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CASE NO.: Appeal (civil)  4366 of 2002

PETITIONER: Amarjit Kaur & Ors.                                              

RESPONDENT: Karamvir Singh & Ors.                                    

DATE OF JUDGMENT: 25/04/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the legality of judgment  rendered by a learned Single Judge of the Punjab and Haryana  High Court at Chandigarh in second appeal  filed under  Section 100 of the Code of Civil Procedure, 1908 (in short the  ’CPC’).

       Background facts in a nutshell are as follows:-

       One Ajit Singh was a common ancestor of the appellants  and the respondents. The respondents as plaintiffs had filed a  suit for declaration to the effect that they are owners to the  extent of 17/24 share in the 107 Kanals and 2 Marlas of land,  out of 151 Kanals 5 Marlas of land in dispute which had been  allotted to their common ancestor Ajit Singh at the time of  consolidation.  Ajit Singh was a man of full vices, a spend- thrift person and had sold his land to one Bishan Singh  without consideration and legal necessity.  Joginder Singh,  ancestor of the present appellants 1 to 5 and 7 had filed a suit  for declaration that said sale was without consideration and  legal necessity and as such void and had no effect on the  reversionary rights. The said suit was decreed up to the High  Court.  Before this Court a compromise was arrived at between  Joginder Singh and Bishan Singh in which the latter admitted  that the land was ancestral property and the sale was  ineffective.  He, therefore, relinquished his right in the same  after accepting a sum of Rs.30,000/- from Joginder Singh, the  original defendant no.1.  With a mala fide intent Joginder  Singh initially got the mutation sanctioned in his name in  relation to the entire land and, thereafter had got a portion  thereof mutated in favour of his son, Harpal Singh (defendant  no.2) and his wife Smt. Harjinderjit Kaur (defendant no.3).   Appellant No. 2 Manraj Singh is the son of Harpal Singh.   These entries, according to the plaintiffs were incorrect and  had no effect on their rights as they had acquired 17/24 share  in the suit land as reversioners on the death of Ajit Singh on  3.9.1986.  The decree of this Court was not binding on them  as they were not parties to the compromise. The plaintiffs had  requested the defendants to admit their claim, but to no effect.   Therefore, the suit for declaration and consequential relief of  possession was filed.  The suit was contested by the  defendants who admitted the relationship inter se, as also the  fact that the land in question was allotted at the time of  consolidation in lieu of the land which was ancestral in the

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hands of Ajit Singh.  It was also admitted that Ajit Singh had  sold the land without legal necessity and consideration and  that defendant no.1 Joginder Singh had filed suit for  declaration which was decreed up to the High Court, and a  compromise had been affected by Joginder Singh with Bishan  Singh.  They also admitted that after the compromise  possession was taken by Joginder Singh.  However, it was  submitted that the High Court had observed that the sale in  favour of Bishan Singh was void and would not affect the  revisionary rights of Joginder Singh after the death of Ajit  Singh. Before this Court only Joginder Singh was a party and  it was he, who had entered into compromise with Bishan  Singh, in pursuance whereof a decree was passed. On the  basis of this decree Joginder Singh claimed that he had  become owner of the suit land.  Joginder Singh had also  incurred huge expenses for making the land fertile and had  installed electricity tubewell, electric motor of 7.5 horse power  and also constructed 4/5 rooms for the storage of seed,  fertilizer etc.  He also claimed to have grown orchard in an  area of four acres and planted 600/700 eucalyptus trees.  Other defendants 2 to 6 claimed to have become owners by  way of decree of a Court and mutual exchanges.  It was stated  that  in view of the decision in favour of Joginder Singh in the  earlier suit, the subsequent suit was not maintainable and the  decision of this Court dated 22.3.1966 operated as res  judicata.  It was also submitted that plaintiffs were estopped  from filing suit by their own acts and conduct and the suit was  barred by time and also bad for non-joinder of necessary  parties.  Reference was made to Order 32 Rule 3 of the CPC  with regard to the appointment of guardian for the minor  defendants.  It was pleaded that these mandatory provisions  were not complied with and the suit was band qua the minor  defendants.  13 issues were framed by the trial court which  after examining evidence decided the relevant issues i.e. issues  nos. 3to 6 as quoted below against the plaintiffs.

"3.     Whether sale of the suit property by Ajit  Singh in favour of Bishan Singh is null  and void, and if so, its effect? OPP

4.      Whether plaintiffs are owners of the suit  property? OPP

5.      If issue No.4 is proved whether plaintiff is  entitled to the possession of the suit  property as prayed for? OPP

6.      Whether plaintiff has no locus standi to  file the present suit? OPP"

       Appeal filed by the respondents was allowed by learned  Additional District Judge, Jalandhar holding that Joginder  Singh was entitled to the benefit of the decree in the earlier  suit and the findings in relation to the above issues were  reversed.  In the second appeal the High Court was of the view  that the only question which arises for consideration is  whether the settlement arrived at between Joginder Singh  (defendant No.1) and Bishan Singh would entitle Joginder  Singh alone to the benefit of the decree passed in the suit filed  by him against Bishan Singh.  The High Court felt that no  question of law was involved and accordingly dismissed it.

       The High Court noticed that the admitted case was that

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the alienation of their predecessor-in-interest Ajit Singh in  favour of Bishan Singh was assailed by Joginder Singh alone  in a suit arraying by Bishan Singh, his brothers, namely,  Nirmaltej Singh and Karamvir Singh along with Ajit Singh as  defendants.  The suit was decreed in his favour by the High  Court declaring that the sale would not affect his reversionary  rights after the death of Ajit Singh for an amount in excess of  Rs.1011/- and he would be entitled to take possession of the  land on payment of the aforesaid amount.  In appeal before  this Court, Joginder Singh and Bishan Singh entered into  compromise by virtue of which Joginder Singh agreed to pay a  sum of Rs.30,000/- in place of Rs.1011/- which he would  have been required to pay if the decree had not been modified.

