No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7764 OF 2014
Ravinder Kaur Grewal & Ors. ...Appellant(s)
Versus
Manjit Kaur & Ors. ...Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1.This appeal emanates from the judgment and decree dated
27.11.2007 passed by the High Court of Punjab and Haryana at
Chandigarh
1
in R.S.A. No. 946/2004, whereby the second appeal
filed by the respondent Nos. 1 to 3 (heirs and legal
representatives of Mohan Singh original defendant No. 1) came
to be allowed by answering the substantial question of law
formulated as under:
“Whether the document Ex.P6 required registration as by
way of said document the interest in immovable property
worth more than Rs.100/ was transferred in favour of
the plaintiff?”
1 For short, “the High Court”
2
2.Briefly stated, the suit was filed by the predecessor of the
appellants herein Harbans Singh, son of Niranjan Singh,
resident of Sangrur, Punjab against his real brothers Mohan
Singh (original defendant No. 1) and Sohan 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
3
defendant No. 2) respectively would continue to exist in the
revenue record as owners to the extent of half share and the
plaintiff would have no objection in that regard due to close
relationship between the parties. However, the defendants raised
dispute claiming half share in respect of which Harbans Singh
(plaintiff) was accepted and acknowledged to be the exclusive
owner and as a result of which it was decided to prepare a
memorandum of family settlement incorporating the terms
already settled between the parties, as referred to above. The
stated memorandum was executed by all parties on 10.3.1988.
However, after execution of the memorandum of family
settlement dated 10.3.1988, the defendants once again raised
new issues to resile from the family arrangement. As a result,
Harbans Singh (plaintiff) decided to file suit for declaration on
9.5.1988, praying for a decree that he was the owner in
possession of the land admeasuring 11 kanals 17 marlas
comprising of khasra Nos. 935/1 and 935/2 situated at Mohalla
Road. An alternative plea was also taken that since plaintiff was
in possession of the whole suit property to the knowledge of the
defendants openly and adversely for more than twelve years, he
had acquired ownership rights by way of adverse possession.
4
3.The suit was resisted by the defendants by filing written
statement. Harbans Singh (plaintiff) filed replications. On the
basis of rival pleadings, the Civil Judge (Junior Division), Sangrur
in Suit No. 187/1988 B.T. No. 185 of 18195 (18195) framed
following issues:
“1.Whether the plaintiff is owner in possession of suit
land? OPP
2.Whether there was any family settlement between the
parties on 10.3.1988 and memo of family settlement
was executed by parties on that day? OPP
3.Whether the plaintiff constructed shops, a service
station and boundary wall around the disputed
property? OPP
4.Whether the plaintiff has become owner of suit land by
adverse possession? OPP
5.Whether the property in dispute was purchased out by
the income of Joint Hindu Family coparcenary
property and construction on the suit land was also
purchased by Joint Hindu Family coparcenary
property? OPD
6.Whether Sohan Singh, Mohan Singh and Harbans
Singh constitute a Joint Hindu Family? OPD
7.Whether the defendants are estopped from denying the
execution of memo of family settlement by their act
and conduct? OPP
8.Relief.”
During the pendency of the suit, Harbans Singh (plaintiff) expired
and, therefore, the appellants herein were brought on 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
5
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 samadhi in the land. The operative order passed by the
first appellate Court, dated 29.11.2003, reads thus:
“18. In the light of the above discussion, the appeal is
allowed and the judgment passed by the learned trial
court is modified and the suit of the plaintiff is decreed.
The plaintiff is declared owner of the land measuring 11
kanals 17 marlas comprised in rectangle and killa no.
935/1/1/1 (519), 935/1/1/2 (518) situated in Mehlan
Road, Sangrur along with construction including 16
shops, a service station and boundary wall with samadh
in the land. In view of the peculiar circumstances of the
case the parties are left to bear their own costs. Decree
sheet be prepared and copy of the judgment be placed on
the file of the learned trial court and the same be
returned immediately to the successor court of Smt.
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Harreet Kaur PCS, the then Civil Judge (Junior Division),
Sangrur. This court file be consigned to the record
room.”
5.The respondent Nos. 1 to 3 being legal representatives of
Mohan Singh (original defendant No. 1) preferred second appeal
before the High Court being R.S.A. No. 946/2004. The learned
single Judge answered the substantial question of law
reproduced in paragraph 1 above in favour of the said
respondents. The High Court was pleased to set aside the
conclusion recorded by the first appellate Court and opined that
the document which, for the first time, creates a right in favour of
plaintiff in an immovable property in which he has no pre
existing right would require registration, being the mandate of
law. Accordingly, the second appeal came to be allowed and the
judgment and decree passed by the lower appellate Court was set
aside, thereby restoring the decree passed by the trial Court, vide
impugned judgment dated 27.11.2007.
6.The appellants have questioned the correctness of the view
taken by the High Court and in particular, reversing the
conclusion reached by the first appellate Court. When the
present appeal was taken up for hearing, the Court referred the
matter to a larger Bench of threeJudges to answer the question
7
as to whether the acquisition of title by adverse possession can
be taken by plaintiff under Article 65 of the Limitation Act, 1963
and is there any bar under the Limitation Act to sue on aforesaid
basis in case of infringement of any rights of a plaintiff. The
appeal accordingly proceeded before the threeJudge Bench,
which in turn answered the said question vide judgment dated
7.8.2019
2
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
2 Reported as (2019) 8 SCC 729
8
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 made thereunder. For that, the first appellate Court
noted that the plaintiff had constructed 16 shops and a samadhi
including boundary wall on the suit land on his own, which fact
was indisputable and established from the evidence on record.
Further, the plaintiff was in possession of the suit land. Even
this finding is supported by the evidence on record and is well
established. It is also established from record that as per the
family settlement, the plot in Prem Basti belonging to Harbans
Singh (plaintiff) was given to Sohan Singh (original defendant No.
2), which was in possession of Mohan Singh (original defendant
No. 1) and that another plot purchased by plaintiff in the name of
his son Vikramjit Singh was given to Mohan Singh (original
defendant No. 1) and his wife. Notably, the Defendant Witness
No. 1 (DW1) admitted that the said property was sold thereafter
to one Surjit Kaur. In substance, it is established that the
parties had acted upon the family settlement, which was
recorded in the form of document Exhibit P6 being a
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memorandum of family settlement. In other words, the
concerned parties had acted upon the family arrangement as per
the settlement terms decided in 1970 and reinforced by the
document Exhibit P6 (memorandum of family settlement). Being
a memorandum of family settlement, it was not required to be
registered and, in any case, the parties having acted upon the
terms of the said settlement to the prejudice of the other party, it
was not open to them to resile from the said arrangement. Thus,
they are estopped from disowning the arrangement already
reached, acted upon and so recorded in the memorandum of
family settlement. Thus understood, the plaintiff was accepted
and acknowledged to be the owner of the suit property by all the
family members who were also party to the memorandum of
family settlement (Exhibit P6). The appellants have placed
reliance on the decision of this Court in Kale & Ors. vs. Deputy
Director of Consolidation & Ors.
3
They pray for restoration of
the decree passed by the first appellate Court and setting aside
the impugned judgment.
8.On the other hand, the respondent Nos. 1 to 3 would
contend that the High Court has rightly considered the document
3 (1976) 3 SCC 119
10
Exhibit P6 as containing terms and recitals of family settlement
and for which reason it was essential to get the same registered.
It is urged that 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
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title in immovable property worth more than Rs.100/. In other
words, the High Court answered the substantial question of law
against the plaintiff and as a result of which it rightly allowed the
second appeal filed by the defendants (respondent Nos. 1 to 3).
The view so taken by the High Court is unexceptionable.
9.We have heard Mr. Manoj Swarup, learned senior counsel
for the appellants and Mr. Parveen Kumar Aggarwal, learned
counsel for the respondents.
