Punjab-Haryana High Court
Smt. Kamla Devi vs Smt. Gainda Devi And Ors. on 16 August, 2007
Equivalent citations: (2007)4PLR567
JUDGMENT Permod Kohli, J.
R.S.A. No. 1214 of 2005
1. This Regular Second Appeal has been directed against the judgment and decree dated 5.3.2005 passed by Additional District Judge, Gurgaon, allowing the appeal filed by respondents/plaintiffs against the judgment and decree dated 30.4.2004 passed by the Civil Judge (Junior Division), Gurgaon.
2. Brief facts of the case are that Sher Singh-plaintiff No. 1 in the suit (now deceased) suffered a decree dated 14.9.1995 passed by the Senior Sub Judge, Gurgaon in Civil Suit No. 568 of 1995, in respect of his estate in favour of Kamla Devi, his daughter-appellant herein, whereunder Kamla Devi was declared as the owner of the property. At the time of passing of decree, Sher Singh had his wife Smt. Kasturi and 6 more daughters, namely, Smt Gainda Devi, Smt. Maya, Smt. Santra, Smt. Bimla, Smt. Raj and Smt. Bala, all living. Later on, Sher Singh, his wife Kasturi and his daughters, except Kamla Devi and Smt. Bala filed suit in the court of Civil Judge (Jr. Division), Gurgaon seeking a declaration that the decree dated 14.9.1995, is nullity, having been procured by fraud, misrepresentation and undue influence and permanent injunction restraining Smt. Kamla Devi from dealing with the property. The trial court framed a many as three issues. The main issue i.e. Issue No. 1 reads as unden-
1. Whether the impugned judgment and decree passed in Civil Suit No. 568 of 1995 titled Smt. Kamla Devi v. Sher Singh decided on 14.9.95 in respect of the suit land detailed in para No. 1 of the plaint is illegal, void, without jurisdiction and non-est? OPP
3. During the pendency of the suit, Sher Singh and his wife Kasturi both died and the suit was continued by the other plaintiffs who are otherwise their legal representatives. The trial court dismissed the suit holding that no medical evidence has been produced to show the physical and mental state of Sher Singh, at the time he suffered the decree. It also held that Smt. Kamla Devi had a pre-existing right in the property, on the basis of family settlement which was alleged in the decree and is to be presumed in favour of the decree holder.
4. Judgment and decree of the trial court dated 30.4.2004 came to be challenged before the Additional District Judge, Gurgaon in Civil Appeal No. 28 of 26.5.2004. This appeal was preferred by all the remaining plaintiffs. The First Appellate Court, vide the impugned judgment and decree dated 5.3.2005 reversed the findings of the trial court. The First Appellate Court held that there was no pre-existing right in favour of Smt. Kamla Devi. It is also held that Kamla Devi was in a position to exercise undue influence on Sher Singh, her father who was illiterate and in old age. It was also observed by the First Appellate Court that Kamla Devi was required to implead all other sisters as parties, if there had been any family settlement, but she did not do so and the decree was passed in their absence within a span of 15 to 20 days. The First Appellate Court also held that there was no pre-existing right in favour of Kamla Devi. According to the First Appellate Court, the decree was compulsorily registrable and for this purpose, it relied upon the judgment of the Hon'ble Apex Court passed in the case of Bhoop Singh v. Ram Singh Major and Ors. . The First Appellate Court, accordingly, set aside the judgment and decree dated 30.4.2004 passed by the trial court and decreed the suit.
5. Mr. O.P. Sharma, learned Counsel appearing for the appellant submits that because of the consent decree, where the father had admitted family settlement, pre-existing right of Kamla Devi is to be presumed. He has further stated that Kamla Devi had served the father for quite long time and thus, her father suffered a decree in her favour to the exclusion of other daughters. This fact has been dispelled by other side by referring to the statement of DW4-Jai Bhagwan who is husband of Kamla Devi who stated in cross-examination that all the sisters were visiting their father. This witness also admitted that Sher Singh was under the influence of Kamla Devi. Another factor which weighed with the First Appellate Court is that the decree was passed within a span of 15 to 20 days and even after the passing of decree the possession of the land continued with Sher Singh, during his life time. Admittedly, She Singh died, after the filing of the suit. Learned Counsel for the appellant has relied on the judgments passed in the following cases, in support of his submission that where there is a pre-existing right, a consent decree requires no registration:
1. Ved Pal alias Vedu v. Smt. Raj Rani 2003 (1) Civil Courts Cases 655 (P & H);
2. Gurdev v. Jagtar Singh 2003 (1) Civil Court Cases 53 (P & H) and;
3. Jagdish and Ors. v. Ram Karan and Ors. .
6. In the above mentioned judgments, this Court held that a decree passed in favour of a person who has pre-existing right, do not require any registration. It has also been held that on the basis of family settlement, a pre-existing right is to be presumed. In so far as the proposition of law enunciated in these judgments is concerned, the same cannot be disputed. It is a question of fact whether there was any family settlement or not. It is admitted case of the parties that the deceased Sher Singh had a living widow and seven daughters, including Kamla Devi. It is also not disputed that no written family settlement is in existence. Then what was the family settlement and what were its terms and conditions, whether other, members of the family i.e. other 6 daughters and widow of Sher Singh were also given any other property etc. nothing has come on record. Except the consent decree wherein it is recorded that Kamla Devi had a share on the basis of family settlement, there is no material on record. Existence of any such family settlement is denied by all other daughters and the wife of Sher Singh. Had there been any family settlement, other members of family are supposed to be parties or at least in knowledge of the same. No material was brought on record to show that there was any family settlement prior to the passing of the decree. From the judgment of the trial court, it also appears that even in the suit filed by Kamla Devi against Sher Singh wherein Sher Singh suffered a decree, there was no allegation that she had a pre-existing right on the basis of a family settlement. The trial court proceeded on the only ground that the family settlement is to be presumed, in view of the decree. The First Appellate Court, however, did not agree with the trial court, firstly because Sher Singh who suffered the decree himself, came forward to challenge the decree and secondly specific allegations are made in the plaint by Sher Singh himself that Kamla Devi misrepresented Sher Singh that she has to obtain loan and thus, he was required to make some statements. It has also come on record that Sher Singh was in advance age. Though there is no specific material regarding mental and physical state of affairs, the First Appellate Court has based its findings on re-appraisal of the evidence. It is settled law that the First Appellate Court is final court of facts and its findings are not to be interfered by the High Court, unless the same are found perverse or there is any substantial question of law is involved. The First Appellate Court has returned findings of fact that there is no material to show that Kamla Devi had a pre-existing right in the property of her father and no circumstances exist to exclude other daughters and the wife of Sher Singh and all of them were living and visiting Sher Singh. The findings of fact cannot be lost sight of. I do not find any valid reason to interfere in the impugned judgment and decree of the First Appellate Court.
7. In view of the above, I affirm the judgment and decree dated 5.3.2005 passed by the Additional District Judge, Gurgaon. 1 find no merit in this Regular Second Appeal which is accordingly dismissed.
C.O.C.P. No. 1497 of 2005.
8. As a consequence of dismissal of the Regular Second Appeal, no direction is required in COCP. Rule issued is, accordingly, discharged. A copy of this order be placed on the record of C.O.C.P. No. 1497 of 2005.