Gurcharan Singh vs Angrez Kaur

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6835/2009

GURCHARAN SINGH & ORS. ...APPELLANT(S)

VERSUS

ANGREZ KAUR & ANR. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This is a defendant’s appeal challenging the

judgment of the High Court of Punjab & Haryana

dismissing the Regular Second Appeal No. 3472 of 2004

of the appellants. The plaintiffs-respondents suit for

declaration was dismissed by the trial court which

decree was reversed by First Appellate Court decreeing

the suit. The High Court affirmed the decree of First

Appellate Court.

Signature Not Verified

2. The brief facts of the case giving rise to this Digitally signed by MAHABIR SINGH Date: 2020.03.19 18:37:10 IST Reason:

appeal are:-

1

2.1 One Bhajan Singh was owner of suit land situated

in Village Siraj Majra, Tehsil Amloh, District

Fatehgarh Sahib. Bhajan Singh was married with

Gurmail Kaur. Two daughters (namely Angrez Kaur

and Paramjit Kaur) were born to Bhajan Singh with

Gurmail Kaur. Between Bhajan Singh and Gurmail

Kaur, a divorce in writing was entered on

15.09.1973 whereafter Gurmail Kaur started

residing with one Maghar Singh, the brother of

Bhajan Singh in village Jalowal. Gurmail Kaur

also took alongwith her both the daughters who

were minors at that time to Village Jalowal where

they all resided with Maghar Singh.

2.2 Bhajan Singh resided in Village Siraj Majra with

Gurcharan Singh, Gurnam Singh and Kulwant Singh,

the appellants, who looked after Bhajan Singh.

Bhajan Singh executed a registered Will dated

02.09.1986 in favour of Gurcharan Singh, Gurnam

Singh and Kulwant Singh, the appellants. A Civil

Suit No. 556 dated 21.09.1994 was filed by the

appellants impleading the Bhajan Singh as the

2 sole defendant praying for declaration to the

effect that plaintiffs are the owners and in

possession of the suit land.

2.3 In the plaint, the plaintiff pleaded that

defendant had executed a registered Will in

favour of the plaintiffs, which was made as per

defendant’s free will and consent and which was

attested and duly registered by Sub-Registrar.

It was further pleaded in the plaint that

defendant effected a Family Settlement on

15.06.1994 in which suit property was given to

the plaintiffs in equal share. In the suit, a

written statement was filed by the defendant –

Bhajan Singh on 03.12.1994 where he admitted the

plaint allegations and also prayed that decree

be passed in favour of the plaintiffs. On the

same day, i.e., 03.12.1994, Bhajan Singh also

recorded his statement in the Court, where he

stated that averments in the plaint are correct

and he has no objection if the suit of the

plaintiff is decreed.

3 2.4 The Court of Additional Senior Sub Judge, Amloh

decreed the suit on 09.01.1995. On the basis of

admission by the defendant of the claim of the

plaintiffs after decree dated 09.01.1995

mutation was also affected of the land in suit

in favour of the plaintiff on 03.03.1995. Bhajan

Singh died on 24.04.1998.

2.5 After death of Bhajan Singh both Angrez Kaur and

Paramjit Kaur filed Civil Suit No. 167 of

19.05.1998 praying for declaration to the effect

that decree and judgment in Civil Suit No. 556

of 21.09.1994 decided on 09.01.1995 in respect

of the suit property is wrong, without

jurisdiction, illegal, null and void,

ineffective and inoperative qua the proprietary

rights of the plaintiffs as heirs of the said

Bhajan Singh.

2.6 In the suit filed by the plaintiffs, the present

appellants, who were impleaded as defendants

filed a written statement refuting the plaint

allegations. It was pleaded by defendants-

4 appellants that after divorce of Bhajan Singh

and Gurmail Kaur on 15.09.1973, Bhajan Singh was

residing with defendants, who were serving

Bhajan Singh. Bhajan Singh out of his free will

executed a Will on 02.09.1986 in favour of the

defendants. In the suit filed by the defendants

-Suit No. 556 of 21.09.1994, Bhajan Singh filed

a statement admitting the claim of the defendants

including the confirmation regarding execution

of Will in favour of the defendants. It is the

defendants, who are in possession of suit land,

in whose favour, mutation has also been affected.

The plaintiffs had no concern with Bhajan Singh,

who was residing with defendants at Village Siraj

Majra. The vote and ration card of Bhajan Singh

was with the defendants, who were serving him

like their father. A replication was also filed

by the plaintiffs where Family Settlement as well

as the Will dated 02.09.1986 was denied. The

trial court vide its judgment and order dated

05.03.2003 dismissed the suit of the plaintiffs.

