RSA No.1184 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1184 of 1985 Date of Decision: December 7, 2011 Harbans Singh .......Appellant Versus Samittar Singh and others .......Respondents RSA No.3107 of 1986 Puran Singh Versus Samittar Singh and others .......Respondents CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Mr.Sumeet Mahajan, Senior Advocate with Mr.Amit Kumar, Advocate for the appellant. Mr.Anmol Rattan Singh, Senior Advocate with Mr.Vishal Deep Goyal, Advocate for the respondents. <><><> TEJINDER SINGH DHINDSA, J. This judgment shall decide RSA No.1184 of 1985 and RSA No.3107 of 1986 since both the appeals arise out of a common judgment dated 19.3.1985 passed by the Additional District Judge, Kapurthala. 2. Suit No.128/27.4.1979 titled as “Puran Singh v. Samittar Singh and another” was filed by the plaintiff-appellant seeking a declaration RSA No.1184 of 1985 2 that he is the owner of the land measuring 185 kanals 7 marlas situated in the Revenue Estate of village Bhakhariana. It was stated that respondents No.1 to 7 had filed a Civil Suit No.283 dated 27.7.1976 in the Court of Sub Judge Ist Class, Phagwara against him, in respect of the land aforementioned and had obtained a fraudulent decree from the Court on 13.10.1976 on the basis of an oral gift alleged to have been made in June 1994 in favour of the respondents. It was asserted that such decree was void and against the proprietary rights of the plaintiff-appellant and as such, not binding upon him. It was also pleaded that the plaintiff-appellant had never delivered possession of the suit land to the respondents and as such, they be restrained from interfering in his possession. The respondents resisted the suit on various grounds and stated that the plaintiff-appellant is estopped from filing the same on account of his act and conduct. The possession of the plaintiff-appellant was denied and it was pleaded in the written statement that by virtue of an oral gift made in their favour in June 1954, the possession of the suit land had been surrendered. It was averred that the respondents had filed a suit in which the plaintiff-appellant had admitted the fact of having made an oral gift of the suit land in their favour and the Court accordingly had passed a decree in their favour. 3. Suit No.147 of 15.5.1979 was filed by Harbans Singh against Puran Singh and others for the issuance of a decree of permanent injunction restraining the respondents from interfering in his possession towards the suit land measuring 59 kanals 18 marlas as mentioned in the head note of the plaint. The case of plaintiff-appellant Harbans Singh, as set up in the suit, was that Puran Singh was the owner of the suit land and the plaintiff- appellant is a tenant under the owner for the last four years. It was averred RSA No.1184 of 1985 3 that the respondents are threatening to take forcible possession of the suit land on the basis of an alleged oral gift which is non-existing in favour of the respondents. 4. The following issues were framed in Civil Suit No.128 of 27.4.1979: 1. Whether the suit is time barred? OPD 2. Whether the suit is properly valued for the purposes of Court fee and jurisdiction? OPD 3. Whether the plaintiff is in possession of the suit land? OPP 4. If issue No.3 is proved, whether the suit is not maintainable in the present form? OPD 5. Whether Puran Singh made an oral gift f the suit land in favour of defendants No.1 to 7 in June, 1954?OPD 6. Whether the decree dated 13.10.1976 is fraudulent, illegal and void as alleged by the plaintiff? OPP 7. Whether the plaintiff is estopped from filing the present suit? OPD 8. Whether the plaintiff is entitled to the injunction prayed for? OPP 9. Relief. 5. The following issues were framed in Civil Suit No.147 of 15.5.1979: 1. Whether the plaintiff is in possession of the suit land as a tenant? OPP 2. Whether Puran Singh made an oral gift regarding the suit land in favour of defendants No.2 to 8 in June, 1954? OPD 3. Whether the decree dated 13.10.1976 is fraudulent illegal and void as alleged by the plaintiff? OPP 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Relief. RSA No.1184 of 1985 4 6. Both the suits, referred to hereinabove, were consolidated by the trial Court, vide order dated 11.4.1980. As all the issues framed in the suit filed by Harbans Singh were covered in the issues framed in Suit No.128 filed by Puran Singh, plaintiff-appellant, as such, the trial Court proceeded to return its findings in a common judgment, dated 16.10.1982. 