Delhi High Court
Sardarni Raminder Sarup Singh vs Govinder Singh on 7 May, 2010
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 07.05.2010
IA No. 6903/1996 in CS(OS) 3403/1991
SARDARNI RAMINDER SARUP SINGH ..... PLAINTIFF
Vs
GOVINDER SINGH ..... DEFENDANT
Advocates who appeared in this case:
For the Plaintiff : Mr Abhinav Vashisht, Mr S. Sirish Kumar, Mr Neeraj Singh & Mr Raman
Kumar, Advocates
For the Defendant: Mr Ashim Vachher & Mr Manjit Singh Ahluwalia, Advocates
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may
be allowed to see the judgment ? Yes
2. To be referred to Reporters or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
RAJIV SHAKDHER, J
IA No. 6903/1996 (u/s 151 of CPC by pltf.)
1. This is an application filed by Sardarni Raminder Sarup Singh the original
plaintiff who passed away on 29.11.2005. Sh. S. Tejinder Singh who is one of the sons
of Sardarni Raminder Sarup Singh has been brought on record as her legal representative
(in short „L.R.‟). By this application what is sought to be impugned is a consent decree
dated 25.11.1993. A perusal of the cause title and the reliefs prayed for in the suit would
show that Sardarni Raminder Sarup Singh had filed the suit to declare the "memorandum
of oral family settlement" dated 10.03.1989 arrived at between herself and her other son
Govinder Singh (defendant/respondent) as void. To be noted the said settlement is in
writing executed between the plaintiff and the defendant/ respondent. In the suit a
compromise was arrived at and the aforementioned decree dated 25.11.1993 was passed.
CS(OS) 1839/2009 Page 1 of 18
2. Therefore, in order to appreciate the scope and ambit of the captioned application
the following relevant facts will require to be noticed:
3. There subsist an internecine battle amongst the members of the family of late
Sardar Bahadur Singh. The cause for the battle is, as in most cases property or assets; in
this case, it is an immovable property being: No. 3, Sardar Patel Marg, New Delhi
(hereinafter referred to as the suit property). Sardar Bahadur Singh‟s family comprised of
himself, his wife, his three sons, namely, Sardar Satinder Singh, Sardar Tejinder Singh
and Sardar Govinder Singh, and one daughter Smt. Hemant Pasrich. The defendant/
respondent, i.e., Sardar Govinder Singh, is one of the three sons of Sardar Bahadur Singh.
It is not disputed that on 13.03.1971 a gift deed was executed by Sardarni Raminder
Sarup Singh whereby, 1/4th share in the suit property was gifted by her to the defendant/
respondent (i.e., Sardar Govinder Singh). Sardar Bahadur Singh expired in 1987, and it
seems thereafter trouble brewed in the family. What is at the heart of the dispute, which
the defendant/ respondent has with his other three siblings is the fact that each one of
them lay claim to an equal share in the suit property. In other words the defendant/
respondent having got his 1/4th undivided share in the suit property by virtue of the
aforementioned gift deed of 1971, the remaining portion ought to come in equal share to
other three siblings. The defendant/respondent, however, by virtue of the oral family
settlement of 10.03.1989 and thereafter the compromise purportedly arrived at between
his mother Sardarni Raminder Sarup Singh and himself lays claim to an additional 25%
(1/4th ) undivided share in the suit property. Consequently, the defendant/ respondent
claims that he has 50% (one-half) undivided share in the suit property as against 25%
(1/4th) which he was gifted, and in respect of which there is no dispute, by his late father
Sardar Bahadur Singh.
4. In the captioned application there are averments as to twists and turns which took
place, which first culminated in an oral family settlement of 10.03.1989, and thereafter
propelled the mother Sardarni Raminder Sarup Singh to impugn the same.
CS(OS) 1839/2009 Page 2 of 18
4.1 The ground, however, for impugning the consent decree dated 25.11.1993 is that
the defendant/ respondent had exercised "undue influence" and "coercion" which
resulted in failure on the part of the applicant to exercise free will in arriving at a
compromise, which she did, in the suit.
