Anand Deep Singh vs Ranjit Kaur & Ors.
2000 Latest Caselaw 484 Del

ORDER

J.B. Goel, J.

1. Two applications, I.A. 7928/95 and I.A. 180/98 by defendants No. 9 and 10 and third application IA No. 5125/96 by defendant No. 8 have been filed under Order 23, Rule 3 CPC for setting aside the compromise decree passed on 25.8.1993.

2. Briefly the facts are that plaintiff Anand Deep Singh had filed a suit for partition of immovable and movable properties, declaration of rights in the property and for rendition of accounts thereof. The properties are alleged to be owned by late Sir Datar Singh. Sir Datar Singh died on 17.5.1973 leaving behind his widow, lady Satwant Datar Singh, two sons, Kanwar Mahinder Pal Singh and S. Maninder Singh and two daughters, Smt. Amteshwar Anand (defendant No.8) and Smt. Kirpal Kaur (defendant No. 9). His widow died on 6.6.1979, Kanwar Mahinder Pal Singh, died on 4.4.1981 defendants No. 1 to 5 are his widow and four daughters, S. Maninder Singh also died on 24.9.1987, leaving behind plaintiff, and defendant No. 7, two sons, defendant No. 6 his widow and defendants No. 11 & 12 two daughters. Defendant No. 10 is the daughter of defendant No. 9. Plaintiff had claimed partition in respect of the following properties :-

Schedule "B"

(1) Agricultural land measuring 322 acres situated at village Pipal Kheria, Distt. Raisen, M.P.

(2) Agricultural land measuring 154 acres at Behragarh, Bhopal in villages Bheta and Laukheri, Tehsil Hazur, Distt. Bhopal.

Schedule "C"

(1) Agricultural land at village Punjab Khore, Delhi measuring 1404 Bighas 8 Biswas;

(2) Rural land and 5 buildings in Abadi Die;

(3) House No. 15 on Plot No. 63, Block "A", New Rohtak Road, measuring 2485 sq. yds.;

(4) House No. B-68 Greater Kailash Part I, New Delhi measuring 1000 sq. yds.;

(5) Properties with Mountgumri Cooperative Joint Farming Society, Punjab Khore, Delhi of which Sir Datar Singh was the founder;

Schedule No.II

(6) House known as Retreat, Lower Mall, Kasuali, H.P.

3. Moveable properties 10 tractors, 11 cars and two trucks and other implements and farm machineries.

4. Another suit No. 63/75 had earlier been filed by S. Maninder Singh, father of plaintiff for partition.

5. During the pendency of these suits, defendants No.7, 9 and 10 had filed I.A. No.1860/93 Ex.C-8 under Order 23, Rule 3 CPC entering into compromise as mentioned therein. This application was taken up by Court on 18.3.1993 when the counsel for defendants No. 7, 9 and 10 accepted its correctness and counsel for plaintiff and other defendants raising no objection. That application was allowed and taken on record on 18.3.1993.

6. Another similar application I.A. 4252/93 Ex. C-8 under Order 23, Rule 3 CPC was filed on behalf of defendants 7 and 8, who also entered into compromise. This application was taken up by the Court on 27.5.1993. Learned counsel for the applicants made statement about its correctness in the presence of the counsel for plaintiff and other defendants, who had no objection. This was also accepted and taken on record.

7. Another joint I.A. No. 7382/93 Ex.C-6 was filed on behalf of plaintiff and defendants No.1 to 12 signed by plaintiff, defendants 1 to 7, 11 and 12 and defendant No. 7 signed as assignee of defendants 8 to 10 also under Order 23 Rule 3 CPC along with a document, called Family Settlement (Ex. C-1) besides other annexures, seeking to pass a decree in terms of the compromises Ex C-6, C-7 and C-8 and family settlement Ex C-1 (i.e. compromise I.A. 7382/93, I.A. No.1860/93 and I.A. No.4252/93). This application was taken up on 25.8.1993 in the presence of counsel for plaintiff, counsel for defendants No.1 to 5 and defendants No. 6, 7, 11 and 12 and plaintiff, defendants No.1, 3 and 5 and were present in person. The statement of Virender Mohan Singh (defendant No.7) and Mrs. Ranjit Kaur (defendant No.1) were recorded. The Court accepted it and compromise decree was passed on 25.8.1993.

8. Decree was drawn on non-judicial stamp paper of Rs.15,000/- with this family settlement Ex.C-1 and compromises Ex. C-6, C-7 and C-8 as part of the decree. Thereafter, the aforesaid application I.A. No.7928/95 by defendants No.9 and 10 and I.A. No.5125/96 by defendant No.8 were filed for setting aside/recalling the aforesaid compromise decree. Defendants No.9 and 10 filed yet another application I.A. 180/98 on 3.1.1998 supplementing their objections with additional facts/grounds. Replies and rejoinders have been filed in these applications.

