Punjab-Haryana High Court
Deepa vs Shrimati Bhani (Died) Through L.Rs. And ... on 11 December, 1995
Equivalent citations: (1996)113PLR687
JUDGMENT N.K. Kapoor, J.
1. This is unsuccessful defendants' regular second appeal.
2. One Des Raj was owner of the suit property who left behind Smt. Bhani, Bharpai. Surti and Rajia his daughters. These persons claim themselves to be the sole heirs of Des Raj deceased. On the other hand defendants lay claim on the basis of a compromise decree dated 22.2.1965 as well as upon the will alleged to have been executed in their favour by the defendants, the plaintiffs filed suit for declaration with consequential relief of'possession
3. Defendants in their written statement raised few preliminary objections stating that suit is barred on the principle of res-judicata, plaintiffs have no locus stand to file the present suit and that the suit is not properly valued for the purposes of Court fee and jurisdiction. On merits, it was denied that the plaintiffs are his daughters. It was further alleged that the decree was challenged by Mai Ram, which suit was dismissed. Defendants asserted the validity of the Will executed by Des Raj, which was in their favour.
4. On the pleadings of the parties, the following issues were framed (1) Whether the suit is barred by the principal of res-judicata?
(2) Whether the plaintiff has no locus standi to file the present suit?
(3) Whether the suit is not maintainable as alleged in preliminary objection No. 3 of W.S. ?
(4) Whether the Civil Court at Karnal has no jurisdiction- to try the suit?
(5) Whether the suit has been properly valued for purposes of Court fee and jurisdiction?
(6) Whether Des Raj was father of the plaintiffs No.l and 2 and defendant No. 4?
(7) Whether Des Raj was owner of the suit property at the time of his death, if so, the effect thereof?
(8) Whether the suit property had already been transferred in the name of defendants No.l to 3 as alleged in para No. 2 of W/S ? If so, the effect thereof,?
(9) Whether Des "Raj executed a valid Will with respect to the suit property in favour of defendants No.l to 3, if so, the terms and effect thereof?
(10) Relief
5. Issues 2 and 6 were taken together and the trial court came to the conclusion that plaintiffs have locus standi to file the present suit as they are daughters of Des Raj. Issue No. 3 was also decided against the defendants. Issues 4 and 5 decided against the defendants. On material issues relating to the earlier decree as well as the Will the Court came to the conclusion that Will as well as decree cannot stand the scrutiny of-law and so set aside the same. Consequently, the court held that Des Raj was the owner of the suit property at the time of his death and since the plaintiffs were held to be daughters of Des Raj and so class I heirs; held them to be entitled to succeed to the estate of the deceased. Resultantly, the suit of the plaintiffs was decreed as prayed for.
6. Before the lower appellate court findings of the trial court on issues 2, 3, 5, 6 and 7 were not challenged and so these issues were affirmed by the appellate court. Appellate court examined the findings of the trial court on issues 1,8 and 9. The matter was once again examined on facts as well as law. The court on reappraisal of the evidence found no around to vary or set aside the findings of the trial Court in respect of these issues as well. Examining the validity of the compromise decree the court made reference to Section 123 of the Transfer of Property Act (which became applicable to the State of Punjab from 1.4.1955) and since in the present' case the basis of the civil court decree was an oral gift alleged to have executed sometime in the year 1957 the same was held to confer no right upon the recipient; and so the decree of the court was held to be not a valid document. Similarly, the Court did not find any substance in the plea of the defendants-appellants that they have become owners by way of adverse possession as no such pleading was taken in the written statement. While examining the validity of the Will the court came to the conclusion that the same was in fact surrounded by suspicious circumstances namely (i) that the propounder took active part in getting the Will scribed and was present at the time of. execution of Will (ii) that testator - Des Raj was aged about 20 years, who is proved to be living under the care of the defendants who thus were in a position to exercise undue influence upon him (iii) no reason has come in evidence for Des Raj to disinherit his authors (iv) whereas Des Raj was residing in a village Paphrana along with defendants no witness of village Paphrana attested the Will (v) it was admitted by Dewan Singh DW 4 that the details of land were supplied by Bhima (propounder of the Will) (vi) in Will Des Raj- deceased is stated to be a resident of village Shahrampur (vii) defendants denied that plaintiffs are daughters of Des Raj. Taking thus a cumulative view of these various suspicious circumstances the Court held the Will to be not a genuine document. Consequently, the appeal was dismissed.
7. With a view to seek reversal of the findings recorded by the Court below the learned counsel for the appellants has once again highlighted the validity and the binding effect of the Civil Court decree as well as the Will executed by Des Raj in their favour. According to the counsel Both the Courts have miserably failed in noticing that Des Raj .Was an old person, who was being looked after by the defendants who are none other than to his very near relations. It is on account of services rendered that Des Raj of his free will gifted away the property a few years earlier to the passing of the civil Court decree which he did not challenge during his life time. Thus, as a matter of fact he was left with no property when he died. Otherwise too, even vide Will which has been duly proved the deceased has bequeathed all his property in favour of the defendants the appellants. Certain minor discrepancies in the execution of Will is hardly any ground to discard the last wish of the deceased and so both the judgments deserve to be set aside on these grounds alone. Counsel placed reliance upon the Division Bench judgment in Gurdev Kaur and Other v. Mehar Singh and Ors., 1989 PLJ 182 for a view that the compromise or a consent decree even when it creates a title in respect of a property of a value of Rs. 100/- or more, does not require registration. A consent decree at best can be void on any one of the ground on which a contract can be set aside namely, if obtained by fraud, misrepresentation or coercion. Deceased admittedly did not challenge the decree suffered by him and so the same even binds his heirs.