5 2.7 The plaintiffs aggrieved by the said judgment

filed an appeal before District Judge. The first

appeal filed by the plaintiffs was decreed and

allowed by learned Additional District Judge

vide its judgment dated 13.08.2004. The

defendants filed Regular Second Appeal before

the High Court, which was dismissed by the

impugned judgment. This appeal has been filed

by the defendants aggrieved with the judgment of

the High Court.

3. We have heard Shri Pallav Sisodia, learned senior

counsel and Mrs. Swarupama Chaturvedi, learned counsel

for the appellant. Shri Dhruv Mehta, learned senior

counsel had appeared for the respondents.

4. Shri Pallav Sisodia, learned senior counsel for

the appellant contends that both First Appellate Court

and High Court erred in decreeing the suit of the

plaintiffs. The trial court has rightly dismissed the

suit of the plaintiffs holding that decree dated

09.01.1995 was a valid decree, which did not require

6 any registration. The claim of the appellants of

declaration as owner in possession of the suit property

in Civil Suit No. 556 was admitted by Bhajan Singh, who

filed the written statement and got recorded his

statement admitting the claim of the plaintiffs. The

decree dated 09.01.1995 was not based on any fraud or

coercion. Bhajan Singh at his own free will had decided

to give the suit property to the appellants, which is

clearly depicted by executing a registered Will dated

02.09.1986 in favour of the appellants and further

after the decree dated 09.01.1995 accepting the

mutation in favour of the appellants. Divorce between

Bhajan Singh and Gurmail Kaur took place on 15.09.1973

and Gurmail Kaur thereafter started residing with

Maghar Singh, brother of Bhajan Singh and never came

back to Bhajan Singh. There was no relation between

Gurmail Kaur and Bhajan Singh after the divorce dated

15.09.1973. The plaintiffs also went alongwith Gurmail

Kaur after the divorce and throughout lived with Maghar

Singh and Gurmail Kaur and never came to see their

father Bhajan Singh. The Will dated 02.09.1986 was

validly executed, which Will was admitted by Bhajan

7 singh in his written statement filed in Suit No. 556.

When Bhajan Singh has admitted the execution of Will

dated 02.09.1986, Courts below committed error in not

accepting the Will due to want of examination of

attesting witness whereas Will was proved by the

defendants-appellants by producing scribe, who scribed

the Will as well as clerk from Registrar’s Office, who

proved the registration of the Will. It is further

submitted that oral Family Settlement dated 15.06.1994

giving the suit property by Bhajan Singh in favour of

the defendants was a valid settlement even though

defendants were not related by blood as Uncle and

Nephew but Bhajan Singh was living with the defendants

after the divorce throughout. Defendants treated Bhajan

Singh as member of their family and served them. Family

Settlement in above facts was valid Family Settlement.

It is not necessary that person, who is given a right

in any property should be necessarily a blood relation.

It is further submitted that both the First Appellate

Court and the High Court erred in holding that

compromise decree dated 09.01.1995 required compulsory

registration under Section 17 of Registration Act,

8 1908. High Court has discarded the compromise decree

dated 09.01.1995 on the ground that same required

compulsory registration and the decree being not

registered was not valid decree.

5. Shri Dhruv Mehta, learned counsel for the

plaintiffs-respondents submits that decree dated

09.01.1995 was obtained by fraud and on false

allegations made in the plaint. It is submitted that

appellants, who were plaintiffs in the above suit

described themselves as nephews of Bhajan Singh and

Bhajan Singh as Uncle, which relationship was not

proved, hence, decree was obtained by playing fraud.

It is further submitted that decree dated 09.01.1995

was compulsorily registrable under Section 17 and it

having not been registered First Appellate Court and

the High Court has rightly discarded the decree. It

is submitted that the Will dated 02.09.1986 has not

been accepted by all the three courts. It is submitted

that under Section 68 of the Evidence Act, a Will

requires attestation. It is submitted that out of the

two attesting witnesses namely Darshan Singh and Gurdev

9 Singh, Gurdev Singh was admittedly alive, which was

admitted by defendant himself in his statement and

Gurdev Singh having not been produced to prove the

Will, the Will has rightly been held not to be proved,

which findings need no interference in this appeal. The

scribe, who appeared to prove the Will cannot be

treated as an attesting witness, since he had no animus

to attest the Will. It is further submitted that there

can be no Family Settlement in favour of a person, who

has no relation with the owner of the property. The

Family Settlement dated 15.06.1994 was no Family

Settlement.

