IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. NO._303 of 1999. Judgment Reserved on: 4.6.2009 Date of Decision: 23.6.2009 Lokinder Singh & Ors. ……………Appellants Versus Neelam and another ………Respondents Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? No. For the appellants: Mr. N.K. Sood, Advocate , For the respondents: Mr. Jagan Nath, vice Mr. Anand Sharma, Advocate, for respondent No.1. Kuldip Singh, J This appeal is directed against the judgment, decree dated 25.5.1999 passed by learned District Judge, Chamba in Civil Appeal 23 of 1996, affirming the judgment, decree dated 3.9.1996 passed by learned Senior Sub Judge, Chamba in Civil Suit No.197/95/90/87. 2. The brief facts of the case are that respondent No.1 had filed a suit against appellants and respondent No.2. The appellants were defendants No.4,2,3 and 5 respectively and proforma respondent __________________________ Whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 No.2 was defendant No.1 in the suit. The suit was for possession by way of partition by respondent No.1 of her half share in the property situated on land comprised in khata No.369, Khatouni No.504, khasra Nos. 4146 and 4152 measuring 243 square yards and 5 square feet situated in Mohalla Drobhi, Chamba town on the grounds that Man Singh father of respondent No.1 had gifted the suit property to her and mutation dated 31.10.1985 to this effect was attested in her favour on the basis of gift. The respondent No.1 is joint owner in possession of half share in the suit property. She does not want to have joint property with the appellants and proforma respondent No.2, hence, she filed the suit. 3. The suit was contested by appellants by filing written statement and they took preliminary objections of locus standi, maintainability and family partition. On merits, it was pleaded that respondent No.1 is not legal heir of Man Singh, Smt. Prabha Devi alias Piar Dei is legal heir of Man Singh and she is a necessary party. Man Singh was not in a sound disposing mind after 1984-85 due to old age, infirmity of mind and illness. He was under the influence of keep Smt. Kamla alias Koula and if any gift is proved, then the same is void, illegal and is the result of collusion, duress and bad in the eyes of law. The suit property had already been partitioned and the appellants had made improvement to the extent of Rs.1,50,000/- on the suit property. The suit is bad for partial partition. 4. In replication, respondent No.1 denied the case of appellants. The trial Court had framed the following issues:- 3 1. Whether the plaintiff is co-owner to the extent of half share in the suit property as alleged? OPP 2. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether there had been family partition between Man Singh predecessor-in-interest of the parties as alleged, if so, to what effect?OPD 5. Whether defendants spent Rs.1,50,000/- on the renovation and improvements of the suit property, if so, to what effect? OPD 6. Whether the suit is collusive as alleged? OPD 7. Whether the plaintiff is estopped to bring the present suit by her own act and conduct?OPD 8. Whether the suit is bad for non-joinder and mis-joinder of causes of action and parties ?OPD 9. Relief. The issue No.1 was answered in affirmative, under issue No.5, it was held that appellants had carried out some improvements on the suit property but their value cannot be held to the extent of Rs.1,50,000/-. Issues No.2 to 4, 6 to 8 were answered in negative and suit was decreed on 3.9.1996. The District Judge on 25.5.1999 has affirmed the decree of the trial Court. The appeal has been admitted on following substantial questions of law:- 1. Whether the findings of the Ld. Courts below are vitiated for misconstruction and misreading of document Mark ‘B’ to hold the same as partition deed which on proper construction of the document and in the facts of the case emerges to be a memorandum of partition recording earlier transaction thus not requiring registration under Registration act? 2. Whether in Law a collateral in preference to a surviving class I heir has no right to challenge a transfer through gift made by their predecessor in interest? 4 5. Heard and perused the record. Mr. N.K. Sood, learned counsel for the appellants has submitted that the Courts below have mis-read and misinterpreted mark-B in returning the findings that mark-B is a partition deed and requires registration. He has also submitted that the appellants being collaterals have right to challenge the gift deed Ex.PW-2/A even if Smt. Prabha alias Piar Dei surviving daughter of Man Singh had not challenged the gift. The learned counsel for the respondent No.1 has supported the impugned judgment, decree 6. In mark-B, it has been provided that the partition or arrangement shall come in operation henceforth i.e. 28.5.1983. The heading of mark-B is also of a partition deed. DW-2 Raj Kumar has stated that the property was partitioned through mark-B. It is thus clear that as per the case of the appellants the private partition took place through mark-B which is not a registered document. The appellants have not proved that in fact some family arrangement took place earlier and there after its memorandum was prepared in the shape of mark-B. The appellants therefore cannot take benefit of mark-B. The substantial question of law No.1 is decided against the appellants. 7. The respondent No.1 had filed the suit that her father Man Singh had gifted half share in the suit property in her favour vide gift deed Ex.PW-2/A. The appellants have denied that respondent No.1 is the daughter of Man Singh. The question in 5 the suit is about the legality of Ex.PW-2/A. The two Courts below have recorded a concurrent finding of fact that gift deed Ex.PW- 2/A was legally executed by Man Singh in favour of respondent No.1. It is the case of the appellants that Man Singh has left behind daughter Smt. Prabha alias Piar Dei. Smt. Prabha alias Piar Dei daughter of Man Singh has not challenged the gift. The case of the appellants is that they are collaterals but as per their case the natural heir of Man Singh is Smt. Prabha alias Piar Dei. In absence of gift deed Ex.PW-2/A, even as per appellants, the suit property would go to Smt. Prabha alias Piar Dei by way of succession after Man Singh. The two Courts below have rightly recorded a finding that the appellants have no locus standi to challenge the gift deed Ex.PW-2/A in the presence of Smt. Prabha alias Piar Dei who has accepted the gift by not challenging the gift. The substantial question of law No.2 is accordingly decided against the appellants. 8. The two Courts below have rightly appreciated the material on record. The learned counsel for the appellants has failed to point out any misconstruction, misreading of the evidence. There is no perversity in the impugned judgment, decree. It has not been pointed out that inadmissible evidence has been considered and material evidence has been ignored by the two Courts below in decreeing the suit. There is no merit in the appeal. 9. No other point was urged. 6 10. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh) Judge June 23, 2009 (sks) 7