Case: GURCHARAN SINGH &amp; ORS Vs. ANGREZ KAUR &amp; ANR

2. The brief facts of the case giving rise to this appeal are:2.1 One Bhajan Singh was owner of suit land situated in Village Siraj Majra, Tehsil Amloh, District Fatehgarh Sahib. Bhajan Singh was married with Gurmail Kaur. Two daughters (namely Angrez Kaur and Paramjit Kaur) were born to Bhajan Singh with Gurmail Kaur. Between Bhajan Singh and Gurmail Kaur, a divorce in writing was entered on 15.09.1973 whereafter Gurmail Kaur started residing with one Maghar Singh, the brother of Bhajan Singh in village Jalowal. Gurmail Kaur also took alongwith her both the daughters who were minors at that time to Village Jalowal where they all resided with Maghar Singh2.2 Bhajan Singh resided in Village Siraj Majra with Gurcharan Singh, Gurnam Singh and Kulwant Singh, the appellants, who looked after Bhajan Singh. Bhajan Singh executed a registered Will dated 02.09.1986 in favour of Gurcharan Singh, Gurnam Singh and Kulwant Singh, the appellants. A Civil Suit No. 556 dated 21.09.1994 was filed by the appellants impleading the Bhajan Singh as the sole defendant praying for declaration to the effect that plaintiffs are the owners and in possession of the suit land2.3 In the plaint, the plaintiff pleaded that defendant had executed a registered Will in favour of the plaintiffs, which was made as per defendants free will and consent and which was attested and duly registered by Sub-Registrar. It was further pleaded in the plaint that defendant effected a Family Settlement on 15.06.1994 in which suit property was given to the plaintiffs in equal share. In the suit, a written statement was filed by the defendant – Bhajan Singh on 03.12.1994 where he admitted the plaint allegations and also prayed that decree be passed in favour of the plaintiffs. On the same day, i.e., 03.12.1994, Bhajan Singh also recorded his statement in the Court, where he stated that averments in the plaint are correct and he has no objection if the suit of the plaintiff is decreed2.4 The Court of Additional Senior Sub Judge, Amloh decreed the suit on 09.01.1995. On the basis of admission by the defendant of the claim of the plaintiffs after decree dated 09.01.1995 mutation was also affected of the land in suit in favour of the plaintiff on 03.03.1995. Bhajan Singh died on 24.04.19982.5 After death of Bhajan Singh both Angrez Kaur and Paramjit Kaur filed Civil Suit No. 167 of 19.05.1998 praying for declaration to the effect that decree and judgment in Civil Suit No. 556 of 21.09.1994 decided on 09.01.1995 in respect of the suit property is wrong, without jurisdiction, illegal, null and void, ineffective and inoperative qua the proprietary rights of the plaintiffs as heirs of the said Bhajan Singh2.6 In the suit filed by the plaintiffs, the present appellants, who were impleaded as defendants filed a written statement refuting the plaint allegations. It was pleaded by defendants- appellants that after divorce of Bhajan Singh and Gurmail Kaur on 15.09.1973, Bhajan Singh was residing with defendants, who were serving Bhajan Singh. Bhajan Singh out of his free will executed a Will on 02.09.1986 in favour of the defendants. In the suit filed by the defendants -Suit No. 556 of 21.09.1994, Bhajan Singh filed a statement admitting the claim of the defendants including the confirmation regarding execution of Will in favour of the defendants. It is the defendants, who are in possession of suit land, in whose favour, mutation has also been affected. The plaintiffs had no concern with Bhajan Singh, who was residing with defendants at Village Siraj Majra. The vote and ration card of Bhajan Singh was with the defendants, who were serving him like their father. A replication was also filed by the plaintiffs where Family Settlement as well as the Will dated 02.09.1986 was denied. The trial court vide its judgment and order dated 05.03.2003 dismissed the suit of the plaintiffs7. We may notice the issues framed by the trial court and the findings returned thereon. On the basis of the pleadings of the parties, trial court framed following issues:-1. Whether impugned judgment and decree passed in Civil Suit No. 556 of 21.09.1994 decided on 09.01.1995 titled as Gurcharan Singh etc. Vs. Bhajan Singh, by S. Dalip Singh the then Additional Senior Sub Judge, Amloh in respect of property earlier in name of Bhajan Singh in the subject matter of the suit is illegal, null and void or otherwise bad as alleged in the plaint, if so its effect? OPP2. Whether plaintiffs are entitled to possession of the suit land? OPP3. Whether Sh. Bhajan Singh executed a legal and valid will dated 09.02.98 in favour of defendants, if so its effect? OPD4. Whether suit is not maintainable and competent in the present form? OPD5. Whether plaint is liable to be rejected u/o 7 rule 11 CPC? OPD6. Whether suit is within limitation? OPD7. Whether defendants have taken possession of the suit land from plaintiffs 3 weeks before filing of the suit? OPD8. Issue No.1 was decided in favour of the defendants holding the decree dated 09.01.1995 as a valid decree. Issue No.2 was decided in favour of the defendant. The issue No. 3 regarding Will dated 02.09.1986 was decided in favour of the plaintiffs holding that defendant failed to prove the Will dated 02.09.1986 since one of the attesting witnesses was alive but was not produced by the defendants. Trial court held the suit to be within limitation. The trial court has also returned a finding that it has been proved from the evidence of PW1, the plaintiff that they never visited their father from Village Jalowal, which clearly establish that Bhajan Singh resided with the defendants, who used to look after and serve him. The trial court also returned a finding that there was no element of fraud, misrepresentation or coercion in obtaining a decree dated 09.01.1995. The First Appellate Court reversed the judgment of the trial court holding that the decree dated 09.01.1995 first time created rights in favour of the defendants, hence it required registration. It was held that decree dated 09.01.1995 was not a valid document and was null and void and non est being an unregistered decree. The findings of the trial court with regard to Will were not interfered with by the First Appellate Court. In the Regular Second Appeal filed by the defendants, the decree of the First Appellate Court was confirmed. In the Regular Second Appeal, following substantial questions of law were framed by the High Court:-a) Whether in the facts and circumstances of the instant case, the decree dated 09.01.1995 which has, otherwise, been proved to have been suffered by Bhajan Singh in favour of the appellant, could be ignored by the learned Ist Appellate Court on the ground of non- registration particularly when the decree was based on earlier family settlement?b) Whether in the facts and circumstances of the instant case, the suit filed by the plaintiff/respondents could be said to be within limitation?c) Whether in the facts and circumstances of the instant case, the registered Will in favour of the appellants could be ignored by the learned courts below when the appellants had led affirmative evidence proving the due execution and validity of the Will?d) Whether the interpretation put by the learned Ist Appellate Court to the meaning of Family can be sustained in law?9. All the substantial questions of law have been answered by the High Court in favour of the plaintiffs and against the defendants. The first substantial question of law framed by the High Court was with regard to non-registration of decree dated 09.01.1995. We may first consider the rival submissions of the parties on the question of registration of the decree dated 09.01.1995. The First Appellate Court and the High Court both have upheld the decree 09.01.1995 as null and void due to non-registration of decree.