10.The core issue involved in this appeal is: whether the
document Exhibit P6 was required to be registered as interest in
immovable property worth more than Rs.100/ was transferred in
favour of the plaintiff?
11.It is not in dispute that the parties are closely related.
Mohan Singh (original defendant No. 1) and Sohan Singh
(original defendant No. 2) were real brothers of Harbans Singh
(original plaintiff). Original defendant No. 4 – Harjinder Kaur is
the wife of Sohan Singh (original defendant No. 2). The father of
the plaintiff and defendant Nos. 1 and 2 died during minority of
defendant Nos. 1 and 2. The defendants had proved the copy of
sale deed dated 16.4.1970 (Exhibit DW3/A), whereby Mohan
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Singh (original defendant No. 1) and Sohan Singh (original
defendant No. 2) purchased land admeasuring 5 kanals 19
marlas comprised in khasra No. 935/1. Harbans Singh (plaintiff)
had appeared on behalf of the purchaser at the time of execution
of the sale deed. Jamabandi for the year 19841985 of the
property in dispute (Exhibit D1) reveals that khasra No.
935/1/1/1 (519) shows the name of Mohan Singh (original
defendant No. 1) and Sohan Singh (original defendant No. 2) as
owners, whereas the name of Harbans Singh (plaintiff) is shown
against khasra No. 935/1/1/2 (518) as owner. Mohan Singh
(original defendant No. 1) had stated that the land standing in
the name of Harbans Singh (original plaintiff) was purchased by
him from the funds of joint family, but that fact has not been
proved or established by the contesting defendants. In that
sense, it may appear from the revenue record that the concerned
parties were owners in respect of separate properties and not as
joint owners. The fact remains that Harbans Singh (original
plaintiff), Mohan Singh (original defendant No. 1) and Sohan
Singh (original defendant No. 2) are closely related being real
brothers. Further, although the ownership of the suit property
recorded in Jamabandi is of concerned defendant, Harbans Singh
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(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) and his wife. It has been
admitted by DW1 that later on the said plot was sold to one
Surjit Kaur. These facts clearly establish that there was not only
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univocal family arrangement between the parties, but it was even
acted upon by them without any exception. This factual position
has not been doubted by the High Court.
12.As a matter of fact, the High Court has not bothered to even
advert to this aspect, whilst analysing the correctness of the
finding of fact recorded by the first appellate Court, which was
the final factfinding Court. From the impugned judgment, it is
noticed that after giving the basic facts, the High Court first
extracted the relevant portion from the trial Court’s judgment
(paragraphs 1721 thereof) and thereafter adverted to the finding
and conclusion recorded by the trial Court on other issues. The
High Court then went on to extract paragraph 16 of the judgment
of the first appellate Court in its entirety, running into about 8
pages and then formulated the substantial question of law. For
answering the said substantial question of law, the High Court
first adverted to the decision of this Court in Bhoop Singh vs.
Ram Singh Major & Ors.
4
and reproduced paragraphs 12, 13,
16 and 18 thereof. After that, the relevant portion of the decision
of the same High Court in the case of Hans Raj & Ors. vs.
4 (1995) 5 SCC 709
15
Mukhtiar Singh
5
has been extracted. After doing so, the High
Court then referred to the contention of the appellants herein and
extracted paragraphs 44 and 54 of the judgment in Hari
Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.
6
The High Court then adverted to a decision of the same High
Court in Jagdish & Ors. vs. Ram Karan & Ors.