5. For the purposes of disposal of the application both counsels have agreed that if
the legal issue with regard to maintainability is determined then either way it would
decide whether any further steps are required to be taken in the instant suit. Therefore,
the submission was that without touching upon the allegations and counter-allegations as
to how the compromise was arrived at and thereafter impugned, it would be sufficient for
the purposes of disposal of this application if the court were to determine whether the
application is maintainable in the first instance. Accordingly, submissions were made in
this behalf by both counsel.
6. It was submitted by Mr Abhinav Vashisht, Advocate who appears for Sardar
Tejinder Singh and who has been impleaded as the legal heir of Sardarni Raminder Sarup
Singh vide order dated 03.02.2010, that the only remedy available in law to challenge the
consent decree dated 25.11.1993 is by way of the present application. He relied upon
order dated 03.02.2010 passed in suit no. 40/1997 entitled Sardarni Raminder Sarup vs
Sardar Govinder Singh; whereby the suit instituted to challenge the consent decree
dated 25.11.1993 was disposed of on the ground that it was barred by Rule 3A of Order
23 of the Code of Civil Procedure, 1908 (hereinafter referred to as „CPC‟). Therefore, it
was contended in nutshell that the objection of the learned counsel for the defendant/
respondent, was untenable. The applicant could not have been left without a remedy.
7. On the other hand Mr Vachher who appears for the non-applicant/defendant
submits that the captioned application has to be dismissed for the following reasons:
(i) there is a complete bar under Rule 3A of Order 23 of CPC to any challenge being
laid to a consent decree. For this proposition the learned counsel sought to place reliance
CS(OS) 1839/2009 Page 3 of 18
on the judgment of the learned Single Judge of this Court in the matter of Rajwanti &
Anr. vs Kishan Chand Shehrawat & Ors. 2009 (160) DLT 185. In particular, my
attention was drawn to the observations of the learned Judge made in paragraphs 17, 18
& 19;
(ii) the decree, if at all, could be set aside only on the ground of fraud and in that
sense there is no distinction between fraud played on the court and fraud played on the
party. There is no averment in the application pertaining to fraud. The only averment in
the application is that the applicant/plaintiff was made to execute the compromise by
employing undue influence and coercion which evidently disabled her from exercising
her free will. On these grounds, without more, the consent decree dated 25.11.1993
cannot be set aside;
(iii) and lastly, that the application in sum and substance seeks a review of the
judgment dated 25.11.1993. The period of review prescribed for under the Limitation
Act, 1963 (hereinafter referred to as the „Limitation Act‟) is 30 days. The application has
been filed way beyond the prescribed period of limitation and hence, ought to be
dismissed on this short ground.
8. In rejoinder, Mr Vashisht, apart from reiterating the submissions made in the
opening, laid stress on the fact that the present application is not an application for
review, therefore, this will fall under the residuary clause of the Limitation Act and
hence, the limitation of three years will be applicable.
9. I have heard the learned counsel for the parties. The first issue which requires
determination is whether the applicant, who now stands substituted by her LR Sardar
Tejinder Singh, can maintain the application in view of the observations in paragraph 15
in the case of Rajwanti (supra). Therefore, it would be necessary to deal with the facts
which obtained in the case of Rajwanti (supra). In that case a suit had been filed inter
alia for declaration that the consent decree passed by the Additional Distt. Judge, Delhi
CS(OS) 1839/2009 Page 4 of 18
was nullity. The plaintiff no. 1 in that case, was allotted a plot admeasuring 350 sq. mtr.
by Delhi Development Authority in lieu of her immovable property which had been
acquired. The plaintiff no. 1 and her daughter plaintiff no. 2 owned other immovable
properties which were also subject matter of the acquisition proceedings. The defendant,
who was the son of brother of the husband of plaintiff no. 1, was "trusted blindly" by
plaintiff no. 1. Therefore, the responsibility both for pursuing the receipt of
compensation in the land acquisition proceedings and the allotment of alternative plots
was given to defendant No.1. Defendant no. 1 obtained the thumb impression of plaintiff
no. 1 on blank leaves of paper as well as on some written documents. Both plaintiff nos.
