RANDHIR KAUR (DECEASED) THROUGH HER LRS. versus BALWINDER KAUR & ORS. on 6 May 2019

234

SUPREME COURT REPORTS

[2019] 7 S.C.R.

ARANDHIR KAUR (DECEASED) THROUGH HER LRS.

v.

BALWINDER KAUR & ORS.

(Civil Appeal Nos. 4629-4630 of 2019)

B

MAY 6, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Transfer of Property:

Exchange of property – Propriety of – Property donated toCschool run by Education Society – For the specific purpose ofadvancing the cause of education of children – The then Principalof the School exchanged the land of the School (including thedonated land) with his own land situated in another village –Thereafter the Principal leased the exchanged land to the School –Suit by the donor seeking possession and in the alternative seekingDdeclaration that the exchange was illegal – Trial court denied decreeof possession while granted the alternative relief declaring theexchange as illegal – First Appellate Court held that the donor hadno locus standi to agitate the matter after having executed the GiftDeed – High Court in Second Appeal, affirmed the order of FirstEAppellate Court – Appeal to Supreme Court – Held: The appellatecourts wrongly confined their discussion to the prayer fordeclaration for possession – Trial Court rightly decreed the suit onalternative prayer as the purported exchange was collusive, illegaland unauthorized – The Jamabandis reflecting the purportedexchange are quashed and set aside – Cost of Rs. 1 lac imposed.F

Allowing the appeals, the Court

HELD: 1.1 It has been erroneously held that the mutationentries for exchange by Respondent No.1 was valid. Thepurported oral exchange dated 01.08.1988, followed by theGAgreement dated 25.08.1988, between the then Principal of theSchool, with the President of the School, was a wholly collusiveand illegal transaction. The exchange was illegal and unauthorized,since there was no Resolution passed by the Education Society,which was running the school, in favour of the President toexchange the land owned and vested in the School pursuant toH

the Gift Deed. The Principal and the President of the schoolentered into this collusive transaction, whereby the then Principalbecame the owner of the suit property. The school could not havebeen divested of the ownership of the suit property by the so-called exchange. This was in complete breach of faith and trustby the President of the Society and Principal of the School.[Paras 4.1 and 4.2] [241-B; E-H]

1.2 The so-called exchange was a mere ruse to transferthe valuable land of the School which had been gifted by themother of the appellants, to the Principal, in exchange for someunirrigated inferior quality banjar land situated in a remote cornerin a Village. Once the School was divested of ownership on thebasis of the purported exchange, the respondents executed aLease Deed in favour of the School, wherein the School was nowshown as a Lessee, and was required to pay lease rent to thePrincipal and later his legal heirs. The purported exchange dated01.08.1988 and 25.08.1988 being wholly illegal, is liable to bequashed and set aside. The Jamabandis reflecting the purportedexchange are quashed and set aside. The Jamabandis be restoredby the revenue authorities in the name of the School.[Paras 4.3 and 5] [242-C-E]

2. Even though, the appellants/plaintiffs had prayed for adecree of possession of the land which had been gifted torespondent No. 2-School; there was an alternate prayer made fora decree of declaration that the School was the owner in possessionof the land which had been gifted to it, and that the mutation ofexchange was illegal, unlawful, and liable to be set aside. TheTrial Court had rightly decreed the suit on the alternate prayer.The First Appellate Court and the High Court confined theirdiscussion only with respect to the prayer for declaration forpossession of the suit property. [Para 4.1] [241-B-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4629-4630 of 2019.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4629-4630 of 2019.

From the Judgment and Order dated 25.05.2018 of the High Courtof Punjab and Haryana at Chandigarh in RSA No. 2879 of 2015 (O&M)and RSA No. 4771 of 2015 (O&M).

Ms. Tina Garg, M. K. Ghosh, Rohit Dutta, Advs. for the Appellants.

A

B

C

D

EF

G

H

AMs. Sonia Mathru, Sr. Adv., Vineet Talal, Sushil Kr. Dubey, UmeshKumar Khaitan, Advs. for the Respondents.

