R.S.A. No. 4088 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4088 of 2007 Date of Decision: 01.12.2009 Smt. Birma wife of Richpal Jayani son of Kanshi Ram and daughter of Sh. Bagrawat, resident of VPO Adampur, Distt. Hisar. ... Appellant Versus 1. Bhal Singh; 2. Puran Mal; both sons of Rang Lal son of Rati Ram; 3. Sheo Narain son of Ami Lal; 4. Het Ram son of Ami Lal son of Sunda; all residents of village Kajla, Tehsil Adampur, Distt. Hisar. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Divay Sarup, Advocate, for the appellant. Mr. Surinder Sheoran, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 07.10.05, rendered by the Court of Civil Judge (Junior Division), Hisar, vide which, it dismissed the suit of the plaintiff, and, the R.S.A. No. 4088 of 2007 2 judgement and decree, dated 04.09.07, rendered by the Court of Additional District Judge, Hisar, vide which, it dismissed, the appeal. 2. The facts, in brief, are that, Bagrawat son of Parbhu (since deceased), was the owner of the land, in dispute. It was stated that after his death, in the year 1944, the plaintiff, being minor, mutation No. 884, in respect of the land, in dispute, was illegally sanctioned, in favour of Ram Piari, defendant No. 4. It was further stated that Ram Piari, suffered a decree, in respect of the land, in dispute, in Civil Suit No. 295 of 1994, titled as 'Bhal Singh and others Vs. Smt. Ram Piari'. It was further stated that the decree dated 09.03.94, was illegally passed, in utter violation of law, as the plaintiff, was the only legal heir to the estate of Ram Piari, who had suffered the same, under pressure of defendants No. 1 to 3, as no family settlement, was arrived at, between the parties. It was further stated that the decree dated 09.03.94, was not got registered. It was further stated that Sheo Narain, defendant No. 3, had no right to transfer his 1/9 share, out of the total land, measuring 170 kanals 14 marlas, situated at village Inchha Kharkhari, in favour of his brother namely Het Ram, through Civil Court decree dated 01.08.94. It was further stated that defendant No. 4, was an illiterate and Parda Nashin lady, and, as such, she was forced, to suffer the decree dated 09.03.94, by defendants No. 1 to 3. The defendants, were many a time, asked to admit the claim of the plaintiff, over the entire land, in dispute, but to no avail. Ultimately, a suit for possession was filed. R.S.A. No. 4088 of 2007 3 3. Defendants No. 1, 2, 3, and 5, filed separate written statements, wherein, they took up similar objections, and contested the suit. It was stated that the suit was barred by the principles of res- judicata, as the plaintiff, had filed a suit, in the year 1978, with regard to the entire property, which was dismissed, on 06.09.78. It was further stated that the decrees, in question, were legal and valid, as Ram Piari, defendant No. 4, was the absolute owner of the property, in dispute, and she had got every right, to alienate the same, in the manner, she liked. 4. Defendant No. 4, filed a separate written statement, stating therein, that she suffered the decree, in question, of her own volition, without any pressure. It was further stated that she inherited the land, in dispute, after the death of her husband namely Bagrawat, as per Hindu Women Right to Property Act, 1937. It was further stated that limited right of defendant No. 4, with regard to the land, in dispute, was converted into absolute right of ownership, after coming into force of the Hindu Succession Act, as she was in possession thereof, at the relevant time. It was further stated that she, being the absolute owner in possession of the land, in dispute, had every right, to suffer the decree, in respect thereof, and the plaintiff, had no right, to challenge the same. 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 R.S.A. No. 4088 of 2007 4 09.03.94 passed by Sh. S.K. Gupta, SJIC, Hisar, in Civil Suit No. 295 of 1994, in favour of defendants No. 1 to 3 regarding the land measuring 218 kanal 4 marlas comprised in khewat No. 114, khatoni No. 273-74, situated in village Kajlan, Tehsil and Distt. Adampur, and further 1/3rd share in land measuring 170 kanal 14 marlas comprised in khewat No. 42, khatoni No. 42, situated in village Inchha Kharkari, Tehsil Adampur, are illegal, void, without jurisdiction thus not binding on the rights of the plaintiff, therefore, liable to be set aside? OPP (ii) Whether the judgement and decree dated 01.08.94, passed by Sh. S.K. Gupta, SSJ, Hisar, in Civil Suit No. 149/94 titled Het Ram Vs. Shiv Narain is also illegal, null and void, without jurisdiction and not binding on the rights of the plaintiff, thus, liable to be set aside? OPP (iii) Whether the defendants are liable to hand over the possession in question to the plaintiff as prayed for? OPP (iv) Whether the plaintiff is estopped by own act and conduct from filing the present suit? OPD (v) Whether the suit is barred under order 23 of C.P.C.? OPD (vi) Whether the plaintiff has not come to the Court with clean hands and suppressed the material facts? OPD (vii)Whether the suit is not maintainable? OPD (viii)Whether the plaintiff has no cause of action to file the present suit? OPD (ix) Whether the suit is time barred? OPD (x) Relief. R.S.A. No. 4088 of 2007 5 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the trial Court, dismissed the suit of the plaintiff. 7. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Hisar, vide judgement and decree dated 04.09.07. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9 A. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on misreading and misappreciation of evidence and law, on the point, that the judgements and decrees dated 09.03.94 and 01.08.94, were legal and valid? 