Gurbinder Singh vs Teja Singh

A.S. Nehra, J.—This judgment will dispose of Regular Second Appeal No. 1718 of 1987 filed by Defendant-Appellant Gurbihder Singh and Regular Second Appeal No. 2396 of 1987 filed by Plaintiff-Appellant Teja Singh, against the judgment and decree dated 24-4-1987 passed by the Additional District Judge, Patiala.

Plaintiff Teja Singh filed a suit against Defendant Gurbindcr Singh for a declaration that he is the owner of the land measuring 55 Bighas � Biswas, being one-half of the land measuring 110 Bighas 1 Biswas, fully described in the heading of the plaint and that the decree dated 1-1-1977, made in favour of the Defendant and against Kartar Singh deceased in Suit No. 927 of 1976 regarding the suit land is collusive, null and void, illegal and, as such, inoperative and ineffective against the Plaintiff qua the said land and. by way of consequential relief, the Defendant has also been sought to be restrained from alienating the said land or any portion thereof

The case of the Plaintiff is that he is the son of Kartar Singh S/o Harnam Singh; that Kartar Singh deceased was the owner in possession of the suit land which constituted a joint Hindu family coparcenary property in the hands of Kartar Singh deceased qua the Plaintiff and, as such, the Plaintiff acquired au interest equal to that of Kartar Singh in that land by birth and he, therefore, was a co-owner in the same to the extent of half-share in it; that Kartar Singh in suit No. 927 of 1976 decided on 1-1-1977 suffered a consent decree in favour of the defendnant, which is illegal and, as such, inoperative against the Plaintiff, inter alia, on the ground that the suit land, being a coparcenary property in which the Plaintiff had an interest to the extent of half-share, could not be transferred in favour of the Defendant through the said suit which was not maintainable, and that the alleged family arrangement propounded by the Defendant in that suit was false, fake and sham transaction without consideration and. as such, the said judgment is violative of the statutory law.

The Defendant filed written statement and admitted that Kartar Singh deceased was earlier the owner in possession of the disputed land, but denied the other material pleadings contained in the plaint and alleged that the Plaintiff is neither related to Kartar Singh deceased as his son nor could he constitute any Joint Hindu coparcenary family with Kartar Singh deceased qua the disputed property nor had he ever acquired any right in the suit property and, as such, be had no locus standi to file the present suit which is not maintainable; that the suit is barred by time and was not properly valued for purposes of Court fee and jurisdiction; that the Defendant had become the exclusive owner on the basis of the decree dated 1-1-1977; and that Kartar Singh deceased, through his last and valid will, also bequeathed the suit property in favour of Defendant''s father Joginder Singh and as such, the suit of the Plaintiff, being without any merit is liable to be dismissed.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiff is son of Kartar Singh deceased?

Whether the disputed land constituted a Joint Hindu family property?

Whether the decree suffered by Kartar Singh deceased in favour of the Defendant, dated 1-1-1977 is null and void on the grounds mentioned in paragraph 5 of the plaint?

Whether the suit is within time?

Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction?

Whether the Pluintiff has Locus standi to file the suit?

Whether the suit is not maintainable in the present form?

Whether there exists a will in favour of Joginder Singh S/o Sarwan Singh of Rohti Mauran? If so, its effect?

Relief.

The parties led their evidence and, after appreciation of the same, the trial Court decided issues Nos. 1 to 7 in favour of the Plaintiff and issue No. 8 was left undecided with the observation that it was not necessary to do so because Joginder Singh, in whose favour the will is stated to be executed, was not a party to the suit. The suit of the Plaintiff was decreed by the trial Court on 31-3-1986. Defendant Gurbinder Singh filed an appeal against the judgment and decree of the trial Court before the Additional District Judge, Patiala, which was partly allowed on 24-4-1987 and the decree of the trial Court was substituted with the decree for declaration to the effect that the Plaintiff is entitled to only one-half of the suit land as well as its possession. Both the parties lied their respective regular second appeals in this Court, as aforementioned.