9. I have heard learned counsel for the parties at length. Before considering the case on merits, two legal objections raised by the parties are being taken up first. Objection has been taken on behalf of defendants 8 to 10 that the decree passed on the basis of compromise affects immovable property, it required compulsory registration under Section 17 of the Indian Registration Act and the decree not having been registered is void and unenforceable. This is disputed by the learned counsel for the other parties on the ground that the case falls under Section 17(2)(vi) thereof as the decree comprises of the properties which are the subject matter of the suit and it does not require registration.

10. Section 17 of the Indian Registration Act so far as relevant reads:-

17. Documents of which registration is compulsory. The following documents shall be registered, if :-

     1(a)       x x x    x x    x x x    x x x  x x x   x x x   x x x
 

     (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, or of the value of one hundred rupees and upwards, to or in immovable property. 
 

     (c), (d) & (e) x x x       x x x   x x x   x x x   xx x x
 

     2. Nothing in Clauses (b) and (c) of sub-section (1) applies to:- 
 

     (i) to (v)         x x x   x x x   x x x   x x x   xx x    xxx
 

     (vi)  Any  decree or order of a Court except a  decree  or  order expressed  to be made on a compromises and comprising  immoveable property other than that which is the subject matter of the  suit or proceeding; or
 

     (vii) to (xii)     x x x   x x x   x x x   x x x   xxx
 
 

     This  means that a consent decree is exempted from registration if  it does  not comprise immovable property other than that which is the  subject matter of the suit. 
 

11.  The Supreme Court in Bhoop Singh Vs. Ram Singh Major  has  considered  elaborately the circumstances in the Clause (vi)  of  sub-

section (2) of Section 17 which would come into play for determining the question when a compromise decree is compulsorily registerable. It was held that this Clause (vi) engrafts an exception to the instruments covered by Clauses (b) & (c) of sub-section (1). It relates to any decree or order of a court including a decree or order expressed to be made on a compromise comprising immovable property which is the subject matter of the suit or other proceedings. It applies to those decrees which declare the pre-existing right and does not by itself create new rights, title or interest in presented in immovable property of the value of Rs.100 or upwards. Compromise decree should, however, be bona fide and not a device to evade payment of stamp duty and frustrate the law relating to registration. A Division Bench of this Court in P.K. Nangia Vs. Land and Development Officer, New Delhi & Another also has held that a decree of partition affecting partition of immovable property falls under Section 17(1)(b) and if it does not comprise of immovable property other than that which is the subject matter of the suit or proceedings does not require registration under the exception mentioned in Clause (vi) of Sub-section (2) of Section 17. In the present case the compromise on which decree has been passed comprises of only those properties which are subject matter of the suit, the dispute is bona fide in respect of property claiming pre-existing rights of the parties therein and does not create any new rights in the parties. It falls under exception in Clause (vi) of sub-section (2) of Section 17 and thus the decree in question does not require registration. This objection thus has no merit.

12. An objection has also been raised on behalf of the plaintiff and defendants 1 to 5, 6, 7, 11 and 12 that these applications are not maintainable under Order 23, Rule 3 CPC and the remedy, if at all any is available, lies under Order 43 Rule 1A CPC or by way of appeal under Section 96 of the CPC and these applications are not maintainable, whereas learned counsel for the applicants/defendants 8 to 10 have contended that these applications are proper and maintainable. They have relied on Banwari Lal Vs. Chandro Devi (through L.Rs.) & Ors. . This aspect has been considered by the Supreme Court in this judgement of Banwari Lal and it has been held that in view of Amending Act introducing a proviso alongwith an Explanation to Rule 3 of Order 23 CPC and also Rule 1(m) of Order 43 having been deleted, the court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction has been arrived at on the basis of any lawful agreement or compromise in view of the Proviso read with the Explanation thereof, the court which had entertained the petition of compromise has to decide whether the compromise was void or voidable under the Contract Act. As such a challenge to the compromise or compromise decree could be made by a petition under Proviso to Rule 3 of Order, 23 or by way of an appeal under Section 96(1) of the Code in which the question of validity of compromise could be challenged in view of Rule 1A of Order 43 of the Code. These applications thus are maintainable. This objection also has no merit.

