RANDHIR KAUR (DECEASED) THROUGH HER LRS.versusBALWINDER KAUR & ORS.

234                       [2019]
               SUPREME COURT     7 S.C.R. 234
                              REPORTS                     [2019] 7 S.C.R.


A         RANDHIR KAUR (DECEASED) THROUGH HER LRS.
                                       v.
                        BALWINDER KAUR & ORS.
                     (Civil Appeal Nos. 4629-4630 of 2019)
B                                MAY 6, 2019
          [UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
            Transfer of Property:
            Exchange of property – Propriety of – Property donated to
C     school run by Education Society – For the specific purpose of
      advancing the cause of education of children – The then Principal
      of the School exchanged the land of the School (including the
      donated land) with his own land situated in another village –
      Thereafter the Principal leased the exchanged land to the School –
      Suit by the donor seeking possession and in the alternative seeking
D
      declaration that the exchange was illegal – Trial court denied decree
      of possession while granted the alternative relief declaring the
      exchange as illegal – First Appellate Court held that the donor had
      no locus standi to agitate the matter after having executed the Gift
      Deed – High Court in Second Appeal, affirmed the order of First
E     Appellate Court – Appeal to Supreme Court – Held: The appellate
      courts wrongly confined their discussion to the prayer for
      declaration for possession – Trial Court rightly decreed the suit on
      alternative prayer as the purported exchange was collusive, illegal
      and unauthorized – The Jamabandis reflecting the purported
      exchange are quashed and set aside – Cost of Rs. 1 lac imposed.
F
            Allowing the appeals, the Court
             HELD: 1.1 It has been erroneously held that the mutation
      entries for exchange by Respondent No.1 was valid. The
      purported oral exchange dated 01.08.1988, followed by the
G     Agreement dated 25.08.1988, between the then Principal of the
      School, with the President of the School, was a wholly collusive
      and illegal transaction. The exchange was illegal and unauthorized,
      since there was no Resolution passed by the Education Society,
      which was running the school, in favour of the President to
      exchange the land owned and vested in the School pursuant to
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                                      234
   RANDHIR KAUR (DECEASED) THROUGH HER LRS. v.                             235
             BALWINDER KAUR & ORS.

the Gift Deed. The Principal and the President of the school               A
entered into this collusive transaction, whereby the then Principal
became the owner of the suit property. The school could not have
been divested of the ownership of the suit property by the so-
called exchange. This was in complete breach of faith and trust
by the President of the Society and Principal of the School.
                                                                           B
[Paras 4.1 and 4.2] [241-B; E-H]
      1.2 The so-called exchange was a mere ruse to transfer
the valuable land of the School which had been gifted by the
mother of the appellants, to the Principal, in exchange for some
unirrigated inferior quality banjar land situated in a remote corner
in a Village. Once the School was divested of ownership on the             C
basis of the purported exchange, the respondents executed a
Lease Deed in favour of the School, wherein the School was now
shown as a Lessee, and was required to pay lease rent to the
Principal and later his legal heirs. The purported exchange dated
01.08.1988 and 25.08.1988 being wholly illegal, is liable to be            D
quashed and set aside. The Jamabandis reflecting the purported
exchange are quashed and set aside. The Jamabandis be restored
by the revenue authorities in the name of the School.
[Paras 4.3 and 5] [242-C-E]
      2. Even though, the appellants/plaintiffs had prayed for a           E
decree of possession of the land which had been gifted to
respondent No. 2-School; there was an alternate prayer made for
a decree of declaration that the School was the owner in possession
of the land which had been gifted to it, and that the mutation of
exchange was illegal, unlawful, and liable to be set aside. The
Trial Court had rightly decreed the suit on the alternate prayer.          F
The First Appellate Court and the High Court confined their
discussion only with respect to the prayer for declaration for
possession of the suit property. [Para 4.1] [241-B-D]
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4629-
4630 of 2019.                                                              G
      From the Judgment and Order dated 25.05.2018 of the High Court
of Punjab and Haryana at Chandigarh in RSA No. 2879 of 2015 (O&M)
and RSA No. 4771 of 2015 (O&M).
      Ms. Tina Garg, M. K. Ghosh, Rohit Dutta, Advs. for the Appellants.
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236            SUPREME COURT REPORTS                         [2019] 7 S.C.R.