The learned Counsel for Gurbinder Singh Defendant-Appellant has argued that Teja Singh Plaintiff is not the son of Kartar Singh and, therefore, he is not entitled to file the present suit. He has submitted that as, in the will Exhibit D-1 which was executed by Kartar Singh deceased in favour of Joginder Singh, it is stated that Kartar Singh had no male or female issue, so the Plaintiff cannot be considered to be the son of Kartar Singh deceased and, therefore, the finding of the learned Lower Courts on issue No. I is wrong and the same is liable to be set aside.

The claim of the Plaintiff about his being the son of Kartar Singh deceased finds support mainly from the entries in his service record, attested copies whereof are Exhibit JP-1 to P-5 describing him as the son of Kartar Singh deceased and the office of the Department, who recruited him and had been working in the Department, which the lower Courts believed and, in my view, rightly. The record of service was produced by PWl Hem Raj from the office of the Divisional Forest Officer. Ludhiana, and on its basis, he deposed about the Plaintiff having been recruited as ''Baramasia" in the erstwhile State of Nabha and, after the merger of the said land into Pepsu as also after the reorganization of the State of Punjab, the plantiff continued as such. Exhibits P-1 to P-5 are the photo copies of pages 3 to 7 of the service book, which are also on the record in original. PW 2 Gurdial Singh, who was working as Superintendent Forest in the Nabha State at the relevant time, deposed that he knew Kartar Singh; that he was working as Head Hunter at that time; that he also personally knew Teja Singh Plaintiff as the son of Kartar Singh; that Kartar Singh used to visit him along with his son; that the Plaintiff used to address Kartar Singh as his father and Kartar Singh, in turn, used to call the Plaintiff as his son and he too treated them as such; and that it was on the request of Kartar Singh that he recruited the Plaintiff as ''Batamasis'' who, later on, was prometed as Chowkidar; This witness specifically deposed having signed the entry on the opening page of the service book, recording the Plaintiff as the son of Kartar Singh. Neither anything was biought about to discredit the testimony of this witness nor could he have any motive to depose falsely in this regard.

The testimony of PW 2 Gurdial Singh also finds corroboration from that of PW Harnck Singh, another official of the erstwhile State of Nabha. The Plaintiff appeared as PW 4 and deposed in support of his claim and made it clear that ho relative of his from mother''s side is alive. Besides, the Plaintiff, being in service, remained out of his village and, therefore, he could not expect anyone from the village to come forward to his support, particularly when the Defendant''s father had been residing all along in the village and could use his influence in denying the paternity of the Plaintiff. At the time the Plaintiff entered the service, no controversy, with which the Court is confronted, could be foreseen and, therefore, there is no reasons that the Plaintiff would get himself recruited to the service as the son of Kartar Singh nor Kartar Singh would have got him so recruited if he had not been his son. It is pertinent to mention here that DW 4 Gurbachan, Singh, who is the attesting witness of the will propounded by the Defendant, instead of denying firmly, displayed ignorance about the Plaintiff being the son of Kartar Singh. It may also be mentioned that DW 4 Gurbachan Singh admitted that Nihal Kaur performed Karewa marriage with Kartar Singh and Teja Singh Plaintiff used to call Kartar Singh as Bapu. DW 5 Joginder Singh, father of the Defendant, could not deny that the Plaintiff is the son of Kartar Singh deceased or that it was he who got the Plaintiff recruited to the service in the erstwhile State of Nabha.

In the light of the above discussion, it must be held that the Plaintiff has been successful in establishing himself to be the son of Kartar Singh deceased. I, therefore, endorse the finding of the Lower Courts on issue No. 1 that the Plaintiff it is the son of Kartar Singh deceased.

The finding of the lower Courts on issue No. 2 has not been challenged before me. The lower Courts held the suit land to be ancestral in the hands of Kartar Singh qua his son Teja Singh Plaintiff and, therefore, it is a coparcenary property.

