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2001 DIGILAW 973 (PNJ)

Gurdev Singh v. Nachhattar Singh

2001-09-04

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - Gurdev Singh and his mother Smt. Harnam Kaur, who were defendant Nos. 1 and 2 in the trial Court, have filed the present regular second appeal and it has been directed against the judgment and decree dated 7.4.1999 passed by the Court of Additional District Judge, Bathinda, who allowed the appeal of the plaintiffs, namely, Nachhattar Singh, Pritam Singh and Daler Singh by setting aside the judgment and decree of the trial Court and the suit of the plaintiffs was decreed and a declaration was granted in their favour that the decree dated 21.7.1993 suffered by Smt. Harnam Kaur (defendant No. 1) in favour of her son Gurdev Singh (defendant No. 1) is void and ineffective qua the rights of the plaintiffs and defendant No. 3 Kattar Singh and all the five brothers, including their mother Smt. Harnam Kaur are in joint possession of the land though the land is still owned by Smt. Harnam Kaur. 2. The brief facts of the case are that plaintiffs namely, Nachhattar Singh, Pritam Singh, Daler Singh and Gurdev Singh and Kattar Singh (respondent Nos. 1 and 3) are the sons of Smt. Harnam Kaur, who is still alive. The case set up by the plaintiffs in the trial Court is that Smt. Harnam Kaur was the owner of 1/3rd share of the suit land measuring 378 kanals 9 marlas. She resides with the plaintiffs and they look-after and provide basic necessities to her. It is the case of the plaintiffs that Smt. Harnan Kaur, being spend-thrift, was wasting the income of the property. Due to this, there used to remain a dispute between the parties. In order to settle the dispute, a family settlement took place between the parties on a Lohri day in 1988. The suit land was given to the plaintiffs by the defendants in equal shares. The possession was also delivered to the plaintiffs and they are in continuous possession. The mutation of the suit land could not be changed in the names of the plaintiffs and in the revenue record. Defendant No. 2 Smt. Harnam Kaur is still shown as owner in the revenue record. The possession was also delivered to the plaintiffs and they are in continuous possession. The mutation of the suit land could not be changed in the names of the plaintiffs and in the revenue record. Defendant No. 2 Smt. Harnam Kaur is still shown as owner in the revenue record. Taking advantage of these entries and in order to grab the share of the plaintiffs, defendant No. 1 Shri Gurdev Singh filed a suit for declaration against Smt. Harnam Kaur without impleading the plaintiffs and defendant No. 3 Shri Kattar Singh as a party. He obtained a decree on 21.7.1993 regarding the suit land against Smt. Harnam Kaur. The decree is illegal, null and void inter alia on the ground that the suit land was given to the plaintiffs on the day of Lohri in 1988 in view of the family settlement. Possession was delivered to the plaintiffs. Defendant No. 1 was having the knowledge of the family settlement, therefore, defendant No. 2 Smt. Harnam Kaur was not the owner of the suit land after Lohri in 1988. Defendant No. 1 is issueless. No family settlement took place between defendant Nos. 1 and 2. Plaintiff Shri Nachhattar Singh never appealed in the Court in Civil Suit No. 326 of 1992 and did not suffer any statement. In the statements of Nachhattar Singh and Kattar Singh it was stated that they are four brothers. In fact, they were five brothers. The judgment and decree dated 21.7.1993 obtained by Shri Gurdev Singh against Smt. Harnam Kaur has been obtained after concealing the material facts. The plaintiffs averred that by way of family settlement allegedly held on the day of Lohri in 1988, the land in dispute had fallen to their share and, therefore, any decree suffered by Smt. Harnam Kaur in favour of her son Shri Gurdev Singh, is not binding on the rights of the plaintiffs. 3. Notice of the suit was given to the defendants and the suit was contested by defendant Nos. 1 and 2. Defendant No. 3 did not appear. Defendant Nos. 3. Notice of the suit was given to the defendants and the suit was contested by defendant Nos. 1 and 2. Defendant No. 3 did not appear. Defendant Nos. 1 and 2 raised the objections that the plaintiffs have no locus standi to file the suit; that suit is not maintainable in the present form; that the plaintiffs are not in possession of any part of the suit land; that no family settlement took place between the parties; that defendant No. 2 never parted with the suit land in favour of the plaintiffs; that plaintiffs have no locus standi to challenge the decree dated 21.7.1993; that plaintiff No. 1 is unmarried, plaintiff No. 2 is in service; plaintiff Nos. 1 and 3 are residing in village Bhalaur. None of the plaintiffs is residing with defendant No. 2. In fact, defendant No. 1 is residing with defendant No. 2 in village Sandhoha. Defendant No. 1 looks after defendant No. 2 Smt. Harnam Kaur. Defendant No. 2 on her free will gave the suit land to defendant No. 1 and, therefore, the plaintiffs have no locus standi and cause of action to file the said suit. The suit has been filed in order to harass the defendants. It is bad for non- joinder of necessary parties. On merits, it was also reiterated by defendant Nos. 1 and 2 that no family settlement took place between the plaintiffs and defendant No. 2. The decree has been correctly suffered by defendant No. 2 in favour of defendant No. 1. 