Supreme Court of
India
NARINDER SINGH RAO VS AVM
MAHINDER SINGH RAO & ORS.
on 22 March, 2013
Author:
………..……………............J.
Bench: R.M. Lodha, Anil R. Dave
NON-REPORTABLE
CIVIL APPELLATE
JURISDICTION
CIVIL APPEAL NOS. 6918-6919
OF 2011
J U D G M E N T
ANIL R. DAVE, J.
1. Being aggrieved by the
Judgment delivered in Civil Regular Second Appeal No. 3937 of 2005 and Cross
Objection No. 9-C of 2005 dated 21st May, 2010 by the High Court of Punjab
& Haryana at Chandigarh, these appeals have been filed by original
defendant No.1.
2. The facts giving rise to
the appeals in a nutshell are as under: Rao Gajraj Singh and his wife Sumitra
Devi were occupiers of the suit property. The property appears to have been
constructed somewhere in 1935 and as per the municipal record, it belonged to
Rao Gajraj Singh. A document was executed by Rao Gajraj Singh to the effect
that upon death of himself or his wife, the suit property would be inherited by
the survivor. The said writing was attested by Rao Devender Singh, the son of
Rao Gajraj Singh’s real sister.
Rao Gajraj Singh expired on
29th March, 1981 and thereafter Sumitra Devi, who had eight children, started
residing at Ranchi with the appellant.
Somewhere in 1980s, Sumitra
Devi got constructed some shops in the suit premises and the said shops were
given on rent.
On 1st June, 1989, Sumitra
Devi executed a Will whereby she bequeathed the suit property to one of her
sons, namely, Narinder Singh Rao (the present appellant and original defendant
No.1) and she expired on 6th June, 1989.
3. After the death of
Sumitra Devi, her four children, one of them being the present respondent No.1,
filed a suit for declaration claiming their right in the suit property.
Subsequently, the plaint was amended so as to make it a suit for partition.
According to the case of the said children, the Will was not genuine and
therefore, the said Will could not have been acted upon and as Sumitra Devi was
survived by eight children, the suit property would be inherited by all the
children. Thus, each child had 1/8th share in the suit property.
4. Even after death of Rao
Gajraj Singh, the suit property continued to remain in his name because nobody
had got the property mutated in the names of his heirs/legal representatives
after his death.
5. The said suit was
dismissed and therefore, the original plaintiffs, along with others, preferred
an appeal. After hearing the learned advocates and considering the facts of the
case, the lower appellate court dismissed the said appeal though allowed the
appeal on the question of court fee.
6. Being aggrieved by the
judgment delivered by the lower appellate court, original plaintiff No.1 filed
a second appeal, being Civil Regular Second Appeal No. 3937 of 2005. On the
issue with regard to court fee, cross objection was filed by the present
appellant. The said appeal was partly allowed whereas the cross objection was
dismissed on 25th May, 2010 and being aggrieved by the judgment delivered in
the said appeal, the present appeal has been filed by the appellant, who is
original defendant no.1.
7. It is pertinent to note
as to how the High Court has decided the Second Appeal and for that purpose let
us look at the findings, which are as under:
The ultimate findings
arrived at by the court below are to the effect that the writing executed by
Rao Gajraj Singh, which stated that upon death of himself or his wife, the suit
property would be inherited by the survivor, was neither in the nature of a
Will nor in the nature of transfer of the property because the said writing was
neither registered as required under the provisions of the Indian Registration
Act, 1908 nor was attested by two witnesses as it should have been done, had it
been a Will. Thus, the writing executed by Rao Gajraj Singh, in the eyes of
law, was only a piece of paper, having no legal effect. Factually also, the
said writing was not a Will because it was not attested by two attesting
witnesses as is required to be done for execution of a valid Will. It is also a
fact that the said writing had not been registered and by virtue of the said
writing either complete ownership or share of Rao Gajraj Singh was not
transferred to Sumitra Devi, thus, the High Court in its impugned judgment
rightly ignored the said writing executed by Rao Gajraj Singh.
8. Upon the death of Rao
Gajraj Singh, no mutation entry was made in the Municipal Corporation records
to show as to who had inherited the property in question and the said property
continued to remain in the name of late Rao Gajraj Singh.
9. By virtue of the Will
executed by Sumitra Devi, whereby the property had been bequeathed to the
present appellant, the appellant claims complete ownership over the suit
property.
10. So far as inheritance
of the suit property by the present appellant in pursuance of the Will dated 1st
June, 1989 executed by Sumitra Devi is concerned, the finding of the lower
appellate court is to the effect that the Will was validly executed by Sumitra
Devi, which had been attested by two witnesses, one being an advocate and
another being a medical practitioner. Though there was an allegation to the
effect that Sumitra Devi was not keeping good health at the time when she had
executed the aforesaid Will and she was not having sound and disposing mind at
the time of execution of the Will, the said submission made before the courts
below was not accepted. Upon appreciation of evidence adduced, it was held that
the Will was validly executed and Sumitra Devi was competent to execute the
Will which had been duly attested by two competent witnesses. In the circumstances,
the courts below came to the conclusion that the Will was validly executed. The
question with regard to the state of mind of the testatrix and execution of the
Will being a question of fact, the High Court rightly accepted the findings
arrived at by the lower appellate court. As the said finding has been accepted
by the High Court, in our opinion, even this Court would not re-appreciate the
said fact. In the circumstances, so far as the validity of the Will is
concerned, it is treated to have been executed properly. The next question
which was to be considered by the High Court was with regard to the ownership
right of the suit property. The property was in the name of Rao Gajraj Singh
and no evidence of whatsoever type was adduced to the effect that the property
originally belonged to Sumitra Devi. Looking to the said fact, the findings
arrived at by the High Court that the suit property belonged to Rao Gajraj
Singh cannot be disturbed. As Rao Gajraj Singh died intestate and was the owner
of the property at the time of his death, the suit property should have been
inherited by his widow, namely Sumitra Devi and his eight children in equal
share, as per the provisions of the Hindu Succession Act, 1956. In that view of
the matter, the High Court arrived at the conclusion that the suit property
would be inherited by all the 9 heirs i.e. Sumitra Devi and her eight children
and therefore, Sumitra Devi had inherited only 1/9th of the right and interest
in the suit property whereas 1/9th of the right and interest in the suit
property belonged to each child of Rao Gajraj Singh.
