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SUPREME COURT OF INDIA
V.GOPALA GOWDA, C. NAGAPPAN, JJ.
KIRPAL KAUR – APPELLANT
Vs.
JITENDER PAL SINGH & ORS. – RESPONDENTS
CIVIL APPEAL NO. 2820 OF 2015
Decided On : 14-07-2015
(b) Transfer of Property Act, 1882 – Section 52 – Deceased-first defendant executing gift deed in favour of the second defendant within two weeks of impugned judgment and before expiry of the limitation period for filing SLP – Said deed produced before Supreme Court only after so directed – Deed reciting certain factually incorrect facts regarding possession as plaintiff was indisputably in continuous and peaceful possession of the same – Gift deed not valid. (Para 17, 18, 21, 22)
(c) Code of Civil Procedure, 1908 – Order XXII, Rule 10 – A gift deed executed during pendency of a during pendency of a proceeding – Beneficiary/donee required to seek leave of court to bring the deed on record – Instantly, second defendant not doing so – Conduct not proper. (Para 18, 19)
(2001) 6 SCC 534; (1976) 1 SCC 103 – Relied upon
(d) Hindu Succession Act, 1956 – Section 8 – Deceased-first defendant dying during pendency of the proceedings – Even if schedule B property is assumed to be self acquired property of deceased-first defendant plaintiff gets entitled to for 1/4th share in the suit schedule “B” property by operation of section 8. (Para 24, 25)
Facts of the case:
The plaintiff-appellant filed civil suit against the defendants-respondents for partition of the schedule properties in favour of her late husband’s share, contending thereby that all the properties are jointly owned by the family.
The said civil suit was contested by the defendants wherein they have pleaded in their written statement that the suit schedule properties mentioned in the schedules ‘A’ & ‘C’ have already been partitioned amongst themselves, therefore, the plaintiff is not entitled for any further share in the suit properties.
As for schedule ‘B’ property the suit of the plaintiff was dismissed by holding that the said property is the self acquired property of the deceased-first defendant.
In so far as the suit schedule ‘A’ property is concerned, the trial court partially decreed the same in favour of the plaintiff by granting 1/5th share in the agricultural land in the village Patial. A preliminary decree for partition was passed by the trial court on 21.1.2011 holding that the plaintiff has got the 1/5th share in the agricultural land, measuring about 8 kanals and 18 marlas. However, she was not granted any share in the suit schedule ‘B’ property, holding that it is the self acquired property of the deceased first defendant.
The First Appellate Court examined the correctness of the findings recorded on issue No.4 by the trial court in its judgment dismissing the suit of the plaintiff and not granting any share in the suit schedule ‘B’ property to her, has held that the said property is the self acquired property of the deceased-first defendant and declined to interfere with the judgment of the trial court in respect of the said property.
Finding of the Court:
The courts below have failed to exercise their jurisdiction and power properly, thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the ‘B’ schedule property.
The gift deed is invalid.
Result: Appeal allowed.
Key Points: - Point 1 (!) - Point 2 (!) - Point 3 (!) - Point 4 (!) - Point 5 (!) - Point 6 (!) - Point 7 (!) - Point 8 (!) - Point 9 (!) - Point 10 (!)
JUDGMENT
V. GOPALA GOWDA, J.
This appeal is directed against the impugned judgment and order dated 31.10.2012 passed by the High Court of judicature of Delhi at New Delhi (the First Appellate Court) in Regular First Appeal (OS) No.41 of 2011, whereby the First Appellate Court has confirmed the judgment and decree dated 21.1.2011 passed by the learned single Judge of the High Court (hereinafter called as “the trial court”) in CS(OS)No. 2172 of 2003 and dismissed the suit filed by the appellant. In this appeal, the appellant has questioned the correctness of the impugned judgment and order urging various facts and legal contentions and prayed for granting of the decree of partition of her share in the ‘B’ suit schedule property.
2. In this judgment, for the sake of convenience, we will advert to the rank of the parties as assigned to them before the trial court in C.S. No. 2172 of 2003. The brief facts of the case are stated hereunder for the consideration of the case with reference to the rival legal contentions urged on behalf of the parties.
3. The plaintiff (the appellant herein) filed civil suit No.2172 of 2003 before the trial court against the defendants (the respondents herein) for the partition of the following properties in favour of her late husband’s share, contending thereby that all the properties are jointly owned by the family:-
A Agricultural land at village Jahgirpur and at village Patial
B Property bearing No.45, Sant Nagar, East of Kailash, New Delhi
C Property situated at Kothi No.56, Giani Zail Singh Nagar, Ropar
The said civil suit was contested by the defendants wherein they have pleaded in their written statement that the suit schedule properties mentioned in the schedules ‘A’ & ‘C’ have already been partitioned amongst themselves, therefore, the plaintiff is not entitled for any further share in the suit properties. In so far as the ‘B’ schedule property, bearing No. 45, Sant Nagar, East of Kailash, New Delhi, is concerned, it is stated by them that the same cannot be a subject matter of partition as it is the self acquired property of the deceased-first defendant (who is the father-in-law of the plaintiff) as he had acquired the same out of his self earned savings from his employment and he has constructed the building on the said property out of his own funds. Therefore, it is pleaded that the plaintiff is not entitled for the reliefs as prayed by her in respect of the suit schedule ‘B’ property. It is further contended by them that the deceased-first defendant was working in the defence department. While he was in employment, he had purchased the said property in the year 1954 vide sale deed dated 22.3.1954 for a sum of Rs.400/-. In the year 1954, he was getting the salary of Rs.201/- per month i.e. Rs.120/-+ (9 increments X 9 = 81). At that time, admittedly, the husband of the plaintiff (since deceased) was only seven years old.
4. When the first phase of construction of the ground floor on the said property was made in the year 1957, the husband of the plaintiff was only ten years old. The second phase of construction of the said building was done between October 1980 and December 1981. The case of the deceased-first defendant before the trial court was that he retired from his employment in September, 1980. He has reconstructed the aforesaid property using his retirement benefits such as gratuity and provident fund and he had also borrowed some amount as loan from various friends and relatives and he also used the old building materials for the construction of the building. He also produced receipts at Ex.DW1/5 to DW 1/18 as evidence to substantiate his case that he had borrowed some loan amount from M/s Sahara Deposits and Investments (India) Ltd. which amount was repaid by him to it, in instalments. It was specifically mentioned by the deceased-first defendant that the husband of the plaintiff did not contribute any amount either towards the purchase of the said suit schedule property or for the constru
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