RSA No. 759 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh RSA No. 759 of 2007 Date of decision: February 24,2009 [ENTITY] son of [ENTITY] Ram Appellant. Versus Smt. [ENTITY] widow of Suraj Bhan Respondent Coram: Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant [ENTITY],J.
This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby his suit for declaration and permanent injunction to the effect that judgment and decree dated 11.4.1997 passed in Civil Suit No. 91/97 titled as Smt. [ENTITY] Versus [ENTITY] regarding the suit land as null and void and restraining the defendant from ousting the plaintiff from the joint possession has been dismissed.
As per the averments made in the Civil Suit, one [ENTITY] son of [ENTITY], i.e., the brother of the plaintiff was owner in possession of the suit land. The said [ENTITY] died in May 1999 and consequent thereupon, the plaintiff being the sole heir of the deceased, inherited the suit land and became owner in possession of the same. It was further alleged that the defendant filed a false and collusive suit bearing [CASE NUMBER] against [ENTITY] regarding the suit land titled as Smt. [ENTITY] Versus [ENTITY] and obtained a judgment and decree dated 11.4.1997 from the court of Civil Judge (Junior Division), Bahadurgarh, which was illegal, null and void and not binding upon the rights of the plaintiff. The defendant also got sanctioned mutation consequent thereupon and wanted to oust plaintiff from the possession of the suit land and also wanted to alienate the same. The plaintiff requested the defendant several times to recognize his title and treat the impugned decree dated 11.4.1997 and [CASE NUMBER] dated 14.6.1997 as null and void but to no avail. Hence this suit.
Upon notice, the defendant appeared in the court and filed written statement taking various legal objections.
On merits, while admitting that the said [ENTITY] was the brother of plaintiff, the defendant denied that [ENTITY] was the owner in possession of the suit land on the date of his death and that the plaintiff succeeded to his estate. It was further asserted that decree dated 11.4.1997 was passed in her favour validly as the defendant in that Civil Suit (i.e., [ENTITY]) himself engaged a counsel, filed written statement, thumb marked the same and arrived at a compromise with the plaintiff in that civil suit which had become final as the impugned decree was never challenged by the said [ENTITY] in his life time. The other assertions made by the plaintiff were denied. It was specifically stated by the defendant that she being the widow of the real brother of deceased [ENTITY] was having a pre-existing right in the suit land as the heirs of her father-in-law were under obligation to provide maintenance to her in view of the provisions of [ACT] and thus [ENTITY] rightly admitted her claim by way of suffering the impugned decree, which did not require registration and in the end prayed for dismissal of the suit of the plaintiff with costs.
After appreciating the evidence on record and hearing the counsel for the parties, the courts below held that [ENTITY] had rightly suffered impugned judgment and decree in favour of the defendant and dismissed the suit of the plaintiff-appellant.
Feeling aggrieved, the plaintiff has filed this appeal in this court challenging the judgment and decrees of the courts below.
Learned counsel for the appellant has vehemently argued that vide impugned judgment and decree dated 11.4.1997 passed in [CASE NUMBER], an immovable property of more than Rs. 100/- was transferred in the name of respondent who had no pre-existing right in the property in dispute and therefore, the decree required registration. Thus the courts below have erred at law while dismissing the suit of the appellant and holding that the impugned decree does not require registration.
On the basis of above arguments, learned counsel stated that the following substantial questions of law arises in this appeal:-
"Whether a decree is compulsory registrable which transfers the property to a person who has no pre-existing right ? I have heard learned counsel for the appellant.
The Hon'ble Supreme Court of India in the case of [ENTITY] v. Mukand Ram AIR 1955 SC 481 observed as follows:-
"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the other's money, could not have legally entered into a family arrangement. The observations are:-
It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively.
xxxxxxxxxxxxxxxx These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is."
In the case of [ENTITY] Dass v. Giri Nandini Devi, AIR 1966 Supreme Court 323, the Hon'ble Supreme Court held as follows:
"Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word 'family' is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. The consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter."
