Regular Second Appeal No.2698 of 1983 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Regular Second Appeal No.2698 of 1983 (O&M) Date of Decision: April 18, 2011 Smt.Zehro .....Appellant v. Balbir Singh ....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Alok Jain, Advocate for the appellant. Mr.Adarsh Jain, Advocate for the respondent. ..... RAM CHAND GUPTA, J. 1. Facts leading to the present regular second appeal are as under:- 2. Present appellant-plaintiff was owner in possession of the land in dispute, duly described in para no.1 of the plaint. Respondent-defendant is claiming right over the said land on the basis of judgment and decree dated 19.7.1976, allegedly passed in his favour and against the present appellant-plaintiff. However, the plea has been taken that the said decree is illegal, void and a result of fraud being committed upon the appellant- plaintiff and that as respondent-defendant intends to take illegal possession of the suit land from appellant-plaintiff on the basis of said decree, the present suit has been filed for setting aside the said judgment and decree on the ground that no summons were ever issued by the Court to present appellant-plaintiff in that suit, i.e., Suit No.256 dated 17.7.1976; that respondent-defendant was never adopted by appellant-plaintiff and was never treated by her as her adopted son; that she is an illiterate lady and that she was having full faith on respondent-defendant, who is son of her one of the daughters; that she had made settlement of her entire property including the suit land in favour of all children of her five daughters after her death and till then she was to remain owner in possession of the same and that the Regular Second Appeal No.2698 of 1983 (O&M) -2- said settlement was made by her in the presence of her relations and respondent-defendant was only deputed to arrange the formalities of the same and, however, respondent-defendant got the impugned decree passed in his favour, without explaining the same to the plaintiff, after misrepresenting that the land is being given after her death to all her grand children from all five daughters and, hence, she thumb marked the written statement and also thumb marked in the Court on the representation of respondent-defendant; and that she came to know about the alleged fraud when respondent-defendant tried to take illegal possession of the land in dispute. 3. The suit was contested by respondent-defendant by taking the plea that the decree was suffered by the appellant-plaintiff by her free will and she also got the mutation of the land in dispute sanctioned in favour of respondent-defendant by appearing before the Revenue Officer. Plea has also been taken that statement given by her in the Court was also read over to her and that the factum of adoption was also enquired into by the then Sub Judge, Kaithal, and after being satisfied, the decree was passed against her by the Court. Plea has also been taken that she herself brought the respondent-defendant in the Court and got filed a suit by him against her and that she appeared before the Court of her own will and hence, there was no need to issue any summons. He also stated that she engaged a counsel and filed admitted written statement, which was also read over to her and that the nature of the suit was also explained to her by the then Sub Judge, Kaithal, and that she thumb marked the statement after admitting the same to be correct. Factum of family settlement has been admitted. However, plea has been taken that in the said settlement the land in dispute was given by her to the respondent-defendant. 4. From the pleadings of the parties, following issues were framed by learned trial Court for adjudication:- “1. Whether the plaintiff is in possession of suit land? OPP 2. Whether the decree in question was obtained by the defendant by playing fraud and by mis-representation of facts, as alleged in para nos.6 and 7 of the plaint and is void? OPP 3. Whether the plaintiff is estopped by his own act and Regular Second Appeal No.2698 of 1983 (O&M) -3- conduct as alleged in para nos.1 and 2 of the pre-objections of the written statement? OPD 4. Whether the plaintiff has got no cause of action? OPD 5. Relief. Additional issue: Whether the suit is not maintainable as alleged in preliminary objection of para 5 of the amended written statement.” 5. Parties adduced evidence in support of their respective contentions before learned trial Court. Issue no.1 was decided against appellant-plaintiff. Issue no.2 was also decided against the appellant- plaintiff and in favour of respondent-defendant holding that decree in question was perfectly legal and valid and binding on the appellant- plaintiff. While deciding issue no.2, it was also held that respondent- defendant was adopted by her as her son. Issues no.3 and 4 were decided against respondent-defendant. Additional issue was held to have become redundant in view of subsequent amendment in the plaint. As a result of findings on various issues, suit filed by present appellant-plaintiff was dismissed vide judgment and decree dated 21.11.1981. 6. Aggrieved against the said judgment and decree, present appellant-plaintiff filed an appeal before learned Additional District Judge, Kurukshetra, which was dismissed vide judgment and decree dated 3.11.1983. However, finding of learned trial Court, while deciding issue no.2 that respondent-defendant was adopted as a son by the appellant- plaintiff, was reversed. 