2012 Supreme(SC) 8

2012 (1) Supreme 75
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
Y. Nagaraj — Appellant
versus
Smt. Jalajakshi and others — Respondents
Civil Appeal Nos. 6714-6715 of 2002
Decided on : 5-1-2012

Headnote:Hindu Succession Act, 1956 -Appeals against judgment of High Court representing culmination of dispute among heirs of one “ D”, who died intestate , in relation to his properties- Appellant’s case that Single Judge committed an error by passing a decree in favour of respondent 2 ignoring that she had failed to prove that the suit property was self- acquired property of the father -While passing impugned judgment , Single Judge failed to refer to detailed reasons recorded by trial Court for holding that respondent 2 had failed to prove that suit property was self-acquired property of executant - Single Judge also omitted to consider statement of respondent 2 that suit property was purchased by her father in the name of mother and she had transferred the same in the name of father, which enabled him to execute Will and Settlement Deed - Not only this, Single Judge failed to take note of fact that recital contained in settlement deed was contrary to the evidence of the parties which, was to the effect that property had been purchased by the father in the name of the mother and the latter had transferred it to the father after some time and that in the judgment of O.S. No. 4528 of 1980 it was categorically held that Item No. 5 of Schedule `B’ properties was joint family property and respondent No.1 was entitled to a share in it- Single Judge ignored the patently contradictory findings recorded by the trial Court in the two suits on the issue of nature of Item No. 5 of Schedule `B’ properties and decreed the suit filed by respondent 2 by assuming that she had succeeded in proving that her father was competent to execute the settlement deed- Held not possible to sustain the finding and conclusion recorded by Single Judge in RFA No.476 of 1991 (Para 22)

        Civil Procedure Code,1908- Order 41 Rule 33- Appeals against judgment of High Court representing culmination of dispute among heirs of one “ D”, who died intestate , in relation to his properties- Plea of appellant that High Court committed grave error by granting substantive relief to respondent1 despite the fact that she had not filed appeal or cross-objections to question findings recorded by trial Court on various issues-No dispute that respondent 1 had not challenged findings recorded by trial Court on various issues framed by it- She also did not file cross-objections in the appeal preferred by appellant-However impugned judgment could not be sustained by relying upon Order 41 Rule 33- In the impugned judgment, Single Judge had included Item No. 3 of Schedule `B’ properties in the pool of joint family property despite the fact that same had been purchased by D. by registered sale deed in 1961 in the name of the appellant-Single Judge also failed to take note of fact that claim made by N. for grant of occupancy rights in respect of agricultural land was pending before Land Tribunal- Held not possible to approve the approach adopted by Single Judge in dealing with the claim of respondent 1 for partition of suit properties despite the fact that she had failed to prove the case set up in the plaint- A substantial portion of judgment of the trial Court as well as Single Judge was based on pure conjectures- Held that ends of justice would be met by setting aside impugned judgment and remitting matter to trial Court for fresh disposal of suits filed by respondent 1 and 2-Appeals allowed (Paras 23 to 25)

       Facts of the Case :

        Present Appeals have been filed against judgment of High Court representing culmination of dispute among heirs of one “ D”, who died intestate , in relation to his properties. Appellant’s case that Single Judge committed an error by passing a decree in favour of respondent 2 ignoring that she had failed to prove that the suit property was self- acquired property of the father . It was further plea of appellant that High Court committed grave error by granting substantive relief to respondent1 despite the fact that she had not filed appeal or cross-objections to question findings recorded by trial Court on various issues.

       Findings of the Court :

        A. While passing impugned judgment , Single Judge failed to refer to detailed reasons recorded by trial Court for holding that respondent 2 had failed to prove that suit property was self-acquired property of executant . Single Judge also omitted to consider statement of respondent 2 that suit property was purchased by her father in the name of mother and she had transferred the same in the name of father, which enabled him to execute Will and Settlement Deed . Not only this, Single Judge failed to take note of fact that recital contained in settlement deed was contrary to the evidence of the parties which, was to the effect that property had been purchased by the father in the name of the mother and the latter had transferred it to the father after some time and that in the judgment of O.S. No. 4528 of 1980 it was categorically held that Item No. 5 of Schedule ‘B’ properties was joint family property and respondent No.1 was entitled to a share in it.

        B. Single Judge ignored the patently contradictory findings recorded by the trial Court in the two suits on the issue of nature of Item No. 5 of Schedule ‘B’ properties and decreed the suit filed by respondent 2 by assuming that she had succeeded in proving that her father was competent to execute the settlement deed. In the process, Single Judge completely overlooked the detailed reasons recorded by the trial Court in O.S. No. 4528 of 1980 after considering the mortgage deed Ex. P13 executed by D. in favour of the Salem Bank Ltd. for the purpose of taking loan. Held not possible to sustain the finding and conclusion recorded by Single Judge in RFA No.476 of 1991.

        C. There was no dispute that respondent 1 had not challenged findings recorded by trial Court on various issues framed by it. She also did not file cross-objections in the appeal preferred by appellant. However impugned judgment could not be sustained by relying upon Order 41 Rule 33. In the impugned judgment, Single Judge had included Item No. 3 of Schedule ‘B’ properties in the pool of joint family property despite the fact that same had been purchased by D. by registered sale deed in 1961 in the name of the appellant.Single Judge also failed to take note of fact that claim made by N. for grant of occupancy rights in respect of agricultural land was pending before Land Tribunal.

        D. Held not possible to approve the approach adopted by Single Judge in dealing with the claim of respondent 1 for partition of suit properties despite the fact that she had failed to prove the case set up in the plaint. A substantial portion of judgment of the trial Court as well as Single Judge was based on pure conjectures. Single Judge appeared to have been unduly influenced by fact that N. was the father-in-law of appellant and both seem to have conspired to deprive the three daughters of the deceased of their shares in the suit properties.

        E. Held that ends of justice would be met by setting aside impugned judgment and remitting matter to trial Court for fresh disposal of suits filed by respondent 1 and 2.Appeals were allowed.