*THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY + A.S.No.22 of 2007 %Dated 13-08-2009 #Zaheda Begum and another … Appellants. VERSUS $ Lal Ahmed Khan and others … Respondents. ! Counsel for Petitioners : Sri S.Sriramachandra Murty ^Counsel for Respondents : Sri S.Rajan for R.6 to R.9 <GIST: >HEAD NOTE: ? Cases referred 1) AIR 1955 SC 481 2) 2006-SRJ-5-43 3) 2008-Allmr-5-671 4) AIR 1966 SC 1836 5) AIR 1969 AP 417 6) AIR 1966 SC 292 7) AIR 1966 AP 184 8) AIR 1990 SC 619 HON’BLE SRI JUSTICE L.NARASIMHA REDDY A.S.No.22 of 2007 J U D G M E N T : Plaintiffs in O.S.No.13 of 2000 on the file of the VII Additional District Judge (Fast Track Court), Visakhapatnam, are the appellants. They filed the suit for partition against the respondents, in respect of the schedule property, which is a house at Visakhapatnam. One Mr.Ghouse Khan had three brothers i.e. respondent Nos.1 to 3 and two sisters, the first appellant and late Malika Begum, the mother of the second appellant. Ghouse Khan did not marry and remained as a bachelor. He purchased the suit schedule property through a registered sale deed dated 29.07.1981. After the death of Ghouse Khan, the appellants and the respondents affected a family settlement, through document dated 07.02.1992. According to this, the second appellant was to be given western half of the suit schedule house and the first appellant and respondent Nos.1 to 3 were to be allotted 1/4th share each, in the rest of the property. The appellants pleaded that in spite of repeated demands, the respondents did not agree for partition of the property in accordance with the settlement. Respondent Nos.1 and 3 remained ex parte in the trial court and the second respondent alone contested the suit. He pleaded that an open site was purchased by late Ghouse Khan in the year 1981 and thereafter a house was constructed. He is said to have assisted his brother in construction of the building. It was pleaded that the first respondent is settled at Chennai, the third respondent at Jamshedpur and the first appellant is settled with her family at Visakhapatnam, after retirement of her husband. It is stated that the mother of the second appellant died in the year 1964 and she was brought up by the first appellant. It was further pleaded that Ghouse Khan executed a will dated 25.02.1985 bequeathing the entire suit schedule property upon him and that ever since the death of Ghouse Khan, he is residing in the house, as owner. It was urged that he permitted the appellants to reside in a portion of the house, when they came to a Hospital at Vishakhapatnam, for treatment. The trial Court decreed the suit partly, through its Judgment dated 28.12.2005. It was held that the document dated 07.02.1992, marked as Ex.A.6, cannot be acted upon since it is neither registered nor properly stamped. An observation was made to the effect that the second appellant did not become the owner of any part of the property nor she is a successor on par with the other parties. The trial court took the view that partition cannot be effected at her instance. Relief was granted to the 1st appellant alone, to the extent of 1/7th share. The claim of the 2nd appellant was rejected. Hence this appeal. During the pendency of the appeal, the first respondent died and his legal representatives are brought on record as respondent Nos.4 and 5. The second respondent also died and the respondent Nos.6 to 9 are brought on record as his legal representatives. Sri S.Sriramchander Murthy, learned counsel for the appellants, submits that the trial Court recorded a finding to the effect that Ex.A.6 is proved and still refused to enforce the arrangement contained in it. He contends that a family settlement is not required to be registered and the trial Court committed error in taking the view that it cannot be acted upon, for want of registration and deficiency of stamp duty. The learned counsel further submits that being a party to the family settlement, the second respondent cannot disown the implications that arise out of it. The appeal is contested only by respondent Nos.6 to 9. Their counsel Sri S.Rajan submits that not being a recognized legal heir, the second appellant does not have any right to insist on partition of the property. He contends that the only basis, on which the second appellant rested her claim, is Ex.A.6, and that it is not admissible in evidence, on account of the defects as to the registration and stamp duty. He contends that the trial Court has taken the correct view of facts and law and that the judgment under appeal does not warrant any interference. The learned counsels for the appellants and respondents have relied upon fairly a large number of precedents in support of their respective contentions. The relationship among the parties is not disputed. On the basis of the pleadings before it, the trial Court framed the following issues : 1) whether the plaintiffs and the defendants entered into agreement on 07.02.1992 as alleged by the plaintiffs? 