Mohan Lal vs Dharam Kaur (deceased) and others

K.C. Gupta, J.—This Regular Second Appeal is directed by the Plaintiff, Mohan Lal, against the judgment and decree passed by Additional

District Judge, Ferozepur, whereby appeal filed against the judgment and decree dated 23.8.1978 passed by Sub Judge 1st Class, Ferozepur,

was dismissed and it was maintained that the Plaintiff (Appellant) was co-sharer in the disputed property to the extent of one half share and as

such, was entitled to his share in the disputed property as shown in the site plan Ex. P7.

Briefly stated, the facts are that Smt. Ram Devi was the owner of House No. 359 situated in Kucha Barkat Ram Ferozepur City. Smt. Ram

Devi had a daughter who was married with one Thakat Singh and had two sons, namely, Gurbux Singh and Pritam Singh. Therefore, Gurbux Singh

and Pritam Singh were daughter''s sons of Smt. Ram Devi. Pritam Singh was married to Smt. Dharam Kaur. However, Pritam Singh died after

about a year of his marriage with Dharam Kaur. Gurbux Singh had two sons, namely, Abinash Singh and Amarjit Singh. It was alleged that Smt.

Ram Devi had made an oral gift of the house in dispute in favour of her daughters'' son, namely, Gurbux Singh and the latter became the owner of

the same on the basis of that gift. Thereafter, Gurbax Singh submitted a site plan to the Municipal Committee, Ferozepur, for construction of the

house and obtained the sanction of the Municipal Committee in the year 1949 and constructed this house on the disputed property.

After the death of Gurbux Singh, his sons, namely, Abnash Singh and Amarjit Singh, who inherited his estate, sold the disputed house in favour

of Mohan Lal, Appellant vide registered sale deed dated 25.8.1974. It is also alleged that Smt. Dharam Kaur, Respondent No. 1 (Defendant No.

1) and Harbhajan Singh, Respondent No. 2 (Defendant No. 2) were the tenants in the aforesaid house and the Appellant, after the purchase of the

disputed house, had instituted ejectment proceedings against Respondent Nos. 1 and 2 under the provisions of East Punjab Urban Rent Restriction

Act, 1949 but the Respondents denied themselves to be tenants in the disputed house and those ejectment proceedings were ultimately dismissed

by the Rent Controller.

Smt. Dharam Kaur, widow of Pritam Singh, had executed a trust deed dated 19.12.1975 for the construction of a Sarai in the disputed house

and delivered possession of the same to the trustees. According to the Trust, Respondent No. 3 to 6 were the trustees.

The Appellant claimed that Smt. Dharam Kaur, Respondent No. 1, had no right in the disputed property and she could not validity constitute

any Trust regarding the disputed property and the constitution of that Trust regarding the disputed property was just bogus and sham transaction

and was not binding on the rights of the Appellant and that he was entitled to the possession of the disputed house on the basis of title. He also

claimed that he was entitled to mesne profits for Rs. 875/- for use and occupation of the disputed house for the period 25.9.1974 to 24.8.1977.

It was further averred that earlier Abnash Singh s/o Gurbux Singh and Dharam Kaur, Respondent No. 1, had sold a portion of the house to

Smt. Sudarshan Dhawan wife of Shri Krishan Kumar Dhawan by means of a registered sale deed 26.8.1970 but in fact Dharam Kaur had no

interest in the house in dispute and she was only joined as pro-forma party in the sale deed.

The suit was contested by Respondent Nos. 1 and 3 to 6. It was alleged that Smt. Dharam Kaur alone was the owner of the house in dispute.

