Partly allowed

Renuka v. Om Lata Kalyan and Ors.

Punjab & Haryana HC5 Sept 2014CR/2496/2011

Case brief

AI extract

What is this about?

In a civil revision under Article 226, the High Court set aside an order dismissing an application for restoration of a property suit. The court held the petitioner's withdrawal order was involuntary, made under pressure, and prejudicial to a minor descendant's rights.

What did the court decide?

The revision was allowed and the application for restoration of the suit was allowed. The suit is to be restored to its original number.

Renuka Vs Om Lata Kalyan and Ors. — Succession and Inheritance | Punjab & Haryana HC (2014)

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In the High Court of Punjab and Haryana at Chandigarh

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Civil Revision No.2496 of 2011 (O&M)

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Date of decision:5.9.2014

Renuka

...Petitioner

Om Lata Kalyan and others

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Respondents

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Coram: Hon'ble Mr. Justice Inderjit Singh

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.....

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Present: Mr. K.S. Sidhu, Senior Advocate with Mr. A.S. Sandhu, Advocate for the petitioner.

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Mr. Arun Jain, Senior Advocate with Mr. Arjun Veer Sharma, Advocate for respondent No.1.

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Mr. Harkesh Manuja, Advocate for respondent No.2.

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Mr. Puneet Sharma, Advocate for respondent No.3.

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Inderjit Singh, J.

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Renuka-petitioner/plaintiff has filed this civil revision petition against Om Lata Kalyan etc.-respondents/defendants under Article 227 of the Constitution of India for setting aside the impugned order dated 8.2.2011 passed by learned Civil Judge (Senior Division), Karnal, the same being wrong, illegal, perverse, erroneous, untenable and unsustainable, whereby the application moved by Renuka petitioner/plaintiff for the restoration of her suit, which was got dismissed as withdrawn on 19.9.2008 under threat, pressure, coercion and under promise of the matter being

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HARPAL SINGH PARMAR 2014.10.18 16:14 I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [2]

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compromised, has been dismissed.

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The brief facts of the case as given in the petition are that the petitioner was married with Nabheet Kalyan (since deceased) in March 2006 and out of this wedlock, Ananya, a minor daughter (respondent No.2) was born in the month of June 2007. Nabheet Kalyan died in a tragic incident on 22.4.2008. Respondent No.1 Om Lata Kalyan in connivance with her husband Ram Kumar Kalyan had forged and fabricated Will dated 26.3.2008 of said Nabheet Kalyan. As per the said Will, deceased Nabheet Kalyan had bequeathed his entire moveable and immovable property except 1/2 share in the land measuring 87 Kanals 19 Marlas in Village Kairwali to respondent No.1 Smt. Om Lata Kalyan-his mother and 1/2 share of above said land in favour of Ananya, his minor daughter. As per the Will, said Nabheet Kalyan had appointed Smt. Om Lata Kalyan, respondent No.1 as the executor along with the custody of his minor daughter Ananya. The said Will was fabricated because although Ananya, the minor daughter and Om Lata Kalyan were entitled to 1/3^rd share each, yet the Will depicted 1/2 share each. Thus, the petitioner on the allegations that the Will in question was forged and fabricated, filed a suit for declaration with a consequential relief of permanent injunction that the petitioner along with Smt. Om Lata Kalyan and Ananya was the owner in equal shares of the properties as mentioned in Annexure-'A', which was filed on 2.6.2008. The suit was sent to Permanent Lok Adalat. In the said Lok Adalat, no amicable settlement was reached at and it was observed by the Presiding Officer that since the guardian of minor had not been appointed and further since the interest of Om Lata

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HARPAL SINGH PARMAR 2014.10.18 16:14 Kalyan was adverse to that of the minor as her guardian, the Lok Adalat, I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [3]

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sent back the suit to the learned trial Court and directed the parties to appear before the trial Court on 19.9.2008. On that day, the statement of the petitioner-plaintiff was recorded with respect to some compromise and thus the suit was ordered to be dismissed as withdrawn. The statement given by the plaintiff on 19.9.2008 was under threat, pressure, coercion and deception played by Om Lata Kalyan and her husband Ram Kumar Kalyan. She was assured and further given a firm understanding that she along with her minor daughter would be given due share from the property of late Nabheet Kalyan. After dismissal of the suit, Om Lata Kalyan and her husband started giving threat etc. and claimed that the claim of the petitioner and Ananya fell flat on the ground and she had no right in the property. Then the plaintiff-petitioner moved application dated 18.10.2008 for restoration of the suit. The fraud has been highlighted in that application.

