Ramji Dass and others vs Dhanti Ram and others

M.R. Sharma, J.—The facts are given to the Order of reference dated January 25, 1973, prepared by me sitting in Single Bench. The case was referred to the Division Bench for decision on two points:--

(i) Whether the memorandum of appeal was properly stamped or not; and

(ii) Whether the appeal should be held as incompetent on account of late impleading of Ram Lal defendant as a respondent in the appeal.

The Division Bench had held that the memorandum of appeal had not been properly stamped but that decision has been up-set by the Supreme Court of India and the appeal has been ordered to be heard and decided on merits. On the second point, Mr. Majithia, the learned counsel for the appellants, has argued that Ram Lal had originally been impleaded as a defendant in the suit alongwith the other defendants who are appellants before us and since he did not contest the suit, inaction on his part could not put in jeopardy the rights of the other defendants who are now before us as appellants. In support of his submission, the learned counsel has relied upon Mt. Parwati Kuer and Others Vs. Manna Lal Khetan and Others, . In that case it was held that when Order 41, Rules 4 and 33, CPC were read together, it showed that one of the defendants could file an appeal without impleading the other defendants as respondents, and if the appeal proceeded on a ground common to all the defendants, the appellant Court might exercise the power of varying the decree in favour of the non-appealing defendants also.

This case was followed with approval in Brij Mohan Lal Murli Dhar Vs. Raj Kishore and Another, and it was held therein that the order under Order 41, Rule 4, CPC is to be made in favour of and not against a non-appealing person. Further, the principles of natural justice require that no decision against a party should be made without affording him an opportunity to place his case before the deciding authority and it is not the principle of natural justice that no order can be passed in favour of a person who is not being heard. From this principle it was inferred that non-impleading of a proforma-party to whom relief can be granted under Order 41, Rule 4, CPC did not affect any principle of law of justice. Similar view was taken by another Division Bench of this Court in Ram Chander v. Amar Singh 1973 Rev. L.R. 716.

Sitting in Division Bench, we are bound to follow with respect the earlier Division Bench Judgments of this Court. Had these cases been brought to my notice when I was sitting in Single Bench, 1 would perhaps not have referred this case to the larger Bench. Even otherwise, if an appeal is properly filed by some of the parties to the dispute, the Court does have the right to allow another party to be impleaded even at a late stage if valid grounds for adopting that course are made out. Once the Court allows the amendment of the memorandum of appeal by allowing the appellant to add to or to delete from the memorandum of appeal a respondent, the amended memorandum of appeal would be deemed to have been filed on the date of its institution As noticed in the order of reference Ram Lal was allowed to be impleaded as a respondent by P.D. Sharma, J. subject to all just exceptions. Since he had not contested the suit filed by the respondents and no relief is being granted to him in this appeal, we make the order passed by P.D. Sharma, J. absolute and allow him to be impleaded as a party. The effect of our order is that Ram Lal would be deemed to have been impleaded as a respondent on the date when the memorandum of appeal was presented. In this view of the matter, the question whether there would be any conflicting decree or not becomes optics. For similar reasons the principles of law enunciated in Babu Sukhram Singh Vs. Ram Dular Singh and Others, and in Dwarka Prasad Singh and Others Vs. Harikant Prasad Singh and Others, cannot be attracted to the instant case.

Since the entire case had been referred to the Division Bench for decision on merits, we would like to decide it on merits also. The only issue which remains to be decided is whether the defendant-appellants can invoke the principle of estoppel against the plaintiff-respondents or not. A look at the pedigree table would show that the parties are closely related. Admittedly they entered into a compromise before the Gram Panchayat which is incorporated in Ex. D. 3. It reads--

Out of Rectangle No. 138/10, 5 Kanals and 7 Marlas of land lying on the southern side is in possession of Ramji Dass and others. The remaining 2 Kanals and 13 Marlas of land is also being given to them, which is comprised in Rectangle No. 138/1 and measures 6 Kanals and 7� Marlas. Out of the remaining portion of Rectangle No 138/1, the northern portion measuring 1 Kanal and 12� Marlas is being given to Dhantu Ram and Paras Ram etc. Raja Ram, Ramji Das and Ram Partap shall have no share in the site under the house because in return for that they have been given 1 Kanal and 7� Marlas of land out of Rectangle No. 138/1. Now the parties have no dispute pending between them.....

The file was produced before the Panchayat on March 19, 1959. The Panchayat questioned both the parties about the compromise. Both the parties stated before the Panchayat that they intended to enter into a compromise in the presence of Panchayat about the property left by the issueless deceased. Dhantu Ram and Paras Ram sons of Thakur Dass, Plff. Ram Lal son of Bansi Ram defdt. respondent Raja Ram, Ramji Dass and Ram Partap sons of Munshi Ram, defendants, appeared before the Panchayat. This compromise was read over to the parties which put their signatures thereon in the presence of the Panchayat.

It appears that the defendant-appellants had tiled a petition before the Panchayat asserting their claim with regard to the property left by Milkhi Ram and Hansu who had died issueless. The plaintiff-respondents filed a written statement Ex D. 4 on January 22nd, 1958. In that written statement they had admitted the claim of the defendant-appellants and the aforementioned compromise was arrived at in those proceedings. In short, there was a claim made by one party which was admitted by the other party not only in the written statement but the admission was reiterated in the form of a compromise before the Panchayat also. A look at Ex. D. 5 would show that on April 19, 1963, all the four heirs of the aforementioned Hansu and Milkhi Ram, including the present appellants, jointly mortgaged their share of the property in favour of one Sarwan Singh. Vide Ex. D. 6 they mortgaged a part of the property on April 9th, 1963, in favour of one Arjan Singh. Vide Ex. D. 7 the present appellants got their share redeemed on July, 23rd, 1963, with the tacit consent of Dhantu Ram. One of the respondents. The aforementioned documentary evidence produced on record clearly establishes that they had some dispute about the inheritance to the property left by Hansu and Milkhi Ram and that they resolved this dispute by making some readjustments in the property which had earlier fallen to the share of each branch. The compromise arrived at before the Panchayat on March 19, 1959 (Ex. D 3) extracted above shows that after the readjustment of the shares the parties were left with no dispute whatsoever. It is thus apparent that the close relations had entered into a family arrangement and once they had done so it is not open to either of the parties to back out of it. The position of law has been made abundantly clearly by a comparatively recent judgment of their Lordships of the Supreme Court in Kale and Others Vs. Deputy Director of Consolidation and Others, in which it was observed as under:--

....the principle that there is no estoppel against the statute does not apply to the present case. Assuming, hower, that the said document was compulsorily registerable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal AIR 1918 P.C. 70, the Privy Council applied the principle of estoppel to the facts of the case and observed as follows.

Mr. Sarin, the learned counsel for the respondents has drawn our attention to some observations made by their Lordships of the Supreme Court in Gvari Bai v. Dhansukh Lal, AIR 1955 S.C. 1055 and R.S. Madanappa and Others Vs. Chandramma and Another, about the essential requisites of the principle of estoppel. These observations are, however, distinguishable because the pleas in those two cases were raised by strangers as against persons belonging to one family.

For the aforementioned reasons we are of the view that the appellants have succeeded in establishing a plea of estoppel based on a family arrangement against the plaintiff-respondents. The learned lower appellate Court was not justified in holding that such a plea could not be raised on the basis of evidence available on record. We, therefore, allow this appeal, set aside the Judgment of the learned lower appellate Court and restore that of the learned trial Court but in the circumstances with no order as to costs.