IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.562 of 1990 Date of decision: 6th September, 2010 Dhanwant Rai Sood … Appellant Versus Bhagwan Kaur alias Narain Kaur and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Aggarwal, Advocate for the appellant. Mr. G.S. Punia, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. The instant appeal has been filed by Dhanwant Rai Sood- defendant No.2 to the suit instituted by Bhagwan Kaur alias Narain Kaur. The suit filed by Bhagwan Kaur alias Narain Kaur was decreed by the Court of Sub Judge (1st Class), Nabha on 11th March, 1987. Aggrieved against the same, the appellant-Dhanwant Rai Sood had filed an appeal, which was dismissed by the Court of Additional District Judge, Patiala on 25th November, 1989. Hence the present Regular Second Appeal. Bhagwan Kaur alias Narain Kaur respondent-plaintiff instituted a suit for declaration against Karmo, widow of Jawand Singh and Dhanwant Rai Sood-present appellant seeking declaration to the effect that the sale deed dated 19th October, 1983 executed by Karmo- defendant No.1 to the suit in favour of the appellant-Dhanwant Rai Sood- defendant No.2 to the suit, pertaining to the land described in the head- note of the plaint was illegal, void and nonest. A consequential relief of Regular Second Appeal No.562 of 1990 permanent injunction restraining defendant No.2-present appellant from raising any construction over the property was also sought. It was pleaded by Bhagwan Kaur alias Narain Kaur that she was a daughter of Jawand Singh and defendant No.1-Karmo was widow of Jawand Singh. Jawand Singh, in his lifetime, had executed a Will in respect of his property, including the suit property, in favour of defendant No.1-Karmo, entitling her to enjoy the fruits of the property till her death. However, no right was given to her to alienate or gift the said property during her lifetime. Karmo had executed a gift-deed dated 21st September, 1971 in favour of one Achhru Ram son of Tara Chand in respect of the suit property. Bhagwan Kaur alias Narain Kaur respondent-plaintiff had filed a suit for declaration to the effect that the gift-deed dated 21st September, 1971 executed by Karmo-defendant No.1 to the suit in favour of Achhru Ram was inoperative and ineffective qua the rights of Bhagwan Kaur alias Narain Kaur respondent-plaintiff. She also pleaded that she was in possession of major portion of the property. The said suit was contested by Karmo-defendant No.1 to the suit and Achhru Ram, in whose favour the gift-deed was made. The suit was decreed in favour of Bhagwan Kaur alias Narain Kaur on 12th December, 1974 and a decree was passed to the effect that the gift-deed dated 21st September, 1971 executed by Karmo-defendant No.1 to the suit in favour of Achhru Ram was inoperative and ineffective, as Karmo had no right to alienate the property as per the Will of Jawand Singh. It was specifically pleaded in the suit that the decree and judgment of the Court dated 12th December, 1974 operate as res-judicata between Bhagwan Kaur alias Narain Kaur respondent- plaintiff and Karmo-defendant No.1 to the suit and thus, if she had no power to alienate the property by gift-deed, she could not do the same by executing a sale deed in favour of appellant-defendant No.2 to the suit. 2 Regular Second Appeal No.562 of 1990 Karmo was proceeded against ex-parte. In the written statement filed, the appellant herein pleaded that neither he was aware of any Will nor of any gift-deed in favour of Karmo, nor of the earlier decision of the suit. Bhagwan Kaur alias Narain Kaur herself appeared as PW-1. She tendered decree-sheet Ex.P2 and judgment Ex.P3 dated 12th December, 1974, wherein in the earlier suit, rights of Karmo-defendant No.1 to the suit, to alienate the property were determined. The defendants examined Dharam Singh Puri, Deed Writer as DW-1 to prove the sale deed executed by Karmo in favour of the appellant. To similar effect, Sohan Lal Garg, Deed Writer DW-2 also proved the sale deed. Darshan Kumar Goyal DW-3 proved the site plan attached with the sale deed Ex.D1. Dilbagh Rai DW-4 deposed to the effect that Dhanwant Rai Sood-appellant was in possession of the property. Mohan Singh DW-6 testified to the effect that the appellant herein was in possession of the property. Dalip Singh DW-7 proved the Will Ex.D10 executed by Jawand Singh, father of Bhagwan Kaur alias Narain Kaur respondent-plaintiff, in favour of Karmo-defendant No.1 to the suit. The entire case revolves around the judgment Ex.P3 rendered in an earlier suit filed by Bhagwan Kaur alias Narain Kaur respondent-plaintiff against Karmo and Achhru Ram. In the judgment Ex.P3, some of the issues framed were: (i) Whether Bhagwan Kaur alias Narain Kaur respondent- plaintiff was a daughter of Jawand Singh? (ii) Whether Karmo-defendant No.1 to the suit had made a valid gift-deed in favour of Achhru Ram? (iii) Whether Bhagwan Kaur alias Narain Kaur respondent- plaintiff had become the owner of the estate of Jawand Singh or not? 3 Regular Second Appeal No.562 of 1990 The Civil Court, vide its judgment Ex.P3, gave a finding that Bhagwan Kaur alias Narain Kaur was a daughter of Jawand Singh. It was