Regular Second Appeal No.3030 of 2002 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3030 of 2002 Date of decision: December 20, 2010. Malkiat Kaur ...Appellant(s) v. Balbir Kaur & Ors. ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Ashok Singla, Advocate, for the appellant(s). Shri A.S. Jattana, Advocate, for respondent No.1. Kanwaljit Singh Ahluwalia , J. (Oral): Swaran Singh had four daughters, namely, Balbir Kaur, Malkiat Kaur, Bhuro and Mohinder Kaur, and one issueless pre-deceased son. Balbir Kaur filed a suit for declaration that she is co-owner of the property described in the head-note of the plaint to the extent of 1/4th share as the same being ancestral and coparcenary property of the Joint Hindu Family and decree suffered by her father, Swaran Singh, in favour of his sister Malkiat Kaur, being collusive, is not binding. It was pleaded in the suit that appellant-defendant No.1 took advantage of the old age of Swaran Singh and obtained a decree to the exclusion of the plaintiff. It was specifically averred that at the time of suffering decree, Swaran Singh was of unsound mind and was not competent to understand the effect of the decree suffered. Appellant- Regular Second Appeal No.3030 of 2002 -: 2 :- defendant filed a written statement and stated that five years before passing of the decree on 17.12.1981, an oral family settlement was arrived at and the entire property was given to her, therefore, on the basis of the said family settlement, the decree was passed by the Civil Court on 17.12.1981. After completion of pleadings, following issues were formulated by the trial Court:- “1. Whether the plaintiff is owner in possession of ¼ share of suit property? OPP 2. Whether the suit property is coparcenary and ancestral property of Joint Hindu Family? OPP 3. Whether decree dated 17.12.81 in suit no.406 of 18.11.81 does not affect the rights of plaintiff? OPP 4. Whether mutation no.5087 dated 19.2.82 effective qua the rights of the plaintiff? OPP 5. Whether plaintiff is entitled to declaration prayed for? OPP 6. Whether plaintiff is entitled to permanent injunction prayed for? OPP 7. Relief.” Balbir Kaur herself appeared as PW2. She examined Jasmel Kaur, Record Keeper PW1 to prove her case. Appellant Malkiat Kaur herself appeared as DW1 and her other sisters Bhuro and Mohinder Kaur appeared as DW2 and DW3 respectively. DW2 and DW3 admitted that it was told to them by their father that he had given his property to his daughter Malkiat Kaur and it was nowhere stated in their statements that any family arrangement was ever arrived at. The trial Court held the property to be ancestral and came to conclusion that from the evidence of Regular Second Appeal No.3030 of 2002 -: 3 :- plaintiff-respondent Balbir Kaur, it cannot be inferred that Swaran Singh, being old and of unsound mind, was not able to comprehend the consequences of the litigation and the Court further held that Swaran Singh was not of unsound mind. It further held that oral family settlement never required registration and dismissed the suit. Balbir Kaur – plaintiff-respondent filed an appeal. The Appellate Court reversed the findings of the trial Court and held as under:- (a) no evidence was led by the parties to arrive at a conclusion that this property in the hands of Swaran Singh was ancestral coparcenary property; (b) that the decree between appellant-defendant No.1 and Swaran Singh was collusive and will not operate against the rights of the plaintiff-respondent as she was not made party to the suit; (c ) since the land in dispute was self- acquired property of Swaran Singh, appellant-defendant No.1 had no right or title during the life time of Swaran Singh, therefore, there was no semblance of the rights and there was no need to arrive at a family settlement. It was held that it was pre-requisite of a family settlement that the persons between whom such a settlement is arrived at, must have a pre- existing right or title or semblance of right and title in the land in question. It was further held that since no family arrangement or settlement can be recognized or acknowledged, the decree dated 17.12.1981 required registration; non-registration of the decree was construed against the appellant-defendant No.1. Shri Singla, Counsel for the appellant, has submitted that, the following substantial questions of law do arise in this instant appeal:- 1. Whether the judgement and decree based upon admission requires any registration under the Indian Registration Act as Regular Second Appeal No.3030 of 2002 -: 4 :- held by the leaned lower appellate court especially when the Hon'ble Supreme Court in its recent judgment in Bachan Singh's case reported as JT 2001(10) SC 64 has held that such decree does not require any registration and such decree cannot be treated as to be a Sale? 2. Whether the impugned judgment and decree of the learned lower appellate court is totally illegal, being contrary to the law laid down in the judgment reported as JT 2001 (10) SC 64? 