of defendant no. 1 and 2 are not admitted by the plaintiff. It was stated that by virtue of the said registered RCA No. 69/10 Page no. 4 / 24 Will, the testator i.e. Late S. Atma Singh gave 1/3rd share of his property (after paying minor legacies) to the plaintiff and thus the plaintiff as an adopted son and as a legatee has 1/3rd share in the plot no. D-10, Rana Partap Bagh, which was now in possession of the defendant no. 1. It was stated that the properties left by Late S. Atma Singh Namdhari, which devolved upon the plaintiff and defendant no. 4 and 5 in equal shares, were never partitioned and remained a joint property.
7. It was stated that Late S. Atma Singh Namdhari, by virtue of the said Will appointed defendant no. 3 and Sant Kripal Singh Ji Maharaj as joint executors of his Will. However, the said joint executors, so appointed, never carried out the purposes and objects of the said Will and never entered into the office of the Executorship and therefore, no property left by Late S. Atma Singh Namdhari ever vested in them or managed by them. In fact, S. Kirpal Singh Ji Maharaj, one of the joint executors had litigations with the LRs of the Testator.
8. It was stated that the defendant no. 3, allegedly executed the sale deed in favour of the defendant no. 2 in respect of plot no. D-10, Rana Partap Bagh, though not admitting the execution of said sale deed, it was stated that even if it is so, the same was void (voidable) because of the following grounds :
(a) the defendant no. 3 could not sell any property left by Late S. Atma Singh and / or belonging to the plaintiff, since the two executors were not only restricted from so selling but also the sale was not for the benefit of the plaintiff nor was there any necessity to do so. Further more, one of the executor could not sell any property left by the testator.
(b) there was no consideration of the sale. (c) the defendant no. 2 was privy to the breach of trust and entered into
a transaction with one executor out of the two executors and hence sale, if RCA No. 69/10 Page no. 5 / 24 any, in favour of defendant no. 2 was void.
9. It was also stated that the defendant no. 1, on several occasions, had been asked to hand back the possession of 1/3rd share of plot no. D-10, Rana Partap Bagh, by partitioning the said plot but the defendant no. 1 did not agree to do so and hence the instant suit has been filed, cause of action for which has arisen in favour of the plaintiff and against the defendants. The requisite court fees had been paid by the plaintiff upon his 1/3rd share. It was stated that the defendant no. 3 had been impleaded because he was interested in the suit, having sold the plot to defendant no. 2, while the defendant no. 4 and 5 had been impleaded because they are co-heirs with the plaintiff, but had not joined the plaintiff for filing of the suit. It was prayed that a decree of possession of 1/3 rd share of vacant plot no. D-10, Rana Partap Bagh, be passed in favour of the plaintiff, by first passing a decree of partition between the plaintiff and the defendant no. 1 and 2.
10. The Written Statement was filed on behalf of the defendant no. 1, the main contesting defendant, wherein the preliminary objection was taken that Smt. Lilawati (defendant no. 4) is / was the testamentary guardian of the plaintiff and in her presence no other person can act as next friend of the plaintiff.
11. On merits, the assertions made by the plaintiff were refuted and it was stated that Late Sh. Atma Singh Namdhari was the sole owner of the plot no. D-10, Rana Partap Bagh and he agreed to sell the said plot of land to defendant no. 2 under the agreement dated 01.12.1953, which was duly executed and signed by S. Atma Singh Namdhari. He received a consideration of Rs. 7400/-, being the full price of the plot of land and in consideration thereof, he delivered the possession of the plot with all his RCA No. 69/10 Page no. 6 / 24 proprietary rights therein to Sh. Lal Singh (defendant no. 2) and since then defendant no. 2 was in possession of it, in his own rights. The sale or the agreement to sell was valid and binding document on the seller as well as heirs / legatees.
12. It was admitted that Late Sh. Atma Singh Namdhari made a Will during his life time and bequeathed his property in favour of defendant no. 4 & 5 and the plaintiff and also appointed defendant no. 3 and Sant Kripal Singh Ji as the joint executors of the Will. After the death of S. Atma Singh Namdhari, the defendant no. 3 (executor of S. Atma Singh Namdhari) with the consent and knowledge of Smt. Lilawati (defendant no.