A         Ms. Sonia Mathru, Sr. Adv., Vineet Talal, Sushil Kr. Dubey, Umesh
      Kumar Khaitan, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            INDU MALHOTRA, J.
B           1. Leave granted in both the Special Leave Petitions.
            2. The present Appeals have been filed against the common
      judgment and order dated 25.05.2018 passed by the Punjab and Haryana
      High Court in RSA Nos. 2879 and 4771 of 2015.
            Aggrieved by the impugned judgment, the Appellants have filed
C     the present Appeals.
             3. The background facts in which the present Appeals have been
      filed, briefly narrated are as follows: -
            3.1   The predecessor-in-title of the suit property Smt. Randhir
                  Kaur w/o Harnandan Singh vide a registered Gift Deed
D
                  dated 27.05.1981 donated a property admeasuring 4 Kanals
                  10 Marlas of land bearing Khata No. 15/18, Khasra
                  No. 766/567 (4-10) situated at Parowal Tehsil Garhshankar
                  to Doaba Public School, Garhshankar [hereinafter referred
                  to as the “suit property”]. The Gift was executed for the
E                 specific purpose of advancing the cause of education of
                  children of the area, for which the property was transferred
                  with all rights to the Doaba Public School, run by the Doaba
                  Education Society, Garhshankar.
                      The Gift Deed was executed by the Donar viz Smt.
F                 Randhir Kaur through her husband as power of attorney
                  holder. The Gift Deed was witnessed by Mr. Ujjagar Singh,
                  Nambardar, Parowal. The second witness was Mr. Balwant
                  Singh, the Principal of the School.
            3.2   The suit property was duly mutated in the name of the
G                 Doaba Public School vide Mutation Entry dated 04.12.1981.
            3.3   The Respondents contend that by an oral memorandum of
                  exchange on 1.8.1988, the Principal of Doaba Public
                  School - Mr. Balwant Singh, and Mr. Mohinder Singh, - the
                  President of Doaba Education Society, purportedly
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RANDHIR KAUR (DECEASED) THROUGH HER LRS. v.                            237
 BALWINDER KAUR & ORS. [INDU MALHOTRA, J.]

       exchanged the land of the School admeasuring 24 Kanals in       A
       Tehsil Garhshankar, with the personal land owned by Mr.
       Balwant Singh in Village Khanni, Tehsil Garhshnakar. This
       exchange included the land admeasuring 4 Kanals 10 Marlas
       which had been donated by Smt. Randhir Kaur, the
       predecessor of the Appellants herein. Subsequently, an
                                                                       B
       agreement dated 25.8.1988 was executed by the Principal
       of the Doaba Public School and the President of the Doaba
       Education Society.
 3.4   Mr. Balwant Sing, Principal had the lands of the school
       mutated in his own name on 29.10.1988 vide mutation of
       exchange no.1824, based on the aforesaid agreement of           C
       exchange.
 3.5   On the death of Balwant Singh in 1995, his widow Balwinder
       Kaur/Respondent No.1 herein became the owner of the suit
       property.
                                                                       D
 3.6   Smt. Randhir Kaur – the donar of the suit property and
       therefore filed Civil Suit No. 66 of 2001, wherein she prayed
       for the following two reliefs: -
           “It is, therefore, prayed that decree for possession
       of land measuring 4 kls 10 mrls bearing Khewat no.94,           E
       Khatauni no. 124 Khasra No. 756/567 (4-10), as entered
       in Jamabandi 1994-95 situated in the area of vill-
       persona, M.B. No. 266. The-Garhshankar, Distt.-
       Hoshiarpur, after removal of all types of Malba.
                                   OR                                  F
            In the alternative a decree for declaration to the
       effect that the defdt. No.2 is owner in possession of
       land measuring 4 kls 10 mrls bearing Khewat No.94,
       Khatauni No.124, Khasra No.756/567 (4-10), situated
       in the area of Vill-Parowal, The-Garhshankar. Distt-
                                                                       G
       Hoshiarpur and that the mutation No.1824 allegedly
       regarding exchange of above said land from the name
       of defdt. No.2 in the name of husband of defdt. No.1
       i.e. Balwant Singh is wrong, incorrect, illegal, unlawful,
       null and void-ab-initio, ineffective and inoperative,
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238     SUPREME COURT REPORTS                              [2019] 7 S.C.R.


