JAGAT SINGH Vs. SANGAT SINGH

JUDGEMENT

(1.) This appeal is brought from a decree of the High Court at Lahore dated 31 January 1936, reversing a decree of the Subordinate Judge, Lyallpur, dated 31 January 1935, and dismissing the appellants' suit. The subject-matter of the dispute is some 6 3/4 squares of land in the district of Lyallpur in the Punjab, which (as is now admitted) belonged to one Ishar Singh who died childless on 6 October 1905, leaving him surviving a widow Bishan Devi; also a brother's son Sundar Singh who died on 10 January 1922. On 7 February 1929, the widow purported to make a gift of one portion of the land to Sangat Singh (respondent 1) and of another portion to a certain Gurdwara (respondent 2). The present suit was brought on 7 August 1933, by the appellants, who are three of the four sons of Sundar Singh. The fourth son was made a defendant and is now respondent 3. The claim of the plaint is for a declaration that the gifts of land to Sangat Singh and to the Gurdwara have no validity or effect beyond the life of Bishan Devi. Ishar Singh on 19 September 1905 made a will of which probate was granted to Bishan Devi by the District Judge of Peshawar on 3 November 1906. Apart from an interest in the family house at Rawalpindi, Ishar Singh by his will declared himself to be the absolute and exclusive owner of the property which he disposed of thereby. He declared that Sundar Singh, his nephew, was disobedient and of bad character and was to be totally disinherited. He made the following dispositions in favour of his wife: 4. My wife is Mt. Bishan Devi. She has greatly served me. She has all along been faithful to me. I make this will in her favour that she shall be exclusive (illegible) owner of the following properties after my death : (a) Entire cash including pro-notes for Rupees 13,000 and other items. (b) Liquor, charas, opium, etc., of all kinds. (c) Land, situated in Nathe. (d) Lands, situated in Lyallpur. (e) Three-quarter share in Nowshahra property. (f) All ornaments. Sundar Singh or any other person shall have no connexion therewith, nor shall they interfere in the management thereof. My wife, Mt. Bishan Devi, may manage the said property in whatever way she likes. She shall have all kinds of powers to deal with the property aforesaid. She shall be considered full owner. So long as Malik Arjan Singh is alive, he will manage the land in Lyallpur. 7. After the death of my wife, Mt. Bishan Devi, whatever property remains shall be owned by the sons of Sundar Singh. Sundar Singh shall have no connexion or concern therewith. Besides, my wife, Mt. Bishan Devi, shall not be entitled to sell immovable property. The sons of Sundar Singh shall also have no such right. 8. The remaining moveable or immovable property of mine shall be exclusively owned by my wife, Mt. Bishan Devi. Mutation of the lands at Lyallpur into the name of Bishen Devi was obtained from the Colonization Officer on 13 March 1907, but the entry was restricted by the condition "so long as she is alive and does not remarry". This was in accord with the customary law of the parties independently of her husband's will. On 12 November 1906, Sundar Singh filed a plaint in the Court of the District Judge, Peshawar, against Bishan Devi and other defendants. By this plaint as amended he claimed a declaration that the will of Ishar Singh was not valid or binding on him as regards (inter alia) the immovables at Mahal Nathe and Nowshahra, or the stock of liquor and opium, etc., at Peshawar or the Government promissory notes for Rs. 13,000 in deposit at the Treasury, Peshawar. The sole relief claimed was a declaration and the suit was brought upon a court-fee of Rs. 10 only, though valued for purposes of jurisdiction at over Rs. 26,000. The case made was that the business of dealers in intoxicants, etc., under excise licenses was not the separate business of Ishar Singh but a joint family business which had been carried on by him jointly with his brothers and after their deaths with the plaintiff Sundar Singh, and that all the properties had been acquired out of the joint funds of the business. Sundar Singh claimed to be the sole heir to and possessor of the property above mentioned and sued for a declaration that the will is unlawful and null and void and has no effect upon the rights of the plaintiff who holds proprietary possession over the property in question.

(2.) The plaint stated that a separate suit will be brought for recovery of the ornaments, valued at Rs. 15,000, other moveable property and lands situated at Lyallpur which are in possession of the defendants. This suit was compromised in June 1907, and as the validity and effect of the compromise is now in question it becomes necessary to notice it in detail. On 9 June a petition to the Court of the District Judge was signed by Bishan Devi and by Sundar Singh. It set forth that the parties had made the settlement therein expressed and it concluded : Hence this application by way of a compromise is submitted with the prayer that it may be accepted and the case decided in terms thereof. The main terms were that the lands at Mahal Nathe and at Lyallpur should belong to Bishan Devi for her life and on her death to Sundar Singh and his male descendants. An iron safe, a cow and a calf were to belong to Bishan Devi. Sundar Singh was to pay her Rs. 8150 in cash. Government promissory notes to the value of Rs. 13,000 deposited in the Treasury were to be entered in the names of the sons of Sundar Singh. Bishan Devi was to be absolute owner of all ornaments, clothes and other moveables in her possession. Sundar Singh was to get the book-debts, stock- in-trade and other trade moveables and to be liable to pay any debts of Ishar Singh. The petition of compromise was signed at Rawalpindi and was handed over to one Mohan Singh, an honorary Magistrate, who sent it by post to the District Judge. On 11 June the case came on before the District Judge and Bishan Devi was represented by her agent Jagat Singh and by a pleader. Sundar Singh was present in person. As appears by the note of the District Judge, Jagat Singh stated to the Court : Mt. Bishan Devi signed the compromise in my presence but she subsequently stated that she only accepted it if the Rs. 8150 was paid at once and if the Rs. 13,000 was invested in a bank. She signed of her own free will knowing the contents of the deed.

(3.) By his decree the District Judge ordered that a decree be and the same is hereby passed on the terms and under the conditions embodied in the deed of compromise dated 9 June 1907, as a whole with this reservation that the sum of Rs. 8150 shall be paid into Court within fifteen days from today, in case of failure defendant 1 (Bishan Devi) to be entitled to recover that amount by execution. On some date between 26 June and 15 July 1907, an application for execution was filed by Jagat Singh on behalf of Bishan Devi against Sundar Singh asking that a sum of Rs. 7535 lying in the Treasury on account of Ishar Singh be paid to Bishan Devi on account of the sum of Rs. 8150 due to her under the compromise. This application was successful and on 15 July a receipt was given by Jagat Singh on the lady's behalf for Rs. 7535 received through Court. Other instances of action taken under the compromise are in evidence but need not here be referred to. The gifts made on 7 February 1929, by Bishan Devi to respondents 1 and 2 of the lands at Lyallpur are contrary to the terms of the compromise of June 1907, whereby these lands were to belong to her for her lifetime only and she was not to be competent to alienate them. Hence the present suit brought by sons of Sundar Singh on 7 August 1933. The defence of Bishan Devi (original defendant 1) was that she was purdhanashin, that she signed a blank paper and not the completed deed of compromise, that her signature was obtained by undue pressure and without independent advice, and that she never agreed to the compromise. She contended further that the compromise could not be put in evidence for want of registration and that the Court at Peshawar was not competent to pass the compromise decree. Other contentions need not now be referred to.