4) acted as testamentary guardian of the plaintiff and Smt. Jug @ Jugesh Kumari (defendant no. 5) and executed the sale deed in respect of the said plot in favour of defendant no. 2, in consideration of the sale price, which had already been received by Late S. Atma Singh Namdhari, during his life time, under the writing dated 01.12.1953 and the sale deed dated 16.08.1954, which were attested by Smt. Lilawati and Smt. Jug, in token of their consent to it.
13. It was also stated that the defendant no. 2, thereafter, sold the said plot under the registered sale deed dated 01.03.1955, in favour of defendant no. 1 and delivered the possession of the same to her, who after taking requisite permission from MCD, constructed the house thereupon, at a huge expense. It was stated that the sale deed in favour of Sh. Lal Singh was a valid deed, which was validly executed by Sant Nihal Singh, being the executor of the Will of late S. Atma Singh, who had received the consideration and had executed the agreement dated 01.12.1953, particularly when it was executed with the consent of the LRs of Late Sh. Atam Singh. It was, therefore, prayed that the suit of the plaintiff, being misconceived and devoid of merits, be dismissed.
RCA No. 69/10 Page no. 7 / 2414. No Written Statement was filed on behalf of the defendant no. 2, while the defendant no. 4 admitted all the assertions made by the plaintiff in the suit and also prayed that the decree be passed in favour of the plaintiff. No other defendant contested the suit of the plaintiff.
15. Evidence was adduced by the parties and vide judgment / decree dated 27.01.1969, the suit of the plaintiff was dismissed.
16. The appeal was preferred by the plaintiff, on 22.08.1969, who by then had attained the age of majority. Since, the defendant no. 1 expired during that time, and an application for impleading her LRs was filed belatedly, the appeal was dismissed by the Ld. Trial Court. Against the said order of dismissal of appeal, the appellant preferred a second appeal / FOA, which was allowed by the Hon'ble High Court vide order dated 02.11.2010 and the appellant / plaintiff was allowed to implead the LRs of deceased defendant no. 1 as parties to the appeal and the appeal was remanded back to this court for adjudication.
17. In the grounds of appeal, the facts as stated in main suit were reiterated and it was urged that the Ld. Trial Court has failed to appreciate that the property had been under the stewardship of the Court of Wards and any agreement for sale by the erstwhile Ward was absolutely erroneous, being forbidden by law, since the necessary permission for sale transaction was never obtained from the State Government. It was also urged that Maharaj Nihal Singh (defendant no. 3) had purported to sell the property as an executor, even though the registered Will of Late S. Atma Singh expressly proved, that there were two joint executors, who were to act jointly. Neither of the two executors could act solely and usurp the right, power and authority of the co-executor. When the executor of the Will had not acted according to the terms of the Will, of which he was RCA No. 69/10 Page no. 8 / 24 the executor, no transaction or transfer made by him in the grab of such status, would suffer from inherited defects, as in the instant case.
18. It was also contended that Late S. Atma Singh was a Ward and could not agree to sell the property without prior permission from the State Government. His executors could also not lawfully do, what the law forbade and therefore the sale, whether initiated by Late. S. Atma Singh or not, could not be valid. No purchaser could confer a title better than he himself had upon his own transferee.
19. It was also stated that the Ld. Trial Court dealt with the matter, provisions of law and facts, perfunctorily, without appreciating the two salient features of this case, i.e. (a) that the property had been taken under protection by a Court of Wards, and the provisions of law relevant thereto, had not been adverted to, (b) that any executor or executors could act only within the four corners of the documents conferring rights in the trust property. It was prayed that the judgment/decree dated 27.01.1969 be set-aside and the suit of the plaintiff be decreed with costs.
20. No formal reply to the appeal was filed on behalf of the respondents, though the appeal was contested only on behalf of defendant no. 1 / respondent no. 1, through her LRs.
21. I have heard Sh. H.S. Sahni, counsel for the appellant and Sh. Sanjay Dua, counsel for teh respondent no. 1, perused the record, gone through the relevant provisions of law and have also referred to the relevant case law, cited by the counsels for both the parties.
22. During the course of arguments, submissions were primarily extended on behalf of the appellant / plaintiff and the defendant no. 1 / RCA No. 69/10 Page no. 9 / 24 respondent no. 1, on three legal objections, which had been taken by the plaintiff. The first objection was in respect to the applicability of sections 5, 6 and 16 of the Court of Wards Act and the sale of the property being invalid, being in violation of section 16 of the Court of Wards Act. The second legal objection was in respect to the execution of the sale deed by only one executor, even though the Will of Late S. Atma Singh provided for two executors, who were to act jointly in terms of the said Will, being void. The third submission was in respect to the breach of trust, as per section 65 of the Trust Act, by the executor of the Will.