The Judgment of the Court was delivered by INDU MALHOTRA, J.B1. Leave granted in both the Special Leave Petitions.

2. The present Appeals have been filed against the commonjudgment and order dated 25.05.2018 passed by the Punjab and HaryanaHigh Court in RSA Nos. 2879 and 4771 of 2015.

Aggrieved by the impugned judgment, the Appellants have filedCthe present Appeals.

3. The background facts in which the present Appeals have beenfiled, briefly narrated are as follows: - 3.1The predecessor-in-title of the suit property Smt. RandhirKaur w/o Harnandan Singh vide a registered Gift DeedDdated 27.05.1981 donated a property admeasuring 4 Kanals10 Marlas of land bearing Khata No. 15/18, KhasraNo. 766/567 (4-10) situated at Parowal Tehsil Garhshankarto Doaba Public School, Garhshankar [hereinafter referredto as the “suit property”]. The Gift was executed for theEspecific purpose of advancing the cause of education ofchildren of the area, for which the property was transferredwith all rights to the Doaba Public School, run by the DoabaEducation Society, Garhshankar.

The Gift Deed was executed by the Donar viz Smt.FRandhir Kaur through her husband as power of attorneyholder. The Gift Deed was witnessed by Mr. Ujjagar Singh,Nambardar, Parowal. The second witness was Mr. BalwantSingh, the Principal of the School.

3.2The suit property was duly mutated in the name of theGDoaba Public School vide Mutation Entry dated 04.12.1981.

3.3The Respondents contend that by an oral memorandum ofexchange on 1.8.1988, the Principal of Doaba PublicSchool - Mr. Balwant Singh, and Mr. Mohinder Singh, - thePresident of Doaba Education Society, purportedly H

exchanged the land of the School admeasuring 24 Kanals inTehsil Garhshankar, with the personal land owned by Mr.Balwant Singh in Village Khanni, Tehsil Garhshnakar. Thisexchange included the land admeasuring 4 Kanals 10 Marlaswhich had been donated by Smt. Randhir Kaur, thepredecessor of the Appellants herein. Subsequently, anagreement dated 25.8.1988 was executed by the Principalof the Doaba Public School and the President of the DoabaEducation Society.

3.4Mr. Balwant Sing, Principal had the lands of the schoolmutated in his own name on 29.10.1988 vide mutation ofexchange no.1824, based on the aforesaid agreement ofexchange.

3.5On the death of Balwant Singh in 1995, his widow BalwinderKaur/Respondent No.1 herein became the owner of the suitproperty.

3.6Smt. Randhir Kaur – the donar of the suit property andtherefore filed Civil Suit No. 66 of 2001, wherein she prayedfor the following two reliefs: - “It is, therefore, prayed that decree for possessionof land measuring 4 kls 10 mrls bearing Khewat no.94,Khatauni no. 124 Khasra No. 756/567 (4-10), as enteredin Jamabandi 1994-95 situated in the area of vill-persona, M.B. No. 266. The-Garhshankar, Distt.-Hoshiarpur, after removal of all types of Malba.

OR

In the alternative a decree for declaration to theeffect that the defdt. No.2 is owner in possession ofland measuring 4 kls 10 mrls bearing Khewat No.94,Khatauni No.124, Khasra No.756/567 (4-10), situatedin the area of Vill-Parowal, The-Garhshankar. Distt-Hoshiarpur and that the mutation No.1824 allegedlyregarding exchange of above said land from the nameof defdt. No.2 in the name of husband of defdt. No.1i.e. Balwant Singh is wrong, incorrect, illegal, unlawful,null and void-ab-initio, ineffective and inoperative, A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

against the rights of defdt. No.2 and is liable to be setaside and that the entries in the column of ownershipof Jamabandi 1994-95 showing the defdt. No.1 asowner of the said land are wrong, incorrect, illegal,unlawful, null and void, having no effect on the rightsof defdt. No.2 and are liable to be corrected to showthe defdt. No.2 as owner in possession f the same witha consequential relief of Perpetual Injunctionrestraining the defdt. No.1 from execution anyinstrument of alienation in favour of some third personby taking undue-advantage of the wrong entries in herfavour and for restraining the defendant from usingthe suit land for any other purpose except for thepurposes sub-servient to the educational activities ofdefdt. No.2 may kindly be passed in favour of theplaintiff and against the defdts. with costs which is inthe interest of justice and equity.”