7
and
reproduced paragraph 14 thereof. Only after reproducing the
aforesaid extracts in extenso, learned single Judge of the High
Court adverted to the factual aspects of the present case in the
following words, to allow the appeal:
“On a consideration of the matter, I find that a document
which, for the first time, creates a right in favour of
plaintiff in an immovable property in which he has no
preexisting right, then registration is required. The
presumption of preexisting right can only be inferred if a
consent decree is passed where such claim is admitted by
the other party, 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
5 (1996) 3 RCR (Civil) 740 (paragraphs 7 to 9)
6 (2006) 4 SCC 658
7 PLR (2003) 133 P&H 182
16
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
required registration. Thus, the learned trial Court was
right in holding that no title passed on to the plaintiff
under Exhibit P6 i.e. family settlement entered into
between the parties. This view of mine finds support from
the judgment of the Hon’ble Supreme Court in the case of
Hari Chand (dead) through LRs vs. Dharampal Singh
Baba, 2007 (4) Herald (SC) 3028, wherein the Hon’ble
Supreme Court has been pleased to lay down that the
family settlement could only be if one has lawful right
over the property and then alone family settlement could
be executed. When there is no lawful rights of the parties
over the property, there was no occasion to file the suit on
the basis of family settlement.
In view of what has been stated and discussed above,
this appeal is allowed and the judgment and decree
passed by the learned lower Appellate Court is set aside
and that of the learned trial Court is restored, but with no
order as to costs.”
13.As against this, the first appellate Court thoroughly
examined the pleadings and the evidence, oral as well as
documentary, placed on record by the concerned parties. In the
first place, it examined the question whether the document
Exhibit P6 was executed by the parties or not. After adverting to
the relevant evidence, the first appellate Court opined that the
trial Court was right in concluding that Exhibit P6 was executed
by the parties referred to therein. That being concurrent finding
of fact, needs no further scrutiny. The High Court has not
17
reversed this finding of fact, as is noticed from the extracts of its
judgment reproduced above. The first appellate Court then went
on to examine whether the document required registration. The
High Court has reproduced paragraph 16 of the judgment of the
first appellate Court in its entirety. What is relevant to notice is
that the first appellate Court adverted to the pleadings and oral
and documentary evidence produced by the respective parties
and found that the plaintiff had proved the compromise (Exhibit
CX) dated 15.5.1992 between the plaintiff and defendant Nos. 2
and 3, namely, Sohan Singh and Harjinder Kaur. Harjinder Kaur
had stepped into witness box and admitted the said fact. She
also admitted the fact of execution of a family settlement. Thus,
the dispute was between the successors of Harbans Singh
(plaintiff) and successors of Mohan Singh (original defendant No.
1). 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:
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“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 that Mohan Singh (original defendant No. 1) and Sohan
Singh (original defendant No. 2) were residing in house situated
at Prem Basti prior to 1988, which belonged to Harbans Singh
(plaintiff). As noted earlier, this property as per the family
arrangement was given to Sohan Singh and has been so recorded
in the memorandum of family settlement (Exhibit P6). The first
appellate Court found that the defendants had failed to prove
that they were in possession of the suit property or remained in
possession thereof. On the other hand, the evidence on record
clearly established that the plaintiff was in possession of the suit
property. The first appellate Court then interpreted document
19
Exhibit P6 and found that it was not with regard to khasra No.
935 (1117), but it referred to other properties. After analysing
the relevant evidence, the first appellate Court held that Exhibit
P6 cannot be construed as a document containing terms and
recitals of a family arrangement, but only a memorandum of
family arrangement. It went on to observe as follows:
16. … Document Ex.P6 is not with regard to
khasra no. 395 (1117) but other property is also
included in the said document. A plot situated in Prem
Basti which was in the name of Harbans Singh and
Gurcharan Kaur was already got vacated from Mohan
Singh and was given to Sohan Singh and Harjinder
Singh. A plot measuring 17 marlas which was purchased
by Vikaramjit Singh was given to Manjit Kaur and Mohan
Singh and Manjit Kaur DW1 has admitted that she had
already sold that plot to Surjit Kaur. So it can be
concluded that said document was acted upon. Although
few sentences of the said documents are in the present
tense but the court is to see from the material on record
whether the said document created right in the
immovable property or rights were already created but the
document was written by way of memorandum. The said
document does not pertain to khasra no. 935/1/1/1 (5
19) but entire khasra no. 935/1 (1117). Had the said
document created right in khasra no. 935/1/1/1 (519)
then there was no question of throwing khasra no.
