CHAMAN LAL (D) THR. LRS.versusKAMLAWATI (D) THR. LRS.

                        [2019] 9 S.C.R. 1071                             1071


                  CHAMAN LAL (D) THR. LRS.                               A
                                  v.
                   KAMLAWATI (D) THR. LRS.
                   (Civil Appeal No.2633 of 2012)
                           JULY 16, 2019                                 B
     [SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
       Punjab Court Act, 1918 – ss. 41 and 42 – Jurisdiction of
High Court – Exercise of – Execution of gift deed by the son-original
owner bequeathing land in favour of his step mother – Suit for
                                                                         C
partition by original owner, claiming that only half of the total land
was gifted – Suit, in respect of half portion of the land or the whole
land – Trial court directed the partition into half share each – Order
upheld by the first appellate court – In Second Appeal, the High
Court interfered with the concurrent finding and allowed the appeal
– On appeal, held: High Court cannot be said to have exceeded its        D
jurisdiction – It was exercised within the ambit of s. 41 – When the
matter was pending in the High Court, translation and transliteration
was got done of the document-gift deed – Person who had translated
the document was summoned in the Court and had read the document
in open court in the presence of counsel for the parties and it was
                                                                         E
thus, opined that the translation effected by the translation branch
is absolutely correct, resulting in a finding that original owner did
make a gift of the entire land –Acknowledgment of both the parties
to the accuracy of the translation and the transliteration could not
be doubted thereafter – Perusal of the gift deed shows that what is
sought to be gifted does not mention any lesser land than the whole      F
land – Translation would show that the donee is deemed to be the
owner in possession of the gifted land – Thus, whatever land was
gifted, the possession was handed over – Furthermore, matter is
sought to be raised after 16 years of the land being sold to the IInd
defendant, thus, the conduct of the parties suggests that they
                                                                         G
understood that whole land was gifted and the possession of the
whole land was handed over and the status of the property is not
liable to be disturbed – Deeds and documents.


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                                1071
1072            SUPREME COURT REPORTS                       [2019] 9 S.C.R.


 A           Dismissing the appeal, the Court
              HELD: 1.1 During the pendency of the Second Appeal, prior
       even to first order, was that a translation was got done from the
       concerned branch of the High Court of the document in question
       being the gift deed. A transliteration was also got done of this
 B     document. In that context it has been observed in the order dated
       02.04.2002 that the concerned judge had summoned the person
       who had translated the document being gift deed in the Court
       and had read the document in open court in the presence of
       counsel for the parties. This was compared with the punjabi
       version of the document. It was thus opined that the translation
 C     effected by the translation branch is absolutely correct, resulting
       in a finding that late C.L. did make a gift of the entire land. In the
       same proceeding it is also recorded that the correctness of the
       version of this document’s translation is not disputed. [Para 8]
       [1076-A-C]
 D            1.2 The High Court cannot be said to have exceeded its
       jurisdiction, as has to be exercised within the ambit of Section 41
       of the Punjab Court Act. It is said so as the fulcrum of the dispute
       was the gift deed itself being the document in question. The
       document was originally penned down in Urdu with the Persian
 E     dialect and was thereafter translated to the Punjabi language. The
       next translation was done in English as also the transliteration.
       Thus, there would be a reliance on an inaccurate document if the
       translation and the transliteration was not accurate. This is the
       objective which was sought to be subserved by getting an
       authenticated translation done in the High Court and the
 F     concession/submission of the appellants recorded in order dated
       02.04.2002 in respect of the translation, albeit the order being
       set aside. The acknowledgment of both the parties to the accuracy
       of the translation and the transliteration could not be doubted
       thereafter. If the substratum being the document has been
 G     inaccurately translated then there would be a fundamental legal
       infirmity in the interpretation to be given and in determining the
       controversy in question. This preliminary objection sought to be
       raised by the appellant on the right of the High Court to look into
       the question on merits cannot be accepted. [Para 11] [1077-E-H;
       1078-A]
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CHAMAN LAL (D) THR. LRS. v. KAMLAWATI (D) THR. LRS.                   1073


