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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anil Kshetarpal
RSA No.562 of 2013 (O&M)
Jarnail Singh & Ors
v.
Angrez Kaur & Ors
{Decided on 28/08/2018}
(B) Transfer of Property Act, 1881, S.54 – Sale deed – Passing up of title – Non-payment of balance sale consideration – Merely because payment of the sale consideration has not been proved, sale deed cannot be held to be void – As per Section 55(4)(b), the seller has only right to recover the amount unless there is a clause in the sale deed to the contrary, which makes a provision for treating the contract of to be void or the sale of the immovable property would deemed to have been cancelled. (Para 16)
(C) Succession Act, 1963, S.63 – Will – Proof of Execution – A registered testament thumb marked by the testator and the attesting witnesses in absence of attesting witnesses can be proved in accordance with Section 69 of the Evidence Act – Evidence Act, S.69. (Para 17)
(D) Succession Act, 1963, S.63 – Will – Proof of Execution – If no attesting witness is found, it must be proved that the attestation of one attesting witness is at least in his hand writing and that the signatures of the person executing the document is in his hand writing – Evidence Act, S.69. (Para 18)
(E) Succession Act, 1963, S.63 – Will – Proof of Execution – Absence of attesting witness – Once, a close aide of one of the attesting witness has been examined, who was working with attesting witness, it is obvious that he could identify the thumb impression of his superior – Will held to be proved. (Para 19)
(F) Succession Act, 1963, S.63 – Will – Death of beneficiary – On the death of legatee (beneficiary) under a Will before the death of the testator, the bequest would lapse, unless from reading the testament contradictory intention is provided for. (Para 21)
Mr. Anil Kshetarpal, J. (Oral):- C.M.No.1612-C-2013
Allowed as prayed for.
C.M.No.1613-C-2013
Prayer in this application is for condonation of delay of 110 days in re-filing the appeal.
2. For reasons mentioned in the application, which is supported by an affidavit, the delay of 110 days in re-filing the appeal is condoned.
3. Application is allowed.
MAIN
4. Plaintiffs-appellants are in the regular second appeal against the concurrent findings of fact arrived at by the courts below.
5. In the considered opinion of this Court, following substantial questions of law arise for determining:-
(i) Whether mutation of a registered sale deed is necessary before the title in the immovable property vests in the purchaser?
(ii) Whether a registered testament, thumb marked by the testator and the attesting witnesses in absence of attesting witnesses can be proved in accordance with Section 69 of the Evidence Act?
(iii) Whether on the death of legatee (beneficiary) under a Will before the death of the testator, the bequest would lapse, unless from reading the testament contradictory intention is provided for?
6. There are two sets of properties involved in the suit, one is measuring 2 bighas 10 biswas, which was owned by Smt. Angrej Kaur and Smt. Gurmail Kaur, defendants no.1 and 2 whereas the second part of suit land is 1 bigha and 12 biswas which was originally owned by Smt. Punjab Kaur, their mother.
7. Smt. Angrej Kaur and Smt. Gurmail Kaur, defendants no.1 and 2 sold their 2 bighas and 10 biswas of land in favour of the plaintiffs vide sale deed dated 22.08.1978, Ex.P1. Unfortunately, mutation of the aforesaid land was not entered and sanctioned by the revenue authorities and Smt. Angrej Kaur and Smt. Gurmail Kaur thereafter sold the property in favour of defendants no.3 to 6 vide sale deed dated 15.06.1995.
8. With regard to second part of property, Smt. Punjab Kaur is alleged to have executed a registered Will (testament) in favour of his only son late Sh. Maghar Singh on 02.09.1974, registered on 03.09.1974. Sh. Maghar Singh pre-deceased Smt. Punjab Kaur.
9. Revenue authorities ignoring all Class-I heirs, sanctioned the mutation in favour of only daughters i.e. Smt. Angrej Kaur and Smt. Gurmail Kaur, namely, daughters of Smt. Punjab Kaur, widow and children of late Sh. Maghar Singh (the son) were ignored.
10. Smt. Angrej Kaur and Smt. Gurmail Kaur have sold the aforesaid land measuring 1 bigha and 12 biswas in favour of defendants no.3 to 6 vide separate sale deed dated 15.06.1995. It is further the case of the plaintiffs that since they are children of late Sh. Maghar Singh being two sons and a widow, therefore, they are entitled to the property of Smt. Pritam Kaur as per Section 109 of the Indian Succession Act.
11. Defendants no.3 to 6 contested the suit, whereas defendants no.1 and 2 remained ex-parte. Defendants no.3 to 6 pleaded that the sale deed dated 22.08.1978 has not seen the light of the day, nor Will dated 02.09.1974 has been produced.
12. Learned trial court dismissed the suit filed by the plaintiffs on the ground that since the sale deed dated 22.08.1978 executed by Smt. Angrej Kaur and Smt. Gurmail Kaur, defendant nos.1 and 2 in favour of defendant nos.3 to 6 has not been entered in the revenue record, therefore, no title passed. With regard to the registered Will, it was opined that since no attesting witness has been examined, therefore, the Will has not been proved in accordance with Section 68 of the Indian Evidence Act.
13. Learned first appellate court also affirmed the findings of the learned trial court.
14. Now the stage is set for answering the questions of law:-
QUESTION NO. (i)
Whether mutation of a registered sale deed is necessary before the title in the immovable property vests in the purchaser?
15. It is well settled that the title passes in favour of the purchaser on execution of the sale deed. On cumulative reading of Section 8 and Section 54 of the Transfer of Property Act, it is apparent tha
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