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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6918-6919 OF 2011

NARINDER SINGH RAO .....APPELLANT

         VERSUS

AVM MAHINDER SINGH RAO         ....RESPONDENTS AND OTHERS

J U D G M E N T

ANIL R. DAVE, J.

1. Being aggrieved by the Judgment delivered in Civil Regular Second  

Appeal No. 3937 of 2005 and Cross Objection No. 9-C of 2005 dated 21st  

May, 2010 by the High Court of Punjab & Haryana at Chandigarh, these  

appeals have been filed by original defendant No.1.

2. The facts giving rise to the appeals in a nutshell are as under:

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Rao Gajraj Singh and his wife Sumitra Devi were occupiers of the suit  

property.   The  property  appears  to  have  been  constructed  somewhere  in  

1935 and as per the municipal record, it belonged to Rao Gajraj Singh.  A  

document was executed by Rao Gajraj Singh to the effect that upon death of  

himself or his wife, the suit  property would be inherited by the survivor.  

The said writing was attested by Rao Devender Singh, the son of Rao Gajraj  

Singh’s real sister.

Rao Gajraj Singh expired on 29th March, 1981 and thereafter Sumitra  

Devi, who had eight children, started residing at Ranchi with the appellant.  

Somewhere in 1980s, Sumitra Devi got constructed some shops in the  

suit premises and the said shops were given on rent.

On  1st June,  1989,  Sumitra  Devi  executed  a  Will  whereby  she  

bequeathed the suit property to one of her sons, namely, Narinder Singh Rao  

(the present appellant and original defendant No.1) and she expired on 6th  

June, 1989.

3. After the death of Sumitra Devi, her four children, one of them being  

the present respondent No.1, filed a suit for declaration claiming their right  

in the suit property.  Subsequently, the plaint was amended so as to make it a  

suit for partition.  According to the case of the said children, the Will was  

not genuine and therefore, the said Will could not have been acted upon and

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as Sumitra Devi was survived by eight children, the suit property would be  

inherited by all the children.  Thus, each child had 1/8 th share in the suit  

property.  

4. Even after death of Rao Gajraj Singh, the suit property continued to  

remain in his name because nobody had got the property mutated in the  

names of his heirs/legal representatives after his death.

5. The  said  suit  was  dismissed  and  therefore,  the  original  plaintiffs,  

along with others, preferred an appeal.  After hearing the learned advocates  

and considering the facts of the case, the lower appellate court dismissed the  

said appeal though allowed the appeal on the question of court fee.   

6.  Being aggrieved by the judgment delivered by the lower appellate court,  

original plaintiff  No.1 filed a second appeal,  being Civil  Regular  Second  

Appeal No. 3937 of 2005.   On the issue with regard to court fee, cross  

objection  was  filed by the present  appellant.  The said  appeal  was  partly  

allowed whereas the cross objection was dismissed on 25th May, 2010 and  

being aggrieved by the judgment delivered in the said appeal, the present  

appeal has been filed by the appellant, who is original defendant no.1.

7. It is pertinent to note as to how the High Court has decided the Second  

Appeal and for that purpose let us look at the findings, which are as under:

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The ultimate findings arrived at by the court below are to the effect  

that the writing executed by Rao Gajraj Singh, which stated that upon death  

of himself or his wife, the suit property would be inherited by the survivor,  

was  neither  in  the  nature  of  a  Will  nor  in  the  nature  of  transfer  of  the  

property because the said writing was neither registered as required under  

the provisions of the Indian Registration Act, 1908 nor was attested by two  

witnesses as it should have been done, had it been a Will.  Thus, the writing  

executed by Rao Gajraj Singh, in the eyes of law, was only a piece of paper,  

having  no  legal  effect.   Factually  also,  the  said  writing  was  not  a  Will  

because it was not attested by two attesting witnesses as is required to be  

done for execution of a valid Will.  It is also a fact that the said writing had  

not  been  registered  and  by  virtue  of  the  said  writing  either  complete  

ownership or share of Rao Gajraj Singh was not transferred to Sumitra Devi,  

thus,  the  High  Court  in  its  impugned  judgment  rightly  ignored  the  said  

writing executed by Rao Gajraj Singh.