4. From the pleadings of the parties, the trial Court framed the following issues : 1. Whether the decree dated 21.7.1994 passed in Civil Suit No. 326 dated 26.8.1992 is illegal, null and void and not binding upon the plaintiffs being result of fraud and mis-respresentation ? OPP 2. If issue No. 1 is proved, whether the plaintiffs are entitled to declaration and permanent injunction prayed for ? OPP 3. Whether the plaintiffs have no locus standi and cause of action to file the present suit ? OPD 4. Whether the suit is not maintainable in the present form ? OPD 5. The parties led evidence in support of their case and on the conclusion of the proceedings, issue No. 1 was decided against the plaintiffs and in favour of the defendants. Issue No. 2 was also decided against the plaintiffs. Issue Nos. OPD 4. Whether the suit is not maintainable in the present form ? OPD 5. The parties led evidence in support of their case and on the conclusion of the proceedings, issue No. 1 was decided against the plaintiffs and in favour of the defendants. Issue No. 2 was also decided against the plaintiffs. Issue Nos. 3 and 4 were decided against the defendants. Resultantly, the suit of the plaintiffs was dismissed by the Civil Judge (Junior Division), Bathinda vide his judgment and decree dated 5.12.1997. The unsuccessful plaintiffs filed an appeal before the Court of Additional District Judge, Bathinda, who for his own reasons, which are given in paragraphs 8 to 16 the impugned judgment and decree dated 7.4.1999, decreed the suit of the plaintiffs-respondents and granted a declaration as stated above in the earlier part of the judgment. The reasons are as follows: "8) On hearing the learned counsel for the appellants Shri Thana Singh and Shri Kulwinder Singh, learned counsel for the respondents and from the persual of the record, the main points for determination in this case is to test :- i) Whether the decree dated 21.7.1993 is illegal and void as alleged by the plaintiffs/appellants on the ground of fraud and exclusion which is unlawful? ii) Whether the above decree is barred and cannot be challenged on the grounds mentioned in the written statement including bar of Order 23, Rule 3 C.P.C. ? iii) Whether there is concealment of facts about the number of the brothers of the plaintiffs and a wrong person was presented in the Court in place of plaintiffs Nachhattar Singh and Kattar Singh, defendant No. 3 and decree is mala fide and not binding on the plaintiffs ? iv) What is the effect of compromise Exhibit D-1 about the land situated at village Bhalur between the plaintiffs and his brothers of their parental family on the suit property which belong to Harnam Kaur for her own perental family ? iv) What is the effect of compromise Exhibit D-1 about the land situated at village Bhalur between the plaintiffs and his brothers of their parental family on the suit property which belong to Harnam Kaur for her own perental family ? 9) On hearing the learned counsel for the parties Shri Thana Singh for the appellants, Shri Kulwinder Singh for the respondents and from the perusal of the record, all the above points stand determined congenial to the appellants as they are found not only to be the victims of fraud but they are found to be unlawfully excluded from the property of their mother by consent decree under challenge dated 21.7.1993 which is a collusive and not an honest consent decree. 10) Points No. 1 to 3 are being taken together. Admittedly, the consent decree Exhibit P-8 is only on the basis of admission in written statement and is not based on a deed of compromise, so there is no question of bar of the subsequent suit u/O 23 Rule 3 C.P.C. as it is not applicable to the decree under challenge being only on the basis of admission and not a compromise. 