23. At the outset, it may be mentioned that the Ld. Trial Court had framed seven issues in all, but the underlying theme of all the issues revolves upon the validity of the sale of the suit property by Late S. Atma Singh in favour of defendant no. 2 Sh. Lal Singh, without the prior sanction of the State Government / Commissioner and subsequently the validity of the execution of the sale deed by the defendant no. 3 in favour of defendant no. 2, being challenged on the basis of the legal objections delineated above. Therefore, without discussing the issue no. 1 to 7 separately, the legal objections raised are proposed to be adjudicated upon by the undersigned, as per the provisions of law, to dispose off the instant appeal.
24. To begin with the first legal objection raised by the appellant / plaintiff, it would not be out of place to reproduce the relevant sections of the Punjab Court of Wards Act, 1903 for ready reference :-
"5. Power of State Government to make order in certain cases directing the Court of Wards to assume superintendence of properties of land holders - (1) Any land-holder may apply to the RCA No. 69/10 Page no. 10 / 24 State Government to make an order directing that his property be placed under the Superintendence of the Court of Wards, and, upon receiving any such application, the State Government, may, if it considers it expedient in the public interest so to do, make an order accordingly.
(2) When it appears to the State Government that any land-holder is -
(a) by reason of being a female; or
(b) owing to any physical or mental defect or infirmity; or
(c) owing to his having been convicted of a non-
bailable offence and to his vicious habits or bad character; or
(d) owing to his having entered upon a course of wasteful extravagance likely to dissipate his property;
incapable of managing or unfitted to manage his affairs, the State Government may make an order directing that 5the property of such land-holder be placed under the superintendence of the Court of Wards;
Provided ....
6. Power of Court of Wards, of its own motion, to assume superintendence - When any land-
holder is a minor or a person adjudged by a competent Court to be of unsound mind and incapable of managing his affairs, the Court of Wards may make an order assuming the RCA No. 69/10 Page no. 11 / 24 superintendence of the property, or the person and property of such land-holder.
7. Court of Wards shall assume superintendence in cases in which an order is made under Section 5 and may do so when Collector is appointed Guardian under Act VIII of 1890 - (1) When in respect of any land-holder an order is made by the State Government under sub-
section (1) or sub-section (2) of Section 5, the Court of Wards shall assume the superintendence of the property of such land-holder, and may in its discretion also assume the superintendence of his person.
8. .....
.....
9. Notification of assumption of superintendence Whenever the Court of Wards assumes the superintendence of the person or property of any person under any of the provisions of this Act, the order of assumption shall be notified in the Official Gazette, and shall specify the district the Deputy Commissioner of which shall be put in charge on behalf of the Court of Wards.
.....
.....
16. Continuing disabilities in certain cases - (1) RCA No. 69/10 Page no. 12 / 24 When the property of any land-holder, in respect of whom an order has been made under sub-section (1) or on the last ground stated in sub-section (2) of Section 5, is released from the superintendence of Court of Wards, such land-holder shall not be competent, without the previous sanction of the State Government, to alienate the whole or any part of the immovable property which has been so released, in any way, or to create any charge upon any such property extending beyond his lifetime, and every transfer made or attempted to be made, or charge created, in contravention of this provision, shall be void."
25. A bare reading of the said sections, makes it clear that when the land of any landholder, on an application made by the said landholder u/s 5 (1) or 5 (2) of the Act, gets vested in the Court of Wards u/s 7 of the said Act, the notification of the assumption of the superintendence of the property is made u/s 9 in the official gazette and it is only then that despite release of the said property from the superintendence of the Court of Wards, there remains a continuing disability upon the landholder, in respect of the property, so released as per section 16 and that any sale transaction in respect to the said property, if made without prior sanction of the State Government, would be void.