As her husband, Pritam Singh, had died after about one year of her marriage, so, Gurbux Singh, being the elder brother of her husband, used to

look after the house in dispute and the adjoining house inherited by her from her husband Pritam Singh. She had made construction of the house

through Gurbux Singh and entrusted him with the amounts to be spent thereon. It was denied that Gurbux Singh was the owner of the house in

dispute. Smt. Dharam Kaur further alleged that she sold one half share of the house to Smt. Sudarshan Dhawan and it was at the instance of the

purchaser that she agreed to associate with herself, Gurbux Singh through Abnash Singh and Amarjit Singh but she had received the whole amount

of sale consideration. She next stated that the sale made by Abnash Singh and Amarjit Singh in favour of Mohan Lal was void and in-operative

against her rights. She also denied that she had occupied the house as tenant under Gurbux Singh or his sons and asserted that she never paid any

rent to them.

It was also alleged that Smt. Ram Devi had executed a will in favour of Pritam Singh, husband of Dharam Kaur, Respondent No. 1, and after

the death of Pritam Singh, Smt. Dharam Kaur succeeded to the suit property and became owner of the same. It was also denied that the house in

dispute was ever gifted by Ram Devi in favour of Gurbux Singh.

It was further pleaded that Sh. Dharam Kaur was the rightful and exclusive owner of the property and as such was entitled to execute a trust

deed in respect of the property and the trust deed executed by her was legal, valid and enforceable.

On the pleadings of the parties, the following issues were struck vide orders dated 27.12.1977 and 4.8.1978:

Whether the Plaintiff validly purchased the disputed property from Abnash Singh and Amarjit Singh, vendors, by means of a registered sale

deed dated 25.9.1947? OPP

Whether the Plaintiff is the owner of the disputed property?OPP

Whether the Defendants are in unauthorised possession of the disputed property? If so, since when its effect?OPP

Whether the Defendants are liable to pay any amount to the Plaintiff for use and occupation of the disputed premises? If so, at what rate and to

what account?OPP

Whether Mst. Dharam Kaur, Defendant No. 1, executed any trust regarding the disputed property and delivered possession of the same to the

trustees? If so, its effect? OPP

Relief.

The parties adduced their evidence.

After hearing counsel for the parties, Sub Judge 1st Class, Ferozepur, vide his judgment dated 23.8.1978, decreed the suit of Mohan Lal for

possession to the extent of one half share as shown in the site plan, Ex. P7, by holding under Issue No. 1,2 and 5 that after the death of Smt. Ram

Devi Gurbux Singh (now deceased) and Smt. Dharam Kaur, Respondent No. 1 (now deceased) inherited the property in dispute in equal shares

and after the death of Gurbux Singh, his sons, Abnash Singh and Amarjit Singh inherited his one half share in the disputed property while Smt.

Dharam Kaur had become the owner of the remaining one half share. It was further held that Mohan Lal, Appellant, became the owner to the

extent of one half share in the disputed property. It was next held that it was not proved on file that Smt. Ram Devi executed any will in favour of

Pritam Singh or gift deed in favour of Gurbux Singh. It was further held that the sanction was obtained to construct the house by Gurbux Singh as

Pritam Singh, husband of Smt. Dharam Kaur, died after sometime of marriage and she was left alone in the world and at that time the women folk

usually remained confined to the four walls of their houses and as such, Gurbux Singh, being the real brother of husband of Dharam Kaur, used to

attend to all the affairs of the family on behalf of himself and his widowed sister-in-law. Under Issue No. 3, it was held that Smt. Dharam Kaur was

in possession of the disputed property being a co-sharer and was not in unauthorised possession of the same. Under Issue No. 4, it was held that

Respondent No. 1 was not liable to pay any mesne profits for use and occupation of the house in dispute as she was in possession as co-sharer.

Under Issue No. 5A, it was held that Dharam Kaur could create trust to the extent of one half share only and not with respect to whole of the

house in dispute and, thus, the share of the Appellant in the disputed property would remain unaffected by the Trust deed executed by Smt.

Dharam Kaur.

Aggrieved by the said judgment and decree, the Plaintiff, Mohan Lal, filed an appeal which was heard by 2nd Additional District Judge,

Ferozepur, who vide her judgment dated 10.5.1980, dismissed the same. She also dismissed the appeal filed by Smt. Dharam Kaur vide this very

judgment.