      1.3 The perusal of the gift deed shows that what is sought      A
to be gifted does not mention any lesser land than the whole
land. If the plea of the appellant was to be accepted, then there
should have been some area stated to have been gifted while the
other would have been held back. This is not so. Of course, the
submission for the appellant is that the area remained undivided
                                                                      B
and that is why the partition was being sought. [Para 13] [1078-F]
      1.4 When the reference is made to Rs.800/-, it is in the
context of half the value of Rs.1600/-, a methodology adopted
which is prevalent in this part of the country while recording such
translation wherefor accuracy of the figures, half the amount is
mentioned to ensure that the actual figure is correctly reflected.    C
Not only that the translation would show that the donee is “deemed
to be the owner in possession of the gifted land”. Thus, whatever
land was gifted, the possession was handed over. In the facts of
the instant case, the possession of the complete land is
undisputedly initially with the Ist defendant then with the IInd      D
defendant and thereafter with the IIIrd and IVth defendants.
[Para 14] [1078-G; 1079-A-B]
       1.5 Jamabandi for the first time was done in the name of
late G.K. for 1969–70. Prior to that the whole land remained in
the name of late C.L., the original owner. It is not that the         E
Jamabandi was done for half the land in favour of late C.L. and
half in favour of late G.K. If at all a grievance would have arisen
on behalf of late C.L. that could have been an occasion for it. The
first time the matter is sought to be raised is 17 years later and
after about 16 years of the land in question being sold to the IInd
defendant. Thus, the conduct of the parties also suggests that        F
the parties understood that whole land was gifted and the
possession of the whole land was handed over. [Para 15]
[1079-B-D]
       1.6 The Indian Stamp (Punjab Amendment) Act, 1958
received the assent of the Governor of Punjab on 23.04.1958           G
and was published in the Gazette on 25.4.1958. Transaction in
question was prior to that date. The status of the property is not
liable to be disturbed after such a prolong period of time in the
context of the facts and the legal position which has emerged
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1074            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


 A     since 10.3.1958. The gift deed can be read in one manner, and
       only in one manner. [Para 17, 18] [1079-E-G]
             Pankajakshi (D) through LRs. & Ors. v. Chandrika &
             Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 ; Sir
             Chunilal V. Mehta & Sons Ltd. v. Century Shipping and
 B           Manufacturing Co. Ltd. [1962] 3 Suppl. SCR 549
             – referred to.
                                Case Law Reference
             [2016] 3 SCR 1018               referred to         Para 7

 C           [1962] 3 Suppl. SCR 549         referred to         Para 12
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2633
       of 2012
             From the Judgment and Order dated 23.01.2008 of the High Court
       of Punjab and Haryana at Chandigarh in Regular Second Appeal
 D     No. 3888 of 1999
             Rupinder Singh Suri, Sr. Adv., Varun Khanna, Aditya Giri, Abhishek
       Singh, Advs. for the Appellants.
            Ms. Aishwarya Bhati, Sr. Adv., Tushar Bakshi, Shovit Singh,
       Naresh Bakshi, Nikilesh Ramachandran, Advs. for the Respondents.
 E
             The Judgment of the Court was delivered by
             SANJAY KISHAN KAUL, J.
             1. The subject matter of dispute is half of the land measuring 3
       Biswas and 11 Bighas out of Khasra No. 1252, Khata No. 318/563 in
 F     Dholewal, Ludhiana. The land was purchased by Chaman Lal (late
       appellant) from one Mansa Ram on 30.7.1949. A gift deed was executed
       on 10.3.1958 by Chaman Lal in favour of late Smt. Gurdev Kaur, his
       stepmother. The controversy relates to the fact whether suit was in
       respect of half portion of the total land or the whole land was gifted to
 G     late Smt. Gurdev Kaur.
             2. It cannot really be disputed that the possession of the land
       remained with late Smt. Gurdev Kaur. It appears that no mutation was
       made till the jamabandi of 1969-70 when the whole land was mutated in
       the name of Smt. Gurdev Kaur, who soon thereafter, sold the land to
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 CHAMAN LAL (D) THR. LRS. v. KAMLAWATI (D) THR. LRS.                           1075
             [SANJAY KISHAN KAUL, J.]

Smt. Kamla Wati on 15.3.1971. The consequent mutation was made on              A
24.10.1972.
      4. The dispute arose from the filing of suit for partition by late Sh.
Chaman Lal on 22.08.1987. In the suit claim was sought to be laid that
what was gifted was only half of the total land. Late Smt. Gurdev Kaur
was arrayed as the 1 st defendant and Smt. Leelawati as the IInd               B
defendant.
       5. Pendente lite the land was re sold by defendant No.2 to
defendant Nos. 3 & 4, on 4.1.1995 and 6.1.1995 who were thus impleaded
as the defendants. It is these defendants who are respondents 1 & 2
before us and are really contesting parties.                                   C
       6. The trial court in terms of judgment and decree dated 20.11.1998
decreed the suit directing the partition into half share each. The first
appellate court affirmed the decree vide judgment and order dated
28.8.1999. However, the second appellate court being the Punjab and
Haryana High Court interfered with these concurrent findings in terms          D
of judgment dated 02.04.2002. Late Chaman Lal preferred a special
leave petition against the said order being SLP(C) No. 2713 of 2003.
The appeal was allowed on 6.10.2003 on the short ground that the Second
Appeal has been decided without framing any substantial question of
law as was mandatory requirement under Section 100 of the Code of
Civil Procedure, 1908. The matter was thus remitted back to the High           E
Court which has again allowed the appeal in terms of the impugned
judgment dated 23.01.2008.
       7. We may notice prior to proceeding on merits of the matter that
the order of this Court dated 6.10.2003 was predicated on a legal position
which stands subsequently clarified by a Constitution Bench judgment           F
of this Court in Pankajakshi (D) through Lrs. & Ors. vs. Chandrika
& Ors. (2016 (6) SCC 157) opining that insofar as the Punjab and
Haryana High Court is concerned, a different legal position would prevail
and a substantial question of law is not to be determined, in view of the
State amendments, as a pre-requisite before interfering with the orders        G
of the trial court.
       8. Be that as it may, the aforesaid is being referred to, so as to
complete the facts as also by reason of the learned counsel for respondent
nos. 1 & 2 drawing our attention to certain facts recorded in the earlier
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1076             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