3. Whether an oral family settlement between the parties requires any registration? 4. Whether the consent decree can be challenged on the ground other than fraud? 5. Whether daughter can be said to have no bona fide and possible right in the land of her father? 6. Whether the consent decree could have been challenged after 3 years from its passing and whether the present suit of the plaintiff-respondent is beyond limitation being filed after 3 years from the consent decree? 7. Whether the consent decree can be declared illegal on the ground of its non-registration under Indian Registration Act especially when the plaintiff-respondent never challenged the said consent decree in his suit on the ground of its non- registration? 8. Whether the learned lower appellate court has committed serious illegalities by travelling beyond the pleadings? Regular Second Appeal No.3030 of 2002 -: 5 :- 9. Whether the learned lower appelate court has misread the evidence on the file and has failed to consider material evidence on the file and thus has committed serious illegality? This Court, while admitting the instant appeal on September 14, 2004, had formulated the following substantial question of law for the consideration of this Court:- “Whether the consent decree suffered by the father, in favour of his daughter, requires compulsory registration?” Relying upon Raj Kali v. Jitender, 2010(5) RCR (Civil) 790, it is urged that the definition of the concept of “family settlement” has to be construed in a wider sense; furthermore, that the family settlement cannot be challenged by the legatee. This Court cannot become oblivious of the fact that in collusive decree obtained by Malkiat Kaur on 17.12.1981, plaintiff- respondent was not a party. Had she been impleaded as a party, she could have rebutted the family arrangement/settlement. Consequently, there is no presumption that any property held by the male member of the family (father in this case) is a joint family property, the presumption is to the contrary. Since the property was not shown to be the joint family property and indeed it was self-acquired property of Swaran Singh, he could have duly gifted or bequeathed the same in favour of Malkiat Kaur. Any transfer investing his daughter Malkiat Kaur could have been done only in the manner known to law. The property in dispute is admittedly immovable property, whose value is more than Rs.100/-. In terms of the Section 17 of the Registration Act, any transfer in immovable property could have been made only by way of registration. There was no registration of any Regular Second Appeal No.3030 of 2002 -: 6 :- instrument of transfer of title to his daughter. A mere assertion in a suit in a civil Court between father and daughter that he had transferred the right to the daughter through oral family arrangement cannot make the situation better. It has been laid down by a judgment of the Supreme Court in ‘Ambika Prasad Thakur and others v. Ram Ekbal Rai’ AIR 1966 SC 605 that ‘title cannot pass by mere admission' . The civil Court decree by itself, cannot transfer title. Court can only affirm title transferred through a valid instrument but if the decree were to be construed as operating to transfer title, it requires registration under Section 17 of the Registration Act. In the present case, the collusion is writ large in the transaction. The plaintiff herself was not a party to the suit and she is entitled to ignore the decree. According to the lower appellate Court, non-impleadment of the plaintiff-respondent to the suit was sufficient to hold that decree was liable to be ignored. Furthermore, the lower appellate Court held that since the property was not ancestral coparcenary property, and there arose no pre- existing right to Malkiat Kaur, there could not have been a family settlement. Thus, on the facts of the case, the proposed substantial questions of law do not arise for consideration. Counsel for the appellant has further relied upon ‘Smt. Manju Devi v. Bishan Sarup Gupta and others’, 2005 AIR (Punjab) 290 to contend that in the present case, the suit was filed in October 1994 to challenge the decree dated 17.12.1981 thus, the same was barred by way of limitation. He has further submitted that Swaran Singh died on 2nd September, 1989 and, therefore, the suit should have been filed within a period of three years. It is the case of Balbir Kaur that after the death of her Regular Second Appeal No.3030 of 2002 -: 7 :- father, when she was turned out of the home, she learnt about the collusive decree. The issue of limitation would arise only if she was bound by the decree and it was required to be set aside. I have already held that the daughter who was not a party to the suit was entitled to ignore the same. The bar of limitation would likewise not arise in this case. Hence the date of knowledge of Balbir Kaur is to be taken as the date when the limitation shall commence. Hence, the present appeal is dismissed. [Kanwaljit Singh Ahluwalia] December 20, 2010. Judge kadyan/rps