Gurcharan Singh & Ors. v. Angrez Kaur & Anr.
ASHOK BHUSHAN, J.
This is a defendant’s appeal challenging the judgment of the High
Court of Punjab & Haryana dismissing the Regular Second Appeal No.
3472 of 2004 of the appellants. The plaintiffs-responden ts suit for
declaration was dismissed by the trial court which decree was reversed
by First Appellate Court decreeing the suit. The High Court affirmed the
decree of First Appellate Court.
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
335
Bhajan Singh and Gurmail Kaur, a divorce in writing was enter ed 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 Singh.
2.2. 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 W ill 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 land.
2.3. In the plaint, the plaintiff pleaded that defendant had executed
a registered Will in favour of the plaintiffs, which was ma de as per
defendant’s free will and consent and which was attested and duly
registered by Sub-Registrar. It was further pleaded in th e 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 decreed.
2.4. 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 mutat ion was
also affected of the land in suit in favour of the plaintiff on 03.03.1995.
Bhajan Singh died on 24.04.1998.
2.5. 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 inoper ative qua the
proprietary rights of the plaintiffs as heirs of the said Bhajan Singh.
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
2.6. In the suit filed by the plaintiffs, the present appellants, who
were impleaded as defendants filed a written statement refut ing the
plaint allegations. It was pleaded by defendants-appellant s 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 d efendants
including the confirmation regarding execution of Will in favour of the
defendants. It is the defendants, who are in possession of s uit 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 w ith the
defendants, who were serving him like their father. A repli cation 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 plaintiffs.
2.7. The plaintiffs aggrieved by the said judgment filed an appeal
before District Judge. The first appeal filed by the plaintiffs was decreed
and allowed by learned Additional District Judge vide its judgment dated
13.08.2004. The defendants filed Regular Second Appeal before t he
High Court, which was dismissed by the impugned judgment. This appeal
has been filed by the defendants aggrieved with the judgment of the
High Court.
3. We have heard Shri Pallav Sisodia, learned senior counsel and
Mrs. Swarupama Chaturvedi, learned counsel for the appella nt. Shri
Dhruv Mehta, learned senior counsel had appeared for the respondents.
4. Shri Pallav Sisodia, learned senior counsel for the appellant
contends that both First Appellate Court and High Court erred in decreeing
the suit of the plaintiffs. The trial court has rightly dismissed the suit of
the plaintiffs holding that decree dated 09.01.1995 was a valid decree,
which did not require any registration. The claim of the ap pellants of
declaration as owner in possession of the suit property in Civil Suit No.
556 was admitted by Bhajan Singh, who filed the written statement and
got recorded his statement admitting the claim of the plaintiffs. The decree
dated 09.01.1995 was not based on any fraud or coercion. Bhajan Singh
at his own free will had decided to give the suit property to the appellants,
which is clearly depicted by executing a registered Will dated 02.09.1986
337
in favour of the appellants and further after the decree dated 09.01.1995
accepting the mutation in favour of the appellants. Divorce b etween
Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and Gurmail
Kaur thereafter started residing with Maghar Singh, brother of Bhajan
Singh and never came back to Bhajan Singh. There was no relati on
between Gurmail Kaur and Bhajan Singh after the divo rce dated
15.09.1973. The plaintiffs also went alongwith Gurmail Kaur after the
divorce and throughout lived with Maghar Singh and Gurmail Kaur and
never came to see their father Bhajan Singh. The Will dated 02.09.1986
was validly executed, which Will was admitted by Bhajan singh in his
written statement filed in Suit No. 556. When Bhajan Singh has admitted
the execution of Will dated 02.09.1986, Courts below committed error in
not accepting the Will due to want of examination of attesting witness
whereas Will was proved by the defendants-appellants by pro ducing
scribe, who scribed the Will as well as clerk from Regis trar’s Office,
who proved the registration of the Will. It is further submitted that oral
Family Settlement dated 15.06.1994 giving the suit property by Bhajan
Singh in favour of the defendants was a valid settlement ev en though
defendants were not related by blood as Uncle and Nephew but Bhajan
Singh was living with the defendants after the divorce thro ughout.