13. To decide the controversy raised it will be relevant to refer to the scope and purpose of provisions of Order 23, Rule 3 CPC and also the power of the Court to interfere in a decree passed as a result of compromise/settlement. Rule 3 of Order 23 reads as under:-

"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit."

     Provided x x x      x x x   x x x   x x x
 

     Explanation  - An agreement or compromise which is void or  voidable  under the Indian Contract Act, 1872 shall not be deemed  to be lawful within the meaning of this Rule.  
 

14. Before passing a decree on a compromise under this rule, the Court has to satisfy itself as to three aspects, first it must be proved to the satisfaction of the Court that the suit has been adjusted wholly or in part; secondly, the adjustment is by way of a lawful agreement or compromise and thirdly, the agreement or compromise is in writing and the same has been signed by the parties. Only on satisfaction of these conditions, the court is vested with the jurisdiction to pass a decree in accordance therewith. Though the language used is "shall pass a decree in accordance with the compromise" which is of mandatory in nature, however the Court is not obliged to pass a decree in accordance therewith, if it is of opinion that all or any of the terms of the compromise or agreement is opposed to public policy or is intended to defeat provision of any law or has some doubt about the genuineness of the signatures of the party in the petition. The Court would also be justified in not passing a decree in the case of a compromise of part of the subject matter of the suit which did not include a party whose interest could not be separated. In the absence of any bar or restriction, there can also be a consent decree between some of the parties at one stage and another decree between the rest of the parties later on. Once the court is so satisfied and passed a decree on compromise it is binding upon the parties thereto like a decree passed by invitum. A judgement by consent is intended to shorten litigation between the parties as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment and has binding force like res judicata, of course unless it is vitiated by fraud, misrepresentation or other like grounds which renders the agreement or compromise void or voidable under the Contract Act. Once a decree is so passed the endeavour of the court should be to construe it in such a way which tends to shorten litigation and to resist any attempt on the part of any of the parties to construe the decree in such a way as to multiply litigation (Bilas Devi Vs. Bansidhar Sahu and V.N. Sreedharan Vs. Bhaskaran ).

15. In this case the parties to the suit and the compromise are not strangers but near relations who claim succession, right and interest in the properties through the same, not distant, common ancestor i.e. deceased Sir Datar Singh, defendants 1 to 5 are heirs of his one son Kanwar Mahinder Pal Singh being widow and children, plaintiff, defendants 6, 7, 11 and 12 are the heirs i.e. wife and children of other son, Sardar Maninder Singh and defendants 8 and 9 are his daughters while defendant No. 10 is a grand daughter. Obviously the compromises in this case were by way of family settlement. The family settlements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The object of the arrangement is to protect the family from long drawn litigation or perpetuating strafes which mar the unity and solidarity of the family and create hatred and bad blood between various members of the family. The Courts have leaned in favour of upholding a family agreement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect, the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to the family arrangement seeks to unsettle a settled dispute and seeks to revoke family arrangement under which he has himself enjoyed some material benefits. Family arrangements are governed by those principles which are not applicable to dealings between strangers. The Court when deciding the rights of the parties under family arrangements or claims to upset such arrangements considers what is best for the interest of families and have regard to considerations which in dealing with transactions between persons not members of the same family would not be taken into account.

16. The Courts have taken very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Court is that if by consent of the parties a matte has been settled it could not be allowed to be reopened by the parties to the agreement on frivolous and untenable grounds. The courts have laid down that a family arrangement clearly operates as an estoppel so as to prevent all the parties who have taken advantage under the agreement from revoking or challenging the same. This legal position has been noticed in Kale and Others Vs. Deputy Director of Consolidation and others, after considering the relevant English and Indian case law.

17. Defendants No. 9 and 10 entered into compromise with defendant No. 7 and filed in Court joint compromise petition under Order 23 Rule 3 CPC (IA 1860/93 Ex C-7). Defendant No. 7 (V.M. Singh) is son of Maninder Singh and grandson of Sir Datar Singh while defendant No. 9 Smt. Kripal Kaur is daughter of deceased Sir Datar Singh and defendant No.10 is daughter of defendant No. 9. In the compromise it is specifically mentioned that because of intervention of common friends and relations and on mutual discussions the parties have decided to settle and have settled all the disputes and differences with regard to "the subject matter of the suit and even otherwise in relation to the properties on the terms and conditions mentioned therein". It is also recorded in this application that this compromise has been arrived at by the mutual consent, of free will and without any duress or pressure (Paras 2, 3 and 4). Clause (d) in para 3 provided:

"(d) That Smt. Kirpal Kaur and Km. Guneeta have relinquished, released, given up, assigned all their rights, title and interest in all the moveable and immovable properties which are the subject matter of the present suit or such properties which are the subject matter of the suit No. 63 of 1975. All these properties to the extent of the share of Smt. Kripal Kaur and Km. Guneeta shall deem to vest, be the exclusive properties of Shri V.M. Singh subject to the payments being made as specified. Shri V.M. Singh shall be the owner of all interest, rights and benefits that have accrued or may accrue in favour of Smt. Kirpal Kaur and Km. Guneeta and shall deem to vest with all the benefits accruing to Shri V.M. Singh and would deem to have been assigned in his favour and he shall be treated the exclusive owner to the extent of share owned by these two defendants including the shares devolving on her from late Sir Datar Singh, late lady Satwant Datar Singh, HUF or otherwise. Smt. Kirpal Kaur and Km. Guneeta also release, relinquish and assign their rights in 4.3 acres of land situated in Kh. No. 128 of Village Behta, Bairagarh, Bhopal standing in the names of Smt. Kirpal Kaur and Km. Guneeta."

18. In consideration thereof defendant No. 7 was to pay to them Rs. 50 lakhs, out of which Rs. 5 lakhs were given at the time of signing this agreement as mentioned therein and for the balance amount of Rs. 45 lakhs 7 post dated cheques three of Rs. 5 lakhs each and four of Rs.7.5 lakhs each were given (para 3 (b)). Defendant No. 7 had also agreed (in claim 3(c) to relinquish his rights and title in house in Bhopal as under:-

"That Shri V.M. Singh relinquishes and releases the share that would devolve upon him on partition in house in Bhopal known as Sir Datar Singh House with outhouse and appurtenant area to the said building approximately 1 Acre in favour of Smt. Kirpal Kaur and Kum. Guneeta. Shri V.M. Singh shall endeavour to obtain rights in the said properties completely in favour of Smt. Kirpal Kaur and Kum. Guneeta at the time of final partition. In case of the same not being successful, Shri V.M. Singh shall pay an amount of Rs.5 lakhs to Smt. Kirpal Kaur and Kum. Guneeta collectively at the time of such final partition of suit properties for the shares of the other parties. Apart from this house, outhouse and appurtenant land Smt. Kirpal Kaur and Km. Guneeta will not have any right, title or interest in any other property in Bhopal or otherwise."

19. All the liabilities, litigation etc in respect of the properties have been undertaken by defendant No. 7 (Clause (e)).

20. Defendants No. 9 and 10 had also admitted in clause 3(c) that "apart from this house, outhouse and appurtenant land Smt. Kirpal Kaur and Km. Guneeta will not have any right, title or interest in any other property in Bhopal or otherwise. With these terms the parties made the following prayer in the compromise application to the Court:-

"(a) accept the present compromise arrived at between the present applicants.

(b) pass such other and further orders as this Hon'ble Court deems fit and proper in the facts and circumstances of the present case."

21. The compromise petition is signed by defendants No. 7, 9 and 10 and their advocates and is also supported by the affidavits of the parties. Counsel for these defendants No. 7,9 and 10 also appeared in Court on 18-3-93 and made statements accepting the factum and correctness of this compromise (C-7) in the presence of counsel for the plaintiff, defendant Nos. 1 to 5, 6, 8, 11 and 12, the latter had raised no objection. The compromise was accepted by the Court. By this compromise parties had mutually relinquished rights in respect of the properties in favour of each other and obviously resolved the disputes qua their share in suit property between defendant No. 7 on one hand and defendant No. 9 and 10 on the other. A decree possibly was not passed as other parties in the suit had yet not entered into the settlement and obviously passing of decree thereon was postponed till the other parties had also entered into similar compromise and if necessary they may also finally ratify it. Then defendant No. 8 (Smt. Amteshwar Anand) entered into similar compromise with defendant No. 7 and moved a joint application under Order 23 Rule 3 (IA No. 4252/93 Ex C-8). In this application also it is mentioned that because of the intervention of the common friends and relations and because of mutual discussions they have decided to settle their disputes and have settled all their disputes and differences with regard to the subject matter of the suit and even otherwise in relation to the properties on the terms and conditions mentioned therein, by the mutual consent and of their own free will and without any duress and pressure (paras 2,3 and 4). By this compromise defendant No. 8 in clause (f) of para 3 had stated as under:-

