Delhi High Court
U.O.I & Anr vs Kashmiri Lal Maini on 10 November, 2008
Author: Mukul Mudgal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
8.
+ LPA No. 2305-06/2006
DATE OF DECISION: 10th November, 2008
U.O.I & ANR ..... Appellants
Through: Mr. Sanjeev Sachdeva, Advocate.
versus
KASHMIRI LAL MAINI ..... Respondent
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?
JUDGMENT
MUKUL MUDGAL, J: (ORAL)
C.M. No. 16717/2006 (delay)
1. For the reasons mentioned in the application, the application is
allowed and the delay of 258 in filing the appeal is condoned.
2. The application stands disposed of.
LPA 2305/2006 & C.M. No. 16716/2006 (stay)
3. This appeal challenges the order of the learned Single Judge
dated 4th January, 2006.
4. The issue involved in the present appeal relates to unearned
increase sought to be levied by the Union of India (for short 'UOI') on
a transfer of property bequeathed by a father-in-law to a son-in-law by
way of a Will. The relevant portions of the impugned judgment passed
by the learned Single Judge holding against the UOI read as follows:-
" 8. The same has been denied on the ground that
the petitioner being outside the family of the
recorded owner, transfer by and under the will
attracts unearned increase and till the same is paid,
transfer cannot be allowed.
9. Issue is squarely covered by the decision of the
Hon'ble Supreme Court reported as 2003 7 (SCC)
301 DDA Vs. Vijaya C.Gursahney. Their Lordships
of the Supreme Court have held that where under a
will property is bequeathed to a family member and
on proof that the transfer is without consideration
i.e., there is no inducement in the will and no money
has flowed from the beneficiary under the will to the
testator, property has to be mutated without
charging unearned increase.
10. Petitioner is not a stranger to the recorded
owner. He is the son-in- law of Munshi Ram Kapur.
It cannot therefore be said that the will is,
primafacie, tainted by consideration.
11. Writ petition accordingly stands disposed of with
a direction to the respondent to consider the
application filed by the petitioner on the basis of the
will dated 2.7.1990 executed by Munshi Ram Kapur.
Respondent would be permitted to hold an enquiry
to ascertain whether any consideration passed
between the petitioner and Munshi Ram Kapur
during his life time. If it is found that the will is
genuine and without any consideration, necessary
mutation would be effected without charging any
unearned increase. If it is found that the will is
actually a sale and consideration passed between
the petitioner and his father-in-law, respondent
would be entitled to refuse mutation till unearned
increase is paid."
5. We have noticed that the learned Single Judge has indeed given
permission to the UOI to hold an enquiry to ascertain whether the Will
was actually a sale and consideration passed between the petitioner and
the father-in-law and in such a situation, the Appellants have been held
entitled to refuse mutation till unearned increase was paid.
6. Mr. Sachdeva, learned counsel appearing for the Appellants has
submitted that since a permission for sale was earlier sought and later
on a Will was propounded, suggests that the Will was manufactured to
avoid payment of unearned increase.
7. In our view, paragraph-11 of the impugned judgment sufficiently
protects the interest of the UOI, which have been sought to be espoused
by the learned counsel for the Appellant. Accordingly, we are satisfied
that since the UOI has been given an opportunity to ascertain the
motive and the bona fides of the transaction, the impugned judgment
delivered by the learned Single Judge does not call for any interference
by this Court.
8. The appeal and the pending C.M. No. 16716/2006 for stay are
dismissed and stand disposed of accordingly.
MUKUL MUDGAL, J
MANMOHAN, J
NOVEMBER 10, 2008
sb