 A     Second Appeal order dated 02.04.2002 which may be somewhat germane
       to the controversy in question. We may notice that crucial development
       during the pendency of the Second Appeal, prior even to first order, was
       that a translation was got done from the concerned branch of the High
       Court of the document in question being the gift deed. A transliteration
       was also got done of this document. In that context it has been observed
 B
       in the order dated 02.04.2002 that the concerned learned judge had
       summoned the person who had translated the document being gift
       deed(Exh. P1) in the Court and had read the document in open court in
       the presence of learned counsel for the parties. This was compared
       with the punjabi version of the document. It was thus opined that the
 C     translation effected by the translation branch is absolutely correct,
       resulting in a finding that late Sh. Chaman Lal did make a gift of the
       entire land. In the same proceeding it is also recorded that the correctness
       of the version of this document’s translation is not disputed.
             9. Learned counsel for the appellant has sought to contend that it
 D     was not within the domain of the power of the Second appeal judge,
       who has interfered with the concurrent findings given the narrow scope
       in which such a second appeal has to be examined more so in the context
       of Section 41 of the Punjab Court Act, 1918(hereinafter referred to as
       the ‘Punjab Court Act’) read with Section 42 of the Punjab Court Act.
       The said provisions read as under:
 E
             “41. Second appeals-(1) An appeal shall lie to the High Court
             from every decree passed in appeal by any Court subordinate to
             the High Court on any of the following grounds, namely :
             (a) the decision being contrary to law or to some custom or usage
 F           having the force of law :
             (b) the decision having failed to determine some material issue of
             law or custom or usage having the force of law :
             (c) a substantial error or defect in the procedure provided by the
             Code of Civil Procedure 1908 [V of 1908], or by any other law
 G           for the time being in force which may possibly have produced
             error or defect in the decision of the case upon the merits;
             Explanation-A question relating to the existence or validity of a
             custom or usage shall be deemed to be a question of law within
             the meaning of his section:
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 CHAMAN LAL (D) THR. LRS. v. KAMLAWATI (D) THR. LRS.                           1077
             [SANJAY KISHAN KAUL, J.]

      (2) An appeal may lie under this section from an appellate decree        A
      passed ex parte.
      (3) [Repealed by Section 2B of Punjab Act 6 of 1941]
      42. Second appeal on no other ground-
      (1) No second appeal shall lie except on the grounds mentioned in        B
      Section 41.
      2. No second appeal shall lie in any suit of the nature cognizable
      by Courts of small Causes when the amount or value of the subject
      matter of the original suit does not exceed five hundred rupees.”
       10. On the other hand, learned counsel for the respondent nos. 1        C
& 2 seeks to contend that the High Court was well within its jurisdiction
to have a genuine translation done of the document, being the gift deed,
that being the real bone of contention. The proceedings, as referred to
above, have been relied upon for the purposes of the acknowledgment
of both the parties that the translation is accurate. In this context,         D
reference has been made to the provisions of clauses (a) & (c) of sub
section 1 of Section 41 of the Punjab Court Act to contend that the
exercise of power would fall within the said jurisdiction.
       11. On consideration of the matter, we find that the High Court
cannot be said to have exceeded its jurisdiction, as has to be exercised
                                                                               E
within the ambit of Section 41 of the Punjab Court Act. We say so as
the fulcrum of the dispute was the gift deed itself being the document in
question. The document was originally penned down in Urdu with the
Persian dialect and was thereafter translated to the Punjabi language.
The next translation was done in English as also the transliteration. Thus
there would be a reliance on an inaccurate document if the translation         F
and the transliteration was not accurate. This is the objective which
was sought to be subserved by getting an authenticated translation done
in the High Court and the concession/submission of the appellants herein
recorded in order dated 02.04.2002 in respect of the translation, albeit
the order being set aside. The acknowledgment of both the parties to
                                                                               G
the accuracy of the translation and the transliteration could not be doubted
thereafter. If the substratum being the document has been inaccurately
translated then there would be a fundamental legal infirmity in the
interpretation to be given and in determining the controversy in question.
We are thus not inclined to accept this preliminary objection sought to be
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1078             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