1 and 2 were taken to the office of the Sub-Registrar at Kapasehra, where they were made
to append their thumb impressions on some papers. The photograph of plaintiff nos. 1
and 2 were also appended on the documents. The sum and substance was that plaintiff
nos. 1 and 2 were deceived by defendant no. 1 and other defendants, who were his
daughter and son-in-law, into believing that the plaintiffs had appended their signatures
on documents for the purposes of receiving compensation in respect of immovable
properties which had been acquired. In this connection General Power of Attorney as
well as Will was also executed in favour of the daughter of defendant no. 1, i.e.,
defendant no. 2 which resulted in the plaintiff being deprived of the plot allotted to her at
Rangpuri. When defendant no. 1 was confronted he apparently informed plaintiff no. 2
that he had purchased the land in issue for a sum of Rs 20 lacs out of which Rs 2 lacs had
been deposited in the account of plaintiff no. 1. Consequently, plaintiffs took immediate
steps for revocation of the Will and General Power of Attorney. Notice of revocation
was issued as well as representations were made to the Lt. Governor of Delhi, and
Commissioner of Police. The son-in-law of defendant no. 1, who was a judicial officer;
it was alleged, got plaintiff no. 1 and her relatives inveigled in a false case. First
Information Reports (FIRs) were instituted against plaintiff no. 1. Resultantly, a criminal
writ petition was filed by the plaintiff in this court for quashing of the FIR. During the
pendency of the writ petition defendant nos. 1 to 3 approached plaintiff no. 1 for
CS(OS) 1839/2009 Page 5 of 18
settlement, the compromise included withdrawal of FIR if plaintiff nos. 1 and 2 were to
give a statement to the court with regard to the plot at Rangpuri in favour of defendants in
a suit filed by the defendants. It was alleged that plaintiff no. 1 under coercion signed
several papers as sought for by the defendants. The plaintiffs, it appears, also appeared in
the Tis Hazari Court and made statement to the satisfaction of the defendant in the suit
filed by the defendants against the plaintiff. It is this compromise, which was challenged
by way of a separate suit.
9.1 In the background of these facts, the issue which came up for consideration before
the learned Single Judge was whether an independent suit was an appropriate remedy.
The learned Single Judge came to the conclusion, based on the provision of Rule 3A of
Order 23 of the CPC and after discussing the ratio of the provisions various judgments
cited before him, that no separate suit would lie. In the words of the learned Judge "The
law is, no independent suit lies and only remedy is by way of an application before
court passing the consent decree". Therefore, as a matter of fact in my opinion instead
of supporting the case of defendant/respondent it holds to the contrary on the procedure
to be adopted in for impugning a consent decree.
9.2 In my view on a plain reading of provisions of Rule 3A Order 23 of the CPC, it
cannot but be said that the applicant has taken a recourse to an appropriate remedy. Rule
3A of Order 23 of the CPC bars the institution of a suit on the ground that the
compromise on which the decree is passed was not lawful. In this case it may also be
helpful to notice the provisions of Section 47 of the CPC which provides that all
questions arising between the parties to the suit in which a decree is passed, or their
representatives, and relating to the execution, discharge and satisfaction of the decree,
shall be determined by the court executing the decree and not by a separate suit. It is well
settled that an executing court cannot go behind the decree. The decree can be
challenged on the ground that it is a nullity or is passed by a court lacking inherent
jurisdiction. The purpose of enacting Section 47 of the CPC was that all objections,
CS(OS) 1839/2009 Page 6 of 18
which are capable of determination by the executing court are disposed of by the
executing court itself, so that, a litigant after a tortuous grind in a suit can avail of a cheap
and speedy remedy without having to institute an independent suit. (See Prasanna vs
Kalidas 19 I.A. 166; Ramchand Spg & C vs Bijli Cotton AIR 1967 SCC 1334;
Harnandrai vs Debidutt AIR 1973 SC 2423)
9.3 Therefore, the policy of law is that decrees passed by civil courts, which have
attained finality, are not impugned easily unless grounds of challenge available in law,
are made good. The question then arises: is the challenge limited to decree being nullity
in the sense that it has been passed by a court lacking inherent jurisdiction or is obtained
by fraud. In my view, where an application is filed to impugn a consent decree the
challenge cannot be limited to the grounds articulated above. The reason for that is not
far to see. In a decree which is not a consent decree the scope of challenge is limited in
view of that fact that there is an adjudication of the dispute based on which a judgment is
rendered by a court of competent jurisdiction. A dissatisfied party can carry the
judgment in appeal and obtain a reversal. Against a consent decree no appeal is
available. In so far the executing court is concerned in the case of a contested decree, it
would necessarily be making a limited enquiry (if objections are raised) whether the court
which passed the decree lacked inherent jurisdiction or was the decree obtained by fraud.
