Kaur & Ors Vs. Karamvir Singh & Ors  Insc 229 (25 April 2006)
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
in this appeal is to the legality of judgment rendered by a learned Single
Judge of the Punjab and Haryana High Court at Chandigarh in second appeal filed
under Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC').
facts in a nutshell are as follows:- One Ajit Singh was a common ancestor of
the appellants and the respondents. The respondents as plaintiffs had filed a
suit for declaration to the effect that they are owners to the extent of 17/24
share in the 107 Kanals and 2 Marlas of land, out of 151 Kanals 5 Marlas of
land in dispute which had been allotted to their common ancestor Ajit Singh at
the time of consolidation. Ajit Singh was a man of full vices, a spend- thrift
person and had sold his land to one Bishan Singh without consideration and
legal necessity. Joginder Singh, ancestor of the present appellants 1 to 5 and
7 had filed a suit for declaration that said sale was without consideration and
legal necessity and as such void and had no effect on the reversionary rights.
The said suit was decreed up to the High Court. Before this Court a compromise
was arrived at between Joginder Singh and Bishan Singh in which the latter
admitted that the land was ancestral property and the sale was ineffective. He,
therefore, relinquished his right in the same after accepting a sum of Rs.30,000/-
from Joginder Singh, the original defendant no.1. With a mala fide intent Joginder
Singh initially got the mutation sanctioned in his name in relation to the
entire land and, thereafter had got a portion thereof mutated in favour of his
son, Harpal Singh (defendant no.2) and his wife Smt. Harjinderjit Kaur (defendant
No. 2 Manraj Singh is the son of Harpal Singh.
entries, according to the plaintiffs were incorrect and had no effect on their
rights as they had acquired 17/24 share in the suit land as reversioners on the
death of Ajit Singh on 3.9.1986. The decree of this Court was not binding on
them as they were not parties to the compromise. The plaintiffs had requested
the defendants to admit their claim, but to no effect.
the suit for declaration and consequential relief of possession was filed. The
suit was contested by the defendants who admitted the relationship inter se, as
also the fact that the land in question was allotted at the time of
consolidation in lieu of the land which was ancestral in the hands of Ajit Singh.
It was also admitted that Ajit Singh had sold the land without legal necessity
and consideration and that defendant no.1 Joginder Singh had filed suit for
declaration which was decreed up to the High Court, and a compromise had been
affected by Joginder Singh with Bishan Singh. They also admitted that after the
compromise possession was taken by Joginder Singh. However, it was submitted
that the High Court had observed that the sale in favour of Bishan Singh was
void and would not affect the revisionary rights of Joginder Singh after the
death of Ajit Singh. Before this Court only Joginder Singh was a party and it
was he, who had entered into compromise with Bishan Singh, in pursuance whereof
a decree was passed. On the basis of this decree Joginder Singh claimed that he
had become owner of the suit land. Joginder Singh had also incurred huge
expenses for making the land fertile and had installed electricity tubewell,
electric motor of 7.5 horse power and also constructed 4/5 rooms for the
storage of seed, fertilizer etc. He also claimed to have grown orchard in an
area of four acres and planted 600/700 eucalyptus trees.
defendants 2 to 6 claimed to have become owners by way of decree of a Court and
mutual exchanges. It was stated that in view of the decision in favour of Joginder
Singh in the earlier suit, the subsequent suit was not maintainable and the
decision of this Court dated 22.3.1966 operated as res judicata. It was also
submitted that plaintiffs were estopped from filing suit by their own acts and
conduct and the suit was barred by time and also bad for non-joinder of
necessary parties. Reference was made to Order 32 Rule 3 of the CPC with regard
to the appointment of guardian for the minor defendants. It was pleaded that
these mandatory provisions were not complied with and the suit was band qua the
minor defendants. 13 issues were framed by the trial court which after
examining evidence decided the relevant issues i.e. issues nos. 3to 6 as quoted
below against the plaintiffs.
sale of the suit property by Ajit Singh in favour of Bishan Singh is null and
void, and if so, its effect? OPP
plaintiffs are owners of the suit property? OPP
If issue No.4 is
proved whether plaintiff is entitled to the possession of the suit property as
prayed for? OPP
plaintiff has no locus standi to file the present suit? OPP" Appeal filed
by the respondents was allowed by learned Additional District Judge, Jalandhar
holding that Joginder Singh was entitled to the benefit of the decree in the
earlier suit and the findings in relation to the above issues were reversed. In
the second appeal the High Court was of the view that the only question which
arises for consideration is whether the settlement arrived at between Joginder
Singh (defendant No.1) and Bishan Singh would entitle Joginder Singh alone to
the benefit of the decree passed in the suit filed by him against Bishan Singh.
