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2000 DIGILAW 151 (PAT)

Sidheshwar Singh @ Sidhi Singh v. Janak Singh @ Ram Janak Singh

2000-01-27

P.K.DEB

body2000
JUDGEMENT P.K. DEB, J:- This appeal has been preferred against the judgment and decree passed by the 4th Additional District Judge, Gaya, in Title Appeal no.4 of 1997 (56 of 1975) affirming the judgment and decree passed by the 2nd Subordinate Judge, Gaya, in Title Suit no.240 of 1972. Thus the present appeal is against the concurrent findings of both the courts below. The suit was filed by the plaintiff-respondents for declaration hat the transfer of suit land made by the defendant first party in favour of the defendant second party are not binding on the plaintiffs and in any event cannot endure beyond for the life time of defendant no.1 . The other relief’s sought for by the plaintiffs are for confirmation of possession over the suit land in the alternative recovery of possession in case defendant 1st set be not found in possession of the suit land. 2. The pedigree showing the inter-se relationship between the parties runs as follows:- Baiju Singh Sheo Thakur Jhandu Parshan Charna Singh Singh Singh Singh (died) (deceased) (deceased) (deceased) (issueless) Bahal Basudeo Nankoo Singh Singh Janak Singh Ambika Singh (platt. Singh (PI- No.1) att. no.2) Fauzdar Singh Saudagar Singh Harihar Singh Baiju Singh Sheo Charan Thakur Jandu Parshan Singh Singh Singh Singh Ram Sahay Kusesn Singh Singh (died issueless) Parmeshwar Karoo Singh Satya Narain Singh Sohan Kuer Singh, Died issueless (D.No.1) Desharani Kuer (D.No.2) One Baiju Singh was the original owner. He had four sons, namely, Sheo Charan Singh, Thakur Singh, Jhandu Singh and Parshan Singh. Sheo Nandan Singh died issueless. Thakur Singh had three sons, namely, Bahal Singh Basudeo Singh and Nankoo Singh. Nankoo Singh died issueless and as such, his share becomes extinct. Bahal Singh son of Ambika Singh is the Plaintiff no.2 and Janak Singh son of Basudeo Singh is the plaintiff no.1. Jhandu Singh, the other son of Baiju Singh, died leaving behind two sons, namely, Fauzdar Singh and Saudagar Singh. Saudagar Singh died issueless while Fauzdar Singh's son Harihar Singh is the plaintiff no.3. The fourth son Parshan Singh has got two sons, namely, Ram Sahay Singh and Kishun Singh. Kishun Singh died issueless while Ram Sahay Singh had leaving behind three sons, namely, Parmeshwar Singh, Karoo Singh and Satya Narain Singh. Parmeshwar Singh died issueless while Karoo Singh died leaving behind his widow Sohan Kuer, who is defendant no.1. The fourth son Parshan Singh has got two sons, namely, Ram Sahay Singh and Kishun Singh. Kishun Singh died issueless while Ram Sahay Singh had leaving behind three sons, namely, Parmeshwar Singh, Karoo Singh and Satya Narain Singh. Parmeshwar Singh died issueless while Karoo Singh died leaving behind his widow Sohan Kuer, who is defendant no.1. Satya Narain Singh died leaving behind his wife Deshrani Kuer, who is defendant no.2 in the suit. According to the plaintiffs, Dashrani Kuer was only a maintenance holder as her husband died long before coming of the Hindu Womens Right to Property Act while Sohan Kuer the widow of Karoo Singh had limited ownership as per provisions of the Hindu Womens Right to Property Act. According to the plaintiffs, they are the reversioners of the properties of Karoo Singh. According to the plaintiffs, soon after the death of Karoo Singh his widow Mostt. Sohan Kuer came to the clutches of her Naihar people and under their guidance she started disposing of the properties left by her husband Karoo Singh affecting the rights of the reversionaries i.e. the present plaintiffs so much so that within a year of the death of her husband she along with Deshrani Kuer sold 667 decree of land to her brother Ram Khelawan Singh without any legal necessity. Being aggrieved by this alienation the plaintiffs in the capacity of the reversioners to the estate of Karoo Singh instituted Title Suit no.41 of 1954 in the court of Sub-Judge, Gaya challenging the alienation. In that suit Sohan Kuer, Deshrani Kuer along with Ram Khelawan Singh contested the suit but at the intervention of the well wishers, a compromise decree was effected and accordingly a compromise decree was passed. As per that compromise decree it 'was stipulated that after the death of Sohan Kuer the plaintiffs would be entitled to take khas possession over the rest of the lands as mentioned in Schedule-I. The alienation already made in favour of Ram Khelawan Singh would not be disturbed and the defendant nos.1 and 2 i.e. Sohan Kuer and Deshrani Kuer were authorised to alienate the remaining land only in case of dire legal necessity that too after obtaining prior permission of the Mukhia. According to the plaintiffs, rider was provided with a view to protect the property from damages and also with a view to protect the interest of the reversionaries. According to the plaintiffs, rider was provided with a view to protect the property from damages and also with a view to protect the interest of the reversionaries. Such compromise decree was passed on 16.7.1956 i.e. soon after coming in force of the Hindu Succession Act, 1956 (which came in force in the month of June, 1956). 