Punjab-Haryana High Court
Karnail Singh And Ors. vs Dalip Kaur And Ors. on 26 May, 1995
Equivalent citations: (1995)111PLR332
JUDGMENT V.K. Jhanji, J.
1. This is defendants' second appeal.
One Pala Singh son of Waryam Singh had two wives, Gurdial Kaur and Kishan Kaur. Dalip Kaur plaintiff (respondent No. 1 herein) is daughter of Pala Singh from his second wife, Kishan Kaur. Pala Singh was owner of land measuring 72 kanals and Anr. parcel of land measuring 231 kanals 1 marla situated in village Daudhar, Tehsil Moga, District Faridkot. It is alleged that by Will dated 8.4.1963 Pala Singh bequeathed his property in favour of Dalip Kaur but with the condition that his first wife, Gurdial Kaur, would enjoy the produce of the estate during her life time. After the death of Pala Singh, Gurdial Kaur filed suit against Dalip Kaur for declaration to the effect that she is owner in possession of land measuring 72 kanals i.e. land in dispute and also half share in land measuring 231 kanals 1 marla. In the said suit, at the intervention of respectable as well as members of the Panchayat, the parties entered into a compromise. As a result of compromise, decree for possession of land measuring 72 kanals was passed in favour of Grudial Kaur but with the condition that she would not be entitled to transfer the land in any manner during her life time. The remaining land i.e. 231 kanals 1 marla was to remain under the ownership of Dalip Kaur. It was also provided under the compromise that after the death of Grudial Kaur, the entire property left by Pala Singh would come to Dalip Kaur pursuant to passing of decree on 26.2.1964, mutation No. 869 dated 30.8.1965 was duly entered in the revised record. Entry with regard to compromise and the limited rights of Gurdial Kaur was repeated in the revenue record from the day the mutation was sanctioned. On 11.3.1983 Gurdial Kaur filed suit No. 206-T for declaration to the effect that she is owner in possession of the whole of land measuring 72 kanals and also half share in land measuring 231 kanals 1 marla. On 16.3.1985, Dalip Kaur filed suit for restraining Gurdial Kaur from alienating land measuring 72 kanals. In the suit filed by Gurdial Kaur, the statements of two witnesses were recorded and the said suit was adjourned on 4.3.1986 to 22.3.1986. On 10.3.1986, an application was made for taking up the suit on the ground that the party have entered into compromise. The compromise promised before the Court appeared to have been, signed by the parties as well as their counsel. Under the compromise, Gurdial Kaur was to become exclusive owner of land measuring 72 kanals and was to give her claim to land measuring 231 kanals 1 marla. Trial Judge recorded the statement of Dalip Kaur got her thumb-impression affixed thereon. On the same very day, decree in terms of compromise was passed. On 12.3.1986, Dalip Kaur's counsel namely Harpal Singh made a statement in the suit filed by Dalip Kaur that the same be dismissed as withdrawn. Acting on the statement of counsel, suit of Dalip Kaur was dismissed as withdrawn. On 20.3.1986, Gurdial Kaur sold the land in dispute measuring 72 kanals in favour of the appellants for a total consideration of Rs. 1,80,000/- vide registered sale-deed. A sum of Rs. one lac is alleged to have been paid before the Sub Registrar and the remaining sum of Rs. 80,000/- on 3.1.1984 when agreement to sell was allegedly executed between Gurdial Kaur and the appellants. Five days thereafter i.e. on 25.3.1986 Gurdial Kaur died of throat cancer. Against the compromise decree dated 10.3.1986, Dalip Kaur filed an appeal on 2.4.1986 before the Additional District Judge in which she challenged the decree, on the ground of fraud. Since Gurdial Kaur had died, she (Dalip Kaur) impleaded the appellants as respondents being the legal representatives of Gurdial Kaur, deceased. When the appeal was pending, Dalip Kaur on 15.4.1987 filed suit for possession out of which present appeal has arisen claiming possession of land measuring 72 kanals on the ground that the compromise decree dated 10.3.1986 is not binding on her as the same has been obtained by way of fraud. Appeal was dismissed by the Additional District being not maintainable. On dismissal of the appeal, Dalip Kaur on 26.5.1987 filed an application under proviso to Order 23 Rule 3 of the Code of Civil Procedure, challenging decree date 10.3.1986 again on the ground of fraud. The application and also the civil suit filed by Dalip Kaur were consolidated. Trial Court dismissed the suit and also the application by a common judgment. Having felt aggrieved against the judgment and decree, Dalip Kaur filed an appeal which was allowed vide the impugned judgment and suit of Dalip Kaur for possession was decreed. Defendants have now come in this second appeal.