A           against the rights of defdt. No.2 and is liable to be set
            aside and that the entries in the column of ownership
            of Jamabandi 1994-95 showing the defdt. No.1 as
            owner of the said land are wrong, incorrect, illegal,
            unlawful, null and void, having no effect on the rights
            of defdt. No.2 and are liable to be corrected to show
B
            the defdt. No.2 as owner in possession f the same with
            a consequential relief of Perpetual Injunction
            restraining the defdt. No.1 from execution any
            instrument of alienation in favour of some third person
            by taking undue-advantage of the wrong entries in her
C           favour and for restraining the defendant from using
            the suit land for any other purpose except for the
            purposes sub-servient to the educational activities of
            defdt. No.2 may kindly be passed in favour of the
            plaintiff and against the defdts. with costs which is in
            the interest of justice and equity.”
D
      3.7   The Trial Court vide its detailed judgment and order dated
            29.07.2011 partly allowed the suit filed by the appellant
            herein. The first prayer for decree of possession could not
            be granted pursuant to the registered Gift Deed, the land
            had vested in the School. However, the Court granted the
E           alternate relief prayed for. The Court held that as the School
            failed to produce any Resolution passed by the Doaba
            Education Society empowering the Principal to enter into
            an exchange of the property of the School. The Respondent
            No.2 had sought to exchange 24 Kanals of un-arable,
F           unirrigated land situated in a remote village of Khanni located
            in the Shivalik foothills for the valuable property of the School.
            By the exchange the Principal-Balwant Singh claimed
            ownership over the suit property. The Respondent No.1 had
            the mutation of the suit property changed into his own name.
            Thereafter, he executed a lease-deed dated 27.05.2002 of
G           the School property, showing the School to be the lessee.
            As a consequence, the school now became the lessee, and
            the Principal became the owner of the suit property.
                 The Trial Court held that the exchange was clearly illegal,
            in the absence of any resolution passed by the Society. Since
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RANDHIR KAUR (DECEASED) THROUGH HER LRS. v.                                239
 BALWINDER KAUR & ORS. [INDU MALHOTRA, J.]

       the exchange was held to be illegal, the Appellants were            A
       granted the alternative relief prayed for, i.e. a declarationthat
       the Doaba Education Society as the owner in possession of
       the land. The Respondent No.1 had no right to use the suit
       property for any other purpose, except the educational
       activities of the Respondent No.2-School. The Respondent
                                                                           B
       No.1 was permanently restrained from alienating the suit
       property, or using it in any manner, than for the educational
       needs of the school. The Trial Court held that the Respondent
       No.2-School was the duly appointed trustee in possession
       of the land of 4 kanals 10 marlas donated by the plaintiffs.
       The Court ordered that the mutation of exchange No.1824             C
       be set aside, being illegal, null and void. The entries in the
       revenue record be corrected in favour of the Respondent
       No.2 School as owner and in possession of the suit property.
 3.8   Respondent No.1 filed an appeal before the Additional
       District Judge. The Appellate Court held that it would not          D
       be possible for the donor to contend that the gift is not valid.
       The Appellate Court was of the view that the Appellants
       have no locus standi to agitate the matter, because she was
       left with no concern over the suit property after the execution
       of the Gift Deed. The cancellation of the Gift Deed could
       not be considered. The Court set aside the judgment of the          E
       Trial Court, and declared that the cancellation of the mutation
       in favour of the Respondent herein was not correct.
 3.9   Aggrieved by the said judgment, the Appellants filed a
       Second Appeal before the High Court of Punjab and
       Haryana. The High Court vide impugned judgment dated                F
       25.5.2018 affirmed the order of the First Appellate Court.
 3.10 The present Appeals have been filed by the Appellants who
      are the legal representatives of Smt. Randhir Kaur - the
      donor of the suit property. The Appellants have inter alia
      contended that the donation of the suit property was for the         G
      benefit of the students of the School; the transfer/exchange
      by Balwant Singh-husband of Respondent No.1 who was
      the Principal of the School, was illegal and vitiated by ulterior
      motives. The property which had been donated by the
      Appellants was of high value and quality, which was sought           H
240      SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A           to be exchanged with a property which was inferior in quality,
            and was unirrigated land, situated in a remote village Khanni;
            the exchange was without any legal sanction or authority
            from the society running the School.
      3.11 The learned Counsel for the Respondents inter alia
B          submitted that the Gift Deed dated 27.05.1981 did not reserve
           any rights for the Donor. After the execution of the Gift
           Deed the Appellants had no locus to file a suit for possession
           of the suit property, as possession was delivered to the
           Respondent No.2-School vide the registered Gift Deed. It
           was further submitted that the Gift Deed had no condition
C          wherein it could be cancelled by the Donor.
                 The Appellants divested themselves from any right of
            title in the suit property which was passed to the Donee.
            Once the registered Gift Deed had been executed without
            reserving any right in the suit property, it could not be
D           revoked.
                 The oral exchange of lands on 1.8.1988 between the
            Principal of the School, and the President of the Doaba
            Education Society, was later reduced in writing by virtue of
            an agreement dated 25.08.1988. The Respondents produced
E           for the first time a copy of a Resolution dated 1.8.1988 in
            favour of Mohinder Singh, the President of the Society to
            sell or exchange the School’s property. This document was
            never produced before the Courts below. The authenticity
            of this document has not been proved. We did not permit
F           the Respondent to place additional documents on record at
            the fag end before this Court.
                 It was further argued that even though the land was
            exchanged to set up a school in a remote area which would
            give an opportunity to the children of Village Khanni to get
G           access to education, the school continued to run from the
            suit property. During the course of arguments, the learned
            Counsel also suggested that the Respondents would give an
            Undertaking that the School would be run from the suit
            property in the future also.

