Chaman Lal (D) Thr. Lrs. vs Kamlawati (D) Thr. L.Rs.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 2633 OF 2012

CHAMAN LAL (D) THR. LRS. Appellant(s)

VERSUS

KAMLAWATI (D) THR. LRS. Respondent(s)

JUDGMENT

SANJAY KISHAN KAUL,J.

1. The subject matter of dispute is half of the land

measuring 3 Biswas and 11 Bighas out of Khasra No. 1252,

Khata No. 318/563 in Dholewal, Ludhiana. The land was

purchased by Chaman Lal (late appellant) from one Mansa

Ram on 30.7.1949. A gift deed was executed on 10.3.1958

by Chaman Lal in favour of late Smt. Gurdev Kaur, his

stepmother. The controversy relates to the fact whether

suit was in respect of half portion of the total land or Signature Not Verified Digitally signed by NEELAM GULATI Date: 2019.08.01 10:57:28 IST Reason: the whole land was gifted to late Smt. Gurdev Kaur. 2

2. It cannot really be disputed that the possession

of the land remained with late Smt. Gurdev Kaur. It

appears that no mutation was made till the jamabandi of

1969-70 when the whole land was mutated in the name of

Smt. Gurdev Kaur, who soon thereafter, sold the land to

Smt. Kamla Wati on 15.3.1971. The consequent mutation

was made on 24.10.1972.

4. The dispute arose from the filing of suit for

partition by late Sh. Chaman Lal on 22.08.1987. In the

suit claim was sought to be laid that what was gifted

was only half of the total land. Late Smt. Gurdev Kaur

was arrayed as the 1st defendant and Smt. Leelawati as

the IInd defendant.

5. Pendente lite the land was re sold by defendant

No.2 to defendant Nos. 3 & 4, on 4.1.1995 and 6.1.1995

who were thus impleaded as the defendants. It is these

defendants who are respondents 1 & 2 before us and are

really contesting parties.

6. The trial court in terms of judgment and decree

dated 20.11.1998 decreed the suit directing the

partition into half share each. The first appellate

court affirmed the decree vide judgment and order dated

28.8.1999. However, the second appellate court being 3

the Punjab and Haryana High Court interfered with these

concurrent findings in terms of judgment dated

02.04.2002. Late Chaman Lal preferred a special leave

petition against the said order being SLP(C) No. 2713 of

2003. The appeal was allowed on 6.10.2003 on the short

ground that the Second Appeal has been decided without

framing any substantial question of law as was mandatory

requirement under Section 100 of the Code of Civil

Procedure, 1908. The matter was thus remitted back to

the High Court which has again allowed the appeal in

terms of the impugned judgment dated 23.01.2008.

7. We may notice prior to proceeding on merits of

the matter that the order of this Court dated 6.10.2003

was predicated on a legal position which stands

subsequently clarified by a Constitution Bench judgment

of this Court in Pankajakshi (D) through Lrs. & Ors. vs.

Chandrika & Ors. (2016 (6) SCC 157) opining that insofar

as the Punjab and Haryana High Court is concerned, a

different legal position would prevail and a substantial

question of law is not to be determined, in view of the

State amendments, as a pre-requisite before interfering

with the orders of the trial court.

8. Be that as it may, the aforesaid is being

referred to, so as to complete the facts as also by 4

reason of the learned counsel for respondent nos. 1 & 2

drawing our attention to certain facts recorded in the

earlier Second Appeal order dated 02.04.2002 which may

be somewhat germane to the controversy in question. We

may notice that crucial development during the pendency

of the Second Appeal, prior even to first order, was

that a translation was got done from the concerned

branch of the High Court of the document in question

being the gift deed. A transliteration was also got

done of this document. In that context it has been

observed in the order dated 02.04.2002 that the

concerned learned judge had summoned the person who had

translated the document being gift deed(Exh. P1) in the

Court and had read the document in open court in the

presence of learned counsel for the parties. This was

compared with the punjabi version of the document. It

was thus opined that the translation effected by the

translation branch is absolutely correct, resulting in a

finding that late Sh. Chaman Lal did make a gift of the

entire land. In the same proceeding it is also recorded

that the correctness of the version of this document’s

translation is not disputed.

9. Learned counsel for the appellant has sought to

contend that it was not within the domain of the power 5

of the Second appeal judge, who has interfered with the

concurrent findings given the narrow scope in which such

a second appeal has to be examined more so in the

context of Section 41 of the Punjab Court Act,

1918(hereinafter referred to as the ‘Punjab Court Act’)

read with Section 42 of the Punjab Court Act. The said

provisions read as under:

“41. Second appeals-(1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely :

(a) the decision being contrary to law or to some custom or usage having the force of law :

(b) the decision having failed to determine some material issue of law or custom or usage having the force of law :

(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits;

Explanation-A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of his section:

(2) An appeal may lie under this section from an appellate decree passed ex parte. (3) [Repealed by Section 2B of Punjab Act 6 of 1941]

42. Second appeal on no other ground-

(1) No second appeal shall lie except on the grounds mentioned in Section 41.

2.No second appeal shall lie in any suit of the nature cognizable by Courts of small Causes when the amount or value of the subject matter 6

of the original suit does not exceed five hundred rupees.”

