CWP No. 145 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 145 of 2010 Date of decision July 12, 2013 Ajay Aggarwal and others ....... Petitioners Versus Kumari Veena and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Ashok Gupta, Advocate for the petitioners. Mr. Alok Mittal, Advocate for Mr. Akshay Bhan, Advocate for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. The revision is against an order of Executing Court rejecting an application for recovery of possession for execution of a compromise decree. The suit had been filed by the first wife and two daughters of Gian Chand for maintenance of the wife and the daughters. Gian Chand was the first defendant and his second wife and children were the other defendants. In the compromise effected, the plaintiffs received 2 lacs and the recital in the compromise was that in view of the receipt of 2 lacs and retention of four rooms in the house specified the plaintiffs were giving up their right to the property beyond the right to residence in the house CWP No. 145 of 2010 2 property till the life time of the first plaintiff. There is a specific averment in the compromise that the daughters will not have any right in the said property. It is also stated that after life time of the first plaintiff the property will be taken up by Gian Chand and her sons. The first plaintiff has expired and Gian Chand has also expired. The sons were trying to enforce the terms of compromise providing for the possession to be handed over after the life time of first wife. 2. The application for possession in execution was resisted by the surviving daughters through the first plaintiff on a plea that they had not themselves signed in the compromise they were heirs at law to the father and they cannot be compelled to give up their right to the property. There is no enforceable decree for possession under the compromise. These objections were upheld by the Court and the aggrieved sons are the revision petitioners before this Court. 3. I have gone through the compromise terms and the decree and judgment rendered in terms of the said compromise. The relevant portion in the compromise memorandum would be required to be reproduced as under:- “The plaintiff Smt. Ram Murti has in her possession 4 rooms out of which two are on the ground floor and two on the first floor. The stair case is common. There is one bathroom and kitchen which she use till her death. After her death neither she nor her daughters or their legal heirs shall have any share or right. The entire property as it is shall go to Sh. CWP No. 145 of 2010 3 Gian Chand and his sons. The girls born from Smt. Ram Murti or their legal heirs shall have no inheritance rights. They shall not claim the possession. All the members have agreed to this compromise. The possession of Smt. Ram Murti shall continue. The suit shall be directed as per compromise without cost. The room in the ground floor has two doors which shall be partitioned by a wall and parties shall retain the possession in which the meter is installed a lock shall be fixed towards the compound. RO & AC Sd/ASSJ/19.10.85 Sd/SKS Bedi Adv. Sd/-Ram Murti 19.10.85 Sd/- M. L. Gupta, Adv. Sd/- Pinki Aggarwal Sd/-Eng. Sd/-Eng. Sd/- Eng. 19.10.85 19.10.85 19.10.85” 4. It can be noticed that first plaintiff Ram Murti has signed and the third plaintiff Pinki has also signed the document. Counsel for the plaintiffs has also signed. The judgment which has been passed in terms of the compromise also records the fact of payment of various instalments and in paragraph 8 it is stated “ to put it differently, that it is agreed that it shall a life estate of Smt. Ram Murti and her heir shall have no right of succession after her death.” A restriction of interest which a party specifically undertakes and receipt of consideration of `2 lacs by the mother when one of the daughters and yet another daughter represented through counsel have also signed, then the compromise giving up a right in the property beyond the life time of the mother shall be taken as fully supported by consideration and binding on the daughters. The succession to the father's would arise if only the father himself had CWP No. 145 of 2010 4 retained his property as exclusive owner. On the other hand, compromise terms reveal that after the life time of the plaintiff and the first defendant the property will go to the sons. The sons have moved this petition for possession. 5. The contention that there is no executable decree has to be only rejected for the term of the compromise admits of no doubt that the property has to be handed over possession to the sons after the life time of the first plaintiff. It should only be taken as the parties understanding that if possession is not handed over then it shall be handed over through Court process. I will not allow for a needless technicality to prevail and force the parties to a suit for independent action for possession. If the daughters have no right under the compromise, driving the parties to a separate suit cannot benefit either parties. 6. The order passed denying the right to possession to the sons who are parties to the suit is erroneous and is set aside. The civil revision is allowed and delivery of possession is ordered. (K. KANNAN) JUDGE July 12, 2013 archana