218+102 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1) RSA-435-2021 (O&M)
Date of decision: 15.11.2021
Paramjit Singh (deceased) through legal heirs ...........Appellants
versus
Parminder Kaur and others .......Respondents
2) RSA-427-2021 (O&M)
Paramjit Singh (deceased) through legal heirs ...........Appellants
versus
Gurdial Singh and others .......Respondents
CORAM: HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Sunil Garg, Advocate
for the appellants.
Mr. Gaurav Chopra, Senior Advocate with
Mr. Aditya Dassaur, Advocate
for respondents No.1 and 5.
Service of respondents No.2 to 4 and 6 stands
dispensed with vide order dated 28.07.2021.
FATEH DEEP SINGH, J.
Due to outbreak of pandemic COVID-19, the instant case is being taken up for hearing through video conferencing.
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RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -2-
The then plaintiff-Paramjit Singh, now deceased, being represented by his LRs, the appellants, before this Court had filed against his siblings a suit for declaration that the plaintiff is owner in possession of building detailed in Serial No. i and ii of the plaint bearing properties No. B-XL-II/93 and property bearing No. B-XXXII/3 both situated on G.T. Road and railway Road in the area Sub Division, Phagwara District Kapurthala, claiming it so, on the basis of family settlement which was subsequently reduced into writing on 17.07.1995 and oral settlement between plaintiff and defendant No.2-Gurdial Singh, now principal contestant, before this Court.
The Court of learned Civil Judge (Junior Division), Phagwara vide judgment/decree dated 16.01.2017 decreed the suit of the plaintiff with no order as to costs. It is against this very judgment/decree, two civil appeals have come about, one by Gurdial Singh (defendant No.2) bearing No. CA/46/2017 and the second one by Parminder Kaur (defendant No.5) bearing No. CA/57/2017. The Court of the learned Additional District and Sessions Judge-II, Kapurthala, through common judgment/decree dated 19.02.2021 while deciding issues No.2, 6, 7 and 10 in favour of the plaintiff against the defendants, decided remaining issues No.1, 3, 4, 5, 8 and 9 against the plaintiff in favour of the defendants and, thereby, both the appeals stood accepted with costs thereby setting aside the judgment decree of the Trial Court. It is how these two appeals 2 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -3-
against the siblings have come about laying challenge to the judgment decree of First Appellate Court. Being an outcome of common judgment/decree, between the same very parties wherein common question of law and facts are involved both these appeals are, thus, being taken up and decided together by this common judgment.
Heard learned counsel of both the sides at length and perused the records of the case.
The undisputed facts are that one, Dhanna Singh was married with Surjit Kaur, out of which, the couple gave birth to three sons and four daughters, namely, Paramjit Singh, Avtar Singh, Gurdial Singh and Kuldeep Kaur, Harbhajan Kaur, Parminder Kaur and Balbir Kaur. Dhanna Singh died intestate on 03.06.1975 while Surjit Kaur passed away on 27.07.1979. Dhanna Singh was the owner of two properties, which have been detailed in the aforegoing paras, situated on GT Road and Railway Road, Phagwara, respectively, which are bone of contention primarily between Paramjit Singh, Gurdial Singh and to some extent with Parminder Kaur. As is reflected in the pleadings and is so the case of the counsel for the two sides in their submissions, there is no estrangement as far as the factual aspect of the previous ownership the inter se relationship between the parties are concerned and what is the dispute is over the bestowment of the proprietary rights in these properties. Since, there were seven children borne out of the wedlock of Dhanna Singh 3 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -4-