10. On the other hand, learned counsel for the

respondent nos. 1 & 2 seeks to contend that the High

Court was well within its jurisdiction to have a genuine

translation done of the document, being the gift deed,

that being the real bone of contention. The

proceedings, as referred to above, have been relied upon

for the purposes of the acknowledgment of both the

parties that the translation is accurate. In this

context, reference has been made to the provisions of

clauses (a) & (c) of sub section 1 of Section 41 of the

Punjab Court Act to contend that the exercise of power

would fall within the said jurisdiction.

11. On consideration of the matter, we find that the

High Court cannot be said to have exceeded its

jurisdiction, as has to be exercised within the ambit of

Section 41 of the Punjab Court Act. We say so as the

fulcrum of the dispute was the gift deed itself being

the document in question. The document was originally

penned down in Urdu with the Persian dialect and was

thereafter translated to the Punjabi language. The next

translation was done in English as also the

transliteration. Thus there would be a reliance on an 7

inaccurate document if the translation and the

transliteration was not accurate. This is the objective

which was sought to be subserved by getting an

authenticated translation done in the High Court and the

concession/submission of the appellants herein recorded

in order dated 02.04.2002 in respect of the translation,

albeit the order being set aside. The acknowledgment of

both the parties to the accuracy of the translation and

the transliteration could not be doubted thereafter. If

the substratum being the document has been inaccurately

translated then there would be a fundamental legal

infirmity in the interpretation to be given and in

determining the controversy in question. We are thus

not inclined to accept this preliminary objection sought

to be raised by learned senior counsel for the appellant

on the right of the High Court to look into the question

on merits.

12. We are fortified in our aforesaid view by earlier

judicial pronouncements. We may note that these

judgments are in the context of the provisions for

second appeal under Section 100 of the said Code as it

existed prior to the amendment of 1976, which is almost

pari materia to the existing provision which applies to

Punjab (as noticed in Pankajakshi (D) through LRs & Ors.1

1 (supra) 8

in para 24). Per se construction of documents (unless

documents of title) to prove a question of fact do not

involve an issue of law unless it can be shown that the

material evidence contained in that was misunderstood by

the court of fact.2 In the facts of the present case we

are, in fact, dealing with a document of title, i.e.,

the Gift Deed. Thus, there can be little doubt that if

the translation of the document itself is not correctly

done, an aspect which was addressed to by the High Court

by getting the translation done, which was accepted,

then the correct translation would have to be re-

construed. It is this principle, which was recognized

in Sir Chunilal V. Mehta & Sons Ltd. v. Century Shipping

and Manufacturing Co. Ltd.3 while observing in para 2 as

under:

“2. ….Indeed it is well settled that the construction of

a document of title or of a document which is the

foundation of the rights of parties necessarily raises a

question of law.”

13. Returning to the factual controversy in issue and

the analysis of the same by the High Court, the perusal

of the gift deed shows that what is sought to be gifted

2 (1963) 2 SCR 208 3 1962 Supp (3) SCR 549 9

does not mention any lesser land than the whole land. If

the plea of the appellant was to be accepted, then there

should have been some area stated to have been gifted

while the other would have been held back. This is not

so. Of course, the submission of the learned senior

counsel for the appellant is that the area remained

undivided and that is why the partition was being

sought.

14. We may also notice that when the reference is made

to Rs.800/-, it is in the context of half the value of

Rs.1600/-, a methodology adopted which is prevalent in

this part of the country while recording such

translation wherefor accuracy of the figures, half the

amount is mentioned to ensure that the actual figure is

correctly reflected. Not only that the translation

would show that the donee is “deemed to be the owner in

possession of my gifted land”. Thus, whatever land was

gifted, the possession was handed over. In the facts of

the present case the possession of the complete land is

undisputedly initially with the Ist defendant then with

the IInd defendant and thereafter with the IIIrd and

IVth defendants.

15. We may also take note of the fact that jamabandi

for the first time was done in the name of late Gurdev 10

Kaur for 1969-70. Prior to that the whole land remained

in the name of late Chaman Lal, the original owner. It

is not as if the jamabandi was done for half the land in

favour of late Chaman Lal and half in favour of late

Gurdev Kaur. If at all a grievance would have arisen on

behalf of late Chaman Lal that could have been an

occasion for it. The first time the matter is sought to

be raised is 17 years later and after about 16 years of

the land in question being sold to the IInd defendant.

Thus, the conduct of the parties also suggests that the

parties understood that whole land was gifted and the

possession of the whole land was handed over.

16. Learned counsel for the appellant also sought to

draw an inference in favour of the appellant by

submitting that what had weighed with the trial court

and the first appellate court was that the document of

gift was stamped on the basis that the value of the gift

was Rs.800/- and not Rs.1600/-.

17. In this behalf learned senior counsel for the

respondent has pointed out to us that the Indian Stamp

(Punjab Amendment) Act, 1958 received the assent of the

Governor of Punjab on 23.04.1958 and was published in

the Gazette on 25.4.1958. Transaction in question was

prior to that date. That plea will thus not hold much 11

water.

18. We are, thus, unequivocally of the view that the

status of the property is not liable to be disturbed

after such a prolong period of time in the context of

the facts and the legal position which has emerged since

10.3.1958. The gift deed can be read in one manner, and

only in one manner.

19. We are thus not inclined to entertain the present

appeal.

20. The appeal is dismissed. Parties to bear their

own costs.

................J. (SANJAY KISHAN KAUL)

................J. (K.M. JOSEPH) NEW DELHI;

JULY 16, 2019