11) It is admitted case of the parties that not only all the three appellants/plaintiffs Nachhattar Singh, Pritam Singh and Daler Singh were ignored but their brother Kattar Singh defendant No. 3 was also ignored and the only beneficiary was Gurdev Singh, who is unmarried and issueless. So out of five brothers who are sons of same Harnam Kaur, four were ignored by defendant No. 1 Gurdev Singh who got a collusive decree from his mother Harnam Kaur about her parental property at village Sandoha which is sufficient for agricultural land measuring 378 kanals 9 marlas in which Harnam Kaur had 1/3rd share. According to Gurdev Singh, D.W.2, Nachhattar Singh had appeared in the said consent decree, but there was nobody else in his place, but on this score, his own mother Harnam Kaur admitted as D.W. 1 that Nachhattar Singh plaintiff did not appear in the said (collusive) decree case. He had sent her son Kattar Singh who gave his willingness about the decree. Such a willingness even if she is believed is meaningless. He had sent her son Kattar Singh who gave his willingness about the decree. Such a willingness even if she is believed is meaningless. She further admitted that her other sons Pritam Singh and Daler Singh had not appeared in Court and she admitted that whatever decree she had suffered in favour of her son, there is no written document about the same. This admission is sufficient to conclude that she was instrumental in the hands of her son Gurdev Singh who produced somebody else in place of Nachhattar Singh and stated that they are only four brothers, but in fact they were five brothers, so there was a mischief/fraud with the Court and even if Kattar Singh gave statement copy Exhibit P-9 before the said Court, the same has no value because he was not impleaded as defendant and Nachhattar Singh is found misrepresented by somebody else and signatures on Exhibit P-1 are found not liked with the signatures of Nachhattar Singh as per report of the Expert Anil Kumar Gupta, P.W. 1, though the questioned thumb impression Q1 was unfit for comparison, but it is established that it was not Nachhattar Singh but there was somebody else who put the thumb impression Q1. All these facts are proved from P.W. 2 Nachhattar Singh. So even if there was some compromise Exhibit D-1 about the land which is a minor part of land at village Bhallur, which is otherwise vague as description of the agricultural land is not given which is meaningless to justify the consent decree Exhibit P-8. 12. There is sworn evidence of Nachhattar Singh P.W. 2 who deposed that their mother Harnam Kaur had given the land to all the five brothers including them and they are in possession and decree obtained by defendant No. 1 is wrong as he never appeared in any Court nor made any statement and in his place, defendant No. 1 Gurdev Singh had made to stand some bogus person. Had he been wrong, the thumb impression appended by him on his statement could have been got compared by defendants by producing any counter expert to rebut the evidence of P.W. 1 Shri Anil Kumar Gupta, Documents Expert, but it was not done, so that was the hidden guilty intention of Gurdev Singh. Had he been wrong, the thumb impression appended by him on his statement could have been got compared by defendants by producing any counter expert to rebut the evidence of P.W. 1 Shri Anil Kumar Gupta, Documents Expert, but it was not done, so that was the hidden guilty intention of Gurdev Singh. In such circumstances, the passing of the impugned decree dated 21.7.1993 Exhibit P-8 is found to be not only the result of fraud, but it is otherwise inequitable, unlawful and there is element of conclusion/fraud and said Gurdev Singh is found to have knocked the door of the said Court with guilty intention. About such like judgment/decree obtained by fraud, it is held to be a nullity. This view was taken by Honble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, 1994(2) CCC 131 in which it was observed as under : "The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legally duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence." The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Property-grabbers, Tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." 13. It is admitted case of the appellants/plaintiffs from the mouth of Harnam Kaur, their mother who appeared as D.W.1. that all the plaintiffs were not present nor they were party in said decree Exhibit P-8 including Kattar Singh her fourth ignored son. He can be summarily thrown out at any stage of the litigation." 