 A     raised by learned senior counsel for the appellant on the right of the
       High Court to look into the question on merits.
               12. We are fortified in our aforesaid view by earlier judicial
       pronouncements. We may note that these judgments are in the context
       of the provisions for second appeal under Section 100 of the said Code
 B     as it existed prior to the amendment of 1976, which is almost pari materia
       to the existing provision which applies to Punjab (as noticed in
       Pankajakshi (D) through LRs & Ors.1 in para 24). Per se construction
       of documents (unless documents of title) to prove a question of fact do
       not involve an issue of law unless it can be shown that the material
       evidence contained in that was misunderstood by the court of fact.2 In
 C     the facts of the present case we are, in fact, dealing with a document of
       title, i.e., the Gift Deed. Thus, there can be little doubt that if the
       translation of the document itself is not correctly done, an aspect which
       was addressed to by the High Court by getting the translation done,
       which was accepted, then the correct translation would have to be re-
 D     construed. It is this principle, which was recognized in Sir Chunilal V.
       Mehta & Sons Ltd. v. Century Shipping and Manufacturing Co.
       Ltd.3 while observing in para 2 as under:
              “2. ….Indeed it is well settled that the construction of a document
              of title or of a document which is the foundation of the rights of
 E            parties necessarily raises a question of law.”
              13. Returning to the factual controversy in issue and the analysis
       of the same by the High Court, the perusal of the gift deed shows that
       what is sought to be gifted does not mention any lesser land than the
       whole land. If the plea of the appellant was to be accepted, then there
 F     should have been some area stated to have been gifted while the other
       would have been held back. This is not so. Of course, the submission of
       the learned senior counsel for the appellant is that the area remained
       undivided and that is why the partition was being sought.
             14. We may also notice that when the reference is made to
 G     Rs.800/-, it is in the context of half the value of Rs.1600/-, a methodology
       adopted which is prevalent in this part of the country while recording
       such translation wherefor accuracy of the figures, half the amount is
       mentioned to ensure that the actual figure is correctly reflected. Not
       1
          (supra)
       2
         (1963) 2 SCR 208
 H     3
         1962 Supp (3) SCR 549
 CHAMAN LAL (D) THR. LRS. v. KAMLAWATI (D) THR. LRS.                            1079
             [SANJAY KISHAN KAUL, J.]

only that the translation would show that the donee is “deemed to be the        A
owner in possession of my gifted land”. Thus, whatever land was gifted,
the possession was handed over. In the facts of the present case the
possession of the complete land is undisputedly initially with the Ist
defendant then with the IInd defendant and thereafter with the IIIrd and
IVth defendants.
                                                                                B
       15. We may also take note of the fact that jamabandi for the first
time was done in the name of late Gurdev Kaur for 1969-70. Prior to
that the whole land remained in the name of late Chaman Lal, the original
owner. It is not as if the jamabandi was done for half the land in favour
of late Chaman Lal and half in favour of late Gurdev Kaur. If at all a
grievance would have arisen on behalf of late Chaman Lal that could             C
have been an occasion for it. The first time the matter is sought to be
raised is 17 years later and after about 16 years of the land in question
being sold to the IInd defendant. Thus, the conduct of the parties also
suggests that the parties understood that whole land was gifted and the
possession of the whole land was handed over.                                   D
       16. Learned counsel for the appellant also sought to draw an
inference in favour of the appellant by submitting that what had weighed
with the trial court and the first appellate court was that the document of
gift was stamped on the basis that the value of the gift was Rs.800/- and
not Rs.1600/-.                                                                  E
       17. In this behalf learned senior counsel for the respondent has
pointed out to us that the Indian Stamp (Punjab Amendment) Act, 1958
received the assent of the Governor of Punjab on 23.04.1958 and was
published in the Gazette on 25.4.1958. Transaction in question was prior
to that date. That plea will thus not hold much water.                          F
       18. We are, thus, unequivocally of the view that the status of the
property is not liable to be disturbed after such a prolong period of time
in the context of the facts and the legal position which has emerged
since 10.3.1958. The gift deed can be read in one manner, and only in
one manner.                                                                     G
        19. We are thus not inclined to entertain the present appeal.
        20. The appeal is dismissed. Parties to bear their own costs.

Nidhi Jain                                                  Appeal dismissed.
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