8. Upon the death of Rao Gajraj Singh, no mutation entry was made in  

the  Municipal  Corporation  records  to  show as  to  who had  inherited  the  

property in question and the  said property continued to remain in the name  

of late Rao Gajraj Singh.

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9. By virtue of the Will executed by Sumitra Devi, whereby the property  

had been bequeathed to the present appellant, the appellant claims complete  

ownership over the suit property.

10. So far as inheritance of the suit property by the present appellant in  

pursuance  of  the  Will  dated  1st June,  1989 executed  by Sumitra  Devi  is  

concerned, the finding of the lower appellate court is to the effect that the  

Will was validly executed by Sumitra Devi, which had been attested by two  

witnesses, one being an advocate and another being a medical practitioner.  

Though there  was an  allegation  to  the  effect  that  Sumitra  Devi  was  not  

keeping good health at the time when she had executed the aforesaid Will  

and she was not having sound and disposing mind at the time of execution of  

the  Will,  the  said  submission  made  before  the  courts  below  was  not  

accepted.  Upon appreciation of evidence adduced, it was held that the Will  

was validly executed and Sumitra Devi was competent to execute the Will  

which  had  been  duly  attested  by  two  competent  witnesses.   In  the  

circumstances, the courts below came to the conclusion that the Will was  

validly  executed.   The  question  with  regard  to  the  state  of  mind  of  the  

testatrix and execution of the Will being a question of fact, the High Court  

rightly accepted the findings arrived at by the lower appellate court.  As the  

said finding has been accepted by the High Court, in our opinion, even this

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Court would not re-appreciate the said fact.  In the circumstances, so far as  

the validity of  the Will  is  concerned,  it  is  treated to have been executed  

properly.  The next question which was to be considered by the High Court  

was with regard to the ownership right of the suit property.  The property  

was in the name of Rao Gajraj Singh and no evidence of whatsoever type  

was adduced to the effect that the property originally belonged to Sumitra  

Devi.  Looking to the said fact, the findings arrived at by the High Court that  

the suit property belonged to Rao Gajraj Singh cannot be disturbed.  As Rao  

Gajraj Singh died intestate and was the owner of the property at the time of  

his death, the suit property should have been inherited by his widow, namely  

Sumitra Devi and his eight children in equal share, as per the provisions of  

the Hindu Succession Act, 1956.  In that view of the matter, the High Court  

arrived at the conclusion that the suit property would be inherited by all the  

9 heirs i.e. Sumitra Devi and her eight children and therefore, Sumitra Devi  

had inherited only 1/9th  of the right and interest in the suit property whereas  

1/9th of the right and interest in the suit property belonged  to each child of  

Rao Gajraj Singh.

11. Though  the  Will  executed  by  Sumitra  Devi  has  been  treated  as  a  

validly executed Will,  Sumitra Devi, who had only 1/9th of the right and  

interest  in  the  suit  property,  could  not  have  bequeathed  more  than  her

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interest in the suit property.  If Sumitra Devi was not a full-fledged owner of  

the suit property, she could not have bequeathed the entire suit property to  

the  present  appellant-  Narinder  Singh  Rao  who  has  claimed  the  entire  

property  by  virtue  of  the  Will  executed  by  Sumitra  Devi.   At  the  most  

Sumitra Devi could have bequeathed her interest in the property which was  

to the extent of 1/9th share in the said property.  So the High Court rightly  

came to the conclusion that the 1/9th share in the suit property belonging to  

Sumitra Devi would be inherited by the present appellant - Narinder Singh  

Rao by virtue of the Will executed by her.  In addition to his own right and  

interest in the suit property to the extent of 1/9th share, which the present  

appellant had inherited from his father, the present appellant would get 1/9th  

share in the suit property as he also inherited share of his mother Sumitra  

Devi  whereas all other children of Rao Gajraj Singh would get 1/9th share  

each in the suit property.  Thus, the present appellant would be having 2/9 th  

share in the suit property.

12. In our opinion, the aforestated findings arrived at by the court below  

are absolutely just and proper.  So far as findings of facts are concerned, the  

same have been finally decided by the court below and therefore, we would  

not like to interfere with the findings of the fact.

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13. So far as legal issues are concerned, in our opinion, the court below  

did not make any error while coming to the aforestated conclusions after  

applying law to the facts of the case.

