RSA No. 2666 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2666 of 1985 Date of Decision: 21.07.2010 Sher Singh son of Khubi Ram s/o Tirkha Ram, r/o Hamayunpur, Tehsil Jhajjar, Distt. Rohtak. ... Appellant Versus 1. Umed Singh; 2. Nasib Singh; both minor sons of Ganeshi s/o Keso Ram, residents of village Hamayunpur, Tehsil Jhajjar, Distt. Rohtak, through their mother Khazani, r/o Hamayunpur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ranjit Saini, Advocate, for the appellant. Respondents exparte. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 07.04.84, rendered by the Court of Sub Judge 1st Class, Jhajjar, vide which, it dismissed the suit of the plaintiff, and, the judgement and decree dated 18.05.85, rendered by the Court of Additional District Judge (II), Rohtak, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Jeevna son of Kesho Ram, who was the owner in possession of 1/2 share of land, measuring 143 kanals RSA No. 2666 of 1985 2 25 marlas, situated at village Himayunpur, Tehsil Jhajjar, District Rohtak, out of love and affection, alienated the same, in favour of the plaintiff, vide decree dated 07.03.80. It was stated that, however, the defendants, by producing Ganeshi, their father, as an impersonator, in place of Jeevna, in the Court, obtained a forged and fabricated decree dated 05.11.79, and, got the land, in dispute, mutated, in their favour. It was further stated that Jeevna, neither appeared, in the Court, in Civil Suit No. 833 of 1979, titled as 'Umed Singh Vs. Jeevna', nor, did he file any written statement. The defendants, were many a time asked, to treat the said decree as illegal, null and void, but, to no avail. Ultimately, a suit for declaration was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that the suit was not maintainable. It was denied that the plaintiff, was the owner in possession of the land, in dispute. It was stated that the decree dated 07.03.80, was the result of fraud and fabrication. It was further stated that the decree dated 05.11.79, was a legal and valid document, which recognized the pre- existing right of the defendants, in the land, in dispute, on the basis of family settlement and they became the owners of the same. It was further denied that, Ganeshi, had ever impersonated Jeevna, and, obtained the decree dated 05.11.79. The remaining averments, were denied, being wrong. RSA No. 2666 of 1985 3 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is owner in possession of the suit land as alleged in paras No. 2 and 3 of the plaint? OPP (ii) Whether the decree dated 05.11.79 in favour of defendants and the mutation sanctioned on the basis of this decree and mutation No. 972 dated 25.04.80, is null and void, ineffective, illegal and not binding on the plaintiff as alleged in para No. 5 of the plaint? OPP (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the plaintiff has no locus-standi to file the present suit? OPD (v) Whether the defendants are entitled to special costs under Section 35-A CPC? OPD (vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the plaintiff (now appellant), which was also dismissed, by the Court of Additional District Judge (II), Rohtak, vide judgement and decree dated 18.05.85. 7. Still feeling dissatisfied, the instant Regular Second Appeal, was filed by the appellant. 8. I have heard the Counsel for the appellant, and, have gone through the evidence and record of the case, carefully. RSA No. 2666 of 1985 4 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that Jeevna, suffered a legal and valid consent decree dated 05.11.79, in favour of the defendants sons of his brother Ganeshi? 10. The Counsel for the appellant, submitted that, the decree dated 05.11.79, was not suffered by Jeevna, in favour of the defendants/respondents sons of his brother Ganeshi. He further submitted that, if such a decree, was found, to have been suffered, by Jeevna, the same, was the result of fraud and misrepresentation. He further submitted that, the appellant, was looking after Jeevna, and, as such, there was no occasion, for him, to suffer the said decree, in favour the sons of his brother Ganeshi. He further submitted that, even the sons of Ganeshi, when the latter was alive, had no right of succession, to the property of Jeevna, and, as such, the said decree, having created right in immovable property worth upwards Rs. 100/-, in their favour, without stamp and registration was illegal and invalid. He further submitted that the judgements and decrees of the Courts below, holding that, the decree dated 05.11.79, suffered by Jeevna, in favour of the defendants/respondents, was legal and valid, and not the result of fraud, being perverse and illegal, are liable to be set aside. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my RSA No. 2666 of 1985 5 considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. It is evident, from D1, copy of the plaint, that Umed Singh and Nasib Singh minor sons of Ganeshi, through their mother, who are the defendants/respondents, in the instant appeal, filed a suit for declaration, that they were the owners in possession of the land, in dispute, on the basis of family settlement, and, declaration be granted, in respect thereof. Written statement, copy whereof, is D2, was filed by Jeevna, defendant therein, which was duly thumb-marked by him. In the written statement, he admitted the claim of Umed Singh and Nasib Singh, in that suit. On the basis of statement of admission, judgement dated 05.11.79, copy whereof, is D3, was passed, in their favour, by the Court of Sub Judge 1st Class, Jhajjar, and, decree-sheet, copy whereof, is D4, was prepared. Since Umed Singh and Nasib Singh, are the sons of the brother of Jeevna, deceased, they were members of the same family. With a view, to settle the disputes amicably, a family settlement, was arrived at, as a result whereof, Jeevna, gave the land, in dispute, to Umed Singh and Nasib Singh. That could be said to be a legal and valid family settlement. It was, on the basis of that legal and valid family settlement, that Umed Singh and Nasib Singh, became the owners in possession of the land, in dispute. Decree dated 