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Supreme Court of India
Gurcharan Singh vs Angrez Kaur on 19 March, 2020Author: Ashok Bhushan
Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6835/2009
GURCHARAN SINGH & ORS. …APPELLANT(S)
VERSUS
ANGREZ KAUR & ANR. …RESPONDENT(S)
J U D G M E N T
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-respondents 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.
Signature Not Verified
2. The brief facts of the case giving rise to this
Digitally signed by
MAHABIR SINGH
Date: 2020.03.19
18:37:10 IST
Reason:
appeal are:-
1
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 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 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
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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 made as per
defendant’s 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 decreed.
3
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
mutation 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 inoperative qua the proprietary
rights of the plaintiffs as heirs of the said
Bhajan Singh.
2.6 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-
4
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 plaintiffs.
5
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
the 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 appellant. 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
6
any registration. The claim of the appellants 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 in favour of the appellants and further
after the decree dated 09.01.1995 accepting the
mutation in favour of the appellants. Divorce between
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 relation between
Gurmail Kaur and Bhajan Singh after the divorce 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
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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 producing scribe, who scribed
the Will as well as clerk from Registrar’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 even though
defendants were not related by blood as Uncle and
Nephew but Bhajan Singh was living with the defendants
after the divorce throughout. 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
compromise decree dated 09.01.1995 required compulsory
registration under Section 17 of Registration Act,
8
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 as nephews of Bhajan Singh and
Bhajan Singh as Uncle, which relationship was not
proved, hence, decree was obtained by playing fraud.
It is further submitted that decree dated 09.01.1995
was compulsorily registrable 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. 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
9
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 Will. 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 parties, trial court framed following
issues:-
“1. Whether impugned judgment and decree
passed in Civil Suit No. 556 of
10
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
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 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
11
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
12
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
13
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 the decree dated 09.01.1995
required registration under Section 17 of the
Registration Act. Section 17 of the Registration Act
provides for registration 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
14
property;
(c) non-testamentary instruments
which acknowledge the receipt
or payment of any
consideration on account of
the creation, declaration,
assignment, limitation or
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, 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
15
Act, 1882 (4 of 1882) shall be registered
if they have been executed on or after the
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 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]; 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
16
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 since the decree
dated 09.01.1995 first time created right in favour 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-existing right and does
not by itself create new right, title or
interest 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
17
value of Rs 100 or upwards in favour of
other party for the first time, either by
compromise or pretended consent. If latter
be the position, the 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 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
18
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 the 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 admitted 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 pleading
that Will dated 02.09.1986 as well as Family Settlement
dated 15.06.1994, which are specifically pleaded in
19
paragraphs 2 and 3 of the plaint 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 property in favour
of the plaintiff in the said family
settlement.”
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
20
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 judgment 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 Section 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
21
comprising immovable property other than
that which is the subject-matter of the
suit or proceeding. Thus, by virtue of sub-
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 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. Thus, the
exclusionary clause in Section 17(2)(vi) is
not applicable and the compromise decree
dated 04.10.1985 was not required to be
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
22
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 04.10.1985 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
23
excluded by Section 17(2)(vi) by providing
that nothing in clause (b) and (c) of sub-
section (1) applies to any decree or order
of the Court, we are of the view that 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
allowed 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 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
24
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 also needs to be considered.
19. The submission of the learned counsel for the
respondent is that since in the suit, which was filed
by the defendant, they described the defendant as uncle
of the plaintiffs, who were looking after and serving
the defendant, which statement having been found not
to be proved, it was fraud played on the defendant and
the Court.
20. We need to revisit the facts and sequence of events
25
in the case to examine as to whether any fraud was
played on the Court or Bhajan Singh in obtaining the
decree dated 09.01.1995. Bhajan 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
26
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
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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 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
to consider various submissions raised by the learned
counsel for the parties regarding the validity of the
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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.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( NAVIN SINHA )
New Delhi,
March 19, 2020.
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