13. It is admitted case of the appellants/plaintiffs from the mouth of Harnam Kaur, their mother who appeared as D.W.1. that all the plaintiffs were not present nor they were party in said decree Exhibit P-8 including Kattar Singh her fourth ignored son. So all the four brothers are prejudiced from the said decree which is not binding on them and about such a decree it has been observed in State of Punjab v. Amar Singh etc., 1974 Current Law Journal 490 as under :- "A few decisions of this Court bearing on the efficiency of consent decree were cited at the bar and they are exhaustively dealt with in Chari v. Soshadri 1973(1) S.C.R. 761. The other rulings of this Court - all rendered under the Rent Control Law - are Bahadur Singh v. Musi Subrat, 1969(2) S.C.R. 432, Kaushalaya Devi v. K.L. Bansal, 1969(2) S.C.R. 1048 and Ferozi Lal Jain v. Man Mal, 1970(3) S.C.R. 181. The core principle or ratio that is revealed in these cases is that in cases where a statute embodies a public policy and consequentially pressites (prescribes ?)the presence of some conditions for grant of reliefs, parties cannot by-pass the law by the exercise of a consent decree or order and mere judicial imprimatur may not validate such decree or order where the Court or tribunal is not seem to have applied its mind to the existence of those conditions and reached its affirmative conclusion thereon. Such mindless orders are a nullity but where the stage of the proceedings, the materials on record and/or the recitals in the razi disclose the application of the judicial mind, the order is beyond collateral attack merely on the score that it does not ritualistically writs into the judgment what is needed by the statute. The important fact of the law clarified in these decisions is that where high public policy finds expression in socio-economic legislation contractonal arrangements between interested individuals sanctified into consent or compromise decree or order cannot be binding on instrumentalities of the State called upon to enforce the statute, although the tribunals enjoined to enforce the law may take probative note of the recitals in such compromise or consent statements in proof of acts which their jurisdictions may have to be exercised. Further, if there is no evidence either by way of admissions in consent statements and razis or otherwise on the record, the reliefs sanctioned by the statute cannot be granted and orders or decrees which purport to grant them sans proof of the legal requirements will be a nullity." 14. Leaving beside the above decree Exhibit P-8 is found to be creating a right in Gurdev Singh for the first time and he is found to be avoiding registration besides concealment of other facts, so such a decree is also not binding and has no legal force in view of Bhoop Singh v. Ram Singh, AIR 1996 SC 196 in which it was observed as under : "We have to view the reach of clause (vi), which is an exception to sub- section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in immovable property of the value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order." 15. As a result of above discussion, the decree dated 21.7.1993 is found to be the result of fraud and is discriminating to the plaintiffs/appellants including Kattar Singh their brother, so same is liable to be set aside, as it is not binding on the ignored brothers/plaintiffs, so all these points stand determined in favour of the appellants. 16. So far as the compromise Exhibit D-1 is concerned, it is vague and only relates to certain land at village Bhallur in which the parties have (sic) appreciated the controversy. His entire approach to the matter was totally erroneous. He has not realised the fact that the property in the hands of Smt. Harnam Kaur was her exclusive property. The first appellate Court had also not appreciated that the plaintiffs could not be co-parceners with Smt. Harnam Kaur. They have no pre-existing right in the estate held by Smt. Harnam Kaur. There could not be any family settlement. He has not realised the fact that the property in the hands of Smt. Harnam Kaur was her exclusive property. The first appellate Court had also not appreciated that the plaintiffs could not be co-parceners with Smt. Harnam Kaur. They have no pre-existing right in the estate held by Smt. Harnam Kaur. There could not be any family settlement. The family settlement allegedly taken place on the day of Lohri in 1988 has never seen the light of the day nor there is any evidence to prove that the family settlement was reported to the revenue authorities and it was got implemented in the revenue record. It was never acted upon. Smt. Harnam Kaur is still alive and she has not challenged the decree either on the ground of fraud etc. During the life time of Smt. Harnam Kaur the plaintiffs Nachhattar Singh, Pritam Singh and Daler Singh would not have the locus standi to challenge the decree dated 21.7.1993. 