Prem Kumari vs Sat Pal and Others

G.C. Garg, J.—Dispute in this appeal is to the estate of Lal Chand alias Lal Shah. Plaintiffs Sat Pal and Dharam Pal are sons of Diwan Chand and Diwan Chand, the third plaintiff is son of Lal Shah.

Lal Devi widow of Lal Shah filed a suit for partition and rendition of accounts in respect of the property in dispute and other properties against Diwan Chand, Dharam Pal, Sat Pal, Prem Kumari minor daughter of La Shah and others. The suit was dismissed by judgment and decree dated 14.2.1959 by Shri Hukam Chand, Subordinate Judge 1st Class, Amritsar, vide which the will dated 10.7.1956 propounded by Sat Pal, Dharam Pal and Diwan Chand was held to have been duly executed by Lal Shah and, therefore, the plaintiff Lal Devi was held to have no locus standi to file the suit for partition and rendition of accounts. In that suit, Prem Kumari daughter of Lal Shah was sued through Mangni Lal a relation of the parties who himself was defendent No. 5 in the suit.

Regular First Appeal at the instance of Lal Devi against the judgment and decree dated 14.2.1959 was compromised in this Court and in that compromise, Lal Devi was allowed to enjoy the property now in dispute during her life time. It was further agreed between the parties that Prem Kumari shall have a right to enjoy the property in question for a period of 12 years of the death of her mother Lal Devi. This compromise was arrived at on 21.2.1964 and the Regular First Appeal in terms of the said compromise. Lal Devi died on 27.11.1969 And thus in terms of the compromise, the plaintiffs of the present suit i.e. Sat Pal, Dharam Pal and Dewan Chand became entitled to possession of the property from Prem Kumar w.e.f. 27.11.1981. They consequently filed a suit for possession on 5.4.1982 out of which the present appeal has arisen:

Trial court by judgment and decree dated 2.11.1988 decreed the suit with proportionate costs in favour of the plaintiffs and against defendant No. 1 for possession of the building in dispute and for mesne profits as detailed in the decree. Prem Kumari, defendant filed appeal there against and Shri S.S. Arora, Addl. District Judge, Amritsar framed three additional issues arid by his order dated 10.5.1994 remanded the case to the trial court under order 41 Rule 25 of the CPC for submitting a report on the additional issues. Shri U.S. Gera, Subordinate Judge Amritsar submitted his report dated 25.7.1995 after returning findings on the additional issues. Under issue No. 13-B he came to the conclusion that Lal Shah duly executed the will in favour of the present plaintiffs and the same was free from all suspicious circumstances. Under issue No. 13-C, he reported that Prem Kumari was not in possession of the suit property as an absolute owner by inheritance from her father Lal Shah as she had not been given right to sell the property in dispute. Under issue No. 13-D, he returned a finding that possession of defendant No. 1 was not adverse to the plaintiffs and had not matured into ownership. Learned Addl. District Judge after the receipt of the report from the trial court directed the appeal by his judgment and decree dated 16.7.1996 and affirmed the findings recorded by the trail court. This is how this appeal has been filed by Prem Kumari, defendent No. 1.

Learned counsel for the appellant raised five-fold submissions, namely, that in view of the compromise arrived at between the parties in the Regular First Appeal filed by Lal Devi, the will stood revoked as Lal Devi and Prem Kumari had been given a right in the property of the deceased LSI Shah; Prem Kumari the appellant in this appeal was not the signatory to the compromise and, therefore, she is not bound by the decree passed in the earlier appeal; Diwan Chand was also given some property under the compromise and therefore, the decree passed in the earlier appeal required registration and in the absence thereof, the appellant cannot be held bound by it and it does not affect her rights; the appellant was a minor and no permission of the court had been obtained to the effect that compromise was for the benefit of the minor and that the will is shrouded by suspicious circumstances, it having been executed only a day before the. death of the testator.

After hearing learned counsel for the parties, I am of the opinion that none of the contentions raised by learned counsel for the appellant has merit. The will dated 10.7.1956 has been upheld by the two courts below, not only in these proceedings but also in the previous suit filed by Lal Devi. In terms the compromise arrived at between the parties, Lal Devi had been given a right to enjoy the property during her life time and thereafter her daughter Prem Kumari the appellant herein was allowed to enjoy the property for a period of 12 years after the death of Lal Devi. If the will bad not been accepted and the intention of the parties at the time of compromise was not to give effect to the will the compromise would have been eitirely in different terms i.e. Lal Devi and Prem Kumari may have been given some share in the property as absolute owners whereas in fact they were given only a limited right to enjoy the property for a certain period. Therefore, It cannot be accepted that because of the compromise arrived at between the parties, the will executed by Lal Shah automatically stood revoked. Even otherwise, the courts below have given cogent reasons in support of the conclusion that the will has been duly executed and is free from all suspicious circumstances. Learned counsel for the appellant could not bring to my notice any fact which may call for interference with the conclusion arrived at by the courts below.

Prem Kumari, appellant herein never filed suit and in fact she enjoyed the property after the death of her mother in view of the compromise arrived at in the appeal which arose out of the suit filed by her mother, Lal Devi. It is also not shown that the appellant was minor at the time when compromise was arrived at. Rather a reference to paragraph 12 of the lower appellate court judgment goes to show that contention of the appellant that she was born in the year 1944, was not found Plausible; that she would have become major by the time of filing of the previous appeal and that this finding was not impugned before the lower appellate court. Even in para 8 of the written statement, stand of the defendant, the appellant herself is hat she, was major and was sui juris and she having not been served with any notice of the suit or the appeal, either as a minor or a major, compromise arrived at in the previous appeal in her absence-was not binding on her, This clearly goes to show that the appellant was a major at the time when the compromise was arrived at between the parties and therefore, the contention that she was minor and the permission of the Court was not obtained in terms of the provisions of Order 32 of the CPC has no merit. The appellant has not till today filed any suit based on any right or title and thus even if she is not the signatory to the compromise, she acquires no right in the property of Lal Shah, he having bequeathed his property through a will which has been accepted not only in the present suit but in the previous suit as well.

Next contention that the will was executed only a day before the death of the testator and, therefore, it deserved to be ignored, has also no merit. The sole circumstance that the will was executed only a day before the death of the testator has been taken into consideration by the courts below not only in this suit but also in the previously instituted suit and yet the will has been held to have been duly executed and free from all suspicious circumstances.

The last contention that since some portion of the property was given to Diwan Chand under the compromise and thus the decree required registration, again has no merit. The plaintiffs in this suit are claiming property not under the compromise but under the will executed by Lal Shah, their grand-father and the said will has been accepted by the two courts below.

For the foregoing circumstances and observations, this appeal fails and is dismissed in limine.