"(f) That Smt. Amteshwar Anand has relinquished, released, given up, assigned all her rights, title and interest in all the moveable and immovable properties which are the subject matter of the present suit or such properties which are the subject matter of the suit No.63 of 1975, subject to clause (e) aforesaid. All these properties to the extent of the share of Smt. Amteshwar Anand shall deem to vest, be the exclusive properties of the defendant Shri V.M. Singh subject to the payments being made as specified aforesaid. Shri V.M. Singh shall be the owner of all interests, rights and benefits that have accrued or may accrue in favour of Smt. Amteshwar Anand and shall be deem to have been assigned in his favour and he shall be treated as the exclusive owner to the extent of share owned by Smt. Amteshwar Anand including the shares devolving on her from late Sir Datar Singh, ate Lady Satwant Datar Singh, HUF or otherwise."

and in Clause (d) further stated:-

"(d) That Smt. Amteshwar Anand hereby acknowledges that she has already received consideration from Shri V.M. Singh in respect of her rights which would have accrued on partition in respect of the entire properties situated at Villages Behta, Borban and Laukheri, Teh. & District Bhopal and also Village Pipal Kheria, Distt. Raisen (M.P.) and also 44 acres of land at village Pipal Kheria, Raisen standing in name of her son Virender Sigh Anand."

And in consideration defendant No. 7 had agreed :-

(1) To pay Rs.15 lakhs on or before 30-6-94 (para 3 (a)). (2) defendant No.8 will "have a lien" over 8 acres of land falling to the share of V.M. Singh at Punjab Khor, Delhi, which has devolved on him by succession; till the said payment of Rs.15 lakhs is made by him to Smt. Amteshwar Anand. (Clause 3(b)).

(2) Defendant No. 7 had also undertaken the liability of litigation etc. in respect of her properties.

22. In this application, defendants No. 8 and 9 had made the prayer to the Court as under :-

"(a) accept the present compromise arrived at between the present applicants.

(b) pass such other and further orders as this Hon'ble Court deems fit and proper in the facts and circumstances of the present case."

23. This application is also signed by defendants 7 and 8 and their advocates and is supported by affidavits of defendants 7 and 8. This compromise was recorded by the Court on 27-5-93 in the presence of counsel for defendants 7 and 8, who had accepted the correctness of this compromise.

24. The compromise Ex.C-7 and Ex.C-8 were obviously intended to be used for passing compromise decree. These were not withdrawn later on. Thereafter IA No.7382/93 under Order 23 Rule 3 (Ex C-6) along with "family settlement" Ex C-1 was filed in the Court, on behalf of all the parties, signed by plaintiff, defendants No.1 to 5, 6, 7, 11 and 12, but on behalf of defendants No. 8, 9 and 10, defendant No.7 has signed as assignee. This compromise petition was presented before the Court on August 25, 1993 in presence of counsel for the plaintiff, counsel for defendants No.1 to 5, counsel for defendants No. 6, 7, 11 and 12 and plaintiff, defendant No.1, 3, 5 and 7 were present in person. The Court recorded the statements of Mr. Virender Mohan Singh, defendant No.7, who admitted the correctness of the compromise and the documents annexed thereto and also statement of Mrs. Ranjit Kaur, defendant No. 1, who had admitted the statement made by defendant No. 7 and also the compromise petition. Parties had assured the Court to pass decree on their compromise petitions. The Court had passed the following order :-

I.A.7382/93 & S.No.1495/89

25. Plaintiff and defendants 1, 3, 5 and 7 are present in Court today. Let statement of necessary parties i.e. plaintiff in S.No.63/75 who is defendant No.7 in S.No. 1495/89 and defendant No.1 in both these suits be recorded.

ORDER

26. Statements of plaintiff Mr. Virender Mohan Singh in S.No.63/75, who is also the defendant No.7 in S.No.1495/89 and Smt. Ranjeet Kaur who is defendant No.1 in both these suits have been recorded. I have heard the learned counsel for the parties. Learned counsel for the parties submit that both the suits i.e. S.No.1495/89 and S.No.63/75 be decreed in terms of the settlement Ex.C-1 and applications for compromise which are Exs.C-6, C-7 and C-8. I am satisfied with the aforesaid compromise. Accordingly, I direct that both these suits be decreed in terms of settlement Ex.C-1 and applications for compromise Ex.C-6, Ex.C-7 and Ex.C-8. Parties are, however, left to bear their own costs. Decree sheet be drawn accordingly.

27. Subsequently non-judicial stamp of Rs.15,000/- was also paid and a decree was drawn.

28. Inter alia two common objections have been raised in their applications on behalf of defendants No.8, 9 and 10, that Shri V.M. Singh had no authority to sign this compromise petition on their behalf as assignee nor to make statement on their behalf and this compromise is not binding on them. Learned counsel for other parties have contended that defendants No. 8,9 and 10 had already entered into compromise and their further statements were not required and other parties have accepted the compromises arrived at by defendants 8,9 and 10 with defendant No. 7 in compromise petitions Ex C-7 and C-8 to which the other parties had no objection or dispute, obviously accepting Ex C-7 and Ex C-8.