14. The  learned  counsel  appearing  for  the  parties  had  made  lengthy  

submissions,  however,  in  our  opinion  not  a  single  submission  made  on  

behalf of  the appellant is impressive.

15. On behalf of the appellant, the submissions were made to the effect  

that the suit property in fact belonged to Sumitra Devi though it was in the  

name of Rao Gajraj Singh.  The provisions of Benami Transfer (Prohibition)  

Act,  1988 had been referred to by the learned counsel  appearing for  the  

appellant.   The  question  whether  the  suit  property  in  fact  belongs  to  an  

individual i.e. whether he is a beneficial owner or is a benami, is a question  

of  fact.   There  was  no  averment  made  in  the  plaint  with  regard  to  the  

aforestated allegation.  No issue to the said fact had been raised before the  

trial  court.   The  said  issue  had been raised  for  the  first  time before  the  

appellate court and in our opinion, the issue with regard to the fact could not  

have been raised before the appellate court for the first time and therefore,  

all  submissions  made  in  relation  to  the  provisions  of  Benami  Transfer  

(Prohibition)  Act,  1988  and  with  regard  to  real  ownership  of  the  suit  

property cannot be looked into at this stage.

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16. The submissions made with regard to the mental capacity of Sumitra  

Devi at the time of  execution of the Will cannot also be looked into at this  

stage because the mental capacity of the testator to execute a Will being a  

question of fact, we would like to accept the findings arrived at by the court  

below and all allegations with regard to soundness of mind of Sumitra Devi  

at  the  time  of  execution  of  the  Will  or  allegation  with  regard  to  undue  

influence of the present appellant with whom Sumitra Devi was residing at  

the time of her death cannot be looked into by this Court as they are the  

issues pertaining to fact.  We, therefore, do not accept the submissions made  

with regard to validity of the Will executed by Sumitra Devi.

17. As we have come to the conclusion that the Will executed by Sumitra  

Devi was just and proper, the consequences of the Will would be like this:

Rao Gajraj Singh was survived by his eight children and his widow –

Sumitra  Devi.   As  Rao  Gajraj  Singh  died  intestate,  according  to  the  

provisions of the Hindu Succession Act, his property would devolve upon all  

his nine heirs i.e. his widow and eight children.  So, everyone would get 1/9th  

share  in  the  property  of  Rao  Gajraj  Singh.   Though  Sumitra  Devi  had  

executed her Will and had bequeathed the entire property in question to the  

present appellant namely Narinder Singh Rao, Sumitra Devi could not have  

bequeathed under her Will what she did not own.  She was only 1/9th owner

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of the suit property so she could have bequeathed only her share i.e. 1/9th  

share in the suit property.  As a result of the Will of Sumitra Devi, Narinder  

Singh  Rao-  the  appellant  would  not  only  inherit  his  own  share  in  the  

property, which he had inherited from his father Rao Gajraj Singh but he  

would also inherit share of his mother Sumitra Devi as per her Will.  Thus,  

the  present  appellant  would  become the  owner  of  2/9th share  of  the  suit  

property.   In  our  opinion  the  final  finding  of  the  High  Court  that  the  

appellant  is  the  owner  of  2/9th share  of  the  suit  property  is,  therefore,  

absolutely correct.

18. The averments with regard to court fee are not of importance at this  

stage as looking to the facts of the case, the court below has rightly come to  

the  conclusion  that  the  issue  with  regard  to  the  court  fee  was  a  matter  

between the litigant filing the suit and the court and the defendants need not  

have bothered about the same.   

19. The  learned  counsel  appearing  for  both  sides  have  cited  several  

judgments.   The propositions laid down in the said judgments cannot be  

disputed, however, the fact remains that the said judgments do not render  

any assistance to the appellant in view of the aforestated facts.

20. In view of the findings of fact arrived at by the courts below and the  

legal position clarified hereinabove and by the High Court, in our opinion,

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the High Court has committed no error and therefore, we see no reason to  

interfere with the impugned judgment.

21. For the aforestated reasons, the appeals are dismissed with no order as  

to costs.

           ………..……………............J.                                               (R.M. LODHA)

           ………..……………............J.                                               (ANIL R. DAVE)

New Delhi MARCH 22,  2013.