Smt. Devinder Kaur vs Smt. Ajit Kaur Sandhu (Deceased) and Another

S.K. Jain, J.—Admitted facts are that marriage between Kanwaljit Singh Sandhu and Smt. Kulvinder Kaur was solemnized in January, 1976. Kanwaljit Singh Sandhu was employed in Atlantic Merritime Service Ltd., London. Smt. Devinder Kaur, appellant herein, is the mother of Smt. Kulwinder Kaur whereas Smt. Ajit Kaur Sandhu is the mother of Kanwaljit Singh Sandhu. Both the husband and wife died on 16.2.1990 as they were on board the ship which met with an accident at Lisbon Port and Sank.

Vide sale deed Ex. PW4/6 dated 27th March, 1979 Kanwaljit Singh Sandhu had purchased a plot in the abadi of Waryam Nagar, Cool Road, Jalandhar City in the name of his wife Smt. Kulwinder Kaur.

After their death Civil Suit No. 607 of 1984 for a decree of possession of the above said plot alongwith other property and recovery of Rs. 9314/- on account of fraudulent withdrawal from Saving Bank Account was instituted by Smt. Ajit Kaur Sandhu against Smt. Devinder Kaur and her sons Sukhwinder Singh and Major Rajinder Singh Dhillon. After contest, the suit was decreed by Shri I.S. Bajwa, Sub Judge Ist Class, Jalandhar vide his judgment and decree dated 1.6.1985.

Defendants preferred Civil Appeal No. 233 of 1986 which was also dismissed by Shri G.S. Chahal, District Judge, Jalandhar.

It is that judgment and decree dated 30.7.1987 of the first appellant Court which has been appealed against by the defendants and which requires examination by this Court of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.

The plea of the plaintiff in the suit is that her son Kanwaljit Singh Sandhu and his wife Smt. Kulwinder Kaur having died intestate she was entitled to succeed to their estate under the provisions of Section 15 of the Hindu Succession Act, 1956. On the other hand, the stand taken by Smt. Devinder Kaur, defendant in her written statement is that during their life time the relations of Kanwaljit Singh Sandhu and his wife Smt. Kulwinder Kaur on one hand and Smt. Ajit Kaur Sandhu on the other hand had become so much strained that whenever Kanwaljit Singh Sandhu was on leave he used to stay with her (defendant); that Kanwaljit Singh Sandhu and Smt. Kulvinder Kaur had executed will Ex. DW4/1 and Ex. DW4/2 respectively in her favour and, therefore, she was entitled to succeed to the property in dispute being a legatee under both the wills. She has also put up a case that the plot in dispute was purchased for Rs. 40,000/- out of the amount of Rs. 59000/- which she had paid to kulvinder Kaur as her share in the estate of her father.

The Subordinate Judge in his judgment has stated: -

i) that Smt. Ajit Kaur was Class I heir of her deceased son Kanwaljit Singh Sandhu as per Ist Schedule of the Hindu Succession Act, 1956 and there being no other heir, she was the sole legal heir of her son;

ii) that neither Kanwaljit Singh nor Smt. Kulvinder Kaur had executed any will on 30.3.1979 in favour of defendant No. 1; and

iii) that Kanwaljit Singh had purchased the plot in the name of his wife Smt. Kulwinder Kaur, out of love and affection from his own resources.

Learned lower appellate Court in his judgment has affirmed the above said findings of the trial Court.

Learned counsel for the appellant has argued that the plot was purchased by Kanwaljit Singh Sandhu in the name of his wife Smt. Kulwinder Kaur benami; that by operation of Section 4 of the Benami Transactions (Prohibition) Act, 1988 Smt. Kulwinder Kaur had become absolute owner thereof and after her death her estate had devolved on her heirs and that Smt. Devinder Kaur being her mother was her sole heir and she was entitled to inherit the property in dispute. In support of his argument, he has taken me through the provisions of Sections 3 and 4 of the above said Act. This argument attractive at first sight, is, in my opinion, not tenable on the sound appreciation of the facts and law involved herein.

Perusal of sale deed Ex. PW4/6 dated 27th March, 1979 shows that the sale consideration of Rs. 40,000/- of the plot was paid in the shape of Bank Draft by Kanwaljit Singh. Sections 3 and 4 of the Banami Transaction (Prohibition) Act, 1988 are reproduced below for ready reference:

"3. Prohibition of benami transaction:-

(1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife of unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and bailable.

Prohibition of the right to recover property held benami:

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held banami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property

(3) Nothing in this Section shall apply: -

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparcencers in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.".

