GURNAM SINGH Vs. SOMA ALIAS SAHIB KAUR

JUDGEMENT

(1.) Malkiat Singh, Ujagar Singh, Manjit Singh and Baljit Singh sons of Chetan Singh filed a suit on May 27, 1982 on the basis of a Will dated December 27, 1981, Exhibit P. 1 said to have been executed in their favour by Kishna. The defendant Gurnam Singh, set up another Will dated December 26, 1981, in his favour by the said deceased Kishna whereas defendant No. 2, Smt. Soma alias Sahib Kaur claimed herself to be the widow of the deceased Kishna. The trial Court vide judgment dated January 20, 1987, dismissed the plaintiffs' suit as it was held that the plaintiffs had failed to prove the Will set up by them. The trial Court also found that the Will set up by the defendant Gurnam Singh also not proved to be a valid one though he was found to be in possession of the suit land. However, Shrimati Soma was held to be the widow of the deceased Kishna. With these findings, the plaintiffs' suit was dismissed. Dissatisfied with the same, three appeals were filed in the Court of the District Judge. All the three appeals were dismissed vide judgment dated July 28, 1988 and the decree of the trial Court dismissing the plaintiffs' suit was maintained. The present second appeal has been filed by Gurnam Singh, defendant. Neither the plaintiffs, nor Shrimati Soma filed any second appeal in this Court. During the pendency of the appeal Gurnam Singh, defendant-appellant and Shri Soma entered into a compromise, which was filed in this Court vide Civil Miscellaneous Application No. 3319-C of 1989, dated August 30, 1989. By virtue of the said compromise, it was agreed that Gurnam Singh will maintain Shrimati Sona and give her Rs. 500/- per month for her personal expenses besides the meals and other necessities of life and would serve her and respect her being his chachi. It was also stated therein that Gurnam Singh was in cultivating possession of the suit property and he would remain so. Both the parties agreed that Shrimati Soma had no objection if the property of deceased Kishna is inherited by Gurnam Singh as per the Will of the deceased dated December 26, 1981. Notice of the application under Order 1 Rule 10, Civil Procedure Code, i.e., Civil Miscellaneous Application No. 2632-C of 1989, dated July 12, 1989, was filed on behalf of one Gurmit Singh son of Amrik Singh for impleading him as a party to the second appeal. Notice of the application was also given to the learned counsel for the appellant.

(2.) A preliminary objection has been raised on behalf of the abovesaid Gurmit Singh that since Shrimati Soma had already suffered a decree in his favour on September 17, 1984 and another decree dated August 12, 1988, she could not enter into any compromise with Gurnam Singh and secondly no appeal as such was maintainable on behalf of Gurnam Singh against the decree of the trial Court whereby the plaintiffs' suit was dismissed. In support of the contention, the learned counsel referred to Ganga Bai v. Vijay Kumar, 1974 AIR(SC) 1126 and Budh Sen v. Sheel Chandra Agarwal, 1978 AIR(All) 88

(3.) Faced with this situation, the learned counsel for the defendant-appellant Gurnam Singh submitted that the appeal as such was maintainable and cited Union of India v. Pearl Hosiery Mills, 1961 AIR(P&H) 281 in this behalf. According to the learned counsel, since a finding of fact has been given that the Will set up by Gurnam Singh dated December 26, 1981, was not proved to be a valid one, this finding will operate as res judicata against him in any subsequent proceedings.