Dismissed

Inderjeet Kaur v. Bank of Baroda and Ors.

DRAT24 May 2024REGULAR APPEAL/65/2018

Case brief

AI extract

What is this about?

, the Appellate Tribunal dismissed the regularization appeal filed by a third-party appellant claiming a 1/6th share in mortgaged property via an unregistered will. Upholding the lower court's view that an unprobated, suspicious will without mutual inheritance history did not establish ownership rights under the SARFAESI Act.

What the court decided

AI extract

Inderjeet Kaur versus Bank of Baroda and Ors. — Succession and Inheritance | DRAT (2024)

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IN DEBTS RECOVERY APPELLATE TRIBUNAL, ALLAHABAD Regular Appeal No. 65/2018

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Inderjeet Kaur, W/o Kanwaljeet Singh, R/o H. No. 8, Sahdevpur Shahabajpur, P.O. Bahadrabad, Tehsil and DistrictHaridwar-249402.

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……….....……………………...………………………………………………..Appellant

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Versus

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Bank of Baroda, having its Branch at Chandra Charya Chowk, Haridwar, Uttarakhand-249401.

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Bank of Baroda having its Branch at Chandra Charya Chowk, Haridwar, Uttarakhand-249401. through its Chairman & Managing Director.

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M/s Khushi Trading Company, 4-Govindpuri, Haridwar, Uttrakhand through its proprietor.

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Taranjeet Singh, S/o Late Kulwant Singh, 4-Govindpuri, Haridwar, Uttarakhand.

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Jaswant Kaur, W/o Late Kulwant Singh, House No. 8, Village-Sahdevpur Shahwajpur, P.O. Rohalki Kishanpur, District-Haridwar, Uttarakhand.

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Gurmeet Kaur, W/o Shri Taranjeet Singh, R/o 4-Govindpuri, District Haridwar, Uttarakhand.

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Gajendra Jeet Singh, S/o Late Avtar Singh, C/o M/s Nirmal Santpura Trust Society, Kankhal, Haridwar, Uttarakhand249408.

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Arvinder Kaur, W/o Gajendra Jeet Singh, C/o M/s Nirmal Santpura Trust Society, Kankhal, Haridwar, Uttarakhand249408.

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M/s Nirmal Santpura Trust Society, Kankhal, Haridwar, Uttarakhand-249408.

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……….….…………..…………………………………………………. Respondents

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Advocates who appeared in this case

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For the appellant Shri Kushal Kant, Advocate For the respondents no. 1 & Shri Satyajeet Mukherjee, 2-Bank Advocate For the respondent nos. 3 to 6 Ex-parte For the respondent nos. 7, 8 & Shri P. K. Pandey, Advocate 9-Auction Purchasers

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JUDGMENT

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Date of Decision: 24.05.2024

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JUSTICE R. D. KHARE, CHAIRPERSON

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The present appeal has been preferred by the appellant under section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest

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Act, 2002 (for short “the SARFAESI Act”) against the judgment dated 31.03.2018 passed by the Presiding Officer, DRT, Dehradun, whereby the Securitization Application No. 06/2018 filed by the appellant was dismissed.

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The brief facts of the matter are, that the appellant is a third party, as she is neither borrower nor guarantor or mortgagor to the credit facilities provided by the respondent nos. 1 & 2-Bank to the respondent No. 3.

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It appears that the property in question was self acquired property by Sardar Kulwant Singh, who had died on 21/10/2013 leaving behind him five children namely Taranjeet Singh, Kanwaljeet Singh, Avneet Kaur, Narender Kaur and Simrandeep Kaur as well as his wife Jaswant Kaur. It is alleged that Sardar Kulwant Singh during his lifetime had executed a Will dated 05/11/2012 in favour of his two sons, three daughters and one daughter-in–law (appellant), who is the wife of Kanwaljeet Singh. The said Will was witnessed by Janak Raj and Gurmeet Singh. It is averred that a Gift Deed was executed on 29/04/2014 by all the legal heirs of deceased Sardar Kulwant Singh in favour of his mother Jaswant Kaur for their respective shares except the appellant.

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It transpires that the respondent no 3 was granted some financial assistance by the respondent-bank. In order to secure the said facility, the respondent no. 5 created an equitable mortgage in favour of the respondent-bank in the year 2015 claiming entire property to be the personal property on the basis of having inherited 1/6^th share from her husband and receiving the remaining share from her children through the aforesaid gift deed dated 29/04/2014. Since the borrower did not repay the loan in terms of the loan agreement, therefore, the account was classified as

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NPA and after issuance of demand notice and possession notice, the respondent-bank issued sale notice on 27/12/2017 and the same was published on 28/12/2017.