Bearing in mind that: it is not an appellate court; the litigating parties have had full round
in court; and the avowed purpose of the legislation is to accord cheap and speedy remedy
to the litigants. Thus scope of challenge is decidely limited. This is, however, is not the
case in a consent decree which is based on a compromise. There is necessarily no
adjudication. The compromise is founded on an agreement between litigating parties.
Therefore, while it is clear that the grounds of challenge of a consent decree as against a
contested decree cannot be the same, the question is what are the grounds on which
challenge can be founded. In this regard, it may be necessary to examine Rule 3 of
Order 23 of the CPC. Rule 3 of the Order 23 along with the explanation for the sake of
convenience is extracted hereinbelow:
CS(OS) 1839/2009 Page 7 of 18
―3. Compromise of suit. - 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 the 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 compromise or satisfaction is
the same as the subject matter of the suit):
Explanation - An agreement or compromise which is void or voidable under the Indian
Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of
this rule."
9.4 A reading of Rule 3 Order 23 of CPC would show that Rule 3 casts two
situations: one where an agreement arrived at between the parties to the proceedings
which is in writing and signed by parties is placed before the court, and if the court is
satisfied that the suit has been adjusted in whole or in part, and is lawful; it then proceeds
to pass a decree in terms of a compromise arrived at between the parties. The second
situation which is provided for under Rule 3 of Order 23 of CPC is, where the defendant
satisfies the plaintiff with regard to the reliefs prayed for in the suit. The plaintiff may
either give up some reliefs or may even accept a lesser performance. The difference
between the two situations so to say is: in the first situation the plaintiff obtains an
executable decree for enforcement of a performance in terms of compromise arrived at
between the parties. In the second situation, since the defendant has already satisfied the
plaintiff as regards the relief sought for, nothing further remains to be done; and a decree,
if obtained, would not require execution. (See observation in Pushpa Devi Bhagat vs
Rajinder Singh (2006) 5SCC 566 paragraph 19 at page 577). Therefore, in so far as
first situation is concerned the court can pass a decree based on an agreement in writing
and signed by the parties. In the second situation, it would be sufficient compliance if the
plaintiff or his counsel appear before the court and submit that the subject matter of the
suit is settled or satisfied. [See Pushpa Devi (supra)]. Therefore, before the court orders
that a decree be drawn up, based on a compromise arrived at in writing between parties, it
CS(OS) 1839/2009 Page 8 of 18
is important for the court to determine that the agreement is lawful. The explanation
given in Rule 3 clearly stipulates that any agreement or compromise which is void or
voidable under the Indian Contract Act, 1872 (hereinafter referred to as "Contract Act")
shall not be deemed to be lawful within the meaning of the said Rule. Section 19 and
19A of the Contract Act specifically provides that contracts which have been obtained by
exercising fraud or misrepresentation or undue influence are voidable at the option of the
parties whose consent has been so obtained. It is quite possible that even though the
statements of parties are recorded by the Court before passing a consent decree based on
a compromise, the full panoply of fraud, misrepresentation, undue influence or even
coercion may not come before the Court at that stage or be within the knowledge of the
party to the suit which has entered into a compromise. The intendment of the legislature
has to be found in Rule 3 read with the explanation. The explanation to Rule 3 of Order
23 of the CPC is a clear pointer to the legislative intent that a consent decree can be re-
opened on the grounds enunciated in Sections 19 & 19A of the Contract Act. I am
conscious of the fact it may be suggested, that this is any exercise which the court is
empowered to carry out before proceeding to pass a consent decree and not after a
consent decree is passed. It may perhaps also be argued that since statements of parties
are recorded in court the grounds available under Section 19 and 19A of the Indian
Contract Act would not be available after the consent decree is passed. In my view if
such an interpretation is given then the aggrieved party, who has been subjected to undue
influence, coercion, misrepresentation or fraud, would have no remedy whatsoever in
law. The statement of parties recorded in court may be one of factors, which the court
may consider while finally arriving at a conclusion whether a consent decree should be
set aside; however, this factor cannot impact on the very maintainability of the
application. If such an interpretation is adopted it would result in conferring on the party
desirous of challenging a consent decree, a remedy which would lack legal efficacy. In
such like situations a purposive interpretation is to be preferred over a literal
interpretation. The institution of a separate suit being barred under Rule 3A of Order 23
CS(OS) 1839/2009 Page 9 of 18
of the CPC, the scope, width and amplitude of a challenge to a consent decree cannot be
confined to the ones which are available for a decree passed after adjudication.