and who, admittedly had died intestate and, therefore, at the time of his death, each of the siblings were owner in possession of 1/7th share in both these properties each. What is claim and counter claim is over family settlement that is alleged to have taken place between Paramjit Singh, Parminder Kaur, Balbir Kaur and Gurdial Singh on 15.03.1985 and which became subject matter of judgment/decree dated 14.06.1996 (Ex.P-57 and Ex.P-58, respectively). It was on basis of this earlier judgment/decree, plaintiff, Paramjit Singh became owner in possession of 4/7th share in the properties of Dhanna Singh. It is claimed by the plaintiff that other siblings relinquished their rights in these properties in favour of the plaintiff and that is how, he claims to be in exclusive ownership and possession of properties situated on GT Road, Phagwara. The defendant No.5- Parminder Kaur and defendant No.6-Balbir Kaur in their written statement filed on 25.09.2000 admitted the claim of the plaintiff- brother while other defendants did not choose to lay claim and contest the suit and as a result of which, defendants No.1, 4 and 5 were proceeded against ex parte. It was vide judgment/decree dated 23.10.2002, the suit of plaintiff-Paramjit Singh stood decreed. It is, thereafter, defendant No.2-Gurdial Singh filed an application under Order 9 Rule 13 CPC seeking setting aside of ex parte judgment/decree and the application stood allowed on 19.01.2011 and that is how, the Trial Court in the present matter re-opened the suit and which has been contested tooth and nail by defendant No.2-Gurdial Singh, 4 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -5-
brother of the plaintiff-Paramjit Singh. Even, subsequently, Kuldeep Kaur and Balbir Kaur (defendants No.3 and 6, respectively) did not contest the claim and admitted in their written statement what was pleaded by the plaintiff. The Trial Court in the final outcome of the suit which is under challenge before this Court framed the following issues:-
1. Whether there exists 1st Family Settlement dated 15.03.1985 acknowledged in the decree dated 14.06.1996 as alleged by the plaintiff? OPP
2. Whether there exists 2nd Family Settlement in the year 1995 as alleged by the plaintiff?OPP
3. Whether there exists 3rd Family Settlement between the plaintiff and defendant No.2 and pursuance to the same, the plaintiff become exclusive owner of the property situated at G.T. Road, Phagwara? OPP
4. Whether the defendant No.2 is estopped by his own act and conduct from claiming any share in the property in dispute? OPP
5. Whether the plaintiff is entitled for the relief of declaration as prayed for, if all the three family settlements proved?OPP
6. Whether the suit is not maintainable? OPD
7. Whether plaintiff has no cause of action to file the present suit?OPD
8. Whether plaintiff is estopped by his own and conduct from filing the present suit?OPD
9. Whether plaintiff has not come to the court with clean hands, if so, its effect? OPD
10.Whether suit is bad for mis-joinder and non-joinder of parties, if so, its effect? OPD
11.Relief.
In his evidence, plaintiff-Paramjit Singh stepped into the witness box as PW-1 through his affidavit as PW-1/A proved documents Ex.P-1 to Ex.P-50 and placed on the record documents Mark-A to Mark-G, Mark-I and in his cross examination was confronted with 5 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -6-
