Delhi High Court
Sushila Rani And Ors. vs Dhan Kishore & Ors. on 23 September, 2013
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: September 23, 2013
+ FAO No.392/2012, C.M. Nos.15847/2012 & 19781/2012
SUSHILA RANI AND ORS ..... Appellants
Through Ms.Sonia Arora, Adv. with
Mr.Surjeet Kr.Singh, Adv.
versus
DHAN KISHORE & ORS ..... Respondents
Through Mr.Pradeep Mahajan, Adv. for
R-1 and R-2.
Ms.Sushma Jain, Adv. for R-3.
Mr.Ramendra Singh, Adv. for
R-4 to R-7.
AND
+ FAO No.394/2012, C.M. Nos.15861/2012 & 19783/2012
SUSHILA RANI AND ORS ..... Appellants
Through Ms.Sonia Arora, Adv. with
Mr.Surjeet Kr.Singh, Adv.
versus
DHAN KISHORE & ORS ..... Respondents
Through Mr.Pradeep Mahajan, Adv. for
R-1 and R-2.
Ms.Sushma Jain, Adv. for R-3.
Mr.Ramendra Singh, Adv. for
R-4 to R-7.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
FAO No.392/2012 Page 1 of 9
MANMOHAN SINGH, J.
1. The abovementioned two appeals have been filed by the appellants under Sections 299 and 384 of the Indian Succession Act, 1925 assailing the orders dated 28th August 2012 passed by learned Addl. District Judge (Central), Tis Hazari, Delhi, whereby the probate petitions were dismissed as withdrawn in terms of the settlement between the parties. Though the impugned orders are compromise decrees, it is alleged that the same have been passed without making the appellants as parties to the said compromise, thereby resulting in grave prejudice to the rights of the appellants.
2. The factual matrix of the case is that the appellants as well as the respondents No.1 to 3 are the legal heirs of Late Sh.Kani Ram being his children from first wife Late Smt.Kiran Devi. After the death of Smt.Kiran Devi, Sh.Kani Ram started living with respondent No.4 and from that alliance he has three children, i.e., respondents No.5, 6 and 7. It is stated that during the life time, the deceased parents of the appellants and respondents No.1 to 3 purchased a property bearing No.WB-94, Ganesh Nagar, Shakarpur, Delhi-110092 jointly. Apart from ½ share in the said property, the father of the appellants, i.e. Late Sh.Kani Ram, during his lifetime, had also acquired some immovable and movable properties.
3. The respondent No.3 filed probate petitions seeking a probate of the Will of Late Sh.Kani Ram dated 25th January, 2011 and probate of the Will of Late Smt.Kiran Devi dated 26th March, 1990.
4. In the probate petitions, the respondent No.3 averred that that their mother Smt.Kiran bequeathed her undivided ½ share in the immovable property No.WB-94 Ganesh Nagar, Shakar Pur, Delhi-110092 in favour of FAO No.392/2012 Page 2 of 9 her three sons, i.e. respondents No.1 to 3 in equal shares, i.e. 1/3rd each by virtue of her last and final Will dated 26th March, 1990. It was further averred that Sh.Kani Ram, their father vide his Will dated 25th January, 2011 had bequeathed his properties among his five sons i.e. respondents No.1 to 3, 5 & 6 entailing the division of his properties amongst the five sons.
5. The appellants, in their written statement, contested the probate petitions and raised an objection that the petition was based on forged and fabricated Will dated 25th January, 2011. It was further averred that in fact Late Sh.Kani Ram had executed a duly registered Will dated 16th September, 2009 which was further supported with his declaration dated 13th February, 2011, just before his death on 14th February, 2011 and also that Late Smt.Kiran Devi did not execute any Will dated 26th March, 1990 and that the same was forged and fabricated and manipulated by the respondents.
6. In the course of the proceedings, the learned trial Court was informed that the parties had entered into a settlement and a memorandum of settlement was duly registered with the Sub-Registrar which was also filed on record and the same was in the nature of a family settlement between the parties. On account of the said family settlement, the parties preferred a joint application for taking on record the settlement and the respondent No.3 prayed for withdrawal of the petitions.
7. On the date of settlement, the counsel for petitioner No.1 appeared before the Court and objected to the settlement and withdrawal of the probate petitions, praying for time to file the objections.
