Smt. Khazani Daughter of Giani Vs. Surja and anr. - Court Judgment

Excerpt:
property - sale deed - execution of - appellant and respondent no. 2 were owners of agricultural land - respondent no. 1 is real brother of appellant and respondent no. 2 - respondent no. 1 got their thumb impression on some paper and got executed sale deed - sale deed was registered in favour of respondent no. 1 and mutation was also entered in his name - appellant filed suit - trial court passed decree in favour of appellant - appeal preferred by respondents - allowed - hence, present appeal - held, plea of fraud set up by appellant could not be established from evidence - execution of sale deed is proved from testimony of attesting witness - impugned order of appellate court is confirmed - appeal dismissed - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 2 was proceeded against ex parte vide order dated 13.8.2002 as she failed to appear in the court. the fraud in a civil suit is to be established like any other facts on the basis of preponderance of evidence. the plaintiff had failed to prove that any fraud had been practiced, therefore, the sale could not have been set aside on those grounds. 1 practiced misrepresentation and fraud at the time of execution of the sale deed in question and thus any agreement or contract like the sale deed in question, which is vitiated by fraud and misrepresentation cannot be sustained in the eyes of law. the fraud in a civil suit is to be established like any other fact on the basis of preponderance of evidence.rakesh kumar garg, j.1. this is plaintiffs second appeal challenging the judgment and decree of the lower appellate court whereby the appeal filed by the defendant no. 1 against the judgment and decree of the trial court was accepted and suit of the plaintiff was ordered to be dismissed.2. the brief facts of the case are that the plaintiff/appellant and defendant/respondent no. 2 were recorded owners of 1/14th share in the agricultural land comprised in khewat no. 363, khatauni no. 446, measuring 46 kanals 1 maria situated in village bhawar, tehsil gohana, district sonepat. the defendant/respondent no. 1 surja is the real brother of the plaintiff/appellant and respondent/defendant no. 2 and on 20,9.97 he brought the appellant and respondent no. 2 to gohana and got their thumb impression on some papers with assurance that the land will be transferred in favour of all the three brothers namely, deepa, surja and ramphai the real brothers of the appellant and respondent no. 2. the respondent no. 1 got executed sale deed no. 1702 dated 26.9.97. the same was registered in his favour and mutation no. 11-a was also entered in the name of respondent no. 1 surja. 3. the sale deed and the mutation sanctioned on the basis of it were challenged by way of suit for declaration and permanent injunction in the court of additional civil judge,(senior division), gohana with a prayer that the sale deed and mutation were wrong, illegal, null and void and not binding on the right of the plaintiff/appellant and defendant/respondent no. 2 on the grounds that the plaintiff and defendant no. 2 never executed and registered sale deed in favour of the plaintiff that no possession of the land was ever delivered to the defendant/respondent no. 1 that no sale consideration was ever passed and the sale consideration shown to be paid to the appellant and respondent no. 2 was false and fictitious that defendant/respondent no. 1 is the real brother of the plaintiff and defendant no. 2 and in case, there was any such transaction, then certainly the defendant no. 1 would have filed the suit for declaration instead of getting the sale deed executed and registered and that sale deed is the result of fraud and misrepresentation and the defendant/respondent no. 1 has only obtained the signatures of the plaintiff/appellant and defendant/respondent no. 2 merely on asking that same are for giving the security; that no notice regarding sanctioning of mutation was ever given to the plaintiff and defendant no. 2 which was mandatory3. in the written statement, contesting defendant no. 1 took the stand that plaintiff and defendant no. 2 have sold their shares to him. the grounds on which the sale deed was assailed were stated to be wrong and denied. it was further replied that plaintiff and defendant no. 2 appeared before deed writer and sub registrar having admitted the contents of the sale deed true and correct, mentioning that suit is liable to be dismissed on account of non-affixation of ad volerum court fee, additional pleas were taken that simple suit for declaration without seeking possession is not maintainable; that plaintiff has no cause of action to file the suit; that plaintiff is estopped by her own act and conduct to file the suit and that she has not come to the court with clean hands. at the end a prayer has been made to dismiss the suit.4. defendant no. 2 was proceeded against ex parte vide order dated 13.8.2002 as she failed to appear in the court.5. replication was filed refuting the contentions of the defendant no. 1 and re-affirming the assertions made in the plaint. from the pleadings of the parties, following issues were framed:1. whether the plaintiff and defendant no. 2 are still owners of 1/14 share of agricultural land comprised in khewat no. 363, khatoni no. 446, situated in village bhawar and registered sale deed no. 170 dated 26.9.1977 of 1/12 share and mutation no. 1 1a sanctioned on the basis of it are illegal, null and void, not binding upon the rights of the plaintiff and defendant no. 2 on the grounds mentioned in para 4 of the plaint? opp2. if issue no. 1 is decided in favour of the plaintiff, then whether plaintiff is entitled to the relief of injunction? opp3. whether the suit simpliciter of declaration without relief of possession is not maintainable? opd4. whether the plaintiff has no cause of action to file the present suit? opd5. whether the suit is false and vexatious to the knowledge of the plaintiff? opd6. whether the plaintiff is estopped from