3. According to the plaintiffs, Sohan Kuer did not adhere to the terms of the compromise and illegally executed several deeds of transfer in favour of her sister and relations without prior approval of the Mukhia of Nagari Awhan Gram Panchayat and without any legal necessity. According to, the plaintiffs, the usufructs of the lands in custody were sufficient for meeting the legal necessity of the two paranashin ladies and hence the suit has been filed for declaration of those deeds void made by the two ladies who were made defendant first set in the suit in favour of the defendant second set 4. Four sets of written statements had been filed by the defendants. The first set by the defendant nos.1 and 2, namely, Sohan Kuer and Deshrani Kuer. The second set of written statement was filed by defendant no.3.Sidheshwar Singh and the third on behalf of Nagina Singh defendant no.5 and the fourth on behalf of defendant no.8 Shyam Pyare Mahto. The sum and substance of all the written statements were practically the same. The defendant no.5 although filed a written statement but did not contest the suit. 5. The stands taken by defendant nos.1 and 2 were that the genealogical table given in para-2 of the plaint is partly incorrect and that the plaintiffs had no connections with the properties left by Karoo Singh. According to them, Parshan Singh the ancestor of the husbands of defendant nos.1 and 2 was not the son of Baiju Singh rather he was the son of one Bali Singh and Baiju Singh had no relationship with Parsan Singh and Bali Singh. Besides Khata no.53 was recorded in the name of Karoo Singh and Parmeshwar Singh along with others and Khata no.99 was recorded in the name of Karoo Singh and others. Besides Khata no.53 was recorded in the name of Karoo Singh and Parmeshwar Singh along with others and Khata no.99 was recorded in the name of Karoo Singh and others. Karoo Singh died in the year 1952 leaving behind defendant no.2 as his sole heir and she came in possession of the entire properties left by him in her own right and the same right became absolute after enactment of Hindu Succession Act, 1956. The earlier compromise decree has been challenged stating the same to be a fraudulent one as the defendant nos.1 and 2 were ladies. Their signatures were taken by the plaintiffs in the earlier suit for the purpose of withdrawal of the suit so that they may not press for costs under the garb of withdrawal of the suit. The plaintiffs surreptitiously filed the compromise petition although actually there were no compromise nor the two ladies had ever signed on such compromise filed on 10.7.1956. Various facts have been stated challenging the existence of the compromise decree. It was lastly concluded by tt1em that such compromise decree was brought into existence by fraudulent means and by conspiracy hatched out by the plaintiffs. It was further asserted that when the compromise decree came into existence then defendant nos.1 and 2 had no limited interest over the property rather by enactment of the Hindu Succession Act already their limited ownership had become absolute and in that way, by so called compromise there cannot be any clog or rider on the absolute right of the defendant nos.1 and 2 over the suit property. The other defendants in their written statements had taken plea that the sales were made in their favour by the defendant nos.1 and 2 for legal necessity and such legal necessity had been averred in the sale deed itself and such legal necessity cannot be challenged by the plaintiffs who have no right over the property as after enactment of 1956 Act the plaintiffs have lost their right to the property of Karoo Singh as reversioners. On the basis of the pleadings of the parties several issues were framed and both parties have adduced both oral and documentary evidence. On the basis of the pleadings of the parties several issues were framed and both parties have adduced both oral and documentary evidence. The original court after considering the materials on record came to the finding that the compromise decree was not fraudulent one but a genuine one passed in Title Suit no.47 of 1955 and such compromise decree accrues estoppel on the defendant nos.1 and 2 to go behind the terms of the compromise decree and such compromise decree was held to be not against the public policy even after enactment of 1956 Act as the said compromise can be construed as a family arrangement between the members of joint family and hence when the same was made by the defendant nos.1 and 2 in favour of defendant second set by various deeds without taking prior permission from the Mukhia of the Nagriawan Gram Panchyat and when no legal necessity could be proved in respect of those sales, such transfer by the defendant first set in favour of the defendant second set are invalid in the eye of law and hence the suit had been decreed. On appeal being preferred against the judgment and decree the appellate court also came to the same finding that the compromise decree is a genuine one and such compromise decree can only form family arrangement and when the two widows had put restrictions of their right voluntarily then such restrictions after getting a seal of the court cannot be said to be without force and violation of such restrictions would render the transfer invalid in the eye of law. The decree granted by the original court had been upheld by the appellate court. While admitting the second appeal a Bench of this Court vide order dated 30.4.1986 had formulated the following substantial questions of law as contemplated under section 100 of the Code of Civil Procedure: (i) Whether when the compromise was effected on the 17th July, 1956 in a suit filed in the year 1954 when the widow was only limited owner in clog with her became absolute owner and she will not be able to transfer and will not be absolute owner on the coming to effect of the Hindu Succession Act, 1956 was illegal and without jurisdiction? ii) Whether when the statute Hindu Succession Act gave an absolute ownership of the property of her husband on the 17th June,1956 could the acquisition of absolute interest be prevented by the plaintiff unless the statute debars that right? 6. Thus, the only point of law to be considered in this appeal as to whether the compromise decree can stand as a clog and as a rider on the absolute right of the defendant first set as conferred on them by the Act, 1956 in exercising their absolute right with indefeasible right of alienation and transfer in favour of the defendant first set. 7. The admitted position remains that the defendant 1st set had limited interest over the suit property along with others which they received from their husbands became absolute after coming into force of the Hindu Succession Act, 1956 which came into force in the month of June, 1956. On application of Section 14 of the Hindu Succession Act, 1956 whatever limited interest is there to a widow or a female heirs becomes absolute on coming into force of the Act. Sub section-2 of Section 14 puts a restriction to the effect that such property must be in possession of the female heir when the Act comes into force to make the same absolute. This interpretation of sub-section-2 has been made by the Apex Court in various judgments and it was reported in AIR 1977 (SC) 1944 (Vaddaboyina Tulasamma and others V. Vaddeboyina Sesha Reddi (dead) L.Rs.) Then there was further development in such interpretation in AIR 1989 (SC) 436 (Pomal Kneji Govind ji and others Vs. Vrajlal Karsandas Purohit and others) and then in AIR 1996 (SC) 855 (Nazar Singh and others V. Jagjit Kaur and others) and 1995 AIR (SCW) 3885 (Mangat Mal (dead) and another Vs. Smt. Punni Devi (dead) and ors.). Now the settled principle remains that even a charge of the property in lieu of maintenance of a female heir would become absolute even if there is no physical possession over the property and the same might be a constructive one. So the legal position remains that whatever right and however limited it might be the female heir had before enactment of 1956 becomes absolute under Section 14 of the Hindu Succession Act, 1956. So the legal position remains that whatever right and however limited it might be the female heir had before enactment of 1956 becomes absolute under Section 14 of the Hindu Succession Act, 1956. An absolute right becomes indefeasible right of the female heir and a clog of such absolute right would be against the statutory right and, as such, would be against the public policy on application of Section 23 of the Indian Contract Act. Reference may be made in this regard to AIR 1997 (SC) 2676 Papaiah Vs. State of Karnataka and ors.) and AIR 1998 (SC) 2909 (Secretary cum Chief Engineer, Chandigarh Vs. Hari Om Sharma and ors.). As per the plaintiffs' case, thus, on principle of law as enunciated above, the present case may be looked into. 8. The admitted position remains that the defendant 1st set had got limited interest over the suit property till the enactment of 1956 Act and considering such limited interest the plaintiffs of the present suit as reversioners had challenged the alienation made by the defendants-1st set