Reasoning:
The present is a case where by decree dated 09.01.1995 only suit property was made part of the decree. Suit No. 556 was filed with the pleading that Will dated 02.09.1986 as well as Family Settlement dated 15.06.1994, which are specifically pleaded in paragraphs 2 and 3 of the plaint13. In the written statement, the defendant Bhajan Singh prayed that suit of the plaintiffs be decreed as prayed. The pleading in the suit and in the written statement clearly leads to the conclusion that suit was filed on the basis of pre-existing right in favour of plaintiffs, which was basis of the suit. Pre-existing right of the plaintiffs was admitted by the defendant and decree was passed therein14. Thus, the submission of the plaintiffs-respondents that suit was not based on pre-existing right of the plaintiffs cannot be accepted, which is belied by the categorical pleading in the plaint. In view of the above pleadings, we are of the view that very basis of the applicability of the judgment of Bhoop Singh (supra) is knocked out and is not attracted in the present case17. Reverting back to the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. The decree dated 09.01.1995 was, thus, expressly covered by expression any decree or order of a Court. When legislature has specifically excluded applicability of clause (b) and (C) with regard to any decree or order of a Court, applicability of Section 17(1)(b) cannot be imported in Section 17(2)(v) by any indirect method. We, thus, are of the considered opinion that decree and order dated 09.01.1995 did not require registration and were fully covered by Section 17(2)(vi), which contains exclusion from registration as required in Section 17(1). High Court as well as First Appellate Court erred in coming to the conclusion that decree dated 19.01.1995 required registration and due to not registered is null and void18. Trial Courts view that decree dated 19.01.1995 being binding on Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singh cannot avoid the decree. The submission of the learned counsel for the respondent that decree dated 09.01.1995 was obtained by fraud also needs to be consideredBhajan Singh had executed a registered Will dated 02.09.1986, which was a registered Will and pleaded in paragraph 2 of the plaint. In paragraph 3 of the plaint, it was also pleaded that pursuant to a Family Settlement dated 15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equal share and relinquished all his rights in the suit property, which pleadings were admitted by Bhajan Singh in his statement. The decree was passed on 09.01.1995 on the basis of which mutation was sanctioned on 03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in his lifetime, he never objected the decree or mutation in favour of the defendants. It has been accepted by the Courts below that both Bhajan Singh and Gurmail Kaur were divorced and which divorce was recorded in writing on 15.09.1973 as proved before the Courts below. Gurmail Kaur after 15.09.1973 started living with Maghar Singh, brother of Bhajan Singh in Village Jalowal and thereafter never returned to Bhajan Singh. Gurmail Kaur also filed a suit for maintenance against Bhajan Singh, which was dismissed for non-prosecution. The plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after divorce went with their mother and lived with Maghar Singh and never returned to Bhajan Singh. In her statement, PW1 has admitted that she never came to see her father. The Courts have found that Bhajan Singh lived with the defendants after the divorce, who were taking care of Bhajan Singh. The execution of registered Will by Bhajan Singh on 02.09.1986 in favour of the defendants and further his admission that all the claim of the defendants in Suit No. 556 are correct and accepting that he has relinquished his rights in favour of the plaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearly disprove any ground of fraud either on the Court or on Bhajan Singh. The divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and thereafter for 25 years, Bhajan Singh lived away from his wife and daughters and it was the defendants, who were taking care of Bhajan Singh. Admitting the claim of plaintiffs/appellants in the suit filed against the defendant Bhajan Singh for declaration cannot be termed as any fraud played on Bhajan Singh or the Court. Sequence of events clearly indicate that Bhajan Singh of his own volition wanted to give the entire property to the defendants due to the circumstances of the case, in which Bhajan Singh was placed. It is due to this reason that Bhajan Singh in his Will dated 02.09.1986 stated that he has no wife or children. We, thus, do not find any substance in the submission of the learned counsel for the respondents that any fraud was played in obtaining decree dated 09.01.1995 by the defendants. The decree dated 09.01.1995 cannot be held to be suffering from any fraud or coercion as contended by the learned counsel for the respondents21. We having held that decree dated 09.01.1995 was a valid decree, the decision of the trial court dismissing the suit for declaration that decree dated 09.01.1995 was null and void, has to be upheld. In view of our above conclusion, we do not find it necessary to consider various submissions raised by the learned counsel for the parties regarding the validity of the registered Will dated 02.09.1986.