935/1/1/2 in common pool and other property of the
parties. There is specific recital that on the basis of sale
deeds Harbans Singh was owner in possession of the suit
property and was coming in possession of the same.
Harbans Singh has constructed 16 shops and service
station there. In other words, it 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 Smt.
Karamjit Kaur and another versus Smt. Sukhjinder Kaur
and others cited supra vide compromise the plaintiff and
defendant no. 1 to 4 had agreed to take 30 bighas of land
out of 90 bighas left by Mohinder Singh so it was held
that said compromise has created right in favour of
defendants no. 5 and 6 to the property of more than
Rs.100/ So require registration. All the above said
authorities cited by counsel for defendants are
distinguishable on facts and ratio of said authorities
cannot be applied to the facts of the present case. Since
plaintiff is proved to be in existence in possession of the
suit property. So construction of shops land service
station on the said property was done by the plaintiff
himself and not from funds of joint family. This fact is
further corroborated by writing dated 10.3.1988 copy of
which is Ex. P6. Since said document did not require
registration so plaintiff is proved to be owner of the suit
property. The defendants estopped from denying the
execution of the family settlement. Defendants have
failed to prove that Harbans Singh, Mohan Singh and
Sohan Singh constituted Joint Hindu Family Property
and construction of the suit property was raised from the
Joint Hindu Family Funds. Thus, finding recorded by the
learned Trial Court on issues No. 3, 5 and 7 are set aside
and it is held that the plaintiff constructed shops and
service station and boundary wall on the suit property
with his own funds. The defendant has failed to prove
21
that property in dispute was purchased by the income of
the Joint Hindu coparcenary property and Sohan Singh,
Mohan Singh and Harbans Singh constituted Joint
family. So these issues are decided in favour of the
plaintiff. Parties executed document Ex.P6 dated
10.3.1988 by way of memorandum of family
settlement and it did not require registration. The
defendants are estopped from denying the execution
of the said document and plaintiff is proved to be
owner in possession of the suit land. Issues No. 1 and
2 and 7 are also decided in favour of the plaintiff. Since
the plaintiff came in possession of the suit property with
the consent of the defendants and his possession never
become adverse to the interest of the defendants so
finding of the learned trial Court on issue no. 4 is
affirmed.”
(emphasis supplied)
14.As noticed from the extracted portion of the judgment of the
High Court in paragraph 12 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.
22
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, it was not open to resile from
the same. They were estopped from contending to the contrary.
This crucial aspect has been glossed over by the High Court and
if we may say so, the second appeal has been disposed of in a
most casual manner. Inasmuch as, the impugned judgment of
the High Court merely contains extraction of the judgment of the
trial Court and first appellate Court and of the relied upon
judgments (precedents). The only consideration is found in two
concluding paragraphs, which are extracted above (paragraph
12). Even on liberal reading of the same, it is not possible to
conclude that the High Court in exercise of its appellate
23
jurisdiction (second appeal) had undertaken proper analysis and
scrutiny of the judgment of the first appellate Court in right
perspective, much less keeping in mind the limited scope of
jurisdiction to entertain second appeal under Section 100 of the
Code of Civil Procedure, 1908. The impugned judgment is
bordering on a casual approach by the High Court in overturning
the wellconsidered decision of the first appellate Court.
Although the impugned judgment runs into 36 pages, the
manner in which it proceeds leaves us to observe that it is
cryptic. We say no more. On this count alone, impugned
judgment does not stand the test of judicial scrutiny.