2. Mr. M.L. Sarin, Sr. Advocate, counsel for the appellants has contended that compromise dated 10.3.1986 is valid and consent decree passed pursuant thereto cannot be set aside even on the ground of fraud in a separate suit. He next contended that the suit filed by Dalip Kaur is barred under Order 23 Rule 3-A, Code of Civil Procedure, and the remedy, if any, of Dalip Kaur was to approach that Court for setting aside the compromise or to file an appeal as provided under Order 43, Rule 1-A, Code of Civil Procedure. He then contended that the first appellate Court was not justified in setting aside the sale-deed which was executed in favour of the appellants by Gurdial Kaur. He finally contended that as provided under Section 14(1) of the Hindu Succession Act, Gurdial Kaur became the absolute owner of land measuring 72 kanals and thus was entitled to sell the same in favour of the appellants. In answer to these submissions, Mr. Deepak Sibal, Advocate, counsel for Dalip Kaur submitted that decree dated 10.3.1986 was obtained by practicing fraud and the sale on the basis of which appellants are claiming themselves to be owners is without any consideration and cannot confer any title on the appellants. He contended that land measuring 72 kanals was given to Gurdial Kaur for her life as per decree passed on 26.2.1964 and therefore, the provisions of Hindu Succession Act cannot be made applicable to such transaction.
3. Having heard the learned counsel and on perusal of record, I am of the considered view that this appeal is devoid of any merit. As noticed while narrating the facts of this case, dispute with regard to property of Pala Singh arose between Gurdial Kaur and Dalip Kaur. At the intervention of respectables and members of the Panchayat, decree dated 26.2.1964 on the basis of settlement/compromise was passed. Under that decree, land measuring 72 kanals was given to Gurdial Kaur for her life time and after her death it was to revert back to Dalip Kaur. Mutation in this regard was sanctioned. After her death it was to revert back to Dalip Kaur. Mutation in this regard was sanctioned. After having acted upon the compromise, Gurdial Kaur on 11.3.1983 filed another suit in which she claimed herself to be owner of land measuring 72 kanals and owner to the extent of half share in land measuring 231 kanals 1 marla. In that suit, she did not challenge the decree dated 26.2.1964 which had become final. The suit filed by Gurdial Kaur remained pending when on 10.3.1986 the hearing of the case was got preponed and decree on the basis of compromise was got passed. In her suit and also the application the case set up by Dalip Kaur is that on 4.3.1986 the suit had been adjourned to 22.3.1986 but on 9.3.1986 her Counsel Sh. Harpal Singh, Advocate came to her village and delivered a message that Dalip Kaur should see him at Moga Courts. On the next day, i.e. 10.3.1986 Dalip Kaur went to chamber of her counsel where she was told that Gurdial Kaur is withdrawing her suit on the basis of previous compromise dated 26.2.1964 upon which earlier decree had been passed. Dalip Kaur believing her counsel put her thumb-impression on the application purported to be compromise. She has averred that when her statement was recorded in Court, compromise was not put to her and it has erroneously been mentioned in the judgment of the trial Court while decreeing the suit on the basis of compromise that compromise, C-I, has been admitted to be correct. She has further averred that consent decree was not passed in terms of her statement as therein she had deposed that the land detailed in part-A of heading of the plaint had already been given to Gurdial Kaur under the earlier settlement and that the land should to allowed to remain with Gurdial Kaur in the same terms. Besides submitting about undue haste on the part of Gurdial Kaur, the appellants and her counsel's active participation, she has submitted that she has been defrauded and cheated and the sale-deed which Gurdial Kaur is alleged to have executed in favour of the present appellants is not binding on her. In regard to execution of sale-deed, she has averred that sale-deed has been brought into existence on active participation of Malkiat Singh, M.L.A. who by profession is an Advocate and appellants happen to be his nephews. Malkiat Singh, her counsel and the counsel for the appellants namely Amar Singh have been practicing from one chamber. The first appellate Court on the basis of material brought on record has recorded a finding that decree dated 10.3.1986 has been obtained by practicing fraud. It is erroneous for the counsel for the appellants to argue that this finding is incorrect. The undue haste for getting the consent decree and the circumstances surrounding the passing of decree clearly indicate that the decree was obtained by practicing fraud. There was no reason for Dalip Kaur to enter into another compromise since the dispute had already been settled in the previous suit in which decree on the basis of settlement was passed on 