       There was no modification of the terms of the declaration  that the sale would not affect the reversionary rights of  Joginder Singh after the death of Ajit Singh which in fact  would mean that the property in dispute would be inherited   by all the heirs of Ajit Singh.  The Trial Court fell into grave  error in relation to this aspect of the case and, therefore, the  first Appellate Court was justified in its view.  

       According to learned counsel for the appellants the basic  issue was whether the compromise entered into between  Joginder Singh and Bishan Singh before this Court, with  regard to the ancestral property of Ajit Singh after the death of  Joginder Singh would have any effect on the reversionary  rights of the other heirs of Ajit Singh.  It was, therefore,  submitted that sale putatively due to legal necessity was  entered into on 14.3.1942 but for the suit filed in 1943, the  sale would have been final and binding.   As a consequence of  Joginder Singh’s suit and appeals, thereafter the sale was  treated for necessity to a limited extent.  Under the  compromise, (a) exclusive rights were accorded to Joginder  Singh and (b) if Joginder Singh had not paid the sum in the  compromise decree, the entire suit would have been dismissed  and the sale would have been valid.  Further, Joginder Singh  was to be given entire land even before the death of Ajit Singh  with full rights to consolidation, mutation and attainment of  tenants.   The other reversioners were party to the suit and  appeal proceedings and became majors on 23.10.1959 and  17.11.1964; thus being capable of conducting their own  proceedings without a guardian ad litum.  They acquiesced to  in the compromise decree fully conscious of their rights.  The  compromise decree was (a) a bona fide transaction (b) between  Joginder Singh and the vendee for consideration (c) entitled  Joginder Singh exclusively to possess and mutate all records  and attorn all tenants (d) Joginder had acted as exclusive  owner from 1966 to 1986 and beyond.  He also spent huge  sums of money for improvements and additions from his own  funds. No other party had the means to pay for the  compromise other than Joginder Singh. There was  acquiescence to the decree both by the father (Vendor and Ajit  Singh) and the reversioners.  It was submitted that equitable  principles such as estoppel, elections family settlement etc.  are not mere technical rules of evidence.  The ultimate aim of  law is to secure justice. There are three classes of estoppel  that may arise for consideration which are (1) within ambit of  Section 115 of the Indian Evidence Act, 1872 (in short  ’Evidence Act’) (2) election in the strict sense of the term  whereby the person electing takes a benefit under the  transaction and (3) ratification i.e. agreeing to  abide by the  transaction.

       A presumptive reversioner coming under any of the

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aforesaid categories is precluded from questioning the  transaction, when succession grants and when he becomes  the actual reversioner. The principles of acquiescence may  also make revesionary rights defeasible.

In response, learned counsel for the respondents  submitted that at the time of Ajit Singh’s death the right  survived and the Punjab (Custom) (Power to Contest] Act of  1920 was in operation. It is to be noted that plea relating to  acquiescence was not pleaded before any of the courts below  and, in fact, there is no acquiescence as the compromise  entered into between Joginder Singh and Bishan Singh has no  effect on the rights of the plaintiffs.  Their rights were  protected by this Court in dismissing appeal of Bishan Singh  against them.  The relevant portion of this Court’s earlier order  makes this position clear.  Only effect of the compromise was  that by paying certain amount Joginder Singh became entitled  to the possession of the suit land immediately, which  otherwise could have been taken by him only after the death of  Ajit Singh.  Ajit Singh’s land became part of his estate and the  same devolved upon all the legal heirs.  As rightly held by the  first Appellate Court and confirmed by the High Court,  Joginder Singh had no right to deny claim of other heirs on  the ground that he got possession of the land from Bishan  Singh on the basis of the compromise affected between them.   The plaintiffs could not have been deprived of their legal rights  by the compromise in question.   

Rival contentions need careful consideration.  It would be  appropriate at this stage to take note of this Court’s judgment  in Giani’s Ram v. Ramjilal (1969 (1) SCC 813).  It was inter  alia held as follows :-

"The Punjab Custom (Power to Contest)  Act 1 of 1920, was enacted to restrict the  rights exercisable by members of the family to  contest alienations made by a holder of  ancestral property.  By virtue of Section 6 of  the Act no person is entitled to contest an  alienation of ancestral immovable property  unless he is descended in the male line from  the great-great grandfather of the alioner.   Under the customary law in force in the  Punjab a declaratory decree obtained by the  reversionary heir in an action to set aside the  alienation of ancestral property enured in  favour of all persons who ultimately took the  estate on the death of the alienor for the object  of a declaratory suit filed by a reversionary heir  impeaching an alienation of ancestral estate  was to remove acommon apprehended injury,  in the interest of the reversioners.  The decree  did not make the alienation a nullity \026 it  removed the obstacle to the right of the  reversioner entitled to succeed when the  succession opened."

It was also held that effect of such a declaratory decree is  merely to declarate that by the sale interest conveyed in favour  of the alienee was to ensure during the life time of the alienor.   The inevitable conclusion is that the property alienated  reverted to the estate of the alienor at the point of his death  and all persons who would but for the alienation will be  entitled to inherit the same.

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A bare perusal of the order of this Court while recording  the compromise shows that the rights of the plaintiffs was  kept in tact by dismissing the appeal of Bishan Singh against  them.

If Joginder Singh had spent any money as claimed, that  is a matter of adjustment when the actual allotment is made.  Above being the position, there is no merit in this appeal  which is accordingly dismissed.  No costs.