Gurcharan Singh and Others vs Angrez Singh and Another

K.C. Puri, J.—Under challenge in this appeal, is the judgment and degree dated 13.8.2004 passed by Shri J.S. Klar, the then Additional District Judge, Fatehgarh Sahib whereby he accepted the appeal, set aside the judgment and decree dated 5.3.2004 delivered by Shri S.S. Panesar, the then Additional Civil Judge (Senior Division), Amloh and resultantly decreed the suit of the plaintiffs for declaration and possession against the defendants.

The necessary facts, as culled out from the pleadings of the parties, are that the plaintiffs filed a suit for declaration to the effect that the decree and judgment in Civil Suit No. 556 of 21.9.1994 titled Gurcharan Singh and Ors. v. Bhajan Singh, decided on 9.1.1995 by the then Additional Senior Sub Judge, Amloh in respect of property of Bhajan Singh mentioned at letters ABC&D in the head note of the plaint were wrong, without jurisdiction, illegal, null and void, ineffective and inoperative qua their proprietary rights as heirs of said Bhajan Singh and that they were the owners of the suit land as entered in the Jamabandi for the year 1990-91 situated within the revenue limits of village Siraj Majra, Tehsil Amloh, District Fategarh Sahib on the ground that Bhajan Singh son of Sohan Singh, resident of village Siraj Majra was the owner and in possession of land mentioned at letters ABCD. The defendants have no concern or connection with said Bhajan Singh, who were not related to Bhajan Singh, in any manner. On the basis of wrong allegations, the defendants in a secret and collusive manner filed Civil Suit No. 556 of 21.9.1994 against Bhajan Singh and obtained judgment and decree regarding the suit land. The said judgment and decree were against facts, law, illegal null and void, without jurisdiction, ineffective and inoperative qua their rights being owners as heirs of Bhajan Singh on the following grounds:

(a) That there has never been any family settlement between defendants and said Bhajan Singh nor there was any relationship between them;

(b) That the judgment and decree were inadmissible being based upon mere admissions alleged to be of said Bhajan Singh and for want of registration and stamps and were a device to cheat the State of Punjab and the stamps and registration charges;

(c) That the judgment and decree in question conferred no right or title upon the defendants and could not be acted in the revenue records;

(d) That said Bhajan Singh had no knowledge of the contents of the plaint or written statement or of alleged statement, if any, made by him in the Court in the said suit and he was illiterate and

(e) That the suit was fraudulent and it was fraud upon the court.

It is further averred that the defendants have encroached upon the suit land and refused to deliver back the possession to the plaintiffs and have also refused to admit the plaintiffs as owners of the suit land being heirs of Bhajan Singh, now deceased.

On notice, the defendants contested the suit by filing written statement. They admitted the contents of para No. 1 of the plaint. They denied that the defendants had no concern with Bhajan Singh. Rather, Bhajan Singh was their uncle in relationship and belonged to the same family. It was also denied that they, in a secret or collusive manner, filed Civil Suit No. 556 of 21.9.1994 decided on 9.1.1995. They averred that Bhajan Singh voluntarily suffered decree dated 9.1.1995 on is own free will on the basis of family settlement effected by Bhajan Singh on 15.6.1994 and relinquished his proprietary rights in their favour. They denied that the judgment and decree were either illegal, against law and facts, without jurisdiction, ineffective or inoperative against the rights of the plaintiffs. The judgment and decree dated 9.1.1995 were passed on the basis of family settlement dated 15.6.1994. It was also denied that the said judgment and decree were inadmissible for want of registration. Rather, the said judgment and decree confared full ownership rights upon them. The said decree was incorporated in the revenue record and mutation was duly sanctioned on its basis. Bhajan Singh died on 24.4.1998 after long time of passing the judgment and decree but he never raised any objection during his life time against the judgment and decree in question. It was also denied that Bhajan Singh had no knowledge regarding the contents of the plaint or the written statement. Prior to the filing of the suit, Bhajan Singh executed a valid and legal Will dated 2.9.1986 in their favour which was also got registered by Bhajan Singh. Said Bhajan Singh executed the Will dated 2.9.1986 in lieu of services rendered by them. Bhajan Singh lived for many years with them and had no relationship with the plaintiffs. It was also denied that the said judgment and decree were the result of any fraud played upon the Court. Family settlement was effected by Bhajan Singh because he apprehended litigation about his estate. They were in possession of the suit land since family settlement was effected by Bhajan Singh and their possession was also admitted by Bhajan Singh when he appeared in the Court in the suit filed by them and made a statement in the Court and also filed written statement admitting their claim. Bhajan Singh also admitted the Will executed by him in their favour. The allegations that the plaintiffs were the only and nearest heirs of Bhajan Singh were denied. Even if the judgment and decree in question were found to be admissible, in that eventuality, they have also succeeded to the estate of Bhajan Singh on the basis of Will dated 2.9.1986. The plaintiffs have no concern or connection with the suit land and they have no cause of action to file the present suit. The plaintiff were not entitled to any declaration as prayed for and the suit was liable to be dismissed.