26. The appellant has placed reliance upon the notification of the Chief Commissioner Ex. PW 8/1, which was furnished on record by the relevant witness PW 8 Sh. J.K. Sharma, Asstt. LSG Department, Delhi Administration, on 14.09.1967, vide which, as per section 9 of the Punjab Court of Wards Act, 1903, the properties of the LRs of Late S. Buta Singh RCA No. 69/10 Page no. 13 / 24 including that of Late S. Atma Singh, who was the original owner of the suit property bearing no. D-10, Rana Partap Bagh, was placed under the superintendence of the State Government. The appellant has also placed reliance upon the notification of the Chief Commissioner Ex. PW 8/2, vide which the property of the said LRs of Late S. Buta Singh were subsequently released from the superintendence of the Court of Wards for Delhi Province.
27. I have gone through the testimony of PW 8, the witness who was summoned by the appellant / plaintiff to produce the relevant notification. As per the testimony of the said witness / PW 8, the notification Ex. PW 8/1 produced by him is dated 26.07.1929 bearing no. 6597 R & A. The notification Ex. PW 8/2 could not be produced in original as the file had been destroyed but the copy of the notification dated 11.10.1944 was produced by him and was taken on record as Ex. PW 8/2. From the testimony of the witnesses of the plaintiff, it is the admitted fact that the property of Late S. Atma Singh was released from the superintendence of the Court of Wards, in the year 1944, and therefore the notification Ex. PW 8/2, even though it is a copy, remains an admissible document and does not require much discussion or any intensive scrutiny.
28. The main document, therefore, remains the notification Ex. PW 8/1, since this is purported to be the document, as per which the suit property came to be vested under the State Government, under the superintendence of the Court of Wards and therefore its scrutiny is required, to see whether vesting of the property of Late S. Atma Singh was under section 5 (1) of 5 (2) r/w section 7 of the Punjab Court of Wards Act, 1903, in order that a continuing disability, as per section 16 of the Act, to be in existence against the suit property. However, when the notification in question Ex. PW 8/1 is adverted to, it is found that the RCA No. 69/10 Page no. 14 / 24 number of the notification on the top of document is in torn condition and is not legible, but at the bottom of the notification, there appears another number i.e. 6798 R & A dated 26.07.1929. At the outset, it is mentioned that it could not be established that the said notification was actually the notification, which was the last notification in force. Moreover, if the said notification is scrutinized in detail, further, it is found that the said notification also talks about the notification no. 3030 R & A, dated 04.04.1929 of the Chief Commissioner being cancelled, but what were the contents of the cancelled notification, could not be brought to the fore, as the said notification was not summoned, to gauge the true and correct position.
29. The onus was upon the plaintiff / appellant to prove on record that the property of Late S. Atma Singh had vested with the Court of Wards u/s 7 of the Act, after the necessity arising on an application u/s 5(1) of the Act having been made by any landholder or the State Government having made such an order u/s 5(2) of the Act. If the notification, which has been produced on record, is scrutinized, it is found that it talks about Late S. Atma Singh, having made a written application to the Chief Commissioner that the property may be placed under the superintendence of the Court of Wards. The notification further states that in exercise of the powers conferred u/s 5(1) of the Act, the Chief Commissioner directed that the said property shall be placed under the superintendence of the Court of Wards. However, the notification is totally silent whether the said property of Late S. Atma Singh was actually vested under the superintendence of the Court of Wards or not, because had this been done, the mentioning of the section 7 of the Act, would definitely have been there, rather the notification just goes on to state that the property of Hardyal, who has been declared of unsound mind, shall be placed under the superintendence of the Court of Wards, and accordingly the notification u/s RCA No. 69/10 Page no. 15 / 24 9 of the Act has been passed. In the notification which has been placed on record, the vesting of the property of Late S. Atma Singh u/s 7 of the Act is quite conspicuously missing. The notification brought on record, further more talks about cancellation of a previous notification of the Chief Commissioner but the said notification not having been brought on record, leaves the court anxiety-prove, as to the contents of that notification or more specifically, whether any vesting having been made u/s 7 of the Act, having been cancelled. Therefore the notification brought on record, in my opinion does not suffice to infer that the property of Late S. Atma Singh had actually vested under the Court of Wards u/s 7 of the Act, for it to require a previous sanction of the State Government, before the same could be sold or disposed off by the landholder, as per section 16 of the Act. Accordingly, I am of the opinion that the sale of the property by Late S. Atma Singh is not hit by section 16 of the Act, and is not null and void.
