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Gurpyari Singh And Others v. Kamaldeep Singh Alias Sonu
Structured Summary of the Opinion — Amit Rawal, J.
Factual and Procedural Background
The appellant(s)-plaintiff(s) appealed against a judgment and decree of the lower Appellate Court which had dismissed the suit. The suit sought:
- Partition of several described properties situated in the abadi of Village Hussainpur, P.O. Bhulana, Tehsil and District Kapurthala (details set out in site plans Mark A to Mark D in the plaint), including a residential house, three rooms used as store, cattle room with open area, and an unconstructed haveli, along with affixtures and incidental rights;
- Possession of the portion that, after partition by metes and bounds, would fall to the plaintiff's share;
- Permanent injunction restraining the defendant from changing the nature of the properties, making alterations, raising or demolishing construction, or alienating any portion beyond his share until partition is effected.
Procedurally, the trial Court had earlier decreed the suit (judgment and decree dated 30.04.2013). The lower Appellate Court reversed that decree and dismissed the suit. The present proceeding is a Regular Second Appeal, heard orally by Amit Rawal, J., seeking restoration of the trial Court's judgment.
Legal Issues Presented
- Whether the Will dated 04.08.1980 executed by Santa Singh — which the appellant says was admitted in the written statement — needed formal proof at trial, or whether it could be treated as admitted and dispensed with proof under the Civil Procedure provisions governing admission of documents.
- Whether the lower Appellate Court erred in treating the Will as denied and discarding it, and in framing an issue regarding the Will contrary to the pleadings and admissions.
- Whether the non-impleadment of certain legal representatives (LRs) of Prem Adhar Singh, as raised by the lower Appellate Court, rendered the suit for partition not maintainable.
Arguments of the Parties
Appellant's Arguments (Mr. G.S. Attariwala)
- Santa Singh executed a Will dated 04.08.1980; he had inherited his share from his father Nihal Singh. Under that Will, the plaintiff and his brother (Gurprem Singh) became owners in joint possession in equal shares while the remaining property was bequeathed to the grandsons (sons of Prem Adhar Singh).
- Gurprem Singh died in 2001 leaving defendant No.1 as his only son, who is thus entitled to inherit half the share of Gurprem Singh. The plaintiff sought partition because he did not want joint holding.
- The trial Court decreed the suit on oral and documentary evidence and on examination of the pleadings; the defendant admitted execution of the Will. The lower Appellate Court misread the Will and the pleadings and wrongly held that the Will was denied.
- The lower Appellate Court ignored Order 14 and other provisions of the Code of Civil Procedure governing framing of issues and admissions; admitted documents need not be proved, so the lower Appellate Court's judgment is unsustainable and should be set aside.
- The lower Appellate Court erred in non-suiting the appellant on the ground that other LRs of Prem Adhar Singh were not impleaded; that finding was unnecessary had the sale-deed recital been properly understood.
Respondent's Arguments (Mr. Ashok Nabhewala)
- The written statement does not disclose an admission of the Will; the lower Appellate Court's findings are correct and justified.
- The onus was on the plaintiff to prove the Will under Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act; having failed to discharge that burden, the lower Appellate Court rightly discarded the Will.
- If the Will is discarded, intestate succession would operate: the three sons of Santa Singh would take one-third shares and the sons of Prem Adhar Singh would take shares in respect of their father's one-third; those persons were not impleaded and therefore the suit for partition would be not maintainable in their absence.
- Mere exhibition of a document does not dispense with its proof. He relied on Sait Tarajee Khimchand v. Yelamarti Satyam [(1972) 4 SCC 562 : 1971 AIR (SC) 1865] to support this contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562 : 1971 AIR (SC) 1865 | Authority for the proposition that mere exhibition of a document does not dispense with its proof. | The respondent relied on this decision to argue that exhibition alone is insufficient; the Court considered this submission but held that where a document is admitted in pleadings or by conduct, formal proof may not be required. The Court therefore treated the admitted Will as not requiring separate proof in the circumstances presented. |
| Pankajakshi (dead) through LRs v. Chandrika, (2016) 6 SCC 157 : AIR 2016 SC 1213 | Authority on whether substantial questions of law need be framed in certain categories of appeals (discussion of interplay between Section 97(1) CPC and Section 41 of the Punjab Courts Act, 1918). | The Court relied on the ratio of this five-judge decision to justify not framing substantial questions of law in the present Second Appeal; it referred to the decision to explain the appropriate appellate practice and to decline to formulate substantial questions of law in the case at hand. |
| Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs, (2001) 4 SCC 262 | Previously applied authority on applicability of Section 97(1) CPC (referenced in the Pankajakshi discussion). | Cited by way of background: the Court recorded that Pankajakshi overruled the correctness of Kulwant Kaur on the point of applicability of Section 97(1) CPC, restoring applicability of Section 41 of the Punjab Courts Act, 1918. The opinion relied on that development in appellate practice. |
| Ganpat, AIR 1978 P&H 137 : 80 Punj LR 1 (Full Bench) | Decision earlier relied upon regarding applicability of Section 41 of the Punjab Courts Act (discussed in Pankajakshi). | Referenced within the quoted Pankajakshi judgment as an earlier High Court Full Bench decision found unsustainable by the Supreme Court. The present Court used the Pankajakshi discussion (which overruled Ganpat) to shape its approach to framing questions of law in the appeal. |
Court's Reasoning and Analysis
The Court heard counsel and examined the paper book. It found merit in the appellant's submissions and identified specific legal and procedural errors in the lower Appellate Court's approach. The Court's reasoning proceeded through distinct steps:
-
Identification of the relevant procedural provisions:
- Order 14 Rule 1 (framing of issues) and Order 14 Rule 3 (materials from which issues may be framed) of the Code of Civil Procedure were quoted and their scope explained: the court framed issues where parties are at variance and may frame issues from pleadings, oral allegations on oath, or contents of documents produced by parties.
