CHAMAN LAL (D) THR. LRS. versus KAMLAWATI (D) THR. LRS. on 16 July 2019

CHAMAN LAL (D) THR. LRS.

v.

KAMLAWATI (D) THR. LRS.(Civil Appeal No.2633 of 2012)

JULY 16, 2019

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

Punjab Court Act, 1918 – ss. 41 and 42 – Jurisdiction ofHigh Court – Exercise of – Execution of gift deed by the son-originalowner bequeathing land in favour of his step mother – Suit forpartition by original owner, claiming that only half of the total landwas gifted – Suit, in respect of half portion of the land or the wholeland – Trial court directed the partition into half share each – Orderupheld by the first appellate court – In Second Appeal, the HighCourt interfered with the concurrent finding and allowed the appeal– On appeal, held: High Court cannot be said to have exceeded itsjurisdiction – It was exercised within the ambit of s. 41 – When thematter was pending in the High Court, translation and transliterationwas got done of the document-gift deed – Person who had translatedthe document was summoned in the Court and had read the documentin open court in the presence of counsel for the parties and it wasthus, opined that the translation effected by the translation branchis absolutely correct, resulting in a finding that original owner didmake a gift of the entire land –Acknowledgment of both the partiesto the accuracy of the translation and the transliteration could notbe doubted thereafter – Perusal of the gift deed shows that what issought to be gifted does not mention any lesser land than the wholeland – Translation would show that the donee is deemed to be theowner in possession of the gifted land – Thus, whatever land wasgifted, the possession was handed over – Furthermore, matter issought to be raised after 16 years of the land being sold to the IInddefendant, thus, the conduct of the parties suggests that theyunderstood that whole land was gifted and the possession of thewhole land was handed over and the status of the property is notliable to be disturbed – Deeds and documents.

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ADismissing the appeal, the Court

HELD: 1.1 During the pendency of the Second Appeal, prioreven to first order, was that a translation was got done from theconcerned branch of the High Court of the document in questionbeing the gift deed. A transliteration was also got done of thisBdocument. In that context it has been observed in the order dated02.04.2002 that the concerned judge had summoned the personwho had translated the document being gift deed in the Courtand had read the document in open court in the presence ofcounsel for the parties. This was compared with the punjabiversion of the document. It was thus opined that the translationCeffected by the translation branch is absolutely correct, resultingin a finding that late C.L. did make a gift of the entire land. In thesame proceeding it is also recorded that the correctness of theversion of this document’s translation is not disputed. [Para 8][1076-A-C]D

1.2 The High Court cannot be said to have exceeded itsjurisdiction, as has to be exercised within the ambit of Section 41of the Punjab Court Act. It is said so as the fulcrum of the disputewas the gift deed itself being the document in question. Thedocument was originally penned down in Urdu with the PersianEdialect and was thereafter translated to the Punjabi language. Thenext translation was done in English as also the transliteration.Thus, there would be a reliance on an inaccurate document if thetranslation and the transliteration was not accurate. This is theobjective which was sought to be subserved by getting anauthenticated translation done in the High Court and theFconcession/submission of the appellants recorded in order dated02.04.2002 in respect of the translation, albeit the order beingset aside. The acknowledgment of both the parties to the accuracyof the translation and the transliteration could not be doubtedthereafter. If the substratum being the document has beenGinaccurately translated then there would be a fundamental legalinfirmity in the interpretation to be given and in determining thecontroversy in question. This preliminary objection sought to beraised by the appellant on the right of the High Court to look intothe question on merits cannot be accepted. [Para 11] [1077-E-H;1078-A]H

1.3 The perusal of the gift deed shows that what is soughtto be gifted does not mention any lesser land than the wholeland. If the plea of the appellant was to be accepted, then thereshould have been some area stated to have been gifted while theother would have been held back. This is not so. Of course, thesubmission for the appellant is that the area remained undividedand that is why the partition was being sought. [Para 13] [1078-F]