documents Ex.PW-1/D1/D2/D3/D4 as well as previous statement of Balbir Kaur made on 20.01.1996 (Ex.P-51), photographs (Ex.P-52, Ex.P-53), previous statement dated 20.01.1996 of Parminder Kaur, Saroj Deol (Ex.P-55), power of attorney (Ex.P-56), written statement (Ex.P-57), sale deed executed by Avtar Singh, defendant No.1, in favour of Bal Krishan (Ex.P-58 and Ex.P-59). To corroborate his case, plaintiff examined PW-2, Ratan Lal, Clerk, Municipal Corporation, Phagwara and who proved documents Ex.PW-2/A, Ex.PW-2/B, Ex.P-11, Ex.P-14, Ex.P-16 and Ex.P-30 followed by testimony of Harnek Singh Deol (PW-3), who proved sale deed dated 27.09.2005 (Ex.P-3) executed by Avtar Singh in favour of Bal Krishan including endorsement (Ex.P-3 and Ex.P-4) while sale deed dated 27.07.2006 with endorsement, were proved as Ex.P-58 and Ex.P-59. PW-4, Ramesh Sachdeva through his affidavit Ex.PW-4/A led credence to the case of the plaintiff and proved document (Ex.P-12 and Ex.P-13) followed by the testimony of Saroj Deol (PW-
5), wife of the plaintiff, who through her affidavit Ex.PW-5/A brought on record documents Ex.P-1 to Ex.P-6, Ex.P-9, Ex.P-10, Ex.P-54 to Ex.P-57 but she was not produced for cross-examination, therefore, her statement was not considered as part of the evidence. PW-6, Manjit Kumar proved power of attorney which was entered in Ex.P-2 as Ex.PW-6/A while Parminder Kaur, Clerk, Bank of Baroda through passbook of account of Saroj Deol (Ex.P-8), bank circular dated 06.02.2008 (Ex.PW-7/A) letter Ex.PW-7/B and placed on record 6 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -7-
Mark-A. PW-8, Vinay Kumar, Clerk, Municipal Corporation, Phagwara, proved site plan Ex.PW-8/A and entry in register No.304 as Ex.PW-8/B and lastly examined PW-9, Gopal Chopra and PW-10, Rashpal Singh, who proved site plan Ex.PW-9/A of the property at GT Road and electricity bills as Ex.PW-10/A to Ex.PW-10/C, respectively. After tendering copies of jamabandi pertaining to year 2001, 2002 (Ex.P-16), 2005, 2006 (Ex.P-61), sale deed dated 29.07.1968 (Ex.P-62) as to the purchase of property by Dhanna Singh, and, thereafter, closed the evidence.
The defendants through defendant No.6-Balbir Kaur tendered in evidence copy of general attorney in favour of the witness by Kuldeep Kaur, defendant No.3 as Ex.DX and testified that Paramjit Singh, plaintiff was exclusive owner of the property situated on GT Road, Phagwara bearing unit No.B-XL-II/93. Gurdial Singh, defendant No.2 testified as DW-1 on the basis of his affidavit Ex.DW- 1/A and brought on the records affidavit to prove payment by Gurdial Singh to settle his matrimonial dispute with his wife as Ex.D-1, letter of correspondence between Gurdial Singh, Paramjit Singh as Ex.D-2 to Ex.D-6 and special power of attorney dated 29.03.1997 of defendant No.2-Gurdial Singh in favour of Saroj Deol, wife of the present plaintiff. It was followed by the testimony of Avtar Singh-defendant No.1 as DW-2 who through his affidavit Ex.DW-2/A has tried to lend credence to the case of Gurdial Singh followed by similar corroboration by defendant No.5-Parminder Kaur as DW-3 7 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -8-
through her affidavit Ex.DW-3/1 who also proved saving bank account book as Ex.PW-3/1 and copy of school certificate Mark- X1. After tendering in evidence, documents comprising of plaints Ex.DX, Ex.DY of other litigation between the siblings and relying on judgment/decree dated 14.06.1996 (Ex.P-57 and Ex.P-58) and copy of order dated 13.07.2016 (Ex.P-59), the defendants closed their evidence.
In view of the recent pronouncement in 'Kirodi (since deceased) through his LR vs. Ram Parkash and others' Civil appeal No.4988 of 2019; SLP(C) No.11527 of 2019 decided on 10.05.2019, the Hon'ble Supreme Court has clearly held under Section 41 of the Punjab Courts Act, 1918 which has its application to the States of Punjab and Haryana, that there is no necessity of framing substantial question of law for disposal of an appeal.