05.11.79, certified copy whereof, is D4, only recognized the pre-existing rights of Umed Singh and Nasib Singh, in the property, in dispute, and, did not confer any right, in the immovable property, worth upwards Rs. 100/-, for the first time. In these circumstances, it RSA No. 2666 of 1985 6 did not require stamp and registration. The object of the family arrangement, is to protect the family, from long drawn litigation of perpetual strifes, which mar the unity and solidarity of the family and create hatred and bad blood, between various members of the family. A family arrangement, 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, or a claim or even if they have spes succession 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 litigations, is able to devote its attention, to more constructive work, in the larger interest of the Country. The Courts have, therefore, leaned in favour upholding a family arrangement, instead of disturbing the same, on technical or trivial grounds. 12. 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, as held in Kale and others Vs. Deputy Director of Consolidation and others, AIR, 1976, Supreme Court, 807, a case decided by a bench of three Judges of the Apex Court: - “(i) The family settlement must be a bona fide one so as to resolve disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the RSA No. 2666 of 1985 7 family; (ii) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (iii) The family arrangement may be even oral in which case no registration is necessary; (iv) 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 the information of the court for making necessary mutation. In such a case, the does not create or extinguish any right in immovable properties, and, therefore, does not fall within the mischief of Section 17(2) (sic) Sec .17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable; (v) 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 having 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; (vi) 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”. 13. In Maturi Pullaiah Vs. Maturi Narasimham, AIR, 1966, RSA No. 2666 of 1985 8 Supreme Court, 1836, it was held that even if, there was no conflict or legal claims, but the settlement, was a bona fide one, it could be sustained by the Court. Similarly, it was also held that even the disputes, based upon ignorance of the parties, as to their rights, were sufficient to sustain the family arrangement. In Krishan Biharilal Vs. Gulabchand (AIR, 1971, Supreme Court, 1041), it was pointed out that the word family had a very wide connotation and could not be confined only to a group of persons, who were recognized by law, as having a right of succession or claiming to have a share. To consider a settlement, as a family arrangement, it is not necessary, that the parties to the compromise should all belong to one family. In S. Shanmugam Pillai Vs. K. Shanmugan Pillai (AIR, 1972 Supreme Court, 2069), the entire case law, was discussed, and the Apex Court, observed that if, in the interest of the family properties, or family peace the close relations had settled their disputes amicably, the Court would be reluctant to disturb the same. It was further observed that the Courts generally leaned, in favour of the family arrangements. In Ramgouda Annagouda Vs. Bhausaheb (AIR, 1972 Privy Council, 227), there were three parties, to the settlement of a dispute, concerning the property of the deceased person. These were the widow of the deceased, the brother of the widow, and the son-in-law of the widow. It was obvious, therefore, that in the presence of the widow neither her brother nor her son-in-law could be regarded, as the legal heirs of the deceased. Yet, having regard to the near relationship, which the RSA No. 2666 of 1985 9 brother, and the son-in-law, bore to the widow, the Privy Council held that the family settlement, by which the properties, were divided amongst these three parties, was a valid one. In Kale and other's case (supra) , Lachman died leaving a grandson and two daughters. The grandson had no legal title, in the property of Lachman, 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 was accepted. The principle of law, laid down, in Sahu Madho Das Vs. Makan Ram (1955(1) SCR 22) was to the following effect: - “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, such party relinquishing all claims to property other than that falling to his share and recognizing the right of others, as they had previously asserted to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned, and, therefore, no conveyance is necessary”. Thus, it is clear, that the concept of family settlement, has been construed, in a wider sense, by the Apex Court, and other Courts, in India. In such a situation, even if, one of the parties, to the settlement had no apparent antecedent title, but under the arrangement, the other party relinquishes all its claims or title, in favour of such a person, and RSA No. 2666 of 1985 10 acknowledges him, to be the sole owner, then antecedent title was to be presumed, and the family settlement was liable to be upheld. In Tek Bahadur Bhujil Vs. Debi Singh Bhujil and others (AIR, 1966, SC, 292) a case decided by a bench of four Judges of the Apex Court, it was held as under: - “Family arrangement as such, can be arrived at orally. Its terms may be recorded, in writing, as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which the future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about the document, as such, that the document requires registration because it is then that it would amount to a document or title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration u/s 17 of the Registration Act”. The facts of the aforesaid authority, reveal that the family arrangement was attacked, on the ground, that M was not a party thereto. M was not shown to keep any property for herself, in arrangement, but the statements of the parties revealed that the arrangement was arrived at, by the consent of M. It was, thus, held that M was a party to the arrangement, and the fact that M's statement was not recorded, in the agreement, did not invalidate the arrangement. In