INDERPAL SINGH Vs. INDER KAUR

JUDGEMENT

(1.) These two appeals have arisen out of a common judgment dated 4th March, 1985 passed by the learned Additional District Judge, Delhi in Suits No. 16 & 17 of 1984. Regular First Appeal No. 165/85 has been filed by the legal heirs of Late Shri Harnam Singh, (plaintiffs before the trial Court) because their suit for declaration and injunction was dismissed by the impugned judgment. Regular First Appeal No. 164/85 has been filed by them because of the judgment and decree having been passed in favour of respondent no I in her suit for possession and injunction. The question which this Court is called upon to determine is whether any right accrued to plaintiff in the property in dispute on account of codicile and what is the effect of their withdrawal of the suit without permission. So far as R.F.A. No. 164/85 is concerned, we have to consider whether the Court was justified in decreeing the suit of respondent no. I without recalling the order of consigning the suit to record after staying the suit sine die.

(2.) Shri Hardit Singh Multani was the original owner of property beaming No. XVI/10204 known as (Anand Bhavan), Gurdawara Road, Karol Bagh, New Delhi. He died on 19th April, 1957. He had executed a Will on 28th October, 1949 bequeathing whole of his property in favour of his wife Smt. Tej Kaur. Shri Hardit Singh Multani's eldest daughter Smt. Sewa Kaur, was married to Shri Harnam Singh. She was living in a portion of this house with her family during the life time of her father Shri Hardit Singh Multani. According to plaintiffs Shri Hardit Singh Multani before his death executed a codicile on 14th April, 1956 (Ex. P.I) in favour of his daughter Smt, Sewa Kaur thereby leaving l/4th share of the property in her favour i.e. the portion which she alongwith her family was occupying. Smt. Sewa Kaur died on 11th June, 1964 leaving behind Shri Harnam Singh, her husband, two sons and one daughter.' After the death of Smt. Sewa Kaur, Shri Harnam Singh, and others filed a suit for partition on 17th September, 1969 listed as Suit No. 374/65, against his mother-in-law Smt. Tej Kaur claiming l/4th share in the property. In that suit of partition Smt. Tej Kaur was proceeded ex parte and preliminary decree was passed on 27th November, 1965. Smt. Tej Kaur having come to know of the ex parte preliminary decree filed an application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside that decree, on ,10th November, 1965. Said application was ordered to be posted on 29th December, 1965 i.e. the next date of hearing. Before that date, Shri Harnam Singh made a statement that a compromise between the parties has been arrived at hence he be permitted to withdraw his suit. The same was dismissed as withdrawn on 27th December, 1965. During the pendency of that suit Shri Gurdeep Singh, D.W. 3 son of Smt. Tej Kaur came to India from West Germany. He pressurised Shri Harnam Singh and Smt. Tej Kaur to settle the dispute amicably. Because of his efforts compromise was arrived at, pursuant to which the said suit was withdrawn. On 29th December, 1965 Smt. Tej Kaur 'came to know about the said withdrawal of the suit on the ground of compromise, she moved an application under Sections 151 & 152 Civil Procedure Code denying the alleged compromise. However, no order was passed on her application by the Court. It is further alleged that after withdrawal of the said suit a written, agreement was entered into between Shri Harnam Singh & Smt. Tej Kaur on 3rd January, 1966 whereby it was agreed that parties would not dispose of this property without each other's consent. Property would only be disposed of jointly. This Memorandum of Settlement was duly executed and attested by witnesses. After about four years Smt. Tej Kaur decided to dispose of this property without the knowledge of Shri Harnam Singh. She entered into a sale transaction. with Shri Jawahar Singh, brother and General Attorney of Respondent No. I, Smt. Inder Kaur. When sale negotiations were going on in May, 1969, Shri Harnam Singh came to know about the same, therefore, he filed a fresh suit for permanent injunction on 20th May, 1969 against his mother-in-law Smt. Tej Kaur basing his claim on codicile dated 14th April, 1956 and compromise dated 3rd January, 1966. In the meantime Smt. Tej Kaur executed the sale deed in favour of Smt. Inder J Kaur on 21st May, 1959 selling the entire property in question for a consideration of Rs. 75,000.00 . The sale deed was got registered on 2nd September, 1969. On account of registeration of the sale deed the suit became infructuous hence dismissed on 12th August, 1970. Afterdismissed of that suit, Shri Harnam Singh and his children filed the present suit for declaration and injunction on 29th August, 1970 on the basis of the said codicile dated 14th April, 1956 and the compromise dated by 3rd January, 1956. He also challenged the sale made by Smt. Tej Kaur in favour of Respondent no. 1, Smt. Inder Kaur. The suit No. 16 of 1984 was ultimately dismissed against which the present appeal has been preferred.

(3.) Smt. Inder Kaur purchaser of the property, the respondent no. I in the appeal had filed a suit on 24th October, 1977 for possession and damages in the High Court of Delhi against Shri Haroam Singh for getting unauthorisedly the possession of l/4th portion of her property. This suit was transferred to the lower Court from the High Court and it was listed as suit No. 17 of 1984 which was ultimately decreed in favour of Smt. Inder Kaur vide the impugned judgement.