8. Rejecting her contentions, the learned trial Court vide the impugned order observed that the Court while dealing with matters under Indian Succession Act, 1925 acts as a court of conscience and that by way of FAO No.392/2012 Page 3 of 9 probate petition under the Act, the validity of the Will is established and the court does not go into the question of title in respect of any of the properties. The Court opined that in the present cases, the parties have amicably settled their disputes by way of family settlement, namely, Memorandum of Understanding and after they had settled the dispute, petitioner No.1 preferred to object to one such settlement. The said petitioner was served well with the notice of the petition on herself on 28th March, 2011 and on 24th April, 2012 her husband Sh.Naveen Kumar appeared before the Court and as such it cannot be said that she had no notice of the present proceedings. The Court further opined that if petitioner No.1 was aggrieved by the petitions, then she should have preferred to file objections within the statutory period which she failed to do and therefore, she cannot agitate the issue before the Court at this stage. The learned trial Court observed that it is a settled preposition of law that the petitioner is a master of the petition and may withdraw the same as per his facts and circumstances and cannot be compelled to proceed with it. Accordingly, the Court rejected the contentions so raised by the petitioner No.1 and dismissed the petitions as withdrawn in terms of settlement.
9. Aggrieved from the impugned orders so passed, the appellants preferred the present appeals challenging the compromise as illegal and stating that the learned trial court by allowing the withdrawal of the probate petitions in terms of the compromise, has given a seal of approval to an illegal compromise, maliciously entered into by the respondents with the sole motive to oust the daughters, i.e. the appellants from the estate of their deceased parents.
10. The brief facts and case of the appellants are that the appellants as FAO No.392/2012 Page 4 of 9 well as respondents No.1 to 3 are all legal heirs of Late Sh.Kani Ram, being his children from his first wife Late Smt.Kiran Devi. Late Smt.Kiran Devi died intestate on 5th May, 1990, leaving the appellants (being her three daughters), respondents No.1 to 3 (being her three sons) and Sh.Kani Ram as the only legal heirs. After the death of Late Smt.Kiran Devi, Sh.Kani Ram started living with respondent No.4, i.e. Smt.Krishna Devi and from that alliance, Late Sh.Kani Ram has three issues, i.e. respondents No.5 to 7. Respondent No.7 is a minor and is being sued through her mother respondent No.4 who is also the legal as well as the natural guardian of respondent No.7. During the lifetime of the appellants‟ parents, i.e. Late Sh.Kani Ram and Late Smt.Kiran Devi, they had purchased a property bearing No.WB-94, Ganesh Nagar, Shakarpur, Delhi-110092 jointly. The said property is built on a 225 Sq. Yards area. Apart from a ½ share in this property, the father of the petitioners, Late Sh.Kani Ram, during his lifetime had also acquired the following properties:-
(i) Property No.4196, Kaseru Walan, Pahar Ganj, New Delhi-
110055.
(ii) Property No.3636, Ram Nath Patwa, Pahar Ganj, New Delhi-
110055.
(iii) Property No.3856, Tel Mandi, Pahar Ganj, New Delhi-110055.
(iv) Movable properties/valuable securities, i.e. S.B. A/c Gold & Silver Jewellery, Two Cars etc.
11. Since Smt.Kiran Devi died intestate, therefore, her respective estates have to devolve upon their Class-I legal heirs in equal proportion. With regard to the estate of Late Sh.Kani Ram who expired on 14 th February, 2011, it is submitted that Late Sh.Kani Ram, after the death of Late Smt.Kiran Devi started residing with respondent No.4, Smt.Krishna Devi.
FAO No.392/2012 Page 5 of 9Since Sh.Kani Ram has also died intestate, therefore, after his death, all the parties to the present proceedings have become entitled to 1/10th share of the property/estate of Late Sh.Kani Ram. However, with a view to oust the appellants from the estate of their deceased parents, the respondents in connivance and collusion with each other filed a probate petition bearing No.PC-53/2011, titled as Surinder Kumar vs. State & Ors., seeking a probate of the alleged after death registered Will dated 25th January, 2011, allegedly, left by Late Sh.Kani Ram, i.e. the father of the petitioners. Along with the said probate petition and on the same date and through the same Advocate, the respondents No.1 to 3 also filed a probate petition titled as Surinder Kumar vs. Sushila Rani & Ors., seeking a probate of an after death registered Will dated 26th March, 1990, allegedly, left by Late Smt.Kiran Devi.
