KLSHUN @ RAM K!SHUN (DEAD) THROUGH LRS. versus BIHARI (DEAD) BY LRS.

Citation: [2005] SUPP. 2 S.C.R. 383 · Decided: 05-08-2005 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Judgment (excerpt)

KlSHUN @ RAM K!SHUN (DEAD) THROUGH LRS. 
A 
v. 
BIHARI (DEAD) BY LRS. 
AUGUST 5, 2005 
B 
[R.C. LAHOTI, CJ, C.K. THAKKER AND P.K. 
BALASUBRAMANY AN, JJ.] 
Code of Civil Procedure, I 908 : 
Section 96(3), Order XXlll, Rule 3, Order XJJJ, Rules I and I (m)-
C 
Appeal against a decree based on a disputed compromise-Maintainabi_lity 
of-Held, when an inquiry has to be made in view of proviso to Order XXIJJ 
Rule 3 as to existence of a disputed compromise, and suit is decreed on basis 
of such com_promise,_ it cannot be held to be a decree passed on consent within 
the meaning of Section 96(3), and bar under the Section would not be 
D 
applicable. 
Appeal-Abatement of-Appellant and one of the defendants dying 
during pendency of second appeal before High Court-No substitution 
application filed-High Court dismissing the appeal-Held, decree passed 
by High Court is a nullity-Second appeal stood abated. 
E 
ln a suit filed by 'B' challenging a gift deed in favour of his brother 
executed by his father, the plaintiff filed an application under Order 
XXIII Rule 3 that the suit be decreed in terms of a compromise stated 
to have been signed by all the parties before the Tehsildar. The defendants 
F 
filed objections denying the compromise. The trial court on an inquiry 
into existence and acceptability of the compromise rejected the application, 
but later, on directions by th_e first appellate court, decreed the suit in 
terms of the said compromise. The first appellate court set aside the 
compromise decree. The plaintiff filed the second appeal. 
During the pendency of the second appeal, defendant No. I and the 
plaintiff died. No steps were taken to bring on record legal representatives 
of either of the two. However, the High Court, after hearing counsel for 
the plaintiff-appellant allowed the second appeal holding that the appeal 
G 
filed by the defendants against compromise decree was not maintainable. 
H 
383 
384 
SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R. 
A 
Aggrieved, legal representatives of defendant No. 2 filed the present 
appeal. 
B 
c 
D 
Allowing the appeal, the Court 
HELD : 1. The decree passed by the High Court in favour of party 
who was dead and against a party who was dead, is a nullity. Legal 
representatives of the parties not having been brought on record, the 
second appeal stood abated. (386-H; 387-A-B) 
2.1. Besides, the High Court was in error in holding that the appeal 
filed by the defendant against the decree of the trial court accepting a 
compromise, which was disputed by him, was not maintainable. When on 
a dispute in that behalf being raised, an enquiry is made and the suit is 
decreed on the basis of a compromise based on that enquiry, it could not 
held to be a decree passed on consent within meaning of Section 96(3) of 
the Code of Civil Procedure, 1908. Therefore, the bar under Section 96(3) 
of the Code could not have application. (387-B-C; 387-F-G) 
2.2. In the instant case, a proper enquiry as to whether there was 
a compromise or an adjustment of the dispute, in terms of the proviso 
to Order XXIII Rule 3 of the Code is warranted. Orders and decrees 
E 
passed by all the courts below are set aside. The suit is remanded to the 
trial court for decision afresh making a proper enquiry into the question 
whether there was a compromise of the disputes between the parties and 
to record a finding thereon in terms of the proviso to Order XXIII Rule 
3 of the Code. (387-G-H; 388-A-B) 
F 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4802-4803 
of 2005. 
From the Judgment and Order dated 24.11.99 and 28.8.2003 of the 
Allahabad High Court in S.A. No. 825/80 and C.M.A. No. 827 of 2003. 
Anurag Kishore, Ashwani Garg and Rajesh Kumar for Appellant. 
T.M. Mohd. Yousuf, Shakil Ahmed Syed and Mohd. Taiyab Khan-for 
the Respondent. 
H 
The Judgment of the Court was delivered by 
KISH UN@ RAM KISHUN v. BIHARI [BALASUBRAMANYAN, J.] 
385 
P.K. BALASUBRAMANY AN, J. : Leave granted. 
A 
I. One Ram Charan had two sons, Ram Kishun called Kishun and Ram 
Prasad called Behari. On 22.09. I 966, Ram Charan gifted a piece ofagricultural 
land to his son Kishun by way of a deed of gift. Thereupon, Behari filed a 
suit for cancellation of that gift imp leading Kishun as defendant No. I and 
his father Ram Charan, as defendant No. 2. He contended that the property 
was joint family property and hence could not be gifted by the father Ram 
Charan and that in any event the deed of gift was got execute

Excerpt shown. Read the full judgment & AI analysis in Lexace.