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High Court Of Delhi
INDERPAL SINGH - Appellant
Versus
INDER KAUR - Respondent
REGULAR FIRST APPEAL 164 of 1985
Decided On : 05/10/1991
CODICILE - SUBJECT - WILL - ACT SECTION LIST - [SECTION 151, 152, ORDER 9 RULE 13 CPC] - SUMMARY: The court examined the validity of a codicile and a compromise agreement in a property dispute. The codicile, allegedly executed by the original owner of the property, bequeathed a 1/4th share to his daughter. The compromise agreement, entered into after the daughter's death, confirmed this share. The court held that the codicile was genuine and that the compromise agreement was valid. It set aside the lower court's judgment and decree, which had dismissed the plaintiffs' suit for declaration and injunction and granted possession to the defendant.
Fact of the Case:
The original owner of the property, Shri Hardit Singh Multani, executed a Will bequeathing the entire property to his wife, Smt. Tej Kaur. After his death, his eldest daughter, Smt. Sewa Kaur, filed a suit for partition, claiming a 1/4th share based on a codicile executed by her father. The suit was withdrawn after a compromise was reached between the parties. Smt. Tej Kaur later sold the property to the defendant, Smt. Inder Kaur. The plaintiffs, the legal heirs of Smt. Sewa Kaur, filed a suit for declaration and injunction, claiming a 1/4th share in the property based on the codicile and the compromise agreement. The defendant filed a suit for possession, claiming that the plaintiffs were trespassers.
Finding of the Court:
The court held that the codicile was genuine and that the compromise agreement was valid. It found that the plaintiffs had not abandoned their claim by withdrawing the earlier suit for partition, as the cause of action and the relief claimed in both suits were distinct. The court also found that the defendant had not been able to disprove the codicile or the compromise agreement.
Issues: 1. Whether the codicile was genuine. 2. Whether the compromise agreement was valid. 3. Whether the plaintiffs had abandoned their claim by withdrawing the earlier suit for partition.
Ratio Decidendi: 1. The court held that the codicile was genuine based on the testimony of the attesting witness and the son of the original owner, who identified the signatures of the original owner and his wife on the codicile. The court also found that the defendant had not produced any evidence to disprove the genuineness of the codicile. 2. The court held that the compromise agreement was valid based on the testimony of the son of the original owner, who stated that he had mediated the compromise between his mother and the plaintiffs. The court also found that the defendant had not produced any evidence to disprove the validity of the compromise agreement. 3. The court held that the plaintiffs had not abandoned their claim by withdrawing the earlier suit for partition, as the cause of action and the relief claimed in both suits were distinct.
Final Decision: The court set aside the lower court's judgment and decree, which had dismissed the plaintiffs' suit for declaration and injunction and granted possession to the defendant. The court allowed the plaintiffs' appeal and granted them a declaration of their 1/4th share in the property.
( 1 ) THESE two appeals have arisen out of a common judgment dated 4th March, 1985 passed by the learned Additional District Judge, Delhi in Suits No. 16 and 17 of 1984. Regular First Appeal No. 165/85 has been filed by the legal heirs of Late Shri Harnam Singh, (plaintiffs before the trial Court) because their suit for declaration and injunction was dismissed by the impugned judgment. Regular First Appeal No. 164/85 has been filed by them because of the judgment and decree having been passed in favour of respondent no I in her suit for possession and injunction. The question which this Court is called upon to determine is whether any right accrued to plaintiff in the property in dispute on account of codicile and what is the effect of their withdrawal of the suit without permission. So far as R. F. A. No. 164/85 is concerned, we have to consider whether the Court was justified in decreeing the suit of respondent no. I without recalling the order of consigning the suit to record after staying the suit sine die.
( 2 ) SHRI Hardit Singh Multani was the original owner of property beaming No. XVI/10204 known as (Anand Bhavan), Gurdawara Road, Karol Bagh, New Delhi. He died on 19th April, 1957. He had executed a Will on 28th October, 1949 bequeathing whole of his property in favour of his wife Smt. Tej Kaur. Shri Hardit Singh Multani s eldest daughter Smt. Sewa Kaur, was married to Shri Harnam Singh. She was living in a portion of this house with her family during the life time of her father Shri Hardit Singh Multani. According to plaintiffs Shri Hardit Singh Multani before his death executed a codicile on 14th April, 1956 (Ex. P. I) in favour of his daughter Smt, Sewa Kaur thereby leaving 1/4th share of the property in her favour i. e. the portion which she alongwith her family was occupying. Smt. Sewa Kaur died on 11th June, 1964 leaving behind Shri Harnam Singh, her husband, two sons and one daughter. After the death of Smt. Sewa Kaur, Shri Harnam Singh, and others filed a suit for partition on 17th September, 1969 listed as Suit No. 374/65, against his mother-in-law Smt. Tej Kaur claiming l/4th share in the property. In that suit of partition Smt. Tej Kaur was proceeded ex parte and preliminary decree was passed on 27th November, 1965. Smt. Tej Kaur having come to know of the ex parte preliminary decree filed an application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside that decree, on ,10th November, 1965. Said application was ordered to be posted on 29th December, 1965 i. e. the next date of hearing. Before that date, Shri Harnam Singh made a statement that a compromise between the parties has been arrived at hence he be permitted to withdraw his suit. The same was dismissed as withdrawn on 27th December, 1965. During the pendency of that suit Shri Gurdeep Singh, D. W. 3 son of Smt. Tej Kaur came to India from West Germany. He pressurised Shri Harnam Singh and Smt. Tej Kaur to settle the dispute amicably. Because of his efforts compromise was arrived at, pursuant to which the said suit was withdrawn. On 29th December, 1965 Smt. Tej Kaur came to know about the said withdrawal of the suit on the ground of compromise, she moved an application under Sections 151 and 152 Civil Procedure Code denying the alleged compromise. However, no order was passed on her application by the Court. It is further alleged that after withdrawal of the said suit a written, agreement was entered into between Shri Harnam Singh and Smt. Tej Kaur on 3rd January, 1966 whereby it was agreed that parties would not dispose of this property without each other s consent. Property would only be disposed of jointly. This Memorandum of Settlement was duly executed and attested by witnesses. After about four years Smt. Tej Kaur decided to dispose of this property without the knowledge of Shri Harnam Singh. She entered into a sale transaction. with Shri Jawahar Singh, brother and General Attorney of Respondent No. I, Smt. Inde
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