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2011 Supreme(P&H) 2105
2012(1) LAW HERALD (P&H) 201
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Tejinder Singh Dhindsa
RSA No.1184 of 1985
Harbans Singh
v.
Samittar Singh & Ors.
{Decided on 07/12/2011}
For the Appellant:Mr. Sumeet Mahajan, Senior Advocate with Mr. Amit Kumar, Advocate.
For the Respondents:Mr. Anmol Rattan Singh, Senior Advocate with Mr. Vishal Deep Goyal, Advocate.
Headnote:Gift--Oral Gift--In the case of an oral gift, the same is only complete upon possession having been delivered--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.
Transfer of Property--Consent Decree--Can be challenged not only on the grounds available such as, fraud, mistake or mis-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.
(A) Transfer of Property Act, 1882, S.123--Gift--Oral Gift--Without possession to unborn in 1954--Validity of--Held; 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. (Para 17)
(B) Transfer of Property Act, 1882, S.123--Gift--Oral Gift--In the case of an oral gift, the same is only complete upon possession having been delivered--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. (Para 15)
(C) Transfer of Property Act, 1882--Consent Decree--Can be challenged not only on the grounds available such as, fraud, mistake or mis-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. (Para 20)
(D) Evidence Act, 1872, S.105--Burden of Proof--Decree obtained by Fraud--The plaintiff-appellant clearly stated that the decree passed in favour of the respondents in the suit filed in the year 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--Decree set aside. (Para 18)
Mr. 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 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 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.
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.