Still feeling dis-satisfied with the judgment of the 2nd Additional District Judge, Ferozepur, the Plaintiff filed the present Regular Second

Appeal.

Smt. Dharam Kaur, Respondent No. 1, had died and her legal representatives, Abnash Singh son of Gurbux Singh, was brought on record,

who is also stated to have died. It was also reported that Respondent Nos. 3 and 6 had died but none had come forward to implead their legal

representatives. Respondent Nos. 4 and 5 did not appear despite service and they were proceeded against exparte.

I have heard counsel for the Appellant, Sh. Vikas Bahl, counsel for Respondent No. 2, Sh. Munishwar Puri and carefully gone through the file.

There is no dispute that Smt. Ram Devi was the owner of the house in dispute. Both the Courts below have held that it is not proved on file

that Smt. Ram Devi had made gift of the disputed property in favour of Gurbux Singh, father of Abnash and Amarjit Singh. However, there is an

order of Sikh Gurdwara Tribunal dated 13.6.1930 (copy Ex. P-9) on the record which shows that there was some dispute between Amar Dass

and Sikh Gurdwara Prabandhak Committee. Bhai Gurbux Singh was impleaded as the legal representative of Smt. Ram Devi in those

proceedings. In para No. 4 of that order, it was held that Dharamshala Bhai Ram Dass Wali had no concern with the house No. 359 of the list

notified on 24.9.1927 and that the said house was gifted to Bhai Gurbux Singh son of Bhai Takhat Singh by his grand mother, Smt. Ram Devi and

as such, Bhai Gurbux Singh became the sole owner of the same. The main question arises in this case is whether Gurbux Singh (now deceased)

could be said to have become owner of the house in dispute on the basis of alleged gift from Smt. Ram Devi as mentioned in the order of Tribunal,

Ex. P9, which was passed on the basis of compromise arrived at between the parties, Ex. P10. A perusal of the order, Ex. P9, shows that it was

passed on 13.6.1930. Therefore, Smt. Ram Devi had died before the year 1930. It was held by the Tribunal that the house in dispute was not

Gurdwara property under the Sikh Gurdwara Act but it was held to be under the ownership of Bhai Gurbux Singh as it was gifted to Gurbux Singh

by his maternal grand mother, Smt. Ram Devi.

Counsel for the Respondents contended that it was not the case that Smt. Ram Devi had made a statement that she had gifted the house in

dispute to Bhai Gurbux Singh but Bhai Gurbux Singh was made legal representative of Smt. Ram Devi after her death and he effected compromise

is that case and on the basis of compromise, it was held that Gurbux Singh had become the sole owner of the house in dispute on the basis of gift.

He further contended that no gift deed in writing was ever produced before the Tribunal and as such, the finding of tribunal cannot be binding on

Smt. Dharam Kaur.

Counsel for the Appellant, on the other hand, contended that u/s 37 of the Sikh Gurdwara Act, 1925, the order passed by the Tribunal was

binding upon the Respondents and the property in dispute was presumed to be the property belonging to Gurbux Singh on the basis of the

property being gifted by Smt. Ram Devi in favour of Gurbux Singh. For this contention, he placed reliance on the following three authorities:

(i) AIR 1932 125 (Lahore)

(ii) AIR 1939 239 (Lahore)

(iii) Kesar Singh Vs. Balwant Singh,

In Central Bank of India Ltd. ''s case (supra), it was held by the Lahore High Court that person, though not party to the proceedings before

the Tribunal, is bound by compromise between the parties before it. In Bawa Ishar Das''s case (supra), it was held that finding by Sikh Gurdwara

Tribunal that an Institute is not a Sikh Gurdwara is a judgment in rem. It has been further held by the Hon''ble Supreme Court in Kesar Singh''s

case (supra) that in view of Sections 36 and 37 of the Sikh Gurdwara Act, 1925, it would not be open to any Court now to give a decision which

will go against the decision of the Tribunal. Therefore, now it cannot be held by the Civil Court that Gurbux Singh was not the sole owner of the

house in dispute on the basis of gift made by Smt. Ram Devi in his favour as the order of the Tribunal has become final because Smt. Dharam Kaur

did not file any appeal as envisaged u/s 34 of the Sikh Gurdwara Act.

