R.S.A. No. 666 of 1989 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 666 of 1989 (O&M) Date of decision: 21.1.2009 Rajnish Kumar and others ....Appellants Versus Ravinder Nath and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. H.S. Grewal, Advocate, for the appellants. Mr. Chetan Mittal, Sr. Advocate, with Mr. Kunal Mulwani, Advocate. ***** VINOD K. SHARMA, J This regular second appeal is directed against the judgment and decree dated 16.2.1989 passed by the learned lower appellate Court vide which the suit filed by the plaintiffs was ordered to be decreed by reversing the judgment and decree passed by the learned trial Court. The plaintiff/respondents brought a suit for declaration to the effect that the plaintiff Ravinder Nath and Hari Prem were owner in possession of 2/3rd share of land measuring 17 bighas 18 biswas comprised in khata No. 11/12, khasra Nos. 104(8-15), 105(4-0), 106(4- 0), 107(4-0), 108(4-0) and 112/1(0-2), situated in village Nandiali H.B. No. 229 Tehsil Kharar, as per jamabandi for the year 1977-78. Dev Raj was also joined as plaintiff No. 3 in the suit filed. R.S.A. No. 666 of 1989 (O&M) -2- The alternative relief of declaration was claimed to the effect that the registered gift deed dated 16.2.1983 executed by plaintiff Dev Raj in favour of Rajnish Kumar and Kuldip Kumar sons of Baldev Kishan, defendants, is a result of fraud and misrepresentation and had no effect on the rights and title of the plaintiffs over the land measuring 17 bighas 18 biswas. The plaintiffs brought the suit on the plea that defendant No. 1 along with plaintiffs constituted a Joint Hindu Family, where Dev Raj plaintiff No. 3 was the karta of the family. The plaintiffs claimed that they were Brahmins and governed by the Mitakshara School of Hindu Law. The property in dispute was said to be Joint Hindu Family property as Dev Raj plaintiff No. 3 succeeded to this property, which was not his self-acquired property. It was claimed that the plaintiff No. 3, in a family settlement, divided the property among three sons i.e. plaintiffs No. 1 and 2 and defendant No. 1 in equal shares and as per family settlement, the ownership and possession of the land was transferred to all the three brothers. Plainitffs No. 1 and 2 were also given an option to get the deed executed in order to satisfy themselves about transfer. Defendant No. 1 in order to deprive plainitffs No. 1 and 2, misled his father, Dev Raj, on the plea that he wanted to execute one deed in favour of his sons. It was also pleaded that it was not disclosed to Dev Raj that transfer deed was being procured for whole of the suit land instead of 1/3rd share belonging to Baldev Kishan. Dev Raj was said to be an old man of 80 years and undergoing treatment in P.G.I., who was said to be mentally upset. It was the case of the plaintiffs that R.S.A. No. 666 of 1989 (O&M) -3- as plainitffs No. 1 and 2 were living separately, so Baldev Kishan, defendant No. 1 took an opportunity to misled him to defraud the plaintiffs. Plaintiffs by coming to know about the transfer, filed a suit in the Court of Sub Judge 1st Class, wherein directions were issued to Baldev Kishan and Dev Raj not to execute the deed. However, the directions of Court could not be communicated to defendant No. 1 and plaintiff No. 3. Thus, deed stood executed. The said transfer deed claimed by the plaintiffs was, in fact, a gift deed in favour of Rajnish and Kuldip Kumar, defendants. The plea of fraud and mis-representation was also raised and it was claimed that in view of the family settlement, the same was inefective. The physical possession of the land was said to be under the tenants. The suit was contested by the defendants. Defendant No. 3 was minor at the time of filing the written statement. The stand of the defendant/appellants was that plaintiffs No. 1 and 2 were separate from the family. The joint family, in fact, was constituted of plaintiff No. 3 and the defendants. It was denied that the suit property was Joint Hindu Family property. It was claimed that the property was self-acquired property of Dev Raj plaintiff No. 3. It was denied that there was any family settlement between the parties. The possession of the land was said to be with the defendants. It was claimed that plaintiff No. 3 executed a valid gift deed on 16.2.1983 in favour of defendants No. 2 and 3 of his own free will. It