Whether defendants No.8 to 10 were necessarily required to sign compromise Ex C-6 and/or family settlement Ex C-1?

29. As already noticed defendant Nos.9 and 10 and defendant No. 7 by virtue of settlement Ex C-7 and defendant No. 8 and defendant No.7 by virtue of settlement Ex C-8 had already compromised and mutually settled and adjusted their rights and claims in the suit properties, which were presented before and recorded by Court and possibly a decree was not passed on the basis of those settlements on the dates when these compromises were recorded by the Court as the remaining subject matter of the suit was yet to be compromised by others. These two compromises C-7 and C-8 completely and fully contains the settlement/adjustment of the disputes between defendants No. 8, 9 and 10 on the one side and defendant No.7 on the other in respect of their claims and rights in the suit properties. These contained mutual covenants transferring some of the properties inter se. In the family settlement Ex C-1 and the joint compromise petition (IA No. 7382/93 Ex C-6) factum of compromises C-7 and C-8 has been incorporated without any objection and obviously accepting the same as correct and thereby binding them without raising any dispute about the rights in the properties claimed and settled by compromises Ex C-7 and Ex C-8. Relevant recitals in family settlement in this respect are made as under:-

"AND WHEREAS the said S.Virdender Mohan Singh has represented to the First Party that on joint applications (copies whereof are annexed hereto) bearing IA No. 1860 of 1993 and IA No. 4252 of 1993 being made before the Delhi High Court in Suit No. 1495 of 1989, the Hon'ble Court has accepted the assignments made in favour of S.Virender Mohan Singh by Smt. Kirpal Kaur, Kumari Guneeta and Smt. Amteshwar Anand on the 18th March, 1993 and 27th May, 1993.

AND WHEREAS the said S.Virender Mohan Singh has also represented, assured and undertaken to the First Party that any present or future claim that may be made by either Smt. Amteshwar Anand, Smt. Kirpal Kaur and Kumari Guneeta, and Kum. Guneeta, shall be the sole liability of the said S. Virender Mohan Sigh and shall be satisfied and adjusted from the share and/or properties of the said S.Virender Mohan Singh;" (Defendants 1 to 5 are 'First Party whereas plaintiff, defendants 6, 7, 11 and 12 are Second Party in this instrument.)

Factum of the compromises C-7 and C-8 has also been recorded in joint petition Ex C-6 in paras 2 and 3.

30. In Ex C-1 'Family Settlement' has been arrived at as under:-

1. The lands situated at villages Pipal Kheria and Saidganj in Dist.Raisen (M.P.) and villages Behta Borban and Laukheri at Bairagarh, Bhopal (M.P.) shall be the exclusive property of the Second Party and the First Party shall have no right, title, interest or claim therein.

2. The land and building situated at Abadi Deh, Punjab Khor, Delhi, shall be divided between the First Party and the Second Party in partition, shown as green and red in Schedule A annexed therewith.

3. Second party shall release and transfer land measuring 203 bighas and 16 biswas out of 153.8 acres of agricultural land at village Punjab Khor in possession of first party.

4. The house and land at 15, Guru Gobind Singh Marg, (New Rohtak Road), Delhi admeasuring 2485 Sq. yds. shall be divided equally between first and second parties as per decree passed by learned Sub Judge, Delhi on 9th September, 1963 in S.No. 554 of 1963 in two equal portions shown as red and blue in annexure Schedule C.

5. The house at Kasauli known as 'THE RETREAT', was purchased by deceased Kr. Mahinderpal Singh - the predecessor in interest of the First Party from the Montogomery Cooperative Joint Farming Society Ltd. vide a registered Sale Deed dated 6th May, 1965 along with assets of the said society, if any, shall belong to first party.

6. House No. B-68, Greater Kailash, New Delhi on 1,000 sq.yd of land which was purchased in the name of Smt. Ranjit Kaur by means of registered sale deed dated 12th May, 1965 shall belong to her (defendant No. 1) or her family members.

7. Parties have given up all claims in respect of moveable properties or any other properties and claim for accounts also deemed to have been settled.

