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Smt. Sawarni Vs. Smt. Inder Kaur & Ors [1996] INSC 1001 (23 August 1996)

G.B. Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K.

CITATION: 1996 SCALE (6)333

ACT:

HEAD NOTE:

Leave granted.

This appeal by special leave is by the plaintiff against the judgment and drecee of the High Court of Punjab and Haryana in Regular Second Appeal No. 1253 of 1994 dismissing the second appeal in limine. thereby confirming the judgment and decree of the Additional District Judge in Case No. 66 of 1986.

The plaintiff filed the suit for declaration of title and possession over the disputed land. It was allege in the plant that one Gurbax Singh was the admitted owner of the land in question and he died leaving behind his widow Gurdip Kaur and daughters Swarni, the plaintiff, and Roori @ Kirpal Kaur. Said Gurbax Singh purchased the land in question from one Dhara Singh under a registered sale deed dated 5th September, 1958. Widow Gurdip Kaur died on 14th April, 1968 and on her death plaintiff and Roori succeeded to the disputed land in question. Gurdip Kaur also had executed a Will on 29th February, 1968 in favour of her two daughters the plaintiff and Roori. plaintiff and Roori had obtained a succession certificate claiming to be the legal heirs of Gurdip Kaur from the Civil Court on 4th April, 1975. Said Roori was not heard of and did not claim any interest in the disputed property, but defendant nos. 8 and 9 are the sons of said Roori and defendant no. 7 is her husband and, therefore. in the property of Gurbax Singh, plaintiff as well defendant nos. 7 to 9 are the successors in interest and are entitled to share half and half. It was also alleged that defendant nos. 5 and 6 without having any interest in the property forcibly occupied a portion of the disputed property taking advantage of the absence of plaintiff from the suit village and, therefore, the plaintiff filed the suit for the relief as already stated. It was also averred in the plaint that defendant no. 1 claimed to have purchased the property from defendant no. 5 - Inder Kaur and said defendant no. 5 claiming herself to be one of the daughters of Gurbax Singh had executed the sale deed in question.

Plaintiff contended that defendant no. 5 is the daughter of Harnam Singh brother of Gurbax Singh and not daughter of Gurbax Singh as alleged and, therefore, she had no title to the property to pass on in favour of defendant no 1 under the registered sale deed in question.

Defendant nos 5 and 6 in their written statement though admitted plaintiff to be one of the daughters of Gurbax Singh, but pleaded that the other daughter of Gurbax Singh is Inder Kaur, the defendant no. 5 and Roori @ Kirpal Kaur was not the daughter of Gurbax Singh. The execution of Will by Gurdip Kaur, widow of Gurbax Singh was also denied and it was averred that the said Will is a forged and fictitious document. The defendants also denied the factum of obtaining a succession certificate by the plaintiff and said Roori. It was thus contended that since lnder Kaur had half share in the disputed property being daughter of Gurbax Singh, she executed the sale deed in favour of defendant nos. 1 to 4 and defendant no. 6 on receipt of valuable consideration.

Thus, the possession of defendant nos. 5 and 6 or defendant nos. 1 to 4 is that of a true owner and they cannot be held to ba trespassers. Defendant nos. 1 to 4 filed a separate written statement and took the same stand as that of defendant nos. 5 and 6. It was also averred in the written statement that the land in question had been mutated in favour of plaintiff and Inder Kaur which establishes the rightful ownership of defendant no. 5. Defandant nos. 7 to 9 filed a written statement admitting the plaintiff's claim.

On these pleadings the learned trial Judge framed as many as 8 issues and recorded the following findings:

I) Gurbax Singh was the owner of the disputed property.

II) Roori @ Kirpal Kaur was the other daughter of Gurbax Singh apart from plaintiff and Inder Kaur, defendant no. 5 was not his daughter.

lII) Inder Kaur in fact is the daughter of Harnam Singh, brother of Gurbax Singh.

IV) Smt. Gurdip Kaur executed a Will dated 29th February, 1968 in favour of her two daughters the plaintiff and Roori @ Kirpal Kaur.

V) Mutation of the property in the name of the plaintiff and Inder Kaur does not convey any title in favour of said Inder Kaur.

VI) A succession certificate had been issued in favour of the plaintiff and Roori to succeed the estate of Gurdip Kaur.

VII) The sale deed executed by defendant no. 5 - Inder Kaur, in favour of defendant nos. 1 to 4 did not convey any title since Inder Kaur herself had no title to the property.