8. The learned counsel for the respondents, however, on the other hand argued that even as per admitted facts no valid decree came into existence. According to the counsel, it has been admitted by the defendants in their statement that an oral gift was made sometime 7/8 years earlier to the date when the suit was filed. Since the suit was filed on M..2.1965 the Courts below rightly deduced that oral gift was made sometime in the year 1957 by which date the provisions of Section 123 of the Transfer of Property Act had become applicable to the State of Punjab. Since admittedly the basis of the Civil Court decree was an oral gift no such decree, could be suffered and hence the decree conferred no right upon the persons who sought this decree. Perhaps being aware of this legal infirmity that Will was set up to deprive the legal heirs of their right to succeed. As noticed by the Court below Will is indeed shrouded by various suspicious circumstances and accordingly has rightly been held to be an invalid document, findings recorded by the Courts below are not vitiated in any manner. Appeal does not raise any question of law and so the same deserves to be dismissed with costs.
9. I have the heard the learned counsel for the parties, perused the impugned judgments of the Courts below as well as perused some of the statements of the witnesses referred to by the respective counsel in support of their respective contentions and also the Will. Though the defendants had denied the plaintiffs relationship with Des Raj yet the same stands proved on record and so it can be taken as a fact that the deceased left four daughters-plaintiffs and Rajia-defendant. In fact, Will also makes mention of the daughters but somehow the defendants in their attempt to resist the claims of the plaintiffs denied their relationship. The defendants' primary reliance is upon the civil Court decree dated 22.2.1965. Basis of the decree is an oral gift alleged to have been made by Des Raj some 7/8 years before the filing of the suit. By inference it would be- by the -year 1957. The provisions of Section 123 of the Transfer of Property Act became applicable to the state of Punjab from the year 1955. So, in 1955 no property could have been transferred on the basis of an oral gift. Accordingly, even the re-affirmation of such an oral gift by a consent decree cannot remove the inherent infirmity in the title so acquired. Precisely for this reason the decree was ignored by the court below and the Court held Des Raj to be the owner ill his death. The ratio of the Division Bench judgment has been recently considered by the apex Court in Bhoop Singh v. Ram 'Singh Major and Ors.? JT 1995 (6) SC 534. The Court was, examining whether in terms of Section 17 Sub-clause 2 (vi), a compromise decree requires registration for conferring title in respect of immoveable property and the Cpurt.held that clause (vi) is meant to cover that decree, or order of a Court including a decree or order expressed, to be made on a compromise which declares the pre-existing right and does not by itself create a new right title or interest in praesentiJn.immoveable property of the value of Rs. 10/- or upwards. The Court summarised its conclusion as under :-
"(1) Compromise decree if bonafide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would 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 immovabTe 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 Privy1 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) In 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."
10. Admittedly, defendants the present appellants had no pre-existing right in the property and the basis of their claim also is an oral gift stated to have been made sometime in the year 1957( again not permissible in view of Section 123 of the Transfei of Property Act) and so the Courts below rightly ignored this docu- ment.
11. Trial Court noted few suspicious circumstances surrounding the execution of Will whereas the lower appellate Court noticed few others. The viewv of the Court has been consistent that it is for the propounded to rernove ail suspicious circumstances which are stated to be surrounding the W5U. Case pertaining to Will is invariably tested on the principle laid down In celebrated judgment of the Supreme Court in H. Venkatachalia Iyengar v. B.R.Thimna Jamaa and Ors., AIR 1959 SC 443. So even when it is proved that it bears the signature of testator as well as the attesting witnesses yet the Court expects the person propounding the Will to remove all such suspicious circumstances which surround the Will. In fact, as per the aforesaid judgment in case the propounder has taken a prominent part jj in the execution of trie will and has also received a benefit under it that by itself is ij generally treated as a suspicious circumstance attending the execution of the Will J and it is with this background that the Courts have stipulated that Will must come to the "test of the satisfaction of judicial conscious". Examined in the light of the well laid down judicial pronouncement, I am of the view that defendants have failed to dispel suspicious, circumstances surrounding the execution of the Will. These suspicious circumstances have been noticed in the earlier part of the judgment and need not be stated again, it is worth noticing that the defendants with a view to resist the, clajm set up by the plaintiffs have gone to the extent of evendenying the plaintiff relationship with the deceased which contention has been found to be wholly erroneous. In the present case, nearer heirs (Class I heirs) have been excluded and otherwise too; Will has been found to be shrouded by various suspicious circumstances as noticed by both the Courts; which the appellants have failed to dispel; I am of the view that appeal deserve to be dismissed and so order accordingly No order as to costs.