Full Judgment Text
2024 INSC 516
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8187 OF 2023
DUNI CHAND & Others ...APPELLANT
VERSUS
VIKRAM SINGH AND OTHERS ...RESPONDENTS
WITH
CIVIL APPEAL NO.8188 OF 2023
VIKRAM SINGH ...APPELLANT
VERSUS
DUNI CHAND AND OTHERS ...RESPONDENTS
J U D G M E N T
VIKRAM NATH, J.
1. Both the above appeals assail the correctness of the
judgment and order dated 29.03.2017 passed by the
High Court of Himachal Pradesh whereby the RSA
No.392 of 2005 titled Vikram Singh and others Vs. Tota
Ram (since deceased) through LRs was partly allowed
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2024.07.19
18:58:22 IST
Reason:
and the judgment and decree passed by the First
Civil Appeal No. 8187 of 2023 Page 1 of 14
Appellate Court was partly upheld and partly set aside.
2. Relevant facts in brief giving rise to the present
appeals are as under:
(a). Beli Ram was the owner in possession of the land
in dispute. Tota Ram, plaintiff is the nephew of Beli Ram,
being his brother's son. According to the plaintiff, he had
been cultivating the land in question for more than three
decades and had also been taking care of Beli Ram. In
1988, out of natural love and affection, Beli Ram
executed a registered Will dated 12.12.1988 bequeathing
the suit land in favour of the plaintiff Tota Ram. Beli Ram
died on 11.07.1994. As the plaintiff had continued in
possession from the time when Beli Ram was alive, he
remained in possession even after death of Beli Ram.
However, as the defendant started interfering with the
possession of the suit land, the plaintiff made enquiry
and he came to know that defendant no.1, Vikram Singh,
on the basis of another Will dated 16.05.1994 had got
his name mutated in the revenue records vide mutation
Entry No.201. Further, Vikram Singh had transferred
Civil Appeal No. 8187 of 2023 Page 2 of 14
the land in suit in favour of defendant no.2, Smt. Saroj
Kumari and also defendant nos.4 and 5, Pankaj Kumar
and Pawan Kumar respectively.
(b) In view of the interference in possession, Tota Ram
instituted a suit for a decree of declaration with
consequential relief of permanent prohibitory injunction
that he was the owner in possession of land in dispute
and that the defendants had no right or title to it. It was
further prayed that the mutation Entry No.201 dated
17.01.1996 and Entry No. 207 dated 07.06.1996 should
also be declared as false, fictitious and illegal.
(c). In the plaint, Vikram Singh was impleaded as
defendant no.1., Smt. Saroj Kumari as defendant no.2,
Pankaj Kumar and Pawan Kumar as defendant Nos.4
and 5. Defendant no.3, Smt. Dharni Devi, being daughter
of Beli Ram was also impleaded but no relief was claimed
against her as she had not put up any claim with respect
to the property of Beli Ram including the land in suit.
According to the plaint allegations, Beli Ram had
executed the Will in sound mind and good health, out of
Civil Appeal No. 8187 of 2023 Page 3 of 14
love and affection on 12.12.1988 in favour of the plaintiff,
who had been taking care of Beli Ram throughout and
had also been cultivating the land in suit for the last
more than 30 years. It was further stated that the second
Will dated 16.05.1994, set up by defendant no.1 was
forged and fictitious and surrounded with suspicion, as
such, it did not confer any right, title or interest upon the
defendant no.1 or the vendees through him i.e.
Defendant nos.2, 4 and 5.
(d). The defendants contested the suit and filed their
written statements and led evidence. Defendant Nos.4
and 5 filed a separate written statement. They denied the
plaint allegations and stated that the Will dated
16.05.1994 was a genuine document voluntarily
executed by Beli Ram in a healthy and disposing mind
and the same was duly registered. The Will dated
12.12.1988 was denied. According to them, the entries
in the revenue records were made after due verification.
They also claimed to be in possession of the land
purchased by them. Separate written statements were
Civil Appeal No. 8187 of 2023 Page 4 of 14
filed by defendant nos.1 and 2 on same lines as of
defendants 4 and 5. Dharni Devi, Defendant no.3, filed a
written statement admitting the claim of the plaintiff and
also the Will dated 12.12.1988.
4. The Trial Court framed 12 issues which read as
follows:
“1. Whether the plaintiff is the owner in possession
of the suit land as alleged?