Therefore, the second objection of the learned counsel for the defendant/ respondent that
the only averment made in the application is with regard to coercion and undue influence
and, therefore, the application is not maintainable: is, in my view, untenable and hence,
rejected. I may point that a similar point of view has been expressed in Preetinder Singh
vs Gursharan Singh CRP No. 123/2009 & CM No. 12305/2009 dated 15.01.2010.
9.5 The third objection taken by the non-applicant is with regard to limitation. In my
view the submission of the learned counsel that it is in the nature of an application for
review and hence, the period of limitation of 30 days would apply is without merit. A
bare reading of the application would show that the application has been filed invoking
the inherent jurisdiction of the court. The application does not seek to correct errors on
the face of the record. The application seeks to impugn a consent decree, as noticed
above, on grounds of coercion and undue influence and hence, the consequent failure on
the part of the applicant to exercise her free will. This application, as rightly contended
by Mr Vashisht, would only fall in the residuary Article 137 of the Limitation Act, 1963
which prescribes a period of three years. There is no dispute that the impugned
application which was filed on 30.08.1996, is well within the period of three years from
the date of passing of the consent decree dated 25.11.1993. Therefore, even this
objection is without merit. Thus in nutshell, in my opinion, the application is
maintainable.
10. This brings me to the issue, which is whether the application bears out the
necessary pleadings as regards "undue influence" and "coercion". The obligation in law
to supply particulars in this regard is clearly provided in Order 6 Rule 4 of the CPC. This
aspect of the matter was put to Mr Vashisht. Mr Vashisht could do no better than, refer
to the averments made in paragraphs 5(a) to 5(t) of the application; which culminate with
the legal plea of "undue influence" and "coercion" taken in paragraphs 5(t) & 7 of the
application.
CS(OS) 1839/2009 Page 10 of 18
10.1 It is to be borne in mind the applicant is dead, the application is being pursued by
the L.R. Therefore, the measure to be applied would be: if the applicant Sardarni
Raminder Sarup had been alive, would the court have allowed her to impugn the consent
decree on the pleadings, as they obtain on the record.
10.2 In order to appreciate the pleadings, it may perhaps be useful to refer to the
relevant provisions of the Contract Act, i.e., Sections 14, 15 & 16 to the extent necessary.
10.3 Section 14 of the Contract Act defines as to what is free consent. This Section
provides that consent is said to be free when it is not caused by:
(i) Coercion, as defined in Section 15, or
(ii) Undue influence, as defined in section 16, or
(iii) .....
(iv) .....
(v) .......
10.4 Section 14 goes on to say that consent is said to be so caused when it would not
have been given but for the existence of such "coercion" or "undue influence", as the
case may be.
10.5 Section 15 of the Contract Act defines "coercion" to mean committing or
threatening to commit an act forbidden by the Indian Penal Code, 1860 (hereinafter
referred to as „IPC‟) or unlawful detaining or threatening to detain any property to the
prejudice of any person whatever with the intention of causing any person to enter into an
agreement.
10.6 Similarly, Section 16 of the Contract Act defines "undue influence". A contract is
said to be induced by "undue influence" where relations subsisting between parties are
such that one of the party is in position to "dominate the will" of the other and uses that
position to obtain an "unfair advantage" over the other. Sub-Section (2) of Section 16
gives instances where a person is deemed to be in a position to dominate the will of
CS(OS) 1839/2009 Page 11 of 18
another, that is, (i) where he holds a real or apparent authority over the other, or where he
stands in a fiduciary relation to the other; and (ii) where he makes a contract with a
person whose mental capacity is temporarily or permanently affected by reason of age,
illness, or mental or bodily distress.
