Full Judgment Text
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PETITIONER:
RAM BHAJAN SINGH & ORS.
Vs.
RESPONDENT:
MADHESHWAR SINGH (DEAD) BY LRS&ORS
DATE OF JUDGMENT26/04/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 AIR 1685 1995 SCC Supl. (2) 757
1995 SCALE (3)709
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The appeal lie in a short compass. The appellants are
the legal representatives of defendent Nos.7 to 9. The
respondents plaintiff Nos.1 and 2, filed T.S. No.66/58 on
October 7, 1958 to declare that the compromise decree made
in T.S. No.72/26 is null and void and does not bind them.
The trial court dismissed the suit. On appeal, while holding
the allegations that the compromise was obtained by playing
fraud on the plaintiff was not proved, it was allowed on the
ground that it does not bind the plaintiff. As stated
earlier, the trial court after going into the evidence
dismissed the suit holding that the decree was not obtained
by fraud and that, therefore, the decree was valid and is
binding on them. In T.S. No.1962/62, the appellate court
also recorded the finding that the compromise was not
vitiated by fraud, but since defendants Nos.7 to 9 have no
right in the property, the family arrangement in the
compromise was not valid and that, therefore, it does not
bind the plaintiffs. Accordingly it reversed the decree of
the trial court and decreed the suit by Judgment and decree
dated September 15, 1971.
The appellants carried the matter in Second Appeal
No.63/72. The single Judge of the High Court by Judgment and
decree dated June 28, 1978 dismissed the appeal holding that
since the 11th defendant died on July 9, 1973 and the
application for substitution was not filed within the
limitation, the entire appeal stands abated and accordingly
the appeal was dismissed. Thus this appeal by Special Leave.
Admittedly, the property belongs to one Ganga Bishan
who had 1/6th share in the joint family property and on his
demise his widow, Daulat Kaur, came into possession as a
limited owner in respect of the lands in dispute bearing
plot Nos.132, 133 and 138. Daulat Kaur gifted the properties
to the defendants Nos.1 and 2 on April 4, 1926, which gave
rise to the tile Suit No.72/26 challenging the aforesaid
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gift. Therein, the compromise was affected between the
parties and each one of the four branches were given 3
bighas 3 katas each out of a total extent of 14 bighas, 12
katas. Daulat Kaur died on June 27, 1956.
These facts clearly establish that there as a
compromise recorded in the judicial proceedings in T.S.
No.72/26 in which each of the branch was proportionately
given @ 3 bighas, 3 katas each. The question then is whether
the compromise was vitiated by fraud. Unless this finding is
established, decree binds the parties as it was validly
recorded in a judicial adjudication and it cannot be set at
naught. In view of the findings of both the trial court as
well as the appellate court that no fraud was played, the
compromise decree does not get vitiated. The question then
is whether the second appeal stands abated. It is seen that
the defendent No.11 in the trial court is only one of the
persons representing the branch of the defendants No.9. The
other defendants are already representing the estate of the
11th defendant. The death occured on July 9, 1973 and the
application for substitution was filed on October 17, 1973,
practically after the expiry of the nine days of limitation.
The application for substitution was filed two days after
the Puja Vacation. It would have been in time, if filed on
the day the Court re-opened after Puja vacation.
Under these circumstances the High Court was wholly
illegal in finding that the appeal abated, and in refusing
to condone the delay of nine days in bringing the legal
representatives on record. The explanation of delay is not
as rigorous as one to condone delay in filing the appeal.
The appeal is, therefore, allowed with the result that the
decree in T.S. No.72/26 stand unaffected.