2. Whether late Shri Beli Ram executed a valid
“Will” on 12.12.1988 in favour of the plaintiff as
alleged? OPP
3. Whether the mutations No.201 and 207 are
wrong and illegal as alleged? OPP
4. Whether the plaintiff is entitled to be injunction
prayed for? OPP
5. Whether the plaintiff has a cause of action? OPP
6. Whether the plaintiff has the locus-standi to sue?
OPP
7. Whether the suit is bad for non-joinder of the
necessary parties? OPD
8. Whether the suit is time barred? OPD
9. Whether the suit is not maintainable in the
present form? OPD
10. Whether late Shri Beli Ram executed a valid
“Will” on 16.05.1994 in favour of the defendant no.1
as alleged. If so, its effect? OPD
11. Whether the defendants No.2, 4 and 5 Bona
Civil Appeal No. 8187 of 2023 Page 5 of 14
fide purchasers for consideration as alleged. If so, its
effect? OPD
12. Whether the defendants are entitled to special
costs u/s 35-A of CPC as claimed. If so, their quantum?
13. Relief.”
5. Before the Trial Court, the plaintiff-Tota Ram
examined three witnesses and placed on record the Will
dated 12.12.1988, which he duly proved and was
marked as Ext. DW-2/(A).
6. On the other hand, the defendants examined five
witnesses and also proved their Will dated 16.05.1994,
which was marked as Ext.DW-3/(A). The Trial Court
recorded the following findings on the issues as
incorporated in paragraph 7 of the judgment, which are
reproduced hereunder:
Issue no.1 : No
Issue no.2 : No
Issue no.3 : No
Issue no.4 : No
Issue no.5 : No
Issue no.6 : No
Issue no.7 : No
Civil Appeal No. 8187 of 2023 Page 6 of 14
Issue no.8 : No
Issue no.9 : No
Issue no.10 : No
Issue no.11 : No
Issue no.12 : Not pressed
Relief : The suit of the
plaintiff is
dismissed as per
operative part of the
judgment.
7. On the above findings, the Trial Court, vide
judgment dated 30.09.2004, dismissed the suit.
8. Aggrieved by the same, plaintiff-Tota Ram preferred
an appeal under Section 96 of the Code of Civil Procedure,
1908 before the District Judge, Hamirpur, which was
registered as Civil Appeal No.110 of 2004. The appellate
Court framed point for determination as to whether the
judgment and decree under appeal is legally sustainable
and to what relief if any, the appellant would be entitled
to. The District Judge did not agree with the findings and
the conclusions of the Trial Court and, accordingly,
decreed the suit against defendants 1, 2, 4 and 5. It held
Civil Appeal No. 8187 of 2023 Page 7 of 14
that the Will dated 12.12.1988 was a valid and genuine
document and plaintiff was entitled to a declaration on
the basis of the same, that he was in possession of the
land in question and accordingly injuncted the
defendants 1, 2, 4 and 5 from interfering in his
possession. It further found that the Will dated
16.05.1994 was surrounded with suspicious
circumstances and as such could not be relied upon. It
was held to be an invalid document. It also set aside the
mutation Entry Nos.201 and 207.
9. Aggrieved by the judgment of the first appellate
Court, the defendants preferred Second Appeal under
Section 100 of CPC, which was registered as RSA No.392
of 2005 before the High Court of Himachal Pradesh. The
High Court confirmed the finding of the First Appellate
Court that the Will dated 12.12.1988 was a valid and
genuine document. It also found that the second Will
dated 16.05.1994 in favour of defendant no.1, Vikram
Singh was not a genuine document and was shrouded
with suspicion. However, the High Court felt that the
Civil Appeal No. 8187 of 2023 Page 8 of 14
purchasers from defendant no.1 were entitled to benefit
1
of Section 41 of the Transfer of Property Act, 1882 and,
accordingly, saved the transactions in their favour. They
were entitled to retain the land covered under their
respective sale deeds and the remaining land covered
under the Will, would stand declared in the ownership of
the plaintiff, Tota Ram and that the defendant no.1,
Vikram Singh would not be entitled to claim any such
benefit over the remaining land. The High Court also set
aside the mutation Entry No.201 but saved it with
respect to the transfers made in favour of defendants 2,
4 and 5. It further restored the mutation Entry No.207
in favour of defendant Nos.2, 4 and 5.
10. Aggrieved by the same, the legal heirs of Tota Ram
i.e. his three sons, three daughters and widow have filed
Civil Appeal No.8187 of 2023 to challenge the judgment
of the High Court to the extent it saved the transactions
in favour of defendants 2, 4 & 5. The other Civil Appeal
1
In short, TP Act
Civil Appeal No. 8187 of 2023 Page 9 of 14
No.8188 of 2023 has been filed by Vikram Singh
(defendant no.1) with respect to the declaration of his
Will dated 16.05.1994 to be an invalid document
shrouded with suspicion.
