R.S.A. No. 2929 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2929 of 2008 (O&M) Date of decision: 30.1.2009 Mrs. Manjit Madan ....Appellant Versus Surjit Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. A.S. Grewal, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 19.9.2007 and 29.7.2008 passed by the learned Courts below vide which suit filed by the plaintiff/respondent for declaration that the plaintiff is owner in possession of Kothi No. 106, Section 28-A, Chandigarh, after the death of his father with consequential relief of permanent injunction restraining the defendant/appellant from dispossessing the plaintiff from the said Kothi and from interfering in peaceful possession, and enjoyment of the same, has been decreed. The plaintiff brought a suit claiming that the property in dispute was purchased by Lochan Singh S/o Mohan Singh and Smt. R.S.A. No. 2929 of 2008 (O&M) -2- Jaswant Kaur, father and mother of the plaintiff/respondent by way of registered sale deed dated 7.10.1974. Lochan Singh and Jaswant Kaur executed their separate 'Wills', duly registered with the Sub Registrar, U.T., Chandigarh,vide which they bequeathed the property falling to their share in favour of the plaintiff/respondent. The suit was contested by the appellant/defendant on the plea that she was entitled to half share over the property, as the 'Will' executed in favour of the plaintiff/respondent was not a genuine document and was surrounded by suspicious circumstances. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - “1. Whether the plaintiff is entitled to decree for declaration as prayed for? OPP 2. Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD 5. Whether suit is bad on account of non joinder of necessary parties, if so, who are the necessary parties and to what effect? OPD 6. Relief.” The learned trial Court, on appreciation of evidence, decided issue Nos 1 and 2 in favour of the plaintiff/respondent, whereas, issue Nos. 3, 4 and 5 were decided against the defendant/appellant. Consequently, the suit was decreed. The findings recorded by the learned trial Court stand affirmed by the learned lower appellate Court. R.S.A. No. 2929 of 2008 (O&M) -3- Mr. A.S. Grewal, learned counsel, appearing on behalf of the appellant, contends that the following substantial questions of law arise for consideration in this appeal: - “1. Whether Section 45 of the Transfer of Property Act, 1882 applies to bequeaths and gifts? 2. Whether the 'Wills' have been proved to be genuine in view of fact that the son of the witness has denied the signatures of his father? 3. Whether the latter part of Section 45 of the Transfer of Property Act, 1882 applies if there is no evidence of ratio of moneys paid towards the purchase of joint property? 4. Whether the learned Courts below have failed to appreciate the fact that the 'Wills' in question only transferred 2/3rd and 1/3rd share respectively to the respondent? 5. Whether the Courts below have failed to deal with the question regarding balance 50% share of 2/3rd share and balance 50% share in the demised premises? 6. Whether the judgment/decree has attained finality in view of the fact that interim application moved has not been decided? 7. Whether the judgment/decree has attained finality in view of the fact that the learned District Judge has not dealt with the question of amendment of pleadings?” In support of the substantial questions of law, learned counsel for the appellant contends that the learned Courts below committed an error in rejecting the plea of the defendant/appellant that the total suit property was not bequeathed in favour of defendant/appellant as per true interpretation of the 'Will' executed by executants. The contention of the learned counsel for the appellant was that the learned Courts below committed an error in relying on Section R.S.A. No. 2929 of 2008 (O&M) -4- 45 of the Transfer of Property Act to hold that the plaintiff/respondent had become owner of the property in dispute, as the provisions of Section 45 of the Transfer of Property Act are not applicable in case of 'Will' or gift. In support of the contention, reliance has been placed on Division Bench judgment of Madras High Court in 1911, Vol. 34, page 80, Arakal Joseph Babriel Vs. Domingo Inas and others. I find no force in the contention raised by the learned counsel for the appellant. It is pertinent to mention here that the learned Courts below have not applied Section 45 of the Transfer of Property Act to non-suit the defendant/appellant, as is contended. The appellant had merely raised a plea that the mention of 2/3rd share and 1/3rd share in the 'Will' though it had to be presumed to be 50% share, is a suspicious circumstance. This plea that mention of 2/3rd share and 1/3rd share is a suspicious circumstance to reject the 'Will', cannot be sustained, once the husband and wife executed the 'Will' claiming that their share was only 1/4th and 3/4th. The learned Courts rightly held that by virtue of both the 'Wills', the total suit property stood transferred to the respondent/plaintiff. On the second substantial question of law, the learned counsel for the appellant contends that the 'Will' was not proved, as son of one of the attesting witnesses has denied the signatures of his father on the 'Will' and, therefore, the learned Courts below committed an error in law in accepting the 'Will' to be genuine. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact that the son of one of the witnesses was not deposing correctly due to the relationship with the R.S.A. No. 2929 of 2008 (O&M) -5- defendant/appellant. Rather the 'Will' was proved by other attesting witness. This contention of the learned counsel for the appellant also cannot be accepted. The 'Will' has been rightly held to be genuine. On the third substantial question of law, as framed, the learned counsel for the appellant contends that the second part of Section 45 of the Transfer of Property Act was applicable, as no mention was made in the sale deed as to the share of the vendees. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Madras High Court in Tehmina Vs. The Official Assignee AIR 1976 Madras 222. This plea of the learned counsel for the appellant also cannot be accepted. There is no dispute inter se between the vendees, as both husband and wife in their respective 'Wills' have bequeathed their share in favour of their son. It is not in dispute that the 'Wills' were executed at the same time. The third substantial question of law, as framed, also does not arise for consideration. In support of forth substantial question of law, as framed, the learned counsel for the appellant contends that once it was proved on record that no share was mentioned in the sale deed, therefore, in view of the law laid down by the Hon'ble Madras High Court in Tehmina Vs. The Official Assignee AIR 1976 Madras 222, it has to be presumed that both the husband and wife were owner to the extent of 50% share. Taking this into consideration, it has to be presumed that the 'Will' executed by the father bequeathing 2/3rd share in the suit property was bad in law, as he had no right to bequeath property, more than his share. The contention is that it has to be presumed that he executed the 'Will' R.S.A. No. 2929 of 2008 (O&M) -6- qua 50% share only and thus, the remaining share which was not transferred by way of 'Will' was to be inherited in the ratio of 50:50. In view of this eventuality, the suit qua 1 kanal of the land was required to be dismissed. This plea of the learned counsel for the appellant is mis- conceived. It is not in dispute that mother had bequeathed her share in favour of her husband with a stipulation that if husband pre-deceases, then it would go to her son. Thus, it is seen that in any case the executants bequeath their property in favour of plaintiff. The fifth substantial question of law as raised is also similar, does not arise for consideration in this appeal. In support of sixth substantial question of law, the learned counsel for the appellant contends that an application moved by the defendant/appellant for stay of alienation of property was not decided by the learned trial Court, and is still pending and, therefore, the judgments and decree passed by the learned Courts below deserve to be upset on this ground alone. This argument is totally mis-conceived. Interim order, if any, passed on an interim application, not affecting the final decision of the case merge with the final judgment and decree. Merely because injunction application is not decided can be ground to set aside judgment and decree of learned Courts below, passed on merits. The plea raised cannot be said to be question of law, muchless substantial question. The seventh substantial question of law, as framed, by the learned counsel for the appellant is also totally mis-conceived. It is not in dispute that the application moved by the defendant/appellant for R.S.A. No. 2929 of 2008 (O&M) -7- amendment of written statement was dismissed by the learned trial Court. Though it is the case of the appellant that before the learned lower appellate Court, the said decision was challenged, but nothing finds mentioned in the judgment passed by the learned lower appellate Court. Nothing has been shown if application was moved by the appellant before the learned lower appellate Court, as to why the contention raised was not adjudicated. The amendment application was rightly dismissed by learned trial Court. The order was thus not challenged before the learned lower appellate Court, though mentioned in grounds. In view of the settled law, it has to be presumed that the said point was not raised and, if raised is deemed to have been rejected. In view of findings recorded above, the substantial questions of law, as framed, are answered against the appellant/defendant. No merit. Dismissed in limine. (Vinod K. Sharma) Judge January 30, 2009 R.S.