3.7The Trial Court vide its detailed judgment and order dated29.07.2011 partly allowed the suit filed by the appellantherein. The first prayer for decree of possession could notbe granted pursuant to the registered Gift Deed, the landhad vested in the School. However, the Court granted thealternate relief prayed for. The Court held that as the Schoolfailed to produce any Resolution passed by the DoabaEducation Society empowering the Principal to enter intoan exchange of the property of the School. The RespondentNo.2 had sought to exchange 24 Kanals of un-arable,unirrigated land situated in a remote village of Khanni locatedin the Shivalik foothills for the valuable property of the School.By the exchange the Principal-Balwant Singh claimedownership over the suit property. The Respondent No.1 hadthe mutation of the suit property changed into his own name.Thereafter, he executed a lease-deed dated 27.05.2002 ofthe School property, showing the School to be the lessee.As a consequence, the school now became the lessee, andthe Principal became the owner of the suit property.

The Trial Court held that the exchange was clearly illegal,in the absence of any resolution passed by the Society. Since the exchange was held to be illegal, the Appellants weregranted the alternative relief prayed for, i.e. a declarationthatthe Doaba Education Society as the owner in possession ofthe land. The Respondent No.1 had no right to use the suitproperty for any other purpose, except the educationalactivities of the Respondent No.2-School. The RespondentNo.1 was permanently restrained from alienating the suitproperty, or using it in any manner, than for the educationalneeds of the school. The Trial Court held that the RespondentNo.2-School was the duly appointed trustee in possessionof the land of 4 kanals 10 marlas donated by the plaintiffs.The Court ordered that the mutation of exchange No.1824be set aside, being illegal, null and void. The entries in therevenue record be corrected in favour of the RespondentNo.2 School as owner and in possession of the suit property.

3.8Respondent No.1 filed an appeal before the AdditionalDistrict Judge. The Appellate Court held that it would notbe possible for the donor to contend that the gift is not valid.The Appellate Court was of the view that the Appellantshave no locus standi to agitate the matter, because she wasleft with no concern over the suit property after the executionof the Gift Deed. The cancellation of the Gift Deed couldnot be considered. The Court set aside the judgment of theTrial Court, and declared that the cancellation of the mutationin favour of the Respondent herein was not correct.

3.9Aggrieved by the said judgment, the Appellants filed aSecond Appeal before the High Court of Punjab andHaryana. The High Court vide impugned judgment dated25.5.2018 affirmed the order of the First Appellate Court.

3.10 The present Appeals have been filed by the Appellants whoare the legal representatives of Smt. Randhir Kaur - thedonor of the suit property. The Appellants have inter aliacontended that the donation of the suit property was for thebenefit of the students of the School; the transfer/exchangeby Balwant Singh-husband of Respondent No.1 who wasthe Principal of the School, was illegal and vitiated by ulteriormotives. The property which had been donated by theAppellants was of high value and quality, which was sought A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

to be exchanged with a property which was inferior in quality,and was unirrigated land, situated in a remote village Khanni;the exchange was without any legal sanction or authorityfrom the society running the School.

3.11 The learned Counsel for the Respondents inter aliasubmitted that the Gift Deed dated 27.05.1981 did not reserveany rights for the Donor. After the execution of the GiftDeed the Appellants had no locus to file a suit for possessionof the suit property, as possession was delivered to theRespondent No.2-School vide the registered Gift Deed. Itwas further submitted that the Gift Deed had no conditionwherein it could be cancelled by the Donor.

The Appellants divested themselves from any right oftitle in the suit property which was passed to the Donee.Once the registered Gift Deed had been executed withoutreserving any right in the suit property, it could not berevoked.