16.Be that as it may, the High Court has clearly misapplied the
dictum in the relied upon decisions. The settled legal position is
that when by virtue of a family settlement or arrangement,
members of a family descending from a common ancestor or a
near relation seek to sink their differences and disputes, settle
and resolve their conflicting claims or disputed titles once and for
all in order to buy peace of mind and bring about complete
harmony and goodwill in the family, such arrangement ought to
be governed by a special equity peculiar to them and would be
enforced if honestly made. The object of such arrangement is to
24
protect the family from long drawn litigation or perpetual strives
which mar the unity and solidarity of the family and create
hatred and bad blood between the various members of the family,
as observed in Kale (supra). In the said reported decision, a
threeJudge Bench of this Court had observed thus:
“9.….. A family arrangement by which the property is
equitably divided between the various contenders so as to
achieve an equal distribution of wealth instead 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)
In paragraph 10 of the said decision, the Court has delineated
the contours of essentials of a family settlement as follows:
“10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form,
25
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 arrangement may be even oral in
which case no registration is necessary;
(4) It is wellsettled 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 does not create or
extinguish any rights in immovable properties and
therefore does not fall within the mischief of Section
17(2) of the Registration Act and is, therefore, not
compulsorily registrable;
(5)The members who may be parties to the family
arrangement must have some antecedent title, claim
or interest even a possible claim in the property which
is acknowledged by the parties to the settlement. Even
if one of the parties to the settlement has no title
but under the arrangement the other party
relinquishes all its claims or titles in favour of such
a person and acknowledges him to be the sole
owner, then the antecedent title must be assumed
and the family arrangement will be upheld and the
courts will find no difficulty in giving assent to the
same;
(6)Even if bona fide disputes, present or possible,
which may not involve legal claims are settled by a
bona fide family arrangement which is fair and
equitable the family arrangement is final and binding
on the parties to the settlement.”
(emphasis supplied)
26
Again, in paragraph 24, this Court restated that a family
arrangement being binding on the parties, clearly operates as an
estoppel, so as to preclude any of 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 benefit
all the near relations of the family, it would be sustained
as a valid and binding family settlement. …”
While rejecting the argument regarding inapplicability of principle
of estoppel, the Court observed as follows:
“38. … Assuming, however, that the said
document was compulsorily registrable the courts
have generally held that a family arrangement being
binding on the parties to it would operate as an
27
estoppel by preventing the parties after having taken
advantage under the arrangement to resile from the
same or try to revoke it. …..”
(emphasis supplied)
And in paragraph 42, the Court observed as follows:
42. ..… In these circumstances there can be no doubt
that even if the family settlement was not registered
it would operate as a complete estoppel against
Respondents Nos. 4 and 5. Respondent No. 1 as also the
High Court, therefore, committed substantial error of law
in not giving effect to the doctrine of estoppel as spelt out
by this Court in so many cases. …”
(emphasis supplied)
The view so taken is backed by the consistent exposition in
previous decisions
8
referred to and 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
8 Lala Khunni Lal vs. Kunwar Gobind Krishna Narain, ILR 33 All 356
Mt. Hiran Bibi vs. Mst. Sohan Bibi, AIR 1914 PC 44
Sahu Madho Das vs. Pandit Mukand Ram, AIR 1955 SC 481
Ram Charan Das vs. Girjanandini Devi, AIR 1966 SC 323
Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292
Maturi Pullaiah vs. Maturi Narasimham, AIR 1966 SC 1836
Krishna Biharilal vs. Gulabchand, (1971) 1 SCC 837
S. Shanmugam Pillai vs. K. Shanmugam Pillai, (1973) 2 SCC 312
Ramgopal vs. Tulshi Ram, AIR 1928 All 641
Sitala Baksh Singh vs. Jang Bahadur Singh, AIR 1933 Oudh 347
Mst. Kalawati vs. Sri Krishna Prasad, AIR 1944 Oudh 49
Bakhtawar vs. Sunder Lal, AIR 1926 All 173
Awadh Narain Singh vs. Narain Mishra, AIR 1962 Pat 400
Ramgouda Annagouda vs. Bhausaheb, AIR 1927 PC 227
Brahmanath Singh vs. Chandrakali Kuer, AIR 1961 Pat 79
Mst. Bibi Aziman vs. Mst. Saleha, AIR 1963 Pat 62
Kanhai Lal vs. Brij Lal, AIR 1918 PC 70
Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145
T.V.R. Subbu Chetty’s Family Charities vs. M. Gaghava Mudaliar, AIR 1961 SC
797
Rachbha vs. Mt. Mendha, AIR 1947 All 177
Chief Controlling Revenue Authority vs. Smt. Satyawati Sood, AIR 1972 Delhi
171 (FB)
Shyam Sunder vs. Siya Ram, AIR 1973 All 382
28
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 property.