1.4 When the reference is made to Rs.800/-, it is in thecontext of half the value of Rs.1600/-, a methodology adoptedwhich is prevalent in this part of the country while recording suchtranslation wherefor accuracy of the figures, half the amount ismentioned to ensure that the actual figure is correctly reflected.Not only that the translation would show that the donee is “deemedto be the owner in possession of the gifted land”. Thus, whateverland was gifted, the possession was handed over. In the facts ofthe instant case, the possession of the complete land isundisputedly initially with the Ist defendant then with the IInddefendant and thereafter with the IIIrd and IVth defendants.[Para 14] [1078-G; 1079-A-B]

1.5 Jamabandi for the first time was done in the name oflate G.K. for 1969–70. Prior to that the whole land remained inthe name of late C.L., the original owner. It is not that theJamabandi was done for half the land in favour of late C.L. andhalf in favour of late G.K. If at all a grievance would have arisenon behalf of late C.L. that could have been an occasion for it. Thefirst time the matter is sought to be raised is 17 years later andafter about 16 years of the land in question being sold to the IInddefendant. Thus, the conduct of the parties also suggests thatthe parties understood that whole land was gifted and thepossession of the whole land was handed over. [Para 15][1079-B-D]

1.6 The Indian Stamp (Punjab Amendment) Act, 1958received the assent of the Governor of Punjab on 23.04.1958and was published in the Gazette on 25.4.1958. Transaction inquestion was prior to that date. The status of the property is notliable to be disturbed after such a prolong period of time in thecontext of the facts and the legal position which has emerged AB

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Asince 10.3.1958. The gift deed can be read in one manner, andonly in one manner. [Para 17, 18] [1079-E-G]

Pankajakshi (D) through LRs. & Ors. v. Chandrika &Ors.(2016) 6 SCC 157 : [2016] 3 SCR 1018 ; SirChunilal V. Mehta & Sons Ltd. v. Century Shipping andBManufacturing Co. Ltd. [1962] 3 Suppl. SCR 549– referred to.

Case Law Reference

[2016] 3 SCR 1018 referred toPara 7C[1962] 3 Suppl. SCR 549 referred toPara 12

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2633of 2012

From the Judgment and Order dated 23.01.2008 of the High Courtof Punjab and Haryana at Chandigarh in Regular Second AppealDNo. 3888 of 1999

Rupinder Singh Suri, Sr. Adv., Varun Khanna, Aditya Giri, AbhishekSingh, Advs. for the Appellants.

Ms. Aishwarya Bhati, Sr. Adv., Tushar Bakshi, Shovit Singh,Naresh Bakshi, Nikilesh Ramachandran, Advs. for the Respondents.E

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. The subject matter of dispute is half of the land measuring 3Biswas and 11 Bighas out of Khasra No. 1252, Khata No. 318/563 inFDholewal, Ludhiana. The land was purchased by Chaman Lal (lateappellant) from one Mansa Ram on 30.7.1949. A gift deed was executedon 10.3.1958 by Chaman Lal in favour of late Smt. Gurdev Kaur, hisstepmother. The controversy relates to the fact whether suit was inrespect of half portion of the total land or the whole land was gifted tolate Smt. Gurdev Kaur.G

2. It cannot really be disputed that the possession of the landremained with late Smt. Gurdev Kaur. It appears that no mutation wasmade till the jamabandi of 1969-70 when the whole land was mutated inthe name of Smt. Gurdev Kaur, who soon thereafter, sold the land to H

Smt. Kamla Wati on 15.3.1971. The consequent mutation was made on24.10.1972.

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 thatwhat was gifted was only half of the total land. Late Smt. Gurdev Kaurwas arrayed as the 1[st] defendant and Smt. Leelawati as the IInddefendant.

5. Pendente lite the land was re sold by defendant No.2 todefendant Nos. 3 & 4, on 4.1.1995 and 6.1.1995 who were thus impleadedas the defendants. It is these defendants who are respondents 1 & 2before us and are really contesting parties.

