Regular Second Appeal No.1202 of 2001. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.1202 of 2001. Date of decision:5-3-2008. Jagir Kaur and others. ...Appellants. Versus Gurnam Singh. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. P. S. Thiara Advocate for the appellants. Mr. B. S. Bedi Advocate for the respondent. ... K. C. Puri, J. Judgment. Under challenge in this appeal is the judgment and decree dated 12.9.2000 passed by Mr. R.S.Basawna, the then Additional District Judge, Karnal vide which he accepted the appeal and set aside the judgment and decree delivered by Mr. Mahender Singh, Civil Judge (Junior Division), Karnal. The facts of the case as gathered from the judgment of trial Court are that Jagir Kaur and others, plaintiffs filed a suit for a Regular Second Appeal No.1202 of 2001. -2- declaration with consequential relief of possession against Gurnam Singh, defendant on the averments that the decree passed in civil suit dated 5.5.1986 by Mr. M.L.Sharma, the then Sub Judge Ist Class, Karnal and decree dated 5.5.1988 passed by Mr. V. K. Bakshi, the then Sub Judge Ist Class, Karnal and mutation Nos.3440 and 3712 dated 2.7.1986 and 27.7.1988 respectively, entered and sanctioned in pursuance thereof, were illegal, null and void and not binding on their rights. They also prayed for consequential relief of possession of land measuring 78 Kanals 13 Marls on the allegations that Shri Hazara Singh, their father, was owner in possession of aforesaid land. He transferred the entire land in their favour along with their two other sisters namely Veer Kaur and Pritam Kaur vide Civil Court decree dated 17.3.1986 passed in Civil Suit No.60 of 1986 by the court of Mr. A.K. Singh Panwar, the then Sub Judge Ist Class, Karnal. They were only five daughters of said Hazara Singh and as such the said land fell in their share in a family settlement and, thus, they had become the absolute owners in possession in equal shares. However, the defendant by wrongly showing himself as an adopted son of said Hazara Singh, fraudulently procured the aforesaid two Civil Court decrees in his favour and succeeded in transferring the suit land. Actually, their father Hazara Singh never appeared in the Court to suffer the aforesaid both the decrees in favour of the defendant because the suit land had already been transferred in their favour along with their two sisters vide decree Regular Second Appeal No.1202 of 2001. -3- dated 17.3.1986. Defendant Gurnam Singh is the son of their real sister Pritam Kaur. Since their father Hazara Singh never took him in adoption so the question of suffering the impugned decrees in his favour does not arise at all. Further, no family settlement could have taken place between Hazara Singh and the defendant in their absence and that of their two sisters who are the natural legal heirs of Hazara Singh. After the death of their father, the defendant under the garb of both the impugned decrees, was bent upon to dispossess them from the suit land forcibly and illegally. The defendant controverted the claim of the plaintiffs by filing a detailed written statement. He took various preliminary objections regarding the locus standi, maintainability of the suit in the present form, mis-joinder and non-joinder of necessary parties, concealment of true and material facts, limitation and that the plaintiffs were estopped from filing the suit by their own act and conduct. On merits, he pleaded that he was the adopted son of Hazara Singh deceased, who voluntarily and with his free will and consent transferred the suit land in his favour by virtue of both the impugned decrees dated 5.5.1986 and 5.5.1988, whereas the alleged decree dated 17.3.1986 passed in favour of the plaintiffs along with their two sisters was illegal, null and void. Hazara Singh has adopted him as his son on 13.4.1974 even in the presence of the plaintiffs, according to ritual rites and ceremonies. He was made to sit in the lap of deceased Hazara Regular Second Appeal No.1202 of 2001. -4- Singh and Smt. Parsan Kaur by his natural parents. In this regard, adoption deed dated 23.4.1986 was also executed in the presence of relatives. Said Hazara Singh brought him up as his son. He also rendered all the services to said Hazara Singh being son. So, in a family settlement between father and son, Hazara Singh voluntarily and willingly suffered both the decrees whereby the suit land was transferred in his favour. The allegations of fraud and mis- representation levelled by the plaintiffs were false, frivolous, bogus and did not bear any truth. In the replication filed by the plaintiffs, all the pleas of the defendant were controverted. From the pleadings of the parties, the trial Court framed the following issues:- 1.Whether the judgment/decree dated 5.5.1986 passed by Shri M.L.Sharma, the then Sub Judge Ist Class, Karnal and the judgment/decree dated 5.5.1988 passed by then Sub Judge Ist Class, Karnal, Shri V.K.Bakshi and consequently mutation Nos. 3440 and 1712 are null, void and not binding upon the rights of the plaintiffs. If so, its effect ?OPP. 2.Whether the plaintiffs are entitled to claim the relief of injunction as alleged ?OPP. 3.Whether the plaintiffs have no cause of locus standi to file and maintain the present suit?OPD. Regular Second Appeal No.1202 of 2001. -5- 4.Whether the suit is time barred?OPD. 5.Whether the suit is not legally maintainable in the present form?OPD. 6.Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD. 7.Whether the plaintiffs have not come to the court with clean hands?OPD. 8.Whether the plaintiffs are estopped from filing the present suit?OPD. 9.Relief. The learned trial Court decided all the issues in favour of the plaintiffs and against the defendant. Consequently, vide judgment and decree dated 22.3.1999, the trial Court decreed the suit of the plaintiffs. Feeling aggrieved, the defendant filed an appeal which was accepted by Mr. R. S. Baswana, the then Additional District Judge, Karnal vide judgment and decree dated 12.9.2000. Being dis-satisfied with the above mentioned judgment and decree, the plaintiffs have preferred the instant appeal. I have heard arguments of counsel for the parties and have gone through the record of the case. The counsel for the appellants have framed the following substantial questions of law:- Regular Second Appeal No.1202 of 2001. -6- 1.Whether defendant has pre-existing right in the whole property of Hazara Singh being his adopted son, (son of one of his five daughters), when five daughters of Hazara Singh are alive? 2.Whether Civil Court decrees Exhibits P-2 and P-7 require compulsory registration in view of provisions of Section 17 of Registration Act,1908? 3.Whether suit is within limitation? Learned counsel for the appellants had taken substantial question Nos.1 and 2 together and has submitted that the defendant is claiming right in the suit property on the basis of decree 5.5.1986 and passed by Shri M.L.Sharma, the then Sub Judge Ist Class, Karnal and decree 5.5.1988 passed by Shri V.K.Bakshi,the then Sub Judges Ist Class, Karnal,(hereinafter referred to as the decrees). The learned counsel for the plaintiffs-appellants has further submitted that the suit property, at one time, was owned by Hazara Singh, father of the plaintiffs. The defendant alleged himself to be the adopted son of Hazara Singh. The decrees dated 5.5.1986 and 5.5.1988 are on the basis of partition made by Hazara Singh. There was no pre-existing right of defendant in the suit property. There could not be any family settlement between Hazara Singh and the plaintiffs after excluding the plaintiffs. The family settlement can be said to be valid only in case all the family members are joined and in the absence of the Regular Second Appeal No.1202 of 2001. -7- plaintiffs/appellants, there could not be any valid family settlement in respect of the property of Hazara Singh. The said decrees are otherwise inadmissible in evidence, being un-registered. The property involved is admittedly of the value of more than Rs.100/- and without the registration of the decrees, no valid title could pass in favour of the defendant. In support of this contention, the learned counsel for the appellants has relied upon authority reported as Bhoop Singh v. Ram Singh Major and others,AIR 1966 SC196. So far as the facts of the case are concerned, that are not in much dispute. Hazara Singh had five daughters, out of which three have preferred the present suit. The plaintiffs i.e. daughters of Hazara Singh have challenged the adoption of defendant, but, both the Courts below have returned a finding that defendant was validly adopted by Hazara Singh. That being a finding of fact, cannot be challenged in the Regular Second Appeal. Realizing that fact, the learned counsel for the appellants has not addressed any arguments regarding the validity of adoption of defendant. The plaintiffs have alleged decree dated 17.3.1986 in civil suit No.60 of 1986 passed by Shri A.K.Singh Panwar, the then Sub Judge Ist Class, Karnal. Both the Courts have returned a finding that said decree is the result of fraud as Hazara Singh never appeared in the Court to suffer the said decree. The finding regarding decree dated 17.3.1986 has also become finding of fact and on that count the learned counsel for the appellants has not challenged Regular Second Appeal No.1202 of 2001. -8- the decree dated 17.3.1986, during his arguments. The only grievance ventilated by the counsel for the appellant is regarding the decrees dated 5.5.1986 and 5.5.1988 in favour of the defendant on the ground that Hazara Singh could not enter into family settlement without the consent of the plaintiffs and other two daughters of Hazara Singh on account of the fact that the same have not been registered. Reliance has been placed on the authority reported in Bhoop Singh's case (supra). The Hon'ble Apex Court has summed up the legal position qua Clause (vi) of Section 17(2) of the Registration Act (16 of 1908) as under:- “(1) Compromise decree, if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit, the decree or order would require registration. (3) If the decree were not to attract any of the Clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration. (4) If the decree were not to embody the terms of Regular Second Appeal No.1202 of 2001. -9- compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question. (5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding”, Clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted,even if it were to encompass property not litigated.” From the above observations, it is clear that if a compromise decree