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Smt. Mukhtiar Kaur Vs. Smt. Ghulab Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1096 of 1966
Judge
Reported inAIR1977P& H257
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 - Order 6, Rule 14; ;Hindu Law; Rattigan's Digest of Customary Law
AppellantSmt. Mukhtiar Kaur
RespondentSmt. Ghulab Kaur
Appellant Advocate Tehal Singh Mangat, Adv.
Respondent Advocate B.S. Jawanda, Adv.
DispositionAppeal dismissed
Excerpt:
.....but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 5. whether the plaint is bad for havingnot been signed and verified by the plaintiff ? o......owned land measuring 84 bighas 9 biswas bham. she gifted that land by means of a registered gift deed dated 6-10-1956 in favour of her two daughters namely gulab kaur and mukhtiar kaur. gurdial kaur filed a suit against her daughters mukhtiar kaur and gulab kaur, for declaration that the gift-deed dated 6-10-1956, executed by her in favour of her daughters, was null and void on the ground that she was a simpleton woman and fraud had been practised upon her, for getting gift-deed executed. she further pleaded that the facts mentioned in the gift-deed, that the defendants had lived with her after, their marriage and rendered services to her, were wrong and that she had not parted with the possession of the land in favour of her daughters. the suit was decreed ex parte on july 17,.....
Judgment:

Gurnam Singh, J.

1. This appeal is directed against the judgment of the learned District Judge, Sangrur, vide which the appeal filed by Mukhtiar Kaur appellant was dismissed with costs.

2. Briefly stated the facts of the case are that Gurdial Kaur widow of Kartar Singh, resident of village Gujran, Tehsil and District Sangrur, owned land measuring 84 bighas 9 biswas bham. She gifted that land by means of a registered gift deed dated 6-10-1956 in favour of her two daughters namely Gulab Kaur and Mukhtiar Kaur. Gurdial Kaur filed a suit against her daughters Mukhtiar Kaur and Gulab Kaur, for declaration that the gift-deed dated 6-10-1956, executed by her in favour of her daughters, was null and void on the ground that she was a simpleton woman and fraud had been practised upon her, for getting gift-deed executed. She further pleaded that the facts mentioned in the gift-deed, that the defendants had lived with her after, their marriage and rendered services to her, were wrong and that she had not parted with the possession of the land in favour of her daughters. The suit was decreed ex parte on July 17, 1959. Mukhtiar Kaur made an application to get the ex parte decree set aside. That application was still pending when Gurdial Kaur died. Her daughter Gulab Kaur was substituted as her legal representative. The application filed by Mukhtiar Kaur was dismissed on 17-8-1964. Smt. Mukhtiar Kaur filed an appeal against the order of dismissal of that application which was accepted and the case was remanded for fresh trial. Gulab Kaur, who had already been impleaded as a legal representative of Gurdial Kaur, was arrayed as a plaintiff in the suit.

3. The suit was contested by Mukhtiar Kaur and the following issues were framed :--

1. Whether the parties are governed bycustom in matters of gift? O. P.

2. Whether the gift in question was executed as a result of fraud O. P.

3. Whether the possession of the land in dispute was delivered to the donees analleged O. D.

(onus objected)

4. Whether the gift was not accepted by the donees, if so, with what effect ?

O.D.

5. Whether the plaint is bad for havingnot been signed and verified by the plaintiff O.D.

6. Relief.

The trial Court decreed the suit and its judgment was affirmed by the District Judge, Sangrur.

4. The learned counsel for the appellant raised a legal objection contending that the plaint was not signed by Gurdial Kaur, who had originally filed the same. He further pointed out that its verification was also defective. Thus according to him the plaint is liable to be rejected. The learned counsel for the appellant further urged that Mst. Gurdial Kaur had executed the gift-deed dated 6-10-1956 in favour of Gulab Kaur and Mukhtiar Kaur, that both Mukhtiar Kaur and Gulab Kaur were present at the time of execution of the gift-deed, that in the gift-deed it is specifically stated that Gulab Kaur and Mukhtiar Kaur were rendering service to her, that both of them (the daughters) and their husbands were living with Gurdial Kaur and that all these circumstances indicated that the possession of the land had also been given to them (the donees). In view of all these facts he urged that the suit filed originally by Gurdial Kaur and pursued by Gulab Kaur, as her legal representative, deserves to be dismissed. 5. Order VI, Rule 14, Civil P. C. (hereinafter referred to as the Code) requires that every pleading shall be signed by the party and his pleader (if any). A plaint can also be signed by any person, duly authorised by the plaintiff, in case the plaintiff is absent. It is not disputed that Gurdial Kaur had not signed the plaint, rather it was signed by her lawyer. The plaint has also not been verified by Gurdial Kaur, rather it has been verified by her counsel. Under Order VI, Rule 15 of the Code verification of the plaint can be made by any person, proved to the satisfaction of the Court to be acquainted with the facts of the case. In the instant case Shri Krishan Mohan Jauhar, counsel for Gurdial Kaur, verified the plaint saying that paras. Nos. 1 to 8 were told to him by the plaintiff after getting personal knowledge about them and that paras. Nos. 4 to 7 were correct according to her knowledge and belief. The counsel for Gurdial Kaur is presumed to be acquainted with the facts of the case, so the verification of the claim made by him, can be accepted. Moreover, it is a defect which can amount to an irregularity and can be ignored for rejecting the plaint. The legal position is, that want of verification has not the effect of making the plaint void. It merely amounts to an irregularity. So far as the question of signing the pleading is concerned, the decisions are not uniform as to whether the defects are of substance or of procedure. The prominent view is that an irregularity in the signatures of a plaint is a mere defect of procedure am does not affect the jurisdiction of the Court. Mst. Gurdial Kaur was examinee as a witness on 11-7-1959 and in her statement she stated that her daughters got her signatures on the registered gift-deed but none of them lived with her to help her. She further stated that she had not given the possession of her land to her daughters and that she was still in possession of the same. She also stated that the registered gift-deed remained with her and that she had not accepted the gift-deed to be correct. This shows that Mst. Gurdial Kaur had admitted the contents of the plaint to be correct, which gives an indication that Shri Krishan Mohan Jauhar had been engaged by her as a lawyer and he signed the plaint with her consent and knowledge. As the plaint had been signed by Mr. Krishan Mohan Jauhar as an authorised agent of Mst. Gurdial Kaur and signing a plaint is merely a matter of procedure and, therefore, such a defect can be remedied under Section 99 of the Code. The objection of the learned counsel for the appellant that the plaint was not signed by Gurdial Kaur and should be rejected is, therefore, overruled.