Counsel for the Respondents contended that Smt. Ram Devi had executed a registered will dated 11.5.1923 (marked ''A'') in favour of her

daughter''s son, namely, Pritam Singh, about the property in dispute and in lieu of that will, Smt. Dharam Kaur widow of Pritam Singh was entitled

to the disputed property. In my opinion, the contention of the Learned Counsel is not tenable. The original will has not been produced as it was

stated to have been lost. The scribe and the attesting witnesses were also not produced as they were stated to have died. Therefore, the will was

not legally proved. Even if it is presumed that the will could be taken into consideration, whose copy is mark ''A'', then also it has got no effect on

the rights of the Appellant because Pritam Singh admittedly died in the year 1924 and at that time Smt. Ram Devi, testator, was alive. It appeared

that Pritam Singh had died within one year of his marriage with Smt. Dharam Kaur and with the death of Pritam Singh during the life time of Smt.

Ram Devi, that will has come to an end. No provision was made in the will that after the death of Pritam Singh his widow or his progeny were to

succeed to the property as mentioned in the will. There is no allegation that Smt. Ram Devi had executed a fresh will in favour of Smt. Dharam

Kaur widow of Pritam Singh after the death of Pritam Singh. In these circumstances, the will, whose copy is mark ''A'', dated 11.5.1923, became

infructuous or stood automatically revoked on the death of Pritam Singh during the life time of testator, Smt. Ram Devi.

Counsel for the Appellant submitted that Smt. Devi died some where before 1930 i.e. before the enforcement of the Hindu Succession Act

and the husband of Smt. Dharam Kaur, namely, Pritam Singh, had also died after about one year of her marriage with him i.e. Pritam Singh had

pre-deceased Smt. Ram Devi. He also contended that otherwise also even if Smt. Ram Devi had not gifted the property in dispute in favour of

Gurbux Singh, Gurbux Singh was entitled to inherit the property of Smt. Ram Devi on her death which took place before 1930, being her

daughter''s son. He further contended that Smt. Dharam Kaur, being widow of her daughter''s son, could not have succeeded to the one half share

in the property in dispute as she was not one of the nearest legal heirs. In my opinion, there is force in this contention of the Learned Counsel for

the Appellant. This line of argument was also taken in the lower appellate Court but was rejected on the ground that it was beyond pleadings. This

is a legal plea which can be taken at any time. The lower appellate Court had also held that the parties were governed by custom. It was not a case

of any of the parties that they were governed by custom. Moreover, custom had to be specifically pleaded and proved. In the absence of pleadings

on the custom, it shall be presumed that the parties were governed by the general law. Otherwise also, on the basis of general law i.e. Hindu Law,

Gurbux Singh alone was entitled to succeed to the property in dispute. After the death of Gurbux Singh, his sons, namely, Abnash and Amarjit

Singh, had inherited the house in dispute which later on they had sold to the Appellant vide registered sale deed and as such, the Appellant had

become the owner of the house in dispute. Accordingly, the findings of the trial Court on Issue Nos. 1 and 2 are set aside and it is held that the

Appellant had validly purchased the house in dispute from Abnash and Amarjit Singh sons of Gurbux Singh vide registered sale deed dated

25.9.1974 and he is the owner of the disputed property. In view of the aforesaid findings, it is further held that Respondents are in unauthorised

occupation of the disputed property and the Appellant is entitled to take possession of the same.

As a sequel to the discussion above, the findings recorded by the trial Court as well as lower appellate Court are reversed and as such, the

same are set aside. Consequently, the appeal is accepted and the suit of the Appellant for possession of the house in dispute situated in Ferozepur

City as shown in the Site Plan, Ex. P7 is decreed. However, in the circumstances of the case, the parties are left to bear their own costs.