filing the present suit by her own act and conduct? opd7. whether the civil court has no jurisdiction to entertain the present suit? opd8. whether the plaintiff has not come to the court with clean hands? opd9. relief.6. both the parties led evidence. after hearing the arguments, the trial court vide its judgment and decree dated 14.8.2004 decreed trie suit holding that the sale deed and mutation in question were null and void-and not binding upon the plaintiff-appellant.7. the judgment and decree dated 14.8.2004 passed by the trial court was assailed by defendant no. 1 /respondent no. 1 pleading that the trial court had taken a wrong view that the sale deed in question was the result of misrepresentation as it was proved on record that both the parties had appeared before the sub registrar and had appended the thumb impression and their photographs were also taken. it was also pleaded that the suit for declaration simpliciter without seeking possession was not maintainable as the plaintiff was not in possession of the suit land and thus the judgment and decree of the trial court was liable to be set aside. the lower appellate court vide impugned judgment and decree dated 15.2.2005 accepted the appeal and set aside the judgment and decree of the trial court resulting into dismissal of the suit.8. while allowing the appeal, the lower appellate court observed as under:the execution of the sale deed has been proved. the attesting witness who is lambardar of the village has stated that khazani and omi had admitted that they had received the consideration. it is not the case of the plaintiff that market value of the property was more. the plaintiff had admitted that they had wanted to give their property. the plaintiff had set up a plea of fraud but it has not been established beyond all reasonable doubts. the fraud in a civil suit is to be established like any other facts on the basis of preponderance of evidence. the fraud is an act of deliberate deception with a design to secure something from another. in this case the parties were closely related. the sisters are married and had been living in their matrimonial homes. they are not 'parda nashin' ladies. no inference can be drawn in their favour in the circumstances of the case. the plaintiff had failed to prove that any fraud had been practiced, therefore, the sale could not have been set aside on those grounds. the findings recorded by the lower court on issue no. 1 is reversed. the plaintiff had brought a suit for declaration simpliciter. they are not in possession of the property. the property had been mutated in favour of surja. his possession is being recorded thereafter. a suit for mere declaration without seeking possession was not maintainable and the findings recorded on the issue by the lower court has also to be set aside.9. feeling aggrieved from the judgment and decree of the lower appellate court, the plaintiff has filed the present appeal arguing that the following substantial questions of law arise in this appeal for consideration of this court:i) whether the impugned sale deed executed and registered in his favour by the respondent no. 1, by way of fraud and misrepresentation is null and void and cannot affect the rights of the appellant and respondent no. 2, especially when their intention was to transfer the suit land in favour of all the three brothers?ii) whether the mutation got some fraud by the respondent no. 1 in his favour without giving any notice to the appellant and respondent no. 2, is legal and void?iii) whether the sale deed executed without the sale consideration is valid and legal and sustainable in the eyes of law?10. in support of his case, learned counsel for the appellant vehemently argued that it was proved on the record that defendant no. 1 practiced misrepresentation and fraud at the time of execution of the sale deed in question and thus any agreement or contract like the sale deed in question, which is vitiated by fraud and misrepresentation cannot be sustained in the eyes of law. it was further argued that in case the sale deed and mutation sanctioned on the basis of it are set aside, then status of the parties in the suit land will be of co-sharers and therefore, the suit for declaration simpliciter was maintainable and thus the judgment and decree of the lower appeliate court is liable to be set aside.11. on the other hand, learned counsel for the respondent no. 1 has supported the findings of the lower appellate court and has argued that on substantial question of law arises in this appeal as on appreciation of evidence, a finding of fact has been recorded by the lower appellate court to the effect that the sale deed was proved and further that the plea of fraud set up by the plaintiff-appellant could not be established from the evidence on record and therefore, this appeal is without any merit and is liable to be dismissed.12. i have heard learned counsel for the parties. while passing the impugned judgment and decree, the lower appellate court on appreciation of evidence has recorded a finding that the execution of the sale deed is proved from the testimony of attesting witness who is a lambardar of the village and that the plea of fraud as set up by the plaintiff has not been established. the fraud in a civil suit is to be established like any other fact on the basis of preponderance of evidence. the fraud is an act of deliberate deception with a design to secure something from another, which is not proved in this case. in the case in hand, parties were closely related. it is not the pleaded case of the appellants that she and her sister are 'parda nashin' ladies. thus, no inference can be drawn in their favour in the circumstances of the case. nothing could be pointed out from the evidence before this court from which it can be proved that any fraud was practiced upon the appellants.13. for the reasons recorded above, i find no merit in the contentions raised by the appellants.no other point was urged.thus, no substantial question of law arises in this appeal.dismissed.