Defendants treated Bhajan Singh as member of their family and served
them. Family Settlement in above facts was valid Family Settlement. It
is not necessary that person, who is given a right in any property should
be necessarily a blood relation. It is further submitted that both the First
Appellate Court and the High Court erred in holding that comprom ise
decree dated 09.01.1995 required compulsory registration under Section
17 of Registration Act, 1908. High Court has discarded the compromise
decree dated 09.01.1995 on the ground that same required compulsory
registration and the decree being not registered was not valid decree.
5. Shri Dhruv Mehta, learned counsel for the plaintiffs-respondents
submits that decree dated 09.01.1995 was obtained by fraud and on
false allegations made in the plaint. It is submitted that appellants, who
were plaintiffs in the above suit described themselves a s nephews of
Bhajan Singh and Bhajan Singh as Uncle, which relationship was n ot
proved, hence, decree was obtained by playing fraud. It is further
submitted that decree dated 09.01.1995 was compulsorily registrabl e
under Section 17 and it having not been registered First Appellate Court
and the High Court has rightly discarded the decree. It is submitted that
the Will dated 02.09.1986 has not been accepted by all the three courts.
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
It is submitted that under Section 68 of the Evidence Act, a Will requires
attestation. It is submitted that out of the two attesting witnesses namely
Darshan Singh and Gurdev Singh, Gurdev Singh was admittedly alive,
which was admitted by defendant himself in his statement and Gurdev
Singh having not been produced to prove the Will, the Will has rightly
been held not to be proved, which findings need no interference in this
appeal. The scribe, who appeared to prove the Will cannot be treated as
an attesting witness, since he had no animus to attest the Wil l. It is
further submitted that there can be no Family Settlement in favour of a
person, who has no relation with the owner of the property. The Family
Settlement dated 15.06.1994 was no Family Settlement.
6. Learned counsel for the parties have relied on various judgments
of this Court, which we shall refer to hereinafter while considering the
submissions in details.
7. We may notice the issues framed by the trial court and the
findings returned thereon. On the basis of the pleadings of the pa rties,
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? OPP
2. Whether plaintiffs are entitled to possession of the suit land?
OPP
3. Whether Sh. Bhajan Singh executed a legal and valid will
dated 09.02.98 in favour of defendants, if so its effect? OPD
4. Whether suit is not maintainable and competent in the present
form? OPD
5. Whether plaint is liable to be rejected u/o 7 rule 11 CPC?
OPD
6. Whether suit is within limitation? OPD
7. Whether defendants have taken possession of the suit land
from plaintiffs 3 weeks before filing of the suit? OPD
339
8. Relief”
8. 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 decide d 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 tha t 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 coercionin 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 th e Regular
Second Appeal, following substantial questions of law were framed by
the High Court:-
“a) Whether in the facts and circumstances of the instant c ase,
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?
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
d) Whether the interpretation put by the learned Ist Appel late
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 defendan ts. The
first substantial question of law framed by the High Court wa s 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. The question is as to whether t he decree
dated 09.01.1995 required registration under Section 17 of the Registration
Act. Section 17 of the Registration Act provides for registrat ion of
documents, which is to the following effect:-
“17. Documents of which registration is compulsory. —(l)
The following documents shall be registered, if the property to
which they relate is situate in a district in which, and if they have
been executed on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or the Indian
Registration Act, 1871, or the Indian Registration Act, 1877, or
this Act came or comes into force, namely:—
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or
operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable
property;
(c) non-testamentary instruments which acknowledge the
receipt or payment of any consideration on account of
the creation, declaration, assignment, limitation o r
extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for
any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning
any decree or order of a Court or any award when such
decree or order or award purports or operates to create,
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declare, assign, limit or extinguish, whether in present
or in future, any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and
upwards, to or in immovable property:
Provided that the State Government may, by order published in
the Official Gazette, exempt from the operation of this sub-section
any lease executed in any district, or part of a district, the terms
granted by which do not exceed five years and the annual rents
reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for
consideration, any immovable property for the purpose of section
53A of the Transfer of Property Act, 1882 (4 of 1882) shall be
registered if they have been executed on or after t he
commencement of the Registration and Other Related laws
(Amendment) Act, 2001 and if such documents are not registered
on or after such commencement, then, they shall have no effect
for the purposes of the said section 53A.
