Piara Singh etc. vs Sukhwinder Kaur and Another

P.S. Patwalia, J.—The present revision petition has been filed against order dated 17.11.2003 vide which the learned Additional District Judge, Amritsar set aside the judgment and decree dated 7.8.1998 and directed Civil Appeal No. 104 of 27.7.1997 to be re-heard.

Piara Singh and his sons Charan Singh and Gurdeep Singh, petitioners in this petition, filed a suit against Balwinder Singh, Pritam Kaur and Sukhwinder Kaur for declaration being exclusive owners in possession of the suit property on the basis of a will dated 3.8.1989 executed in their favour by Joginder Singh. The suit was filed against Pritam Kaur widow of Joginder Singh, Balwinder Singh another son of Joginder Singh and Sukhwinder Kaur daughter of Joginder Singh. The suit was contested and ultimately dismissed by the trial Court with the findings that the will set up by Piara Singh and others was not genuine.

Against this judgment, Piara Singh and others, petitioners herein, filed a first appeal. In the first appeal Balwinder Singh and Pritam Kaur were proceeded against ex parte on the basis of a report that they refused to accept summons and Sukhwinder Kaur was ordered to be summoned again as she could not be summoned in the first instance. Thereafter again it was reported that she was not residing at the given address and accordingly she was ordered to be summoned by beat of drum. Even thereafter when she failed to attend the Court, she was ordered to be proceeded against ex parte.

The appeal came up for hearing on 2.8.1998 when Balwinder Singh appeared through a counsel. On an adjourned date of hearing being 7.8.1998, the Court was informed that Balwinder Singh had died and was survived only by defendant No. 2 Pritam Kaur his mother. On the same date, Pritam Kaur appeared as defendant No. 2 as legal heir of Balwinder Singh. She and the appellants presented a compromise admitting the will set up by the petitioners. In terms of the written compromise, the petitioners, plaintiffs in the suit, agreed to maintain Pritam Kaur during her life and to treat her as owner of the house situated in the village. On the basis of the said compromise, the learned Additional District Judge, Amritsar allowed the appeal, set aside the judgment and decree passed by the learned Civil Judge, Amritsar and decreed the suit declaring the plaintiffs as owners of the properties left by Joginder Singh on the basis of the will. It is thereafter that Sukhwinder Kaur, sister of the plaintiffs filed an application for setting aside the decree claiming that she came to know of the decree only when Piara Singh sought to dispossess her of the property on 24.1.1999 claiming himself to be the owner of the same. She claimed that she was not properly served in the appeal and wrongly proceeded against ex parte as Piara Singh had intentionally given her wrong address. She further claimed that compromise between the appellants and Pritam Kaur is a result of fraud which does not bind her. She also brought to the notice of the Court that Balwinder Singh in fact was married and had other legal representatives also and it was wrongly brought out before the Court that defendant No. 2 his mother was the only legal representative of defendant No. 1.

In so far as proper service upon defendant No. 3 Sukhwinder Kaur is concerned, the following findings have been recorded by the learned Additional District Judge, Amritsar:

In her affidavit-c-examination-in-chief Sukhwinder Kaur deposed that being sister of Piara Singh he knew that she was married and living at village Sultanwind but even then he gave her wrong address in the memorandum of appeal. She asserts of not having been ever served in the appeal and it was only on 24-1-1999 that she came to know about the judgment passed in the appeal from Piara Singh who tried to take forcible possession of suit property.

In cross-examination conducted upon her she was thrown wild suggestions of being aware of the proceedings which she promptly denied. If she was duly served in the suit that does not follow that she is supposed to know about an appeal likely to be filed against her. It is further rightly argued by Sh. D.K. Dhir ld. Counsel for the applicant that otherwise it is established that the process asking her to appear in appeal was never offered to her. The respondent, Piara Singh appearing as RW in his affidavit-cexamination- in-chief Ex.RA has deposed that Sukhwinder Kaur was served at that very address in the Trial Court proceedings and added after initial appearance absented therefrom as well. From this it cannot be inferred that she was supposed to know about likely appeal and could have been sent summons at that very address again. As the will set up by Piara Singh and his sons was refuted by all of the three respondents, little wonder than that Sukhwinder Kaur decided to take it easy leaving it to her codefendant to take care of the suit. The matter worsens for Piara Singh and co-plaintiffs in the wake of robust but impractical stand adopted by Piara Singh in his cross-examination. It is the case of Sukhwinder Kaur that she has since married Gurdip Singh with whom she was residing at Sultanwind and when asked about this Piara Singh just feigned ignorance despite being her real brother. As per him she was legally the wife of Harpal Singh but conceded simultaneously that she was no longer residing with Harpal Singh and also was unable to tell what happened to her thereafter. This version of his falsified when he has himself introducted Sukhwinder Kaur as wife of Gurdip Singh in the suit meaning thereby that he is aware of her marriage with Gurdip Singh and this also leads to the inference that Piara Singh and co-plaintiffs did not give her correct address intentionally. Unless they were in a position to establish that Gurdip Singh was resident of village Vallah there was no fun in given their Vallah address in the plaint or in the memorandum of appeal. Report made by the process server on the summons addressed to Sukhwinder Kaur is attested by Piara Singh himself but he blatantly disowned contents of that report which does no good to his cause. Why he accompanied the process server and why a particular report was got made and attested by him are the circumstances which again indicate that ex-parte proceedings against Sukhwinder Kaur were manipulated by such mavericks. Therefore I can constrained to conclude that Sukhwinder Kaur came to know about the judgment dated 7-8-1998 on 24-99 only and the instant application having been filed within 30 days therefrom is within time and the issue under discussion is decided in favour of Sukhwinder Kaur.

