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Sardara Singh and anr. Vs. Harbhajan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 536 of 1972
Judge
Reported inAIR1974P& H345
ActsTransfer of Property Act, 1882 - Sections 118
AppellantSardara Singh and anr.
RespondentHarbhajan Singh and ors.
Cases Referred and Milkha Singh v. Mst. Shankari
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........district judge. this appeal was heard and decided by the additional district judge, hissar. the learned judge allowed the appeal, reversed the decision of the trial court and dismissed the plaintiff's suit. an attempt was made before the learned additional district judge to lead additional evidence, but without success. the learned judge took the view that an oral exchange was permitted in punjab and accordingly, the exchange was valid. the learned judge also held that the plaintiffs were estopped from challenging the exchange. the plaintiffs being dissatisfied came up in appeal to this court and the only matter that was agitated before the learned single judge was that an oral exchange is not permissible. the learned single judge took the view that an oral exchange was permissible in.....
Judgment:

Mahajan, C.J.

1. This is an appeal under Clause X of the Letters Patent and is directed against the decision of a learned Single Judge of this Court affirming on appeal the decision of the Lower Appellate Court reversing the decision of the trial Court.

2. Sardara Singh, Dara Singh and Chanan Singh jointly owned a large tract of land in village Ahrwan. The share of Chanan Singh in this land was 1/4th. He exchanged an area measuring 213 kanals 11 marlas out of the joint holding with Harbhajan Singh, Sucha Singh, Har Randhir Singh and Balbhadar Singh, for 206 kanals 2 marlas, in the same village. This exchange was oral. A mutation of the exchange was entered and the same was attested on April 10, 1965. Sardara Singh and Dara Singh, filed a suit challenging this exchange and for possession of the land exchanged. They pleaded that the oral exchange was invalid and as it had been effected to injure their interests, it be set aside and the possession of the land decreed in their favour. This suit was contested by Harbhajan Singh, Sucha Singh. Har Randhir Singh and Balbhadar Singh. They maintained that oral exchange was permissible and it suffered from no infirmity. They further pleaded that the exchange had not been obtained either by fraud or by misrepresentation. On the pleadings of the parties, the trial Court framed the following issues:

1. Whether the transaction of exchange in dispute is liable to be set aside on the grounds mentioned in Para No. 4 of the plaint?

2. Whether the plaintiffs are entitled to challenge the share of Chanan Singh, defendant No. 5?

3. Whether the plaintiffs are estopped from bringing the suit?

3. The trial Court held that the exchange was oral and as no notice of it was given to the plaintiffs, it was illegal and void and was liable to be set aside. It was further held that as the oral exchange was void, the exchange made regarding the share of Chanan Singh could also be challenged, and that the plaintiffs were not estopped from bringing the suit. Against this decision, defendants Harbhajan Singh and others preferred an appeal to the District Judge. This appeal was heard and decided by the Additional District Judge, Hissar. The learned Judge allowed the appeal, reversed the decision of the trial Court and dismissed the plaintiff's suit. An attempt was made before the learned Additional District Judge to lead additional evidence, but without success. The learned Judge took the view that an oral exchange was permitted in Punjab and accordingly, the exchange was valid. The learned Judge also held that the plaintiffs were estopped from challenging the exchange. The plaintiffs being dissatisfied came up in appeal to this Court and the only matter that was agitated before the learned Single Judge was that an oral exchange is not permissible. The learned Single Judge took the view that an oral exchange was permissible in Punjab. The contention of the learned counsel for the appellants based on the following part of Section 118 of the Transfer of Property Act, 1882(hereinafter referred to as the Act):

' A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale;'

was negatived. The contention was that an exchange has to conform to the formalities of a sale and as no sale under the Act could be effected without a registered instrument, the exchange was void. This contention was overruled by the learned Single Judge. The result was that the appeal was dismissed. The learned Single Judge, however, granted the necessary certificate under Clause X of the Letters Patent and that is how the present appeal has been preferred.