10. The Counsel for the appellant, submitted that the Courts below, recorded perverse findings, that the plaintiff/appellant, was having no locus-standi, to challenge the decree dated 09.03.94, passed in Civil Suit No. 295 of 1994, suffered by defendant No. 4, in favour of defendants No. 1 to 3/respondents, with regard to the land, in dispute, and, decree dated 01.08.94, suffered by Sheo Narain, defendant No. 3/respondent, in favour of Het Ram, defendant No. 5/respondent, in respect of his 1/9 share. He further submitted that, no doubt, the R.S.A. No. 4088 of 2007 6 property, in dispute, was inherited, by Smt. Ram Piari, on the death of her husband Bagrawat, in the year 1944, but, she only became a limited owner thereof, under the Hindu Women Right to Property Act, 1937. He further submitted that, thus, Smt. Ram Piari, could not alienate the same, in favour of defendants No. 1 to 3/respondents. He further submitted that the plaintiff/appellant, being the daughter of Bagrawat, was legally entitled to inherit the property of Ram Piari. He further submitted that, even the decrees, referred to above, being not registered, were not legal and valid, and, liable to be set aside. He further submitted that the plaintiff, being the daughter of Bagrawat, was having locus-standi, to challenge these decrees, as she had right and interest, in the property, in dispute. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that, in the year 1944, Ram Piari, inherited the land, in dispute, on the death of her husband Bagrawat, under the Hindu Women Right to Property Act, 1937. He further submitted that Ram Piari, was in possession of the property, in dispute, at the time of coming into force the Hindu Succession Act, 1956, and, as such, according to Section 14(2) of the said Act, she became the absolute owner thereof. He further submitted that, under these circumstances, Ram Piari, was competent, to alienate the property, in favour of the respondents, in the manner, she liked. He further submitted that, since R.S.A. No. 4088 of 2007 7 the plaintiff, was not competent, to inherit the property of Bagrawat, her father, in the year 1944, when he died, and the succession never remained, in abeyance, she could not acquire any right and title, in the said property. He further submitted that the Courts below, were right, in holding, that the plaintiff, had no locus-standi, to challenge the decrees, referred to above. He further submitted that, even the judgements and decrees, did not require registration, as the same, were passed, on the basis of a legal and valid family settlement and the admission of claim of the defendants/respondents, by Ram Piari and Sheo Narain. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in R.S.A. No. 4088 of 2007 8 the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Admittedly, Bagrawat, husband of Ram Piari, defendant, died, in the year 1944. As stated above, succession never remains, in abeyance. Immediately, on the death of Bagrawat, the succession opened. Ram Piari, inherited that property, under the Hindu Women Right to Property Act, 1937. She remained, in continuous possession of the property, in dispute, and was also in possession, at the time of coming into force of the Hindu Succession Act, 1956. Accordingly, in view of the provisions of Section 14(2) of the Act ibid, she became, the full-fledged owner thereof. Since, she became the full-fledged owner of the property, in dispute, after coming into force the Hindu Succession Act, 1956, she had every right, to suffer the decree, in favour of anybody, she liked. Even otherwise, defendants/respondents No. 1 to 3, are nearly related to Ram Piari. She never challenged the decree dated 09.03.94. She on the other hand admitted the legality and validity thereof, in the written statement. Even Sheo Narain, has not challenged the decree dated 01.08.94. Since the plaintiff/appellant, had no right, to inherit the property of her father, in the year 1944, she could not claim any title therein. The Courts below, were, thus, right in holding, that the plaintiff/appellant, had no locus-standi, to challenge the decree dated 09.03.94, passed, in Civil Suit No. 195 of 1994, and the decree dated 01.08.94, passed, in Civil Suit No. 149 of 1994. The findings of the R.S.A. No. 4088 of 2007 9 Courts below, in this regard, being correct, are affirmed. 13. The next question that arises for consideration is, as to whether, the decrees aforesaid, were passed, on the basis of legal and valid family settlement, arrived at, between the parties, and, whether for want of registration, the same, did not confer any right and title on the defendants. 14. 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, it was held, as under: - “(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 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; R.S.A. No. 4088 of 2007 10 (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”. 15. 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 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 R.S.A. No. 4088 of 2007 11 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, 1927 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 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 R.S.A. No. 4088 of 2007 12 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 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 R.S.A. No. 4088 of 2007 13 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 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 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 R.S.A. No. 4088 of 2007 14 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 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 3/4 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 R.S.A. No. 4088 of 2007 15 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,