DHAN KAUR Vs. GURDIAL SINGH

JUDGEMENT

(1.) In order to appreciate the point involved in the case, a short pedigree table deserves to be noticed : Kartar Kaur-Bagga Singh-Dhan Kaur-Nek Singh (remarried) Gurdial Singh (son) The property in dispute originally belonged to Bagga Singh and he died long time before coming.into force of' the Hindu Succession Act, 1958. At the time of his death, Gurdial Singh, his son from first wife, and Dhan Kaur, his second wife, were live. The estate left by Begga Singh was mutated in equal shares in the names of Gurdial Singh and Dhan Kaur, but Gurdial Singh continued to be in possession of the property. Later on Dban Kaur remarried Nek Singh.

(2.) When Dhan Kaur and her husband Nek Singh tried to take forcible possession from Gurdial Singh, he filed the present suit for declaration that he was the owner of the entire land and for injunction restraining them from interfering in possession of the land. He pleaded that the parties were governed by custom and under custom on the death of Bagga Singh the entire estate left by him devolved on him to the exclusion of Dhan Kaur and as such the mutation was wrongly recorded. The suit was opposed by Dhan Kaur and Nek Singh. The trial Court dismissed the suit vide jugment dated 23rd October, 1978. The plaintiff went up in appeal before the learned District Judge which care up for final hearting before the learned Additional District Judge, Patiala. When the appeal came ur for final hearing on May 14, 1980. Shri M.L. Gupta, Advocate for Dhan Kaur and Nek Singh, and Nek Singh himself, made a statement in writing before the Court that the parties had compromised and out of the total .and measuring 211 Kanals-19 Marlas, Dhan Kaur had 18th share and the remaining 7/8th share would belong to Gurdial Singh plaintiff-appellant. This statement was accepted by Gurdial Singh and on the basis of the aforesaid statement, the learned Additional District Judge, Patiala, recorded the compromise and allowed the appeal and after setting aside the judgment and decree of the learned trial Court, granted a declaration in favour of Gurdial Singh plaintiff that he was owner of 7/8th share and dismissed his suit regarding the balance 1/8th share. Smt. Dhan Kaur has come up in second appeal to this Court- against the aforesaid compromised decree.

(3.) The learned counsel for the appellant has urged that the provisions of Order 23 Rule 3 of the Code of Civil Procedure (as amended in 1976) have not been complied with in the present case as there was no compromise in writing signed by Dhan Kaur before the Additional District Judge, and, therefore, the compromised decree should be set aside. In order to appreciate the contention, it will be useful to refer to the provisions of Order 23 Rule 3 of the Code of Civil Procedure. Particular reliance was placed on the words "in writing and signed by the parties." The word "parties" would include the parties, their authorised agents, and their Advocates having powers of attorney to compromise on behalf of the parties. After going through the file of the learned trial Court I find that Dhan Kaur had executed a power of attorney in favour of shri M.L. Gupta, Advocate, and a reading of that power of attorney shows that he had the authority to compromise on her behalf. Therefore, any compromise made by Shri M.L. Gupta, Advocate, on behalf of Dhan Kaur, would be with full authority. The next point would be whether there was a compromise in writing and signed by the parties. A look at the proceedings of the appellate Court dated 14th play, 1980, shows that a joint statement was made by Shri M.L. Gupta, Advocate, on behalf of Dhan Kaur and Nek Singh and Nek Singh himself, who was present in Court, and that statement has been signed by both of them, which has been accepted as correct in writing by a separate statement by Gurdial Singh 'herefore, the matter was compromised by a statement noted down by the Court below and which was duly signed by Nek Singh as also by Shri M.L. Gupta, Advocate, on behalf of Dhan Kaur, who had the authority to sign on her behalf. Therefore, I find that there was a compromise in writing, duly signed by the parties.