RSA No. 969 of 1979 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDGIARH Case No. RSA No. 969 of 1979 Date of decision : 27.9.2006 Chand Kaur ... Appellant Versus Kartar Singh and others ... Respondents ... Present: Mr. M.L.Sarin, Senior Advocate with Mr. Hemant Sarin,Advocate for the appellant. Mr. S.S.Bhinder, Advocate for the respondents. ... RANJIT SINGH, J Shrimati Chand Kaur is in appeal against judgment of reversal whereby the suit for possession decreed in her favour by the trial Court has been reversed by the first Appellate Court. Substantial question of law in regard to the legal effect of deed of family settlement relied upon by the appellant and requirement of registration of such a deed and that of the relinquishment deed relied upon by the respondents to say that the appellant had relinquished her right would arise in the present appeal. The facts, in brief, are that one Arjan Singh had 3 sons, named Kartar Singh, Sardara Singh and Modan Singh. Appellant, Chand Kaur is the widow of Modan Singh. Said Modan Singh had predeceased his father Arjan Singh. During his life time, Arjan Singh partitioned agricultural land owned by him in four equal shares amongst himself, his two sons and appellant-widow, Chand Kaur. Consequent upon this partition, each one of the persons referred above, was given separate possession of parcels of land falling to his/her share. It is in this manner RSA No. 969 of 1979 2 that appellant, Chand Kaur came to possess the suit land. This partition deed dated 23.4.1957 was reduced into writing and was produced on record as Exhibit A/1. As per the averments in the plaint, Arjan Singh was having 1/2 share in the land measuring 718 Kanals 18 Marlas and, thus, was holding 359 Kanals 9 Marlas of land. The appellant had further claimed in the suit that she gave the suit land to Arjan Singh and his sons ( defendants) for cultivation on payment of Batai. Since the defendants did not pay the rent or Batai to the appellant, she approached the Revenue Court for recovery of the same. The defendants continued to cultivate the suit land of the appellant and were also shown as tenants at Will under her in Girdawri entries pertaining to the year 1963-64. The appellant, however, averred in the plaint that later in collusion with the Revenue Officials, the defendants got the entries changed in their favour which forced her to file the present suit leading to the present appeal. The suit was hotly contested by the defendants. They denied the fact of partition, as alleged in the plaint. The defendants,inter-alia, have pleaded that neither Arjan Singh partitioned his land nor the suit land was made over to the appellant. It is stated that in any event, the appellant, vide agreement dated 3.4.1967, had relinquished her rights to get maintenance from Arjan Singh to which she was entitled to under law. Plea was that the appellant had no lawful title to the suit land and that the defendants were in possession of it since long. Other objections, relating to the suit being barred by principles of res judicata and that it was hit by limitation and that it suffered from non-joinder of necessary parties, were also raised. On the pleadings of the parties, trial followed on the following issues :- (1) Whether the plaintiff is the owner of the suit land or to what extent ? OPP (2) Whether the suit is barred by the principles of res-judicata?OPD (3) Whether the suit is within time ? OPP RSA No. 969 of 1979 3 (4) Whether the suit is bad on account of non-joinder of necessary parties ? OPD (5) Whether the plaintiff has no cause of action ? OPD (6) Relief. In support of her claim, appellant produced one Kaur Singh as PW-1. He was Naib Panch of the Halqa R.Kalan. PW-1 deposed that the settlement between Chand Kaur, appellant and Arjan Singh, had been arrived at in his presence and that the terms of the said agreement were reduced into writing. PW-1 also proved the writing of the agreement in question dated 23.4.1957 as he was the marginal witness to the said agreement. A copy of this agreement was produced on record and marked Exhibit A/1. The defendants had taken serious objection to admissibility of this writing in evidence on the ground that this was unstamped and unregistered. This objection of the defendants, however, was rejected by the trial Court after recording cogent reasons and dealing with the same in detail. The trial Court, instead of treating this writing, Exhibit A.1 as a partition deed, found it to be a gift deed and relied on this as such. In this regard, the trial Court first found that the objection to the admissibility of this document as having not been stamped and unregistered could not validly be made in view of the factual position. It is on record that this writing dated 23.4.1957 was produced in the Revenue Court in the suit filed by the appellant for recovery of arrears of rent. This deed was admitted as a deed of partition of agricultural land. Since this deed was found unstamped, stamp duty and penalty were charged. Against this, Kartar Singh-defendant had brought a revision petition in the Court of Collector at Bathinda where, on 30.5.1964 it was accepted to be a gift deed. It was also found that being a gift deed it ought to have been charged as such under the Stamp Act, 1899. In this background, the case was forwarded to Commissioner, Patiala Division for onward RSA No. 969 of 1979 4 transmission to Financial Commissioner, Panjab. Later the case was remanded to Collector, Bathinda for decision, who acting under Section 61 of the Stamp Act, 1899, held that Chand Kaur appellant was liable to pay Rs.200/- as stamp duty and Rs.20/- as penalty. Appellant-Chand Kaur was, accordingly, required to pay a sum of Rs.220/- less the amount she had already paid. Following