7. Both the civil suits were decreed by the Sub Judge Ist Class, Phagwara, vide judgment and decree, dated 16.10.1982. Being dissatisfied, two appeals arose against the judgment and decree, dated 16.10.1992, passed by the Sub Judge Ist Class, Phagwara filed by the respondents against Puran Singh and Harbans Singh i.e. the plaintiff-appellants in the two regular second appeals before this Court. Both the appeals stand decided by a common judgment dated 19.3.1985 whereby the Additional District Judge, Kapurthala has accepted the appeal filed by Samittar Singh and others in Suit No.128 of 1979 and the judgment and decree of the trial Court passed in favour of Puran Singh, plaintiff-appellant has been set aside and the suit, resultantly, has been dismissed. The appeal filed by Samittar Singh and others in Suit No.147 of 1979 has been partly accepted and the judgment and decree of the trial Court has been modified to the extent that they will not interfere with the possession of Harbans Singh, plaintiff- appellant over the suit land. Resultantly, the two RSAs before this Court which are being decided by the present common judgment. 8. Learned counsel appearing for the appellant has argued that the plaintiff-appellant had not made any oral or other kind of gift of the suit land in favour of the respondents in June 1954 or at any other time. Accordingly, it is submitted that the delivery of possession of the suit land to the respondents in pursuance to such alleged non-existing oral gift does RSA No.1184 of 1985 5 not arise. The possession of the plaintiff-appellant continued over the suit land as an owner. It has been pleaded by the learned counsel that the respondents have fraudulently obtained a decree from the Court of Sub Judge Ist Class, Phagwara in Civil Suit No.283 dated 27.7.1976 and the same is based on a non-existing oral gift. It is pleaded that the plaintiff- appellant never engaged any counsel for the purpose of the aforementioned suit, he never put in appearance in the Court nor was he served in any manner by due process of law in connection with the suit land. It is further argued that the plaintiff-appellant never made any statement or any kind of admission as regards the alleged oral gift. Accordingly, it has been argued that such a decree which is the result of fraud amounts to a void decree and the same is not binding on the plaintiff-appellant and can have no legal effect as against his proprietary and ownership rights over the suit land. 9. Learned counsel appearing for the respondents has argued that in June 1954, the plaintiff-appellant had made an oral gift as regards the suit land in their favour and had surrendered the possession of the same in 1954 itself. Learned counsel submits that it was only on account of inadvertence and omission on the part of the respondents that the entries in the revenue record were not recorded in their names nor was the mutation so effected. Learned counsel has submitted that the plaintiff-appellant who was not married shared a common mess and residence with Lachhman Singh, father of the respondents and it was out of love and affection that such oral gift was made in their favour and the respondents, accordingly, are in possession of the suit land since the year 1954 itself. It has been argued that it was only in the year 1976 that the respondents filed a suit which was not contested by the plaintiff-appellant and rather, an admission was made RSA No.1184 of 1985 6 regarding the oral gift of the suit land in favour of the respondents and the Court had rightly passed the decree in their favour and the same is binding on the plaintiff-appellant. Learned counsel for the respondents has further argued that the plaintiff-appellant was estopped from filing the suit by his act and conduct. 10. I have heard respective counsel for the parties and have perused the record. 11. The following substantial questions of law arise for consideration in the present RSAs: 1) Whether it was incumbent upon the respondents to prove by leading cogent evidence that an oral gift was made in their favour in the year 1954 and in pursuance thereto, the possession of the suit land was handed over and duly accepted? 2) Whether an oral gift is complete without delivery of possession and acceptance by the donee? 3) Whether the burden to prove the issue as regards the decree dated 13.10.1976 being fraudulent, illegal and void stood discharged by the plaintiff-appellant having denied the oral gift and having stated on oath that he neither appeared in court, nor engaged any counsel and had not made any admission with regard thereto? 12. A perusal of the statements of the witnesses on record reveals a clear picture as regards the factual aspect. The alleged oral gift-deed has been said to have been made by the plaintiff-appellant in favour of the respondents in June 1954. It has been admitted by respondent No.1 in his statement that respondent No.7, namely, Jang Bahadur Singh was born on 23.2.1959. As such, it is clear that respondent No.7 was not even born at RSA No.1184 of 1985 7 the time of the alleged oral gift-deed i.e. June 1954. The respondents produced on record a copy of the plaint, Exhibit D1, in respect of Suit No.283 dated 22.7.1976 filed against the plaintiff-appellant. As per plaint, it is averred that Puran Singh, plaintiff-appellant had transferred his entire land