Aman Sharma vs Umesh on 5 July, 2022


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Supreme Court of India

Aman Sharma vs Umesh on 5 July, 2022

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

                                                                        NON­REPORTABLE


                                   IN THE SUPREME COURT OF INDIA
                                    CIVIL APPELLATE JURISDICTION


                                    CIVIL APPEAL NO. 4638 OF 2022
                               [ARISING OUT OF SLP(C) NO.26829 OF 2018


           Aman Sharma & Anr.                                                  …Appellants

                                                    Versus

           Umesh & Ors.                                                       ...Respondents



                                              JUDGMENT

J.K. Maheshwari, J.

Leave granted.

2. The instant appeal arises out of the judgment dated

18.05.2018, passed by the High Court of Punjab & Haryana, Bench

at Chandigarh, in Regular Second Appeal No. 6408/2016 (O&M)
Signature Not Verified

(hereinafter referred to as ‘RSA’), whereby the said RSA was
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.07.05
14:29:27 IST
Reason:

dismissed and the order of the First Appellate Court in Civil Appeal

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RBT No. 37 of 29.11.2012/28.01.2015 dated 31.08.2016 and

judgment of Trial Court, Ferozepur dated 03.11.2012 were

confirmed. In consequence, the suit for possession and mesne profit

filed by the Plaintiff, who are Respondents 1 to 4 herein, with

respect to a multi­storey house bearing Municipal No. BS­35­14

built on the land 4.01 marlas situated in Mohalla Shahganj, near

Turi Bazar (hereinafter referred to as ‘subject property’) was

decreed. The Appellants and the Respondents herein are addressed

as per their original position before the Trial Court.

3. The Plaintiffs filed Suit No. 253 of 30.07.2011/08.05.2007

before the Trial Court claiming possession and compensation from

Defendants No. 2 & 3 for occupying and using the subject property

from the date of institution of suit till delivery of possession at the

rate of Rs.5,000/­ per month on account of their forcible

dispossession by Defendant No.1. It was contended that the subject

property was originally owned by Lt. Pt. Lahori Ram, grandfather of

Plaintiffs and the said Lahori Ram executed a Will dated 15.11.1957

with respect to the subject property in favor of their father, namely

Krishna Kumar. After the death of the Pt. Lahori Ram on

21.10.1977, the father of the Plaintiffs became exclusive owner and

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were in possession of the subject property. Father of Plaintiffs had

also executed a Will dated 20.10.1993 in favor of alleged second

wife Sushila Kumari who was mother of the Plaintiffs and the same

was registered on 29.10.1993. Krishan Kumar died on 22.05.1997

thereafter, Sushila Kumari became the owner of the subject

property. On death of Sushila Kumari on 29.07.2000, the Plaintiffs

became owner and in possession of the subject property. It was

also averred that Defendant No.1, namely Nand Kishore, claimed

himself to be the son of Krishan Kumar from his first wife Bimla

Rani, who removed all articles of the Plaintiff lying in the house and

declared himself to be the owner of the house. Nand Kishore sold

the house vide sale deed dated 04.05.2006 to Appellants, who were

before the Trial Court as Defendant No.2 & Defendant No.3.

4. The Defendants No.1, 2 and 3 filed a common Written

Statement wherein it was contended that Krishna Kumar was

earlier married to Bimla Rani and out of this wedlock Defendant

No.1 namely Nand Kishore and Hem Rani were born. On death of

Bimla Rani, her sister Sushila Kumari started residing with Krishan

Kumar to look after Nand Kishore and Hem Rani. Defendants also

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claimed that their grandfather Pt. Lahori Ram had executed a Will

dated 09.12.1975 in favor of Defendant No. 1­Nand Kishore who

became owner after his death, therefore, Krishan Kumar had no

right in the subject property, hence he cannot execute Will in favor

of his second wife Sushila Kumari. It was further contended that

Defendants No. 2 and 3 are bonafide purchasers who purchased

the subject property after due diligence and have availed a loan to

satisfy their obligations under sale deed, therefore, they are owner

of the subject property and in possession of the house.

