RSA No.364 of 1981 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.364 of 1981(O&M) Date of decision: 11.3.2010 Makhan Singh ............Appellant Versus Joginder Singh and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Ms. Simran Chahal, Advocate for the appellant. Mr. Shailendra Sharma, Advocate for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. This is a second appeal filed by the plaintiff/appellant, assailing the judgment and decree dated 20.3.1978 passed by the learned trial Court, dismissing the suit of the plaintiff and further judgment and decree dated 8.9.1980 passed by the learned first Appellate Court/Addl. District Judge, Hoshiarpur, thereby partly decreeing the suit for other properties, however, dismissing the suit for possession of the plaintiff for half share of the property in Village Mansowal. 2. The brief facts of the present case are that plaintiff instituted the suit of possession of ½ share of three different pieces RSA No.364 of 1981 (O&M) 2 of property of which consisted of 76 kanals 15 marlas of land situated in the area of Village Mansowal and described in details in head note (i) of the plaint and the second consisted of 56 kanals 9 marlas of land situated in the area of Village Dalewal and described in details in head note (ii) of the plaint and third of which was a house situated in the area of village Dalewal. As per the plaintiff, his grandfather Harnam Singh was owner and in possession of ½ share of the properties in dispute, who died about 10 years ago. Jagta @ Jagat Singh, father of the plaintiff, however, died during the life-time of his father Harnam Singh 15 years ago, at that time plaintiff was a minor but now has attained the age of majority, when the present suit was filed on 1.12.1975; that during his childhood, the defendants took forcible and illegal possession of the properties in dispute falling to his share and in connivance with the Revenue Authorities got mutation attested in favour of them. Hence, the present suit. 3. Defendants contested the suit. It was alleged by the defendants that the property mentioned at head note(i) was owned and possessed by Hazara Singh, father of Harnam Singh; said Hazara Singh made a valid gift in favour of defendants No.1 and 2 about 45 years ago in lieu of service as chelas and grandsons; as regards properties mentioned at head note (ii) and (iii) of the plaint, Harnam Singh has made a valid Will in favour of defendant No.3 and Kultar Singh son of defendant No.1; after the death of Kultar Singh, his share in those properties went to defendant No.4, his mother; they added that Harnam Singh died about 14 years ago; that the suit was not properly valued for the purposes of court fee and jurisdiction; was not within time and that the plaintiff had no locus standi to sue. 4. On the pleadings of the parties, following issues were RSA No.364 of 1981 (O&M) 3 framed by the learned trial Court:- “1. Whether Harnam Singh was owner of the entire property in suit? 2. Whether Harnam Singh made a valid Will, as alleged, in favour of defendant No.3 and one Kartar Singh, of properties at head notes (ii) and (iii)? 3. Whether property at head note (i) was owned by Hazara Singh and he gifted it in favour of defendants No.1, 2 as alleged? 4. Whether the building at head note (iii) were built by defendants No.1, 2 as alleged? If so, its effect? 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction? 6. Whether suit is within time? 7. Whether defendant No.4 has been correctly described, if not its effect? 8. Relief?” 5. Learned trial Court has held that plaintiff has failed to prove that Harnam Singh was owner of ½ share of the properties in dispute and dismissed the suit of the plaintiff. 6. Feeling aggrieved from the dismissal of the suit by the learned trial Court, he preferred first appeal. Learned first Appellate Court partly dismissed the suit for possession of the plaintiff for half share of the property in Village Mansowal. 7. During the hearing of the first appeal, learned first Appellate Court has recorded the concession given by learned Counsel appearing for the plaintiff/appellant to the effect that Hazura Singh had gifted the land measuring 76 kanals 15 marlas situated in the area of Village Mansowal as mentioned in details in head-note (ii) of the plaint to Joginder Singh and Karam Singh, RSA No.364 of 1981 (O&M) 4 defendants/respondents. Having so recorded, learned first Appellate Court dismissed the suit of the plaintiff for joint possession of half share for the suit property under head-note (i) of village Mansowal, however, decreed the suit of the plaintiff for the property mentioned under head-note (ii) and (iii). 8. Feeling aggrieved from the dismissal of the suit by the learned first Appellate Court pertaining to the property under head- note (i) of Village Mansowal, plaintiff/appellant has preferred present second appeal. 