The defendants also took certain objections to the effect that the suit as framed was not maintainable and that the plaint was liable to be rejected under Order 7 Rule 11 CPC for want of cause of action.

From the pleadings of the parties, the learned trial court framed the following issues:

Whether impugned judgment and decree (passed in Civil Suit No. 556 of 21.9.94 decided on 9.1.1995 titled as Gurcharan Singh etc. v. Bhajan Singh by S. Dalip Singh, the then Additional Senior Sub Judge, Amloh in respect of property earlier in die 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

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

Whether Shri Bhajan Singh executed a legal and valid Will dated 9.2.98 in favour of defendants. If so, its effect? OPD

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

Whether plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD

Whether suit is within limitation? OPD

Whether defendants have taken possession of the suit land from plaintiffs, three weeks before filing of the suit? OPD

Relief.

The learned trial Court decided issue Nos. 1, 2 and 7 against the plaintiff, issue No. 6 in favour of the plaintiffs, issue No. 4 in favour of the defendants and issue Nos. 3 and 5 against the defendants. As a result of said findings, the suit of the plaintiffs was dismissed vide judgment and decree dated 5.3.2003 passed by the then Additional Civil Judge (Junior Division), Amloh.

Feeling aggrieved, the plaintiffs filed an appeal which was accepted by Shri J.S. Klar, the then Additional District Judge, Fatehgarh Sahib vide impugned judgment and decree dated 13.8.2004.

Feeling dissatisfied with the said impugned judgment and decree, the defendants have preferred the instant appeal.

I have heard arguments addressed by the learned Counsel for the parties and have carefully perused the entire record.

The appellants have framed the following substantial questions of law:

(a) Whether in the facts and circumstances of the instant case, the decree dated 9.1.1995 which has, otherwise, been proved to have been suffered by Bhajan Singh in favour of the appellant, could be ignored by the learned 1st 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 1st Appellant Court to the meaning of Family can be sustained in law?

Firstly, point of limitation has been taken up by Mr. Arun Jain, Senior Advocate. It is submitted that the plaintiffs have challenged the decree dated 9.1.1995. Mutation on the basis of said decree has been attested on 2.3.1995, Exhibit D-7. The present suit has been filed on 19.5.1998 beyond the period of three years. The learned Trial Court should have non-suited the plaintiffs on the ground of limitation. In authority Smt. Sharifan alias Shanti v. Ibrahim alias Dharam Vir 1975 P.L.J. 293, it has been held that limitation for a declaratory suit begins to run when the cause of action first accrues. The cause of action accrued on 9.1.1995, the date of passing the decree and at the most on 2.3.1995, when the mutation was attested. So, the suit of the plaintiffs is hopelessly time barred.