6. The trial court in terms of judgment and decree dated 20.11.1998decreed the suit directing the partition into half share each. The firstappellate court affirmed the decree vide judgment and order dated28.8.1999. However, the second appellate court being the Punjab andHaryana High Court interfered with these concurrent findings in termsof judgment dated 02.04.2002. Late Chaman Lal preferred a specialleave 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 SecondAppeal has been decided without framing any substantial question oflaw as was mandatory requirement under Section 100 of the Code ofCivil Procedure, 1908. The matter was thus remitted back to the HighCourt which has again allowed the appeal in terms of the impugnedjudgment dated 23.01.2008.

7. We may notice prior to proceeding on merits of the matter thatthe order of this Court dated 6.10.2003 was predicated on a legal positionwhich stands subsequently clarified by a Constitution Bench judgmentof this Court in Pankajakshi (D) through Lrs. & Ors. vs. Chandrika& Ors. (2016 (6) SCC 157) opining that insofar as the Punjab andHaryana High Court is concerned, a different legal position would prevailand a substantial question of law is not to be determined, in view of theState amendments, as a pre-requisite before interfering with the ordersof the trial court.

8. Be that as it may, the aforesaid is being referred to, so as tocomplete the facts as also by reason of the learned counsel for respondentnos. 1 & 2 drawing our attention to certain facts recorded in the earlier AB

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ASecond Appeal order dated 02.04.2002 which may be somewhat germaneto the controversy in question. We may notice that crucial developmentduring the pendency of the Second Appeal, prior even to first order, wasthat a translation was got done from the concerned branch of the HighCourt of the document in question being the gift deed. A transliterationwas also got done of this document. In that context it has been observedBin the order dated 02.04.2002 that the concerned learned judge hadsummoned the person who had translated the document being giftdeed(Exh. P1) in the Court and had read the document in open court inthe presence of learned counsel for the parties. This was comparedwith the punjabi version of the document. It was thus opined that theCtranslation effected by the translation branch is absolutely correct,resulting in a finding that late Sh. Chaman Lal did make a gift of theentire land. In the same proceeding it is also recorded that the correctnessof the version of this document’s translation is not disputed.

9. Learned counsel for the appellant has sought to contend that it Dwas not within the domain of the power of the Second appeal judge,who has interfered with the concurrent findings given the narrow scopein which such a second appeal has to be examined more so in the contextof Section 41 of the Punjab Court Act, 1918(hereinafter referred to asthe ‘Punjab Court Act’) read with Section 42 of the Punjab Court Act.The said provisions read as under:E

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

(a) the decision being contrary to law or to some custom or usageFhaving the force of law :(b) the decision having failed to determine some material issue oflaw or custom or usage having the force of law :

(c) a substantial error or defect in the procedure provided by theCode of Civil Procedure 1908 [V of 1908], or by any other lawGfor the time being in force which may possibly have producederror or defect in the decision of the case upon the merits; Explanation-A question relating to the existence or validity of acustom or usage shall be deemed to be a question of law withinthe meaning of his section:

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(2) An appeal may lie under this section from an appellate decreepassed 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 inSection 41.

2. No second appeal shall lie in any suit of the nature cognizableby Courts of small Causes when the amount or value of the subjectmatter 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 jurisdictionto have a genuine translation done of the document, being the gift deed,that being the real bone of contention. The proceedings, as referred toabove, have been relied upon for the purposes of the acknowledgmentof both the parties that the translation is accurate. In this context,reference has been made to the provisions of clauses (a) & (c) of subsection 1 of Section 41 of the Punjab Court Act to contend that theexercise of power would fall within the said jurisdiction.

11. On consideration of the matter, we find that the High Courtcannot be said to have exceeded its jurisdiction, as has to be exercisedwithin the ambit of Section 41 of the Punjab Court Act. We say so asthe fulcrum of the dispute was the gift deed itself being the document inquestion. The document was originally penned down in Urdu with thePersian dialect and was thereafter translated to the Punjabi language.The next translation was done in English as also the transliteration. Thusthere would be a reliance on an inaccurate document if the translationand the transliteration was not accurate. This is the objective whichwas sought to be subserved by getting an authenticated translation donein the High Court and the concession/submission of the appellants hereinrecorded in order dated 02.04.2002 in respect of the translation, albeitthe order being set aside. The acknowledgment of both the parties tothe accuracy of the translation and the transliteration could not be doubtedthereafter. If the substratum being the document has been inaccuratelytranslated then there would be a fundamental legal infirmity in theinterpretation to be given and in determining the controversy in question.We are thus not inclined to accept this preliminary objection sought to be A

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Araised by learned senior counsel for the appellant on the right of theHigh Court to look into the question on merits.