17.As regards the decision in Bhoop Singh (supra) and Som
Dev & Ors. vs. Rati Ram & Anr.
9
, the same dealt with the
question of necessity to register any decree or order of a Court
9 (2006) 10 SCC 788
29
governed by clause (vi) of Section 17(2) of the Registration Act,
1908
10
. In the present case, however, clause (v) of subSection 2
of Section 17 of the 1908 Act is attracted. Section 17 as
applicable when the cause of action arose (prior to amendment of
2001) reads thus:
“Part III
OF REGISTRABLE DOCUMENTS
17. Documents of which registration is compulsory.
(1) xxx xxx xxx
(2) Nothing in clauses (b) and (c) of subsection (1)
applies to –
(i)xxx xxx xxx
(ii)xxx xxx xxx
(iii)xxx xxx xxx
(iv)xxx xxx xxx
(v)any document not itself creating,
declaring, assigning, limiting or extinguishing
any right, title or interest of the value of one
hundred rupees and upwards to or in
immovable property, but merely creating a right
to obtain another document which will, when
executed, create, declare, assign, limit or
extinguish any such right, title or interest; or
…..”
18.In our considered view, reliance placed by the High Court on
the decisions of this Court will be of no avail to alter or impact
the conclusion recorded by the first appellate Court. As
aforementioned, in Bhoop Singh (supra) and Som Dev (supra),
the Court was dealing with the issue of compulsory registration
10 For short, “the 1908 Act”
30
of a decree or order of Court. In the context of the applicable
clause (vi) in subSection (2) of Section 17, the Court in Bhoop
Singh (supra) went on to hold as follows:
“18. The legal position qua clause (vi) can, on the
basis of the aforesaid discussion, be summarised as
below:
(1) Compromise decree if bona fide, in the sense
that the compromise is not a device to obviate
payment of stamp duty and frustrate the law relating
to registration, would not require registration. In a
converse situation, it would require registration.
(2)If the compromise decree were to create for the
first time right, title or interest in immovable property
of the value of Rs.100 or upwards in favour of any
party to the suit the decree or order would require
registration.
(3)If the decree were not to attract any of the
clauses of subsection (1) of Section 17, as was the
position in the aforesaid Privy Council and this Court's
cases, it is apparent that 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
31
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, which had justly concluded that document
dated 10.3.1988 executed between the parties was merely a
memorandum of settlement, and it did not require registration. It
must follow that the relief claimed by the plaintiff in the suit, as
granted by the first appellate Court ought not to have been
interfered with by the High Court and more so, in a casual
manner, as adverted to earlier.
20.Having said that, it is unnecessary to examine the
alternative plea taken by the plaintiff to grant decree as prayed
on the ground of having become owner by adverse possession.
For the completion of record, we may mention that in fact, the
trial Court had found that the possession of the plaintiff was only
permissive possession and that finding has not been disturbed by
the first appellate Court. In such a case, it is doubtful that the
32
plaintiff can be heard to pursue relief, as prayed on the basis of
his alternative plea of adverse possession.
21.Be that as it may, we deem it appropriate to set aside the
impugned judgment and restore the judgment and decree passed
by the first appellate Court in favour of the plaintiffs (appellants
herein).
22.Accordingly, this appeal is allowed. Impugned judgment
and decree of the High Court is set aside. The judgment and
decree passed by the first appellate Court is restored in favour of
the plaintiff (appellants herein). Decree be drawn up accordingly.
There shall be no order as to costs. Pending interlocutory
applications, if any, shall stand disposed of.
..................................J.
(A.M. Khanwilkar)
..................................J.
(Dinesh Maheshwari)
New Delhi;
July 31, 2020.
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