RSA No.2515 of 2003(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2515 of 2003(O&M) Date of decision: 19.2.2009 Ram Lal and another ......Appellants Versus Duli Chand and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ajay Jain, Advocate for the appellants. Mr. Amit Jain, Advocate for respondents No.1 and 2. Mr. Satish Bhardwaj, Advocate for respondents No.6 and 7. * * * Rakesh Kumar Garg, J. This is plaintiffs’ second appeal challenging the judgment and decrees of the Courts below whereby their suit, for declaration to the effect that judgment and decree dated 19.9.1994 in Civil Suit No.903 of 1994 titled as Devi Ram etc. v. Chunni is illegal, null and void and is not binding upon the rights of inheritance of the plaintiffs and defendants No.3 to 5 in respect of the suit land and the plaintiffs and defendants No.1 to 5 are entitled to inherit the same through natural succession in equal shares and further for passing a decree of permanent injunction restraining defendants No.1 and 2 from interfering into the cultivating possession of the plaintiffs to the extent of half share of the suit land by way of illegal and forcible dispossession, has been dismissed. As per the averments made in the plaint, the case of the plaintiff-appellants in brief is that Chunni son of Natthan, was father of the parties. The suit land was his self owned property. At the time of death, his RSA No.2515 of 2003(O&M) 2 age was 70 years. In the month of January, 1985, he had made a family settlement in presence of the parties and members of brotherhood whereby he distributed the suit land into four equal shares according to which the plaintiffs and defendants No.1 and 2 were given ¼ th share each for cultivation and possession was also given and defendants No.3 to 5 were not given any land for cultivation as they were married and living in their matrimonial villages. For the last two years, Chunni was sick and had lost his sense of judgment but defendants No.1 and 2 in the absence of the plaintiffs and defendants No.3 to 5 taking undue advantage of his ailment got passed a consent decree dated 19.9.1994 from Chunni in respect of the suit land in civil suit No.903 of 1994 titled as Duli Chand etc. v. Chunni from the court of Additional, Senior Sub Judge, Palwal which is illegal, null and void and liable to be set aside on the grounds inter alia that no such family settlement ever took place; that it was an act of undue influence and undue advantage of his illness; that it was a result of fraud and illegal collusion between defendants No.1 and 2 and deceased Chunni; that decree has created right for the first time in favour of defendants No.1 and 2; that value of land more than Rs.100/- and thus, the decree required compulsory registration and thus, the plaintiffs along with defendants No.3 to 5 are entitled to inherit the suit land to the extent of their respective share but defendants No.1 and 2 on the basis of impugned judgment and decree dated 19.9.1994 were bent upon to dispossess the plaintiffs from the suit land to the extent of half share of the land which the plaintiffs were cultivating since January, 1985 under the family arrangement. Hence, the suit. Defendants No.1 and 2 contested the claim of the plaintiff- appellants and filed joint written statement, taking therein various legal objections. On merits, it was admitted that Chunni was owner of the suit RSA No.2515 of 2003(O&M) 3 land but now defendants No.1 and 2 were owners in possession of the suit land in view of the judgment and decree dated 19.9.1994. It was denied that Chunni was suffering from ailment or in the year 1985 he made any family settlement or distributed the suit land into four equal shares or delivered possession to the plaintiffs or the alleged family settlement was for cultivation. It was pleaded that Chunni deceased relinquished his right, title and interest in favour of defendants No.1 and 2 in lieu of the services rendered to him as he was residing with them prior to his death and in a family settlement, out of his free will, gave the suit land to defendants No.1 and 2 and said settlement was confirmed in decree dated 19.9.1994. All other allegations and the grounds taken by the plaintiffs to challenge the decree were denied. It was further pleaded that decree dated 19.9.1994 confers pre-existing right of the contesting defendants in the suit land. It was further pleaded that the plaintiffs had already obtained their share from the joint family property equal to the share of defendants No.1 and 2. It was further pleaded that since the plaintiffs are out of possession, there was no question of dispossession from the suit land. Hence, dismissal of the suit was sought. Defendants No.3 to 5 did not contest the suit as they did not appear before the trial Court and were ultimately given up by the plaintiffs vide order dated 17.4.1995 being