9. Having heard learned Counsel for the parties, I am of the opinion that in the present appeal, following substantial questions of law arises for consideration:- “1. As to whether plaintiff/appellant is bound by the wrong concession given by his Counsel on the question of law? 2. As to whether oral gift is valid in view of Section 123 of the Transfer of Property Act, 1882?” 10. I have heard learned Counsel for the parties and perused the record. 11. Since, both the substantial questions of law are inter- related, hence, both are being taken up together. 12. Undisputedly, pedigree table of the parties is as under:- Hazura Singh Basant Singh Harnam Singh Joginder Singh Karam Singh Jagat Singh (Deft. No.1) (Deft. No.2) Kultar Singh Avtar Singh Makhan Singh (Plaintiff) RSA No.364 of 1981 (O&M) 5 (deceased) (Deft. No.3) 13. Both the Counsel appearing before me asserted that the findings recorded by learned first Appellate Court that suit is within time and plaintiffs are entitled for the relief pertaining to the property under head-note (ii) and (iii) are not in dispute. Learned Counsel appearing for the defendants/respondents is not disputing any finding recorded by the learned first Appellate Court and submitted that since Counsel for the plaintiff/appellant has admitted the alleged gift by Hazura Singh in favour of defendants No.1 and 2, hence, present second appeal is not maintainable and plaintiff/appellant are estopped to challenge the judgment of the first Appellate Court on the question of gift by Hazura Singh. 14. Since, the only dispute remains between the parties is pertaining to the validity of the gift as allegedly admitted by learned Counsel for the plaintiff/appellant before first Appellate Court, hence, I proceed to decide question pertaining to the validity of gift. 15. Section 123 of the Transfer of Property Act, 1882 reads as under:- “123. Transfer how effected – For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same RSA No.364 of 1981 (O&M) 6 way as goods sold may be delivered.” 16. In view of Section 123 (supra), the gift of immovable property which is not registered is bad in law and cannot pass any title to the donee. Any gift of immovable property cannot be made in violation of Section 123 of the Transfer of Property Act. Mere delivery of possession without registered instrument cannot confer any title. I find support from the judgment of learned Single Judge of Delhi High Court in the matter of Wg. Cdr. (Retd.) R.N. Dawar vs. Ganga Saran Dhama reported in AIR 1993 Delhi 19. Now question remains, what would be the effect of concession given by learned Counsel for the plaintiff/appellant before the learned first Appellate Court, in view of my finding recorded herein before that gift of immovable property can be made only by registered written instrument and not otherwise. 17. Learned Counsel for the plaintiff/appellant has cited judgment of the Hon’ble Apex Court in the matter of Uptron India Ltd. V. Shammi Bhan and another reported in AIR 1998 Supreme Court 1681, whereby the Hon’ble Apex Court in paragraph No.23 has observed as under:- “23……..Even otherwise, a wrong concession on a question of law, made by a Counsel, is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. The reliance placed by Mr. Manoj Swarup on this judgment, therefore, is wholly out of place.” 18. In view of the judgment of the Hon’ble Apex Court in the case of Uptron India Ltd. (supra), I am of the view that no Counsel RSA No.364 of 1981 (O&M) 7 can give any concession which is against the law. Moreover, this is a settled principle of law that there cannot be any estoppel against the statute. Since, there cannot be any estopple against the statute, hence, alleged concession given by learned Counsel for the plaintiff/appellant before the first Appellate Court cannot confer any title in favour of the defendants pursuant to the alleged gift, which in the eye of law is void ab nitio and non est. Both the substantial questions of law, therefore, answered in favour of the plaintiff/appellant. 19. In view of the findings recorded hereinbefore, I am of the opinion that judgment of the first Appellate Court pertaining to the dismissal of suit, pertaining to possession of half share over property in dispute under head-note (i) in the plaint of Village Mansowal, is liable to be set aside and suit of the plaintiff/appellant is liable to be decreed in toto. 20. The appeal is allowed. Judgment passed by the first Appellate Court is modified to the extent that suit of the plaintiff for the relief claimed in the plaint is decreed for entire property mentioned in the plaint. The plaintiff/appellant shall be entitled for cost of the litigation from the defendants/respondents. (ALOK SINGH) 11th March, 2010 JUDGE ashish