TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 731
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....ohan Singh (original defendant No. 2) for a declaration that he was the exclusive owner in respect of land admeasuring 11 kanals 17 marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road and other properties referred to in the Schedule. He asserted that there was a family settlement with the intervention of respectable persons and family members, whereunder his ownership and possession in respect of the suit land including the constructions thereon (16 shops, a samadhi of his wife - Gurcharan Kaur and one service station with boundary wall) was accepted and acknowledged. Structures were erected by him in his capacity as owner of the suit land. It is stated that in the year 1970 after the purchase of suit land, some dispute arose between the brothers regarding the suit land and in a family settlement arrived at then, it was clearly understood that the plaintiff - Harbans Singh would be the owner of the suit property including constructions thereon and that the name of Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) respectively would continue to exist in the revenue record as owners to the extent of half share and the plaintiff would....
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....n record being his legal heirs. The trial Court vide judgment and decree dated 19.1.2000, partly decreed the suit in the following terms: "RELIEF 30. In view of my discussion on various issues above, the suit of the plaintiff partly succeeds and partly fails. Therefore, his suit is decreed partly to the extent that he is declared to be owner in possession of khasra no. 935/1/1/2 (518) and to the extent of ½ share in khasra no. 935/1/1/1 (519) with construction there upon. Keeping in view the relationship between the parties and the circumstances of the case, no order as to cost. Decree sheet be prepared accordingly. File be consigned to the record room." 4. Aggrieved by this decision, the appellants/plaintiffs filed first appeal before the District Judge, Sangrur being Civil Appeal No. 45 of 522000 B.T. No. 60 of 1162001. The first appellate Court, after reappreciating the pleadings and evidence on record, was pleased to allow the appeal and modify the judgment and decree passed by the trial Court. The first appellate Court declared the original plaintiff as owner of the suit land alongwith constructions including 16 shops, a service station and boundary wall with samad....
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....which in turn answered the said question vide judgment dated 7.8.2019 Reported as (2019) 8 SCC 729 in favour of the plaintiff. As a result, the matter has been placed before us for consideration of the appeal on its own merits. 7. The appellants would contend that the High Court disposed of the second appeal in a casual manner and more so, without dealing with the finding of fact recorded by the first appellate Court in favour of the plaintiff. It is urged that the first appellate Court, after noticing the admitted factual position, proceeded to first examine the question whether the document dated 10.3.1988 (Exhibit P6) was executed by the parties or not. That fact has been answered in favour of the plaintiff (appellants) after analysing the evidence on record. It has been held that the stated document was indisputably executed by the parties. The next question considered by the first appellate Court was whether the stated document required registration or not, which has been justly answered in favour of the plaintiff (appellants) on the finding that it was merely a memorandum of family settlement and not a document containing terms and recitals of the family settlement mad....
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.... there was no preexisting title in favour of the plaintiff in respect of the suit property, as the same was purchased in the name of concerned defendant by way of a registered sale deed. The parties were not in possession of Joint Hindu Family property as such and therefore, the question of partition of that property does not arise. The plea that there was no Joint Hindu Family property was taken by the plaintiff in the replication filed before the trial Court. This plea was taken in the context of the assertion made by the defendants in the written statement that the suit property was jointly owned by Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2). The contesting respondents have reiterated the stand that there was no family settlement in 1970, as stated by the plaintiff and that the signature of the defendant No. 2 appearing in document Exhibit P6 is forged and fabricated. Further, the High Court has justly nonsuited the plaintiff and preferred to restore the partial decree passed by the trial Court on the conclusion that the document Exhibit P6 is inadmissible in evidence, as it has not been registered despite the transfer of title in immovable....
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....ndi is of concerned defendant, Harbans Singh (plaintiff) had constructed 16 shops, samadhi of his wife - Gurcharan Kaur and a boundary wall on the property and was in possession thereof. Pertinently, the trial Court had opined in paragraph 24 of its judgment that all the three brothers - Harbans Singh (plaintiff), Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2), as noted in Exhibit P6, owned various properties, on which possession of Harbans Singh (plaintiff) being the eldest brother is admitted. However, it was a permissive possession. The first appellate Court has also opined in paragraph 16 of the judgment that Harbans Singh (plaintiff) came in possession of the suit property with the consent of the defendants. Notably, this finding of fact has not been disturbed by the High Court. That apart, it is established from the record that plot at Prem Basti belonged to Harbans Singh (plaintiff), which was given to Sohan Singh (original defendant No. 2) after taking possession thereof from Mohan Singh (original defendant No. 1). Further, plot purchased by Harbans Singh (plaintiff) in the name of his son was given to Mohan Singh (original defendant No. 1....
