Sh. Inder Pal Singh & Ors. v. Smt. Rajinder Kaur & Ors.

1. This second appeal is filed impugning the concurrent judgments of the courts below; of the trial court dated 30.8.2013 and the first appellate court dated 18.2.2014; by which a preliminary decree for partition has been passed dividing the property of 200 sq. yds in K.No. 68/14, in the revenue estate of village Palam (presently known as Raj Nagar) Delhi between the plaintiffs/respondents and the appellants/defendants. Appellants/defendants are the legal heirs of Smt. Surjeet Kaur and the respondents/plaintiffs are the legal heirs of Sh. Mohan Singh. Smt. Surjeet Kaur and Sh. Mohan Singh are 2014:DHC:2222 the daughter and son of Sh. Nand Singh and Smt. Milavi Devi. Smt. Milavi Devi owned the suit plot of 200 sq. yds. forming part of a total area of 400 sq. yds, and which area of 400 sq. yds. was purchased by means of sale deeds of 200 sq. yds. each dated 5.10.1959, one in favour of Sh. Nand Singh and another in favour of Smt. Milavi Devi.

2. The facts of the case are that Sh. Nand Singh and Smt. Milavi Devi purchased two adjacent plots of 200 sq. yds. each in K.No. 68/14 in village Palam by registered sale deeds dated 5.10.1959. Sh. Nand Singh out of his 200 sq. yds sold 100 sq. yds and consequently, Sh. Nand Singh and Smt. Milavi Devi thereafter had with them a total of 300 sq. yds of land i.e 100 sq. yds of Sh. Nand Singh and 200 sq. yds of Smt. Milavi Devi. Sh. Nand Singh and Smt. Milavi Devi had three children Sh. Mohan Singh(whose legal heirs are respondents-plaintiffs) and Smt. Surjeet Kaur (whose legal heirs are appellants-defendants) and one Sh. Tarsem Singh. There was a family settlement between Sh. Mohan Singh, Sh. Tarsem Singh and legal heirs of late Smt. Surjeet Kaur on 19.2.1987 whereby the property of 300 sq. yds was partitioned by an arrangement whereby 100 sq. yds belonging to Sh. Nand Singh fell to the share of the other sibling Sh. Tarsem Singh who is not a party to the present litigation and the balance 200 sq. yds belonging to late Smt. Milavi Devi (who expired on 8.3.1984) came to be vested equally with Sh. Mohan Singh and Smt. Surjeet Kaur in equal shares. The present municipal number of the suit property admeasuring 200 sq. yds is Municipal No.WZ-148, Raj Nagar, Palam, Delhi. Respondents-plaintiffs claimed their share of 100 sq. yds. by seeking partition by means of the subject suit.

3. Appellants-defendants contested the suit by claiming that mother Smt. Milavi Devi had executed various documents in favour of Smt. Surjeet Kaur predecessor-in-interest of the appellants-defendants, whereby the entire property of 200 sq. yds was transferred to Smt. Surjeet Kaur by Smt. Milavi Devi. These documents are dated 21.10.1980 and are agreement to sell, power of attorney, receipt, Will etc.

4. Therefore, the issue in the suit was as to whether Smt. Milavi Devi had transferred the suit property to her daughter Smt. Surjeet Kaur, predecessor-in-interest of the appellants-defendants, by means of the documentation dated 21.10.1980 or that these documents were only sham/nominal documents and actually the appellants/defendants and Sh. Mohan Singh alongwith the third sibling Sh. Tarsem Singh had partitioned the property on 19.2.1987 whereby each sibling got 100 sq yds.

