RSA No. 750 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 750 of 2002 Date of decision 16.4.2009 Khushi Ram and others ...Appellants Versus Nawal Singh and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. Sanjay Sehrawat,Advocate for the appellants Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgement and decree passed by both the Courts below dismissing their suit. When the appeal came up for admission on 18.1.2005, the following question of law was framed: “ Whether in the absence of any pre-existing right with the defendant- respondents 1 to 3, a decree ( Exhibit P.2) suffered by Jagno (who is father's sister of defendant- respondent) required registration under Section 17(1) of the Indian Registration Act, 1908 ?” In order to appreciate the controversy it would be necessary to extract pedi-degree table which is as under: RSA No. 750 of 2002 2 PEDIGREE OF APPELLANTS BADLU ....................................................................................................... : : [Bali Ram] [Sher Singh] : (died issueless in 1953) : : : Jagno (Widow) : (Defendant-respondent no.4) :............................... : : [Daya Ram] Khushi Ram : (Plaintiff-Appellant No. 1) : :............................................ : : Naresh Ramesh (Plaintiff-Appellant No.2) ( Plaintiff-Appellant no.3) PEDIGREE OF RESPONDENTS [Shib Lal] .............................................................................................................. : : : : [Mam Chand] [Ranjit] [Chiranji] [Jagno] : : : Nawal Singh Narain Singh Sarup Singh (Defdt.-Respondent no.1)(Defdt.-Respondent no.2) : : Parmanand (Defedt.-Respondent no.3) ...... It has come on record that Sher Singh died issueless in 1953. His widow Jagno, defendant- respondent no.4 ( who died during the pendency of the proceedings) became absolute owner of the landed and other property to the extent of half share. This fact has not been disputed by both the parties. It has also remained undisputed that Jagno died in the year 1993 and did not re-marry. The ld. Addl. District Judge has recorded a categorical finding that after the death of her husband she had been living with her parental family where she died at village Chakarpur. The aforesaid findings have been recorded in paras 14,15 and 16 which reads thus: “14. The word 'family' as appears in the expression family RSA No. 750 of 2002 3 settlement is not having the narrow meaning of coparcenary. Although after her marriage Jagno was left with no ties with her parental family and she was transplanted in the family of her husband, she being issueless was left alone on the death of her husband. The plaintiffs may be saying in so many words that they had been serving Jagno who was called Baghtani, they could not conceal the truth. The truth becomes evident in the plaint itself when the plaintiffs claimed that defendant nos. 1 to 3 had undue influence over defendant no.4, it pre-supposes that Jagno was living with them and not with the plaintiffs. She could be taken to the court for partition of the land of village Chakarpur only if she was living with the defendants and not with the plaintiffs. The very first witness examined by the plaintiffs named Dharam Singh admits that for 4 years before her death she was living in village Chakarpur. Hoshiar Singh PW also admits that Jagno died in Chakarpur. 15.None of the plaintiffs appeared in the witness box. On their behalf one Rang Rao Singh is examined. This Rang Rao Singh claims himself to be special attorney of Khushi Ram plaintiff. Khushi Ram plaintiff is stated by the attorney himself to be aged 50 years. In the documents Ex.P.1, the special power of attorney the executant claims himself to be unable to attend the court and he appointed Rang Rao Singh as his special attorney. He was no where given the authority to appear as a witness. The attorney is moreover not the son of anyone of the plaintiffs. By the appearance of Rang Rao Singh as PW 3 it can be said RSA No. 750 of 2002 4 that the party has appeared in his own cause. The plaintiffs have clearly failed to appear in their own cause and adverse inference can be drawn against their case. All these circumstances compel me to believe that in her last days, she did not live with the plaintiffs but she lived with the defendants and she died with the defendants at village Chakarpur. 16. A woman who did not have a child and whose husband had died would shift to her parental family only if she does not find any support in the family of her husband.”