unnecessary. After hearing the parties and going through the record, the trial Court dismissed the suit of the plaintiffs vide impugned judgment and decree dated 20.11.2001. Feeling aggrieved, the plaintiffs filed an appeal which was also dismissed vide judgment and decree dated 20.12.2002 passed by the Additional District Judge, Faridabad. Learned counsel for the appellants has vehemently argued RSA No.2515 of 2003(O&M) 4 that the Courts below have erred in law while dismissing the suit of the plaintiff-appellants in concluding that a self acquired property can be disposed of by an individual in any manner that he may choose as no immovable property of the value of more than Rs.100/- can be transferred except by way of a registered deed and the transfer of the property by Chunni in favour of defendants No.1 and 2 by the decree dated 19.9.1994 is illegal as the said decree was not registered. According to the learned counsel for the appellants, the Courts below have failed to consider the law laid down by this Court in the judgment reported as Bhoop Singh v. Ram Singh Major and others AIR 1996 SC 196 wherein it has been held that a consent decree creating a new right for the first time in immovable property of Rs.100/- or more, required compulsory registration and the only exception carved out is in case of a pre-existing right in the immovable property. Since the property in dispute was self-acquired property of Chunni, therefore, it cannot be said that the defendants were having any pre-existing right in the property which was transferred by way of impugned decree and thus, the impugned decree is illegal, null and void and is liable to be ignored. On the basis of the aforesaid arguments, learned counsel for the appellants has stated that the following substantial question of law arises for consideration of this Court: “Whether decree dated 19.9.1994 did not create a title in favour of defendants No.1 and 2 for the first time in respect of immovable property value more than Rs.100/- and therefore, required compulsory registration?” On the other hand, learned counsel for the defendant- respondents has vehemently supported the findings of the Courts below and has argued that the Courts below on appreciation of evidence have recorded a finding of fact in favour of the defendant-respondents and no RSA No.2515 of 2003(O&M) 5 substantial question of law arises in this appeal and the same is liable to be set aside. I have heard learned counsel for the parties and perused the record of the appeal. Undisputedly, the whole controversy between the parties revolves around the point as to whether decree dated 19.9.1994 is illegal, null and void or not? Undisputedly, Chunni Lal was absolute owner of the property in dispute. It is not the case of the plaintiff-appellants that the said decree is the result of any fraud or impersonation. A clear cut case of the appellants is that the deceased had suffered decree Ex.P-4 in favour of defendants No.1 and 2. There is no evidence on record to prove that he could not suffer decree Ex.P-4 in favour of defendants No.1 and 2 who are none else but his sons. Now the only question to be seen is whether the decree Ex.P4 was compulsorily registerable or not as argued by the learned counsel for the appellants before this Court. The explanation put forward by defendants No.1 and 2 is that decree Ex.P-4 was nothing but completion of their less share in equal comparison of their brothers (plaintiffs) in the suit property owned by their deceased father Chunni, and this could not be rebutted by the appellants during evidence. It is thus, apparent that decree Ex.P-4 did not create rights for the first time in favour of defendants No.1 and 2. The Hon'ble Supreme Court of India in the case of Sahu Madho Das v. Mukand Ram AIR 1955 SC 481 observed as follows:- “ Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the other's money, could not have legally entered into a family arrangement. The RSA No.2515 of 2003(O&M) 6 observations are:- 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, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively. xxxxxxxxxxxxxxxx These observations do not mean that some title must exist as a fact in the persons 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 agreement clinches and defines what that title is.” In the case of Ram Charan Dass v. Giri Nandini Devi, AIR 1966 Supreme Court 323, the Hon'ble Supreme Court held as follows: “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 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 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 RSA No.2515 of 2003(O&M) 7 relations. The consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter.” In the aforesaid Ram Charan's case (supra), the Hon'ble Apex Court further observed as follows:- “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 take 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 ground as, say, affection.” Again in the case of Kale v. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, the Hon'ble Apex Court observed as follows: “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. Even if one of the parties to the settlement has no title but under RSA No.2515 of 2003(O&M) 8 the arrangement the other party relinquishers all its claims or titles in favour of such a person 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.” It was further observed in the aforesaid Kale's case (supra) as follows:- “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.” In the case of Jagdish and others v. Ram Karan and others, 2003(1) RCR(Civil) 657 (P&H): 2003 (1) PLR 182 this Court had the occasion to deal with the similar controversy and had held, as per the law laid down in the cases of Ram Charan Dass (supra), Kale (supra) and Sahu Madho (supra), that the decree in question passed on a family settlement was not required to be compulsorily registered. Even in the case of Gurdev Singh and others v. Kartar Singh and others, 2003(2) RCR (Civil) 655 (P&H) :2003 (1) PLR 173 this Court had held that the pre- existing right could also cover a claim of a member of larger family under an oral arrangement which is subsequently confirmed in the court proceedings. In Bhoop Singh's case (supra) the Hon'ble Apex Court was dealing with the decree vide which the title in the suit property was sought to be conveyed and transferred to a person without any pre-existing title through the decree itself. In fact the decree under challenge in Bhoop RSA No.2515 of 2003(O&M) 9 Singh's case (supra) may be noticed as follows: “It is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owners in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant, in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct. Pleader's fee fixed Rs.16/-. It is further ordered that there is no order as to costs. It is thus apparent that in Bhoop Singh's case (supra) the Hon'ble Supreme Court of India had held that when the conveyance or transfer was effected through a consent decree, then the same was not permissible and in such a situation such consent decree was compulsorily registerable. However, if a plaint in the suit was filed on the basis of a past transaction or past family settlement for the recognition thereof through a declaration, then the declaration sought was merely with regard to the existing facts on the date of the filing of the suit. In Bhoop Singh's case(supra), the Hon'ble Apex Court had observed as under: “In TekBahadur vs. Debi Singh, AIR 1966 SC 292, the Constitution bench of this Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under Section 17. This Court, while up-holding oral family arrangement, held that registration would be necessary only if the RSA No.2515 of 2003(O&M) 10 terms of the family arrangements are reduced into writing. A distinction should be made between the documents containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registrable and therefore it can be used in evidence for collateral purpose, namely, for the proof of family arrangement which was final and binds the parties. The same view was reiterated in Maturi Pullaiah v. Maturi Narshimham, AIR 1966 SC 1836, wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case where no such interest is created the document will be valid, despite it being non- registered and will not be hit by Section 17 of the Act.” Thus, it is apparent that in Bhoop Singh's case(supra) the Hon'ble Apex Court was only dealing with a situation where the title was being conveyed and transferred for the first time through the consent judgment and decree and not a case where the said decree was based RSA No.2515 of 2003(O&M) 11 upon the past transaction. There is another aspect of the matter which needs to be noticed at this stage. The Hon'ble Supreme Court of India in Bachan Singh v. Kartar Singh and others, 2002(3) RCR(Civil) 495 (SC): 2002(2) PLR 512 (Supreme Court) held that if the claim of the defendant was admitted by the plaintiff and on the basis of the said admission, a decree was passed and if there was no fraud in passing the decree, then the said decree was good and valid and could not be ignored on the ground that the same was not registered. In the case in hand, vide decree Ex.P-4 the share of defendant No.1 and 2 has been completed in comparison of their brothers in the suit property owned by the deceased. In view of the said finding of fact, it cannot be said by any stretch of imagination that defendants No.1 and 2 had no pre-existing right or their right had been created for the first time by the decree because this decree Ex.P-4 was in pursuance of earlier family arrangement. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. February 19, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.2515 of 2003(O&M) 12