- Order 12 Rule 6 (admissions in pleadings and the effect of admissions) was invoked to show that admitted facts/documents need not be proved.
-
Application of the procedural rules to the pleadings:
- The Court observed that on a conjoint reading of Order 14 Rule 1 and Rule 3, issues arise only where parties are at variance. It examined the written statement and found no averment denying the Will.
- The Court quoted Paragraph No. 2 of the written statement as containing the relevant admission concerning the Will:
“2. That in reply to para No. 2 of the plaint that Santa Singh during his lifetime had executed a Will dated 04.08.1980 but the plaintiff has again denied this fact that he has relinquished his rights in favour of father of the defendant after receiving Rs. 25,000/- from the father of the defendant and affidavit to this effect was also given by the plaintiff in favour of the father of defendant. The said affidavit dated 11.8.1980 was duly attested by Executive Magistrate, Kapurthala. It is also wrong that the father of the plaintiff had died about 20 years ago. As a matter of fact, the father of the plaintiff expired in the year 1993.”
-
Conclusion on proof of the Will:
- The Court concluded that since the Will was admitted in the written statement, there was no need to frame an issue regarding the Will and no need to require the plaintiff to re-prove the Will at trial. The settled principle invoked was that an admitted thing need not be proved and that judgment on admission under Order 12 Rule 6 is permissible.
- Consequently, the Court held that the lower Appellate Court erred in treating the Will as denied and in discarding it on the asserted ground that the plaintiff had not proved it under Section 63(c) of the Indian Succession Act or Section 68 of the Evidence Act; such requirements were rendered otiose where the document was admitted in the pleadings and there was no denial in cross-examination of its proof.
-
On the question of impleadment of other heirs:
- The respondent contended that if the Will were discarded intestacy would necessitate impleading others and thereby render the suit not maintainable. The Court noted this contention but found that the primary error was the lower Appellate Court's failure to recognise the admission of the Will and the consequent legal effect of that admission.
-
Approach to appellate procedure:
- The Court considered whether to frame substantial questions of law in the appeal and referred to the Supreme Court's five-judge decision in Pankajakshi v. Chandrika, which reshaped the approach to framing such questions in certain appeals (including discussion of Section 97(1) CPC and Section 41 of the Punjab Courts Act, 1918).
- Relying on that authority, the Court declined to frame substantial questions of law for deciding this Regular Second Appeal, and proceeded to decide the appeal on the admitted facts and law as applied above.
-
Final analytical finding:
- Because the Will was admitted in the pleadings and not denied, the lower Appellate Court's exercise of framing an issue and discarding the Will was found to be otiose and perverse. The Court therefore set aside the lower Appellate Court's findings and restored the trial Court's judgment which had decreed the suit.
Holding and Implications
Holding:
Regular Second Appeal allowed; the findings and decree of the lower Appellate Court are set aside and the judgment and decree of the trial Court dated 30.04.2013 are restored.
Implications and consequences:
- Direct effect: The appellant-plaintiff's suit succeeds and the trial Court's decree in favour of the plaintiff is restored. The reliefs sought at trial (partition of the specified properties and injunction) were upheld by restoration of the trial Court's judgment.
- On the question of proof of documents: The decision reinforces that where a document (here, a Will dated 04.08.1980) is admitted in pleadings and not denied, the court may treat it as admitted and not require further formal proof; framing an issue on such an admitted document is unnecessary.