the said order, the appellant had deposited this amount into the government treasury. The order passed by the Collector dated 29.8.1966 and the treasury challan (Mark 'C') (Exh. P-6 and P-7) are on record. In this view of the evidence, the trial Court found that the objection in regard to admissibility of this writing on the ground that it was unstamped could not be sustained. Proceeding ahead and while dealing with the objection regarding requirement of registering this document, the trial Court found that no one had set up a case before it that the parties to the litigation constituted a Joint Hindu Family with Arjan Singh as its Karta. Trial Court observed that it had not been pleaded that immovable property in the hands of Arjan Singh was ancestral or coparcenary property. The Court also noticed that the appellant had not pleaded any custom governing the parties vide which Arjan Singh was competent to transfer this land amongst his sons by way of partition etc. during his life time. However, the writing clearly showed that he did transfer 1/4th share in the land to the appellant. It is in this background that this writing was treated as a gift deed which was also the finding returned by the Collector in his judgment referred to above (Exh. P-6). Another reason noticed by the trial Court to term this writing as a gift deed was the cumulative effect of proceedings in the rent case and the provisions of the Transfer of Property Act. It was noticed by the trial Court that Section 123 of the Transfer of Property Act was extended to the erstwhile State of Pepsu with effect from 15.5.1957 and, as such, prior thereto a gift of immovable property of the value of more than Rs.100/- could be made orally. Accordingly, on 23.4.1957, oral gift of this immovable property was permissible. It was also noticed that mode of a gift RSA No. 969 of 1979 5 was delivery of possession of the gift which was revealed from Khasra Girdawari entries, Exhs. D.8 and D.7. It is made out from the entries that appellant Chand Kaur was delivered possession of the suit land and Sardara Singh and Kartar Singh were cultivating the same as tenants at will under her. This fact can further be made out from the proceedings initiated by the appellant in the Revenue Court for recovery of rent when the defendants failed to pay the Batai. The order of Collector passed in this regard would show that the parties had arrived at a compromise in the proceedings in the rent case. It was urged that the appellant had withdrawn the case when some rent was paid to her on account of the compromise. This contention, as noticed by the trial Court, had gone unchallenged. Taking the facts and circumstances in totality, the trial Court came to the conclusion that the suit land had been gifted to the appellant and she had possessed the same as a donee (owner). Defendants, on the other hand, had placed strong reliance on a deed dated 3.4.1967 which was brought on record through Mukhtiar Singh, DW-1 and Bachitar Singh, DW-2. As per the evidence, this agreement had been executed between the appellant on the one hand, and Arjan Singh, on the other. This contains a recital which was taken as admission on the part of the respondents by the trial Court to the effect that some land was given to Chand Kaur, appellant in view of maintenance. Objection in regard to the admissibility of this document on the ground of non-payment of proper stamp duty and want of registration was raised. Before dealing with this objection, the trial Court noticed that this could still be looked into for collateral purpose even if it was not properly stamped or not registered despite the said requirement. Considering this document for this collateral purpose, the trial Court placed reliance on the same to conclude that the suit land, in fact, had been gifted to appellant, Chand Kaur or was made over to her in lieu of maintenance. Relying upon the Explanation appended to Section 14(1) of Hindu Succession Act, 1956, it was held that Chand Kaur, appellant would hold RSA No. 969 of 1979 6 this property as its full owner. It was also noticed by the trial Court that there was no evidence to show that the terms of this gift deed contained any restriction or gave a restricted estate to the appellant. Accordingly, it was held that the provisions of Section 14(2) of Hindu Succession Act, 1956 were not attracted in this case. It was further held by the trial Court that non-registration of writing, Exhibit A-1 was inconsequential as the provisions of Section 123 of the Transfer of Property Act were not in force on the date this writing was made. Dealing with the submission that even in the absence of the applicability of the provisions of Section 123 of the Transfer of Property Act, this document was required to be compulsorily registered under Section 17 of the Indian Registration Act, it was held by the trial Court that the same could be looked into to ascertain the nature of possession of land and when the same was read in conjunction with the agreement dated 3.4.1967, Exhibit D-1 it would clearly reveal that the suit land in question was made over to the appellant in lieu of her maintenance rights. Accordingly, it was again reiterated that appellant would hold the said land as full owner in view of the Explanation given under Section 14(1) of the Hindu Succession Act. The statement made on behalf of the defendants in regard to major portion of the suit land coming to the hands of the defendants as workers on being declared surplus out of land holding of Arjan Singh was also repelled on the ground that said order subsequently had been set at naught by Commissioner, Patiala Division. It was also noticed that the case was remanded by the Commissioner to the Collector for ascertaining