Duni Chand vs Vikram Singh

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8187 OF 2023

DUNI CHAND ...APPELLANT VERSUS

VIKRAM SINGH AND OTHERS ...RESPONDENTS

WITH

CIVIL APPEAL NO.8188 OF 2023

VIKRAM SINGH ...APPELLANT VERSUS

DUNI CHAND AND OTHERS ...RESPONDENTS

JUDGMENT

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: 2024.07.12 17:31:42 IST

and the judgment and decree passed by the First Reason:

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

of Section 41 of the Transfer of Property Act, 18821 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