31. This compromise and family settlement have clearly accepted the factum and correctness of the settlements/compromises entered into by defendants No.7 on the one side and defendants No. 8,9 and 10 on the other in Ex C-7 and C-8. These do not affect the claims and settlements mentioned in Ex C-7 and Ex C-8 and by these three sets of documents the parties to the suit have compromised and settled the disputes in respect of all the properties involved in the suits. In view of this separate consents of defendants No. 8,9 and 10 were not required for their ratification of the family settlement Ex C-1 and compromise Ex C-6. As such defendants' No. 8,9 and 10 not having signed the same is of no consequence and does not affect the validity of the settlements incorporated in Ex C-1, C-6, C-7 and C-8. It is also not the case of defendants No. 8 to 10 that settlement and compromise Ex C-1 and Ex C-6 affect their rights or interest as agreed in Exs. C-7 and C-8 in any way. These three sets of settlements make it a complete settlement between the parties. Defendants No. 8,9 and 10 have not raised any disputes so far as settlement as contained in family settlement Ex C-1 and C-6 are concerned. Hence their objection that compromise C-6 and family settlement C-1 are not signed by them or they were not present, or their statements were not recorded by the Court, have no merit and is of no consequence.

32. Two suits, one Suit No. 63/75 filed by S. Maninder Singh against other co-sharers and the other present suit were filed claiming partition, declaration and for rendition of accounts. First suit was pending for 18 years. During the period, three co-sharers, the widow and two sons of Sir Datar Singh had died. By virtue of compromises Ex C-1, C-6, C-7 and C-8 entered into between the parties which collectively constitute a whole family settlement amongst themselves, the parties had compromised and settled their all inter se claims and disputes bona fide in respect of the suit properties. They invited the Court to accept the same and pass decree thereon. These were so accepted by the Court and a compromise decree was passed by the Court on 25.8.1993. The rights and claims of all the parties stood finally settled and adjusted and perhaps also implemented if not wholly substantially. The parties have thereby mutually derived benefits thereunder. If this compromise decree is set aside that would unsettle their settled claims/rights/interest resulting in further unending litigation among them. That will not be in the interest of family peace and harmony.

33. In pursuance of the settlement Ex. C-8, defendant No. 7 had relinquished and released his share in house at Bhopal known as Sir Datar Singh House with outhouse and appurtenant area thereto approximately 1 Acre) in favour of Smt. Kirpal Kaur and Kum. Guneeta (defendants No. 9 and 10). No claim or objection to this has been made or raised by other co-sharers. It is not disputed that this part of the settlement stood implemented and thus is binding on the parties. Apart from this defendants No. 9 and 10 had relinquished, released, given up, assigned all their rights, title and interest in all the moveable and immovable properties comprised in the suit, in favour of defendant No.7 as the exclusive owner to the extent of their share, for a consideration of Rs.50 lakhs. Out of this a sum of Rs.18 lakhs has admittedly already been paid. It is not that the liability to pay the balance amount of Rs.32 lakhs is being disputed or denied. For payment of this balance amount defendant No. 7 insisted to have a General Power of Attorney from defendants 9 and 10 to implement the arrangement and to perfect his title in the properties transferred to him. This is not unreasonable demand and from the very nature of the circumstances such a document was very much required to be given by them which they had also agreed to give. In any case it is not that this amount could not be recovered from defendant No. 7 by execution of the compromise decree passed in the suit or otherwise. The decree cannot be set aside for this reason. The compromise/settlement has been at least partly implemented and defendants 9 and 10 have derived benefit thereunder. Defendants No. 9 and 10 had accepted the settlement, received part consideration and also got released from defendant No. 7 his right of share in the family house at Bhopal. They cannot be allowed to challenge the legality and validity of the settlement and also the compromise decree and thereby to approbate and reprobate. Also the settlement Ex C-7 was recorded in Court on 18-3-93 and the compromise decree was passed on 25-8-93. The first application IA 7928/95 for setting aside the compromise decree was filed on 14th July, 1995 i.e. after about 2 years of the compromise decree was passed. If the intention of the parties was to make the time for payment as of essence to be paid on the dates for which post dated cheques were given, it would have been specifically so mentioned therein. Moreover some of the cheques were dishonoured. In that case it would have given right to repudiate the settlement forthwith, which they did not do and on the other hand accepted further payments against some of the dishonoured cheques which is contrary to the time being of the essence. In this application it is stated that some of the cheques were dishonoured and the prayer made is "that this Hon'ble Court may be pleased to direct defendant no. 7 to remit the said amount under the cheques or in the alternative cancel the said compromise and decree passed by the Court. If their claim for balance money is satisfied they will have no grievance. These circumstances do not justify to set aside the decree.

