Judgment:
Sham Sunder, J.
1. This revision-petition, under Article 227 of the Constitution of India, is directed, against the order dated 24.01.09, rendered by the Court of Civil Judge (Junior Division), Chandigarh, vide which, it dismissed the applications under Section 151 and under Order 23, Rule 3 of the Code of Civil Procedure, filed by the plaintiff-applicant.
2. The facts in brief are that Rai Bahadur Baini Chand Katoch son of Late Dhani Ram, former Inspector General of Prisons, Punjab and Delhi had constructed house No. 88, Sector 2-B, at Chandigarh, out of his own personal sources. He died intestate on 29.08.65, leaving behind first class legal heirs. Subsequently, on 25.01.2000, Mrs. Parvati Katoch widow of Rai Bahadur Baini Chand Katoch, also died. Before her death Mrs. Parvati Katoch, had executed a Will dated 04.09.99, in which, she bequeathed her 1/8 share, in the property, known as H. No. 88, Sector 2-B, Chandigarh, equally to her grand children namely Sameer Katoch son of Gautam Katoch and Ambika Katoch d/o Gautam Katoch. Upon the death of Mrs. Parvati Katoch, a dispute arose, amongst the aforesaid legal heirs regarding the genuineness of the Will dated 04.09.99 left by her in which she had bequeathed her 1/8 share equally to her two grand-children. One of the legal heirs, Rajinder Singh Katoch, filed a civil suit titled as 'Rajinder Singh Katoch v. Gautam Katoch', pending in the Court of Civil Judge (Junior Division), Chandigarh, challenging the legality and validity of the Will left behind by Mrs. Parvati Katoch. On 06.06.08, Mrs. Pushpa Katoch widow of Baldev Singh Katoch, deceased son, Capt. Vik-ram Singh Katoch, son, Col. Yoginder Katoch, son, Dr. Kanwal Katoch, son, Mrs. Asha Manhas, daughter, Mr. Gautam Katoch, son, Mr. Anirudh Katoch, son of Baldev Singh Katoch, deceased son, and Mrs. Sanjivani Rathore, daughter of Baldev Singh Katoch, deceased son, jointly and severally agreed to end the family dispute, on certain terms and conditions. One of the conditions was that all the respondents mentioned above, accepted the Will dated 04.09.99, executed by Mrs. Parvati Katoch, widow of Rai Bahadur Baini Chand Katoch, in favour of Sameer Katoch son and Ambika Katoch daughter of Gautam Katoch, as correct and that her 1/8 share in the property stood bequeathed equally to Sameer Katoch and Ambika Katoch. It was further stated that family settlement was reduced into writing on 06.06.08, which was signed by Mrs. Pushpa Katoch, Capt. Vikram Singh Katoch, Col. Yoginder Katoch, Dr. Kanwal Katoch through special power of attorney, Mrs. Asha Mannas, through power of attorney, Mr. Gautam Katoch, Anirudh Katoch, and Mrs. Sanjivani Rathore.
3. An application dated 30.07.08, was filed by defendants No. 1 to 8 and 12 to 13, that the family settlement may kindly be accepted. On 22.08.08, the Counsel for defendants No. 1 to 8, 12 and 13 moved an application under Order 23, Rule 3, that the application be allowed.
4. In reply to the application, the plaintiff/respondent No. 1, stated that he was not a party to the alleged compromise i.e. family settlement. In addition to this Mrs. Asha Mannas, defendant Noi8, also stated that she was not a party to the compromise/family settlement. It was further stated that the averments contained in the application that the defendants had accepted the Will dated 04.09.99 executed by Late Smt. Parvati Katoch, were wrong and against the factual position.
5. Asha Mannas also moved an application denying the execution of the family settlement.
6. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court dismissed the application, referred to above.
7. Feeling aggrieved, the instant revision-petition, has been filed by the revision-petitioners.
8. I have heard the Counsel for the revision-petitioners, and have gone through the record of the case, carefully.
9. The Counsel for the revision-petitioners, submitted that when some of the legal heirs of the deceased entered into a compromise and a family settlement was arrived at, the Court below, was required to accept the same. He further submitted that the Court below, was wrong, in coming to the conclusion that the provisions of Order 23, Rule 3 of the Code of Civil Procedure, were not attracted to the application moved. He further submitted that the order being illegal, was liable to be set aside.
10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the revision-petitioners, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded, hereinafter. The civil suit, referred to above, was filed, by the plaintiff namely Rajinder Singh Katoch. The Will allegedly executed by Parvati Katoch, in favour of her two grand-children was challenged by him in that civil suit. During the pendency of that civil suit, some of the legal heirs, referred to above, entered into a compromise to end disputes. Family settlement was also reduced into writing. Said compromise and family settlement could not be said to be binding upon Rajinder Singh Katoch and Asha Manhas, two class I legal heirs, who were not a party to the same. Under these circumstances, the Court below, was right in holding that it could not be said that there was a compromise amongst all the legal heirs of the deceased. There was a partial compromise. During the pendency of the suit, that compromise could not be accepted by the Court below, as the right and title of the parties to the same were still under adjudication. Only after the final decision of the case, the exact shares of the plaintiff and the defendants in the property in dispute would be determined. During the pendency of the suit, the property, in dispute, could not be allowed to be dissipated. Even it is evident from Annexure PI, family settlement that the parties to the same after the acceptance thereof by the Court want to sell the suit property, a residential house. The proviso engrafted to order XXIII, Rule 3 CPC reads as under:
Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit):
(Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment):
(Explanation,- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule).'
11. In view of the aforesaid proviso, since the compromise/family settlement has been denied by the plaintiff, and Asha Minhas, one of the defendants, two class I legal heirs, it was for the Court to decide, whether the adjustment or satisfaction had actually been arrived at. The Court below, after taking into consideration the facts and circumstances of the case, as also the specific denial of the aforesaid two class I legal heirs, in my opinion, rightly came to the conclusion that the application for certifying the compromise, could not be granted, as the same did not meet the requirements of Order XXIII, Rule 3 CPC. The order impugned, does not suffer from any illegality, material irregularity or perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The same is liable to the upheld.
12. For the reasons recorded above, the revision-petition, is dismissed. The trial Court is however, directed to expedite the trial of the case and decide the same preferably within a period of six working months from the date of receipt of a copy of the order, so that family dispute, between the parties, is put an end to for ever, as early as possible.