was denied that plainitff No. 3 was under treatment. It was specifically pleaded that he was an educated person with perfect mental health. The allegation of R.S.A. No. 666 of 1989 (O&M) -4- fraud and mis-representation were also denied. Defendant/appellants claimed that they were owner in possession of the suit land, which was under their self-cultivation. Preliminary objections with regard to maintainability of the suit were also taken. It was specifically pleaded that Dev Raj plainitff No. 3 had not signed the plaint voluntarily and his signatures on the plaint were obtained by plaintiffs No. 1 and 2 under duress and coersion. It was claimed that the plaintiffs were not in possession of the suit land, special costs were claimed. In replication, pleadings in the plaint were reaffirmed and that of written statement were denied. The legal objections were denied. On the pleadings of the parties the learned trial Court was pleased to frame the following issues: “1. Whether the plaintiffs and defendant No. 1 constitute a joint Hindu Family and Dev Raj plaintiff No. 3 as the Karta of the family as alleged in para 2 of the plaint? OPP. 2. Whether the suit property is joint Hindu Family coparcenary property as alleged in para 4 of the plaint? OPP 3. Whether by way of family settlement, the suit property was divided the ownership and possession of the land was transferred to plaintiffs Nos. 1 and 2 and defendant No. 1 in equal share as alleged? OPD 4. Whether the plaintiff executed a valid gift on 16.2.1983 as alleged in para 8 of the written statement? OPD 5. Whether the suit has properly valued for court fee and jurisdiction? OPD 6. Whether the suit is not maintainable in the present form? OPD R.S.A. No. 666 of 1989 (O&M) -5- 7. Whether Dev Raj plaintiff No. 3 has not volutarily filed the present suit as alleged in preliminary objection No. 1. 8. Relief.” On appreciation of evidence brought on record, the learned trial Court on issue Nos. 1 and 2 was pleased to hold that except for the oral statement that the property in dispute was inherited by Dev Raj plaintiff No. 3 from his forefathers, no documentary evidence was placed on record to prove, it to be a Joint Hindu Family coparcenary property. The learned Court held that jamabandi Ex. P-2 disclosed that the suit property was exclusively owned by Dev Raj, and was in self-cultivation. The plea of the plaintiffs that it was under the possession of tenants was found to be false. On the basis of evidence brought on record, it was held that the property could not be said to be coparcenary Joint Hindu Family property with plaintiff No. 3 as karta thereof. The learned Court also observed that evidence was brought on record by way of documentary evidence showing that plaintiff No. 3 was abducted by plaintiffs No. 1 and 2. He was forcibly taken in a car from village Teera to Maloa and confined in one room in the tubewell where he was threatened to transfer land. His signatures were obtained on some blank papers. The learned Court observed that the statement, copy of which was placed as Ex. D-6, could not be disbelieved. Ex. D-6 further proved that Dev Raj was an intelligent man and was in a position to know his bad or good. It was further held that the property was under his exclusive ownership, and the same was gifted by way of gift deed Ex. D-1 to defendants No. 2 and 3 with possession. R.S.A. No. 666 of 1989 (O&M) -6- The possession of defendants No. 2 and 3 was proved by copy of khasra girdawari Ex. D-5 showing that the gift deed was acted upon and entered in the revenue record with red ink. The learned Court held that Ex. P-1, the family settlement was result of fraud. The learned Court also observed that it was not registered. Though it related to transfer of immovable property, therefore, could not be read in evidence nor did it confer any right or title in the plaintiffs. Issue Nos. 1 and 2 were decided against the plaintiff/respondents. On issue No. 3, the learned trial Court, on appreciation of evidence, recorded a finding that Ex. P-1 was result of fraud practised on plaintiff No. 3 by plaintiffs No. 1 and 2. Paintiff No. 3 denied his signatures on Ex. P-1. The learned Court observed that though signatures of PW-4 i.e. plaintiff no. 3 were proved on Ex. P-1 but the same were outcome of fraud, in view of the statement made before the Judicial Magistrate, 1st Class. Plaintiff