11. Though the Will
executed by Sumitra Devi has been treated as a validly executed Will, Sumitra
Devi, who had only 1/9th of the right and interest in the suit property, could
not have bequeathed more than her interest in the suit property. If Sumitra
Devi was not a full-fledged owner of the suit property, she could not have
bequeathed the entire suit property to the present appellant- Narinder Singh
Rao who has claimed the entire property by virtue of the Will executed by
Sumitra Devi. At the most Sumitra Devi could have bequeathed her interest in
the property which was to the extent of 1/9th share in the said property. So
the High Court rightly came to the conclusion that the 1/9th share in the suit
property belonging to Sumitra Devi would be inherited by the present appellant
- Narinder Singh Rao by virtue of the Will executed by her. In addition to his
own right and interest in the suit property to the extent of 1/9th share, which
the present appellant had inherited from his father, the present appellant
would get 1/9th share in the suit property as he also inherited share of his
mother Sumitra Devi whereas all other children of Rao Gajraj Singh would get
1/9th share each in the suit property. Thus, the present appellant would be
having 2/9th share in the suit property.
12. In our opinion, the
afore stated findings arrived at by the court below are absolutely just and
proper. So far as findings of facts are concerned, the same have been finally
decided by the court below and therefore, we would not like to interfere with
the findings of the fact.
13. So far as legal issues
are concerned, in our opinion, the court below did not make any error while
coming to the afore stated conclusions after applying law to the facts of the
case.
14. The learned counsel
appearing for the parties had made lengthy submissions, however, in our opinion
not a single submission made on behalf of the appellant is impressive.
15. On behalf of the
appellant, the submissions were made to the effect that the suit property in
fact belonged to Sumitra Devi though it was in the name of Rao Gajraj Singh.
The provisions of Benami Transfer (Prohibition) Act, 1988 had been referred to
by the learned counsel appearing for the appellant. The question whether the
suit property in fact belongs to an individual i.e. whether he is a beneficial
owner or is a benami, is a question of fact. There was no averment made in the
plaint with regard to the afore stated allegation. No issue to the said fact
had been raised before the trial court. The said issue had been raised for the
first time before the appellate court and in our opinion, the issue with regard
to the fact could not have been raised before the appellate court for the first
time and therefore, all submissions made in relation to the provisions of
Benami Transfer (Prohibition) Act, 1988 and with regard to real ownership of
the suit property cannot be looked into at this stage.
16. The submissions made
with regard to the mental capacity of Sumitra Devi at the time of execution of
the Will cannot also be looked into at this stage because the mental capacity
of the testator to execute a Will being a question of fact, we would like to
accept the findings arrived at by the court below and all allegations with
regard to soundness of mind of Sumitra Devi at the time of execution of the
Will or allegation with regard to undue influence of the present appellant with
whom Sumitra Devi was residing at the time of her death cannot be looked into
by this Court as they are the issues pertaining to fact. We, therefore, do not
accept the submissions made with regard to validity of the Will executed by
Sumitra Devi.
17. As we have come to the
conclusion that the Will executed by Sumitra Devi was just and proper, the
consequences of the Will would be like this: Rao Gajraj Singh was survived by
his eight children and his widow –Sumitra Devi. As Rao Gajraj Singh died
intestate, according to the provisions of the Hindu Succession Act, his property
would devolve upon all his nine heirs i.e. his widow and eight children. So,
everyone would get 1/9th share in the property of Rao Gajraj Singh. Though
Sumitra Devi had executed her Will and had bequeathed the entire property in
question to the present appellant namely Narinder Singh Rao, Sumitra Devi could
not have bequeathed under her Will what she did not own. She was only 1/9th
owner of the suit property so she could have bequeathed only her share i.e.
1/9th share in the suit property. As a result of the Will of Sumitra Devi,
Narinder Singh Rao - the appellant would not only inherit his own share in the
property, which he had inherited from his father Rao Gajraj Singh but he would
also inherit share of his mother Sumitra Devi as per her Will. Thus, the
present appellant would become the owner of 2/9th share of the suit property.
In our opinion the final finding of the High Court that the appellant is the
owner of 2/9th share of the suit property is, therefore, absolutely correct.
18. The averments with
regard to court fee are not of importance at this stage as looking to the facts
of the case, the court below has rightly come to the conclusion that the issue
with regard to the court fee was a matter between the litigant filing the suit
and the court and the defendants need not have bothered about the same.
19. The learned counsel
appearing for both sides have cited several judgments. The propositions laid
down in the said judgments cannot be disputed, however, the fact remains that
the said judgments do not render any assistance to the appellant in view of the
afore stated facts.
20. In view of the findings
of fact arrived at by the courts below and the legal position clarified
hereinabove and by the High Court, in our opinion, the High Court has committed
no error and therefore, we see no reason to interfere with the impugned
judgment.
21. For the afore stated
reasons, the appeals are dismissed with no order as to costs.
………..……………............J.
(R.M. LODHA)
………..……………............J.
(ANIL R. DAVE)
New Delhi
MARCH 22, 2013.
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