30. It needs to be kept in mind, at this juncture that vide the instant appeal, the appellant has challenged the sale of the property in question and has therefore filed a suit for partition claiming only his 1/3rd share in the suit property. The appellant has very cleverly not filed a suit for possession of the suit property, since the limitation for the same was 12 years from the date when the sale was effected by Late S. Atma Singh during his lifetime, when he executed the sale document dated 01.12.1953. The suit was filed by the appellant / plaintiff before the Ld. Trial Court in April, 1966, beyond the period of limitation and therefore a simplicitor suit for possession would not have been maintainable, being hit by limitation.
31. Further more, it is to be kept in mind that the courts are meant to impart justice and the justice cannot be twisted and crunched by technicalities and rigorous procedures. Laws, which are enacted by the RCA No. 69/10 Page no. 16 / 24 Legislature and the procedures which have been provided for implementing those laws, are the tools in the hands of the courts, within four corners of which, the courts impart justice. Justice needs to be imparted by application of laws to the facts of the case in hand. Facts of every case are different to each other and therefore, even while applying the same law, the appreciation of the facts in the light of the same law brings about a different applicability.
32. In the case in hand, the sale transaction is alleged to be of the year 1953 made by the landowner, during his lifetime, having taken the sale consideration from the defendant no. 2 and completed it by handing over the physical possession of the property, which at that time was merely a plot, to the defendant no. 2. The defendant no. 3, being the executor of the Will of the original owner of the property Late S. Atma Singh, executed the sale deed in favour of defendant no. 2 with the consent of the LRs of Late S. Atma Singh and thus the defendant no. 2 became the owner of the property and he in turn has sold the property to defendant no. 1 Smt. Inder Kaur (since deceased). The defendant no. 1 was the bonafide purchaser of the plot in question, paying the valid and due consideration for the said plot to defendant no. 2 and it was the defendant no. 1 who has constructed the house on the said plot, as it exists as on date. As already observed above, since the plaintiff could not have filed a simplicitor suit for possession, he has gone about camoflouging his actual motive by raking up this issue of sale being null and void, as per provisions of section 16 of the Court of Wards Act. Therefore, the suit of the plaintiff, is by no means, filed with clean hands but apparently and quite distinctly smells of hidden motive. Therefore the court has to tread cautiously and adopt a stringent and a technical view while appreciating the notification, on which much emphasis has been placed, since a casual interpretation of the notification would prejudice and prove almost fatal to the bonafide purchaser i.e. RCA No. 69/10 Page no. 17 / 24 defendant no. 1. In this scenario, the notification, not being clear about the vesting of the property in the Court of Wards under Section 7 of the Act, cannot be interpreted to be under any disability u/s 16 of the Act. Accordingly, the sale of the property is not null and void.
33. The second limb of the arguments of the appellant / plaintiff was regarding the execution of the sale deed singly by the defendant no. 3, the executor of the registered Will dated 05.12.1953 of Late S. Atma Singh being invalid, has been considered in detail. The Will dated 05.12.1953 of Late S. Atma Singh has been duly proved and even otherwise is not in dispute. As per the said Will, Maharaj Nihal Singh and Maharaj Kirpal Singh, were appointed as joint executors of the said Will of Late S. Atma Singh, during their life times and after the death of either of them, the surviving executor was then to become the sole executor. The registered sale deed dated 16.08.1954 was executed by defendant no. 3 Maharaj Nihal Singh, one of the executor of the Will of Late S. Atma Singh. The defendant no. 4 Smt. Lilawati and defendant no. 5 Smt. Jug, the two wives of Late S. Atma Singh (mothers of the plaintiff), being the natural as well as testamentary guardian of the plaintiff have signed the said registered Will as attesting witnesses.
34. From the perusal of the testimony of Smt. Lilawati, defendant no. 4, it is revealed that she has categorically admitted that Sant Kripal Singh, the second executor, was having various litigations with the LRs of Late S. Atma Singh and therefore, he did not join as the joint executor of the Will of Late S. Atma Singh but rather withdrew himself from the executorship of the Will in question. It is also to be noted that the said withdrawal of Sant Kripal Singh, from the joint executorship has not been disputed by the plaintiff by putting any suggestion to this effect to defendant no. 4, even though he emphatically sought an opportunity to cross examine the said RCA No. 69/10 Page no. 18 / 24 witness. If there was any dispute in this regard, the plaintiff was well within his rights to summon the said Sant Kripal Singh, the second executor, to depose in the court that he never withdrew from the executorship of the Will of Late S. Atma Singh. Therefore, admittedly, in this case, even though the testator of the Will in question i.e. Late S. Atma Singh had appointed two executors, but one one executor withdrew from the executorship unrefutably, the task of execution would automatically devolves upon the other executor, to act singly.
