N. Khosla vs Rajlakshmi (Dead) & Ors

Dewan Niranjan Prasad was ex-Minister and a retired Senior Judge of the High Court of Patiala. He had an ancestral kothi known as `Nishkam' situated at 23, Bhupender Nagar Road, Patiala, Punjab. He had two sons, namely Sh. K.J. Khosla and Sh. N. Khosla and three daughters namely Smt. Rajlakshmi (respondent No. 1 herein whose appeal stands abated), Smt. Nirmala and Smt. Saraswati. Since the kothi was an ancestral property, Dewan Niranjan Prasad and his two sons were the coparceners.

On 14.10.1956, Dewan Niranjan Prasad had gifted three plots of land forming part of the kothi in its rear portion to his three daughters with the consent of his wife Smt. Amar Devi and his two sons. The said gift was duly recorded in the family year book known as "Dussehra Bahi." The said gift was conditional and the condition was that the beneficiaries would construct houses on the gifted plots and shall reside there. The said gift of plots to his three daughters was affirmed by Dewan Niranjan Prasad through a registered deed on 10.6.1961. However, possession was not delivered. In 1966 Smt. Saraswati died and was survived by her husband B.S. Talwani and sons, respondent No.3.

The Arbitrator examined the contentious issues presented from both sides and after threadbare discussion delivered his award on 10.7.1979. The Arbitrator in his award found inter-alia that the gift in question in favour of daughters was revoked and the plots were resumed by late Dewan Niranjan Prasad with the consent of the two daughters and Sh. B.S. Tawlani husband of Smt. Saraswati in lieu of cash payment received by them. The Arbitrator also found that the mutation in favour of the respondents was obtained by fraudulent means and therefore, non-est. On 1.8.1979, S/Sh. K.J. Khosla and N. Khosla, the two sons of Dewan Niranjan Prasad filed an application under Section 14 of the Arbitration Act, 1940 for making the award a Rule of the Court. It appears that on 24.5.1981, notice of the application was issued to the respondents who filed objections contending inter-alia that the award dated 10.7.1979 created, declared, assigned, limited or extinguished right, title and interest of the value of Rs. 100 and upwards to or in immovable property and, therefore, the award was compulsorily registrable under Section 17(1)(b) of the Registration Act, 1908 (hereinafter as 'the Act' ) and since the award was not registered, it could not be made a rule of the Court. The Sub-Judge, by his order dated 25.5.1981 held that the award purports/operates to extinguish the rights of the daughters and create/declare rights, title and interest in the sons in immovable property, the value of which was more than Rupees One hundred only and thus, it compulsorily required registration under Section 17 of the Act. On this reasoning, the Sub-Judge declined to make the award as a rule of the Court. Aggrieved thereby, the two sons of Dewan Niranjan Prasad filed appeal before the Appellate Court, which was dismissed on 8.8.1983 holding the same view. Thereafter, a civil revision, namely revision No. 3064 of 1983 was preferred before the High Court, which was dismissed by the impugned order on 8.1.2001. Hence, the present appeal. The High Court, in our view, erroneously dismissed the Civil Revision affirming the orders passed by the Trial court and Appellate Court. The High Court dismissed the civil revision with the following reasoning:

Learned counsel for the respondents also referred to the decision in Pandit Sri Chand & Ors. v. M/s. Jagdish Parshad Kishan Chand & Ors. (1966) 3 SCR 451. In that case the parties agreed to the decree jointly and severally and Basant Lal, one of the appellants died on 18.10.1962. The counsel also referred the case in Ram Sarup & Ors. v. Munshi & Ors. AIR 1963 SC 553 in which case the issue was a pre-emption decree which was indivisible. Both these cases are not applicable to the facts of the case in hand. In the facts and circumstances of the present case and the well settled position of law, as referred to above, we are of the view that the abatement of appeal in respect of Smt. Rajlakshmi would not abate the appeal qua other respondents. We hold that the appeal qua other respondents is maintainable.

To answer this question, it would be necessary to examine the award of the Arbitrator.

The Arbitrator, after examining the issues, came to the following conclusion:

The other item of Rs. 5,000/- has also not been proved that it was due to her otherwise.

I give my award in favour of Shri Krishen Jiwan and Shri Naval Jiwan and hold that the gift was revoked and plots were resumed by the Late Dewan Niranjan Prasad at the instance and with the consent of the second part in lieu of cash payment received by them."