- On broader precedent: The Court applied existing authorities (including Pankajakshi) to its appellate practice in this appeal. The opinion did not purport to lay down a new legal principle beyond the application of settled procedural law; the direct effect is limited to restoration of the trial Court's decree in this matter.
End of summary based solely on the provided opinion.
Amit Rawal, J. (Oral):— The appellant(s)-plaintiff(s) is aggrieved of the judgment and decree rendered by the lower Appellate Court, whereby the suit seeking following claim:—
“Suit for partition of properties situated in abadi of Village Hussainpur, P.O. Bhulana, Tehsil and District Kapurthala comprises of:—
(a) Residential house shown in red colour in enclosed site plan Mark-A and bounded as under:—
East:- Common Passage
West:- Sardool Singh & Kulwant Singh
North:- Khushal Singh
South:- Bhagat Singh
(b) Three rooms (used for store purpose) along with open space shown in green colour in the enclosed site plan Mark B and bounded as under:—
East:- passage, Deouri
West:- Sawinder Singh & Naranjan Singh
North:- Amar Singh son of Ishar Singh
South:- Khushal Singh
(c) Cattle room with open area shown in yellow colour in the enclosed site plan Mark C and bounded as under:—
East:- Manmohan Singh & Khushal Singh
West:- Bhagat Singh
North:- Common Passage
South:- Sohan & Parkasho.
(d) Haveli (unconstructed) in the share of plot and passage shown in blue colour in the enclosed site plan Mark D and bounded as under:—
East:- Kewal Singh son of Amar Singh
West:- Nirmal Singh, Khushal Singh
North:- Manmohan Singh son of Sadhu Singh
South:- Nirmal Singh, Khushal Singh
Along with all affixtures and all incidental rights connected with the above detailed property and after partition by metes and bounds, whatever portion from properties shown in above detailed site plans Mark A to Mark D enclosed with the plaint, comes to the share of plaintiff, its possession be given to the plaintiff.
Suit for permanent injunction restraining the defendant for ever from changing the nature by raising, demolishing any sort of construction, making alteration in any part of the above detailed properties and alienating specific portion and more than his share in the above detailed suit properties fully shown in the enclosed site plans Mark A to Mark D, till the partition is effected in between the parties.”
2. Has been dismissed by the lower Appellate Court, in essence, judgment and decree of the trial Court dated 30.04.2013, has been reversed.
3. Mr. G.S. Attariwala, learned counsel appearing on behalf of appellant(s)-plaintiff(s) submits that Santa Singh during his lifetime had executed the Will dated 04.08.1980. Santa Singh had inherited the property from his father Nihal Singh as per his share from the joint property. After his death, plaintiff and his brother as per the Will become owner in joint possession of the property in equal share as the remaining property had been bequeathed to the grandsons namely son of Prem Adhar Singh. The other brother Gurprem Singh died in the year 2001 and defendant No. 1 being only son was/is entitled to inherit half share of the suit property. He never wanted share to be joint thus, sought partition of the property. He submits that trial Court on the basis of the oral and documentary evidence, much less, on examination of the pleadings, decreed the suit as the defendant admitted the execution of the Will but lower Appellate Court misdirected and misread the contents of the Will, much less, pleadings, holding that Will was emphatically denied. In fact, the lower Appellate Court remained completely oblivious of the provision of Order 14 and as well as other provision of Code of Civil Procedure. During the course of arguments, he has drawn the attention of this Court to the written statement qua part of the admission of Will. He further submits that admitted documents need not to be proved but only such documents on which parties are at variance, thus, judgment and decree of the lower Appellate Court is not sustainable in the eyes of law and liable to be set aside.
4. He further submits that lower Appellate Court has also non-suited the appellant on the ground that other LRs of Prem Adhar Singh were not impleaded. He submits that there was no occasion for the lower Appellate Court to arrive at such findings, had recital in the sale deed was read in proper perspective.
5. Per Contra, Mr. Ashok Nabhewala, learned counsel appearing on behalf of respondent-defendant submits that written statement does not reveal any admission of the Will. The findings rendered by the lower Appellate Court is perfect, legal and justified. Onus is upon the plaintiff to discharge the same as per the provision of Section 63(c) of the Indian Succession Act and 68 of the Indian Evidence Act. Having failed to do so, particularly in view of issue No. 1, rightly so, lower Appellate Court discarded the Will. He further submits that in case Will is discarded then all the three sons of Santa Singh would have 1/3 share and sons of Prem Adhar Singh would have share qua 1/3 share of his father. Even the said persons were also not impleaded as parties, therefore, suit for partition in their absence was/is not maintainable, thus, urges this Court for affirming the findings under challenge.
6. He further submits that mere exhibition of document does not dispense with its proof. In support of his contention, he relies upon the judgment rendered by Hon'ble Supreme Court in Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562 : 1971 AIR (SC) 1865.