in favour of their brothers, in earlier suit i.e. Title Suit no.41 of 1954 and when that suit was pending then 1956 Act came into force and within one month of the implementation of the Act a compromise was effected between the parties at the intervention of well-wishers and Mukhiyas and, as such, compromise decree was passed on 16.7.1956. As per the terms of the decree, the alienation which had already been made by the defendant-1st set was confirmed but in respect of the rest of the properties which the defendant-1st set were in possession was held on consent to be not alienated without the legal necessity that too with the permission (although if construed in depth it was not a permission but only in consultation of) of the Mukhia of Nagriswan Gram Panchayat. If apparently construed such terms of the compromise then this term of taking permission or in consultation of should be construed as a restriction to be on the defendant-1st set in respect of their absolute right of enjoyment, possession and alienation of the property in question. When the right to the property is an absolute one then any restriction put on it would be construed as a clog on the right which is definitely against the public policy and hit by Section 23 of the Indian Contract Act. When the right to the property is an absolute one then any restriction put on it would be construed as a clog on the right which is definitely against the public policy and hit by Section 23 of the Indian Contract Act. The suit of the plaintiffs is based on such restriction being put as per terms of the previous compromise decree. According to the plaintiffs in violation of the compromise decree, further alienation has been made by the defendants-1st set in favour of different members of defendant-2nd set. The defendant in their pleadings have raised objection regarding validity of the compromise decree on various grounds, such as, fraud, coercion etc. but both the courts below had come to the conclusion that such fraud and coercion as raised could not be proved although elaborate discussions are not there to that effect as the decree was a consent decree and the same was not challenged, the same had the effect of a right granted to the adverse party and on this analogy both the courts below proceeded to adjudicate the crux of dispute between the parties. Taking it for granted that the defendants have failed to prove fraud or coercion then also the legality of the terms of the decree is opened to be decided when the plaintiffs are coming up to exercise right on the basis of terms and conditions of the decree. A compromise decree before acceptance or after acceptance could be challenged before the court where the decree was passed under Order 23 Rule 3 of the Code of Civil Procedure and such challenge can be done on the ground of unlawfulness of the decree itself. Before the amendment of 1976 of the Code of Civil Procedure such compromise decree could be challenged both under Order 23 Rule 3 of the Code of Civil Procedure or in a separate suit but after the amendment of 1976, a bal has been put in filing of a fresh suit for challenging the compromise decree and it was incorporated that all challenge regarding the lawfulness of the consent decree can be challenged within the scope of Order 23 Rule 3 of the Code of Civil Procedure. Here in the present case we are not supposed to go in such propositions of law as the consent decree has never been challenged by the defendants-1st set and the same reached its finality but the analogy of the same can be brought to the extent of consideration of lawfulness or otherwise of the compromise decree itself. Only because a compromise decree has reached its finality its lawfulness or legality of any terms in the compromise decree can always be challenged and more so when the matter comes to the court for implementation of such terms and conditions. In that view of the matter, when the restrictions put in the compromise decree is against the public policy then the same terms of the decree could be implemented through the courts of law and in that way, on such terms of the decree the plaintiffs of the present suit are not in a position to claim that a right has been accrued to them to challenge the alienation made by the defendant-1st set in favour of defendant-2nd set in violation of the terms of the decree when the said term itself is an unlawful one being against the public policy. 