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In this case reply was taken from the respondents. The issues were framed. The parties led their evidence and the learned Civil Judge (Senior Division), Karnal vide order dated 8.2.2011 dismissed the application. Against this order, the revision petition has been filed.

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Notice of motion has been issued. The respondents have been represented by respective counsel and contested the petition.

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I have heard learned counsel for the parties and have gone through the record.

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From the impugned order passed by the learned Civil Judge (Senior Division), Karnal, I find that plaintiff-Renuka filed a suit for HARPAL SINGH PARMAR 2014.10.18 16:14 declaration challenging the validity of the Will dated 26.3.2008 alongwith I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [4]

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consequential relief of permanent injunction, which was dismissed as withdrawn vide order dated 19.9.2008. In that suit, a dispute qua the property of the husband of the plaintiff was involved as well as right of the defendant Ananya minor daughter of the plaintiff and deceased Nabheet Kalyan were also involved. The suit was filed on 2.6.2008 and after appearance of the defendants, the matter was sent to Permanent and Continuous Lok Adalat, but the same could not be settled as guardian of minor had not been appointed so far by the Court and it was also observed that the interest of defendant No.1 was adverse to that of the minor and she could not represent minor as guardian. The Permanent Lok Adalat sent the case back to the trial Court for 19.9.2008 and on that day, statement of the plaintiff was recorded with respect to this compromise and the case was ordered to be dismissed as withdrawn.

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As per the facts brought to the notice of this Court, the husband of the plaintiff was killed in a tragic incident on 22.4.2008 by the brother of the plaintiff and brother of the plaintiff was killed by father-in-law of the plaintiff/present petitioner. In that incident, the present petitioner also received fire arm injuries and she remained under observation of various doctors for about a month and two major operations had already been conducted and one major operation is still to be conducted.

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Learned senior counsel for the petitioner argued that when the petitioner returned back to home, pressure was put on her for future prospectus of her daughter and in this backdrop, she agreed about the proposed compromise, wherein the rights of her daughter along with her HARPAL SINGH PARMAR 2014.10.18 16:14 custody were proposed to be given to the present petitioner. In furtherance I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [5]

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thereof, the present petitioner agreed to execute affidavit as and when required by defendant No.1 and Ram Kumar Kalyan and she was also pressurized by taking the excuse of false implication of her parents in criminal case FIR No.182 dated 23.4.2008, which was registered at the instance of Ram Kumar Kalyan father-in-law of the present petitioner. It is argued by the learned senior counsel for the petitioner that in case the petitioner would not agree for the settlement, then her entire parental family would be involved in a false criminal case and if she would speak up truth, then she would be done to death. Learned senior counsel for the petitioner argued that, at that time, it was settled that she would be entitled to her share in the property left by Nabheet Kalyan and the interest of minor daughter Ananya would not be affected, in any manner, and custody of the minor will remain with the present petitioner. However, later on a false and fabricated Will was attached. Learned senior counsel for the petitioner argued that though she was told that the rights of the minor will be protected, however, when she withdrew the suit, no such compromise has been given effect to.

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After hearing learned counsel for the parties and from the record, I find that first of all in the present case in the civil suit Ananya minor daughter was made defendant and the Permanent Lok Adalat sent the case back for appointment of Court guardian because defendant No.1 has adverse interest against minor Ananya. In that civil suit, the interest of the minor has not been protected and rather, it has been taken note of that if the suit is not restored because the suit was filed by the present petitioner to challenge the Will in favour of defendant No.1 i.e. mother-in-law of the

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HARPAL SINGH PARMAR present petitioner, the rights of the minor will be affected. It is clear from 2014.10.18 16:14 I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [6]

