2018 (2) TMI 2097

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....ty No. 61, Old Gupta Colony, Delhi (hereinafter, 'Delhi property'). Plaintiff's case 3. Plaintiff submits that in March 1993, a family settlement was entered into, whereby the Plaintiff was given absolute rights in the Chandigarh property, D1 was given absolute rights in the ground floor of the Delhi property and D2 was given absolute rights in the first floor of the Delhi property. This family settlement dated 28th March, 1993 was drawn and executed by the father as his last Will and in supersession of his Will dated February, 1986. The father, the Plaintiff and D1 and D2 were the signatories to the said document and it was agreed between the parties that the wishes of father contained in the said document would be given effect to after his lifetime. Father of the parties passed away on 2nd March, 2010. 4. Plaintiff's case is that he had exclusive possession of the Chandigarh property and that he had partly rented out the said property. He had retained a small portion of the property with himself. Plaintiff further pleads that in April 2008, he had sent a Power of Attorney to the Defendants in order to enable them to get the Delhi property mutated in their names....

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....Plaintiff and Defendants 1 & 2." Stand of Defendant Nos. 1 & 2 5. D1 & D2 contended that there was a Will dated 6th February, 1986 and thereafter a codicil which was also executed on 3rd December, 1995. As per the said codicil, the Defendants claimed equal rights in the Chandigarh property. Apart from this, the defence raised by the Defendants is that the Plaintiff had moved away to USA with his son and had, therefore, not expected any estate from the father. Following issues were framed in the suit: "1. Whether the suit of the Plaintiff is bad for misjoinder of the Defendant No. 3 being not the legal heir of the deceased parents of the Plaintiff and Defendant Nos. 1 and 2? OPD-2. 2. Whether the suit of the Plaintiff is bad for non-joinder of Smt. Pushp Lata Kataria and Smt. Saroj Gulati? OPD-2 3. Whether the family settlement dated 28th March, 1993 is binding on the parties either as the Settlement Deed or a Partial Testamentary Document? OPP 4. Whether late Shri Jiwan Dass Batra executed a codicil dated 3rd December, 1995? OPD-2 5. Whether the Plaintiff is entitled to the declaration as prayed for in the plaint? OPP 6. Whether the Plaintiff is entitled to permane....

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.... The said document is not stamped properly, as the stamp paper is a photocopy as admitted by the Plaintiff in his cross examination. d. That the family settlement is a document which requires registration and since the same is not registered, it cannot be read in evidence as per Section 49 of the Registration Act. e. D2 relies upon emails dated 2nd March, 2008 to the effect that the Plaintiff is willing to give up 1/4th share in the Chandigarh house. 10. In reply, the Plaintiff submits that D2 was working in State Bank of India and in fact relied upon the Will in order to avail reimbursements from the bank. He relies upon Ex. PW-1/3 to submit that D2 cannot act contrary to the said document. He further relies on cross examination of the D2 in respect of the Ex. PW-1/3. Analysis and findings 11. A perusal of the record reveals that the original family settlement has been placed on record, and the same bears the signatures of all the brothers and father. The Court has seen the original family settlement and the same is exhibited as Ex. P-1. The signatures of D1 & D2 are admitted. The signatures appear on both pages of the document. There can be no doubt that the family settlem....

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....o technicalities are to come in the way of enforcing family settlements. The observations of the Supreme Court are: "10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangements may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself doe....