VIII) Defendants 1 to 4 cannot claim to be bona fide purchasers of the disputed property.

IX) The valuation of the suit for the purpose of court fee and jurisdiction is proper.

X) The possession of defendant nos.1 to 4 is that of a trespasser and plaintiff is entitled to file the suit for recovery of possession.

With these findings the suit having been declred, the defendant nos. 1 to 4 preferred an appeal which was registered as Civil Appeal No. 98 of 1985/1992. Defendant nos. 5 and 6 also preferred an appeal which was registered as Civil Appeal No. 66 of 1986 and both appeals were disposed of by a common judgment by the Additional District Judge. Amritsar. The learned Additional District Judge came to the conclusion that plaintiff could not have filed the suit so far as half share of Roori is concerned. He also came to the conclusion that the Will or the succession certificate is of no consequence in establishing whether the Roori is one of the daughters of Gurbax Singh. With this conclusion, he set aside the judgment and dacree of the trial court so far as half share of Roori's interest is concerned. He also held that since lnder Kaur was mutated in the revenue records she had the right to sell her share in favour of defendant nos. 1 to 4 and consequently defendant nos. 1 to 4 derived right, title and interest by virtue of the sale deed in their favour executed by lnder Kaur. With these findings he reversed the judgment and decree of the trial court and allowed the appeal. The plaintiff, therefore, carried the matter in Second Appeal to the High Court. The High Court, however, having dismissed the same in limine, the present appeal by way of special leave has been filed.

Mr. A.S. Sohal, learned counsel for the appellant contended that the learned Additional District Judge committed gross error of law in coming to the conclusion that the mutation order in favour of Inder Kaur conveyed valid title on her which she could convey in favour of dafendant nos. 1 to 4 under the registered sale deed in question. He further contended that the findings of the learned trial Judge on the question whether Roori was the daughter of Gurbax Singh or Indar Kaur was the daughter of Gurbax Singh not having been reversed, it was not open to come to the conclusion that Inder Kaur had valid title to half share of the property of Gurbax Singh. The learned counsel also urged that in view of the Will executed by Gurdip Kaur, widow of Gurbax Singh in favour of plaintiff and Roori and in view of the succession certificate issued by the civil court in their favour. the lower appellate court was wholly in error in ignoring the same and in coming to a conclusion that plaintiff could not file the suit in respect of half share of Roori. It was further urged that the High Court without applying its mind dismissed the second appeal in limine has committed sarious error of law.

The learned counsel for the respondents on the other hand contended that a court of fact having examined and scrutinised the evidence on record and having reached his conclusion, the second appellate Court rightly refused to interfere with the same and accordingly this Court would not be entitled to interfere with the same under Article 136 of the Constitution.

Having heard the learned counsel for the parties and having scrutinised the judgment of the trial Judge as well as that of the lower appellate court, we find sufficient force in all the contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had filed the suit claiming half interest for herself and claiming half interest in favour of the husband and sons of Roori and, therefore, the learned Additional District Judge was wholly in error to hold that the plaintiff could not have filed the suit in question. In view of rival stand of the parties the main question that arose for consideration was wheter Roori was daughter of Gurbax Singh or Inder Kaur, defendant no. 5 was the daughter of same Gurbax Singh? The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate Court without focusing his attention to the weighty reasons advanced by the trial court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional District Judge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate Court was not justified in not considering the material evidence as well as reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file do not prove Roori to be the daughter of Gurbax Singh.

Further, the lower appellate Court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed away by the so called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. That apart, as it would be seen, the learned trial Judge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter of Gurbax Singh and on perusal of the same came to the conclusion that it was Roori who was the second daughter of Gurbax Singh. The Additional District Judge has not even discussed anything about the said oral evidence and the reasonings advanced by learned trial Judge in coming to the conclusion that it was Roori who was the second daughter of Gurbax Singh Non consideration of the oral evidence adduced by the parties, by the lower appellate Court vitiates the ultimate conclusion on the question whether Roori was daughter of Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax Singh had executed a Will in respect of the entire estate in favour of plaintiff and Roori and after death of Gurdip Kaur a succession certificate had been issued by the civil court under the Indian Succession Act in favour of plaintiff and said Roori. The said succession certificate and rights flowing therefrom cannot be ignored. Admittedly no attempt has been made by defendant nos. 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the Second Appeal in limine.

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