held that on the facts of the case, Sub-Section 2 of Section 14 of the Hindu Succession Act, 1956 will be applicable and Karmo came into possession of the land in dispute on the strength of the Will Ex.D10, which restricted her rights regarding transfer in any way. Bhagwan Kaur alias Narain Kaur was already in possession of the property, therefore, Karmo was not competent to transfer the land through the gift-deed Ex.D1 to Achhru Ram. In the present suit, the Sub Judge (1st Class), Nabha had formulated the following issues: “1. Whether the plaintiff is daughter of Jawand Singh deceased? OPP 2. Whether defendant No.1 was the limited owner of the property in dispute as alleged? OPP 3. If issue No.2 is proved, whether the sale deed dated 19.10.1983 is illegal and void? OPP 4. Relief.” Subsequently, an additional issue was also framed, which reads as under: “3A. Whether the judgment and decree dated 12.12.1974 operates as resjudicata between the plaintiff and defendant No.1? OPP.” It was held in the present suit that Bhagwan Kaur alias Narain Kaur respondent-plaintiff was daughter of Jawand Singh. The Court observed as under: “9. … … … now, this judgment Ex.P3 shall operate as resjudicata between the plaintiff and defendant No.1 as it has been held in the aforesaid judgment that defendant No.1 was the limited owner of the property in dispute and that is why, it was held in the aforesaid judgment that gift deed 4 Regular Second Appeal No.562 of 1990 executed by defendant No.1 Karmo in favour of Achhru Ram was inoperative, ineffective qua the rights of the plaintiff after the death of the defendant No.1. So, in view of judgment, which was delivered while discussing the Will of Jawand Singh, the defendant No.1 shall be held limited owner of the property in dispute and she shall be owner of the property in dispute only during her life time, and she shall not have rightly alienation of property. This issue is accordingly decided in favour of the plaintiff and against the defendants.” The Court further held as under: “10. … … … So far and so long as this judgment subsists, the defendant No.1 shall have no right to alienate this land and as such, alienation, if any, shall be ineffective and inoperative qua the rights of the plaintiff after the death of defendant No.1.” The appeal filed by the present appellant-defendant No.2 to the suit was also dismissed. The appellate Court below has also held that the judgment Ex.P3 operates as resjudicata, and observed as under: “14. The other contention of the learned counsel for the appellant was that there could be no bar of resjudicata in a question of law. However, in the earlier suit, it was held as a matter of fact that Karmo defendant No.1 had obtained only a limited estate under the Will and this is not a matter of law and therefore, this finding would operate as resjudicata.” I have heard counsel for the parties. Counsel for the appellant has stated that in the present appeal, following substantial questions of law arise for consideration of this Court: “A. Whether a judgment would operate as res-judicata against the appellant when he was not party to it? 5 Regular Second Appeal No.562 of 1990 B. Whether a finding against a proforma defendant would operate as resjudicata? C. Whether a question of law operates as res-judicata? D. Whether a widow in possession of the property in lieu of maintenance does not become absolute owner? E. Whether a person can claim succession when her predecessor-in-interest had already been dis-inherited?” It is not disputed that the judgment Ex.P3 dated 12th December, 1974 had attained finality and the rights between the parties i.e. Bhagwan Kaur alias Narain Kaur and Karmo were adjudicated upon and stood determined. It was held in the judgment Ex.P3 that limited rights had flown to Karmo in pursuance of the Will Ex.D10 and she was not competent to alienate the property belonging to Jawand Singh. Bhagwan Kaur alias Narain Kaur respondent-plaintiff was also held to be the daughter of Jawand Singh. The appellant herein-defendant No.2 to the suit, because of the sale deed, can only step into the shoes of Karmo. In the earlier suit, vide judgment Ex.P3, it was held that Karmo was not competent to execute the gift-deed in favour of Achhru Ram and she could not alienate the property. The sale deed executed by her in the present case in favour of the appellant can also not sustain in the eyes of law. Therefore, it has been rightly held by both the courts below that the judgment Ex.P3 in the earlier suit operates as res-judicata and Karmo has no right to alienate the estate of Jawand Singh. Therefore, after the death of Karmo, the successors of Jawand Singh will inherit the property. But the matter of fact remains that Karmo was not competent to execute the sale deed in favour of the present appellant and the suit has been rightly decreed in favour of Bhagwan Kaur alias Narain Kaur respondent- plaintiff. On facts of the case, the question sought to be raised and 6 Regular Second Appeal No.562 of 1990 noticed above cannot be said to be of substantial nature to disturb concurrent finding of fact. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 6, 2010 rps 7