Analytical examination of these provisions would show that no suit to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person, shall be allowed in any suit by or on behalf of a person claiming to be the real owner of such property and no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit by or on behalf of a person claiming to be the real owner of such property. Mr. Chopra argues that the said Act is retrospective in nature. In support of his argument he has cited at the bar Mithilesh Kumar and Another Vs. Prem Behari Khare, wherein it has been held that subsequent event could be taken note of and the Act being retrospective in operation, the suit could not be decreed.

He has relied on Velayudhan Ramakrishnan and Others Vs. Rajeev and Others, holding that the object of the ordinance was to do away with what was felt to be an obnoxious system which had deleterious consequences on larger public interest. The provisions of the ordinance do not even remotely suggest a preservation of the earlier rights or a protection of past transactions. The Courts should lean more in favour of an interpretational process which would promote a laudable object; and eschew one which would sap its efficacy and leave it as a dead wood, as it were.

I can possibly have no quarrel with the proposition of law laid down by the above said judgments but the question is as to whether in the facts and circumstances of this case, there is any necessity for invoking these provisions. The succession to the property left by two deceased persons would open if they had died intestate and, therefore, I leave this question here and proceed to examine whether each one of them had executed a valid will in their life time as alleged by the defendant.

Both the Courts below have carefully examined will Ex. DW4/1 alleged to have been executed by Kanwaljit Singh Sandhu and will Ex. DW4/2 by Smt. Kulvinder Kaur, both dated 30th March 1979 and after surgically scrutinizing the evidence on record, they had recorded a concurrent finding that none of them had executed any will. Mr. Chopra, learned counsel for the appellant, had read over all the oral evidence on record in order to prove the valid execution of these wills. Much stress has been laid by him on the testimony of Shri Ashwani Kumar Sharma, Advocate, examined as DW 10. But admittedly he is neither the scribe nor an attesting witness of the will. His statement makes interesting reading. He had dictated the wills at the instance of testators and his clerk Dilbag Rai DW 5 had directly typed the same and signed both the wills but neither as a scriber nor as an attesting witness. The only attesting witness of the two wills is Smt. Kamla Jaswal as DW-9. She also does not in any manner prove the wills as required u/s 63 of the Indian Evidence Act. She is a chance witnesses. She seems to be more Catholic than the Pope. It is not the case of the defendant that either of the two wills was typed on a stamp paper but this witness had the cheeks to say that these wills had been typed on stamp papers. This goes a long way to show that she did not have the occasion even to have a glance over the two wills. Dilbag Rai, the clerk of Shri Ashwani Kumar Sharma, Advocate, who had typed the wills has stated that at the time when the wills were signed by the respective testators no attesting witness was present.

In view of the above evidence, I am in agreement with the concurrent finding recorded by the Courts below to the effect that the evidence of above said three witnesses do not in any way prove due execution of will either Kanwaljit Singh Sandhu or by Smt. Kulvinder Kaur.

Now picking up the thread where it was left I find that after having come to the conclusion that due execution of either of the two wills has not been proved now the question is as to on whom the property of the deceased would devolve.

Section 8 of the Hindu Succession Act, 1956 deals with the Succession in the case of males whereas Sections 15 and 16 of the Act provide Rules of Succession in the case of felame Hindus.

There is no denying of the fact that Kanwaljit Singh Sandhu had left behind Smt. Ajit Kaur, his mother only who is his heir of Class I. His estate had therefore devolved upon her.

In view of the provisions of Sections 3 and 4 of the Benami Transaction (Prohibition) Act, 1988 which is retrospective in nature, the plot purchased by Kanwaljit Singh from sources benami in the name of his wife Smt. Kulvinder Kaur, she became full owner thereof. On her death her estate would devolve on the heirs of her husband in view of the provisions of Section: 15(1)(a) of the Act. As mentioned in the preceding paragraph Smt. Ajit Kaur, was the only heir of Kanwaljit Singh, husband of Smt. Kulvinder Kaur therefore, the said plot would also devolve upon her.

Ajit Kuar plaintiff having died during the pendency of this Regular Second Appeal, Civil Miscellaneous No. 3212-C of 1990 was moved in order to bring her legal representative on record. Vide order dated 16.11.1990 that petition was allowed and Shri G.S. Sandhu, husband, Mrs. Amarjit Lidder and Mrs. Paramjit Somal, daughters of Smt. Ajit Kaur, were brought on the record as her legal representatives who have stepped into her shoes.

Learned trial Court returned findings on issues No. 5 to 8 against the defendants. These findings were neither challenged before the lower appellate Court nor in this Regular Second Appeal and the same had become final.

As a sequal to the above discussion, Impugned judgment and decree dated 30.7.1987 of the learned lower appellate Court confirming the judgment and decree of the trial Court dated 1.6.1985 is hereby affirmed.

Consequently, this regular second appeal is dismissed being without merit. No costs.