measuring 162 kanals 12 marlas through an oral gift in June 1954 in equal shares and had even transferred the possession thereof. Such assertion is clearly falsified by the statement of respondent No.1 – Samittar Singh who has stated that respondent No.7, namely, Jang Bahadur Singh, who was a plaintiff in Suit No.283 of 27.7.1976 was born only in the year 1955. Such a glaring fact itself points towards the non-existence of any gift having been made by the plaintiff-appellant in favour of the respondents. Another attendant circumstance which may be taken note of is that the plaintiff-appellant has stated his age to be 70 years on 11.8.1980 when he had appeared before the trial Court as PW2 to make a statement. Accordingly, the plaintiff-appellant would have been around 44/45 years of age in the year 1954 i.e. the time when the alleged oral gift-deed was sought to have been made. The trial Court has rightfully reasoned that a person at the age of 44/45 years would not part with his entire property and thus, leave himself at the mercy of others for the rest of his life. The respondents had taken up a plea that upon the oral gift having been made in their favour in the month of June 1954, the possession of the suit land was also delivered to them. Copies of jama bandi, Exhibit P1 to P6, are on record for the years 1953-54, 1957-58, 1961-62, 1965-66, 1971-72 and 1975-76 and such documents on record clearly show Puran Singh, plaintiff-appellant recorded to be the owner and in cultivating possession of the suit land. It is beyond comprehension that an oral gift having been made in June 1954 and RSA No.1184 of 1985 8 possession of the suit land having been delivered immediately thereupon, the revenue entries for about 22 years continued in the name of the plaintiff- appellant who had alleged to have gifted such land. 13. The appellate Court instead of drawing the correct inferences had proceeded to record findings which cannot be sustained. The fact of one of the donees i.e. Jang Bahadur Singh having not even been born on the date when the oral gift was alleged to have been made, has been noticed, but it has not been dealt with at all. The appellate Court has proceeded to notice the relationship between the donor and the donee stating Puran Singh, plaintiff-appellant to be not a stranger to the respondents. An oral gift made in June 1954 has been upheld merely on the reason that the donor and the donees had shared a common mess and it has been observed that it was quite natural in such circumstances for the plaintiff-appellant to have gifted the suit land in favour of the respondents. 14. Learned counsel appearing for the respondents has placed reliance upon a judgment rendered by Hon'ble the Supreme Court in F.M.Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat reported as 2004(2) SCC 504 to contend that there is no bar on the transfer of interest in an immovable property even in favour of a unborn person. There can be no dispute that Section 20 of the Transfer of Property Act, 1882 permits an interest being created for the benefit of an unborn person and who thereby acquires interest upon birth. The authority cited by the learned counsel for the respondents has no relevance and bearing to the facts presented in the instant second appeal. It is not the case of the respondents that there was a conditional gift made in favour of a living person and simultaneously creating right and interest in favour of an unborn person as well. From the RSA No.1184 of 1985 9 facts as discernible from the pleadings and evidence on record, it cannot be held that there was any oral gift made by the plaintiff-appellant in favour of the respondents and neither was any possession of the suit land delivered to them in the year 1954. 15. The appellate Court has erred in observing that the passing of possession is not necessary to validate a gift under law. This Court in the case of Shrimati Gurdev Kaur v. Ralla Singh, 1987 PLJ 232 has clearly held that in the case of an oral gift, the same is only complete upon possession having been delivered. It was also noticed by the Court that in the year 1956 or later thereto, gift could have been made only by virtue of a registered document and not orally. Prior thereto, an oral gift would have validity only upon possession of the immovable property being delivered. 16. In the aforementioned case, this Court has held in the following terms: “10. In case of oral gift the gift is complete when the possession is delivered. There is no evidence fixing a date on which the possession of the land had been made over to Darbara Singh. The possession of the land in dispute could be taken to be made over to Darbara Singh only from the date on which the mutation (Exhibit D6) was sanctioned i.e. 6th March, 1956. By that date, the provisions of Section 123 of the transfer of Property Act became applicable. The gift on that date could have been admittedly made by a registered document and not orally. Even if the gift had been made orally before the application of the provisions of Section 123 of the Transfer of Property Act in the State of Punjab, that was to remain ineffective till the possession had been transferred to the donee. There is no evidence as already observed, to show that the possession of the suit land had been transferred to the donee before 6th March, 1956. The result is that in law, the gift of the RSA No.1184 of 1985 10 suit land in favour of Darbara Singh remains ineffective.” 