IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2870 of 2002 Date of Decision: 27.1.2009 Mal Singh and others. ....... Appellants through Shri S.D.Sharma, Senior Advocate with Shri K.S.Grewal, Advocate. Versus Mohinder Singh and others. ....... Contesting Respondents through Shri S.N.Chopra, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This is an appeal for setting aside judgments and decrees dated 26.8.1998 and 15.2.2002 passed respectively by Civil Judge (Senior Division), Fatehgarh Sahib (hereinafter described as `the trial Court') and Additional District & Sessions Judge, Fatehgarh Sahib (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs- respondents was decreed and the appeal of the defendants-appellants was dismissed. Briefly stated the facts of the case are as under:- Originally, the suit was filed by Mohinder Singh and Gurnam R.S.A.No.2870 of 2002 -2- .... Singh on 19.10.1971 for declaration to the effect that the gift deed No.1709 executed by Gian Singh, their brother, in favour of Pritam Kaur in respect of the properties mentioned at letters `A' and `B' in the head note of the plaint is null & void and was not binding on their rights being reversioners, as also on the rights of other reversioners of Gian Singh on his death. It was pleaded by the plaintiffs that Gian Singh was issueless and without a wife and that they were his nearest best legal heirs. It was further pleaded that Pritam Kaur had got no legal relation with Gian Singh and that the gift deed had been executed and got registered in order to avoid a pre-emption suit, whereas, in fact, Pritam Kaur had purchased the properties in question. Gian Singh was stated to be governed by General Customary Law of Punjab in the matters of alienation, inheritance and adoption and he could not have executed the gift deed in question. The recital in the gift deed that Pritam Kaur was the wife of Gian Singh was stated to be wrong and got incorporated under her influence and in fact, she was the purchaser. The suit properties were stated to be ancestral. On 29.11.1971, Pritam Kaur and Gian Singh filed a joint written statement stating therein that a male proprietor is competent to make gift in favour of his nearest heir. It was averred that Pritam Kaur was the wife of Gian Singh and, thus, she was his nearest heir. They denied that the plaintiffs were the nearest best legal heirs of Gian Singh and pleaded that even under the Customary Law, there was no bar against execution of such a gift deed. The status of the suit properties being ancestral was also denied. It was stated that Pritam Kaur, who was the daughter of late S.Gurbaksh R.S.A.No.2870 of 2002 -3- .... Singh, Jagirdar of Village Kotla Shamshaspur, Tehsil Samrala, was married to Gian Singh some 35 years back and they had been amicably living together as husband and wife. The plaintiffs filed replication on 1.12.1971 controverting the averments of the defendants. On the pleadings of the parties, the following issues were framed on 2.12.1971:- 1. Whether the plaintiffs have the locus standi to file the suit?OPP 2. Whether the property in dispute is ancestral qua the plaintiffs and Gian Singh defendant?OPP 3. Whether the plaintiffs and Gian Singh are governed by custom in matters of alienation of ancestral property, if so, what that custom is?OPP 4. Whether Pritam Kaur defendant is not the wife of Gian Singh?OPP 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction?OPP 6. Whether Gian Singh made a valid gift regarding the property in dispute in favour of Pritam Kaur defendant?OPD 7. Whether the gift of the property in dispute in favour of Pritam Kaur tantamounts to acceleration of succession, if so, what is the effect?OPD 8. Relief. R.S.A.No.2870 of 2002 -4- .... It is pertinent to mention here that Gian Singh died on 24.1.1972. On 11.2.1972, the plaintiffs filed an amended plaint claiming a decree for possession as well qua the suit properties and for declaration of ownership and in the alternative for possession of the property mentioned at Letter `C' in the head note. Pritam Kaur, on 17.2.1972, filed written statement to the amended plaint denying the claim of the plaintiffs. However, no additional issue was claimed. Thereafter, the plaintiffs led their evidence in affirmative. Even the defendant had examined two witnesses. On 10.5.1973, the plaintiffs filed an application for amendment of the plaint in view of the enforcement of the Punjab Custom (Power to Contest) Amendment Act,1973 as the right under the custom to contest alienation of ancestral property was abolished. They wanted to take up an alternative plea of the applicability of Hindu