11. We have heard learned counsel for the parties. On
behalf of the plaintiffs-appellants, the submission is that
the High Court fell in serious error in extending the
benefit of Section 41 of the TP Act to the defendants 2, 4
and 5. Neither there was any specific pleading, nor any
issue framed, nor any evidence led with respect to such
relief. None of the purchasers namely defendants 2, 4
and 5 entered the witness box. The High Court has
carved out a completely new case which is unsustainable
in law.
12. Section 41 of the TP Act reads as follows:
“41. Transfer by ostensible owner.
Where, with the consent, express or implied, of the
persons interested in immoveable property, a person
is the ostensible owner of such property and
transfers the same for consideration, the transfer
shall not be voidable on the ground that the
Civil Appeal No. 8187 of 2023 Page 10 of 14
transferor was not authorised to make it:
provided that the transferee, after taking reasonable
care to ascertain that the transferor had power to
make the transfer, has acted in good faith.”
A plain reading of the above provision clearly requires the
consent, be it express or implied, of the persons
interested in the immovable property.
13. In the present case, the plaintiff, Tota Ram, was
definitely interested in the immovable property having a
registered will of 1988 in his favour and we do not find
either in the pleadings or in the evidence, that he had
given, his consent, expressly or impliedly, to Vikram
Singh, defendant no.1, to transfer the property, in favour
of defendant nos. 2, 4 and 5. Nowhere in the written
statements filed by defendants 1, 2,4 and 5 have they
pleaded, that defendant no. 1 had obtained the consent,
either express or implied, from the plaintiff before
making the transfers. Further the proviso to section 41
of the TP Act requires that the transferees to take
reasonable care in ascertaining that the transferor had
Civil Appeal No. 8187 of 2023 Page 11 of 14
power to make the transfer and that they had acted in
good faith. This again would require specific pleading
and evidence by the transferees. As already recorded
above, even at the cost of repetition, defendants 2,4 and
5, the purchasers, from defendant no. 1, neither pleaded
such facts nor entered the witness box to prove such
facts as required under the proviso. The relief granted by
the High Court relying upon section 41 of the TP Act was
thus completely unwarranted, misplaced and against the
pleading and evidence on record.
14. Once the High Court had held that the Will dated
12.12.1988 was genuine and bona fide and duly proved
and, further that the Will dated 16.05.1994 was not a
valid document being shrouded with suspicious
circumstances, there was no occasion for the High Court
to have shown any kind of sympathy with the purchasers
i.e. defendants 2, 4 and 5. Once the Will itself was held
to be invalid, no right accrued in favour of defendant no.1,
and if defendant no.1 did not receive any right, title or
interest under the Will dated 16.05.1994, there was no
Civil Appeal No. 8187 of 2023 Page 12 of 14
question of defendants 2, 4 and 5 getting any better right,
title or interest than defendant no.1 their vendor. We find
substance in the aforesaid submission as from the
pleadings, evidence and material on record, we find that
the submission on behalf of the plaintiffs-appellants is
fully substantiated. As such, the appeal filed by the
plaintiffs-appellants deserves to be allowed.
15. Insofar as the appeal filed by the defendant no.1 is
concerned, we are more than clear that the findings
recorded by the first Appellate Court and the High Court
on the validity of the second Will dated 16.05.1994 being
shrouded with suspicious circumstances, is well
reasoned and based on evidence on record. The
defendant no.1 had completely failed to dispel and clear
the clouds surrounding the Will dated 16.05.1994. The
first Appellate Court has dealt with in great detail on the
said aspect, which finding has been affirmed by the High
Court. The same being a pure finding of fact, we are not
inclined to interfere with the same. As such, the appeal
filed by the defendant no.1, Vikram Singh is liable to be
Civil Appeal No. 8187 of 2023 Page 13 of 14
dismissed.
16. In view of the above, the Appeal No.8187 of 2023 is
allowed. The judgment of the High Court to the extent it
extends benefit to the defendant nos.2, 4 and 5 is set
aside and that of the first Appellate Court decreeing the
suit in totality is affirmed. The Appeal No.8188 of 2023
is, hereby, dismissed.
………………………………..……J
(VIKRAM NATH)
………………………………..……J
(PRASHANT KUMAR MISHRA)
NEW DELHI
JULY 10, 2024
Civil Appeal No. 8187 of 2023 Page 14 of 14