In so far as the issue regarding validity of compromise and other heirs of Balwinder Singh, the learned Additional District Judge found as hereunder:

Leaving the question of due service of Sukhwinder Kaur aside, which is being taken up under 2nd issue, the judgment and decree dated 7-8-1998 has to be taken as wrongly and improperly passed at least against Sukhwinder Kaur and the appeal deserves to be re-heard at least against her. Even if Sukhwinder Kaur was proceeded against ex-parte and even if Pritam Kaur for herself and as legal heir of her deceased son Balwinder Singh entered into a compromise with the appellants, the right and interests of Sukhwinder Kaur, affirmed by way of judgment an decree of the Ld. Trial Court could have not been bartered away by them in her absence. Sukhwinder Kaur not being a party to the compromise Ex C1 could have not been affected thereby. While disposing off the appeal on 7-8-1998 my ld. predecessor, I say with all the humility, ought to have decided the appeal against Sukhwinder Kaur on merits, even if ex-parte by holding that findings of Ld. Trial Court qua will were not correct and were to set aside on merits. There was no other option available to reverse a judgment delivered in favour of Sukhwinder Kaur by a Court of competent jurisdiction. 7. Compromise Ex C1 which led to judgment and decree dated 7-8-1998 suffers from another infirmity. It was wrongly represented to the Court by Piara Singh and co-appellants and Pritam Kaur that Balwinder Kaur was survived by Pritam Kaur only as his legal heir. In his cross examination as RW1 Piara Singh had to concede that Balwinder Singh was a married person and his wife was alive at the time of his death. Therefore the appellants and Pritam Kaur wrongly represented to the Court about legal heirs of Balwinder Singh while obtaining an order in their favour. Right of widow could have not been taken away in the manner it has been so designed.

It is on these findings that the judgment and decree passed in appeal dated 7.8.1998 was ordered to be set aside and the appeal re-heard on merits.

After going through the findings of the appellate Court, I do not find any error committed by the Court. Sukhwinder Kaur is the sister of plaintiff No. 1 Piara Singh. It was her case that she had married Gurdip Singh and in fact she had been impleaded as such as a party in the suit. The appellate Court has therefore rightly concluded that Piara Singh was aware of her marriage with Gurdip Singh and they did not give her correct address intentionally. I therefore agree that she was not properly served at her correct address.

Even otherwise, I also concur with the findings recorded by the learned Additional District Judge that vis-a-vis Sukhwinder Kaur there was a finding recorded by the trial Court on merits holding the will not to be genuine.

She was not a signatory to the so called compromise. As against her, the said finding could not have been reversed merely on the ground of compromise. On the aforesaid reason alone, the decree passed by the learned Additional District Judge, Amritsar on 7.8.1998 deserved to be recalled.

Even otherwise, the compromise entered into between the plaintiffs and Pritam Kaur to the exclusion of other two defendants does not appear to be bona fide. It was wrongly held out to the Court that Pritam Kaur was the only legal heir of Balwinder Singh. Ultimately in cross examination Piara Singh plaintiff had to concede that Balwinder Singh was a married person and his wife was alive at the time of his death. Balwinder Singh was none else than the brother of Piara Singh son of Joginder Singh. Thus, it cannot be believed that they were unaware of the factum of his marriage and of the fact that he was survived by other legal representatives.

Learned Counsel for the petitioner has relied upon a judgment of this Court in Manju Devi v. Prem Parkash and Ors. 2006 (2) CCC 81 to contend that it is the duty of the legal representatives to get themselves impleaded in the suit and the directions given by the learned Additional District Judge directing the petitioners to reveal and implead all the legal representatives of Balwinder Singh are not in accordance with law.

I have gone through the said judgment. In that case the Court was of the opinion that apart from the petitioner who was one of the legal representative of the deceased therein, the wife and other legal representatives of the deceased were impleaded and the interest of even the surviving legal representatives was substantially represented. In the peculiar facts and circumstances of the present case where the petitioner is the brother of deceased Balwinder Singh and the person with whom he had compromised is the mother and since the petitioner No. 1 has already conceded in evidence that Balwinder Singh was married at the time of his death, I find no error in the order of the trial Court directing the petitioners to give the details of the legal representatives of Balwinder Singh. For the reasons aforementioned, I do not find any error in the view taken by the learned Additional District in the order under challenge. The present revision petition is therefore dismissed.