Law and the property in dispute being their coparcenary and of theirs being members of coparcenary with their brother Gian Singh. Pritam Kaur filed her reply dated 21.5.1973 to the aforesaid application and pleaded that the plaintiffs are not entitled to take up the plea as sought by them. On 12.9.1973, the application for amendment was dismissed by the trial Court as it was found to be mala fide and a new, different, and inconsistent case was sought to be introduced. R.S.A.No.2870 of 2002 -5- .... The plaintiffs thereafter filed an application on 23.10.1973 again for amendment of the plaint to the effect that the gift deed was the result of fraud and misrepresentation of facts. On 27.10.1973, Pritam Kaur filed her reply and sought the dismissal of the application as well as the suit. Prior to that, the defendant had moved an application on 22.10.1973 stating therein that the suit of the plaintiffs should be dismissed as it was no longer maintainable after the commencement of the Punjab Custom (Power to Contest) Amendment Act,1973, which was contested by the plaintiffs, who averred that the said Act was not applicable to the pending suits. Vide its judgment dated 3.11.1973, the Sub Judge, Bassi held that the ibid Act applied to the pending suits according to which no decree could be passed declaring an alienation of ancestral property to be invalid. Consequently, the suit was dismissed. The plaintiffs filed an appeal against the judgment of the trial Court, which was also dismissed by the Additional District Judge, Patiala. In the Regular Second Appeal, this Court affirmed the judgments of the Courts below vide order dated 25.9.1975. The plaintiffs filed a Petition for Special Leave to Appeal before the Supreme Court challenging the order of this Court,which was,later on, converted into Civil Appeal No.263 of 1976. The aforesaid appeal along with other similar appeals came up for hearing before the Apex Court and their Lordships, vide order dated R.S.A.No.2870 of 2002 -6- .... 20.11.1990, observed as under:- “As we find that in these appeals the cases of the appellants under Hindu Law were not gone into by the High Court & Lower Courts, we order the cases to be sent back forthwith to the High Court and direct the High Court to examine the cases of the willing appellants under Hindu Law after hearing the parties and,if needed, giving them opportunity to adduce further necessary evidence. The willing appellants may appear before the High Court for necessary instructions in this regard.” After remand, a learned Single Judge of this Court heard the learned counsel for the parties, accepted the appeal vide order dated 27.4.1995, set aside the impugned judgments and decrees and remitted the case to the trial Court for decision afresh and in accordance with law. The relevant portion of the said order reads as under:- “It has been conceded by respective counsel for the parties that there is no pleading to the effect that in the alternative their case needs to be examined under Hindu Law. Obviously, in the absence of such a pleading, the matter cannot be examined by this Court. Thus, keeping in view the direction of the Apex Court, the matter is remanded to the trial Court to decide the same afresh in the light of the directions given by the Apex Court vide order dated 20.11.1990. The trial Court, of course,would permit the plaintiffs to file amended plaint if an R.S.A.No.2870 of 2002 -7- .... application is filed in this regard as well as allow the defendants to file amended written statement,if need be, and thereafter allow the parties to adduce evidence in respect of the contentions so raised and then decide the matter. Accordingly, I accept the appeal, set aside the judgment and decree of the Additional District Judge and remand the case to Subordinate Judge, Fatehgarh Sahib for decision afresh in accordance with law. The parties through their counsel are directed to appear in the trial Court on 9.6.1995. Since the suit was filed sometime in the year 1971, the trial Court is directed to decide the matter expeditiously, preferably within this year.” The parties, thereafter, were given opportunity by the trial Court, to file amended plaint and written statement. The plaintiffs-respondents filed amended plaint verbatim the same which was filed earlier in the year 1972. The essential pleadings were:- (1)that Gian Singh was governed by the General Customary Law in the matter of alienation, inheritance and adoption till the enforcement of Hindu Succession Act and Hindu Adoption and Maintenance Act and that a male proprietor could not alienate the ancestral property by way of sale, mortgage, exchange, gift