the surplus area afresh. Thereupon, the Collector vide his order dated 28.7.1974 had held that consequent upon the death of Arjan Singh, no proceedings were required to be taken to find that the land had been declared surplus. The trial Court, thus, rightly observed that this order could not be referred to or relied upon as it did not exist in the eyes of law. Accordingly, it was held by the trial Court that appellant-Chand Kaur was the full owner of the suit land. The argument of defendants' counsel that appellant Chand RSA No. 969 of 1979 7 Kaur had relinquished her rights in the suit land on receipt of Rs.9,500/- as her life time maintenance advanced on the basis of agreement deed dated 3.4.1967, was also rejected by the trial Court on the ground that the appellant had become the full owner of this land much prior to the date of agreement dated 3.4.1967. It was further held that this agreement also required compulsory registration under Section 17(1) (b) of the Indian Registration Act. In view of the bar laid down under Section 49 of the Indian Registration Act, it was found that this agreement would have no effect whatsoever on the rights of the appellant. The first Appellate Court, however, found fault with the finding returned by the trial Court. On the basis of plea raised before the trial Court, writing Exh.A/1 and D/1 produced by the respective parties were found to have been sufficiently proved. The Appellate Court further found that the provisions of Section 123 of the Transfer of Property Act did not apply when agreement, Exh.A/1 was executed and accordingly held that the oral gift of immovable property was permissible. The first Appellate Court, however, held that this deed would be covered under the provisions of Section 17 of the Indian Registration Act and would require compulsory registration. In this regard, reliance was placed on certain judgments noticed in the order. It was, accordingly, held that in view of the provisions of Section 49 of the Indian Registration Act, this could not be received in evidence of any transaction affecting such a property. The first Appellate Court also found fault with the finding of the trial Court whereby this deed had been termed as a gift deed. It was held that delivery of possession was essential in order to constitute a valid gift. As per the first Appellate Court, possession had not been shown to have been delivered to appellant-Chand Kaur. The Court did not place much reliance on the solitary entry in Khasra Girdwari for the year 1962-63 showing defendants to be cultivating the land under the appellant being a solitary entry. It was further observed that this was manipulated as the defendants had consistently been shown to be in possession of the suit land prior and subsequent RSA No. 969 of 1979 8 to the said entry. While referring to the fact of suit instituted by Chand Kaur for recovery of rent, the first Appellate Court held that the same was withdrawn without any adjudication on merits and termed this as good as having not been filed. The first Appellate Court also found that there was no evidence showing payment of rent at the time of compromise in this suit and, accordingly, held that there was no sufficient evidence to show that the appellant had been delivered possession of this land. On behalf of the appellant, it was argued before the first Appellate Court that the agreement, Exhibit A/1 being a family settlement or family arrangement arrived at to resolve the dispute of right and for preservation of amity, did not require compulsory registration. In this regard, judgment in the case of Ram Charan Das versus Girja Nandini Devi and others, AIR 1960 SC 323 was relied upon. The first Appellate Court held that it was inclined to view this deed as a family arrangement. The Court then went on to hold that still it would require registration in view of the law laid down in Maturi Pullaian and another versus Maturi Narasimhan and others, AIR 1966 SC 1838. By referring to a judgment in the case of Kale and others versus Deputy Director of Consolidation and others, AIR 1976 SC 807, the Appellate Court noticed that family arrangement could be used for collateral purpose even if it had not been registered but still did not place any reliance thereon by saying that the appellant Chand Kaur was not in possession of any part of the suit land, a purpose for which it could be used. As per the first Appellate Court, this could also be used as estoppel by preventing the parties from resiling from the same having taken advantage under the arrangement. The Court also observed that this document will, rather, operate as estoppel against the appellant as by receiving a sum of Rs.9,500/- she could not be permitted to turn around and claim 1/4th share in the suit land. No such plea had ever been raised on behalf of the respondent either in the pleading or during the argument but still this was taken note of on the ground that this was a question of law that arises from the proceedings. The first Appellate RSA No. 969 of 1979 9 Court, accordingly reversed the finding of the trial Court and hence the present Regular Second Appeal. I have heard counsels for the parties. Mr. M.L.Sarin, learned Senior Counsel appearing on behalf of the appellant has raised a serious attack to the judgment and finding recorded by the first Appellate Court on a number of grounds. He has drawn my attention to substantial question of law that would arise in the present appeal. Counsel would submit that the status of document, mark 'A' and the requirement of its registration, accordingly, would be first substantial question of law that would require tobe determined. Similarly, it is also to be seen if the document, Exhibit D-1 which is relinquishment deed required