6. Learned counsel for the parties have relied on

various judgments of this Court, which we shall refer

to hereinafter while considering the submissions in

details.

7. We may notice the issues framed by the trial court

and the findings returned thereon. On the basis of the

pleadings of the parties, trial court framed following

issues:-

“1. Whether impugned judgment and decree passed in Civil Suit No. 556 of

10 21.09.1994 decided on 09.01.1995 titled as Gurcharan Singh etc. Vs. Bhajan Singh, by S. Dalip Singh the then Additional Senior Sub Judge, Amloh in respect of property earlier in name of Bhajan Singh in the subject matter of the suit is illegal, null and void or otherwise bad as alleged in the plaint, if so its effect? OPP

2. Whether plaintiffs are entitled to possession of the suit land? OPP

3. Whether Sh. Bhajan Singh executed a legal and valid will dated 09.02.98 in favour of defendants, if so its effect?

OPD

4. Whether suit is not maintainable and competent in the present form? OPD

5. Whether plaint is liable to be rejected u/o 7 rule 11 CPC? OPD

6. Whether suit is within limitation? OPD

7. Whether defendants have taken possession of the suit land from plaintiffs 3 weeks before filing of the suit? OPD

8. Relief”

8. Issue No.1 was decided in favour of the defendants

holding the decree dated 09.01.1995 as a valid decree.

Issue No.2 was decided in favour of the defendant. The

issue No. 3 regarding Will dated 02.09.1986 was decided

in favour of the plaintiffs holding that defendant

11 failed to prove the Will dated 02.09.1986 since one of

the attesting witnesses was alive but was not produced

by the defendants. Trial court held the suit to be

within limitation. The trial court has also returned

a finding that it has been proved from the evidence of

PW1, the plaintiff that they never visited their father

from Village Jalowal, which clearly establish that

Bhajan Singh resided with the defendants, who used to

look after and serve him. The trial court also returned

a finding that there was no element of fraud,

misrepresentation or coercion in obtaining a decree

dated 09.01.1995. The First Appellate Court reversed

the judgment of the trial court holding that the decree

dated 09.01.1995 first time created rights in favour

of the defendants, hence it required registration. It

was held that decree dated 09.01.1995 was not a valid

document and was null and void and non est being an

unregistered decree. The findings of the trial court

with regard to Will were not interfered with by the

First Appellate Court. In the Regular Second Appeal

filed by the defendants, the decree of the First

Appellate Court was confirmed. In the Regular Second

12 Appeal, following substantial questions of law were

framed by the High Court:-

“a) Whether in the facts and circumstances of the instant case, the decree dated

09.01.1995 which has, otherwise, been proved to have been suffered by Bhajan Singh in favour of the appellant, could be ignored by the learned Ist Appellate Court on the ground of non- registration particularly when the decree was based on earlier family settlement?

b) Whether in the facts and circumstances of the instant case, the suit filed by the plaintiff/respondents could be said to be within limitation?

c) Whether in the facts and circumstances of the instant case, the registered Will in favour of the appellants could be ignored by the learned courts below when the appellants had led affirmative evidence proving the due execution and validity of the Will?

d) Whether the interpretation put by the learned Ist Appellate Court to the meaning of Family can be sustained in law?

9. All the substantial questions of law have been

answered by the High Court in favour of the plaintiffs

and against the defendants. The first substantial

question of law framed by the High Court was with regard

to non-registration of decree dated 09.01.1995. We may

13 first consider the rival submissions of the parties on

the question of registration of the decree dated

09.01.1995. The First Appellate Court and the High

Court both have upheld the decree 09.01.1995 as null

and void due to non-registration of decree. The

question is as to whether the decree dated 09.01.1995

required registration under Section 17 of the

Registration Act. Section 17 of the Registration Act

provides for registration of documents, which is to the

following effect:-

“17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable 14 property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub- section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property

15 Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

(2) Nothing in clauses (b) and (c) of sub-

section (l) applies to—

(i) any composition deed; or

(ii) … … … …

(iii) … … … …

(iv) … … … …

(v) … … … …

(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-

matter of the suit or proceeding]; or

… … … … … … … …”

10. Sub-section (2) of Section 17 provides that nothing

in clause (b) and (c) of sub-section (1) applies to

item No.(i) and (xii) enumerated therein. We in the

present case have to consider as to whether the decree

16 dated 09.01.1995 is covered by sub-section(2)(vi) or

not. Both the First Appellate Court and the High Court

have proceeded on the premise that since the decree

dated 09.01.1995 first time created right in favour of

the defendant, it required registration, on the ratio

of a judgment of this Court in Bhoop Singh Vs. Ram

Singh Major and Others, (1995) 5 SCC 709. In Bhoop

Singh (supra), this Court laid down following in

paragraphs 16, 17 and 18:-

“16. We have to view the reach of clause

(vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted 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 new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.