and will without consideration and legal necessity in the presence of his collaterals; (2) that the plaintiffs-respondents were the nearest best legal R.S.A.No.2870 of 2002 -8- .... heirs of Gian Singh and his property qua them was ancestral; (3) that Gian Singh was issueless and without a wife; (4) that Gian Singh had no legal relationship with Pritam Kaur (defendant no.1) and that she has been brought on thescene by certain persons, who are interested in damaging their reversionary rights; and (5) that the recital in the gift deed to the effect that Pritam Kaur daughter of Gurbax Singh was the wife of Gian Singh was wrong. Pritam Kaur (defendant no.1) had died on 18.6.1992 and, thereafter, present appellant no.1 – Mal Singh, claiming himself to be her legal heir on the basis of will dated 31.1.1972 executed by defendant no.1, filed written statement controverting the averments made in the amended plaint. It was also averred by Mal Singh that deceased-Pritam Kaur had sold some of the suit properties to different persons including defendant nos. 2 to 14 on the basis of the gift deed dated 1.10.1971 as well as the operation of the natural succession being the widow of Gian Singh. In the replication dated 21.11.1995 filed to the amended written statement filed by Mal Singh, the plaintiffs-respondents, for the first time, averred that Pritam Kaur daughter of Inder Singh of village Badlam Kalan was the wife of Gian Singh and that she had died on 2.2.1968 and that they alone were the legal heirs of said Pritam Kaur. It is important to point out here that all throughout in the suit R.S.A.No.2870 of 2002 -9- .... filed in the year 1971 and in the amended plaints filed in 1972 as well as 1995, Pritam Kaur daughter of Gurbax Singh was impleaded as defendant and in the replication dated 21.11.1995, as stated above, Pritam Kaur daughter of Inder Singh was introduced as wife of Gian Singh by the plaintiffs-respondents. On 18.12.1995, the trial Court framed the following issues on the basis of the fresh pleadings of the parties:- 1. Whether Pritam Kaur D/o Inder Singh was the wife of Gian Singh and not defendant no.1 as alleged? OPP 2. Whether property in dispute is coparcenary property of undivided family consisting of plaintiffs and their brother Gian Singh?OPP 3. Whether defendant No.1 is the widow of Gian Singh?OPD 4. Whether Gian Singh executed gift deed in favour of defendant No.1? If so, its effect?OPD 5. If issue No.4 is proved, whether the alleged gift deed is the result of fraud and misrepresentation for the reasons stated in the replication?OPP 6. Whether defendant no.1 executed registered will dt. 31.1.1972 in favour of Mal Singh S/o Avtar Singh, her alleged nephew? OPD 7. If issue no.6 is proved, whether the will is forged and fabricated document in connivance with other defendants?OPP R.S.A.No.2870 of 2002 -10- .... 8. Whether the suit is bad for non-joinder of necessary parties?OPD 9. Whether suit is not maintainable as alleged?OPD 10. Whether defendants no. 2 to 14 are bona fide purchasers as alleged in the written statement?OPD 11. Relief. After giving opportunity to the parties to lead further evidence and hearing their counsel, the trial Court, vide its judgment 26.8.1998, passed a decree of declaration and possession with costs to the effect that the plaintiffs are the owners of the suit property being brother of Gian Singh having reversionary rights in the suit properties because Gian Singh died issueless and his wife died before his death and are entitled to possession of the suit property. The First Appellate Court, vide its judgment dated 15.2.2002, affirmed the findings of the trial Court recorded on all the issues and dismissed the appeal of the appellants, i.e., Mal Singh and subsequent vendees of the suit properties. However, while determining controversy, both the Courts below came to the conclusion that the suit properties were not ancestral, but discarded the gift deed made by Gian Singh in favour of Pritam Kaur daughter of Gurbax Singh by holding that Pritam Kaur daughter of Inder Singh was his wife. The will dated 31.1.1972 executed by Pritam Kaur daughter of Gurbax singh in favour of appellant no.1-Mal Singh was also discarded. R.S.A.No.2870 of 2002 -11- .... Feeling aggrieved, the defendants have filed this appeal. I have heard the learned counsel for the parties and have perused the record. In my opinion, the following substantial questions of law arise for determination in this appeal:- (1)Whether the judgments of both the Courts below can be termed as judgments per incuriam because the judgment of the Supreme Court was only for examining the