5. Both the courts below have held that the alleged documents dated 21.10.1980 executed by Smt. Milavi Devi in favour of Smt. Surjeet Kaur are sham documents inasmuch as, not only these documents were not acted upon by Smt. Surjeet Kaur but the passing of consideration under these documents as said to be paid to Smt. Milavi Devi was not established and it was not existed. The courts below have held that in fact the subsequent family settlement dated 19.2.1987 (Ex.PW1/4) which is a valid document which binds the parties because the said family settlement is not only signed by the husband of Smt. Surjeet Kaur i.e father of the defendants no. 2 and 3 who were minors at that time (signatures of the father of defendants no.2 and 3 have not been disputed on Ex.PW1/4 by the father of defendant nos. 2 and 3 ie the defendant no.1 in the suit) but the said settlement would not have been signed if the documents dated 21.10.1980 were to bind and operate. It has been held by the courts below that the family settlement is not required to be registered in view of the judgment of the Supreme Court in Kale & Ors. Vs. Dy. Director of Consolidation & Ors. AIR 1976 SC 807. The courts below have also held that the documents dated 21.10.1980 in favour of Smt. Surjeet Kaur were not acted upon because the family settlement dated 19.2.1987 has thereafter been signed ignoring the documentation dated 21.10.1980.

6. I completely agree with the aforesaid conclusions of the courts below except the conclusion of the first appellate court that the documents dated 21.10.1980 executed in favour of Smt. Surjeet Kaur cannot be referred to in view of the judgment of the Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 (11) SCC 438, however, even if we ignore this finding of the first appellate court, yet, the other findings and conclusions of the courts below by holding the parties to be bound by the family settlement dated 19.2.1987, Ex.PW1/4 are impeccable and have to be upheld.

7. Learned counsel for the appellant argued before this Court that the family settlement dated 19.2.1987 could not be entered into by the defendant no.1 for defendant nos. 2 and 3 who then were minors and for which purpose reliance is placed upon Section 8 of the Hindu Minority and Guardianship Act, 1956 which requires prior permission to be taken from the courts for transferring of a property belonging to minors. This argument urged on behalf of the appellant is without any substance whatsoever because there is no transfer of any title by means of the family settlement dated 19.2.1987 and each of the parties is recognized to be the owner of 100 sq. yds each of the property, and which would be because out of 300 sq. yds with the family, 100 sq. yds went to the other sibling/brother Tarsem Singh and 100 sq. yds each went to the two branches of the other two siblings namely Sh. Mohan Singh and Smt. Surjit Kaur. Though not so stated in the family settlement, however, the family settlement proceeds on the documents dated 21.10.1980 being nominal documents i.e the documents dated 21.10.1980 were never acted upon. The courts below have rightly noted that defendant nos. 2 and 3, after they achieved majority never challenged the family settlement dated 19.2.1987. To that aspect I may add that the plea raised on behalf of the appellants is totally a dishonest plea because the alleged applicability of Section 8 of the Hindu Minority and Guardianship Act, 1956 cannot take away the fact that the family settlement dated 19.2.1987 is admitted to be signed by defendant no.1 and defendants no. 2 and 3 were admittedly minors at that point of time, with the fact that each branch of Sh. Mohan Singh and Smt. Surjeet Kaur got 100 sq. yds each out of 300 sq. yds remaining in the property i.e the property was equally divided. Obviously, the appellants have turned dishonest and want to appropriate the entire property although their share is only 100 sq. yds out of total area of 200 sq. yds.

8. Learned counsel for the appellant also argued that the Will which is executed on 21.10.1980 is sufficient to hold that the entire 200 sq. yds belonging to Sh. Mohan Singh devolved upon Smt. Surjeet Kaur and consequently appellants-defendants who are the legal heirs of Smt. Surjeet Kaur would be the owner of the entire property of 200 sq. yds., however, this argument ignores the fact that even a Will can be a sham or nominal document which is not acted upon and the fact that this document was a sham/nominal document which was not acted upon is clear because subsequently in the year 1987 the family settlement dated 19.2.1987 was entered into between the parties, and which was never disputed at any point of time by the defendants no.1 to 3 prior to filing of the subject suit.

9. In view of the above, no substantial question of law arises under Section 100 CPC and the appeal is therefore dismissed with costs of Rs.10,000/-, which would be deposited with the Delhi High Court Legal Aid Services Committee within a period of six weeks from today. If costs are not deposited, Registry will list the matter in Court for ensuring compliance of the order of deposit of costs.

APRIL 29, 2014 VALMIKI J. MEHTA, J. ib