26.2.1964. Compromise was acted upon by the parties and for that matter Gurdial Kaur was put into possession of land measuring 72 kanals. A reading of statement of Dalip Kaur made on 10.3.1986 reveals that she agreed to give land measuring 72 kanals to Gurdial Kaur in the same manner in which it was given to her in the earlier settlement, meaning thereby that in her statement she had stuck to the earlier statement on the basis of which decree was passed on 26.2.1964. In her statement she never admitted compromise, C-I to be correct as the same was never put to her whereas in the judgment of the trial Court passed on the basis of compromise and statement, it finds mention that in her statement she admitted the correctness of the compromise. The very fact that the suit remained pending for almost three years and without waiting for the date fixed for hearing of the suit it was got preponed and decree passed without even summoning other defendants who were parties to the suit lends credence to the statement of Dalip Kaur that her counsel had duped her and had acted against her interest and the compromise was the outcome of fraud. Karnail Singh (D.W.1) one of the appellants in his cross-examination has admitted as correct that Malkiat Singh, M.L.A. is his uncle and is an Advocate by profession. He has further admitted that Malkiat Singh, Harpal Singh and Amar Singh practiced together as Advocates from one chamber. It is not disputed that Dalip Kaur is an illiterate woman. It was the duty of her lawyer to give disinterested advice. The relationship between the counsel and the client is highly fiduciary and of a confidential character imposing upon the counsel the duty of a high degree of fidelity and good faith. Whenever a transaction entered at the behest of lawyer is assailed by a litigant, a burden is cast upon the person taking advantage under that transaction to show that transaction was entered into without disadvantage to the party assailing the same and that it was by all standards equitable. It is further required to be shown that the transaction was free from fraud, undue influence and to such an arrangement the party had freely consented after mature understanding of the implications. In this case the appellants have failed to explain that when parties had already entered into settlement in the year 1964 and the sub-sequent suit filed by Gurdial Kaur was being hotly contested by Dalip Kaur, what impelled Dalip Kaur to enter into compromise on 10.3.1986 and that too on a date when the suit was not even fixed for hearing. It is worth-noticing at this stage that Gurdial Kaur was suffering from throat cancer which was in an advance stage and immediately on passing of the decree she allegedly executed sale-deed in favour of the appellants and five days thereafter she died. In these circumstances, the first appellate Court was right in raising an inference that Dalip Kaur was kept in dark about the contents of the compromise. It was for this reason that Dalip Kaur immediately on coming to know of the fraud filed an appeal against the compromise decree which was dismissed being not maintainable. The suit and also the application under proviso to Order 23 Rule 3, Code of Civil Procedure challenging the decree on the ground of fraud were filed without any delay. I am in agreement with the learned Additional District Judge that compromise dated 26.2.1964 until and unless is set aside by a Court of competent jurisdiction has become final between the parties and cannot be nullified by subsequent decree dated 10.3.1986 particularly when Gurdial Kaur did not challenge compromise/decree dated 26.2.1964 in her subsequent suit. The contention of learned counsel for the appellants that a separate suit to challenge the decree on the ground of fraud is not maintainable and is barred under Order 23 Rule 3-A, Code of Civil Procedure, is without any merit. In this context, a Division Bench judgment of this Court in Gurdev Kaur and Anr. v. Mehar Singh, (1990-1) 97 P.L.R. 334 may be noticed wherein it has been held that a compromise or consent decree can be got set aside in a subsequent suit on one of the grounds on which a contract can be set aside. The suit in question having been filed on the ground that decree was obtained by fraud, the same cannot be held to be barred under Order 23 Rule 3-A, Code of Civil Procedure. It is erroneous for the learned counsel for the appellants to contend that after Dalip Kaur had availed of the remedy of appeal which though was dismissed under Section 96(3), Code of Civil Procedure, being not maintainable, the trial Court could not have entertained the application under proviso to Order 23 Rule 3, Code of Civil Procedure. The Supreme Court in Banwari Lal v. Smt. Chando Devi (through L.R.), A.I.R. 1993 S.C. 1139 did not find any infirmity in the procedure adopted by the trial Court in entertaining of the application filed on behalf of the plaintiff and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court would have recorded such an agreement or compromise.