The oral exchange of lands on 1.8.1988 between thePrincipal of the School, and the President of the DoabaEducation Society, was later reduced in writing by virtue ofan agreement dated 25.08.1988. The Respondents producedfor the first time a copy of a Resolution dated 1.8.1988 infavour of Mohinder Singh, the President of the Society tosell or exchange the School’s property. This document wasnever produced before the Courts below. The authenticityof this document has not been proved. We did not permitthe Respondent to place additional documents on record atthe fag end before this Court.

It was further argued that even though the land wasexchanged to set up a school in a remote area which wouldgive an opportunity to the children of Village Khanni to getaccess to education, the school continued to run from thesuit property. During the course of arguments, the learnedCounsel also suggested that the Respondents would give anUndertaking that the School would be run from the suitproperty in the future also.

RANDHIR KAUR (DECEASED) THROUGH HER LRS. v.BALWINDER KAUR & ORS. [INDU MALHOTRA, J.]

4. We have heard the learned counsel appearing for both the partiesat length.

4.1 Having carefully perused the record filed before this Court,and considering the oral submissions made by the Counselfor the parties, we are of the considered view that boththe First Appellate Court and the High Court,erroneously held that the mutation entries for exchange byRespondent No.1 was valid. Even though, the Appellantsplaintiffs herein had prayed for a decree of possession of theland which had been gifted to Respondent No. 2-School; therewas an alternate prayer made for a decree of declarationthat the School was the owner in possession of the land whichhad been gifted to it, and that the mutation of exchange wasillegal, unlawful, and liable to be set aside. The Trial Courthad rightly decreed the suit on the alternate prayer. The FirstAppellate Court and the High Court confined their discussiononly with respect to the prayer for declaration for possessionof the suit property. The Appellate Court and High Courtcompletely vest right of the alternate prayer made by theAppellant.

4.2 The purported oral exchange dated 01.08.1988, followed bythe Agreement dated 25.08.1988, between Balwant Singh,the then Principal of the Doaba Public School, with MohinderSingh - the President of the School, was a wholly collusiveand illegal transaction. The exchange was illegal andunauthorized, since there was no Resolution passed by theDoaba Education Society which was running the school infavour of the President to exchange the land owned andvested in the School pursuant to the Gift Deed. The Principaland the President of the school in Garhshankar entered intothis collusive transaction, whereby Balwant Singh - the thenPrincipal became the owner of the suit property. The schoolcould not have been divested of the ownership of the suitproperty by the so-called exchange mentioned above. Thiswas in complete breach of faith and trust by the President ofthe Society and Principal of the School.

A

BC

D

EFG

A4.3 The ostensible reason given by the Respondents for theexchange was that this was for the benefit of the students inVillage Khanni, Garhshankar.

This reason was a mere camouflage which is apparentfrom the fact that the School has not been shifted to VillageBKhanni since the date of purported exchange on 25.08.1988i.e. since the past 31 years. The School to date continues to be run from the suit property and adjoining lands.

It is obvious that the so-called exchange was a mereruse to transfer the valuable land of the School which hadCbeen gifted by the mother of the Appellants, to the Principal,in exchange for some unirrigated inferior quality banjar landsituated in a remote corner in Village Khanni.

Once the School was divested of ownership on the basisof the purported exchange, the Respondents executed aLease Deed in favour of the School, wherein the School wasnow shown as a Lessee, and was required to pay lease rentto the Principal and later his legal heirs.

D

5. The purported exchange dated 01.08.1988 and 25.08.1988 beingwholly illegal, is liable to be quashed and set aside. The JamabandisEreflecting the purported exchange are quashed and set aside. TheJamabandis be restored by the revenue authorities in the name of theDoaba Public School, Garhshankar, Village Parowal, District Hoshiarpur,Punjab.

The Appeals are allowed accordingly.

FThe Respondents are directed to pay costs of Rs. 1 lac to theAppellants herein within a period of 12 weeks, and report compliance tothis Court.

G

Kalpana K. Tripathy

Appeals allowed.

H