17. As has been noticed hereinabove, the alleged oral gift pertained to June 1954 and the revenue entries clearly demonstrate that the possession of the plaintiff-appellant as owner being in cultivating possession continued to be recorded till the year 1976. As such, any such alleged oral gift made in the year 1954 without possession would remain ineffective post-1956 by virtue of the provisions of Section 123 of the Transfer of Property Act, 1882. The gift, if any, could be made in law only by virtue of a registered document. 18. The next question that arises is with respect to the decree dated 13.10.1976 that has been passed in favour of the respondents. Suffice it to notice that the plaintiff-appellant has clearly stated that he had never engaged a counsel nor affixed his thumb impressions on any written statement. It is the case of the respondents that the suit filed by them in the year 1976 had not been contested by the plaintiff-appellant and rather he had made an admission regarding the oral gift in their favour relating to the year 1954 regarding the suit land. The reasoning adopted by the trial Court is perfectly valid as regards the plaintiff-appellant having not been produced in Court for making the requisite statement admitting the claim of the respondents (plaintiffs therein). On the other hand, it was only Shri Raghunath Sahai, Advocate who had made statement on behalf of the parties concerned. The appellate Court has grossly erred in shifting the burden of proof upon the plaintiff-appellant as regards the affixation of his thumb impression on the vakalatnama and written statement pertaining to the suit filed by the respondents. The plaintiff-appellant clearly stated that the decree passed in favour of the respondents in the suit filed in the year RSA No.1184 of 1985 11 1976 was behind his back, without he having been served in any manner in due process of law and having also categorically denied affixing his thumb impression on any vakalatnama or written statement pertaining to such suit. It was for the parties who propounded such documents and based their claim thereupon, to prove that the plaintiff-appellant had indeed affixed his thumb impressions and it was upon such party to have the same compared and proved at the hands of a document expert. The appellate Court has clearly been swayed in recording that a responsible person, i.e., an Advocate would not make a statement relating to some other person and thereby admit the claim of the respondents. 19. It is settled law that a decree obtained by fraud is a nullity. The observations of Hon'ble the Supreme Court in the case of S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and others reported as 1994(1) SCC page 1 would be most relevant. The Hon'ble Supreme court had observed as under: “1. Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment and decree obtaining by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” 20. Even the plea of estoppel against the plaintiff-appellant raised by the learned counsel appearing for the respondents is wholly mis-placed. It is well established that a consent decree can be challenged not only on the grounds available under the Contract Act, such as, fraud, mistake or mis- RSA No.1184 of 1985 12 representation, but also on any of the grounds available under any other law which prohibit such a contract or declare it to be ineffective so far as transfer of any rights in immovable property is concerned. Such a plea, as such, cannot be accepted. 21. In view of the discussion held above, the substantial questions of law are determined in favour of the appellant and against the respondents. 22. For the reasons recorded above, the judgment and decree dated 19.3.1985 passed by the Additional District Judge, Kapurthala is set aside and the judgment and decree dated 16.10.1982 passed by the Sub Judge Ist Class, Phagwara is restored in favour of the plaintiff-appellant with costs throughout. 23. Both the appeals stand allowed accordingly. ( TEJINDER SINGH DHINDSA ) DECEMBER 7, 2011 JUDGE SRM Note: Whether to be referred to Reporter? Yes/No RSA No.1184 of 1985 13 RSA No.3107 of 1986 Present: Mr.Sumeet Mahajan, Senior Advocate with Amit Kumar, Advocate for the appellant. Mr.Anmol Rattan Singh, Senior Advocate with Mr.Vishal Deep Goyal, Advocate for the respondents. <><><> For orders see RSA No.1184 of 1985. ( TEJINDER SINGH DHINDSA ) DECEMBER , 2011 JUDGE SRM