4. The finding of the first appellate Court that the sale in favour of the appellants is without consideration too cannot be disturbed. Gurdial Kaur died on 25.3.1986 whereas sale-deed in favour of the appellants is alleged to have been executed on 20.3.1986 for consideration of Rs. 1,80,000/-. There is a recital in the sale-deed that sum of Rs. 80,000/- was paid on 3.1.1984 when agreement in this regard was executed by Gurdial Kaur. The agreement runs into two pages and appears to have been attested by two witnesses namely, Ujagar Singh and Hakam Singh who are also attesting witnesses to sale-deed dated 20.3.1986. Strangely, Hakam Singh has signed on the first page i.e. on the margin of left side of he page, whereas Ujagar Singh has put his signatures on the second page and that too at the bottom of he page. Both the attesting witnesses have not put their signatures at one place. Counsel was unable to explain as to why both these attesting witnesses did not put their signatures at the places where attesting witnesses are supposed to sign. The sum of Rs. one lac is alleged to have been paid at the time of registration of sale-deed. In his cross-examination, Karnail Singh stated that he had withdrawn Rs. one lac from Oriental bank of Commerce, Daudhar one day prior to the registration of sale-deed from the account of one Amar Singh son of Chanan Singh, resident of village Daudhar. With regard to the amount paid under the agreement, he stated " I do not know whether the amount of Rs. 80,000/- which was given as advance was withdrawn from the bank. I have taken from my friends. Himself stated that my father will be knowing. My father is alive." Against this, Dalip Kaur got proved on record Exhibit PW-7/A Statement of account of Amar Singh son of Chanan Singh, resident of village Daudhar maintained in Oriental Bank of Commerce, village Daudhar. A reading of the statement of account has shown that on 19th or 20th March, 1986 when sale-deed is alleged to have been executed, no amount was withdrawn from the account. As a matter of fact, in March, 1986 i.e. on 7.3.1986 sum of Rs. 900/- was deposited and in March, 1986 balance was only Rs. 1724. 29P. The maximum amount which ever came to be deposited in that account was Rs. 55339.69P and that too as on 12.6.1986. Thus, from the cross-examination of Karnail Singh (DW-1) and statement of account, Exhibit PW-7/A it stands proved that the agreement is fictitious and no amount was paid either at the time of alleged execution of the agreement or at the time of execution of the agreement or at the time of execution of sale-deed. Appellants have miserably failed to prove on record that they were possessed of the amount which they allege to have at the time of execution of the agreement or at the time of registration of sale-deed.
5. Faced with this situation, learned counsel for the appellants contended that statement of account, Exh. PW-7/A does not pertain to that Amar Singh son of Chanan Singh from whose account the amount was withdrawn but it pertains to some other Amar Singh son of Chanan Singh. In order to test this argument, it was suggested to the counsel that he can still bring on record the statement of account of Amar Singh son of Chanan Singh from whose bank account the sum of Rs. one lac was withdrawn. Counsel showed his unwillingness in this regard.
6. In view of the fining that decree has been obtained by practicing fraud and the sale-deed set up by the appellants is without consideration, it is not necessary to go into the contention of counsel for the appellants that Gurdial Kaur had become absolute owner as provided under sub-section (1) of Section 14 of the Hindu Succession Act, being only academic.
7. For the reasons recorded above, this appeal fails and is accordingly dismissed. No costs.