RAM BHAJAN SINGH AND ORS.versusMADHESHWAR SINGH (DEAD) BY LRS. AND ORS.

A                     RAM BHAJAN SINGH AND ORS.
                                          v.
           MADHESHWAR SINGH (DEAD) BY LRS. AND ORS.
                                                                                   ,,.-
                                 APRIL 26, 1995

B               [K. RAMASWAMY AND B.L. HANSARIA, JJ.J

          Code of Civil Procedure, 1908

            Order 22 Rules 3 & 4-Bringing on record legal heirs of deceased-Con·
    donation of-Delay in-Limitatiorr-Not as rigorous as one to condone delay
c   in filing appeal-Could be condoned.

           The appellants filed the present suit for declaration that the com·
    promise decree made in an earlier suit (T.S. No. 72/26) was null and void
    and did not bind them. The trial Court dismissed the suit. On appeal, a
D   finding was recorded that the compromise was not vitiated by fraud but
    since the defendants Nos. 7 to 9 had no right in the property, the family
                                                                                   1----·
    arrangement in the compromise was not valid and therefore it did not bind
    the plaintiffs. On second appeal, the High Court held that since the 11th
    defendant died and application for substitution was not filed within the
    limitation, the entire appeal stood abated. Hence this appeal by special
E   leave.

          Allowing the appeal, this Court

          HELD: 1.1. The property belonged to one G who had 1/6th share and
    on his demise his widow came into possession as a limited owner in respect      ,_.,
F   of the lands in dispute. She gifted the properties to defendants Nos. 1 and
    2 on April 4, 1926, which gave rise to Tile Suit No. 72/26 challenging the
    aforesaid gift. Therein, a compromise was affected between the parties and
    each of the four branches was given 3 bighas 3 katas, each out of a total
    extent of 14 bighas, 12 katas. (838-A·Bl
G
           1.2. 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. [838-D]

          1.3. The death occurred on July 9, 1973 and the application for
H   substitution was filed on October 17, 1973, after the expiry of nine days of
                                       836
                   R.B. SINGH v. MADHESHWAR SINGH                     837

limitation. The application for substitution was filed two days after the A
Puja Vacation. It would have been in time, if filed on the day the Court
re-opened after Puja Vacation. Thus, the High Court was wholly wrong in
refusing to condone the delay of nine days in bringing the legal repre-
sentatives on record. The explanation for such delay is not as rigorous as
one to condone delay in filing the appeal. (838-E-F)
                                                                            B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2480 of
1979.

      From the Judgment and Order dated 28.6.78 of the Patna High Court'
in S.ANo. 63 of 1972.
                                                                            c
        Uday Singh, M.P. Jha and R.K. Singh for the Appellants.

        D. Goburdhan for the Respondents.

        The following Order of the Court was delivered :
                                                                            D
       The appeal lie in a short compass. The appellants are the legal
representatives of defendant 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 com-
promise 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 E
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 com-
promise was not vitiated by fraud, but since defendants Nos. 7 to 9 have F
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. '
                                                                            G
      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 0n
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.                              H
    838                    SUPREME COURT REPORTS                   [1995] 3 S.C.R.

A          Admittedly, the property belongs to one Ganga Bishan who had 1/6th
    share in the joint family property and on his demise his widow, Dania!            f

    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 proper-
    ties to the defendants Nos. 1 avd 2 on April 4, 1926, which gave rise to the
B   title Suit No. 72/26 challenging the aforesaid 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
C 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
D   decree does not get vitiated. The question then is whether the second
    appeal stands abated. It is seen that the defendant 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 occurred on July 9, 1973 and the application for
E   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 tie, if filed on the day
    the Court re-opened after Puja vacation.

          Under these circumstances the High Court was wholly illegal in
F   finding tba,t 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.

G G.N.                                                           Appeal allowed.