In reply to the above noted submissions, the learned Counsel for the respondents has submitted that it is a case of inheritance. Bhajan Singh died on 24.4.1995 and the present suit was filed on 19.5.1998 i.e. within few days of his death. There is no limitation for filing the suit on the basis of inheritance. Authority in Sharifan''s case (supra) has been set aside by a Division Bench of Punjab & Haryana High Court in authority reported as Ibrahim alias Dharam Vir v. Smt. Sharifan alias Shanti 1979 P.L.J. 469.

I have carefully considered the submissions made by both sides and have gone through the record of the case.

So far as admitted facts are concerned, decree under challenge is dated 9.1.1995. Mutation, on the basis of decree, has been attested on 2.3.1995. Bhajan Singh died on 24.4.1998 and the present suit has been filed on 19.5.1998. Authority reported in Smt. Sharifan alias Shanti''s case (supra), has been set aside by the Division Bench in Ibrahim''s (supra). This fact has not been denied by the learned Counsel for the appellants who has submitted that the said authority was not in his knowledge. Both the Courts below have returned a finding that the suit is within limitation. The plaintiffs could not file any suit till the death of Bhajan Singh. The suit has been filed within few days of death of Bhajan Singh, claiming inheritance. There is no limitation for filing the suit on the basis of inheritance. Needless to say that the plaintiffs were not parties to the suit culminating into decree dated 9.1.1995. It is not the case of the appellants that the plaintiffs were present at the time of attestation of mutation on 2.3.1995 on the basis of decree dated 9.1.1995. So, in view of the above discussion, the point of limitation stands determined against the appellants.

The other point submitted by the Counsel for the appellants is regarding the registered Will dated 2.9.1986. It is submitted that Bhajan Singh was living with the appellants. They have been serving him during his life time. In reward to the services rendered by the appellants during his life time, Bhajan Singh has executed a registered Will on 2.9.1986 in favour of the appellants of his free will. Bhajan Singh remained alive till 1995. He has not revoked the Will. The Will is a registered document and it dispels any circumstance against the appellants. Both, the Courts below have not accepted the Will on the ground that one attesting witness of the Will was alive and has not been examined. It is submitted that the Will is duly proved on the file by examining DW-4 Ashok Kumar, deed writer. This witness has categorically proved the Will. The appellants also examined DW-7 Dr. Atul K. Singla, Handwriting and Finger Prints Expert, who has also compared the thumb impressions of Bhajan Singh on the Will with the standard thumb impressions of Bhajan Singh and had reached at the conclusion that both tallied. It is submitted that scribe Ashok Kumar should have been treated as a marginal witness of the Will. So, the Will in question is duly proved on the file.

It is further submitted that the testator, during his life time, has admitted the execution of the Will in a suit for declaration, Exhibit DW9/A. In para No. 2 of the plaintiff, the present appellants have pleaded registered Will dated 2.9.1986, in question. That para has been admitted by Bhajan Singh by filing written statement, Exhibit DW10/A. So, once the execution of the Will has been admitted, therefore, the same stands fully proved. To support his contention that scribe can be treated as a marginal witness, the Counsel for the appellants has relied upon the following authorities:

Ujagar Singh Vs. Chanan Singh and Others, .

Ram Lal and Another Vs. Mohinder Singh and Others, .

It is further submitted mat the Will is always executed to disinherit the natural heirs. The appellants have been serving Bhajan Singh, during his life time. He was treating the appellants as his nephews. So, it cannot be said that there is wrong recital in the Will describing the appellants as nephews. It is further submitted that the opposite counsel may argue that Bhajan Singh has stated in the Will that he was without any wife or children and may argue that fact is wrong. In this regard, it is submitted that Gurmail Kaur has taken divorce in the year 1973. Both the plaintiffs were living separately and were married. So, non description of relationship of the plaintiffs and Gurmail Kaur does not make the Will as invalid document.