10.7 As noticed hereinabove, Section 19 of the Contract Act provides that when
consent to an agreement is caused by coercion, fraud or misrepresentation, the contract is
voidable at the option of the party whose consent was so obtained. Similarly, Section
19A provides when consent to an agreement is caused by "undue influence", the contract
is voidable at the option of the party whose consent was so obtained.
10.8 A reading of the aforementioned Sections would show that in so far as "coercion"
is concerned it can arise in two situations (i) where a party commits or threatens to
commit an act "forbidden" under the IPC, or (ii) unlawfully detains or threatens to detain
any property. It is clear that in the first situation an act which is forbidden but is not
punishable under IPC will also fall within the ambit of "coercion". (See Chikkam
Ammiraju & Ors. vs Chikkam Seshamma & Anr. AIR 1918 Mad. 414 and Smt. Purabi
Banerjee vs Basudeb Mukherjee AIR 1969 Cal. 293). Each or both of these acts should
be to the "prejudice of any person" and designed to obtain consent of the person who is
subjected to coercion. The prejudice should be such that it ought to result in "some legal
injury". [See observation in Chikkam Ammiraju (supra)]. In Rameshwar Marwari vs
Upendranath Das Sarkar AIR 1926 Cal. 455, a threat not to withdraw a criminal case
already instituted, was considered, not good enough to impugn a bond on the ground of
coercion. The important factor being that the party alleging coercion must set out the
facts in that regard. [See Constitution Bench judgment Bishundeo Narain & Anr. vs
Seogeni Rai & Jagernath AIR 1951 SC 280 followed in Varanaseya Sanskrit
Vishwavidalaya & Anr vs Dr. Rajkishore Tripathi & Anr, paragraph 8 and 9 at page
283 and 284]. Similarly, "undue influence" is said to have been exercised in obtaining
consent of a party to an agreement where the other party is in a position to dominate the
CS(OS) 1839/2009 Page 12 of 18
Will of such a party. Close proximity, without more, either by way of relationship
obtaining between the parties or by virtue of circumstances, in my view, will not ipso
facto lead to a situation where it can be said that consent was obtained by one party of the
other by exercising "undue influence". (See Subhas Chandra Das Mushib vs Ganga
Prosad Das Mushib AIR 1967 SC 878 paragraph 23 at page 883). In order to show
domination of will something more has to be alleged for the court to at least prima facie
come to the conclusion that one party was completely under the sway of the other. A
clue in that regard has been provided by the legislature in Sub-Section (2) of Section 16
of the Contract Act, where it speaks of real or apparent authority or parties stand in
fiduciary relation with the other, or even a situation where party whose consent has been
obtained, his or her mental capacity, is temporarily or permanently impaired by reason of
age, illness or mental or bodily distress.
10.9 In this regard, as noted above, I was taken through averments made in paragraphs
5(a) to 5(t) of the application. These averments allude to the fact that the applicant, who
was the owner of the suit property, had executed a WILL in favour of the defendant/
respondent in 1971 which, of course, the applicant claim was an arrangement made for
the purposes of taxation at the behest of her late husband Sardar Bahadur Singh. The
applicant further avers to the effect that her husband also executed a WILL with respect
to the same property on 04.06.1991 − I must confess this aspect of the matter confounds
more than clarifies the situation since it is the admitted stand of parties, that the suit
property was owned by the applicant. There is also a reference to the fact that there was
an oral family settlement which was incorporated in a protocol dated 23.10.1987
whereby, each of the three children, apart from the defendant/ respondent, were to take an
equal share in the suit property. In other words each of the four children were to get 1/4th
share in the suit property. Since the defendant/ respondent blackmailed her, the
applicant executed a WILL in his favour; though curiously the date of the WILL is not
given. It is further averred that when, other members of the family came to know about
the WILL; she executed a deed of family arrangement dated 15.09.1988 which more or
CS(OS) 1839/2009 Page 13 of 18
less conformed to the protocol dated 23.10.1987. The family deed of 15.09.1988 was
followed by a WILL dated 17.09.1988 whereby, 3/4th of the share in the suit property was
bequeathed to her remaining three children. It is also averred that even though defendant/
respondent had agreed to accept Rs. 4 lacs in full and final settlement of disputes raised
by him, he baselessly raked up disputes with regard to oral partition of other HUF
properties and refused to accept payment from the other son of the applicant, i.e., Sardar
Tejinder Singh, who is the main protagonist in the instant proceedings. In these
circumstances, the applicant avers that since she was handicapped her consent was
caused out of a fear that the defendant/ respondent would seek her share in the rental
income obtained from the suit property.