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....arty, but a document which is not disputed by the party and there is no admission regarding the acceptance of a right and suit is based on such a document under which the right is transferred to the plaintiff in a property in which he has no preexisting right, then it would not require registration as is the ratio of the judgment of the Hon'ble Supreme Court in the case of Som Dev and others (supra). In view of this proposition of law if the matter is considered, the question of law, as framed, has to be answered in favour of the appellants. In the present case, it may be noticed that the property in dispute was purchased by way of two sale deeds and the ownership of the parties was duly reflected in the revenue record. The plaintiff claimed right to the property under the deed of family settlement Exhibit P6. Thus he claimed that the defendants had relinquished their right in the immovable property in his favour under the memorandum of family settlement which was alleged to have been executed much earlier. In any case, it has to be held that the document transferring title in an immovable property worth more than Rs. 100/rupees, even if it was by way of relinquishment, the same ....
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....The first appellate Court thus accepted the stand of the plaintiff that in the year 1970, after purchase of land, dispute arose between the parties regarding the suit land and in that family settlement, plaintiff was held to be owner of the suit property including its constructions. The first appellate Court in that context observed thus: "16. ... The specific case of the plaintiff that he constructed with his personal money 16 shops on the suit land, one service station with boundary wall and also samadh of Smt. Gurcharan Kaur. It is admitted that samadh of Gurcharan Kaur is in the suit property. If the plaintiff was not acknowledged the owner of the suit property then there was no question of construction of samadh of Gurcharan Kaur his wife by the plaintiff on the suit property. So the version of the defendant that no dispute arose in the year 1970 and no family settlement took place can not be accepted..." The first appellate Court then analysed the evidence of defendant witnesses and held that the same were not reliable or trustworthy as they did not know any fact regarding the suit property. The first appellate Court then adverted to another crucial fact and noted t....
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.... proves that Harbans Singh was being considered as owner in possession of the suit property. Prior to execution of the said document on that day they compromised not to raise any dispute regarding his ownership. So this document was a writing with regard to fact which was already being considered and admitted by the parties. So it cannot be said that this document, copy of 20 which is Ex.P6 created right for the first time in the immovable property. ....." (emphasis supplied) And again, as follows: " 16. ..... Since the parties were closely related to each other and document was executed with regard to the factwhich they were already admitting so I am of the view that document dated 10.3.1988 copy of which is Ex.P6 did not require registration. In case Hans Raj cited supra the matter was got compromised and document itself created right in the property. In case Hari Singh vs. Shish Ram & others cited supra it was held that document between the parties was partitioned and consideration was passed from one party to other. In Shishpal vs. Vikram cited supra it was held that during life time of Gyani Ram the plaintiff filed suit so there could not be any family settlement. In case....
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....above, it is amply clear that the High Court has not dealt with the factual aspects adverted to by the first appellate Court to conclude that the document Exhibit P6 was only a memorandum of family settlement and not a document containing the terms and recitals of a family settlement. Being the former, no registration was necessary. For which reason, relief claimed by the plaintiff founded on the family settlement between the real brothers arrived at in 1970, acted upon without any exception and documented on 10.3.1988, ought to follow. 15. The first appellate Court has also justly opined that the parties had acted upon the stated family settlement and if we may say so, to the prejudice of the other party. In that, the property in the name of plaintiff at Prem Basti was given to Sohan Singh (original defendant No. 2), which was otherwise in possession of Mohan Singh (original defendant No. 1). Further, the plot purchased by the plaintiff in the name of his son was given to Mohan Singh (original defendant No. 1) and his wife, but that plot was admittedly sold by them to one Surjit Kaur. Being a case of a family settlement between the real brothers and having been acted upon by them....
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....tead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ....." (emphasis supplied) I....
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....the parties who have taken advantage under the agreement from revoking or challenging the same. In paragraph 35, the Court noted as follows: "35. ... We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. ....." And again, in paragraph 36, the Court noted as follows: "36. ... Yet having regard to the near relationship which the brother and the soninlaw bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one. In the instant case also putting the case of Respondents Nos. 4 and 5 at the highest, the position is that Lachman died leaving a grandson and two daughters. Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to ben....
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.... duly analysed in the reported judgment. The question formulated by the High Court, in our opinion, stands answered in favour of the appellants (plaintiff), in light of exposition of this Court in Kale (supra). A priori, we have no hesitation in affirming the conclusion reached by the first appellate Court that the document Exhibit P6 was nothing but a memorandum of a family settlement. The established facts and circumstances clearly establish that a family settlement was arrived at in 1970 and also acted upon by the concerned parties. That finding of fact recorded by the first appellate Court being unexceptionable, it must follow that the document Exhibit P6 was merely a memorandum of a family settlement so arrived at. Resultantly, it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned ....
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....the decree would not require registration. (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question. (5) If the property dealt with by the decree be not the "subjectmatter of the suit or proceeding", clause (vi) of subsection (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated." In the present case, as noted earlier clause (v) of Section 17(2) is attracted, which pertains to execution of any document creating or extinguishing right, title or interest in an immovable property amongst the family members. Thus, the dictum in Kale (supra) is attracted in the fact situation of this case. 19. Considering the above, we have no hesitation in concluding that the High Court committed manifest error in interfering with and in particular reversing the wellconsidered decision of the first appellate Court, ....