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The appellant challenged the action of the respondent bank by filing the Securitization Application no. 06/2018 on 01/02/2018 before the Tribunal below stating inter-alia that she is the owner of 1/6^th share of the property in question and without excluding her share, the bank is auctioning the property in toto, whereas her father-in-law, Late Sardar Kulwant Singh had executed a Will dated 05/11/2012 in favour of his two sons, three daughters and the applicant (daughter-in-law) wife of his son Kanwaljeet Singh. The Tribunal below vide impugned order dismissed the S.A. of the appellant holding that the claim of ownership of 1/6^th share in the property in question by the appellant is not sustainable on the basis of the Will dated 05/11/2012 in absence of probate or letter of administration. Being aggrieved by the said order, the present appeal has been filed by the appellant.

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Learned counsel for the appellant contended that the present appeal has been filed under section 18 of the SARFAESI Act against the impugned order dated 31.03.2018 passed by the DRT, Dehradun in S.A. No. 06/2018. It was further contended on behalf of the appellant that the appellant is daughter-in-law of late Kulwant Singh, who died on 21.10.2013, leaving behind him two sons, three daughters, wife and other surviving legal heirs. It was also contended that An unregistered Will dated 05.11.2012 was executed by late Kulwant Singh, according to which 1/6^th share of the property of late Kulwant Singh was given to the appellant. Learned counsel for the appellant further submitted that the only point open to the court below was to ascertain as to whether the

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Will was genuine or not and whether the same was result of fraud or otherwise. Learned counsel has also argued that both the parties had advanced their arguments before the Tribunal below and also submitted their written submissions, but the Tribunal below did not consider the point as argued by the appellant and held that as the Will was not probated, therefore, the appellant cannot take advantage of the same.

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Learned counsel for the appellant submitted that 1/6^th share of the property in question has been gifted by way of the said Will by father-in-law to the appellant, who was absolute owner of the property in question. The said Will is not disputed. As per the Will, all the surviving legal heirs have been given 1/6^th share each by Late Sardar Kulwant Singh including the appellant. It was further submitted that after death of the father-in-law of the appellant, the remaining five legal heirs have gifted their shares in favour of the appellant’s mother-in-law. The mother-in-law of the appellant has mortgaged the property in question with the respondent-bank, but it was argued that 1/6^th share of the property in question have never been gifted nor mortgaged with the Bank. It was also contended that when the financial discipline was broken by the borrower, proceedings under the SARFAESI Act were initiated, therefore, the securitization application under section 17 of the SARFAESI Act was moved by the appellant stating that her 1/6^th share, which was received by way of the said will, was neither mortgaged nor gifted, therefore, her share may be protected.

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It was further submitted that the Tribunal below has decided the matter on the ground that as per section 231 of the Indian Succession Act, no probate has been obtained by the appellant, therefore, no right has been

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accrued in favour of the appellant by way of the Will executed by her father-in-law Late Sardar Kulwant Singh.

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It was further argued by the learned counsel for the appellant that unregistered Will by which 1/6^th share was given to each surviving legal heirs of the deceased fatherin-law was also acted upon by the remaining beneficiaries by gifting 1/6^th share in favour of mother-in-law of the appellant, therefore, there is no dispute with regard to the share of the appellant. Therefore, it was prayed that the impugned order may be set aside and the appeal may be allowed.

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Learned counsel for the respondent-Bank contended that Sardar Kulwant Singh had expired on 21.10.2013 and the Will was executed on 05.11.2012, which is prior to the death of Sardar Kulwant Singh and the said Will does not find mention in the S.A. No. 96/2017 filed by the other family members of Sardar Kulwant Singh, which was ultimately dismissed on 16.12.2017. It was also contended by the learned counsel for the respondent-Bank that a bare reading of the Will shows that there was various irregularities and improbabilities, which put the said Will under cloud and it was for the appellant to prove it that such Will was executed and was wish of the testator, but the same has not been done by the appellant. Learned counsel for the respondent-Bank has referred to a judgment passed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur, reported in AIR 1977 SC 74 in support of his contention.

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Learned counsel for the respondent-Bank submitted that Late father-in-law of the appellant had six legal heirs including husband of the appellant. All heirs had 1/6^th share each by way of inheritance. As such all the legal heirs have become owners of the property in question after

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death of father-in-law of the appellant and they have gifted their share to the mother-in-law of the appellant on the basis of unregistered Will. It was also argued that appellant was not given 1/6^th share, but her husband has inherited the same, who has gifted the same to his mother, who is mother-in-law of the appellant.

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Learned counsel for the respondent-Bank further submitted that the other legal heirs had filed S.A. No. 96/2017 in which there was no mention of any will allegedly executed by Late Kulwant Singh and the said S.A. was dismissed vide order dated 16.12.2017, therefore, the present S.A. was filed.

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It was further submitted by the learned counsel for the respondent-bank that if the husband of the appellant was alive, then there was no occasion for the father-in-law of the appellant to give any share of the property in question in favour of only one daughter in law and not in favour of other daughter-in-law, when the share of the husband of the appellant was already there. There was also no occasion for late Sardar Kulvant Singh to give double share to the appellant’s husband, therefore, the authenticity of the Will is in doubt and it cannot be relied upon. It was, therefore, contended that the Tribunal below has rightly passed the order impugned. Hence the appeal may be dismissed with heavy costs.