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    RANDHIR KAUR (DECEASED) THROUGH HER LRS. v.                              241
     BALWINDER KAUR & ORS. [INDU MALHOTRA, J.]

       4. We have heard the learned counsel appearing for both the parties   A
at length.
      4.1 Having carefully perused the record filed before this Court,
          and considering the oral submissions made by the Counsel
          for the parties, we are of the considered view that both
          the First Appellate Court and the High Court,                      B
          erroneously held that the mutation entries for exchange by
          Respondent No.1 was valid. Even though, the Appellants
          plaintiffs herein had prayed for a decree of possession of the
          land which had been gifted to Respondent No. 2-School; there
          was an alternate prayer made for a decree of declaration
          that the School was the owner in possession of the land which      C
          had been gifted to it, and that the mutation of exchange was
          illegal, unlawful, and liable to be set aside. The Trial Court
          had rightly decreed the suit on the alternate prayer. The First
          Appellate Court and the High Court confined their discussion
          only with respect to the prayer for declaration for possession     D
          of the suit property. The Appellate Court and High Court
          completely vest right of the alternate prayer made by the
          Appellant.
      4.2 The purported oral exchange dated 01.08.1988, followed by
          the Agreement dated 25.08.1988, between Balwant Singh,             E
          the then Principal of the Doaba Public School, with Mohinder
          Singh - the President of the School, was a wholly collusive
          and illegal transaction. The exchange was illegal and
          unauthorized, since there was no Resolution passed by the
          Doaba Education Society which was running the school in
          favour of the President to exchange the land owned and             F
          vested in the School pursuant to the Gift Deed. The Principal
          and the President of the school in Garhshankar entered into
          this collusive transaction, whereby Balwant Singh - the then
          Principal became the owner of the suit property. The school
          could not have been divested of the ownership of the suit          G
          property by the so-called exchange mentioned above. This
          was in complete breach of faith and trust by the President of
          the Society and Principal of the School.


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242             SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A            4.3 The ostensible reason given by the Respondents for the
                 exchange was that this was for the benefit of the students in
                 Village Khanni, Garhshankar.
                         This reason was a mere camouflage which is apparent
                   from the fact that the School has not been shifted to Village
B                  Khanni since the date of purported exchange on 25.08.1988
                   i.e. since the past 31 years. The School to date continues to
                   be run from the suit property and adjoining lands.
                        It is obvious that the so-called exchange was a mere
                   ruse to transfer the valuable land of the School which had
C                  been gifted by the mother of the Appellants, to the Principal,
                   in exchange for some unirrigated inferior quality banjar land
                   situated in a remote corner in Village Khanni.
                        Once the School was divested of ownership on the basis
                   of the purported exchange, the Respondents executed a
D                  Lease Deed in favour of the School, wherein the School was
                   now shown as a Lessee, and was required to pay lease rent
                   to the Principal and later his legal heirs.
             5. The purported exchange dated 01.08.1988 and 25.08.1988 being
      wholly illegal, is liable to be quashed and set aside. The Jamabandis
E     reflecting the purported exchange are quashed and set aside. The
      Jamabandis be restored by the revenue authorities in the name of the
      Doaba Public School, Garhshankar, Village Parowal, District Hoshiarpur,
      Punjab.
             The Appeals are allowed accordingly.
F            The Respondents are directed to pay costs of Rs. 1 lac to the
      Appellants herein within a period of 12 weeks, and report compliance to
      this Court.

      Kalpana K. Tripathy                                          Appeals allowed.

G




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