7. Aggrieved against the said judgment and decree passed by learned first appellate Court, the present regular second appeal has been filed by appellant-plaintiff, which was admitted by this Court vide order dated 13.1.1984, without framing substantial questions of law. 8. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, AIR 1978 Punjab and Haryana 137, had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no Regular Second Appeal No.2698 of 1983 (O&M) -4- substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs, (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure, on a substantial question of law. 9. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others, (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. 10. Hence, in view of this legal proposition, learned counsel for the appellant-plaintiff was asked to file substantial questions of law, stated to be arising in this appeal. 11. Learned counsel for the appellant-plaintiff has filed the following substantial questions of law, stated to be arising in this appeal:- “(i) Whether an illiterate lady of a village is entitled to same treatment and protection, as is available to `Pardanashin' lady? (ii) Whether the decree in question is result of fraud and misrepresentation? (iii) Whether a decree conferring rights in immovable property, having value of more than `100/- for the first time upon a person having no right of succession, needs registration? Regular Second Appeal No.2698 of 1983 (O&M) -5- (iv) Whether in the absence of natural heirs, who are entitled to succeed immovable property, a family settlement arrived at between the owner and the beneficiary, can be termed to be valid and binding or not? (v) Whether the admission made by a party is to be taken as a whole or it can be bifurcated into parts? (vi) When foundation of a family settlement is proved to be false, whether a decree passed on such foundation, can be sustained in the eyes of law.” 12. I have heard learned counsel for the parties on the aforementioned substantial questions of law framed by learned counsel for the appellant-plaintiff and have gone through the whole record carefully. 13. It has been contended by learned counsel for the appellant- plaintiff that appellant-plaintiff was a Pardanashin lady and that a fraud was committed upon her by respondent-defendant, who is son of one of her daughters. It is further contended that she was made to thumb mark the admitted written statement and on the statement made in the Court by respondent-defendant, without making her understand the contents of the plaint. It is contended that on these facts it was for respondent-defendant to prove that appellant-plaintiff had sufficient intelligence to understand the relevant and important matters and that she had in fact understood the contents of the plaint and that the same was explained to her and the intention was clean and that there was no undue influence or misrepresentation on the part of the respondent-defendant. It is further argued that appellant-plaintiff was having five daughters and having grand children from all the five daughters and that in fact she entered into a family settlement with all of her daughters and grand children in the presence of other relatives and agreed that she would remain owner in possession of her entire land in dispute during her life-time and after her death, the land would be given to all her grand children in equal share and respondent- defendant was deputed to get the formalities completed in order to implement the said family settlement and that she never agreed to transfer ownership of the land in dispute in favour of respondent-defendant alone. It is also contended that it has been rightly observed by learned first appellate Regular Second Appeal No.2698 of 1983 (O&M) -6- Court that respondent-defendant never resided with appellant-plaintiff and that he was never adopted by her and hence, it is contended that there is no explanation as to why appellant-plaintiff would give her entire land to one of her grand children only, i.e., respondent-defendant. 14. On the point he has placed reliance upon a number of judgments reported as Mati Lal Das v. Eastern Mortgage and Agency Co. Ltd. and others, AIR 1921 Privy Council 118, Saratkumari Dasi v. Amulyadhan Kundu and others, AIR 1923 Privy Council 13, Mt.Farid- un-nisa v. Munshi Mukhtar Ahmad and another, 1925 Privy Council 204, Benoy Krishna Sadhukhan and others v. Panchanan Sadhukhan and others, AIR 1935 Calcutta 671, Mt.Bishan Devi and others v. Jagat Singh and others, AIR 1937 Lahore 353, Satyadeo Prasad v. Smt.Chanderjoti Debi and others, AIR 1966 Patna 110, Chainta Dasya v. Bhalku Das, AIR 1930 Calcutta 591, Somnath Misra v. Narahari Das and others, AIR 1977 NOC 304 (ORI), Brundaban Misra v. Iswar Swain and others, AIR 1983 Orissa 172, Rankanidhi Sahu v. Nandakishore Sahu, AIR 1990 Orissa 64, Lakshmi Amma and another v. Talengala Narayana Bhatta and another, AIR 1970 Supreme Court 1367, Chand Singh v. Ram Kaur, 1987 (2) PLR 70, and Chalti Devi and others v. Rajinder Kumar and another, 2003(3) PLR 463. 15. It has further been contended that law is well settled that if any judgment and order is obtained by fraud, it cannot be said to be a judgment or order in law and that fraud vitiates everything and hence judgment and orders are treated as nullity by every Court, superior or inferior, and the fraudulent acts can be recalled by suo motu exercise of revisional jurisdiction. On the point he has placed reliance upon A.V.Papayya Sastry and others v. Government of A.P. and others, 2007(2) RCR (Civil) 431. 