17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the

17 value of Rs 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable.

18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:

(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not 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 immovable 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 Privy 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

18 question.

(5) If 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.

11. Learned counsel for the respondent has placed

reliance on paragraph 18(2) to support his submission

that since for the first time right, title and interest

in the suit property being created in favour of the

defendants, it required registration. Respondent’s

counsel further submits that defendant in the statement

before the Court has admitted that the respondents-

defendants for the first time obtained right, title and

interest in the suit property by virtue of decree dated

09.01.1995. The present is a case where by decree

dated 09.01.1995 only suit property was made part of

the decree. Suit No. 556 was filed with the pleading

that Will dated 02.09.1986 as well as Family Settlement

dated 15.06.1994, which are specifically pleaded in

19 paragraphs 2 and 3 of the plaint are to the following

effect:-

“2. That the defendant has executed a valid and legal Will dated 02.09.1986 in favour of the plaintiffs with his free will and consent while he was in a fit disposing mind, which was attested and registered by the Sub-Registrar.

3. That the defendant considering it proper has effected a family settlement on 15.06.1994 vide which the property in suit was allotted to the plaintiffs in equal shares and the defendant has relinquished all his right, title and interest whatsoever in the said property in favour of the plaintiff in the said family settlement.”

12. In the suit, Bhajan Singh was only defendant, who

filed his written statement on 03.12.1994, allegations

in paragraphs 2 and 3 of the plaint were admitted by

the defendant in his statement in paragraphs 2 and 3,

which is to the following effect:-

“2. Para No. 2 of the plaint is admitted to be correct.

3. Para No. 3 of the plaint is admitted to be correct.”

13. In the written statement, the defendant Bhajan

Singh prayed that suit of the plaintiffs be decreed as

prayed. The pleading in the suit and in the written

20 statement clearly leads to the conclusion that suit was

filed on the basis of pre-existing right in favour of

plaintiffs, which was basis of the suit. Pre-existing

right of the plaintiffs was admitted by the defendant

and decree was passed therein.

14. Thus, the submission of the plaintiffs-respondents

that suit was not based on pre-existing right of the

plaintiffs cannot be accepted, which is belied by the

categorical pleading in the plaint. In view of the

above pleadings, we are of the view that very basis of

the applicability of the judgment of Bhoop Singh

(supra) is knocked out and is not attracted in the

present case. This Court in a recent judgment in Civil

Appeal No.800 of 2020 – Mohammade Yusuf & Ors. Vs.

Rajkumar & Ors. decided on 05.02.2020 had occasion to

consider Section 17 as well as judgment of Bhoop Singh

(supra). While elaborating Section 17, this Court laid

down following in paragraph 6:-

“6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but subsection(2) of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a compromise and 21 comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub- section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub- section (2), one category is excepted from sub-clause(vi), i.e., a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain 8 reading of Section 17(2)(vi)………………………….“

15. In the above case, this Court further relied on

earlier judgment of this Court in Som Dev and Others

Vs. Rati Ram and Another, (2006) 10 SCC 788 in paragraph

13 and laid down following:-

“13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788 22 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following:-

“18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit…………………….”

16. In the above case, the earlier decree, which was

sought to be ignored on the ground that it was not

registered related only with the suit property. This

Court held that the said decree did not require

registration. Following reasons were given in

paragraph 14:-

“14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., “any decree or order of a Court”. When registration of an instrument as required by Section 17(1)(b) is specifically

23 excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub- section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.”

17. Reverting back to the facts of the present case,

it is clear that the Suit No. 556 of 21.09.1994 filed

by the appellants against Bhajan Singh relates to the

suit property described in plaint and decree was passed

only with regard to suit property A to D. The decree

dated 09.01.1995 was, thus, expressly covered by

expression “any decree or order of a Court”. When

legislature has specifically excluded applicability of

clause (b) and (C) with regard to any decree or order

of a Court, applicability of Section 17(1)(b) cannot

be imported in Section 17(2)(v) by any indirect method.