What one could discern from these submissions that the primary contest is between Paramjit Singh on one hand and Gurdial Singh and Parminder Kaur on the other hand over property situated on GT Road, Phagwara and judgment/decree dated 14.06.1996 as well as an agreement dated 17.07.1995. Judgment/decree dated 14.06.1996 of the learned District Judge, Kapurthala is by way of compromise decree and which has not been put to challenge till date by any of the parties. Perusal of this judgment/decree (Ex.P-57 and Ex.P-58 as well as Ex.P-59) shows prior to this judgment/decree, a family settlement has taken place on 15.03.1985 between the 8 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -9-
parties. As has been contended by Mr. Sunil Jain, Advocate for the appellants, the very claim raised by the other side through their counsel Mr. Gaurav Chopra, Senior Advocate assisted by Mr. Aditya Dassaur, Advocate that having created right title and interest for the first time it cannot be accepted and does not requires compulsory registration. It is well elicited in this judgment/decree which was passed on 14.06.1996 that the family settlement has actually taken place on 15.03.1985 almost 11 years prior to this judgment/decree and there is nothing discernible that how there has been relinquishment of rights and creation of the same in favour of a party for the very first time. This Court seeks support from well enshrined law laid down in the case of 'Bhoop Singh versus Ram Singh Major' reported in 1996 AIR 196 Supreme Court. Even otherwise, on behalf of Gurdial Singh and Parminder Kaur, their counsel could not convince and rather invariably accepts compromise decree dated 14.06.1996 and, therefore, the same does not require registration. The stand of Gurdial Singh in previous litigation and the one before this Court, is self contradictory. That earlier in his written statement filed in the previous suit, Gurdial Singh does not challenge the agreement dated 17.07.1995 but in the subsequent stand in his written statement, he denies this agreement and, therefore, this stand is self-contradictory and self-defeating to the case of Gurdial Singh and that was primarily the reason why the claim of Gurdial Singh to lead secondary evidence of the agreement was set 9 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -10-
aside in civil revision bearing No. CR-6686 of 2015 by this Court, whereby, claim of Paramjit Singh challenging the secondary evidence, was allowed, where too, it was held that since, Gurdial Singh has denied settlement dated 17.07.1995, he cannot subsequently be allowed to prove the same by secondary means. Thus, it was highly preposterous and illegal for the learned First Appellate Court to have relied upon this agreement dated 17.07.1995 which is the basis of the impugned findings. Thus, the First Appellate Court has fallen into an error by basing its findings on this very self-contradictory and self-defeating stand of Gurdial Singh. More so, what is further corroborative is that the claim of the then plaintiff that an oral family settlement was arrived at between the siblings on 15.03.1985, whereby, then defendants No.2, 5 and 6 have surrendered their shares in favour of their brother, the then plaintiff, along with the fact that through another family partition dated 29.03.1997 defendant No.2-Gurdial Singh, the present respondent has also surrendered his share in favour of the then plaintiff-Paramjit Singh. Thus, in light of what transpires from this evidence on the record that defendant No.2 and so defendants No.3 and 4 have surrendered their shares in favour of the plaintiff leaves no scope to doubt the claim laid by the plaintiff-Paramjit Singh.
To the specific query of the Court that in agreement dated 17.07.1995 (Ex.P-5), there is specific mention that to settle the matrimonial dispute of Gurdial Singh, defendant No.2 with his wife, 10 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -11-
Rs.7 lakh were then given by brother-Paramjit Singh which is corroborated from agreement dated 17.07.1995 (Ex.P-5) and it is subsequently, judgment/decree dated 14.06.1996 (Ex.P-57 and Ex.P-58) were obtained to strengthen this very settlement and, therefore, as has sought to be projected by the counsel for Gurdial Singh that there was no relinquishment of share by Gurdial Singh does not cuts much ice. There is nothing suggestive or any iota of evidence on the records to show that the challenge lay by Gurdial Singh to judgment/decree dated 14.06.1996 to be an outcome of misuse of power of attorney given by him to the wife of plaintiff- Paramjit Singh. By virtue of Sections 101 to 106 of the Evidence Act, onus lay heavily upon the person who lay such a claim to establish it beyond doubt to establish his claim. The Court below has fallen into an error by holding that since there was relinquishment of right in an immovable property with value of more than Rs.100/-, the same could be done only by a registered document does not impresses the Court much and so the arguments advanced by Mr. Gaurav Chopra, Senior Advocate with Mr. Aditya Dassaur, Advocate for respondent No.5 and how the Court by applying Section 17 of the Registration Act, 1908 has sought to term the judgment/decree to be a nullity is gross misinterpretation of the law for which reliance has sought to be placed by the appellants' side on the judgments titled as 'Dhian Singh versus Mohinder Singh' 2017(4) PLR 729; 'Som Dev versus Rati Ram' 2006(4) RCR (Civil) 303 and 'K. Pooja Dodd versus 11 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -12-
Devinder Singh Dodd (Punjab and Haryana)' 2018(4) PLR 665. It needs to be reiterated here that in 'Bhoop Singh versus Ram Singh Major' reported in (1996) SCC 196, the Hon'ble Apex Court has laid to rest the law on this. The following propositions were laid down:-
(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 immoveable 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 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."