The High Court felt that no question of law was involved and accordingly
High Court noticed that the admitted case was that the alienation of their
predecessor-in-interest Ajit Singh in favour of Bishan Singh was assailed by Joginder
Singh alone in a suit arraying by Bishan Singh, his brothers, namely, Nirmaltej
Singh and Karamvir Singh along with Ajit Singh as defendants. The suit was
decreed in his favour by the High Court declaring that the sale would not
affect his reversionary rights after the death of Ajit Singh for an amount in
excess of Rs.1011/- and he would be entitled to take possession of the land on
payment of the aforesaid amount. In appeal before this Court, Joginder Singh
and Bishan Singh entered into compromise by virtue of which Joginder Singh
agreed to pay a sum of Rs.30,000/- in place of Rs.1011/- which he would have
been required to pay if the decree had not been modified.
was no modification of the terms of the declaration that the sale would not
affect the reversionary rights of Joginder Singh after the death of Ajit Singh
which in fact would mean that the property in dispute would be inherited by all
the heirs of Ajit Singh. The Trial Court fell into grave error in relation to
this aspect of the case and, therefore, the first Appellate Court was justified
in its view.
to learned counsel for the appellants the basic issue was whether the
compromise entered into between Joginder Singh and Bishan Singh before this
Court, with regard to the ancestral property of Ajit Singh after the death of Joginder
Singh would have any effect on the reversionary rights of the other heirs of Ajit
Singh. It was, therefore, submitted that sale putatively due to legal necessity
was entered into on 14.3.1942 but for the suit filed in 1943, the sale would
have been final and binding. As a consequence of Joginder Singh's suit and
appeals, thereafter the sale was treated for necessity to a limited extent.
Under the compromise,
were accorded to Joginder Singh and
Singh had not paid the sum in the compromise decree, the entire suit would have
been dismissed and the sale would have been valid. Further, Joginder Singh was
to be given entire land even before the death of Ajit Singh with full rights to
consolidation, mutation and attainment of tenants. The other reversioners were
party to the suit and appeal proceedings and became majors on 23.10.1959 and
17.11.1964; thus being capable of conducting their own proceedings without a
guardian ad litum. They acquiesced to in the compromise decree fully conscious
of their rights. The compromise decree was
a bona fide transaction
Singh and the vendee for consideration
Singh exclusively to possess and mutate all records and attorn all tenants
acted as exclusive owner from 1966 to 1986 and beyond. He also spent huge sums
of money for improvements and additions from his own funds. No other party had
the means to pay for the compromise other than Joginder Singh. There was
acquiescence to the decree both by the father (Vendor and Ajit Singh) and the reversioners.
It was submitted that equitable principles such as estoppel, elections family
settlement etc. are not mere technical rules of evidence. The ultimate aim of
law is to secure justice. There are three classes of estoppel that may arise
for consideration which are
within ambit of
Section 115 of the Indian Evidence Act, 1872 (in short 'Evidence Act')
election in the
strict sense of the term whereby the person electing takes a benefit under the
i.e. agreeing to abide by the transaction.
presumptive reversioner coming under any of the aforesaid categories is
precluded from questioning the transaction, when succession grants and when he
becomes the actual reversioner. The principles of acquiescence may also make revesionary
learned counsel for the respondents submitted that at the time of Ajit Singh's
death the right survived and the Punjab (Custom) (Power to Contest] Act of 1920 was in operation. It is to be
noted that plea relating to acquiescence was not pleaded before any of the
courts below and, in fact, there is no acquiescence as the compromise entered
into between Joginder Singh and Bishan Singh has no effect on the rights of the
plaintiffs. Their rights were protected by this Court in dismissing appeal of Bishan
Singh against them. The relevant portion of this Court's earlier order makes
this position clear. Only effect of the compromise was that by paying certain
amount Joginder Singh became entitled to the possession of the suit land
immediately, which otherwise could have been taken by him only after the death
of Ajit Singh. Ajit Singh's land became part of his estate and the same
devolved upon all the legal heirs. As rightly held by the first Appellate Court
and confirmed by the High Court, Joginder Singh had no right to deny claim of
other heirs on the ground that he got possession of the land from Bishan Singh
on the basis of the compromise affected between them.
plaintiffs could not have been deprived of their legal rights by the compromise
contentions need careful consideration. It would be appropriate at this stage
to take note of this Court's judgment in Giani's Ram v. Ramjilal (1969 (1) SCC
813). It was inter alia held as follows :- "The Punjab Custom
(Power to Contest) Act 1 of 1920, was enacted to restrict the rights
exercisable by members of the family to contest alienations made by a holder of
ancestral property. By virtue of Section 6 of the Act no person is entitled to
contest an alienation of ancestral immovable property unless he is descended in
the male line from the great-great grandfather of the alioner.
the customary law in force in the Punjab a declaratory decree obtained by the
reversionary heir in an action to set aside the alienation of ancestral
property enured in favour of all persons who ultimately took the estate on the
death of the alienor for the object of a declaratory suit filed by a
reversionary heir impeaching an alienation of ancestral estate was to remove acommon
apprehended injury, in the interest of the reversioners. The decree did not
make the alienation a nullity it removed the obstacle to the right of the reversioner
entitled to succeed when the succession opened." It was also held that
effect of such a declaratory decree is merely to declarate that by the sale
interest conveyed in favour of the alienee was to ensure during the life time
of the alienor.
inevitable conclusion is that the property alienated reverted to the estate of
the alienor at the point of his death and all persons who would but for the
alienation will be entitled to inherit the same.
perusal of the order of this Court while recording the compromise shows that
the rights of the plaintiffs was kept in tact by dismissing the appeal of Bishan
Singh against them.
Singh had spent any money as claimed, that is a matter of adjustment when the
actual allotment is made.
being the position, there is no merit in this appeal which is accordingly
dismissed. No costs.