2) whether the said alleged agreement dt.07.02.1992 is valid? 3) whether Md.Ghouse Khan purchased the plaint schedule property from the VUDA under the document dated 29.07.1981 as alleged by the defendant No.2? 4) whether the property was bequeathed by Md.Ghouse Khan under the will dt.25.02.1985 to the defendants and others? 5) whether the defendants are in exclusive possession and enjoyment of the property? 6) whether the plaintiffs are entitled to partition of the plaint schedule property and allotment of western half portion of the house with the western adjoining vacant site with the remaining eastern portion building with vacant site into four equal shares and allotment of 1/4th share to the plaintiffs? On behalf of the appellants, PWs 1 to 3 were examined and Exs.A.1 to A.13 were marked. The registered deed, under which the property was purchased by Ghouse Khan, is marked as Ex.A.1. The other important document is Ex.A.6, the deed of agreement / settlement. The rest of the documentary evidence comprised of the notices that are exchanged between the parties, electricity bills, etc. The second respondent deposed as D.W.1 and no documentary evidence was adduced by him. On issue Nos.1 and 2, the trial Court held that Ex.A.6 is proved and valid. Issue No.3 was held to be not necessary, since no one questioned the title of Ghouse Khan over the property. On issue No.4, it was held that the will, dated 25.05.1985, executed by the second respondent was not proved. On issue Nos.5 and 6 it was held that the first appellant is entitled to be allotted 1/7th share in the suit schedule property. Relief to the second plaintiff was denied on the ground that Ex.A.6 is not properly stamped and registered. Before this Court, no cross-objections are filed by respondent No.2 or by his legal representatives as regards to the findings upon the will pleaded by them, or as regards finding as to proof of Ex.A.6. In the light of the arguments advanced on behalf of the parties, this Court is of the view that the following points arise for consideration viz., a) whether there can be a family settlement among the persons who are not sharers according to Law of Succession, b) whether Ex.A.6 is inadmissible in evidence for want of registration and non payment of stamp duty, and c) whether Ex.A.6 confers any right upon the second appellant, to insist on partition, in terms thereof? The sole bases for the appellants, and in particular, the second appellant, to claim partition, is Ex.A.6. It is not in dispute that the property in respect of which, the partition is sought, was left by late Ghouse Khan. The proximity of relationship with him is the same for the first appellant and respondent Nos.1, 2 and 3. The relationship of the second appellant is a bit distant, in that, she is a niece of late Ghouse Khan. In the context of succession to the suit schedule property, she stands on the different footing, in fact she is outside the purview of succession to the said property. Settlement in family is not confined to any particular category of people. The medium of settlement is chosen to resolve the disputes among the family members. It is resorted to, not only when the disputes as such exist, but also when there exist a possibility for them to surface. I n Sahu Madho Das and others v. Mukund Ram and another[1] Justice Vivian Bose known for his precision and unequivocal statement of law has this to say, about settlements. “ 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 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. 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. But, in our opinion, the Principle can be carried further and so strongly do the Courts lean in favour of family arrangement that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.” A family settlement need not be confined to the one, among the legal heirs, or successors. If the aim is only to provide for arrangement in accordance to succession, the whole exercise would be redundant. The reason is that the Law of Succession would take its course. It is only when an arrangement, in slight or major deviation from natural succession, as a price for bringing about comity and harmony is chosen, that a settlement comes into existence. Recently Hon’ble Supreme Court held in Manish Mohan Sharma v. Ram Bahadur Thakur Ltd.