5. On the consideration of the pleadings and evidence, the Trial

Court concluded that Defendant No.1­Nand Kishore and Plaintiffs

were proved to be the son and daughters of Lt. Krishna Kumar. As

regards, Will dated 15.11.1957, as contended by Plaintiffs, alleged

to have been executed by Pt. Lahori Ram in favor of Krishna Kumar,

was not proved through attesting witnesses or by proving that the

said witnesses have already expired. Further, Will dated 09.12.1975

allegedly executed by Pt. Lahori Ram bequeathing subject property

to the Defendant No.1­Nand Kishore was also not duly proved

because there was a significant gap of 30 years from the date of

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execution i.e. 09.12.1975 and registration of the same on

17.01.2006. For the said Will dated 09.12.1975, the Trial Court

noted that after the death of Pt. Lahori Ram in 1977, Defendant

No.1­Nand Kishore had the right to register the Will or to register

his name in the assessment register of Municipal Council, but he

chose to remain silent. It was only in 1992­93 that he made an

entry in assessment register after unexplained delay of 17

years. The Trial Court observed that Krishna Kumar was the only

son of Lt. Pt. Lahori Ram and no party had claimed that Krishna

Kumar had any brothers or sisters. Thus, upon the death of Lt. Pt.

Lahori Ram, Krishna Kumar succeeded to his estate. Further, the

Will dated 20.10.1993 executed by Krishna Kumar in favor of

Sushila Kumari, mother of Plaintiffs was duly proved through the

evidence of one Yog Raj Sharma (marginal witness) and one Pradeep

Kumar (document writer). Further, the Trial Court held that

Plaintiffs who happen to be the daughters of Sushila Kumari

succeeded her estate post her death in equal shares. The Courts

below set aside the sale deed dated 04.05.2006 by which the

subject property was transferred to the Defendants No. 2 and 3 on

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the grounds that Defendant No.1 had no right in the property or to

alienate the same. It was also observed that the Plaintiffs are not

entitled to any compensation from Defendants No.2 & 3 as it cannot

be held that they were in unauthorized occupation of the subject

property.

6. Aggrieved by the Trial Court judgment dated 03.11.2012,

Defendant No.1, Defendant No.2 and Defendant No.3 had filed the

First Appeal bearing RBT No.37 of 29.11.2012/28.01.2015 before

the Additional District Judge, Ferozepur. It was first time contended

before the First Appellate Court that Krishna Kumar being

coparcener having only 1/3rd share of the Suit Property as Pt.

Lahori Ram had three legal heirs, therefore, Krishna Kumar was not

competent to execute a Will or whole subject property. It was urged

that Krishna Kumar had not proved that he was having strained

relationship with Defendant No.1­Nand Kishore or his sister Hem

Rani, hence he had no reason to execute the Will dated 20.10.1993

in favor of Sushila Kumari ignoring Defendant No.1­Nand Kishore

and his sister. The Lower Appellate Court upheld the judgment and

the decree passed by the Trial Court and observed that as it has not

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been disputed that Lahori Ram had no other son and daughter

except Krishna Kumar, therefore, it can safely be concluded that

Krishna Kumar has inherited the entire Suit Property of the Lt.

Lahori Ram by way of succession. The Court held that Krishna

Kumar has given valid reasons for execution of the first and last

Will dated 20.10.1993 bequeathing entire property in favor of

Sushila to avoid any further litigation. Lastly, the Court held that

Sale Deed dated 04.05.2006 was illegal and void because Defendant

No.1­Nand Kishore had no right to alienate with the Subject

Property in absence of ownership being proved which he claimed to

be acquiring through Will dated 15.11.1957. Thus, the Court

concluded that the Trial Court has rightly decreed the suit of

Plaintiffs holding them owner in equal shares of the subject

property and entitling them to get possession of the same from the

Defendants.

7. Assailing concurring judgment dated 31.08.2016 passed by

the First Appellate Court, the Defendants filed the RSA before the

High Court. In the impugned judgment, the High Court held that no

substantial question of law arises warranting interference in the

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matter and dismissed the RSA being devoid of any merit. Aggrieved

by the same, the Defendants No.2 and 3 who claim to be bonafide

purchasers have approached this Court by filing this appeal.

8. Learned counsel for the Appellants has contended that

findings of the Trial Court and the Lower Appellate Court declaring

Krishna Kumar as sole legal heir is perverse because he was having

one brother Kailash Nath and sister Prakash Lata. The Plaintiffs

acquiesced the rights of Defendants No.2 & 3 by not filing suit for

cancellation of sale deed after purchase of the subject property and

during construction went on for a year. There cannot be any

reasonable basis or to have any suspicion and doubt regarding the

bonafide purchase of the subject property from the Defendant No.1.