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to—
(i) any composition deed; or
(ii) … … … …
(iii) … … … …
(iv) … … … …
(v) … … … …
(vi) any decree or order of a Court except a decree or orde r
expressed to be made on a compromise and comprising
immovable property other than that which is the subject-
matter of the suit or proceeding]; or
… … … …
… … … …”
10. Sub-section (2) of Section 17 provides that nothing in clause
(b) and (c) of sub-section (1) applies to item No.(i) and (xii) enumerated
therein. We in the present case have to consider as to whether the decree
dated 09.01.1995 is covered by sub-section(2) (vi) or not. Both the First
Appellate Court and the High Court have proceeded on the premise that
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
since the decree dated 09.01.1995 first time created right in fav our of
the defendant, it required registration, on the ratio of a judgment of this
Court in Bhoop Singh Vs. Ram Singh Major and Others, (1995) 5
SCC 709. In Bhoop Singh (supra), this Court laid down following in
paragraphs 16, 17 and 18:-
“16. 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-existi ng
right and does not by itself create new right, title or int erest in
praesenti 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.
17. It would, therefore, be the duty of the court to examine in
each case whether the parties have pre-existing right to the
immovable property, or whether under the order or decree of the
court one party having right, title or interest therein agreed or
suffered to extinguish the same and created right, title or interest
in praesenti in immovable property of the value of Rs 100 or
upwards in favour of other party for the first time, eith er by
compromise or pretended consent. If latter be the position, t he
document is compulsorily registrable.
18. The legal position qua clause ( vi) can, on the basis of the
aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, in the sense that the
compromise is not a device to obviate payment of stamp
duty and frustrate the law relating to registration, would
not require registration. In a converse situation, it would
require registration.
(2) If the compromise decree were to create for the first
time right, title or interest in immovable property of the
value of Rs 100 or upwards in favour of any party to the
suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of
sub-section (1) of Section 17, as was the position in the
343
aforesaid Privy Council and this Court’s cases, it is
apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of
compromise, as was the position in Lahore case, benefit
from the terms of compromise cannot be derived, even
if a suit were to be disposed of because of the
compromise in question.
(5) If the property dealt with by the decree be not the
“subject-matter of the suit or proceeding”, clause ( vi)
of sub-section (2) would not operate, because of the
amendment of this clause by Act 21 of 1929, which has
its origin in the aforesaid decision of the Privy Council,
according to which the original clause would have been
attracted, even if it were to encompass property not
litigated.
11. Learned counsel for the respondent has placed reliance on
paragraph 18(2) to support his submission that since for th e first time
right, title and interest in the suit property being created in favour of the
defendants, it required registration. Respondent’s counsel further submits
that defendant in the statement before the Court has admi tted that the
respondents-defendants for the first time obtained right, title and interest
in the suit property by virtue of decree dated 09.01.1995. 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 pleadi ng 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 pl aint are to the
following effect:-
“2. That the defendant has executed a valid and legal Will dated
02.09.1986 in favour of the plaintiffs with his free will and consent
while he was in a fit disposing mind, which was attested and
registered by the Sub-Registrar.
3. That the defendant considering it proper has effected a family
settlement on 15.06.1994 vide which the property in suit was allotted
to the plaintiffs in equal shares and the defendant has relinquished
all his right, title and interest whatsoever in the said prope rty in
favour of the plaintiff in the said family settlement.”
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
12. In the suit, Bhajan Singh was only defendant, who filed his
written statement on 03.12.1994, allegations in paragraphs 2 and 3 of
the plaint were admitted by the defendant in his statement in paragraphs
2 and 3, which is to the following effect:-
“2. Para No. 2 of the plaint is admitted to be correct.
3. Para No. 3 of the plaint is admitted to be correct.”
13. 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 therein.