No. 3 even denied having joined in the suit against Baldev Raj, Rajnish and Kuldip Kumar. The learned trial Court thus, held that the alleged family settlement Ex. P-1 did not confer any right on plaintiffs No. 1 and 2 nor they were found to be member of Joint Hindu Family. The learned Court held that the document being unregistered document did not transfer the title of land in favour of plaintiffs No. 1 and 2. Issue No. 3 was also decided against the plaintiffs. The execution of gift deed said to be proved, and issue No. 4 was decided against plaintiffs and in favour of defendant/appellants. However, issue No. 5 was decided in favour of the plaintiffs. Whereas issue No. 6 was decided against the plaintiffs. On issue No. 7, R.S.A. No. 666 of 1989 (O&M) -7- it was held that plaintiff No. 3 had not filed the suit voluntarily as he himself denied this fact while appearing in the witness box. The suit was thus, ordered to be dismissed. Only plaintiffs No. 1 and 2 preferred appeal against the judgment and decree. The learned lower appellate Court held that according to Hindu Law, Joint Hindu Family is presumed between father and sons, until and unless contrary is proved. The learned appellate Court observed that though there is no presumption regarding the property being Joint Hindu Family coparcenary property, however, the execution of family settlemnt Ex. P-1 stood proved by one of the marginal witnesses i.e. PW-2, Ram Nath and by evidence of PW-5, Sh. Gian Parkash Sharma, Document Expert. He gave his opinion although not definite one, by stating that there was some difference which was on account of time lapse between standard signatures and signatures on the document. The learned lower appellate Court thus reversed the finding on issue No. 1 by observing that document Ex. P-1 stood proved though the same was denied by plaintiff No. 3, the executant of the document. The learned appellate Court held that in the document there was an admission that plaintiff No. 3 along with his three sons and one daughter constituted Joint Hindu Family and that the property was Joint Hindu Family coparcenary property. The learned lower appellate Court also reversed the finding of the learned trial Court by observing that the document did not require registration as the compromise between the parties was not required to be registered. R.S.A. No. 666 of 1989 (O&M) -8- The learned lower appellate Court further held that once family arrangement was reached into between the close relations, it was not open to either of the party to back out of it. The learned lower appellate Court, therefore, observed that as family settlement Ex. P-1 was given effect to, and there were no cogent reasons, for disbelieving the same. The findings of the learned trial Court on issue Nos. 1, 2 and 3 were ordered to be reversed. Though the execution of gift deed was not disputed, but it was held that in view of the family settlement Ex. P-1, the gift deed could not be given effect. The suit was ordered to be decreed by reversing the findings of the learned trial Court. Mr. H.S. Grewal, learned Advocate, appearing on behalf of the appellants raised the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned lower appellate Court is outcome of misreading of documentary and oral evidence brought on record and, therefore, perverse? 2. Whether the judgment of the learned appellate Court which has totally ignored the finding of the learned trial Court in appreciating the Ex. D-3, Ex. D-4 and Ex. D-6 (including the statement of Dev Raj in the criminal Court stating that he was abducted by plaintiffs and kept under illegal confinement and his signatures were obtained on paper) could be sustained?” The learned counsel for the appellants in support of substantial questions of law, as framed, vehemently contended that in the present case, the learned trial Court, on appreciation of evidence brought on record, recorded a categoric finding that the plaintiffs had failed to prove the property to be Joint Hindu Family coparcenary property. The contetntion of the learned counsel for the appellants was R.S.A. No. 666 of 1989 (O&M) -9- that it was not in dispute that plaintiffs No. 1 and 2 were living separately, as it was the case set up in the plaint, that defendant No. 1 had taken advantage of their absence. In view of the pleadings and evidence brought on record, the