In reply to the above noted submission, Mr. S.N. Chopra, Advocate has submitted that scribe can be taken as an attesting witness only in case he has the intention to sign the Will as an attesting witness. The scribe has specifically mentioned that he was scribing die document and no where mentioned that he had the intention to attest the Will in question. The Hon''ble Supreme Court and the Punjab & Haryana High Court have held in various authorities that scribe can be taken as an attesting witness only in case he has put his signatures with animo attesandi. To support this contention, the Counsel for the respondents has relied upon the following authorities:

Mohinder and Ors. v. Bugli Devi widow of Nagina and Ors. 1992(1) AI HLR 188.

N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, .

It is further submitted that the scribe has categorically stated that he did not know the executant personally and, on that count also, he cannot be taken to be an attesting witness.

It is further submitted that to prove the Will, one attesting witness is necessary to be examined if he is alive. In the present case, it is an admitted case of the parties that one witness was alive at the time of proving the Will. That witness has not been examined. So, the Will is not proved in accordance with law. The Will has to take effect after the death of Bhajan Singh. His admission in the written statement is not sufficient to prove the Will, in view of authority reported as R. Saraswathy Vs. P. Bhavathy Ammal and Another, . In the said ruling, it has been held that an ad mission is the best evidence but in case of Will if the testator has expired, his admission during his life time is not sufficient. It is further submitted that in para No. 1, it has been pleaded that the appellants are the nephews of Bhajan Singh. In the written statement, relied upon by the appellants, all averments have been admitted. So, this fact clearly shows that the alleged admission made by Bhajan Singh is not voluntary and cannot be taken into account. The Will is to be proved independently in the present case and the appellants have failed to prove the Will in question.

I have carefully considered the submission made by both sides and have carefully gone through the record of the case.

Both the Courts below have returned a definite finding mat the Will is not proved in accordance with law. It is not disputed, during the course of arguments, that to prove the Will, one attesting witness has to be examined if he is alive. It is also not disputed mat one witness was alive at the time of leading evidence by the appellants and he has not been examined. The appellants have relied upon the testimony of scribe as well as expert to prove the Will. The expert has simply proved the fact that thumb impressions of Bhajan Singh appeared on the Will.

The submissions made by the Counsel for the appellants to the effect that scribe be taken as an attesting witness cannot be accepted. The scribe has categorically stated that he did not know the executant personally. So, once he has stated that he did not know the testator personally, as such, he was not in a position to state that it was actually Bhajan Singh who had put his thumb impressions on the Will in question. Section 68 and 69 of the Indian Evidence Act lay down procedure for proving the Will. The said provisions of law are reproduced for ready reference as under:

Proof of execution of document required by law to be attested- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to die process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

So, from the reading of Section 68, it is clear that in case of Will, the beneficiary has to produce one attesting witness in the Court to prove the Will. Section 69 only comes into operation if no attesting witness can be found. In the present case, from the evidence on the file, it has come on the record that one attesting witness was alive but he has not been examined. So, both the Courts below have rightly held that the Will in question is not proved in accordance with law. Mere proving the thumb impressions on the Will is not sufficient to prove the execution of Will. Moreover, un-true statements are there in the Will in question. It has been mentioned in the Will that beneficiaries are the nephews of Bhajan Singh and that fact is belied by the statement of the appellant as well as by pedigree table placed on the file. In the pedigree table, the appellants are not remotely connected with Bhajan Singh. There is further recital in the Will that Bhajan Singh has no wife or children. The plaintiffs are the daughters of Bhajan Singh and that fact has been proved on the file beyond doubt. Even in the writing of Talaqnama, relied upon the appellants, it has been mentioned that Bhajan Singh has two daughters and also reference of taking divorce from his wife Gurmail Kaur. So, the above-said circumstances also make the Will suspicious.