14. 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 case. This Court in a recent jud gment in Civil
Appeal No.800 of 2020 – Mohammade Yusuf & Ors. Vs. Rajkumar
& Ors. decided on 05.02.2020 had occasion to consider Section 17 as
well as judgment of Bhoop Singh (supra). While elaborating Section
17, this Court laid down following in paragraph 6:-
“6. A compromise decree passed by a Court would ordinarily be
covered by Section 17 (1) (b) but subsection (2) of Secti on 17
provides for an exception for any decree or order of a Court
except a decree or order expressed to be made on a compromise
and comprising immovable property other than that which is the
subject-matter of the suit or proceeding. Thus, by virtue of su b-
section(2)(vi) of Section 17 any decree or order of a Court does
not require registration. In sub-clause(vi) of sub-section (2), one
category is excepted from sub-clause(vi), i.e., a decree or order
expressed to be made on a compromise and comprising immovable
property other than that which is the subject-matter of the suit or
proceeding. Thus, by conjointly reading Section 17 (1) (b) and
Section 17 (2) (vi), it is clear that a compromise decree comprising
immovable property other than which is the subject matter of the
suit or proceeding requires registration, although any decree or
345
order of a Court is exempted from registration by virtue of Section
17 (2) (vi). A copy of the decree passed in Suit No.250-A of 1984
has been brought on record as Annexure P-2, which indicates
that decree dated 04.10.1985 was passed by the Court for the
property, which was subject matter of the suit. Thu s, the
exclusionary clause in Section 17 (2) (vi) is not applicable and the
compromise decree dated 04.10.1985 was not required to b e
registered on plain 8 reading of Section 17 (2)
(vi)………………………….”
15. In the above case, this Court further relied on earlier judgment
of this Court in Som Dev and Others Vs. Rati Ram and Another,
(2006) 10 SCC 788 in paragraph 13 and laid down following:-
“13. This Court in Som Dev and Others Vs. Rati Ram and
Another, (2006) 10 SCC 788 while explaining Section 17(2)(vi)
and Section 17(1)(b) and (c) held that all decree and orders of the
Court including compromise decree subject to the exception as
referred that the properties that are outside the subject matter of
the suit do not require registration. In paragraph 18, this Court laid
down following:-
“18. ……………But with respect, it must be pointed out that
a decree or order of a court does not require registration if it is
not based on a compromise on the ground that clauses (b) and
(c) of Section 17 of the Registration Act are attracted. Even a
decree on a compromise does not require registration if it does
not take in property that is not the subject-matter of the
suit…………………….”
16. In the above case, the earlier decree, which was sought to be
ignored on the ground that it was not registered related only with the suit
property. This Court held that the said decree did not require registration.
Following reasons were given in paragraph 14:-
“14. In facts of the present case, the decree dated 04.10.19 85
was with regard to property, which was subject matter of the suit,
hence not covered by exclusionary clause of Section 17 (2) (vi)
and present case is covered by the main exception crafted in
Section 17 (2) (vi), i.e., “any decree or order of a Court”. When
registration of an instrument as required by Section 17 (1) (b) is
specifically excluded by Section 17 (2) (vi) by providing t hat
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
nothing in clause (b) and (c) of sub-section (1) applies to any
decree or order of the Court, we are of the view th at the
compromise decree dated 04.10.1985 did not require registration
and learned Civil Judge as well as the High Court erred in holding
otherwise. We, thus, set aside the order of the Civil Judge dated
07.01.2015 as well as the judgment of the High Court dated
13.02.2017. The compromise decree dated 04.10.1985 is directed
to be exhibited by the trial court. The appeal is a llowed
accordingly.”
17. 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 Bh ajan
Singh relates to the suit property described in plaint and de cree was
passed only with regard to suit property A to D. The decr ee 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
void.
18. Trial Court’s 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 al so
needs to be considered.
19. The submission of the learned counsel for the respondent i s
that since in the suit, which was filed by the defendant, they described
the defendant as uncle of the plaintiffs, who were looking afte r and
serving the defendant, which statement having been found not to b e
proved, it was fraud played on the defendant and the Court.
20. We need to revisit the facts and sequence of events in the
case to examine as to whether any fraud was played on th e Court or
Bhajan Singh in obtaining the decree dated 09.01.1995. Bhajan Singh
347
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 Sett lement dated
15.06.1994 by which Bhajan Singh decided to allot plaintiffs in e qual
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 san ctioned 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 f avour 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., Ang rez
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 C ourts
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 t he 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 lea rned
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
GURCHARAN SINGH & ORS. v. ANGREZ KAUR & ANR.
[ASHOK BHUSHAN, J.]
be held to be suffering from any fraud or coercion as contended by the
learned counsel for the respondents.
21. 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 t o consider
various submissions raised by the learned counsel for the parties regarding
the validity of the registered Will dated 02.09.1986.
22. In view of the foregoing discussions, we set aside the judgment
of the High Court as well as First Appellate court and restore the decree
of trial court. The appeal is allowed accordingly.
Devika Gujral Appeal allowed