7. I have heard learned counsel for the parties and appraised the paper book and of the view that there is force and merit in the submission of Mr. Attariwala, for, judgment and decree of the lower Appellate Court is liable to be set aside for the following reasons.
8. Lower Appellate Court has remained oblivious of the provision of Order 14 Rule 1 of Code of Civil Procedure, which reads thus:—
“1. Framing of issues
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one-party and denied by the other shall form the subject of distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.”
9. Order 14 Rule 3 of Code of Civil Procedure, reads thus:—
“3. Materials from which issues may be framed.- The court may frame the issues from all or any of the following materials:—
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.”
10. Issues are to be framed where parties are at variance.
11. On co-joint reading of the aforementioned sub-Rule and Order, it is evident that issues are to be framed where only parties are at variance however, on going through entire written statement, there is not even a single averments denying the Will. Paragraph No. 2 of the written statement, where the Will has been admitted, reads thus:—
“2. That in reply to para No. 2 of the plaint that Santa Singh during his lifetime had executed a Will dated 04.08.1980 but the plaintiff has again denied this fact that he has relinquished his rights in favour of father of the defendant after receiving Rs. 25,000/- from the father of the defendant and affidavit to this effect was also given by the plaintiff in favour of the father of defendant. The said affidavit dated 11.8.1980 was duly attested by Executive Magistrate, Kapurthala. It is also wrong that the father of the plaintiff had died about 20 years ago. As a matter of fact, the father of the plaintiff expired in the year 1993.”
12. Rather the defence of the defendants had been, that the plaintiff had asserted his right owing to the affidavit dated 11.08.1980 after receipt of the payment of Rs. 25,000/-. Though aforementioned plea of defendant has been discarded by both the Courts below as the said affidavit tantamounts to relinquishment such act requires registration. The question before this Court is that in view of the admission of the Will, Can the party be dispensed with in proving the Will, Answer is “Yes”. In my view, there was no need for the Courts below to frame the issue of Will when same was admitted. It is settled law that admitted thing need not be proved. Even the judgment on admission as per the provision of Order 12 Rule 6 is permissible.
13. Now coming to the contents of the Will, Will specifies that sons of Prem Adhar Singh would inherit 1/3 and 2/3 share in respect of the property mentioned therein would go to the plaintiff and rest of the property would go to the defendant in equal share. The findings of the lower Appellate Court that once issue has been framed and written statement has been denied, is totally fallacious and perverse. There is no single averment in the written statement regarding the denial of the Will. The lower Appellate Court being last Court of fact and law is enjoined upon the obligation as per the provision of Section 96 of Code of Civil Procedure to deal with every aspect i.e. oral and documentary evidence, much less, pleadings. In my view exercise of framing of issue was totally otiose. Thus the compliance of provision of Sections 63(c) of Indian Succession Act and 68 of the Evidence Act would totally be redundant.
14. There is another aspect of the matter. As per the Order 14, the settlement of issues arises subsequent to the provision of Order 12, which deals with the admission and denial of the documents. Legislature in the wisdom had incorporated the aforementioned provision in order to curtail the protraction of the trial, in essence, the parties would be only leading evidence, where parties are at variance. In other words, no evidence is required to be lead on the admitted documents. All these aspects in my view have not been taken care. Will was submitted by way of the affidavit of the plaintiff and on opening lines of the cross-examination, there is no objection with regard to proving of Will, much less, admission. It is settled law that when there is no denial of the said documents, it is deemed to be admitted, thus, there is no force in the submission of Mr. Nabhewala, qua proving of the same.
15. No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon'ble Supreme Court in Pankajakshi (dead) through LRs v. Chandrika (2016) 6 SCC 157 : AIR 2016 SC 1213, wherein the proposition arose as to whether in view of the provisions of Section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under Section 100 of Code of Civil Procedure, so there is need to frame the substantial questions of law or not. The Constitutional Bench of Hon'ble Supreme Court held that the decision in Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 SCC 262 on applicability of Section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back.
16. For the sake of brevity, the relevant portion of the judgment of five learned Judges of the Hon'ble Supreme Court in Pankajakshi's case (supra) reads thus:—
“Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [AIR 1978 P&H 137: 80 Punj LR 1 (FB)] cannot be sustained and is thus overruled.” [at paras 27-29]”
“27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.”
17. Therefore, I do not intend to frame the substantial questions of law while deciding the appeal, aforementioned. For the reasons aforementioned, the findings rendered by the Lower Appellate Court are set aside. The suit of appellant-plaintiff succeeds. The judgment and decree of the trial Court is restored.
18. Resultantly, the Regular Second Appeal stands allowed.
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