35. Ld. Counsel for the appellant has relied upon First Additional Income Tax Officer, Kozhikode V. Mrs. Suseela Sadanandan And Another, ITR Vol. LVII, SC, wherein it was held that if there are more than one executor of a deceased person, all of them only can represent the estate of deceased. Emphasis was also placed upon K. Leelavathy Bai And Others V. P.V. Gangadharan And Others (1999) 3 SCC 548 AND Des Raj Gupta vs. State 159 (2009) DLT 738, in support of his contentions.
36. I have perused both the authorities, but I am constrained to hold that both the judgments do not help the plaintiff / appellant. In the second judgment, it was a case of three executors and one of them relinquished his rights, while the other two executors obtained the probate of the Will of the deceased but subsequently the sale transaction in respect to the immovable property was done only by one of the subsequent executors. It is to be seen that the executor who had relinquished the executorship, is not instrumental in the cited judgment for holding of the transaction to be bad but it was because two executors who had actually executed the Will of the deceased had later on not joined in execution of the sale deed. This is not the scenario in this case. In the instant case, there were two executors, out of which one withdrew from the executorship and thereafter RCA No. 69/10 Page no. 19 / 24 only one executor left i.e. the defendant no. 3, who had executed the Will of Late S. Atma Singh.
37. Ld. Counsel for the plaintiff has also referred to section 311 of the Indian Succession Act, 1925, but I am of the opinion that this section would not be applicable to the case in hand, since the said section talks about two or more executors of a Will, but the case in hand turned out to be a case where the second executor withdrew from the executorship and therefore it would be section 211 of the Indian Succession Act, 1925, which would be applicable. Section 211 of the Indian Succession Act is reproduced herein under for ready reference :
211. Character and property of executor or administrator as such. - (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Mohammadan, Buddhist, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.
38. From the bare reading of the said section, it is clear that the executor steps into the shoes of the testator, for all purposes and all the properties of the deceased vest in him, as such. The document dated 01.12.1953, which is not disputed by the plaintiff, was executed by Late S. Atma Singh, during his lifetime, vide which he had received the entire sale consideration in respect of the suit property to the tune of Rs. 7,400/- and had also handed over the possession of the suit property to defendant RCA No. 69/10 Page no. 20 / 24 no. 2 Sh. Lal Singh. The sale transaction in respect of the suit property stood concluded except for the execution of the sale deed, but before the sale deed could be executed, Late S. Atma Singh expired on 07.01.1954. Since the defendant no. 3 Maharaj Nihal Singh had now stepped into the shoes of Late S. Atma Singh, being executor of his registered Will dated 05.12.1953, he executed the sale deed Ex. D-2 dated 16.08.1954, with the consent of the LRs of Late S. Atma Singh i.e the defendant no. 4 and 5, who besides being the natural guardian of the plaintiff, were also the testamentary guardian, and thus signed the sale deed as attesting witnesses. The signatures of defendant no. 4 and 5 have been admitted by defendant no. 4 in her testimony. Defendant no. 4 during her cross examination has portrayed her ignorance about the contents of the sale deed in question but has admitted that she had put her signatures on the sale deed and has also admitted the execution of document dated 01.12.1953, being the receipt of the consideration for the suit property and handing over of the physical possession of the property to defendant no. 2 by Late S. Atma Singh. Therefore, I am of the opinion that the sale deed dated 161.08.1954 was validly executed by defendant no. 3 in favour of defendant no. 2.
39. The third limb of the arguments of the plaintiff was in respect to the executor holding the property of testator as trustee property and led thrust upon section 65 of the Indian Trust Act. I have gone through the said section but the same is not applicable to the case in hand, but rather it would be section 64 of the Indian Trust Act, which would have an applicability in the instant case, especially when the role of defendant no. 1 comes into the picture. The defendant no. 3 Maharaj Nihal Singh, being the executor of the Will of Late S. Atma Singh, was definitely a trustee of the property also, but he did not commit any breach of trust but validly executed the sale deed dated 16.08.1954 in favour of defendant RCA No. 69/10 Page no. 21 / 24 no. 2 as a formal execution and completion of the sale transaction, which had actually been completed during the lifetime of Late S. Atma Singh. Therefore, the sale of the suit property bearing no. D-10, Rana Partap Bagh by defendant no. 3 in favour of defendant no. 2 Sh. Lal Singh, was a valid sale transaction and Sh. Lal Singh became the absolute owner of the suit property on completion of the sale transaction and he in turn has sold the property to defendant no. 1 Smt. Inder Kaur (since deceased), who was a bonafide purchaser of the suit property against a valid sale consideration, paid by her to the defendant no. 2. It is the defendant no. 1 who constructed the house on the suit property and it is she, who is the owner of the property in question and not the plaintiff or any other LR of Late S. Atma Singh.
