JAI NARAIN Vs. SONA DEVI

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 120 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent Sona Devi is daughter of deceased Jagan whose estate is the subject matter of dispute in this case. It has further been found she was the only legal heir and would have inherited the property of deceased Jagan had he not suffered the judgment and decree dated 18.11.2005. The learned trial Court recorded the finding that the family settlement between deceased Jagan and the defendant-appellant was arrived at to deprive the plaintiff- respondent from her rights in the suit property because it would have fallen to the share of the plaintiff-respondent being the sole legal heir after the death of Jagan. The learned trial Court further held that a Hindu male cannot alienate the suit property by executing a Will or by any other means like suffering a decree. It has further been found that the decree suffered by deceased Jagan did not disclose the existence of any dispute, right or love and affection between Jagan and the defendant-appellant. It is appropriate to mention that the defendant-appellant is the son of Jagan's brother. The learned trial Court has also recorded by referring to para 3 of the plaint filed in the suit, which was the basis of the collusive decree dated 18-11- 1995 dated that there was not even a whisper about love and affection of the services rendered by the defendant-appellant or the fact that Smt. Sona Devi daughter of deceased Jagan is alive. The contradictory stand taken by the defendant-appellant, which resulted into passing of collusive decree on 18.11.1995 and the written statement filed in the instant suit has also been highlighted by the learned trial Court. It was concluded that the judgment and decree dated 18.11.1995 is based on mis-representation made by the parties and with the object of depriving the plaintiff-respondent from her right to inherit the property of her father. The trial Court did not seriously consider the question as to whether the unsigned judgment of the Presiding Officer or the statements made by deceased Jagan, father of the plaintiff-respondent, would have any bearing. However, the learned trial Court has further found that the judgment and decree dated 18.11.1995 require registration under Section 17(2) of the Registration Act, 1908, and placed reliance on a judgment of the Supreme Court in the case of Bhoop Singh v. Ram Singh Major, 1995(3) RRR 541 : AIR 1996 SC 196.

(2.) THE issue with regard to the maintainability of the suit without seeking consequential relief of possession was also decided against the defendant- appellant because it was found that the plaintiff-respondent was in possession of the property being a co-sharer and suit for declaration simpliciter was held to be maintainable. In that regard reliance was placed on a judgment of this Court in the case of Amar Singh v. Manphool, 1992(1) RRR 557 : 1991 PLJ 325.

(3.) MR . Ashish Aggarwal, learned counsel for the defendant-appellant has argued that in a subsequent suit like the one filed against the defendant-appellant, no Court is competent to go into the validity of the collusive decree or go into the facts of that case. According to the learned counsel, the jurisdiction of the subsequent Court is completely barred. In support of his submission, learned counsel has placed reliance on two judgments of this Court rendered in the cases of Harpal v. Smt. Ram Piari, 1981 PLJ 492 and Gurdev Kaur v. Mehar Singh, 1989(2) RRR 499 : 1989 PLJ 182 (D.B.). Learned counsel has then argued that a family settlement followed by a collusive decree is not compulsorily registerable because the collusive decree itself did not create any new rights. According to the learned counsel, if such a decree has not been found to be fraudulent then it does not require registration. In support of his submission, learned counsel has placed reliance on the judgments of this Court in the cases of Lal Singh v. Jaswant Singh, 2002(4) RCR(Civil) 219 and Gurdev v. Jagtar Singh, 2002(4) RCR(Civil) 277. Learned counsel has then argued that non-signing of judgment dated 18.11.1995 does not suffer from any fatal infirmity because the decree duly signed by the Court is available, which is valid by entry of probate in favour of the defendant-appellant, therefore, the finding by the learned lower Appellate Court deserves to be set aside. His last submission is that a simple suit for declaration and permanent injunction would not be maintainable without the prayer for possession as the same is prohibited by Section 34 of the Specific Relief Act, 1963, (Para 3) (REF)