9. Mr. Kalyan Kumar Ghosh, appearing for and on behalf of the appellants have developed his argument on the above mentioned point and strenuously submitted about the unlawfulness of the terms of the decree by referring to various judgments as mentioned above and also on other judgments. Mr. Dwivedi, learned senior counsel appearing for and on behalf of the respondents has very fairly conceded that the terms of the decree putting a clog on the absolute right of the defendant-1st set might be an unlawful one if it is construed as a compromise decree itself and he had also conceded the legal position of Section 14 of the Hindu Succession Act regarding absoluteness of the right of the defendant-1st set over the suit property, on coming into force of Hindu Succession Act, 1956 and such clog had been put on after coming into force of the Act itself in the compromise decree. But then his submission is that the compromise decree should be construed as a family arrangement between the members of the joint family and such family arrangement is always held to be legal and proper and even on such family arrangement a stranger can also be given some right or a residue in the property. His submission in this respect is with regard to the factum that after coming into force of 1956 Act practically the defendants have got no right as a reversioners over the property. The reversioners' right of the defendants have already come to an end over the suit property after coming into force of 1956 Act and, as such, they may got have any substantial interest over the property subjectively but objectively they have not some interest being the members of the joint family as they might have an interest to the effect that a part of the joint family may not be alienated to stranger to disturb the peace and amity in the enjoyment of the joint family property and in support of his contention he has referred to the judgments of the Apex Court as reported in AIR 1976 (SC) 870 (Dhaneshwarbuwa Guru Purshottambuwa owner of Shri Vithal Rukhamai Sansthan Vs. The Charity Commissioner, State of Bombay) and also AIR 1966 (SC) 323 (Ram Das Vs. Girija Nandini Devi and others) and his contention is that the learned appellate court has rightly construed the terms of the compromise decree as only a family arrangement between the plaintiffs and the defendants-1st set and if in that family arrangement a term has been included putting restrictions and if a party having absolute right over the property voluntarily curtails his right by putting restrictions on such family arrangement then that party is stopped from challenging such curtailment and restrictions put by them and the same can be agitated by other parties to the family arrangement for the purpose of violation of such conditions in the family arrangement. As per established principles of law when the suit was filed, the plaintiffs had no right over the suit property not they can be construed as aspirant heirs or heirs apparent over the suit property as because of the absoluteness of the right being created over the property to defendants-1st set. As per established principles of law when the suit was filed, the plaintiffs had no right over the suit property not they can be construed as aspirant heirs or heirs apparent over the suit property as because of the absoluteness of the right being created over the property to defendants-1st set. In that way, there may not be any cause of action in favour of the plaintiffs when they have no locus stand or cause of action for filing of the suit. But according to Mr. Dwivedi, the right claimed by the plaintiffs are not the right given by the statute but such right has been flown to them from the compromise decree and no positive declaration has been sought for by the plaintiffs but they wanted to get the terms of the compromise decree implemented with a negative declaration. But I have already held that such terms of the compromise decree is against the public policy and, as such, non-implementable as contemplated under Section 23 of the Indian Contract Act. Then Mr. Dwivedi's contention is that the right flows from the terms and conditions of the family arrangement which should be construed in respect of the consent decree itself. But I find on going through the pleadings of the plaintiffs that nowhere there is any averment to the effect that their right had accrued on the basis of family arrangement nor they had ever construed or depicted or stated that the compromise decree itself should be construed as a family arrangement between the plaintiffs and defendants-1st set. Mr. Dwivedi's contention is that it is a matter of law regarding the construction of a document or the nomenclature of it but on one hand the plaintiffs are saying that they want implementation of the terms of the compromise decree, on the other hand, they claimed that they want to implement the terms of the family arrangement. But the implementation of a decree and implementation of a family arrangement definitely stand on different footing but still then I am to consider whether, even if, the consent decree is construed to be a family arrangement then also whether there was really any violation