RSA No. 279 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 279 of 1993 Date of Decision: 08.01.2010 Daya Parkash son of Gopi Ram, r/o village Karsindhu, Tehsil Narwana, District Jind. ... Appellant Versus 1. Gopi Ram son of Siri Ram, r/o village Karsindhu, Tehsil Narwana, District Jind (now deceased), represented through LRs:- (i) Hari Gobind; (ii) Deepak (minor); (iii) Rajesh @ Tinku (minor); sons of Ved Parkash, respondents No. (ii) and (iii), through their guardian and brother Sh. Hari Gobind son of Sh. Prem Parkash, r/o village Karsindhu, now resident at Railway Road, Uchana, Distt. Jind. ...Respondents 2. Ved Parkash; 3. Jai Parkash; 4. Prem Parkash; sons of Gopi Ram, r/o village Karsindhu, Tehsil Narwana, District Jind. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Mittal, Senior Advocate, with Mr. Atul Gaur, Advocate, for the appellant. Mr. Sanjay Mittal, Advocate, for respondent No. 1 (i) to (iii). Respondents No. 2 to 4, exparte. RSA No. 279 of 1993 2 SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 08.10.92, rendered by the Court of Additional District Judge, Jind, vide which, it accepted the appeal, against the judgement and decree dated 17.09.91, rendered by the Court of Sub Judge 1st Class, Narwana, and decreed the suit of the plaintiff/respondent Gopi Ram (since deceased). 2. The facts, in brief, are that, the plaintiff, was the exclusive owner in possession of the suit properties, which he purchased, vide registered sale deeds dated 19.04.54 and 08.09.78. It was stated that the plaintiff, came to know about the decree dated 02.04.83, passed in Civil Suit No. 168 of 02.04.83, and the decree dated 13.04.83, passed in Civil Suit No. 313 of 13.04.83, by the then Sub-Judge, Narwana, by virtue of which, he was shown to have transferred the title of the suit properties, in favour of the defendants (appellant and respondents No. 2 to 4). It was further stated that the decrees, were based on fraud, mis- representation and the result of un-due influence. It was further stated that the same were not binding, on the rights of the plaintiff. It was further stated that no family settlement, was arrived at, between the defendants and the plaintiff. It was further stated that the plaintiff, never appeared, in the Court, nor did he file any written statement. It was further stated that the impugned decrees, did not confer ownership RSA No. 279 of 1993 3 rights, upon the defendants, in respect of the properties, in dispute. It was further stated that the plaintiff, also came to know, that an attempt was made, by the defendants, to get a decree, in their favour, in the earlier suit, titled as, 'Prem Parkash Vs. Gopi Ram', in respect of one of the suit properties, but, vide judgment dated 07.02.83, the then Sub- Judge, Narwana, dismissed their suit, holding that the same was not the Joint Hindu Family property of the parties. It was further stated that the subsequent suits, instituted by the defendants for declaration, that they had become owners in possession of the suit properties by way of family settlement, for which the suit had already been dismissed, were hit by the principles of resjudicata. It was further stated that the defendants, had fraudulently got the Municipal entries changed, in their favour, on the basis of the impugned decrees. The defendants, were many a time, asked to treat the impugned decrees, as illegal, null and void, but to no avail. Ultimately, a suit for declaration, was filed. 3. Defendant No. 1 (now appellant), put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was time-barred. It was further pleaded that the suit had been filed with malafide intention. It was stated that the plaintiff, was in collusion with defendants No. 2 to 4. It was further stated that the plaintiff, was a very clever person. It was further stated that defendant No. 1, was residing, at Rohtak, for the last about six years, and, as such, he was not in a position to dominate the will of the plaintiff. It was denied that the plaintiff, was the exclusive owner in possession of the suit properties. It was further RSA No. 279 of 1993 4 stated that the suit properties, were purchased, by the plaintiff, in his name, as Karta of the Joint Hindu Family from the funds of the Joint Hindu Family. It was further stated that the impugned decrees, were validly passed, in favour of the defendants. The remaining averments, were specifically denied. 4. Defendants No. 2 to 4, filed a separate written statement, stating therein, that the impugned decrees, were passed correctly, in their favour. It was further stated that, no family settlement, ever took place, between the plaintiff and the defendants. It was further stated that, the defendants, did not get possession of the suit properties, as owners so far. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues, were struck:- (i) Whether the judgement and decree dated 02.04.83 passed in Civil Suit No. 168 of 02.04.83 and judgement and decree dated 13.04.83 passed in Civil Suit No. 313 of 13.04.83, titled as, 'Prem Parkash etc. Vs. Gopi Ram etc.', are null and void and not binding on the rights of the plaintiff as alleged? OPP (ii) If issue No. 1 is proved then whether plaintiff is entitled to the relief of permanent injunction against the defendants as prayed for? OPP (iii) Whether the suit is time barred? OPD (iv) Whether the suit is under valued for the purposes of Court fees and jurisdiction? OPD (v) Whether the plaintiff has filed the suit in collusion with defendants No. 2 to 4, if so its effect? OPD RSA No. 279 of 1993 5 (vi) Relief. 6. The following additional issues, were also framed:- (3A)What is the effect of judgement and decree dated 07.02.83? OPP (3B)Whether the decree dated 07.02.83 operates as resjudicata? OPP 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 8. Feeling aggrieved, an appeal, was preferred, by the plaintiff/respondent, which was accepted, by the Court of Additional District Judge, Jind, vide judgment and decree dated 08.10.92. 9. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by one of the defendants/appellant. 10. During the pendency of appeal, Gopi Ram, plaintiff/respondent, died, and he is now represented by his legal representatives. 11. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 12. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point, that the judgement and decree dated 07.02.83, passed by the Court of Sh. R.K. Bishnoi, Sub Judge IInd Class, Narwana, operated as resjudicata, and, RSA No. 279 of 1993 6 therefore, the decrees dated 02.04.83 and 13.04.83 (exhibits P2 and P3 respectively), were null and void? (ii) Whether a party, which had suffered a previous decree, against it, could waive the plea of resjudicata, in the subsequent suit, relating to the same subject matter between the same parties? (iii) Whether the first Appellate Court, recorded findings contrary to the settled principle of law that in the face of two conflicting decrees with respect to the same subject matter the decree first in point of time shall operate as resjudicata? (iv) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point that there was no legal and valid family settlement between the parties, and, as such, the defendants did not become the owners in possession of the properties, in dispute? (v) Whether the first Appellate Court, recorded perverse findings, that the suit, was not barred by time? 13. The Counsel for the appellant, submitted that, Gopi Ram (since deceased), the father of the appellant, and the predecessor-in- interest of the respondents, entered into an oral family settlement with his sons Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, to amicably settle the disputes, amongst the family members, in respect of the properties, in dispute, which were the Joint Hindu Family coparcenary properties. He further submitted that, on the basis of that settlement, the appellant, and his brothers, referred to above, became RSA No. 279 of 1993 7 the owners in possession of the suit properties. He further submitted that, thereafter, the Civil Suits, were filed, by his sons, against Gopi Ram, wherein, he admitted their claims, resulting into the passing of the decrees dated 02.04.83, exhibit P2, and 13.04.83, exhibit P3, by the Court of Sub Judge 1st Class, Narwana. He further submitted that these judgements and decrees only acknowledged the oral family settlement, which had already been arrived at amongst the family members, on the basis whereof, they had become the owners in possession of the suit properties, and did not create any right or interest, in the said properties, in them, for the first time. He further submitted that these decrees, being legal and valid, the findings, recorded therein, could not be gone into, in the suit, out of the decision whereof, the instant appeal has arisen. He further submitted that earlier Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, filed a suit, on 18.01.83, against Gopi Ram, wherein also, the latter, admitted their claim, but the same, was illegally dismissed, by the Court of the then Sub Judge, Narwana. He further submitted that, in the subsequent suits, on the basis whereof, the decrees dated 02.04.83 and 13.04.83, were passed, no plea, was taken, by Gopi Ram, in the written statement, that in respect of one of the properties i.e. plot, earlier a suit, was filed, which was dismissed, and the decree therein, operated as resjudicata. He further submitted that a party, could certainly waive the plea of resjudicata, in the subsequent suit, between the same parties, relating to the same subject matter. He further submitted that, even in the face of two conflicting judgements, relating to the same subject matter, the RSA No. 279 of 1993 8 latter, will operate over the former. He further submitted that, even the first Appellate Court, was wrong, in holding, that the suit, was not barred by time. He further submitted that the judgement and decree of the first Appellate Court, being perverse, are liable to be set aside. 