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the evidence on record that no compromise was effected before the Permanent Lok Adalat and the matter was sent back for 19.9.2008, on which date the suit had been withdrawn by making statement by the plaintiff. The statement of Renuka has been placed on record as Annexure-P.2, in which it is stated that she has no objection if the land is mutated in favour of Om Lata-defendant No.1 on her consent by way of an affidavit and the agricultural land in Village Kairwali and similarly the same has been mutated in favour of defendant No.2 to the extent of half share and half share mutated in favour of defendant No.1 by way of said affidavit. Residential plot bearing No.805 situated in Sector 9, Urban Estate, Karnal, also stands transferred in favour of defendant No.1 on her consent by way of separate affidavit. All these properties were owned by her late husband Shri Nabheet Kalyan, who died on 22.4.2008. In view of the compromise, she does not claim any right, title or interest in the properties left behind by her late husband. She does not dispute the contents of Will in so far as the devolution of the property is concerned. She have further decided neither to claim any maintenance from her in-laws, namely, Shri Ram Kumar Kalyan and Smt. Om Lata nor she received anything from them for her prolonged treatment. In the statement it has been mentioned that she also does not intend to reside with them at any time.

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A perusal of this statement shows that Renuka-present petitioner has no right to compromise regarding the share of the property of Ananya. Firstly, as was not the guardian of Ananya in that case. Secondly, no permission was taken from the Court for compromise on behalf of the HARPAL SINGH PARMAR minor. Thirdly, at that time, minor Ananya was shown in the guardianship 2014.10.18 16:14 I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [7]

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of Smt. Om Lata Kalyan-defendant No.1, who has adverse interest against the interest of Ananya. Fourthly, the Court as per the record has not appointed any other person as Court guardian of Ananya. Further more, it is admitted fact that FIR was registered against Ram Kumar Kalyan for killing the brother of the present petitioner and criminal case was also registered against the parents of the present petitioner. The Court is to see in the facts and circumstances whether this statement can be treated as voluntary or under some pressure.

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A perusal of the statement itself shows, in the facts and circumstances, that the present petitioner made this statement under pressure and coercion because there is threat to involve her parental family etc. A perusal of the statement further shows that the present petitioner has not been given anything under the compromise. The statement of the petitioner cannot be held as voluntary in the facts and circumstances of the present case and it looks that this statement has been given under the pressure and coercion. Firstly, she lost her husband. Secondly, she was also injured and has received fire arm injuries and remained under treatment. Thirdly, her parents were involved in criminal case. Fourthly, she was not given any share in the property of her husband nor her minor daughter was given due share in the property. The petitioner has also lost her brother in the incident. There is also allegations that Ram Kumar Kalyan-father-in-law of the present petitioner has good relations with high rank officers and political high-ups. The petitioner has stated that no compromise was finalized.

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On the other hand, the case of the respondents is that talks of HARPAL SINGH PARMAR compromise happened before 2.6.2008 and all talks of compromise would 2014.10.18 16:14 I attest to the accuracy and authenticity of this document Chandigarh

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Civil Rev. No.2496 of 2011 (O&M) [8]

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have come to an end on filing of the suit. The petitioner had executed affidavits on 26.5.2008 as well as on 27.5.2008. It has also come on the record that Shri R.S. Cheema, Advocate, who was instrumental in the compromise, left India for Canada on 28.5.2008 and thereafter, no further talks are shown to be proved for the purpose. If it is taken, no final compromise was effected before filing of the suit and no compromise after filing of the suit then as to why the present petitioner gave the statement on 19.9.2008 in the Court.

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As already discussed, the statement made by the petitioner cannot be held as voluntary. Even the share of the minor is stated to have been taken away by withdrawal of the suit. The rights of the parties in the present case, in the facts and circumstances, including the minor should be determined on merits and the order passed by the learned Civil Judge (Senior Division), Karnal is not as per law and the same is set aside.

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Finding merit in the petition, the same is allowed. The application filed by the petitioner before the lower Court for restoration of the suit is allowed. The suit be restored and registered to its original number and the learned trial Court is directed to dispose of the suit as per law after giving opportunity to the parties.

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September 5, 2014. hsp

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(Inderjit Singh) Judge

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HARPAL SINGH PARMAR 2014.10.18 16:14 I attest to the accuracy and authenticity of this document Chandigarh

Renuka v. Om Lata Kalyan and Ors.

Case brief

What is this about?

What did the court decide?

Renuka v. Om Lata Kalyan and Ors.

Case brief

What is this about?

What did the court decide?

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