KIRPAL KAUR versus JITENDER PAL SINGH & ORS.

Citation: [2015] 8 S.C.R. 51 · Decided: 14-07-2015 · Supreme Court of India · Bench: V. GOPALA GOWDA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2015] 8 S.!;,R. 51 
KIRPAL~,U.R 
V. 
'<)• 
JITENDER PAL SINGH & ORS. 
(Civil Appeal No. 2820 of 2015) 
July 14, 2015 
[V. GOPALA GOWDA AND C. NAGAPPAN, JJ.] 
A 
B 
Partition - Decree of partition - Claim of, by plaintiff-
daughter-in-/aw against defendant-father-in-law, of the joint c 
family properties seeking her late husband's share -
Dismissed by trial court as also first appellate court - On 
appeal, held: Courts below erred in not granting share to the 
plaintiff in the schedule 'B' property despite the positive and 
substantive evidence of the defendant that the property was D 
a joint family property and the plaintiff's husband had 
contributed towards the construction of the property- Further, 
as regards gift deed allegedly executed by first defendant in 
favour of the second defendant-second son in respect of the 
schedule 'B 'property during the pendency of the proceedings E 
and before the expiry of the period of/imitation for filing SLP, 
said gift deed is hit bys. 52- Second defendant who claimed 
to be the beneficiary of the said property did not seek leave 
of the court as donee - In absence thereof, it would not affect 
the relief sought by plaintiff, during the pendency of the 
F 
proceedings before this Court - Also gift deed is invalid - It 
could not have been acted upon by defendants as plaintiff 
was in possession of the second floor of the said property in 
herhusband'sindependentright-Thus, s. BoftheAct, 1956, 
G 
would come into operation in respect of the said property-
Upon the death of first defendant, his property would devolve 
upon the husband of the plaintiff along with second defendant 
and other daughters of the deceased - Plaintiff and each 
one of the defendants assigned 114'h share equally in the H 
51 
52 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
A said property- Transfer of Property Act, 1882- s. 52- Code 
of Civil Procedure, 1908 - Or. 22 r. 10 - Hindu Succession 
Act, 1956 - s. 8. 
B 
Allowing the appeal, the Court 
HELD: 1.1 The concurrent finding of fact recorded 
by both the trial court as well as the first appellate court 
on the contentious issue No.4 are not only erroneous in 
law but also suffer from error in law for the reason that 
c there is a positive and substantiv~ evidence elicited by 
the deceased-first defendant during the course of his 
cross examination before the trial court, wherein l>e had 
in unequivocal terms admitted in his evidence that he, 
his sons and daughters have an ancestral property in 
D his village and the same has not been divided between 
them and that he used to get the income from the said 
agricultural land and the same was utilized by him for 
the construction of the building-schedule 'B' property; 
and that he had received money for the construction of 
E the said building from the plaintiff's husband while he 
was in Kuwait. Therefore, it amounts to putting the said 
property in the hotchpot of joint family property. Both 
the trial court and the first appellate court erred in their 
decisions in not granting a share to the plaintiff in the 
F schedule 'B' property by recording·an erroneous finding 
even though she is legally entitled for the same. [Para 
14, 17] [65-G-H; 66-A-C; 67-E-F] 
1.2 Having regard to the fact that immediately 
G within two weeks from the date of disposal of the first 
appeal by the High Court and before the expiry of the 
period of limitation for filing special leave petition before 
this Court challenging the impugned judgment, the gift 
deed was allegedly executed by the deceased-first 
H defendant in favour of the second defendant-second son 
KIRPAL KAUR v. JITENDER PAL SINGH & ORS. 
53 
which was made available for perusal only after this A 
Court directed the second defendant's counsel to do so. 
The execution of the alleged gift deed is hit by Section 
52 of the Transfer of Property Act, 1882, as the said deed 
was executed during the pendency of the proceedings 
and before the expiry of the period of limitation for filing B 
SLP. Further, during the pendency of these proceedings, 
the second defendant, who claimed to be the alleged 
beneficiary of the suit schedule 'B' property on the basis 
of alleged gift deed should have sought leave of this 
Court as the donee and brought the said fact of C 
execution of the alleged gift deed· in respect of '8' 
schedule property by the deceased first defendant, 
which property devolved in his favour, to the notice of 
this Court as provided u/Or. 22 r. 10 C.P.C.

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