We, thus, are of the considered opinion that decree and

order dated 09.01.1995 did not require registration and

were fully covered by Section 17(2)(vi), which contains

24 exclusion from registration as required in Section

17(1). High Court as well as First Appellate Court

erred in coming to the conclusion that decree dated

19.01.1995 required registration and due to not

registered is null and void.

18. Trial Court’s view that decree dated 19.01.1995

being binding on Bhajan Singh, the plaintiffs, who are

the daughters of Bhajan Singh cannot avoid the decree.

The submission of the learned counsel for the

respondent that decree dated 09.01.1995 was obtained

by fraud also needs to be considered.

19. The submission of the learned counsel for the

respondent is that since in the suit, which was filed

by the defendant, they described the defendant as uncle

of the plaintiffs, who were looking after and serving

the defendant, which statement having been found not

to be proved, it was fraud played on the defendant and

the Court.

20. We need to revisit the facts and sequence of events

25 in the case to examine as to whether any fraud was

played on the Court or Bhajan Singh in obtaining the

decree dated 09.01.1995. Bhajan Singh had executed a

registered Will dated 02.09.1986, which was a

registered Will and pleaded in paragraph 2 of the

plaint. In paragraph 3 of the plaint, it was also

pleaded that pursuant to a Family Settlement dated

15.06.1994 by which Bhajan Singh decided to allot

plaintiffs in equal share and relinquished all his

rights in the suit property, which pleadings were

admitted by Bhajan Singh in his statement. The decree

was passed on 09.01.1995 on the basis of which mutation

was sanctioned on 03.03.1995. Bhajan Singh was

admittedly alive till 24.04.1998 and in his lifetime,

he never objected the decree or mutation in favour of

the defendants. It has been accepted by the Courts

below that both Bhajan Singh and Gurmail Kaur were

divorced and which divorce was recorded in writing on

15.09.1973 as proved before the Courts below. Gurmail

Kaur after 15.09.1973 started living with Maghar Singh,

brother of Bhajan Singh in Village Jalowal and

thereafter never returned to Bhajan Singh. Gurmail

26 Kaur also filed a suit for maintenance against Bhajan

Singh, which was dismissed for non-prosecution. The

plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after

divorce went with their mother and lived with Maghar

Singh and never returned to Bhajan Singh. In her

statement, PW1 has admitted that she never came to see

her father. The Courts have found that Bhajan Singh

lived with the defendants after the divorce, who were

taking care of Bhajan Singh. The execution of

registered Will by Bhajan Singh on 02.09.1986 in favour

of the defendants and further his admission that all

the claim of the defendants in Suit No. 556 are correct

and accepting that he has relinquished his rights in

favour of the plaintiffs, Gurcharan Singh, Gurnam Singh

and Kulwant Singh clearly disprove any ground of fraud

either on the Court or on Bhajan Singh. The divorce

between Bhajan Singh and Gurmail Kaur took place on

15.09.1973 and thereafter for 25 years, Bhajan Singh

lived away from his wife and daughters and it was the

defendants, who were taking care of Bhajan Singh.

Admitting the claim of plaintiffs/appellants in the

suit filed against the defendant Bhajan Singh for

27 declaration cannot be termed as any fraud played on

Bhajan Singh or the Court. Sequence of events clearly

indicate that Bhajan Singh of his own volition wanted

to give the entire property to the defendants due to

the circumstances of the case, in which Bhajan Singh

was placed. It is due to this reason that Bhajan Singh

in his Will dated 02.09.1986 stated that he has no wife

or children. We, thus, do not find any substance in

the submission of the learned counsel for the

respondents that any fraud was played in obtaining

decree dated 09.01.1995 by the defendants. The decree

dated 09.01.1995 cannot be held to be suffering from

any fraud or coercion as contended by the learned

counsel for the respondents.

21. We having held that decree dated 09.01.1995 was a

valid decree, the decision of the trial court

dismissing the suit for declaration that decree dated

09.01.1995 was null and void, has to be upheld. In view

of our above conclusion, we do not find it necessary

to consider various submissions raised by the learned

counsel for the parties regarding the validity of the

28 registered Will dated 02.09.1986.

22. In view of the foregoing discussions, we set aside

the judgment of the High Court as well as First

Appellate court and restore the decree of trial court.

The appeal is allowed accordingly.

......................J. ( ASHOK BHUSHAN )

......................J. ( NAVIN SINHA ) New Delhi, March 19, 2020.

29