16. It is further contended that the consent decree passed in favour of respondent-defendant also requires registration as rights in immovable property more than `100/- have been transferred and respondent-defendant got the title and rights in the property for the first time on the basis of such decree and hence, it is contended that respondent-defendant cannot claim any right on the basis of said decree, which has not been got registered under Section 17 of the Registration Act, 1908, and Section 123 of the Regular Second Appeal No.2698 of 1983 (O&M) -7- Transfer of Property Act, 1882. It is contended that respondent-defendant was having no pre-existing right in the property in dispute and hence, the alleged family settlement cannot be said to be a valid one. On the point he has placed reliance upon Deepa and others v. Bhani (died) reptd. by her LRs, 1996(2) PLR 687, Amar Singh v. Smt.Manrai, 1992(2) PLR 601, Gurdev Kaur and another v. Mehar Singh and others, 1990(1) PLR 334, Suresh v. Smt.Mariyan and others, 2010(7) RCR (Civil) 2995, Gunit Sidhu and another v. Bhai Shaminder Singh (since deceased), 2009(3) RCR (Civil) 648, Brahmanath Singh and others v. Chandrakali Kver and another, AIR 1961 Patna 79, S.Noordeen v. V.S.Thiru Venkita Reddiar and others, AIR 1996 Supreme Court 1293, Balbir Singh v. Bant Singh, 1996(3) RCR (Civil) 351, Krishan Kumar Sharma v. Ashok Kumar Sharma and another, 1997(2) PLR 841, and Mam Chand and another v. Sahib Devi and others, 2000(2) PLJ 442. 17. On the other hand, it has been argued by learned counsel for the respondent-defendant that as per own admission of appellant-plaintiff, she entered into a family settlement regarding her entire property including land in dispute in the presence of her relatives and that pursuance to the said family settlement, land in dispute was given to respondent-defendant, who is son of one of her daughters. It is further contended that decree was suffered by appellant-plaintiff of her free will by engaging a counsel and that the said fact is duly proved by statement of defendant as well as by statement of counsel, who represented appellant-plaintiff before learned Court, which passed the decree as well as from the statement of Reader of the Court and that self serving statement of appellant-plaintiff is not sufficient to rebut the said evidence. It is further contended that appellant- plaintiff was managing the entire property during her life-time and she had come to the Court of her own and engaged a counsel and hence, it is contended that it cannot be said that appellant-plaintiff was not having sufficient intelligence to understand important matters. It is also contended that though appellant-plaintiff was an illiterate lady, however, she was not a Pardanashin lady, rather she was managing her entire property. It is further contended that, however, later on, though decree was suffered by her of her free will by virtue of family settlement arrived in the presence of all Regular Second Appeal No.2698 of 1983 (O&M) -8- the relatives and in the presence of her daughters, due to pressure of other daughters, she filed the present suit to get the said decree set aside. It is further contended that respondent-defendant was near relative of appellant- plaintiff and was having pre-existing right in the property in dispute, as he was to inherit the same through her mother, after her death and, hence, it is contended that the decree was not required to be registered. It is further argued that moreover, appellant-plaintiff being party to the decree cannot challenge the same on the ground of registration and that she can only challenge the same on the ground of fraud, which she has failed to prove. 18. In the present case, as already stated above, in the plaint itself appellant-plaintiff admitted that family settlement was arrived at regarding her entire property including the property in dispute in the presence of her relatives and that as per the said family settlement, she was to remain owner of the property in dispute, during her life-time and thereafter the property was to be given to all the children of her five daughters and that respondent- defendant was deputed to arrange the formalities for the same. She has also admitted that respondent-defendant obtained her thumb impression on the plea that decree was being passed in favour of her grand children and that believing the said statement, she thumb marked the written statement as well as on the papers in the Court. Hence, from the said stand of appellant- plaintiff, one thing is proved that there was family settlement regarding the entire property of appellant-plaintiff as she was having no son and having five daughters, who were all married. It is also proved that she had put her thumb impression on the written statement in the previously instituted suit as well as on the statement made in the Court. Copy of plaint of the previously instituted suit is Ex.P4, copy of written statement filed in the said suit is Ex.P5, copy of statement of appellant-plaintiff given in the said suit is Ex.P8, admitting the contents of plaint as correct. Ex.P6 is the copy of order passed in that suit. Ex.P7 is the copy of decree passed in that suit in favour of respondent-defendant and against appellant-plaintiff. It has been observed by learned first appellate Court that on perusal of main file of the suit, in which consent decree was passed, it has become clear that statement dated 19.7.1976 made by appellant-plaintiff in that Court is on the same sheet of paper on which order was passed. Statement of counsel for Regular Second Appeal