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Learned counsel for the respondents-auction purchasers submitted that they are bonafide purchasers of the property iun question, as they have deposited entire auction amount in accordance with the provisions of the Act and Rules made thereunder. It was, therefore, prayed that the appeal may be dismissed and the order impugned may be affirmed.

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It appears that despite service of notice, the respondents no. 3 to 6 had not appeared, therefore, they were directed to be proceeded ex-parte vide order dated 13.09.2019.

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Having heard the learned counsels for the parties and considering the material available on record, the property in question was self-acquired property of late Sardar Kulwant Singh, who died on 21.10.2013 leaving behind him his wife, two sons as well as three daughters. The appellant is wife of Kanwal Jeet Singh, who is son of the respondent no. 5, mother in law of the appellant. All the sons and daughters had given their respective shares to the respondent no. 5 vide Gift Deed dated 29.04.2014. As such the respondent no. 5 has become absolute owner of the property in question. The loan was advanced by the Bank to the respondent no. 3-proprietorship firm, to which the respondent no. 5 created equitable mortgage over the property in question with the Bank in the year 2015. Since the borrowers did not repay the loan, therefore, the Bank initiated the proceedings under the SARFAESI Act for recovery of its dues, which were challenged by other legal heirs of Late Sardar Kulwant Singh and the same was dismissed vide order dated 16.12.2017. Thereafter, the present S.A. was filed by the appellant claiming her 1/6^th share over the property in question on the basis of a Will dated 05.11.2012, which is said to have been executed by father in law of the appellant.

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The main controversy in the present case is, as to whether the appellant is entitled to get 1/6^th share in the property in question on the basis of the alleged Will dated 05.11.2012 or not?

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It is to be seen that after death of Late Sardar Kulwant Singh, all the legal heirs have inherited the property in question in natural way and not by any document and

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later-on they have gifted their shares to the respondent no. 5, who is their mother, on 29.04.2014, whereas the Will was executed on 05.11.2012, but the same does not find any place in the said deed. The appellant as well as all legal heirs of Late Sardar Kulwant Singh including the witnesses resides at Haridwar, but the said Will was executed at Dehradun, which also casts some doubt. For the sake of argument, if it is presumed that the said Will was executed by late Sardar Kulwant Singh in favour of his all legal heirs including the appellant, even then question arises, as to why the executer had not given a share of the property in question to his wife i.e. respondent No. 5 and as to why the same had not been produced before the authority concerned at the time of mutation of their names in the revenue record, the reason best known to the appellant as well as the other legal heirs. There is nothing on record to show that the appellant had ever tried to get her name mutated in the revenue record on the basis of the said alleged Will. It is also observed that once a share of the property in question had been given by Late Sardar Kulwant Singh to the husband of the appellant, then in my view, there was no occasion for Late Sardar Kulwant Singh to give further 1/6^th share of the property in question to the appellant, wife of his son, who has already taken 1/6^th share of the property in question, because no such share was given to any of the other legal heirs and in this regard, no document has been placed on record, which may show the reason for giving the double share to the appellant in the property in question. It is also stated that if there had been any genuine reason for late Shardar Kulwant Singh for not giving the share to his wife and giving double share to the appellant, definitely, those would have been given in the alleged Will, but no such thing is mentioned in the alleged Will. It is also observed that not even a single legal

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heir has ever claimed his right in the property in question on the basis of the said alleged Will at any point of time. It is also seen that prior to the present S.A., another S.A. bearing No. 96/2017 was filed by other legal heirs, but they have not whispered even a single word about the said Will in the said S.A. If the said Will had been in existence, certainly the same would have been produced by either of the legal heirs before any authority at any point of time, but it appears that the same has never been done. If any document is found to be doubtful, it is duty of the custodian of the said document to prove its authenticity/genuineness. Since the said Will was an unregistered document, therefore, the same was required to be probated by the competent court. Thus the said Will appears to be suspicious and under cloud.

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In order to prove the authenticity the said Will, appellant had only remedy to obtain letter of administration or to get the alleged Will probated from the competent court, but the appellant did not do so. Thus the Tribunal below appears to have committed no irregularity or illegality and has rightly dismissed the S.A. of the appellant holding that the claim of ownership of 1/6^th share in property in question by the appellant as not sustainable on the basis of the alleged Will dated 05.11.2012. As such the order impugned does not call for any interference by this Tribunal and the appeal is liable to dismissed.

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Accordingly, the appeal is dismissed with no order as to costs.

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A copy of this judgment be forwarded to the parties as well as to the DRT concerned.

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CHAIRPERSON

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VN Giri

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Inderjeet Kaur v. Bank of Baroda and Ors.

Case brief

What is this about?

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Inderjeet Kaur v. Bank of Baroda and Ors.

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