4. The same contention that was advanced before the learned Single Judge has been advanced before us. It may be mentioned that the rule is firmly settled that where the provisions of the Act are not applicable, as is the case in Punjab; inasmuch as only certain parts of the Act are in force, its provisions as to matters of principle are followed as rules of justice, equity and good conscience. But his does not apply to provisions which embody technical rules. In this connection, reference may be made to Bhagwan v. Bunyadi, 1902 Pun Re 85, Safdar Ali v. Ghulam, 1915 Pun Re 103 = (AIR 1915 Lah 362), Jhua v. Dulia, ILR (1923) 4 Lah 439 = (AIR 1923 Lah 646). Dulia Singh v. Bela Singh, AIR 1925 Lah 92 Mohammad Abdullah v. Mohammad Yasin, AIR 1933 Lah 151, Tara Chand v. Sher Singh, AIR 1936 Lah 944 and Milkha Singh v. Mst. Shankari, AIR 1947 Lah 1(FB).

5. Mr. P.S. Jain learned Counsel for the appellants has raised a very fantastic argument. According to him, a sale and an exchange are one and the same thing and as no sale can be made without a registered instrument, no exchange can also be made without a registered instrument. We are unable to accept this contention. In the first place, it is common ground that the Act does not apply to Punjab and only Sections 54, 107 and 123 of the Act have been made applicable with effect from April 1, 1955. In this connection, reference may be made to notification dated March 26, 1955, which is reproduced below:

'No. 1605-R (CH)-55/589-In exercise of the powers conferred by Section 1 of the Transfer of Property Act, IV of 1882, and all other powers enabling him in this behalf, the Governor of Punjab is pleased to extent the provisions of Sections 54, 107 and 123 of the said Act with effect from the 1st April, 1955, to the entire State of Punjab. The Punjab Government Notification No. 183-St, dated the 27th April, 1935, is hereby cancelled.'

Section 54 is in Chapter III which deals with sales of immovable property. Chapter IV starts with Section 58 and deals with mortgages of immovable property and charges. Chapter V deals with leases of immovable property, and Chapter VI deals with exchanges. The very scheme of the Act clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with on totally different footings and it is futile to urge that one takes colour from the other merely because under Section 118 of the Act, an exchange can be made only in the manner provided for a sale. Mr. Jain, learned Counsel for the appellants, for his wonderful argument relies on Section 1 of the Act which is in the following terms:

'This Act may be called the Transfer of Property Act, 1882.

It shall come into force on the first day of July, 1882.

It extends in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi.

But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said territories by the State Government concerned.

And any State Government may..................... from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:-

Sections 54, paragraphs 2 and 3. 59, 107 and 123.

Notwithstanding anything in the foregoing part of this section. Sections 54, paragraphs 2 and 3. 59, 107 and 123, shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act. 1908, under the power conferred by the first section of that Act or otherwise.'

It will be seen from this section that the Act does not apply to the State of Punjab. However, by notification in the Official Gazette, a State Government can extend the whole or any part of the Act to its territories. Similarly, a State Government has been given the power to exempt, by notification in the Official Gazette, either retrospectively or prospectively, any part of its territories administered by such State Government, from all or any of the following provisions of the Act, namely, Sections 54, paragraphs 2 and 3, 5 117 and 123. It is on the basis of Section 1 of the Act reproduced above, that an argument has been built that the exchange must take its colour from Section 54 and whatever are the requirements of Section 54 of the Act must per se apply to an exchange. We have already held that this result does not follow. In this view of the matter, no fault can be found with the decision of the learned Single Judge.

6. Mr. Jain, learned Counsel for the appellants then argued that Harbhajan Singh, respondent No. 1. Is dead and although his three sons, respondents Nos. 2 to 4, who are also the transferees by reason of the exchange, are on record, yet his two daughters though impleaded, have not been served. In our opinion, it is not necessary to serve them because their interests are fully protected by their three brothers who are already on record. It is not necessary in every case to bring all the legal representatives or record. What has to be seen is whether the estate is effectively represented. In this case it is so.

7. For the reasons recorded above, this appeal fails and is dismissed with costs.

Pritam Singh Pattar, J.

8. I agree.

Appeal dismissed.


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