KARNAIL SINGH Vs. DALIP KAUR

JUDGEMENT

(1.) THIS is defendants' second appeal.

(2.) MR . M.L. Sarin, Sr. Advocate, counsel for the appellants has contended that compromise dated 10.3.1986 is valid and consent decree passed pursuant thereto cannot be set aside even on the ground of fraud in a separate suit. He next contended that the suit filed by Dalip Kaur is barred under Order 23 Rule 3 -A, Code of Civil Procedure, and the remedy, if any, of Dalip Kaur was to approach that Court for setting aside the compromise or to file an appeal as provided under Order 43, Rule 1 -A, Code of Civil Procedure. He then contended that the first appellate Court was not justified in setting aside the sale -deed which was executed in favour of the appellants by Gurdial Kaur. He finally contended that as provided under Section 14(1) of the Hindu Succession Act, Gurdial Kaur became the absolute owner of land measuring 72 kanals and thus was entitled to sell the same in favour of the appellants. In answer to these submissions, Mr. Deepak Sibal, Advocate, counsel for Dalip Kaur submitted that decree dated 10.3.1986 was obtained by practicing fraud and the sale on the basis of which appellants are claiming themselves to be owners is without any consideration and cannot confer any title on the appellants. He contended that land measuring 72 kanals was given to Gurdial Kaur for her life as per decree passed on 26.2.1964 and therefore, the provisions of Hindu Succession Act cannot be made applicable to such transaction.

(3.) THE finding of the first appellate Court that the sale in favour of the appellants is without consideration too cannot be disturbed. Gurdial Kaur died on 25.3.1986 whereas sale -deed in favour of the appellants is alleged to have been executed on 20.3.1986 for consideration of Rs. 1,80,000/ -. There is a recital in the sale -deed that sum of Rs. 80,000/ - was paid on 3.1.1984 when agreement in this regard was executed by Gurdial Kaur. The agreement runs into two pages and appears to have been attested by two witnesses namely, Ujagar Singh and Hakam Singh who are also attesting witnesses to sale -deed dated 20.3.1986. Strangely, Hakam Singh has signed on the first page i.e. on the margin of left side of he page, whereas Ujagar Singh has put his signatures on the second page and that too at the bottom of he page. Both the attesting witnesses have not put their signatures at one place. Counsel was unable to explain as to why both these attesting witnesses did not put their signatures at the places where attesting witnesses are supposed to sign. The sum of Rs. one lac is alleged to have been paid at the time of registration of sale -deed. In his cross -examination, Karnail Singh stated that he had withdrawn Rs. one lac from Oriental bank of Commerce, Daudhar one day prior to the registration of sale -deed from the account of one Amar Singh son of Chanan Singh, resident of village Daudhar. With regard to the amount paid under the agreement, he stated " I do not know whether the amount of Rs. 80,000/ - which was given as advance was withdrawn from the bank. I have taken from my friends. Himself stated that my father will be knowing. My father is alive." Against this, Dalip Kaur got proved on record Exhibit PW -7/A Statement of account of Amar Singh son of Chanan Singh, resident of village Daudhar maintained in Oriental Bank of Commerce, village Daudhar. A reading of the statement of account has shown that on 19th or 20th March, 1986 when sale -deed is alleged to have been executed, no amount was withdrawn from the account. As a matter of fact, in March, 1986 i.e. on 7.3.1986 sum of Rs. 900/ - was deposited and in March, 1986 balance was only Rs. 1724. 29P. The maximum amount which ever came to be deposited in that account was Rs. 55339.69P and that too as on 12.6.1986. Thus, from the cross -examination of Karnail Singh (DW -1) and statement of account, Exhibit PW -7/A it stands proved that the agreement is fictitious and no amount was paid either at the time of alleged execution of the agreement or at the time of execution of the agreement or at the time of execution of sale -deed. Appellants have miserably failed to prove on record that they were possessed of the amount which they allege to have at the time of execution of the agreement or at the time of registration of sale -deed.