6. The case set up by the plaintiff-respondents in the trial Court was that Smt. Harnam Kaur was the owner of 1/3rd share of the suit land measuring 378 kanals 9 marlas. In this capacity, Smt. Harnam Kaur was the fulfledged owner of the property falling to her share by virtue of the provisions of Section 14 of the Hindu Succession Act. Similarly she is held to be full-fledged owner. She could alienate her property in any manner and if she had suffered a decree dated 21.7.1993 in favour of her son Gurdev Singh defendant No. 1, the plaintiffs during life time of Smt. Harnam Kaur could not challenge the decree. It is open to the owner Smt. Harnam Kaur to challenge the decree on the ground of fraud etc. Rather in the trial Court Smt. Harnam Kaur has joined with her son Gurdev Singh and the suit of the plaintiffs has been contested jointly. In these circumstances, a reasonable inference can always be drawn that Smt. Harnam Kaur wanted to suffer a decree voluntarily in favour of Gurdev Singh who has become the owner of the suit land on the basis of the decree dated 21.7.1993. In these circumstances, a reasonable inference can always be drawn that Smt. Harnam Kaur wanted to suffer a decree voluntarily in favour of Gurdev Singh who has become the owner of the suit land on the basis of the decree dated 21.7.1993. As the decree has been obtained in the year 1993, even after the lapse of seven years, Smt. Harnam Kaur has not contested the decree, rather during the course of submissions, learned counsel for the appellants has shown to me a photocopy of the registered will executed by Smt. Harnam Kaur in favour of her son Gurdev Singh and this will has been executed by her keeping in view the fact that even if the High Court affirms the decree of the trial Court, still the property must go to Gurdev Singh on the basis of the registered will which she has executed during the pendency of this litigation in favour of Gurdev Singh. Be as it may, the fact remains that Smt. Harnam Kaur has never given challenge to the decree dated 21.7.1993. She has even taken the stand in the trial Court that there was no family settlement between the plaintiffs and defendant No. 2. In order to arrive at a family dispute, it has to be established a prima facie that the parties to the family settlement had a pre-existing right in the property. The plaintiffs had no pre-existing right in the estate held by Smt. Harnam Kaur. She was a full-fledged owner of the property, and therefore, she can bequeath her property in any manner in which she likes. There was no restriction imposed upon her under any decree, will, grant etc. By virtue of the provisions of Section 14(1) of the Hindu Succession Act she was full-fledged owner of the property and, therefore, she has suffered a decree in favour of Gurdev Singh. Neither the plaintiffs nor Kattar Singh can raise the cry against that decree. Smt. Harnam Kaur appeared as D.W. 1 in the trial Court and she deposed that she had given the land situated in village Sandhoha to her son Gurdev Singh and the land situated in village Bhalpur was left for the plaintiffs. She denied any settlement between her and the plaintiffs regarding the suit land. She further deposed that defendant No. 1 Shri Gurdev Singh has been looking after her. She denied any settlement between her and the plaintiffs regarding the suit land. She further deposed that defendant No. 1 Shri Gurdev Singh has been looking after her. In these circumstances, no fault lies with Smt. Harnam Kaur, if she has given the property during her life time by suffering a decree dated 21.7.1993 in favour of her son Gurdev Singh. Had there been any family settlement between Smt. Harnam Kaur and her five sons, then there would have been no difficulty on her part to suffer a decree in favour of all her sons jointly. The first appellate Court has unnecessarily presumed that the decree dated 21.7.1993 has been suffered by Smt. Harnam Kaur in a collusive manner or that Shri Gurdev Singh had prevailed upon the will of his mother or that he had obtained the decree by virtue of fraud etc. In the said suit only Smt. Harnam Kaur was required to be a party. She appeared before the Court and gave a statement that she wants to suffer a decree in favour of her sons. In the present suit also, she has taken a joint stand with her son Gurdev Singh. She has suffered a decree in a rightful manner and she stated that there is no family settlement between her and the plaintiffs. In these circumstances, the suit of the plaintiffs is not legally maintainable during the life time of Smt. Harnam Kaur. Even the plaintiffs/respondents are not prepared to say that the decree dated 21.7.1993 is bad for non-registration because the plea which could be availed of by Smt. Harnam Kaur can only be agitated by the present plaintiffs after her death. Similarly Harnam Kaur has never challenged that decree either on the ground of non-registration or on the ground of fraud, misrepresentation, coercion, duress. Till today she is supporting the decree. Not only this, she has even executed a will in favour of Gurdev Singh. 7. In these circumstances, a mis-carriage of justice has been done to the appellants by setting aside the judgment and decree of the trial Court which rightly dismissed the suit of the plaintiffs/respondents. Resultantly, I allow this appeal, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court which rightly dismissed the suit of the plaintiffs/respondents with costs. Appeal allowed.