Sohan Singh vs Joginder Singh

J.V. Gupta, J.—This is the Plaintiff second appeal whose suit for possession was decreed by the trial Court, but was dismissed in appeal.

Sohan Singh, Plaintiff-Appellant, filed a suit for possession of the red coloured portion of the house in dispute bearing No 1951/VI-9, situated in Kucha Nagpal, Amritsar. According to the Plaintiff, his mother Smt. Tara Devi deceased executed the registered sale deed dated 26th April, 1956, Exhibit P-2, in which she bequeathed the suit house to him and thereafter she transferred it to him vide registered gift deed dated March 9, 1974, Exhibit P-l; that it was her self-acquired property and she was, therefore, competent to transfer it to him and thus he became its absolute owner According to him, Joginder Singh, Defendant, is in illegal possession of the second floor portion of the suit house, and therefore, he was liable to be ejected therefrom.

In the written statement, Joginder Singh pleaded that Tara Devi was not the owner of the suit house though it was purchased in her name. In fact, it was the property of the Joint Hindu family which consisted of the parties and their father. Tirlochan Singh deceased as Karta. Tirlochan Singh died on 22nd November, 1971, whereas Tara Devi died on 16th December, 1977. Prior to the death of Tara Devi, mother of the parties, they have entered into a family settlement Exhibit D-5 dated 20th April, 1977, whereby, the house in dispute was given to the Defendant. It was further pleaded that in view of the said settlement the earlier will and the gift deed were of no consequence. The trial Court found that Smt. Tara Devi did execute the will dated 9th October, 1972, Exhibit P-2, as well as gift deed, Exhibit P.1, dated 9th March, 1974, in respect of the house in dispute in favour of Sohan Singh Plaintiff and thus the latter was the absolute owner of it. It was further found that it was the self acquired property of Tara Devi and was not purchased out of the funds of the Hindu Joint Family, and the Defendant was in illegal occupation of the portion of the house in dispute. On the question of family settlement, Exhibit D.5, the trial Court was of the view that since the ownership of the suit house had devolved from Tara Devi on Sohan Singh by virtue of the gift deed and therefore Sohan Singh could not be divested in consequence of the family settlement. In view of these findings, the Plaintiff''s suit was decreed. In appeal, the learned Additional District Judge reversed the said findings of the trial Court on the question of family settlement, Exhibit D.2(sic). According to the lower appellate Court, a perusal of the recitals in the settlement memorandum Exhibit D-5 shows that it was agreed and declared that the gift deed dated 9th March. 1974 would be illegal, ineffective, void and inoperative and not binding on the parties and status quo of the parties regarding properties restored at a stage at which it stood on the death of S Tarlochan Singh. Certain protions of the family settlement, Exhibit D.5 were also reproduced, and ultimately it was held that Joginder Singh Defendant is in possession of the portion of the suit house depicted in red colour in the plaint Exhibit PX as owner and not as tres passer and that Sohan Singh Plaintiff is estopped by his acts and conduct from denying his ownership thereof. In view of these findings, the Plaintiff''s suit was dismissed. Dissatisfied with the same the Plaintiff has filed second appeal in this Court.

Learned Counsel for the Plaintiff Appellant vehemently contended that the so called family settlement Exhibit D-5 was not admissible in evidence is it was not registered. Moreover, there was no equitable distribution of the properties between the parties as mother gets nothing thereunder and on that account also, the family settlement could not be relid upon. It was also contended that the house in dispute was never shown as property of Tara Devi, and, therefore, the question of family settlement as such did not arise In any case, argued the Learned Counsel, there being no fair settlement on the basis of the agreement Exhibit D. 5 the Plaintiff''s suit could not be dismissed.

After hearing the Learned Counsel for the parties and going through the document Exhibit D-5, I am of the considered view that there is no illegality or infirmity in the firm findings of the lower appellate Court as to be interfered with in second appeal. As regards the validity of the Exhibit D-5, even the trial Court took the view that in view of the gift deed Exhibit P-l, Exhibit D-5, could not be given effect to. This approach of the trial Court was wholly wrong and misconceived. Once it is found that after the gift deed, Exhibit P-l, the parties entered into an agreement and settled their family affairs by virtue of Exhibit D-5 because criminal litigation was going on between them then it could not be urged on behalf of the Plaintiff that Exhibit D-5 could not be relied upon became it was not equitable settlement this question was never raised at any stage. As a matter of fact, the Plaintiff denied any such settlement.

In view of these circumstances, the appeal is dismissed, with no order as to costs.