No.2698 of 1983 (O&M) -9- respondent-defendant was also recorded and, thereafter, final order was passed decreeing the suit. Besides statement of respondent-defendant, there is statement of Harpal Singh, Advocate, Kaithal, who appeared as DW3 in which he deposed that written statement Ex.P5, was prepared by him at the instance of Smt.Zehro and she had put her thumb impression on the written statement after the same was read over to her. He also deposed that she had given statement in the Court of Shri J.D.Chandana, the then learned Sub Judge, who read over the same to her and explained the same to her and that she had put her thumb impression, after duly understanding its contents. Charan Dass, the then Reader to the Court of Shri J.D.Chandana deposed on oath that original statement made by Smt.Zehro was in his hand and that the same was made by Smt.Zehro, who was identified by Harpal Singh, Advocate, and that the said statement was also signed by learned Presiding Officer. Hence, in view of this evidence, learned Courts below have rightly come to the conclusion that the decree was suffered by appellant-plaintiff of her free will and it cannot be said that the same is a result of fraud or misrepresentation. The decree was suffered by her after understanding the contents thereof. 19. Moreover, it has not been proved on the record that appellant- plaintiff was a Pardanashin lady. The only fact proved is that she is an illiterate lady as she had put her thumb impression on the written statement as well as on the statement given in the Court. However, merely on the ground that appellant-plaintiff is an illiterate lady, it cannot be said that she was not having sufficient intelligence to understand the nature of the transaction undertaken by her. Rather as per her own case, she was managing her entire property. She also intended to manage her entire property during her life-time. She approached her counsel and got prepared the written statement, as has been proved from deposition of her counsel and filed the same in the Court. She also made the statement before the Court and put her thumb impression. Plea cannot be accepted that she was made to thumb mark her statement in the Court by the Presiding Officer, without making her understand the contents of the plaint and her statement. 20. So far as the legal proposition held in the aforementioned authorities on which reliance has been placed by learned counsel for the Regular Second Appeal No.2698 of 1983 (O&M) -10- appellant-plaintiff regarding standard of proof of a particular transaction in the case of Pardanashin lady or an illiterate lady is concerned, there is no dispute. However, none of the said authorities are applicable to the facts of present case. In the present case, as already discussed above, appellant- plaintiff was made to understand the contents of the plaint and the written statement by her counsel as well as by the Presiding Officer of the Court. She thumb marked the written statement as well as her statement in the Court, after duly understanding the same and, hence, she cannot be permitted to resile from the same later on. Appellant-plaintiff has failed to prove that any fraud was committed upon her or that the decree obtained by respondent-defendant from her was a result of any misrepresentation. 21. Law is well settled that a consent decree is as good as a decree obtained after contest and binds all concerned unless and until the same is set aside or avoided and that consent decree is binding unless and until same is avoided in one of the permissible ways. On this point reliance has been placed upon Harpal and others v. Smt.Ram Piari and others, 1981 PLJ 492, relevant paragraph of which reads as under:- “3. In the plaint, no plea is raised that the appellants committed any fraud on Jiwan Ram or obtained the decree by coercion or undue influence. The plea taken in the plaint is that the basis of the earlier suit was that Jiwan Ram had gifted 4/5th share of his property to his four sons and since Jiwan Ram was denying title of 4/5th share the four sons brought that suit and since no gift was ever made by Jiwan Ram, therefore, the consent decree was fraudulent and collusive and therefore, did not bind the daughters and they were entitled to ignore the same. Accepting the facts stated in the pleaint to be correct, the conclusion in law would be that Jiwan Ram, who was admittedly the exclusive owner of the property, deprived himself of 4/5th share of the same in favour of his sons by filing a consent written statement on the basis of which the decree was passed on 20th June, 1958. Therefore, since the date of decree, 4/5th share would belong to the four sons and Jiwan Ram would continue to be the owner of the Regular Second Appeal No.2698 of 1983 (O&M) -11- remaining 1/5th only. Jiwan Ram could make a gift of 4/5th share in favour of his sons by a registered gift deed. The other method to make his four sons owners of 4/5th share was to suffer a decree of the kind in dispute which would clearly give title to the four sons and would reduce the ownership of Jiwan Ram from full to 1/5th. In Bishundeo Narain and another v. Seogeni Rai and others, AIR 1951 SC 280, in paragraph 22 of the report, it was held as follows:- `It does not matter whether the decree was by consent or otherwise, for a decree, unless and until it is set aside or avoided in one or other of the ways in which alone a decree may be attacked, holds its force and binds all concerned.' Therefore, a decree obtained after contest is as good a decree as consented to