Shri Jagan Nath Kaushal, Senier Advocate, learned Counsel appearing for Gurbinder Singh Defendant-Appellant, has challenged the finding of the Lower Courts on issue No. 3 and argued that a compromise or a consent decree can be got set aside on one of the grounds on which a contract can be set aside, namely, if obtained by fraud, misrepresentation or coercion with an additional ground in favour of minors or persons of unsound mind if they are able to prove that the next friend or the guardian, who acted on their behalf, was negligent in conducting the proceedings; and that if none of these grounds is established, the Court in a subsequent suit would not be entitled to go behind the decree. He further submitted that, in this case, there is no material to the effect that the decree dated 1-1-1977 was obtained by fraud, misrepresentation or coercion; therefore, in a subsequent suit, the Court cannot go behind the earlier decree. In support of his argument; the learned Counsel for the Defendant-Appellant has relied upon a Division Bench judgment of this Court in Tej Singh and Ors. v. Jagrup Singh and Ors. 1989 PLJ 38. The finding of the Lower Courts on issue No. 3 to the effect that the judgment and decree dated 1-1-1977 is illegal, null and void, is liable to be set aside in view of the decision of the Division Bench of this Court in Tej Singh''s case (Supra). The decree dated 1-1-1977 suffered by Kartar Singh deceased in favour of the Defendant-Appellant is, therefore, not null and void. The finding given by the lower Courts on issue No. 3 is set aside and it is held that the judgment and decree dated 1-1-1977 is binding on Kartar Singh deceased.

Under Issue No. 2, it has been held by the Courts below that the suit land was joint Hindu family coparcenary property in the hands of Kartar Singh deceased qua the Plaintiff, in which he acquired interest equal to that of Kartar Singh deceased, by birth. Therefore, Kartar Singh deceased could suffer a consent decree qua his share only. His share was one-half in the suit land and, therefore, the Plaintiff is entitled to get one-half of the suit land.

Shri M.S. Jain, Senior Advocate, learned Counsel appearing for the Plaintiff-Respondent, has argued that the finding of the lower appellate Court on issue No. 8 is wrong and will Exhibit D is invalid. Mr. Jain has contended that in the will Exhibit D-1, executed by Kartar Singh deceased in favour of DW 5 Joginder Singh, it has been mentioned by Kartar Singh that he had no male or female issue. Mr. Jain submitted that this averment made j in the will Exhibit D I by Kartar Singh is totally false and frivolous. Teja Singh Plaintiff has proved beyond doubt that he is the son of Kartar Singh deceased and both the Courts below have held that Teja Singh Plaintiff is the son of Kartar Singh deceased. Thus, in my view, this circumstance alone is sufficient to warrant a finding that the will Exhibit D-1 is invalid. Hawever, the other circumstances are again weighty for establishing the invalidity of the will Exhibit D-1. As has come in the earlier part of the judgment that the suit land was joint Hindu family coparcenary property in the hands of Kartar Singh deceased qua the Plaintiff, in which the Plaintiff acquired interest equal to that of Kartar Singh deceased, by birth; so Kartar Singh deceased had no right to make a will qua one-half of the suit land. Therefore, the finding given by the lower appellate Court on issue No. 8 is set aside and it is held that Kartar Singh deceased was under undue influence of his elder brother Joginder Singh, Otherwise, there was no reason for him as to why the Plaintiff, the son, was being deprived of his natural right of inheritance. Mr. Jain, in support of his argument, has relied upon Mit Sinjh and Ors. v. Malkiat Singh and Ors. 1984 PLR 278.

In view of my finding on issue No. 8, the Plaintiff-Appellant Teja Singh is entitled to get one-half of the suit Land as well as its possession and Defendant Appellant Gurbinder Singh is also entitled to get one-half of the suit land, therefore, both the appeals are partly allowed and the judgment and decree passed by the Additional District Judge, Patiala on 24-4-1987 is accordingly modified. The decree sheet be prepared in accordance with the judgment of this Court.