plea under Hindu Law and whether by misinterpreting & ignoring such a mandate, the Courts below have committed an insurmountable illegality on account of patent lack of jurisdiction? (2) Whether the respondents are completely estopped by their act and conduct to raise an altogether a new plea of relationship of Gian Singh with Pritam Kaur which was not at all raised upto the Supreme Court till remand and allowing of such a plea by the Courts below which is diametrically opposed to the one pleaded earlier, is legally incorrect? (3) Whether the Courts below had got jurisdiction to travel beyond the parameters of remand given by the Apex Court? (4) Whether a party can rake up an issue of fact which was abandoned at the earlier stage of litigation and whether a Court can look into the evidence which is not based on the pleadings? R.S.A.No.2870 of 2002 -12- .... In the circumstances of the case, the question which needs determination first is as to whether the Courts below were justified in travelling beyond the domain of the directions given by the Apex Court while remanding the matter and which were reflected in the order of this Court while remitting the matter to the trial Court. At the cost of repetition, the observations of the Apex Court as well as those of this Court made while remanding the matter, are reproduced below for proper appreciation:- “ Observations of the Apex Court contained in order dated 20.11.1990. “As we find that in these appeals the cases of the appellants under Hindu Law were not gone into by the High Court & Lower Courts, we order the cases to be sent back forthwith to the High Court and direct the High Court to examine the cases of the willing appellants under Hindu Law after hearing the parties and,if needed, giving them opportunity to adduce further necessary evidence. The willing appellants may appear before the High Court for necessary instructions in this regard. xx xx xx xx xx xx xx xx xx Observations of this Court contained in order dated 27.4.1995. “It has been conceded by respective counsel for the parties that there is no pleading to the effect that in the alternative their case needs to be examined under Hindu Law. Obviously, in the absence of such a pleading, the matter cannot be examined by R.S.A.No.2870 of 2002 -13- .... this Court. Thus, keeping in view the direction of the Apex Court, the matter is remanded to the trial Court to decide the same afresh in the light of the directions given by the Apex Court vide order dated 20.11.1990. The trial Court, of course,would permit the plaintiffs to file amended plaint if an application is filed in this regard as well as allow the defendants to file amended written statement,if need be, and thereafter allow the parties to adduce evidence in respect of the contentions so raised and then decide the matter. Accordingly, I accept the appeal, set aside the judgment and decree of the Additional District Judge and remand the case to Subordinate Judge, Fatehgarh Sahib for decision afresh in accordance with law. The parties through their counsel are directed to appear in the trial Court on 9.6.1995. Since the suit was filed sometime in the year 1971, the trial Court is directed to decide the matter expeditiously, preferably within this year.” It is abundantly clear from the above extracted observations that the Apex Court had remanded the case only qua a limited aspect of the matter, i.e., regarding the applicability of Hindu Law and that too was to be availed by the willing appellants before it. This Court also, while answering the Regular Second Appeal, had confined itself to the observations of the Apex Court and opportunity to be given to the parties to set up pleadings was also necessarily required to be confined to the narrow compass for which the remand had been made, implying thereby that the plaintiffs- R.S.A.No.2870 of 2002 -14- .... respondents had to incorporate a specific plea in the amended plaint regarding the suit properties being ancestral, coparcenary and the parties being governed by the Hindu Law of succession. Under no circumstance, a new plea could not be raised in the amended plaint in order to set up a case which was not pleaded earlier. The learned trial Court was, therefore, clearly in error when it permitted itself to travel into the domains which were alien to the earlier pleadings. In the first plaint which was filed in 1971 and thereafter amended in 1972, the plaintiffs had pleaded the few essentials which have been reproduced above and which are being extracted here for the purpose of reference:- 1. that Gian Singh was governed by the General Customary Law in the matter of