12. We are fortified in our aforesaid view by earlier judicialpronouncements. We may note that these judgments are in the contextof the provisions for second appeal under Section 100 of the said CodeBas it existed prior to the amendment of 1976, which is almost pari materia to the existing provision which applies to Punjab (as noticed inPankajakshi (D) through LRs & Ors.[1] in para 24). Per se constructionof documents (unless documents of title) to prove a question of fact donot involve an issue of law unless it can be shown that the materialevidence contained in that was misunderstood by the court of fact.[2] InCthe facts of the present case we are, in fact, dealing with a document oftitle, i.e., the Gift Deed. Thus, there can be little doubt that if thetranslation of the document itself is not correctly done, an aspect whichwas addressed to by the High Court by getting the translation done,which was accepted, then the correct translation would have to be re-Dconstrued. 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 documentof title or of a document which is the foundation of the rights ofEparties necessarily raises a question of law.”

13. Returning to the factual controversy in issue and the analysisof the same by the High Court, the perusal of the gift deed shows thatwhat is sought to be gifted does not mention any lesser land than thewhole land. If the plea of the appellant was to be accepted, then thereFshould have been some area stated to have been gifted while the otherwould have been held back. This is not so. Of course, the submission ofthe learned senior counsel for the appellant is that the area remainedundivided and that is why the partition was being sought.

14. We may also notice that when the reference is made toGRs.800/-, it is in the context of half the value of Rs.1600/-, a methodologyadopted which is prevalent in this part of the country while recordingsuch translation wherefor accuracy of the figures, half the amount ismentioned to ensure that the actual figure is correctly reflected. Not 1 (supra)2(1963) 2 SCR 208H31962 Supp (3) SCR 549

only that the translation would show that the donee is “deemed to be theowner in possession of my gifted land”. Thus, whatever land was gifted,the possession was handed over. In the facts of the present case thepossession of the complete land is undisputedly initially with the Istdefendant then with the IInd defendant and thereafter with the IIIrd andIVth defendants.

15. We may also take note of the fact that jamabandi for the firsttime was done in the name of late Gurdev Kaur for 1969-70. Prior tothat the whole land remained in the name of late Chaman Lal, the originalowner. It is not as if the jamabandi was done for half the land in favourof late Chaman Lal and half in favour of late Gurdev Kaur. If at all agrievance would have arisen on behalf of late Chaman Lal that couldhave been an occasion for it. The first time the matter is sought to beraised is 17 years later and after about 16 years of the land in questionbeing sold to the IInd defendant. Thus, the conduct of the parties alsosuggests that the parties understood that whole land was gifted and thepossession of the whole land was handed over.

16. Learned counsel for the appellant also sought to draw aninference in favour of the appellant by submitting that what had weighedwith the trial court and the first appellate court was that the document ofgift was stamped on the basis that the value of the gift was Rs.800/- andnot Rs.1600/-.

17. In this behalf learned senior counsel for the respondent haspointed out to us that the Indian Stamp (Punjab Amendment) Act, 1958received the assent of the Governor of Punjab on 23.04.1958 and waspublished in the Gazette on 25.4.1958. Transaction in question was priorto that date. That plea will thus not hold much water.

18. We are, thus, unequivocally of the view that the status of theproperty is not liable to be disturbed after such a prolong period of timein the context of the facts and the legal position which has emergedsince 10.3.1958. The gift deed can be read in one manner, and only inone manner.

19. We are thus not inclined to entertain the present appeal.

20. The appeal is dismissed. Parties to bear their own costs.

Nidhi Jain

Appeal dismissed.

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