12. During the pendency of the said probate petitions, the matters were referred to mediation and the husband of appellant No.1 also participated in the mediation proceedings on behalf of all the appellants, but the respondents were not interested in giving even a single penny to the appellants and, therefore, the husband of appellant No.1 categorically told them that none of the appellants are interested in compromising the matter and would contest the petitions before the Court. On 28 th August, 2012, the respondents No.1 to 7 came up with a joint application for getting an illegal compromise recorded. The appellants were not a party to the said compromise. The said joint application was vehemently opposed by the learned counsel for appellant No.1 on the ground that none of the appellants are party to the said compromise and since valuable rights of the appellants would be prejudiced in case the alleged compromise is given the seal of FAO No.392/2012 Page 6 of 9 approval by the learned trial Court, it was prayed that the said joint application be dismissed and time be granted to the appellant No.1 for filing objections to the probate petitions. However, the learned trial Court disallowed the objections of the appellants and also rejected the request of the counsel for the appellant No.1 for an opportunity to file a reply and passed the impugned order by giving a seal of approval to the illegal compromise which has been entered into by the respondents with a view to cause illegal gain to themselves and wrongful loss to the appellants.
13. No doubt, the petitioner is entitled to withdraw his claim before Court at any stage, but the facts and circumstances of the present case do not allow the petitioner to withdraw his claim in this manner, as it is settled law that the Court should not allow the withdrawal of a matter if it prejudices the right of the other party and the party withdrawing of suit wants to achieve an ulterior goal by adopting an oblique motive.
14. The short question involved in the present appeals is whether a compromise agreement entered into by some of the parties to the lis without all the affected parties being made a party to the said compromise will be a valid compromise or not?
15. It is true that appellant No.1 has not preferred to file objections within the statutory period but the fact of the matter is as per record it is revealed that the appellant No.1 objected to such settlement before Court as well as when the matter was sent for mediation. At least, under those circumstances when the objections were raised, the learned trial Court ought to have considered the matters in view of the same while deciding the fate of the appellants as they are admittedly the legal heirs of the deceased.
16. In the matter of Kiran Arora vs. Ram Prakash Arora, reported in AIR FAO No.392/2012 Page 7 of 9 1980 Delhi 99, it was held that any compromise which effects or prejudices the rights of a non-compromising party to a suit, the same would not be a lawful compromise.
17. In another case of Sneh Gupta vs. Devi Sarup & Ors., reported in (2009) 6 SCC 194 at page 209, it was held as under:-
"....Title to a property must be determined in terms of the statutory provision. If by reason of the provisions of the Hindu Succession Act, 1956 the appellant herein had derived title to the property along with her brothers and sisters, she cannot be deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of Indian Registration Act."
18. The Hon‟ble Supreme Court in the case of State of Punjab (now Haryana) & Ors. vs. Amar Singh & Anr., (1974) 2 SCC 70, at page 90, has held as under:-
".....But where a compromise goes against a public policy prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a razi cannot operate to defeat the requirement as, specified or absolve the court from the duty. The resultant order will be ineffective. After all by consent or agreement, parties cannot achieve what is contrary to law and a decree merely based on such agreement cannot furnish a judicial amulet against statutory violation. For, „by private agreement, converted into a decree, parties cannot empower themselves to do that which they could not have done by private agreement alone‟".
19. Therefore, from the facts of the present matter, it creates doubt in the mind of the Court that there was no occasion on the part of the respondent FAO No.392/2012 Page 8 of 9 No.3 to withdraw the petitions at the back of the appellants. The proper procedure has to be applied if the prayer of withdrawal is sought by the parties.
20. The alleged compromise is contrary to the provisions of Order XXIII, Rule 3 CPC which clearly envisages that before passing any order under the said provision, the Court must be satisfied that there has been a lawful compromise.
21. In view of the above said reasons the present appeals are allowed and the impugned orders dated 28th August, 2012 are set-aside.
22. No costs.
(MANMOHAN SINGH) JUDGE SEPTEMBER 23, 2013 FAO No.392/2012 Page 9 of 9