40. Even though the objections, which were raised by the plaintiff / appellant have been discussed by me above, I could not restrain myself from observing that one approaches the court for any relief, has to do so with clean hands. It is to be noted that the plaintiff filed the suit in April, 1966, when he was a minor, through his next friend Sh. K.R. Bhagat. The said Sh. K.R. Bhagar is the real brother of defendant no. 4 Smt. Lilawati and was the natural father of the plaintiff and the plaintiff had been adopted by Late S. Atma Singh, vide a valid adoption deed. Therefore, after adoption of plaintiff by Late S. Atma Singh, it was defendant no. 4 Smt. Lilawati and defendant no. 5 Smt. Jug, who became the natural guardians of the plaintiff and as per the Will of Late S. Atma Singh, were also the testamentary guardians of the plaintiff. In the lifetime and presence of his natural guardians, the plaintiff chose to file the suit before the Ld. Trial Court, through Sh. K.R. Bhagat, his next friend, which is questionable and at the same time smells of a certain abnormality, that there was something amiss. If one dwells further into the documents, one realizes that since defendant no. 4 and 5 were attesting witnesses to the RCA No. 69/10 Page no. 22 / 24 sale deed dated 16.08.1954 executed by defendant no. 3 in favour of defendant no. 2, they could not have joined the plaintiff in challenging the validity of the sale deed and therefore it was the plaintiff who was sent to the forefront through his next friend Sh. K.R. Bhagat. The defendant no. 5 chose not to file the written statement, while the defendant no. 4, though filed her written statement, but supported the suit of the plaintiff. Strangely or interestingly, the plaintiff has filed a suit for partition against all the defendants and for possession of his 1/3rd share of the property but the defendant no. 4 and 5 cleverly did not raise any claim in respect to the balance 2/3rd share of the property, which would remain outstanding if the suit was decreed in favour of the plaintiff, since they knew that if the suit is decreed in favour of the plaintiff, then as per the registered Will of Late S. Atma Singh, the defendant no. 4 and 5 would be the beneficiary of the remaining 2/3rd share, equally. Therefore, the suit of the plaintiff is quite clearly a collusive suit with defendant no. 4 and 5, supporting him, though obliquely. The plaintiff has, therefore, not approached the court with clean hands.
41. On the other hand, the defendant no. 1 was a bonafide purchaser of the suit property from the defendant no. 2, to whom the property in question had been sold by Late S. Atma Singh during his lifetime, after the receipt of valid consideration and subsequent to his death, the sale deed was validly executed by executor of his Will i.e. the defendant no. 3. Accordingly, the suit of the plaintiff has rightly been dismissed by the Ld. Trial Court.
42. In view of my discussion above, I find no infirmity in the judgment / decree dated 27.01.1969, passed by the Ld. Trial Court and the same is upheld. The instant appeal being devoid of any merits is dismissed. Parties are left to bear their own costs. A copy of this order be placed in RCA No. 69/10 Page no. 23 / 24 the appeal file, which alongwith the Trial Court Record be consigned to Record Room.
Announced in open Court (SEEMA MAINI) today i.e. on 01.09.2011 ADJ-03(North)Delhi RCA No. 69/10 Page no. 24 / 24 RCA No. 69/10 01.09.2011 Present : None for the appellant / plaintiff. Sh. Sanjay Dua, counsel for the respondents.
Vide my separate judgment announced in the open court, the instant appeal bearing RCA bearing no. 69/10 titled Ram Rattan Singh Namdhari vs. Inder Kaur etc. has been dismissed. No orders as to costs. Copy of the judgment be placed in appeal file which alongwith the Trial Court Record be consigned to Record Room.
(Seema Maini) ADJ (North)/Delhi/01.09.2011 RCA No. 69/10 Page no. 25 / 24