10.10 A reading of the averments made in the application would show that it is bereft of
any material particulars with regard to coercion and undue influence based on which
consent is said to have been obtained of the applicant. The oblique reference to the fact
that the applicant was handicapped does not delve into the fact as to whether the handicap
was such that it made her dependant on the defendant/ respondent, or that the handicap
effected her ability to take an informed decision. On the contrary the averments made in
the application seem to suggest that the plaintiff had the capacity to take the decisions;
which she did, though she may have been fickle with regard to the decisions that she
took. The thrust of the averments is that the decision taken by the applicant were on the
rethink found by her to be iniquitous. In other words, the applicant, who was admittedly
the absolute owner of the property, ought not to have parted with an additional 1/4th share
in the suit property in favour of the defendant/ respondent. In my view, based on these
pleadings the court cannot entertain the application. The observations of Mr Justice
Vivian Bose (as he then was) in Bishundeo Narian (supra) bring to fore this aspect very
clearly. The same being relevant are extracted hereinbelow:
―We turn next to the questions of undue influence and coercion. Now it is to
be observed that these have not been separately pleaded. It is true they may
overlap in part in some cases but they are separate and separable categories
in law and must be separately pleaded.
CS(OS) 1839/2009 Page 14 of 18
It is also to be observed that no proper particulars have been
furnished. Now if there is one rule which is better established that any other,
it is that in cases of fraud, undue influence and coercion, the parties pleading
it must set forth full particulars and the case can only be decided on the
particular as laid. There can be no departure from them in evidence.
General allegations are insufficient even to amount to an averment of fraud
of which any court ought to take notice however strong the language in
which they are couched may be, and the same applies to undue influence
and coercion. See Order 6, Rule 4, Civil Procedure Code.
The allegations in the plaint regarding this part of the case are as
follows. In paragraph 13 the plaintiffs say--
―That the said Firangi Rai being infuriated by the filing of the said
suit, put such a pressure upon the father of the plaintiffs that the father of the
plaintiffs under fear of his threatened death filed a compromise in the said
suit before any written statement was filed by Firangi Rai and other
defendants.‖
In paragraph 15 thy say -
―That the said compromise was nothing but a dictated mandate of
Firangi Rai which the father of plaintiffs, out of sheer fear of Firangi Rai
submitted against his own free will and signed under compulsion and
coercion and undue influence of the said Firangi Rai‖.
Then in paragraph 17 and 18 the plaintiffs state -
―17. That plaintiffs' father being a man of weak intellect and finding
no help and succor from the people of residential village or neighbourhood
and being also unaware of the details of properties of the family could not
but submit meekly and quietly to the dictates of Firangi Rai who taking
advantage of his fearful supremacy wanted to have everything according to
his own sweet wish.
―18. That even after the compromise plaintiffs' father could not get
any income of the family properties and Firangi Rai remained the sole
master of the family appropriating every pice to himself.‖
We will deal with the case of coercion first. I will be seen that the
plaintiffs case regarding that is grounded on the single allegation that their
CS(OS) 1839/2009 Page 15 of 18
father was threatened with death. When all the verbiage is cleared away,
that remains as the only foundation. The rest, and in particular the facts set
out in paragraphs 8 to 12 about the ferocious appearance of Firangi Rai and
his allegedly high-handed and criminal activities and his character, are only
there to lend colour to the genuineness of the belief said to have been
engendered in Ghughuli Rai's mind that the threat of death administered to
him was real and imminent. But as regards the threat itself, there is not a
single particular. We do not know the nature of the threat. We do not know
the date, time and place in which it was administered. We do not know the
circumstances. We do not even know who did the threatening. Now, when
a court is asked to find that a person was threatened with death, it is
necessary to know these particulars, otherwise it is impossible to each (sic
reach) a proper conclusion.