[2] as under : “ IT has been repeatedly emphasized in several decisions that family settlements are governed by a special equity and are to be enforced if honestly made. This would be so “even if the terms may have been agreed to on the basis of an error of the parties or originate in a mistake or ignorance of fact as to what the rights of the parties actually are, or of the points on which their rights actually depend”. This is because the object of an arrangement is to protect the family from long drawn out litigation, and to bring about harmony and goodwill in the family (see Kale v. Deputy Director of Consolidation). The courts lean heavily in favour of family arrangements and, “matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements”. This view has been reiterated recently in Amteshwar Anand v. Virender Mohan Singh and Ors.” The connotation of the word ‘family’ changes depending upon the context. For instance, its purport under the Income Tax Act may not be the same as that one under the Urban Land (Ceilings and Regulation) Act or other similar Enactments. Much would depend upon the context in which the term is used. Where the concept of joint family exists, the family may comprise of persons of 3 to 4 generations. In a narrow sense, the family may comprise of the spouses and their children. In the context of settlement, the family takes in its fold, the several persons, some of whom are a bit distantly related to those who constitute the core of the family. I n Mahadeo Tulsiram Pathade v. Vatsalabai Shamrao Pathade[3], the Bombay High Court held, “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 succession is so that future disputes are sealed for ever and the family instead 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. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disrupting the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits”. Such is the importance, accorded to the family settlements, by the courts. Sub-section (24) of Section 2 of the Indian Stamps Act defines that term as under: “Settlement” means any non-testamentary disposition, in writing, of movable and immovable property made- (a) in consideration of marriage, (b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or (c) for any religious or charitable purpose From this provision it is clear that the settlement, particularly within a family need not be restricted to the members of the family upto a particular degree. Therefore, the irresistible conclusion is that a family settlement can be among not only heirs of a particular class, but also can take in its fold, persons outside the purview of succession. The second question is about the admissibility of Ex.A.6. For all practicable purposes, this question becomes irrelevant inasmuch as no serious objection was raised, when the document was received in evidence. Even if it is being raised, is deemed to have been rejected, since the trial progressed, after the document was received by the court. The objection raised by the second respondent for this document is on the grounds of non-registration and non-payment of stamp duty. The question is being considered, more with a view to restate the law, which is already settled. Though, the object underlying the settlement is to bring about harmony among the parties to it, the legal implications arising out of settlements are not uniform. In some cases, the settlement may bring about transfer or conferment of rights instantly, upon the parties to it, vis a vis movable or immovable properties. If the settlement confers rights upon the individual, vis a vis on items of immovable property, which, he is not otherwise entitled to, under the relevant law of Succession, a transfer comes into existence, and thereby the deed of settlement becomes liable to be registered. It is not uncommon that settlements provide for arrangements, which would materialize at a future date. In such cases, the manner in which the rights are to be conferred on various parties is defined, and the actual transfer of rights would take place at a future date. The situation is comparable broadly, to the one under a preliminary decree. The rights of the parties vis a vis identified items of property are indicated and actual transfer is to take place at a later point of time i.e., as and when a final decree is passed; to put it in strict legal terms, no interest ‘in praesenti’ is created in favour of any party, under settlement of such category. In Maturi Pullaiah and another v. Maturi Narasimham and others[4], the Hon’ble Supreme Court was dealing with a document marked as Ex.B.1, similar to Ex.A.6 in this case. It provided for devolution of shares upon parties to it, on a future date. The only difference is that the arrangement in that case was among the members of the Hindu family whereas in the instant case, the parties are Muslims. Nothing turned upon the religious faith of the parties. The Hon’ble Supreme Court extracted the relevant part of the document; as under: “ The operative part of Ex.B-1 reads thus: “Therefore out of our family property, i.e., property which belongs to us at present and the property which we may acquire in future, the 1st party of us and his representatives shall take two shares while the 2nd party of us and his representatives shall take three shares. We both parties, having agreed that whenever any one of us or any one of our representatives desires at any time that the family properties should be