34. Another application being I.A. 180/98 was filed by defendants 9 and 10 on 3.1.1998 under Section 151 CPC supplementing the grounds already taken in the earlier application. Firstly, the additional grounds could be taken by making amendment of the first application which has not been done. Secondly even if it is taken as an application for amendment. this application has been filed after a period of over four years and four months after the compromise decree was passed on 25.8.1993. These amendments could not be allowed claim being time barred when this application was filed. In any case the additional grounds taken are (1) it was understood and agreed between the parties that in case any of the post dated cheques are not encashed on their due dates, the compromise decree would become null and void and as only a sum of Rs.18 lakhs was paid and the balance amount of Rs. 32 lakhs has not been paid, the compromise became void. (2) Neither of the applicants/defendants were parties to the family settlement nor the same was signed by them or by their counsel and defendant No. 7 who has signed as their assignee was not so and this is not binding on them. (3) No decree was passed on the basis of their compromise petition (I.A. 1860/93). It was simply taken on record and disposed of without passing any decree preliminary or final or order thereon and as such there is no executable decree passed on 18th March, 1993. (4) The compromise/agreement/settlement was only an agreement to sell/transfer/relinquish the rights and interest of these defendants for a sum of Rs.50 lakhs and as the defendant No. 7 did not fulfill the obligations the same stood rescinded and became enforceable on account of gross breaches on the part of the defendants. (5) No transfer/assignment deed was executed and registered and as such no valid transfer/assignment took place. (6) The compromise/settlement order dated 18th March, 1993 was compulsorily registerable and having not been so registered is void and unenforceable. (7) The defendant No.7 defrauded the applicants by making false representation and by infusing faith and confidence in them. It is also alleged that they came to know of this fraud only in September, 1995 when the reply to the first application was filed by the defendant No.7.

35. For the reasons already noticed none of the grounds are legally tenable and the compromise decree is not liable to be set aside on these grounds. These applications I.As. 7928/95 and 180/98 thus have no merit and are dismissed.

36. In I.A. 5125/96 filed on behalf of defendant No.8 for setting aside the decree the grounds taken are that the compromise (Ex.C-8) was made in consideration of Rs.15 lakhs to be paid by defendant No.7 on or before June 30,1994 and for repayment of the same defendant No.7 had created lien on his 8 acres of land situated at Punjab Khor, Delhi, that this land was already mortgaged with Punjab National Bank, Nazafgarh and was the subject matter of S.No.425/84 in this Court which fact was not disclosed by defendant No.7 and thereby made fraudulent representations and committed fraud, (2) that her son Shri Virender Anand was owner and in 2 possession of 44 acres of land in village Pipal Kheria Raisen. For that the applicant was persuaded by defendant No.7 that the settlement arrived at was in the larger interest of the respective parties and thereby acquired the said property when it was not the subject matter of any of the two suits. (3) That the applicant had not received any monetary benefit or otherwise under the settlement or compromise.

37. In compromise petition (I.A.4252/93 Ex.C-8) defendant No.7 had not represented that the aforesaid 8 acres of land on which lien was created was free from any sort of encumbrances. It is also not stated in the application that the defendant No.7 had made any such representation at the time the compromise was entered into. Moreover, if the payment of Rs.15 lakhs was a condition precedent or was of the essence of the compromise, this fact would have been mentioned in the compromise. The compromise decree was passed on 25.8.1993 and this application has been filed on May 28, 1996. According to the applicant the payment was to be made on or before 30.6.1994. It is not her case that she had written to the defendant No.7 repudiating the compromise when the payment was not made on or before the due date.

38. In the absence of specific provision it cannot be said that the time was of the essence of the compromise. She has made wrong statement in the application that she has derived no benefit for entering into the compromise. In Clause 3(d) of the compromise (I.A.4252/93 Ex. C-8). She has acknowledged as under:-

"(d) That Smt. Amteshwar Anand hereby acknowledges that she has already received consideration from Shri V.M.Singh in respect of her rights which would have accrued on partition in respect of the entire properties situated at Villages Behta, Borban and Laukheri, Teh. & District Bhopal and also Village Pipal Kheria, Distt. Raisen (M.P.).

She thus having derived material benefits is estopped from raising objection against the validity of the compromise or the compromise decree. Also it cannot be said that the property that stood in the name of his son was not the subject matter of the suit and the same having been made as part of compromise she cannot take a contrary plea now.

39. In view of the above discussion this application has no merit and the same is also dismissed.

40. In the result all the three I.As. have no merit, are misconceived and misuse of the process of the Court and are dismissed with costs. Costs assessed at Rs. 5,000/- against each set of defendants i.e. defendant No. 8 as one and defendants 9 and 10 as other set.

41. I.As.7928/95, 5125/96 & 180/98 thus stand disposed of.