The scribe can be taken as an attesting witness of the Will only if he has animo attesandi. The scribe of the Will, in the present case, has not stated that he attested the Will as an attesting witness. He has described himself as scribe of the Will. A Division Bench of our own High Court in Mohinder''s case (supra), has categorically stated that the scribe of the Will or die Registrar cannot be taken as attesting witnesses unless the scribe mentioned himself as attesting witness. In N. Kamalam''s case (supra), the Hon''ble Apex Court has held that a testator should witness the execution thereby thus implying his presence on the occasion and secondly he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. In para No. 28 of that judgment, the Hon''ble Apex Court has held as under:

It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependent on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term ''attest'' viz., that the testator should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribe''s presence cannot be doubted but the issue is not what is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise-this issue unfortunately we are not in a position to lend concurrence with. The Will is produced, records the following at page 4 thereof: (page 106 of the P. Book).

Witness L.T.I, of Masane Gowder.

(Sd/- (T. Subbiya) s/o Veerai Gowder, 25/298, Thomas Street, Coimbatore.

(Sd/-) B. Govindaraju s/o S. Balagurumurthy Chettiar, 25/250, Rangai Gowder Street, Coirabatore.

Sd/- Arunachalam.

The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the Will but a mere writer of the Will. The statutory requirement as noticed above can not thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself-this is again however not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrent therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.

So, scribe cannot be taken as an attesting witness.

The other contention raised by the Counsel for the appellants to the effect that since the testator has admitted the execution of Will in the written statement Exhibit DW10/A, on that count the same be held as proved is concerned, that submission is without any substance. As discussed above, in the written statement, Exhibit DW10/A, un-true statement regarding relationship of the appellants with Bhjan Singh has been made. The Will has to be proved in the Court after the death of the testator. In authority in case R Saraswathy (supra), it has been held that mere proving the signatures/thumb impressions is not sufficient. The extract of para No. 6 is relevant. The same is reproduced hereunder:

The admission referred to in this section, is the admission of a party to the document and therefore when an executant makes an admission the exception embodied in this Section is applicable. That is why it said that this Section is an exception to general rule contained in S.68. Section 70 however, is inapplicable to a Will because the executant of a will, which will become effective only on the death of the execution, will not be available to admit the execution at the relevant time. It is therefore clear that by enacting these sections, namely Section 68, 69 and 70, the legislature wanted to treat a will differently from the other documents, which like a will, are required by law to be attested. A reference to Section 71 of the Evidence Act also is relevant in this context. This Section speaks of a situation, brought about by the attesting witness either denying the execution or not recollecting the execution of the document. In such cases that is, where the attesting witness either denies or does not recollect the execution of the document, the execution of the document required by law to be attested, can be proved by other evidence. Subject to what is stated above, in my judgment, a will also requires to be proved like any other document. Whatever that be, in order to have a will received in evidence, the propounder must prove that the will has validly been executed, that is, executed in accordance with the provisions contained in S.63 of the Evidence Act.

So, the Will has to be proved after the death of the executant. Authority in case Ujagar Singh (supra), is distinguishable as in that case also, it has been held that it will be a question of fact in each case to be determined as to under what circumstances and in what manner, the scribe has only acted as a scribe and not as an attesting witness.

Authority in Ram Lal and Anr.''s case (supra) is distinguishable as in that case, the scribe has stated that he knew the executant personally and as such the scribe, in the present case, cannot take the place of an attesting witness.

Authority in Mathew Oommen Vs. Suseela Mathew, , relied upon by the Counsel for the appellants is also not helpful to the appellants, as in that case, the scribe has stated that he has attested and scribed the Will and, in those circumstances, he has taken as an attesting witness.

Learned Counsel for the appellants has submitted that decree dated 9.1.1995 has been set aside by the first Appellant Court on the ground that the same is un-registered. The decree does not require registration. It is submitted that Bhajan Singh, appeared before the Court admitting the claim of the appellants. He engaged a Counsel. The plaintiffs have not proved the fact that the said decree is the result of any fraud. Bhajan Singh filed written statement, admitting the claim of the appellants. Decree was passed on the basis of admission made by Bhajan Singh. The finding of the first Appellate Court to the effect that since the appellants have failed to prove their relationship so no family settlement could be arrived at is against the provisions of law. The said finding is against the spirit of authority in case Kale and Others Vs. Deputy Director of Consolidation and Others, . In that authority, it has been held that the antecedent title assumed must be admitted. Bhajan Singh has executed the Will in the year 1986. Bhajan Singh wanted to give his property to the appellants. The appellants had accrued right in respect of suit property and as such in view of authority in Kale''s case (supra), the appellants have pre-existing right in the suit property. So, the learned trial Court has wrongly decreed the suit of the plaintiffs.