In the aforesaid [ENTITY]'s case (supra), the Hon'ble Apex Court further observed as follows:-
"The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who take benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection."
Again in the case of [ENTITY] v. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, the Hon'ble Apex Court observed as follows:
"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 relinquishers all its claims or titles in favour of such a person 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."
It was further observed in the aforesaid [ENTITY]'s case (supra) as follows:-
"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."
In the case of [ENTITY] and others v. Ram Karan and others, 2003(1) RCR(Civil) 657 (P&H): 2003 (1) PLR 182 this Court had the occasion to deal with the similar controversy and had held, as per the law laid down in the cases of [ENTITY] Dass (supra), [ENTITY] (supra) and [PRECEDENT] (supra), that the decree in question passed on a family settlement was not required to be compulsorily registered. Even in the case of [ENTITY] and others v. Kartar Singh and others, 2003(2) RCR (Civil) 655 (P&H) :2003 (1) PLR 173 this Court had held that the pre-existing right could also cover a claim of a member of larger family under an oral arrangement which is subsequently confirmed in the court proceedings.
In [ENTITY]'s case (supra) the Hon'ble Apex Court was dealing with the decree vide which the title in the suit property was sought to be conveyed and transferred to a person without any pre-existing title through the decree itself. In fact the decree under challenge in [ENTITY]'s case (supra) may be noticed as follows:
"It is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owners in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant, in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct. Pleader's fee fixed Rs.16/-. It is further ordered that there is no order as to costs.
It is thus apparent that in [ENTITY]'s case (supra) the Hon'ble Supreme Court of India had held that when the conveyance or transfer was effected through a consent decree, then the same was not permissible and in such a situation such consent decree was compulsorily registerable. However, if a plaint in the suit was filed on the basis of a past transaction or past family settlement for the recognition thereof through a declaration, then the declaration sought was merely with regard to the existing facts on the date of the filing of the suit.
In [ENTITY]'s case, the Hon'ble Apex Court had observed as under:
"In [PRECEDENT], the Constitution bench of this Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under [SECTION]. This Court, while up- holding oral family arrangement, held that registration would be necessary only if the terms of the family arrangements are reduced into writing. A distinction should be made between the documents containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of 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] of the [ACT]. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registrable and therefore it can be used in evidence for collateral purpose, namely, for the proof of family arrangement which was final and binds the parties. The same view was reiterated in [PRECEDENT], wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case where no such interest is created the document will be valid, despite it being non-registered and will not be hit by [SECTION] of the Act."
Thus, it is apparent that in [ENTITY]'s case the Hon'ble Apex Court was only dealing with a situation where the title was being conveyed and transferred for the first time through the consent judgment and decree and not a case where the said decree was based upon the past transaction.
There is another aspect of the matter which needs to be noticed at this stage. The Hon'ble Supreme Court of India in [PRECEDENT] held that if the claim of the defendant was admitted by the plaintiff and on the basis of the said admission, a decree was passed and if there was no fraud in passing the decree, then the said decree was good and valid and could not be ignored on the ground that the same was not registered.
In the case in hand, the Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the impugned judgment and decree dated 11.4.1997 was not a collusive decree but a compromise decree which was passed on a family settlement which took place between [ENTITY] and the defendant who was widow of his real brother and [ENTITY] did not challenge the decree in question during his life time. Rather he was present at the time when his property was got mutated in favour of the defendant on the basis of the decree suffered by him. There is no denying the fact that such decree could be challenged only on the ground of fraud or collusive which is not the case in hand. Moreover, the courts below also noticed the fact that defendant [ENTITY] being widow of [ENTITY] 's brother had pre-existing right to succeed his property.
Thus relying upon the law laid down by the Hon'ble Apex Court in [ENTITY]'s, [ENTITY]'s and [ENTITY]'s cases (supra),judgments of this court in [ENTITY] and others, [ENTITY] and [ENTITY] cases (supra) and keeping in view the findings recorded by the courts below, I find no merit in this appeal.
No substantial question of law arises.
Dismissed.
February 24,2009 ([ENTITY]) nk JUDGE