registration and also if this document could be read to say that family arrangement, Exhibit A/1 had been recognized therein. As per counsel, the issue of appellant becoming full owner in terms of the provisions of Section 14(1) of Hindu Succession Act would arise in this case. It is not disputed before me that these questions of law do arise in this appeal and, accordingly, I would proceed ahead to determine the same. Mr. Sarin would first submit that document, Exhibit A/1 was a family arrangement/settlement and, as such, it did not require registration. He would also contend that oral family settlement would not require registration as per the settled position of law. In support of this submission, counsel has placed reliance on the cases of Ram Charan versus Girja Nandini, AIR 1966 SC 323; Shambhu Prasad Singh versus Most. Phool Kumari and others, AIR 1971 SC 1337; Kale and others Versus Deputy Director of Consolidation and others, AIR 1976 SC 807; and Roshan Singh and others Versus Zile Singh and others, AIR 1988 SC 881. The next submission of Mr. Sarin is that document, Exhibit D/1 which was admittedly a deed of relinquishment was required to be compulsorily registered. He would, accordingly, submit that this document could not be taken RSA No. 969 of 1979 10 into consideration being inadmissible in evidence as the same was not registered. Though not registered and thus could not be relied upon, yet the same could be looked into for collateral purpose especially to see if this document had recognized the family arrangement/settlement reflected in Exhibit A/1. In support of his contention that this document was compulsorily required to be registered, the counsel has drawn my attention to a number of judgments which are Gurnam Singh versus Smt. Aas Kaur and others, AIR 1977 Punjab and Haryana 103; Shanti Devi and another versus Jagdish Parshad and another, (1986-1) PLR 26; Dina Ji and others versus Daddi and others, AIR 1990 SC 1153. He has also referred to a case of Smt. Pyar Kaur and others versus Smt. Harbans Kaur and others, 1983 PLR 354 to urge that statement made regarding relinquishment of right in the land in dispute where the property is valued more than Rs.100/- cannot result in vesting a title in the other person. Apart from the above mentioned submission, Mr. Sarin would further contend that the appellant had become full/absolute owner of the property by virtue of provisions of Section 14(1) of Hindu Succession Act which has also been wrongly reversed by the first Appellate Court. He has placed reliance on V.Tulasamma and others versus Sesha Reddy (dead) by LRs, (1977) 3 Supreme Court Cases 99, which has recently been followed in the case of Raghuvir Singh and others versus Gulab Singh and others, JT 1998 (4) SC 579. In view of the aforementioned judgments, Mr. Sarin would say that the judgment of the first Appellate Court cannot be sustained and, as such, the judgment passed by the trial Court needed to be restored. On the other hand, Mr.S.S.Bhinder appearing on behalf of the respondents would find fault with the judgment of the trial Court to support the view and the finding returned by the first Appellate Court. As per counsel for the respondents, appellant-plaintiff has been wavering in her stand and has some times termed Exhibit A/1 as a gift deed whereas subsequently she has described this as a family settlement. Counsel has further submitted that Exhibit A/1 is a vague and RSA No. 969 of 1979 11 unregistered document and hence cannot be relied upon. This document had also been termed as a gift deed and not as a family settlement and hence was required to be compulsorily registered. He would also contend that the appellant had failed to prove her possession over the property or that the possession thereof was delivered to her at the time of execution of this document. Reliance on one odd entry in the Girdawari, as per counsel, cannot be placed to prove possession of the appellant as was held by this Court in Jai Ram versus Gram Panchayat Dehlka, 1978 PLJ 43. While making submission, the counsel apparently made an attempt to resile from Exhibit D/1 on the ground that execution thereof was denied by the appellant. Having regard to the rival contentions raised before me as above, it is first required to be seen whether the document, Exhibit A/1 can be termed as family settlement or not and whether this document required compulsory registration. It is the case of the appellant-plaintiff that Exhibit A/1 was a family settlement. Trial Court, however, for the reasons as was noticed in the earlier part of this judgment, had termed this document to be a gift deed. It was argued before the first Appellate Court and also before me that this writing, in fact, embodied a family arrangement which was brought about amongst the members of the same family to resolve the dispute and right for preservation of peace and amity in the family. It was, accordingly, contended that this did not require compulsory registration. The first Appellate Court, as can be seen from the finding recorded in para 13 of its judgment, had accepted this plea and had viewed the said deed as a family arrangement. The necessary observations in this case are “ I too am inclined to view that the deed, mark A/1 does partake the character of family arrangement and is not a gift deed.'' Having held so, the first Appellate Court, however, went on to observe that this document still required compulsory registration. It was found by the first Appellate Court that the appellant had acquired title to the suit property through this document and there was no evidence of any oral agreement having RSA No. 969 of 1979 12 preceded the same. This finding of the first Appellate Court is under serious attack on behalf of the