The learned Counsel for the appellants, to support his arguments that consent decree does not require registration, has relied upon the following authorities:

Jagdish v. Ram Koran 2003(1) R.C.R. (Civil) 657.

Bachan Singh v. Kartar Singh and Ors. (2002) 131 P.L.R. 512 (S.C).

Bryam Pestonji Gariwala v. Union Bank of India and Ors. 1992 CCC73 (S.C).

Harpal and Ors. v. Smt. Ram Piari and Ors. 1981 P.L.J. 492.

Amteshwar Anand Vs. Virender Mohan Singh and Others, .

Mukanda Vs. Kura Ram and Others, .

Gurdev Singh and Others Vs. Kartar Singh and Others, .

Hari Singh Vs. Gurcharan Singh and Others, .

In reply to the above noted submissions, the Counsel for the respondents has submitted that the defendants/appellants have denied in their pleadings, relationship of daughters and father between the plaintiffs and Bhajan Singh. However, both the Courts below have given concurrent findings of facts that the plaintiffs are the daughters of Bhajan Singh. It is further submitted that the defendants/appellants are not related to Bhajan Singh, in any manner. The pedigree table, in this regard, has been placed on the file. There cannot be any family settlement between Bhajan Singh and the appellants excluding real daughters. There was no pre-existing right of the plaintiffs in the suit property. Both the Courts below have returned concurrent finding that the appellants have failed to prove the execution of Will. So, the authorities relied upon by the appellants that consent decree does not require registration are not applicable. In all the rulings, referred to above, it has been held that if there was pre-existing right of the party only in that case, registration of the decree is not required. In Bhoop Singh Vs. Ram Singh Major and others, , it has been categorically laid down that a decree without any pre-existing right requires registration. It is further submitted that the decree is based upon assumption that the appellants are the nephews of Bhajan Singh. That fact is wrong on die face of it. Both the Courts below have categorically returned the finding that he appellants are not related to Bhajan Singh, in any manner. So, in these circumstances, the Court would not have passed a decree in case the Court had come to the conclusion that the appellants are not nephews of Bhajan Singh. So, the said decree could safely be branded as a decree based upon fraud and fraud is a nullity. No family settlement has taken place between Bhajan Singh and the appellants. There was no relationship between Bhajan Singh and the appellants. In Mahi Pal Singh Vs. Lal Singh, , Nachhattar Singh and Another Vs. Jangir Singh and Others, , Bhoop Singh''s case has been followed. Even in authority reported as Kale and Others Vs. Deputy Director of Consolidation and Others, , it has been held that family settlement can be arrived at between the members of family or those having any interest in the suit property. The appellants have no remotest concern with the suit property and as such they have no pre-existing right. The un-true fact mentioned regarding relationship of the appellants with Bhajan Singh further makes the decree suspicious. Fraud vitiates all solemn acts. To fortify his arguments, the learned Counsel for the respondents has relied upon Ganpatbhai Mahijibhai Solanki v. State of Gujarat 2008(2) LH (S.C.). 1223, Hamza Haji Vs. State of Kerala and Another, , Bank of India and Another Vs. Avinash D. Mandivikar and Others, .

I have carefully considered the submissions made by both sides and have gone through the record of the case.

The question which arises for consideration is whether decree dated 9.1.1995 has been rightly set aside by the first Appellate Court or not? The answer to that question is in the positive. The first Appellate Court has rightly set aside decree dated 9.1.1995. The appellants have themselves placed reliance on the plaint of previous suit which culminated into decree dated 9.1.1995. In para No. 1 of the plaint Exhibit DW9/A, it has been mentioned as under:

Whether defendant is the uncle of the plaintiffs, who are looking after and serving the defendant.