6. The gift-deed, Ext. D-A, dated 6-10-1950 is a registered document executed by Gurdial Kaur in favour of her daughters Mukhtiar Kaur and Gulab Kaur, It is stated in the gift-deed by Gurdial Kaur that she had gifted ail her lands in favour of her daughters and possession had also been delivered to them. Gurdial Kaur filed a suit for declaration to the effect that the gift-deed dated 6-10-1956 was a mere paper transaction and was null and void. Under these circumstances it has to be seen whether the gift-deed executed by Gurdial Kaur had been acted upon and possession of the land had been given to the donees in pursuance of the same or not. It is not disputed that both the donees were present when the gift-deed was got registered by Gurdial Kaur and that they signed the deed. Rattigans' Digest of Customary Law is a book of unquestioned authority in Punjab. Para. No. 60 of this book lays down that a gift--deed must ordinarily be followed by possession and must be free from undue influence. In case the gifted property is capable of physical possession, the nondelivery of the same makes the gift invalid. A valid gift, therefore, must ordinarily be followed by possession. In the case in hand, it is in evidence that after the gift-deed was executed, Gurdial Kaur remained in possession of the land for 4 or 5 years and got it cultivated with the help of siris (share-croppers) and thereafter she gifted the land to Gulab Kaur and that she (Gulab Kaur) and her husband Ujagar Singh are in possession of the land since then. Even by the evidence produced by the defendant-appellant, it is apparent that Gurdial Kaur had not delivered the possession of the land to her daughters. The plaintiff had examined Kehar Singh who stated that he was the siri of Kartar Singh, husband of Gurdial Kaur and that after his (Kartar Singh's) death, he worked as a siri with Gurdial Kaur and continued cultivating the land of Kartar Singh for 4/5 years till the possession of the same was delivered to Gulab Kaur and her husband. Punjab Singh, P. W. 2, is a Lambardar and he deposed that till the year 1960 Gurdial Kaur used to pay the land revenue of her land to him. Even in the entries in the khasra girdwaris, copies Exhibits P-3, P-4 and P-5. Gurdial Kaur had been shown in possession of the land till November, 1960. Gurdial Kaur had gift-ed her land to Gulab Kaur, vide gift-deed dated December 23, 1960 and also delivered possession of the land to her. After that the land was mutated in the name of Gulab Kaur on the basis of the gift-deed. After the execution of the gift-deed, Ext. D-A, the land was not mutated in the names of Mukhtiar Kaur and Gulab Kaur nor they were recorded in possession of any part of the land. If Gurdial Kaur wanted to hand over the possession of the land to her daughters, in view of the gift-deed executed by her on 6-10-1956, she could do the same or at least could get an entry made in the revenue records that from the date of the gift-deed her daughters were the owners of the land. There is nothing on the file to show that after the execution of the gift-deed, Ext. D-A, the daughters started getting the produce of the land. There is also nothing to show that the tillers of the land had attorned Gulab Kaur and Mukhtiar Kaur as the land owners. The facts' show that beyond the registered gift-deed, the donees did not do anything. Thus from the evidence on the file it was established that the possession of the suit land was not delivered by Gurdial Kaur to the donees i. e. her daughters Mukhtiar Kaur and Gulab Kaur. Delivery of possession can prove the assent of the donor and mere assent in the gift-deed cannot prove the factum of delivery of possession of the gifted property.

7. In view of all these facts, the gift-deed executed by Gurdial Kaur on 6-10-1956 having not been acted upon has rightly been declared null and void by the Courts below. This appeal has, therefore, no force and is hereby dismissed with costs.


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