14. On the other hand, the Counsel for the legal representatives of deceased respondent No. 1, submitted that the judgement and decree of the first Appellate Court, are legal and valid. He further submitted that the properties, in dispute, were owned by Gopi Ram, exclusively, and, as such, the same being not the Joint Hindu Family Properties, the question of any family settlement/partition, in respect thereof, did not at all arise. He further submitted that, under these circumstances, the decrees dated 02.04.83 and 13.04.83, amounted to creating right, and interest, in the immovable properties, worth upwards Rs. 100/-, and the same in the absence of stamp and registration, were illegal and invalid. He further submitted that, even in the face of the first decree dated 07.02.83, relating to one of the suit properties, vide which, the suit of Daya Ram and his brothers, filed against Gopi Ram, though their claim, was admitted, by the latter, was dismissed, the Civil Court, had no jurisdiction, to adjudicate upon the same subject matter again, by passing decrees P2 and P3. He further submitted that the decree dated 07.02.83, thus, operated as resjudicata. He further submitted that the admission, made by Gopi Ram, was not voluntary. He further submitted that the first Appellate Court, was right, in holding, that the suit, was within time, as the earlier decrees dated 02.04.83 and 13.04.83, were obtained by fraud, and when the same, was detected, by RSA No. 279 of 1993 9 Gopi Ram, he came to the Court, to file the suit. He further submitted that the findings of the first Appellate Court, therefore, being legal and valid, are liable to be upheld. 15. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. It is, no doubt true that, this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, are perverse, on account of misreading or misappreciation of evidence, or law on the point or non-consideration of a material piece of evidence. The first question, that arises for consideration is, as to whether, the decrees dated 02.04.83, exhibit P2, and 13.04.83, exhibit P3, passed on the basis of admission, made by Gopi Ram (since deceased), in the written statements, in favour of his sons, Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, are legal and valid, or not. Exhibit DW6/B, is a copy of the plaint of the Civil Suit, filed by Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, sons of Gopi Ram, against Gopi Ram, wherein, they claimed, that they became the owners of a plot, measuring 500 yards, fully detailed therein, which fell to their share, in an oral family settlement, as the property, in dispute, was the Joint Hindu Family property of the parties, and, on the basis thereof, they became the owners in possession thereof. DW6/A, is a copy of the written statement, which was filed, by Gopi Ram, wherein, he admitted the claim of the plaintiffs, in that suit, RSA No. 279 of 1993 10 and the decree dated 02.04.83, exhibit P2, was passed, on the basis of the admission of claim. Exhibit DW6/E, is a copy of the plaint, in a suit, filed by Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, against Gopi Ram, in respect of the house, as fully detailed therein, against Gopi Ram, wherein, it was stated by them, that the house, in dispute, was purchased by Gopi Ram, out of the Joint Hindu Family funds, and, as such, the same, was the Joint Hindu Family property. It was further stated by them, that the property in family settlement, came to their share, and they had become the owners thereof. DW5/A, is a copy of the written statement, whereby, Gopi Ram, admitted the claim of the plaintiffs therein. Even separate statement of admission, copy whereof, is DW5/B, was made by Gopi Ram, on 13.04.83, and he was duly identified, by his Advocate Sh. Pushkardutt Sharma, resulting into the passing of the decree dated 13.04.83, copy whereof, is P3. It is settled principle of law, that any property, even if purchased, in the exclusive name of the Karta of the Joint Hindu Family, out of the Joint Hindu Family funds, the same becomes the Joint Hindu Family coparcenary property. It means that, Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, had pre- existing right, in the property, in dispute, and, on the basis of family settlement, they became the owners of the same. It was not that the judgements and decrees aforesaid, conferred right and interest, in immovable property worth upwards Rs. 100/-, in favour of Prem Parkash, Ved Parkash, Jai Parkash, and, Daya Parkash, for the first time, and for want of stamp and registration, the same could be said to RSA No. 279 of 1993 11 be null and void. 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. 16. 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 family; (ii) The said settlement must be voluntary and RSA No. 279 of 1993 12 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”. 17. In Maturi Pullaiah Vs. Maturi Narasimham, AIR, 1966, 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 RSA No. 279 of 1993 13 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 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 RSA No. 279 of 1993 14 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 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 RSA No. 279 of 1993 15 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