partitioned according to the above mentioned shares and that till such time our family shall continue to be joint subject to the terms stipulated herein entered into this agreement.” Then it proceeded to lay the law in this regard, particularly from the point of requirement as to registration. “It is common case that this document did not bring about a division by metes and bounds between the parties. It did not also affect the interest of the parties in immovable properties in praesenti. What in effect it is said was that the parties would continue to be members of the joint Hindu family and that Narasimha would manage the family properties as before, and that when they effect a partition in future Venkatramaiah would get 2 shares and Narasimha would get 3 shares in the properties then in existence or acquired thereafter. There was neither a division in status nor a division by metes and bounds in 1939. Its terms relating to shares would come into effect only in the future if and when division took place. If so understood, the document did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein. If so, it follows that the document was not hit by S.17 of the Indian Registration Act.” To the same effect is the judgment rendered by a Division Bench of this Court, in K.Manavala Maicker v. K.R.Gopala Krishnaiah Chetti[5]. In the instant case also Ex.A.6 did not provide for any rights ‘in praesenti’. It provides for division of shares in the schedule property. The division as such, was to take place on a future date. I n Tek Bahadur Bhujil v. Debi Singh Bhujil and others[6], it was held by the Hon’ble Supreme Court that there can be oral family arrangements also and that the gist of the same can be recorded in writing. It was observed: “ Family arrangement as such can be arrived at orally. Its terms may be recorded n writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.” From the principles laid in above precedents, it becomes clear that a settlement, which does not create any right ‘in praesenti’ can not be treated as inadmissible, on the ground that it is not registered. So far as the requirement as to payment of stamp duty is concerned, the discussion, which has been undertaken with reference to the requirement as to registration, will substantially hold good for that aspect also. In additional to that, the bar under Section 36 of the Indian Stamp Act operates. The provision reads as under : “Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.” The learned counsel for the second respondent made effort to convince this Court that the receipt of settlement deed in evidence does not amount to admission into evidence as provided under Section 36 of that Act. He placed reliance upon a judgment of this Court in Kolli Eranna and others v. Bellamkonda Thimmaiah and others[7]. This Court held that if no final determination as such has taken place in relation to the payment of stamp duty of a document, the bar under Section 36 of the Indian Stamp Act does not operate. It was observed that mere identification of a document with marking does not amount to admission in evidence. There is no quarrel with that proposition. However, it must be recognized that any objection as to admission of the document must be raised before the Court takes the same on record. If an objection raised in this regard is negatived, the aggrieved party has to pursue the remedy further. The aspect of proof and relevancy of a document can be considered at any stage of the trial. In fact, the finding as to proof can be recorded only after the evidence in relation thereto is complete. Admissibility, however is a question, which must be decided before the Court admits the document into evidence. Under no circumstances, that question can be relegated to a later stage. The reason is that if a document is held to be admissible in evidence, the party who intends to rely upon it, may choose to adduce some other evidence, or may approach a superior forum to establish its admissibility. If the trial takes place on the assumption that the document is admissible and if the finding is recorded at the end of the trial that the document is inadmissible, the whole trial receives a serious set back. The record in the instant case does not disclose that any serious objection as to the admissibility of Ex.A.6 was either raised or sustained. Therefore, the contention advanced by the learned counsel for the second respondent in this regard cannot be accepted. Now remains the last question. The learned counsel for the respondent strongly urged that the relief of partition can be claimed only on the basis of pre-existing rights and unless the rights of the second appellant were independently established, in separate set of proceedings, she was not entitled to seek partition. Reliance is placed upon the judgment of the Hon’ble Supreme Court in Hiraji Tolaji Bagwan v. Shakuntala[8]. In that case, the Supreme Court held