of the term of family arrangement or not. 10. But the implementation of a decree and implementation of a family arrangement definitely stand on different footing but still then I am to consider whether, even if, the consent decree is construed to be a family arrangement then also whether there was really any violation of the term of family arrangement or not. 10. Even if compromise decree is construed to be a family arrangement then also I do not find that such restrictions can be put even by consent by a member of the family curtailing her statutory right and if such terms are included in the family arrangement then also such terms would definitely come within the purview of violation of Section 23 of the Indian Contract Act. In that way, also, in my view, even if the consent decree is construed as a family arrangement then also the same cannot be implemented regarding its terms for the purpose of implementation as the same is against the public policy and hit by Section 23 of the Indian Contract Act. 11. Now I am going to consider the terms of the decree or the family arrangement by whatever name it is called whether the same have been violated and if violated whether the same gives any right or locus stand to the plaintiffs to go for a suit. As per the 1st term of the compromise decree or the family arrangement, whatever might be, the alienation which had already been made by the defendant-1st set have been given the validity although at that time when such alienation was made then the defendants-1st set had only limited interest over the property and the plaintiffs had a right as reversioners and heirs apparent to challenge he same. By the second clause it is enumerated that the defendants-2nd set would only alienate their rest of the property if any legal necessity arises and also with the so called permission of the Mukhiya. Both the courts below and the learned counsel for the respondents had always construed that the clause related to permission of Mukhiya but on close scrutiny of the terms, I do not find that there was any condition imposed that the defendants-1st set can only alienate on prior permission of the Mukhiya of Nagriawan Gram Panchayat. Both the courts below and the learned counsel for the respondents had always construed that the clause related to permission of Mukhiya but on close scrutiny of the terms, I do not find that there was any condition imposed that the defendants-1st set can only alienate on prior permission of the Mukhiya of Nagriawan Gram Panchayat. The word "We masware" as per dictionary means consultation of, taking views of or the advice of but it never means permission and by stretching of imagination the word "Wo masware" can be the synonymous of permission. So the terms of the decree/family arrangement remains that the defendant-2nd set before alienation, may take, may consult or take views or advice of the Mukhiya of Gram Panchyat. A person having absolute right if he sells without consultation of a third party who had no interest over the property then the same alienation can in no case be construed as violation of any terms and conditions. The question of legal necessity etc. for the purpose of alienation is also against the public policy as the same is against the statutory right accrued to the defendants-1st set when the so called compromise decree or family arrangement arrived at and if the sale has been made without consulting a third party then the same cannot be construed to be a violation of the terms and conditions giving adverse right to the other family members or the plaintiffs who had got no right over the property of defendants-1st set at the time of entering into such family arrangement or compromise decree. In my view, the word "Wo masware" used in the terms of the decree is not a restriction or a clog on the absolute right of the defendants-1st set rather non-consultation with the third party having no interest of the property cannot create any barrier in the alienation made by the absolute owner. In that way, also I do not find that the plaintiffs have got any locus standi or cause of action for the suit and the so called restriction as put in the compromise decree or the family arrangement in whatever name it might be called is no restriction in the eye of law. 12. Thus, I hold that both the courts below have arrived at a wrong decision on wrong construction of the compromise decree and the terms and conditions thereof. 12. Thus, I hold that both the courts below have arrived at a wrong decision on wrong construction of the compromise decree and the terms and conditions thereof. The appeal is, thus, allowed. The concurrent judgments of both the courts below are hereby set aside and the suit of the plaintiffs is dismissed with throughout cost in favour of the contesting defendants.