Ram Charan Dass Vs. Girja Nadini Devi & Others, AIR, 1966, SC_323, a case decided RSA No. 2666 of 1985 11 by a bench of three Judges of the Apex Court, it was held as under: - “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 takes 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 grounds, as say affection”. It was also observed, in the said authority, that the 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 a 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. That consideration having passed, by each of the disputants, the settlement consisting of a recognition of the right asserted by each other, cannot be impeached thereafter. It was also held, in the said authority, that the compromise entered into by the parties, to the previous suit, and embodied in a decree, was in substance, a family RSA No. 2666 of 1985 12 arrangement, and, therefore, binding on all the parties; that the settlement was not of a temporary character, but bound the parties for all times; that a party who had taken benefit, under the transaction, was not, thus, entitled to turn round and say that the transaction was of a kind, which the other party, could not enter into and was, therefore, invalid. In Gurdev Singh and others Vs. Kartar Singh and others, 2003(1) PLR, 173(P&H), one Dalip Kaur transferred ¾ share of her property, in favour of defendants no.5&6 by way of a decree dated 17.10.75, who had no antecedent title in the same. The decree was challenged by the collaterals but was upheld. In the said case this Court relied upon the observation in Tek Bahadur Bhujil's case (supra) decided by the Apex Court, and held that, in that case, it was observed that “it did not mean that some title must exist as a fact in the person 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 arrangement clinches and defines what that title is.” In Jagdish and others Vs. Ram Karan and others, 2003 (1) PLR, 182 (P&H), Basti Ram, an unmarried brother, who had no issue, on 21.1.83, suffered a decree, qua the land, in question, in favour of his real brother, Ram Karan. That decree was challenged by the other brother of Basti Ram, on the ground, that Ram Karan had no antecedent title, in the land, in question, and, as such, the question of family settlement, between him and Ram Karan, did not, at all arise, and the decree suffered by him (Basti Ram), was illegal, void and RSA No. 2666 of 1985 13 inoperative against his rights. This Court held that the family arrangement, arrived at, which was recognized by the decree dated 21.01.83, was legal and valid. It was further held by this Court that Ram Karan became the owner of the land, in dispute, and the judgment and decree were legal and valid. Keeping in view the principle of law, laid down, in the aforesaid cases, it becomes crystal clear that Jeevna, was competent, to enter into a family arrangement with Umed Singh and Nasib Singh. He was competent, to relinquish right of his property, to the extent of his share, in their favour. The Courts below, were, thus, right in holding, that the decree, certified copy whereof, is D4, did not create right and interest, in the land, in dispute, in favour of Umed Singh and Nasib Singh, for the first time, and, as such, the same, did not require stamp and registration. The findings of the Courts below, in this regard, are correct and deserve to be affirmed. 14. No doubt, a plea, was taken, by the plaintiff/appellant, to the effect, that Jeevna, himself did not appear, in the suit, nor did he file the written statement, but, on the other hand, Ganeshi, impersonated him and thumb-marked the written statement. The plaintiff, examined Som Nath Aggarwal, Handwriting and Finger Prints Expert, PW1, who deposed, that the questioned thumb- impression of Jeevna, on the written statement, in Civil Suit No. 833 of 1979, tallied with the specimen thumb-impression of Ganeshi. On the other hand, Hardial Singh, Handwriting and Finger Prints Expert, was examined, as DW3, by the defendants/respondents, who after RSA No. 2666 of 1985 14 comparison of the questioned thumb-impression of Jeevna, on the written statement, in the earlier suit with the standard thumb- impression of Ganeshi, came to the conclusion, that the same, were not appended, by one and the same person. The statements of both the Handwriting and Finger Prints Experts, therefore, were contradictory to each other. The Courts below, were, thus, right in holding, that since the Handwriting and Finger Prints Experts, generally favoured the party, engaging them, no reliance, on the reports of both the Handwriting and Finger Prints Experts, could be placed. When Jeevna, appeared, in the Court, and filed written statement, he was duly identified by his Counsel Prabhu Dayal, Advocate. This fact was duly recorded, in the judgement, certified copy whereof, is D3, in the earlier suit, rendered by the Court of Sub Judge 1st Class, Jhajjar. Had Ganeshi, impersonated Jeevna, while thumb-marking the written statement, in the earlier suit, at least, Prabhu Dayal, Advocate, would not have identified him, as Jeevna. It could not be expected of an Advocate, who is a member of the noble profession, as also an officer of the Court, to identify a wrong person, that too, in the Court. The Courts below, were, thus, right in holding, that it was Jeevna, who appeared, in the earlier suit, and, thumb-marked the written statement, on the basis whereof, the decree, was passed. The Courts below, were also right, in discarding the opinion of both the Handwriting and Finger Prints Expert, one of whom, was examined by the plaintiff, and the other, by the defendants, and, coming to the conclusion, that Jeevna, RSA No. 2666 of 1985 15 was not impersonated by Ganeshi. The findings of the Courts below, on this point, being correct, are affirmed. 15. Now coming to the question of fraud, it may be stated here, that the mode and manner, in which, the alleged fraud, was committed, on Jeevna, by the defendants/respondents, was not mentioned, in the plaint. In para No. 4 of the plaint, it was only stated that, decree dated 05.11.79, was the result of fraud. The plaintiff, was required, to plead the complete particulars of the