is bona fide and is not device to obviate payment of stamp duty and frustrate the law relating to registration, it would not require registration. It has been further laid down that if there is no pre- existing right and there is compromise in respect of immovable property of more than Rs.100/-, in that case, the decree require registration. According to Hindu Law, the adopted son has a right in the property of adopted father. Adopted son is a son for all intents and purposes and has pre-existing right in the property of his father. The submission made by the counsel for the appellants that without the appellants and other two daughters of Hazara Singh, no Regular Second Appeal No.1202 of 2001. -10- family settlement could take place does not appeal to reason. In authority in case Ram Charan Das v. Girja Nandini Devi and others, AIR 1966 Supreme Court 323, it has been laid down that family settlement is binding. The word “family” is not to be understood in a narrow sense of being a group of persons whom the law recognises as having a right of succession or having a claim to a share in the disputed property. In authority reported as Som Dev & Ors. v.Rati Ram and another, JT 2006 (8) SC 469, it has been held that where the Courts below have held that as a family arrangement the relinquishment had followed and on that basis the decree in the earlier suit recognizing that arrangement did not require registration. In authority reported as Kale and others v. Deputy Director of Consolidation and others, AIR 1976 Supreme Court 807, it has been held that family settlement does not require registration. It has been further held that the members who may be parties to the family settlement 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 the arrangement the other 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. In authority reported as Gurdev Singh Versus Kartar Regular Second Appeal No.1202 of 2001. -11- Singh, 2003(2) Recent Civil Reports 655, Hari Singh Versus Gurcharan Singh and others, 2003(3) P.L.R.119 and Jagdish Versus Ram Karan, 2003(1) R.C.R (Civil) 657, the Single Benches after discussing Bhoop Singh's case (supra) held that when earlier decree was passed on the basis of family settlement and there is pre-existing rights in that case, decree does not require registration. Again, Hon'ble Apex Court in authority reported as Bachan Singh v. Kartar Singh and others, JT 2001 (10) SC 64 held that where decree is based on admission, the same cannot be set aside on the ground of non- registration. The decree can only be challenged on the ground that the same is obtained by fraud. Both the Courts below have given a concurrent finding that the plaintiffs have failed to prove fraud. So, in these circumstances, decrees dated 5.5.1986 and 5.5.1988 do not require registration. In authority authority as Bija Ram alias Bija Versus Raj Kumar and another, 2007(4) Recent Civil Reports 197, it has been held that finding of fact that a decree is not the result of fraud and misrepresentation is not open to interference in Second Appeal, in view of Section 100 CPC. So, in view of the above discussion, both the point Nos.1 and 2,referred to above,stand answered against the plaintiff/appellants. The counsel for the plaintiff/appellants has also raised substantial question of law that both the Courts below have wrongly held that the suit is not within limitation. It is submitted that both the Regular Second Appeal No.1202 of 2001. -12- Courts below have held that suit could be filed within three years of the passing of decrees dated 5.5.1986 and 5.5.1988. That finding does not sustain the test of legal scrutiny. The plaintiffs were not parties to the said litigation. They could have challenged the mutation after acquiring the knowledge. Otherwise also, the trial Court has allowed the plaintiffs to amend the suit so as to seek the relief of possession. That finding of the learned first Appellate Court is that relief of possession has been sought only to bring the suit within limitation. That finding is without any basis. The suit for possession could be filed within 12 years. The present suit was filed on 9.7.1991. So, the suit is within limitation. The suit for possession could be filed within 12 years of dispossession. There was no basis for the first Appellate Court to give finding that the plaintiffs have got amended the suit so as to seek the relief of possession simply to bring the suit within limitation. A finding, without any basis, has to be set aside. However, as discussed above, since the decrees dated 5.5.1986 and 5.5.1988 have been held to be legal and valid, no interference is required in the judgments and decrees of both the Courts below. So, the third substantial question of law stands answered in favour of the plaintiff/appellants and against respondent Gurnam Singh and it is held that the suit of the plaintiffs for possession is within limitation. In the light of above discussion, the appeal is without any Regular Second Appeal No.1202 of 2001. -13- merit and the same stands dismissed. Decree sheet be prepared and the files of the Courts below be returned after due compliance. This file be consigned to the Record Room. March 5,2008. ( K. C. Puri ) Jaggi Judge Regular Second Appeal No.1202 of 2001. -14- Regular Second Appeal No.1202 of 2001. -15-