It was argued that it is not necessary for a plaintiff to give
particulars and if the other side is not satisfied, there are provisions in the
Code which entitle him to ask for them. That is a grave misapprehension.‖
(the emphasis is mine)
10.11 In the case of Subhas Chandra Das Mushib (supra) the Supreme Court
considered inter alia the grounds on which a settlement could be set aside. Amongst
other aspects, the court made observations with respect to whether mere proximity of
relationship would lead to conclusion that there was "denomination of Will" of the party
whose consent is alleged to have been caused by exercise of "undue influence". The
Supreme Court cited with approval of the observations of Judicial Committee in that
regard. (See paragraph 19, 20, 23 and 27). The court sustained the settlement, inter alia,
on the ground that the charge of undue influence was not "sufficiently alleged in the
pleadings".
11. There is another aspect to the matter. While recording the compromise my
predecessor had the benefit of the presence of the applicant in court. An extract from the
proceedings of 25.11.1993 would demonstrate this aspect very clearly.
"25.11.93
Present : S.Jagjit Singh Advocate for the plaintiff with Sardarni
Raminder Swarup Singh, plaintiff in person.
CS(OS) 1839/2009 Page 16 of 18
Mr.D.K.Thakur, Advocate for defendant with Mr.Govinder
Singh, defendant in person.
S.No.3403/91 & IA No.10195/93
Statement of S. Jagjit Singh, Advocate with Sardarni
Raminder Sarup Singh, identified by S.Jagjit Singh,
Advocate on S.A.
The plaintiff has entered into a compromise with defendant on the
terms and conditions enumerated in the compromise deed Ex.YZ. The
compromise Ex.YZ also bears the signatures of the plaintiff. Plaintiff has
also filed an affidavit in support of the compromise. Plaintiff has also
given it in writing before this court marks ‗A', ‗B' and mark ‗C'. It is,
therefore, prayed that the present suit be decided in terms of the
compromise deed Ex.YZ.
RO& AC
Dt.: 25.11.1993 Mohd. Shamim, J.
Statement of S.Govinder Singh, Defendant identified by
Mr.D.K.Thakur, Advocate on SA
I have entered into a compromise with the plaintiff, who is my
mother, out of my own free will without any pressure, coercion or
inducement on the terms and conditions enumerated in the compromise
Deed Ex.YZ. I, therefore, pray that the present suit be decided in terms of
the compromise Ex.YZ.
RO&AC
Dt.: 25.11.1993 Mohd. Shamim, J.
ORDER
The parties have entered into a compromise which has been duly verified. The present suit is decided in terms of the compromise Ex.YZ alongwith its Annexures I & II which shall form part of the decree. Parties are left to bear their own costs.
Let this file be consigned to the Record Room.
Sd
No. 25, 1993. (Mohd. Shamim)
‗LRD' Judge"
11.1 As observed hereinabove this is the factor which the court will bear in mind while deciding an application of this nature.
12. With this state of the pleadings, I doubt very much that the court would have permitted the applicant, had she been alive, to set at naught the compromise arrived at with the defendant/ respondent after her statement was recorded in court. The situation CS(OS) 1839/2009 Page 17 of 18 cannot be any better where the legal representative has stepped into the shoes of the applicant. In my opinion, what makes the task decidedly difficult for the legal representatives is to establish "coercion" and "undue influence" which allegedly was exerted by the defendant/respondent on the applicant. The burden of proof in such circumstances is heavy. However, this need not detain me since, as observed by me above, in the absence of material particulars, I am not persuaded to hold that relief as prayed for in the application ought to be granted and the matter be sent to trial on these issues. Consequently, the application is dismissed.
13. Needless to say any observations made herein above, while disposing of this application, will not come in the way of disposal, on merits, of suit no. 973/1994 and 265/2008.
RAJIV SHAKDHER, J MAY 07, 2010 kk CS(OS) 1839/2009 Page 18 of 18