alienation, inheritance and adoption till the enforcement of Hindu Succession Act and Hindu Adoption and Maintenance Act and that a male proprietor could not alienate the ancestral property by way of sale, mortgage, exchange, gift and will without consideration and legal necessity in the presence of his collaterals; (2)that the plaintiffs-respondents were the nearest best legal heirs of Gian Singh and his property qua them was ancestral; (3) that Gian Singh was issueless and without a wife; (4) that Gian Singh had no legal relationship with Pritam Kaur R.S.A.No.2870 of 2002 -15- .... (defendant no.1) and that she has been brought on thescene by certain persons, who are interested in damaging their reversionary rights; and (5) that the recital in the gift deed to the effect that Pritam Kaur daughter of Gurbax Singh was the wife of Gian Singh was wrong. In the plaint filed by the plaintiffs after the remand also, the aforemetioned essentials were pleaded. It was nowhere averred therein that Gian Singh's wife was Pritam Kaur daughter of Inder Singh and that she had died in the year 1968. This fact was pleaded for the first time in the replication as aforesaid and that too at the point of time when Pritam Kaur daughter of Gurbax Singh (defendant no.1) had expired in the year 1992. It is also to be noted that in the plaint filed in the year 1971 and amended in the year 1972, Pritam Kaur daughter of Gurbax Singh was impleaded as defendant by the plaintiffs themselves. At that time, Gian Singh and Pritam Kaur both were alive and had filed a joint written statement. The trial Court, therefore, was totally bereft of the factual aspects of the matter that could have been brought had Pritam Kaur daughter of Gurbax Singh had been alive. In any eventuality, this plea could not have been allowed to be raised by the trial Court and that too in the replication. In the Law of Pleadings, the plaintiff is required to state his case concisely and specifically which is put to the defendant, who, on notice, is required to admit or deny or put up his version to the case set up R.S.A.No.2870 of 2002 -16- .... by the plaintiff. The replication, even though part of the pleadings, cannot substantiate the positive case which is required of a plaintiff to be set up, more-so when the facts of the instant case reveal that such a case was never pleaded by the plaintiffs and it was a mere denial that Gian Singh died wife less and issueless and that Pritam Kaur daughter of Gurbax Singh had no relation with him. The plaintiffs were clearly required to state that Pritam Kaur daughter of Gurbax Singh was not related to Gian Singh and that Pritam Kaur daughter of Inder Singh was his wife who died in the year 1968. This case having not been set up and being contrary to the terms of remand, was, in my opinion, a completely new case which was pleaded and which could not have been allowed by the trial Court. Once the terms of remand are specific and centric to an issue, then the Courts below cannot travel beyond such a centricity as pin-pointed by the superior Court. Had it been a case of a generic order,merely setting aside the judgments of the Courts below and directing the matter to be tried afresh, then probably the case could have been different. Even then, the parties are to broadly abide by the pleadings which have already been stated. That apart, the plea of fraud qua the gift deed was also taken for the first time in the year 1995 when the donor and recipient had died. On the parity of reasoning given above, such plea could not have been permitted to be raised in the year 1995 and thus, the trial Court as well as the First Appellate Court were wrong in travellling beyond the terms of R.S.A.No.2870 of 2002 -17- .... order of remand. In so far as the status of the suit properties being ancestral is concerned, both the Courts below have held that the same were not ancestral while recording their findings qua issue no.2. This was the crucial issue which was required to be determined considering the nature of the terms of remand. Once this had been determined, then no other issue was required to be gone into and the evidence that has been led regarding Pritam Kaur daughter of Inder Singh being the wife of Gian Singh was clearly beyond the pleaded case of the parties. It is a settled proposition of law that no amount of evidence can be looked into if the same has not been specifically pleaded. The suit was filed during the life time of donor-Gian Singh, who supported the gift deed in favour of Pritam Kaur daughter of Gurbax Singh. If, at all, this alleged recipient was not the wife of Gian Singh and Pritam Kaur daughter of