BALWANT SINGH Vs. MEHAR SINGH

JUDGEMENT

(1.) MOST of the facts giving rise to this second appeal by the defendant are no longer in dispute and may be stated at the outset. The plaintiff and the defendant are brothers to each other and up to the date of the institution of the suit were sharing for the purpose of their residence a house which their father Bela Singh purchased for Rs. 2,500/- from one Teja Singh under a registered sale deed (Exhibit P-3) executed on the 29th of January, 1959. On the 4th of February, 1963, Bela Singh executed an agreement (a copy of which is Exhibit D-1)transferring a part of the house in favour of the plaintiff and the rest of the house in favour of the defendant who was directed to pay a sum of Rs. 400/- to the plaintiff in view of the fact that the part of the house given to him (the defendant)had a greater market value than the other part. It was also stipulated in the agreement that each of the two sons would pay Rs. 30/- per month to their father for his maintenance and that if either of them failed to do so, the father would be entitled to get back the property transferred to that son. A stamp duty of Rs. 2/4/was paid in respect of the agreement. On the same date another agreement (evidenced by copy Exhibit D-2) was executed by the two sons and their father. That agreement recited that the father had partitioned his property amongst the sons who were to pay him Rs. 30/- per month by way of maintenance and that if either of them committed default, he would forfeit his share of the property to the father. In respect of this agreement also the stamp duty paid amounted to Rs. 2/4/- -. The two sons occupied the portions respectively allotted to them thereafter and the defendant paid a sum of Rs. 400/- to the plaintiff as stipulated in the agreement first mentioned. By virtue of a registered deed of gift executed on the 29th of September, 1967 (Exhibit P-1) Bela Singh transferred the whole of the house to the plaintiff.

(2.) THE plaintiff instituted the suit giving rise to the present appeal on the 12th of march, 1969, for recovery of possession of that portion of the house which the defendant was occupying. The case of the plaintiff was that by reason of the deed of gift in his favour he had become the owner of the entire house to the exclusion of the defendant. The case set up by the defendant was that he had acquired the portion of the house in his possession under a partition of joint Hindu family property and that the plaintiff was also estopped from bringing the suit by reason of the fact that he had been paid the amount of Rs. 400/- above mentioned by the defendant. The trial Court held that the house was not proved to be joint Hindu family property but further found that "a partition had taken place and the disputed portion had been allotted to the defendant under that partition. He had been in possession of the same as owner since then and has been residing in that very portion for the last ten years". In this connection the trial Court relied on copies (Exhibits D-1 and D-2) of the two agreements appearing in the register of the deed-writer who had scribed those agreements. While commenting upon Exhibit d-1 the trial Court remarked that it was not merely a memorandum of a past transaction but was a deed of partition and, therefore, being unregistered, could be looked into only for a collateral purpose which, according to the trial Court, was that the defendant had been in exclusive possession of the disputed portion of the house as owner since 1963. The suit was, therefore, dismissed by the trial Court. Against the decree passed by the trial Court the plaintiff instituted an appeal which was accepted by Shri N. S. Bhalla, Additional District Judge, Gurdaspur who decreed the suit holding that the transfer in favour of the defendant had been brought about by a deed which was unregistered but which was liable to compulsory registration and which could not have preference over the subsequent registered gift deed (Exhibit P-1 ). It is against the decree passed by the learned Additional District Judge that the defendant has come up in second appeal to this Court.

(3.) THE first contention raised by learned counsel for the appellant is that the doctrine of part performance embodied in Section 53-A of the Transfer of Property act was applicable to the case and that by reason thereof the plaintiff deserved to be non-suited. Such a plea, however, is conspicuous by its absence from the written statement filed by the defendant before the trail Court and does not appear to have been advanced at any earlier stage. Being a plea embracing questions both of law and fact, it cannot be raised for the first time in second appeal (see Karam Chand v. Banwari Lal, AIR 1965 Punj 117), and is, therefore, not entertained. It may, however, be observed that even if it could be taken notice of, there would still be an insurmountable hurdle in the way of the defendant and that is the insufficiency of stamp duty paid in respect of the instrument, a copy of which is Exhibit D-1. There is the concurrent finding of fact by the two Courts below that the house purchased by Bela Singh was not joint Hindu family property. If that be so, the document of which Exhibit D-1 is a copy must be held to be a gift-deed in favour of the two sons by the father. It is common ground between the parties that the value of the house on the 4th of February, 1963, was no less than that for which it was purchased more than 4 years earlier so that the stamp duty to which it was liable far exceeded the amount of Rs. 2/4/- paid in respect of it. Learned counsel for the defendant has urged that Exhibit D-1 can be looked into in spite of the insufficiency of the stamp duty paid in respect of it because of the provisions of Section 36 of the Indian Stamp Act which lays down: