RSA No.1080 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1080 of 1991 Date of Decision: 21.3.2009 Raghbir Singh (dead through LRs.) & Ors. ..Appellants Vs. Jarnail Singh (dead through Lrs.) & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.M.L.Sarin, Sr. Advocate, with Ms.Alka Sarin, Advocate, for appellants No.1 and 2. Mr.R.K.Joshi, Advocate, for appellant No.3. Mr.V.K.Jain, Sr.Advocate, with Mr.Prashant Vashisth, Advocate, for respondent No.1. Mr.Arun Jain, Sr. Advocate, with Mr.Amit Jain, Advocate, for respondenrt No.2. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- RSA No.1080 of 1991 2 Vinod K.Sharma,J. This order shall dispose of RSA No.1080 of 1991 and RSA No. 548 of 1991 titled as Raghbir Singh (dead through LRs.) & Ors. Vs. Jarnail Singh (dead through Lrs.) & Ors., and Tara Singh Vs. Raghbir Singh (dead through LRs.) & Ors., respectively, as both these these appeals have arisen out of the common judgment and decree passed by the learned courts below. Both these regular second appeals are directed against the judgment and decree dated 15.2.1991 passed by the learned Additional District Judge, Hoshiarpur in a suit for joint possession and declaration filed by the plaintiffs Raghbir Singh and others. The plaintiff/respondents brought a suit for joint possession of 3/8th share in the suit property situated in the revenue estate of village Methiana, Tehsil and District Hoshiarpur. The plaintiffs also sought declaration that they are entitled to get land measuring 1 kanals 19 ½ marlas of equal value at the time of partition in lieu of their 1/8th share in 11 kanals 16 marlas of land. Pleaded case of the plaintiffs was that Captain Rai Singh was the owner of suit property detailed in the plaint. Plaintiffs and defendants were the sons and daughters of Captain Rai Singh who died on 4.4.1983. The plaintiffs claimed that Jarnail Singh and Tara Singh defendants No.1 and 2 obtained collusive decrees dated 5.1.1974 and 1.12.1976 in respect of the property bearing No.13/43 and two taurs bearing No.19/1 and 18 in favour of defendant No.1 and property measuring 79 RSA No.1080 of 1991 3 kanals 14 marlas in favour of defendant No.2. Litigation was said to be collusive to deprive the plaintiffs of their rights and interest of the suit property. The case set up by the plaintiffs was that these collusive decrees were not binding on them who have vested right and interest in equal shares in the estate of their deceased father Captain Rai Singh. Possession of the defendants over the suit property was said to be that of a licencee which stood terminated with the death of Captain Rai Singh on 4.4.1983 and thereafter the parties became co-sharers. The plaintiffs being the legal heir of Captain Rai Singh were entitled to 1/8th share each in the suit property and also to the joint possession. It was further pleaded that Jarnail Singh, defendant No.1 sold land measuring 11 kanals 16 marlas out of 127 kanals 12 marlas which has not been included in the present suit and the plaintiffs were, therefore, entitled to get chahi land measuring 1 kanal 9 ½ marlas of their 1/8th share of equal value from Jarnail Singh at the time of partition. Defendants were asked many times to admit the claim of the plaintiffs but they failed to do; hence the suit was filed. Suit was contested by the defendants by raising preliminary objections that the suit was not properly valued for the purposes of court fee and jurisdiction. Plea of limitation was also raised. It was also the case of the defendants that the suit was bad for non-joinder of Ajit Singh etc. On merits, it was pleaded that the suit property was self- acquired property of Captain Rai Singh who died on 5.4.1983 and not on 4.4.1983. Captain Rai Singh acquired the land and built up house in Chak RSA No.1080 of 1991 4 No.84, Layalpur District now in Pakistan and in lieu of that property the suit property and houses were allotted to him after partition of the country in 1947. Plaintiffs were said to have been imparted best education by Captain Rai Singh and they are all well placed. Defendants No.1 and 2 could not get education and they worked with Captain Rai Singh in resettling and cultivation of land allotted in village Mithian, therefore, a registered Will was executed on 11.12.1963 with the sole intention of settling his property among his heirs by way of family settlement. Will was said to be reflection of mind of Captain Rai Singh about the services rendered by defendants No.1 and 2. Defendant No.1 was given land measuring 112 kanals in pursuance to the family settlement dated 11.12.1963 and also the houses and taur referred to in the plaint. Defendant No.1 sold the land measuring 12 kanals 12 marlas and 16 marlas out of land measuring 127 kanals 12 marlas to different persons who are in possession of the land as owners. Suit was, therefore, said to be bad for non-joinder of necessary parties. Plaintiffs were said to have not raised any objections to the family settlement, though they had knowledge of the same. It was the case of the defendants that the plaintiffs were debarred from challenging the family settlement by their act and conduct. Defendants No.1 also claimed to have become the owner of the suit property by virtue of adverse possession. Family settlement was confirmed in the litigation with Captain Rai Singh by virtue of judgment RSA No.1080 of 1991 5 and decree dated 5.1.1974 and 1.12.1976. It was also the case of the defendants that to make suitable provisions for defendant No.2 Captain Rai Singh reaffirmed the settlement of land, houses and taur vide decree dated 18.3.1975 in favour of defendants No.1 and 2 and thus, it was claimed that the plaintiffs were debarred to challenge the family settlement and Will dated 18.3.1975 executed by Captain Rai Singh inasmuch in his handwriting under his signatures which has not been challenged by the plaintiffs. The sale of land measuring 16 kanals and 11 marlas and 16 marlas to Balbir etc by defendant No.1 was not said to be disputed and the transferee were said to be the lawful owners. Thus, the plea of the plaintiffs was controverted by the defendants. Replication was filed in which averments made in the plaint were reiterated stand that of the written statement were denied. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether Rai Singh deceased suffered collusive decree dated 5.1.1974 in favour of Jarnail Singh defendant No.1 if so to what effect? OPP 2. Whether Rai Singh suffered collusive decree dated 1.12.76 in favour of Tara Singh defendant No.1. If so to what effect? OPP 3. Whether the plaintiffs are entitled to joint possession of the suit property to the extent of 3/8th share of? OPP 4. Whether the plaintiffs are entitled to get chahi land RSA No.1080 of 1991 6 measuring 1 kanal 9 ½ marlas from Jarnail Singh defendant No.1 at the time of production of the joint holdings? OPP 5. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? If not what is its valuation? OPP 6. Whether Rai Singh deceased executed valid will dated 11.12.1983 and 18.3.1975? OPD 7. Whether there was family settlement entered into between the parties and their predecessors-in-interest Rai Singh? If so to what effect? OPD 8. Whether the disputed property was the self-acquired property of Rai Singh? If so to what effect? OPD 9. Whether the suit is not within time? OPD 10. Whether the suit is bad for non-joinder of necessary parties? If so to what effect? OPD 11. Relief. Learned trial court took up issues No.1, 2 and 7 together being interconnected. Learned trial court on appreciation of evidence on record, especially the statement of plaintiffs' witnesses recorded a positive finding of fact that the suit property was self-acquired property of Capt. Rai Singh and thus, no other member of the co-parcenary or even his male issues acquired any interest in it by birth. It was also held that Capt. Rai Singh RSA No.1080 of 1991 7 could sell it or make gift of it or bequeath it to any person he liked. Learned trial court for want of proof of family settlement referred to the judgment and decree and also for want of registration was pleased to hold that the judgments and decrees challenged were collusive and inadmissible in evidence for want of registration which did not confer proprietary right on defendants No.1 and 2 as no family settlement has been arrived at. Issues No.1 and 2 were accordingly decided in favour of the plaintiffs and issue No.7 against the defendants. Issues No.6 and 8 were also taken up together. Learned trial court on issues No.6 and 8 was pleased to hold that the disputed property was self-acquired property of Captain Rai Singh and that he had executed a valid Will dated 11.12.1963 and 18.3.1975. In view of the findings referred to above issues No.3 and 4 were decided against the plaintiffs in view of the valid will executed by Captain Rai Singh in favour of defendants No.1 and 2. Issue No.5 was not pressed, whereas on issue No.9 it was held that the suit was within time. On issue No.10, it was held that once it was proved on record that some property was alienated by defendant No.1 and transferees were not impleaded as party no effective relief could be claimed without impleading them as a party. Issue No.10 was also decided against the plaintiff. Consequently the suit was ordered to be dismissed. The judgment and decree passed by the learned trial court was challenged by the plaintiffs, whereas appellant/defendants No.1 and 2 filed RSA No.1080 of 1991 8 cross-objections to challenge the finding on issues No.1, 2, 7 and 9. Finding on issues No.5, 8 and 9 were not challenged. Learned lower appellate court was pleased to reverse the findings of learned trial court on issue No.10 by holding that the plaintiffs in the plaint had pleaded that they were entitled to be compensated from the share of defendant-appellants with regard to the land sold as the sale was within their share, hence the suit was not bad for non-joinder of necessary parties. Learned lower appellate court came to the conclusion that the finding of the learned trial court that the decree required registration could not be sustained as the judgment relied upon by the learned trial court in coming to this conclusion viz. Nachhattar Singh Vs. Smt.Jagir Kaur and others 1985 (2) PLR 593 was over-ruled by the Hon'ble Division Bench of this court in Gurdev Kaur and others Vs. Mehar Singh and others 1989 PLJ, 182, wherein it was held that even if the title was created in favour of the decree holder for the first time under the decree the same did not require registration. Learned lower appellate court was also pleased to hold that a consent decree could be set aside only on the ground on which contract could be set aside that is fraud, misrepresentation or coercion or in case of minors or of persons of unsound mind if they are able to prove that the next friend or the guardian was negligent in conducting the proceedings, but if none of these grounds referred to above is established the court in subsequent suit will have no jurisdiction to go behind the consent decree to RSA No.1080 of 1991 9 find out whether the facts stated in the plaint which culminated into compromise decree were right or wrong. In view of the findings referred to above, learned lower appellate court reversed the findings on issues No.1 and 2 and decided the same against the plaintiffs. However, finding on issue No.7 was maintained. It is pertinent to mention here that an application under Order 41 Rule 27 of the Code of Civil Procedure was moved by the plaintiffs for leading additional evidence to challenge the Wills dated 11.12.1963 and 18.3.1975 to prove the same the result of forgery and not but genuine documents. Plea sought to be raised was that the plaintiffs wanted to produce on record affidavit along with an application moved before the Consolidation Authorities i.e. Exs. P.16, P.17 and P.18 wherein all the legal heirs of Captain Rai Singh were impleaded as party. The application for additional evidence was rejected holding therein that the evidence now sought to be produced was within the knowledge of the plaintiffs before the learned trial court and they could not be allowed to lead evidence to fill in lacunae left in the case, the evidence was, otherwise, held to be not necessary for pronouncement of judgment. The contention of the plaintiff/respondents that the Will dated 11.12.1963 was not proved for want of examination of attesting witnesses was rejected in view of the fact that the Will Ex.D.2 was registered one, and was proved by the subscribe as DW 1 as attesting witnesses had died. The learned court also noticed that in the subsequent Will Ex.D.2 dated RSA No.1080 of 1991 10 18.3.1975 which was written by the testator in his own handwriting the factum of earlier Will dated 11.12.1963 was admitted. Learned lower appellate court, therefore, affirmed the finding that the Will Ex.D.1 was validly executed. Challenge to the Will Ex.D.2 on the plea that this was unregistered was also rejected by the learned lower appellate court by holding that the Will did not require registration. Learned lower appellate court also took notice of the fact that the Will Ex.D.2 was handwritten by Captain Rai Singh which was duly proved by the attesting witnesses i.e. Baldev Singh DW 2 and Balbir Singh DW 3. Learned lower appellate court held that the plaintiffs in the replication have not taken up a plea that the Will was forged and fabricated document but only a plea raised was that Captain Rai Singh was not of sound disposing mind at the time of the execution of the document. This plea was rejected as it was found that the Will was scribed by the testator himself. Will being holograph Will was, thus, accepted in view of the law laid down by Hon'ble Bombay High Court in case Irabasappa Vs. Bhadrawa AIR 1922 Bombay 296. Learned lower appellate court further noticed that in both the Wills the factum of judgments and decrees suffered were also duly mentioned. Learned lower appellate court affirmed the finding on other issues. Learned lower appellate court, however, held that as in the Will dated 18.3.1975 it was mentioned that the land measuring 78 kanals 16 RSA No.1080 of 1991 11 marlas was to be given to Smt. Chinti Devi and after her death it was to be devolved upon Tara Singh defendant. The learned court held that the land measuring 78 kanals 16 marlas was willed away by Captain Rai Singh in favour of his wife Smt.Shanti Devi and thus, the same was to be treated as residue property upon her death, therefore, the plaintiffs were held to be in joint possession of 3/8th share in the land measuring 78 kanals 16 marlas and thus, on issues No.3 and 9 findings were modified. Consequently, cross objections as well as the appeal filed by the plaintiff/respondents were partly accepted. While findings on issues No.1 and 2 were reversed. Plaintiffs were held entitled to joint possession of 3/8th share in the land measuring 78 kanals 16 marlas as detailed and described sub Para B of the plaint. Learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law:- 1. Whether the judgment and decree under challenge is the outcome of misreading of evidence on record and therefore perverse? 2. Whether the learned courts below have misapplied the settled law to record finding against the appellants? 3. Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of document i.e. Will dated 18.3.1975 Ex.D.2? In support of the substantial questions of law learned counsel for the appellants vehemently contended that the learned courts below have RSA No.1080 of 1991 12 misred the judgment and misapplied the law to uphold the judgments and decrees passed by the civil court which were under challenge. The contention of the learned counsel for the appellants is that it is the settled law that a compromise decree can be interfered with in the subsequent suit on the ground on which the contract can be set aside that is if obtained by fraud, mis-representation or coercion as held by the Division Bench of this court in the case of Gurdev Kaur and others Vs. Mehar Singh and others 1989 PLJ, 182. The contention of the learned senior counsel is that in the present case a positive finding of fact was recorded by the learned trial court holding that the family settlement was not proved and consequently, the judgments and decrees could not be held to be valid. It is further the contention of the learned senior counsel for the appellants that once it was admitted and a concurrent finding of fact has been recorded that the property in dispute was self-acquired property of Captain Rai Singh then the judgments and decrees under challenge were required to be registered as title to the property was passed on to the defendant/respondents under the said decree. In support of his contention that the judgments and decrees required registration, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Bhoop Singh Vs. Ram Singh Major and others JT 1995 (6) 534, wherein Hon'ble Supreme Court was pleased to lay down that exception engrafted under section 17 (2) (vi) is meant to cover the decree or order of the court, including a decree or order expressed RSA No.1080 of 1991 13 to be made on compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of value of Rs.100/- or upwards. The contention of the learned senior counsel for the appellants, therefore, was that in the present case the right of defendants No.1 and 2 was created for the first time by way of judgments and decrees and therefore, they required registration and therefore, the findings of the learned lower appellate court on issues No.1 and 2 deserve to be set aside and that of trial court restored. In support of contention that the decree required registration reliance was also placed on the judgment of this court in the case of Smt.Rajini Bajaj and others Vs. Ram Piari 2006 (1) HRR 107; Shailesh Kumar Vs. Mrs Sandhya Gupta 2002 (1) PLR 483 and Rajinder Singh Vs. Joginder Singh and others 2002 (3) PLR 846, wherein this court was pleased to lay down that where no effective family settlement is proved it cannot be said that the decree did not pass right for the first time and thus, the decree required to be registered. Mr.V.K.Jain, learned senior counsel appearing on behalf of the respondents, on the other hand, vehemently contended that the findings of the learned lower appellate court are based on correct appreciation of law and facts brought on record. The contention of the learned senior counsel was that it was not open for the court in subsequent suit to go into the assertions made in the plaint and the decree based on family settlement in favour of the close relations did not need registration nor it was open to the RSA No.1080 of 1991 14 court to go into the merit of the previous suit to find out the correctness of the assertions made therein. It is also the contention of the learned senior counsel for the respondents that in the present case the Will proved on record left no manner of doubt that the decrees were suffered by Captain Rai Singh with his free consent and could not be said to be the outcome of fraud or misrepresentation as contended. In support of the contention that the decreer did not require registration, learned counsel for the respondents placed reliance on the judgment of Hon'ble Supreme Court in the case of Bachan Singh Vs. Kartar Singh & Ors. (2002-2) PLR 512, wherein Hon'ble Supreme Court was pleased to lay down that a consent decree passed by the court did not require registration. Reliance was also placed on the judgment of this court in the case of Hari Singh vs. Gurcharan Singh & Ors. 2003 (3) CCC 183 wherein it was held that once it was proved that the property was not ancestral in the hands of a person who suffered decree and decree is not challenged by him during his lifetime then this course is not available to his successor after his death. It was also held by this court that decree passed on the basis of admission in the absence of any fraud, the said decree is good and valid and could not be ignored on the ground of want of registration. On consideration of the matter, I find no force in the contentions raised by the learned senior counsel for the appellants. In the present case, it was categorically admitted that the suit RSA No.1080 of 1991 15 was filed on the basis of family settlement which was admitted by captain Rai Singh who suffered consent decree. Validity of averments made in the previous plaint could not be a subject-matter in the subsequent suit in the absence of proof of fraud or misrepresentation. Possibility of fraud or misrepresentation was missing as Captain Rai Singh did not challenge the decree during his life time but made specific mention about the decrees in the Will executed in favour of the defendant/respondents. No fault can be found with regard to the findings recorded by the learned lower appellate court on issues No.1 and 2 and qua the finding that in view of the transfer in favour of sons the decree did not require registration. Learned senior counsel for the appellants also challenged the findings of learned courts below upholding the Will Ex.D.2 on the ground that the Will Ex.D.1 was not proved by examining the attesting witnesses as scribe to the Will could not said to be an attesting witness of the Will. In support of this contention reliance was placed on the judgment of Hon'ble Supreme Court in the case of N.Kamalam (dead) and Anr. Vs. Ayyasamy & Anr. JT 2001 (6) SC 219, wherein Hon'ble Supreme Court has been pleased to lay down that where scribe described himself as writer and not as a witness he could not be treated to be the attesting witness. However, this is not the case in the present case. Subscribe did prove the execution of the Will and furthermore, attesting witnesses were dead, and therefore, there was no possibility of producing the attesting witnesses. Will Ex.D.1 is not only proved in view of the statement made by the scribe but also in view of the fact that in the subsequent Will Ex.D.2 RSA No.1080 of 1991 16 factum of the previous will was duly endorsed by the executant. Will was also not challenged for want of execution but on the ground that the executant was not of sound disposing mind and therefore, the judgment relied upon by the learned counsel for the appellant in the case of N.Kamalam (dead) and Anr. Vs. Ayyasamy & Anr.(supra) has no application to the facts of the present case. Learned counsel for the appellants thereafter contended that the Wills Ex.D.1 and D.2 could not be relied upon as disposition in the Will was unfair and improbable and furthermore, the propounder has failed to remove any suspicious circumstance. In