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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.