The said purchase was after due diligence and on verification of the

house tax assessment record of the year 1992­93 as maintained by

Municipal Committee, Firozepur City. Water bills and electric bills

were all in the name of Defendant No.1. Thus, on the advice of the

advocate and after taking loan from the bank, a non­encumbrance

certificate was issued and a public notice was published by

Defendant No.1­Nand Kishore in the newspaper ‘Aaj Di Awaz’,

8
Jalandhar dated 11.01.2016 specifically referring the document of

title i.e. Will dated 09.12.1975. The Appellants have also submitted

that their rights as bona fide purchaser have been ignored by the

Courts below so much so that the decree is silent as to the fate of

consideration paid by them leading to unjust enrichment at the cost

and peril. Learned counsel for the appellants further urged that

Plaintiffs have approached the courts below with unclean hands as

they concealed the material facts from the courts below that

Krishna Kumar was earlier married to Bimla Rani and out of this

wedlock Nand Kishore and Hem Rani were born. This fact is not

disclosed in the suit for possession intentionally with ulterior

motive. Lastly, it was asserted that here is no material available on

record to prove that the Sushila was the legally wedded wife after

the death of Bimla Rani (mother of Defendant no.1).

9. Per contra, learned counsel for the Respondents contends

that it was upon Defendants to prove that the Plaintiffs have

concealed material facts from the courts below, however, the issue

with respect to concealment of facts was not pressed during the

time of arguments before Trial Court thus the issue was decided in

9
favour of Plaintiffs. Hence, in view of the issue having attained

finality, the Appellants at this stage cannot allege that Petitioners

approached the courts below with unclean hands. The Respondents

also submitted that the three­Courts below recorded the finding of

fact proving the Will executed by Krishna Kumar in favour of

second wife Sushila Kumari. The Will dated 09.12.1975 executed by

Late Lahori Ram in favour of Defendant no.1 has not been proved.

In any case, Krishna Kumar being sole owner alienated his right to

Sushila Kumari and no right vests to Defendant no.1 by virtue of

the said Will. Therefore, Defendants no.2 & 3 cannot acquire any

title from Defendant no.1. Thus, the finding as recorded by three­

Courts are neither perverse nor illegal and do not warrant any

interference in this appeal.

10. After having heard learned counsel appearing for the parties

and on perusal of the record, it is apparent that the Defendants

No.2 & 3 are claiming the right in the subject property being

bonafide purchasers from Defendant No.1­Nand Kishore by virtue of

registered sale deed dated 04.05.2006 after payment of the amount

of consideration of Rs.3,40,000/­. Only right, title and interest,

10
which is vested in Defendant No.1 can be transferred to Defendants

No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner

of the subject property who died on 21.10.1977. The Lt. Lahori Ram

executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar

and another on 09.12.1975 in favor of Defendant No.1­Nand

Kishore. As per the findings recorded by three courts below, both

the Wills have not been proved, therefore, the right, title and

interest vested in Lt. Lahori Ram has not been transferred by virtue

of those Wills. In consequence, Krishna Kumar being sole legal heir

acquired title in the property which was bequeathed by Will dated

20.10.1993 in favor of Sushila Kumari. The said Will is found

proved by the two­Courts and those findings were upheld even by

the High Court. The plea taken in appeal with respect to having two

other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar

was not found merit by the Lower Appellate Court. We are of the

view that if upon the subsequent knowledge Defendants discovered

that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an

amendment in the written statement should have been proposed by

the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a

11
party, but no such steps were taken by the Defendants. Thus, the

Court found that Krishan Kumar being sole owner inherited subject

property of Lt. Pt. Lahori Ram having right to execute Will in favor

of Sushila Kumari who resided as a wife and from the said wedlock

Plaintiffs were born. The Will executed in favor of Sushila Kumari

was found proved. Thus, Sushila Kumari became sole owner on the

basis of the proved Will dated 20.10.1993 and Plaintiffs received

from her after death. In such circumstances, it is clear that the

Defendant No.1 was not having any title and interest in the

property, therefore, he cannot pass the title which he does not have.

Thus, on the basis of the sale deed executed on 04.05.2006 by

Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire

better title than that of Defendant No.1. Further, the Plaintiffs have

not per se challenged the Sale Deed dated 04.05.2006 except to

contend before the Courts below to ‘ignore’ the same.

Simultaneously, the Defendants have taken the ground of not

adjudicating the rights of innocent bonafide purchasers qua the

subject property after payment of lawful consideration and carried

out fresh construction without any hindrance by anyone. In view of

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the same, we are not commenting on the validity of Sale Deed and

keeping it open for the Appellants to take recourse as permissible

under the law.

11. Considering the aforesaid, in our considered opinion, the

findings as recorded by the two­Courts below concurred by the High

Court do not suffer from any perversity or illegality giving rise to

exercise the jurisdiction under Article 136 of the Constitution of

India. In view of the foregoing, this appeal is bereft of any merit and

hence dismissed.

…………..…………………J.

(INDIRA BANERJEE)

….….………………………J.

(J.K. MAHESHWARI)

New Delhi;

July 05, 2022

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