R. S. A. No. 711 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 711 of 2011 Date of Decision : February 09, 2011 Gurmeet Singh .... Appellant Vs. Manjeet Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vikas Gupta, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 Gurmeet Singh has filed the instant second appeal. It is unfortunate litigation among the siblings. Suit was filed by respondents no.1 and 2/plaintiffs (Manjit Singh and his wife Balbir Kaur) against defendant no.1/appellant Gurmeet Singh and defendant no.2/proforma respondent no.3 Satnam Singh. Plaintiff no.1 and both defendants are sons of Gurbachan Singh. Defendant no.2, being of unsound mind, was sued through his mother Harbans Kaur as Guardian. Undisputedly the suit house was owned and possessed by R. S. A. No. 711 of 2011 2 Gurbachan Singh, vide registered conveyance deed dated 13.08.1962. On his death, it was inherited by his four sons i.e. plaintiff no.1, defendants no.1 and 2 and Darshan Singh and also by a daughter Ranjit Kaur and widow Harbans Kaur i.e. 1/6th share each. Plaintiffs' case is that Ranjit Kaur gifted her 1/6th share in the suit property in favour of her three brothers i.e. Darshan Singh, plaintiff no.1 and defendant no.1 vide registered gift deed dated 28.04.1999. In December 2003, Darshan Singh sold his share in the suit property to plaintiff no.1 and defendant no.1 in equal shares vide registered sale deed dated 09.12.2003. Thus, plaintiff no.1 and defendant no.1 became owners of the suit house to the extent of 1/3rd share each. Thereafter, plaintiff no.1 purchased 1/6th share of his mother Harbans Kaur vide registered sale deed dated 09.06.2004 and consequently, plaintiff no.1 became owner in possession of half share of the suit property. Then he gifted 1/3rd share out of it to plaintiff no.2 vide registered gift deed dated 06.11.2006. Thus, according to plaintiffs, plaintiff no.1 is left with 1/6th share, plaintiff no.2 and defendant no.1 have 1/3rd share each and defendant no.2 has 1/6th share in the suit house. The plaintiffs' further case is that on 02.01.2007, parties mutually partitioned the suit house. Northern portion measuring 262.66 sq. yds., depicted by letters ABGH in site plan, came to defendant no.1; Middle portion measuring 393.93 sq. yds., depicted by letters GHIJ in the site plan, came to the share of plaintiffs; whereas Southern portion measuring 131.41 sq. yds., depicted by letters IJCDEF, R. S. A. No. 711 of 2011 3 came to the share of defendant no.2, the total area of house being 788 sq. yds. The parties raised construction over their respective portions. Accordingly, plaintiffs sought declaration that the parties are owners in possession of aforesaid respective portions in the suit house. In the alternative, the plaintiffs sought partition of the suit house according to the aforesaid shares. Defendant no.1 inter alia pleaded that Ranjit Kaur gifted only 100 sq. yds. area out of her share to her three brothers and the remaining area is still of her share. Sale deed by Harbans Kaur in favour of plaintiff no.1 was denied. The said sale deed was said to be result of fraud. Harbans Kaur was alleged to be illiterate and parda nashin lady. No sale consideration was paid to her by plaintiff no.1. No mutual partition of the suit property ever took place. The parties are in separate possession as co- owners. Defendant no.1 claimed entitlement to 272.41 sq. yds. area. Other plaint allegations were not controverted. Defendant no.2, however, admitted the claim of the plaintiffs. Learned Civil Judge (Junior Division), Panipat, vide judgment and decree dated 10.06.2010, decreed the suit for partition of the suit house, holding plaintiff no.1 to be entitled to 1/3rd share therein and preliminary decree was accordingly passed. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Panipat, vide judgment and decree dated 29.10.2010, holding the plaintiffs to be R. S. A. No. 711 of 2011 4 entitled to half share in the suit property and preliminary decree for partition has accordingly been passed. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The basic dispute is regarding 1/6th share of Harbans Kaur in the suit property. According to the plaintiffs, Harbans Kaur sold her 1/6th share in the suit property to plaintiff no.1 vide registered sale deed dated 09.06.2004 (Ex.P-4). However, defendant no.1 has pleaded that the said sale deed is result of fraud as Harbans Kaur was parda nashin and illiterate lady and no consideration was paid to her by plaintiff no.1. There remains no other dispute between the parties regarding their respective shares in the suit house. Harbans Kaur was alive when the suit was filed on 12.05.2007. She is stated to have died on 23.01.2009. Defendant no.2 – Satnam Singh of unsound mind was sued through Harbans Kaur. Consequently, Harbans Kaur had knowledge of the sale deed dated 09.06.2004 executed by her in favour of plaintiff no.1, as pleaded by the plaintiffs. However, nevertheless, she never challenged the same. She remained alive for 4½ years after the execution of the sale deed. On the contrary, defendant no.2 filed written statement admitting the claim of the plaintiffs. It would also depict that Harbans Kaur never challenged the sale deed and rather admitted the same. R. S. A. No. 711 of 2011 5 The plaintiffs have also proved the aforesaid sale deed Ex.P-4. It is a registered sale deed. It bears computerized photographs of vendor Harbans Kaur, vendee/plaintiff no.1 Manjeet Singh and both attesting witnesses namely Dharam Pal Numberdaar and Pawan Kumar. Defendant no.1 admitted in cross-examination the aforesaid photographs to be of his mother and of plaintiff no.1. It was apparent from the said photographs that Harbans Kaur was not parda nashin lady, as asserted by defendant no.1. There is also no evidence led by defendant no.1 in support of his contention that Harbans Kaur was parda nashin lady. Plaintiffs have examined Registration Clerk Narender Singh (PW-1), who brought original record of the sale deed and proved its certified copy Ex.P-4. Vimal Kant (PW-5) stated after seeing the original sale deed that he identified the signatures of his father Jagdish Chander – deed writer thereon. This witness also brought the register of his father, wherein entry of scribing the said sale deed had been made. Plaintiff no.1 himself also proved the said sale deed. The sale deed is registered one. Consequently, it cannot be said that execution of the sale deed has not been proved. On the contrary, in view of proviso to Section 68 of the Indian Evidence Act, attesting witness of the sale deed was not required to be examined as execution of the sale deed has not been denied by its executant Harbans Kaur. Contention of counsel for the appellant, that original sale deed was not produced in evidence, cannot be accepted because Vimal Kant R. S. A. No. 711 of 2011 6 has specifically deposed that he had seen the original sale deed, of which certified copy is Ex.P-4. It is thus manifest that original sale deed was also produced to prove its certified copy. Consequently, no permission for leading secondary evidence of sale deed was required, as sought to be canvassed on behalf of the appellant. Since the sale deed also bears photographs of vendor, vendee and both attesting witnesses and it has been registered also, its authenticity cannot be doubted in absence of any evidence whatsoever, to the contrary. Payment of sale consideration is recited in the sale deed itself and vendor admitted the said recital to be correct at the time of registration of sale deed. No particulars of alleged fraud in execution of the said sale deed have been pleaded nor there is any evidence to prove the alleged fraud. For the reasons aforesaid, I find no infirmity in the finding of the lower appellate court holding the plaintiffs to be having half share in the suit property. Consequently, there is no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed in limine. February 09, 2011 ( L. N. MITTAL ) monika JUDGE