(emphasis added) The Ist Appellate Court also considered the question whether the plaintiff- appellants had any cause of action to file suit during life-time of Jagno and answered the same in negative. It has come on record that Jagno has suffered a decree in favour of defendant- respondents passed in Civil Suit No.317 of 1991 of 19.7.1991. The aforesaid judgement and decree recognised the oral family settlement reached between Jagno and defendant- respondents. The aforesaid finding is supported by the averments made in Civil Suit No. 317 dated 19.7.1991 (Ex.DW 5/A). With regard to family settlement which took place about two years before the filing of the suit, averments have been made in paras 3 and 4 of the suit which reads as under: “ 3. That the defendant is living with the plaintiffs at village Chakerpur and the plaintiffs are looking after her in her old age and the defendant has no issue. The deft. is very happy with the services of the plaintiff rendered to her and out of love and affection, the deft had allotted the above mentioned land to the RSA No. 750 of 2002 5 plaintiffs in equal share in a family settlement/ arrangement, which took place about 2 years back and since then the plaintiffs are owners in possession of the said land and the deft had relinquished all rights therein. 4. That the time of said family/settlement/ arrangement had promised to transfer the suit land in the names of the plaintiffs and to get the revenue entries corrected accordingly.” The aforesaid averments made in the suit were accepted by Smt. Jagno, defendant- respondent no. 4, the widow of Sher Singh. The defendant- respondents 1 to 3 had sought declaration to the effect that they were owner in possession of the suit land which was conceded by Jagno. The oral family settlement was the basis of the judgement and decree dated 19.7.1991 passed in the civil suit filed by defendant respondent nos. 1 to 3 and such a judgement and decree did not require any registration because it recognise the rights flowing from oral family statement. The findings recorded by the Addl. District Judge on the aforesaid issue makes an interesting reading which are as under: “.... The only dispute in the present case is on the question as to whether any rights for the first time have been created in favour of defendant nos. 1 to 3 in the suit land by the decree in question. If the defendants no. 1 to 3 had no pre-existing right in the suit property to defendants no. 1 to 3 then it required registration as per the ratio of the decision of Hon'ble Supreme Court in case reported as Bhoop Singh v. Ram Singh Major and others 1995(2) LJR 714. For deciding this question one has to see as to whether there could be a valid family settlement RSA No. 750 of 2002 6 between the defendants. The fact that a family settlement can be oral, would not require much of my attention. A family settlement requires registration only if it is reduced to writing. Even if the terms of a family settlement are taken down in writing after it had actually taken place by way of memorandum, it still does not require registration. For my aforesaid views, I may rely on the ratio of a decision of Hon'ble Supreme Court in a case reported Bakhtawar Singh Versus Gurdev Singh and another 1997 HRR 33........” The learned first Appellate Court has also opined that there could be a family settlement between the defendant- respondents 1 to 3 and Jagno defendant- respondent no.4. He found that defendant respondent nos. 1 to 3 have not been stranger to Jagno and therefore it could not be claimed that they must necessarily belong to one family. In that regard, learned Ist Appellate Court placed reliance on the judgement of Hon'ble Supreme court in the case of Krishna Behari Lal v. Gulab Chand and others 1971 (1) SCC 837. It was found that it is enough if parties to a family settlement are near relations. In concluding para 22, the learned Appellate Court has recorded a categorical finding showing that defendant respondent nos. 1 to 3 had love and affection with Jagno defendant-respondent no. 4. The findings in that regard reads thus: “ As I have already noticed the defendants are near relations of defendant no.4. They cannot be said to be strangers to her. As per the admission of Jagno herself they had been serving her in her last days. She must have developed love and affection for them. She was the absolute owner of the suit property and RSA No. 750 of 2002 7 defendants no. 1 to 3 could look to her for the land in question in return for the services they rendered to her. This itself is sufficient to hold that defendant nos. 1 to 3 had a semblance of right to the suit property and the family settlement which is claimed by defendant no. 1 to 3 in the previous suit and admitted by defendant no.4 would come to the rescue of defendants no. 1 to 3. On the date of passing of the decree, under the family settlement they had a pre-existing right in the suit property and the said right has been recognized by the Court while passing the decree on 19.8.1991.This decree did not require registration. In these circumstances, I find no reasons to differ from the findings of the learned trial Court on issue no. 2 to 5......” Mr. Sanjay Sherawat, learned counsel for the plaintiff- appellants has vehemently argued that no right could be created by oral family settlement between defendant-respondents 1 to 3 and deceased Jagno, defendant- respondent no. 4. According to the learned counsel the provisions of Section 17(2) of the Registration Act,1908 are mandatory and in the absence of