Reverting back to the instant case, all the litigants to the suit admittedly, are brothers and sisters and the main contest that has come about is between Gurdial Singh and Paramjit Singh in which Parminder Kaur too, has unwillingly being made a party. Thus, 12 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -13-
the arrangement that has come about between the siblings is covered within the concept of family settlement being members of the same family have entered into a settlement amongst themselves over the property which each of them was likely to inherit and had a right of inheritance to this property and, therefore, such a settlement is not required to be compulsorily registered. Reliance has sought to be placed by the respondents on the ratios laid down in judgments titled as 'Placido Francisco Pinto (D) by LRs and another versus Jose Francisco Pinto and another' Civil Appeal No.1491 of 2007; 'Shah Bharatkumar versus Motilal and Bharulal' 1980 AIR (Gujarat) 5; 'Kale versus Deputy Director of Consolidation' 1976 AIR (SC) 807; 'Gian Chand versus Bhagwant Rai' RSA No.395 of 2021 (O&M); 'Som Nath versus Rajinder Kumar (Punjab and Haryana)' RSA No.4201 of 2006; 'Chandi Ram versus Reshma Devi (P&H)' 2010 (3) PLR 510 and 'M/s Mohan Lal Varinder Kumar versus Piara Singh (P&H)' 1998(3) RCR (Civil) 632 which are factually at much variance from the case in hand and do not, in any manner, advance the case of the respondents' side.
Furthermore, what perplexes the Court is that how the learned First Appellate Court has allowed the appeal of Parminder Kaur challenging the judgment/decree dated 16.01.2017 of the learned Civil Judge (Junior Division), Phagwara, when Parminder Kaur in the said suit did not choose to assail the averments in the plaint and has rather admitted in her written statement the contents 13 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -14-
of the plaint and, therefore, to the mind of this Court, once she concedes to and accepts the contents of the plaint she has no right and locus standi to challenge the findings emancipating from that judgment/decree which are as per her own admission in the written statement. More so, nowhere in the entire records, Parminder Kaur is laying any claim by way of share in the disputed property and rather in pursuance of family settlement dated 15.03.1985 had conceded to the share of her brother-Paramjit Singh and how the learned First Appellate Court has allowed her appeal is anybody's' guess. More so, documents (Ex.P-11 to Ex.P-50) Ex.PW-8/A, Ex.PW-8/B, Ex.PW-10/A to Ex.PW-10/C are documents of much consequence and rather advance the case of the plaintiff which the learned First Appellate Court has lost sight of thus rendering the findings under challenge to be illegal and perverse. Besides this, it is well elicited on the records that earlier Parminder Kaur singly challenged judgment/decree dated 14.06.1996 by way of Civil Suit No.34 dated 27.01.2015 and which suit was dismissed against plaintiff-Parminder Kaur vide order dated 13.07.2016 (Ex.P-59) is on the record and, subsequently, Parminder Kaur vide order dated 20.07.2020, had withdrawn her suit which as such stood dismissed as withdrawn. The judgment/decree dated 14.06.1996 as such, has attained finality for all intents and purposes.
In view of the aforegoing discussions, the learned First Appellate Court has misconstrued the evidence and the stands of the 14 of 15 ::: Downloaded on - 23-01-2022 18:06:44 ::: RSA-435-2021 (O&M) & RSA-427-2021 (O&M) -15-
parties and which was in utter disregard of the settled proposition of law. The findings so arrived at being illegal and perverse needs to be set aside by way of acceptance of both the appeals thereby, setting the impugned judgment/decrees, however, with no order as to costs.
Both the appeals stand allowed.
(FATEH DEEP SINGH)
15.11.2021 JUDGE
Neha
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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