finding of the learned lower appellate Court that there was presumption to the jointness of family on the face of it is perverse, as positive evidence was to the contrary. It is also the contention of the learned counsel for the appellants that the learned lower appellate Court held the propety to be coparcenary Joint Hindu Family property in view of Ex. P-1 i.e. alleged family settlement. This finding of the learned lower appellate Court is also perverse. Once plaintiff No. 3 had denied the execution of said document by taking a positive stand that he was made to sign the blank papers after being abducted, no reliance could be placed on Ex. P-1 or its contents. It is not only that the execution of Ex. P-1 was denied, but a positive stand was taken in a criminal case filed against plaintiffs No. 1 and 2 that plaintiff No. 3 was abducted and made to sign certain papers. The possibility of the document being forged and fabricated could, therefore, not be ruled out. No reason is also forthcoming as to why the family settlement was signed only by Dev Raj and no other person i.e. plaintiffs No. 1, 2 and defendant No. 1. The finding of the learned lower appellate Court cannot be sustained as the reading of Ex. P-1 shows that it is alleged to be a memorandum of family settlement, however, no date as to when the family settlement took place has been mentioned therein. It clearly shows that attempt was made to make this document admissible in evidence as the family settlement vide which immovable property is R.S.A. No. 666 of 1989 (O&M) -10- sought to be transferred, required registration. The learned trial Court, in fact, was right in holding that the document Ex. P-1 could not be read in evidence. The findings of fact recorded by the learned trial Court could not be reversed by the learned lower appellate Court merely on surmises. The finding of the learned lower appelalte Court that the property was coparcenary Joint Hindu Family property also can be sustained in absence of documentary evidence on record. The executant of the doucment was one of the plaintiffs and not defendant, whose admission could be taken to be binding. It was for plaintiffs to prove that the property was coparcenary Hindu Joint Family property by producing on record documentary evidence by way of revenue record showing inheritance from forefathers. There is no evidene whatsoever on record to prove this fact. The findings of the learned appellate Court thus, cannot be sustained. Mr. Chetan Mittal, learned senior counsel, appearing on behalf of the respondents, however, contended that the finding of the learned lower appellate Court is based on appreciation of evidence brought on record. The contention of the learned senior counsel was that once the signatures on Ex. P-1 stood proved by examining an Hand Writing Expert, who did not rule out the possibility of the same, to have been signed by Dev Raj. The learned lower appellate Court, therefore, was fully justified to hold it to be valid doucment as the family settlement between the close relations did not require registration. However, on consideration of matter, I find force in the contentions raised by the learned counsel for the appellants. The R.S.A. No. 666 of 1989 (O&M) -11- evidence brought on record shows that plaintiff No. 3 was abducted by plaintiffs No. 1 and 2, and made to sign certain papers. Plaintiff No. 3 denied having joined plaintiffs No. 1 and 2 in filing the suit. He even denied the execution of family settlement Ex. P-1. The Ex. P-1, the family settlement does not inspire confidence as it is shown to be memorandum of family settlement, but gives no date as to when the family settlement was arrived at between the parties, nor it bears the signatures of other family members. In case any such family settlement was actually arrived at, then it would have been signed by other family members also and would have been reflected in the revenue record. The plea of plaintiffs No. 1 and 2 that the suit land was in possession of tenants also stood belied by evidene on record. For the reasons stated above, the substantial questions of law, as framed, therefore, deserve to be answered in favour of the appellants. This appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside and that of learned trial Court is restored but with no order as to costs. (Vinod K. Sharma) Judge January 21, 2009 R.S.