This fact has been stated to be admitted by Bhajan Singh in his written statement, Exhibit DW10/A in para No. 1. In the statement made by Bhajan Singh in the Court, it has been mentioned that the present appellants are his nephews. In the judgment also, it is written that the present appellants are the nephews of Bhajan Singh. That fact has been proved to be wrong and there are categoric concurrent findings of both the Courts below that the appellants are not the nephews of Bhajan Singh. So, the decree dated 9.1.1995 was passed on the assumption that the appellants are the nephews of Bhajan Singh and there was family settlement between them on account of their relationship. The Court which passed the decree dated 9.1.1995 would have taken a different view in case the relationship of the appellants with Bhajan Singh had not been proved. There was no pre-existing right of the appellants in the suit property. The submission made by the Counsel for the appellants to the effect that since the Will was executed by Bhajan Singh, so on that count the appellants had pre-existing right in the suit property is concerned, that submission is without any substance. The Will has not been held to be proved by both the Courts below. So, the appellants have no pre-existing right in the suit property and as such no family settlement could have been arrived at between the plaintiffs and Bhajan Singh. In Bhoop Singh''s case (supra), it has been held that the decree requires registration if there is no pre-existing right. In authorities reported as Mahi Pal Singh Vs. Lal Singh, , Nachhattar Singh and Another Vs. Jangir Singh and Others, ; Mohinder Singh and Another Vs. Gurbax Singh and Another, and Rajni Bajaj and Others Vs. Ram Piari, , Bhoop Singh''s case (supra) has been followed meaning thereby that in all these authorities, it has been held that the decree requires registration where there is no pre-existing right.

In authorities reported in Ganpatbhai Mahijibhai Solanki v. State of Gujarat 2008(2) Law H (S.C.) 1223, Hamza Haji Vs. State of Kerala and Another, , Bank of India and Another Vs. Avinash D. Mandivikar and Others, and 1995 (10 LJr 407, it has been held that fraud vitiates all solemn acts.

So far as authorities relied upon by the Counsel for the appellants are concerned, in all those authorities, it has been held that since there was preexisting right so the decree does not require any registration. In authority reported as Jagdish v. Ram Koran 2003(1) R.C.R. (Civil) 657, decree was suffered in favour of his real brother Ram Karan. Ram Karan had relationship with a person who has suffered decree in his favour. Authority reported as Bachan Singh v. Kartar Singh and Ors. (2002)131 P.L.R. 512 (S.C.) is distinguishable as in that case, the plaintiff/appellant in a previous suit has admitted the claim of defendant/respondent. Authority reported as Byram Pestonji Gariwala''s case12, (supra) simply lays down that consent decree is binding upon the parties as a decree passed after contest.

There is no dispute with that proposition of law. In the present case, the plaintiffs were not parties in die previous suit. Authority in Harpal''s case 13 (supra) is also distinguishable as in that case, decree was suffered in favour of his four sons. In authority reported as Kale and Ors. 9 (supra), it has been held that where antecedent title has been admitted and up-held by the Court, in that case, the same can be proved by the Court. The appellants had no antecedent title in the suit property. Authority reported as Amteshwar Anand 14 (supra) deals with Order 23 Rule 3 where family settlement was arrived at between the parties in that suit. In all other authorities relied upon by the Counsel for the appellants, there was some pre-existing right of the person in whose favour there was a decree. In those circumstances, it has been held that the decree does not require registration. Bhoop Singh''s case 18 (supra) which still holds the field, has categorically stated that in case of pre-existing right only, the decree does not require registration. Otherwise also, as discussed above, since the decree is based on un-true facts of relationship, so that decree dated 9.1.1995 cannot be up-held.

In view of the above discussion, all the substantial questions of law, referred to above, stand determined against the appellants and consequently the appeal stands dismissed with costs throughout.

Decree sheet be prepared and the files of the Courts below be returned after the compliance.