registration of such a transaction no right could be conferred. In that regard, he has placed reliance on a judgement of Hon'ble the Supreme Court in the case of Bhoop Singh v. Ram Singh Major AIR 1996 SC 196 and argued that a family settlement in the present case and judgement and decree dated 19.8.1991 ( Ex.P.2) were compulsorily registerable as there was no antecedent and pre-existing right. Mr. Sherawat has also submitted that under Section 123 of the Transfer of Property Act, 1882 no gift of immovable property could be made by mere delivery of RSA No. 750 of 2002 8 possession. In that regard, he has placed reliance on a judgement of the Delhi High Court in the case of Wg.Cdr. R.N.Dawar v. Shri Ganga Saran Dhama AIR 1993 Delhi 19. Mr. Arun Jain, learned Senior Counsel has however placed reliance on a judgement of Hon'ble the Supreme Court rendered in the case of Som Dev and others v. Rati Ram and another (2006) 10 SCC 788 which has upheld the view taken by this Court dismissing the appeal of Som Dev which is reported as Som Dev v. Rati Ram 2006(1) PLR 609. The learned counsel has argued that similar question of law was framed and it was held that if a judgement and decree has recognised already existing family settlement then it would not require registration because the rights are not being created for the first time. He has also placed reliance on another judgement of this Court in the case of Smt. Sunehri Devi v. Pritam Singh and others 2006(2) RCR (Civil) 1 pointing out that guiding principles have been laid down in the judgement of Hon'ble the Supreme Court rendered in the case of Kale v. Dy. Director Consolidation (1976) 3 SCC 119 and Ram Charan Dass v. Girija Nandini Devi AIR 1966 SC 323. He has submitted that Section 17(2) of the Registration Act, 1908 would not be attracted in such like cases. Having heard the learned counsel for the parties and perusing the record with their able assistance I am of the considered view that the question of law framed in this case has to be answered against the plaintiff- appellants and in favour of defendant- respondents. In Kale's case (supra), Hon'ble the Supreme Court has emphasized the object of a family settlement by observing as under: “The object of the arrangement is to protect the family from RSA No. 750 of 2002 9 long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. To-day when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. 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. (emphasis added) The aforementioned view becomes more pronounced from the reading of judgement of Hon'ble the Supreme Court in the case of Ram Charan Dass v. Girija Nandini Devi, AIR 1966 SC 323. According to Hon'ble the Supreme Court a family settlement cannot RSA No. 750 of 2002 10 be discarded merely on the ground that there were no pre-existing rights or there were no relationship entitling a party to assert the right of succession. It has been observed in paras 10 and 11 that 'a semblance of relationship say love and affection is sufficient to sustain a family settlement'. It has further been observed that if such a family settlement has been acted upon and a consent decree or a writing based thereon has been executed then it cannot be ignored for want of registration as contemplated by Section 17(2) of the Registration Act, 1908. “ (emphasis added) When the aforesaid principles are applied to the facts of the present case it becomes evident that out of love and affection developed for defendant- respondent nos. 1 to 3 an oral family settlement was arrived at between defendant respondents 1 to 3 and Jagno,defendant- respondent no. 4- widow of Sher Singh. It find expression in the filing of Civil Suit No.317 dated 19.7.1991, which was decreed in favour of defendant respondents 1 to 3 on 19.8.1991 (Ex.P.2). The judgement and decree rendered in the civil suit merely recongise the existing rights which have emerged from the oral family settlement. Apart from the relationship of Jagno with defendant- respondents 1 to 3 she has developed close affinity, love and affection for defendant respondent nos. 1 to 3 as per the findings recorded by the learned Courts blow. Once the Hon'ble Supreme Court has taken the view in Ram Charan Dass's case (supra) in paras 10 and 11 that semblance of relationship like love and affection is sufficient to sustain the family settlement then no doubt is left that the judgement and decree passed by the first Appellate Court does not suffer from any legal infirmity warranting interference of this Court. Accordingly the question of law is liable to be answered against RSA No. 750 of 2002 11 the plaintiff-appellants and in favour of the defendant- respondents. In view of the above, the appeal fails. The question of law is answered against the plaintiff-appellant and in favour of defendant- respondent. Therefore I hold that the suit of the plaintiff-appellants has been rightly dismissed by both the Courts below. Accordingly this appeal also fails and is hereby dismissed. 16.4.2009 (M.M.Kumar) okg Judge