RSA No. 820 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 820 of 2004 Date of Decision: 25.08.2009 Raj Kali d/o Sh. Ram Sarup son of Sadi, r/o Village Busana at present wife of Puran, H. No. 256, Garhi Sarai Namdar Khan, Tehsil Gohana, District Sonepat. ... Appellant Versus 1. Jitender; 2. Rinku minor sons of Pat Ram son of Sh. Ram Sarup son of Shadi, through their mother Smt. Bimla, residents of village Busana, Tehsil Gohana, District Sonepat. 3. Smt. Manbhari widow of Ram Sarup, resident of village Busana, Tehsil Gohana, District Sonepat. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vishal Garg, Advocate, for the appellant. Mr. Sachin Jain, Advocate, for Mr. Harkesh Manuja, Advocate, for respondents No. 1 and 2. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 04.06.03, rendered by the Court of Civil Judge (Junior Division), Gohana, vide which, it dismissed the suit of the plaintiff RSA No. 820 of 2004 2 (now appellant), and the judgement and decree dated 11.10.03, rendered by the Court of District Judge, Sonepat, vide which, it dismissed the appeal. 2. Ram Sarup, deceased, father of the plaintiff/appellant, was the owner in possession of agricultural land, comprising khewat No. 357, khatoni No. 440, total measuring 73 kanals 1 marla, as per copy of jamabandi for the year 1975-76. He died leaving him surviving Smt. Manbhari widow, Rajkali daughter and Pat Ram, now deceased, father of defendants/respondents No. 1 and 2. After his death, the land, in dispute, was mutated, vide mutation No. 3044, in favour of Manbhari, Raj Kali and Pat Ram, jointly in equal shares. The plaintiff claimed herself to be the owner in possession of 1/ 3rd share of the land, in dispute. It was stated that one Hari Singh son of Badlu, who was a stranger to the family, filed a suit, on behalf of Pat Ram, minor, against Manbhari and Raj Kali. Raj Kali aged about 34 years, was merely 12 years old, when the judgement and decree were passed, on 24.01.78 in the aforesaid case. It was further stated that Pat Ram had no pre- existing right, in the suit property, at the time of institution of the suit, nor there could be any family settlement, between the parties, as both Pat Ram and Raj Kali were minors and the property of a minor could not be transferred, in favour of any person. It was further stated that Raj Kali, being minor, at the relevant time, some impostor was produced in her place, in the Court. That impostor was wrongly identified by some legal brain as Rajkali. It was further stated that a fraud was played upon the plaintiff/appellant, by Hari Singh, in RSA No. 820 of 2004 3 collusion with Manbhari widow of Ram Sarup. It was further stated that the land, in dispute, was of the value of more than Rs. 100/- and, therefore, the decree for want of registration did not confer any right of ownership upon Pat Ram. It was further stated that the decree was the result of fraud. It was further stated that in the Month of January, 1999, when the plaintiff went to Patwari, for obtaining copies of the jamabandi, she came to know that she had no land in her name. The defendants were many a time, asked to get set aside the judgement and decree dated 24.01.78, but to no avail. On their final refusal, to do so, left with no other alternative, a suit for declaration and consequential relief was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff was estopped from filing the suit, by her own act and conduct. It was further pleaded that the suit was barred by time. It was stated that defendants No. 1 and 2, were not properly sued, nor any application for appointment of guardian ad-litem, was moved. It was admitted that earlier Ram Sarup, was the owner in possession of the suit land, who had purchased the same, vide sale deed dated 20.08.74. After his death, mutation was sanctioned, in favour of his legal heirs namely Pat Ram (now deceased) father of defendants no. 1 and 2, Manbhari widow, and Smt. Raj Kali, plaintiff, being daughter. It was further stated that a family settlement was arrived at, amongst Manbhari, Raj Kali and Pat Ram, in October, 1977. Pat Ram being RSA No. 820 of 2004 4 minor, was represented by Hari Singh son of Badlu, his relative, and next friend. It was further stated that as per family settlement, Smt. Manbhari and the plaintiff relinquished their share in the land, in dispute, in favour of Pat Ram father of defendants No. 1 and 2, and possession was given by them, to him. In this way, Pat Ram, became owner in possession of the suit land, as a result of family settlement arrived at, amongst the parties. It was further stated that Smt. Manbhari and Raj Kali, after the family settlement, tried to interfere into the possession of Pat Ram, over the suit land. The aforementioned facts and circumstances, gave rise to the filing of civil suit No. 220/1 by Pat Ram (at that time minor) through his relative, against Manbhari mother and Raj Kali sister. Manbhari and Raj Kali, defendants, admitted the claim of Pat Ram on 24.01.78, as a result whereof, the judgement and decree were passed, in favour of Pat Ram. It was further stated that Raj Kali was not minor, at the relevant time. It was denied that fraud was played upon the plaintiff, and Manbhari, resulting into the passing of decree. It was further stated that the decree dated 24.01.78, only acknowledged the pre-existing right, on the basis of family settlement already arrived at, and did not confer any right and title, in the land, in dispute, on Pat Ram, for the first time. During his lifetime, Pat Ram, executed a Will, in favour of defendants No. 1 and 2, and after his death, on 07.12.97, on the basis of the said Will, mutation No. 3671 was sanctioned in their (defendants No. 1 and 2) favour, as a result whereof, they became the owners in possession of the suit land, in equal shares. The remaining averments were denied RSA No. 820 of 2004 5 being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the judgement and decree passed in Civil Suit No. 220/1 of 1997 dated 24.01.78 and subsequent mutations entered and sanctioned regarding the suit property and are liable to be set aside on the grounds mentioned in the plaint? OPP (ii) If issue No. 1 is decided in favour of the plaintiff then whether the plaintiff is entitled to decree for possession as prayed for? OPP (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the suit of the plaintiff is time barred? OPD (v) Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD (vi) Whether defendants No. 1 and 2 are minors if so to what effect non- appointment of guardian ad-litem on the suit? OPD (vii) Whether the plaintiff is guilty for suppression of material facts from the Court? OPD (viii) Whether the defendant is entitled to special costs under Section 35-A CPC? OPD (ix) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. RSA No. 820 of 2004 6 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed by the Court of District Judge, Sonepat, vide judgement and decree dated 11.10.03. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. The following substantial questions of law arise in this appeal, for the determination of this Court:- (i) Whether the Courts below misread and misappreciated the evidence in coming to the conclusion that the judgement and decree dated 24.01.78 was not the result of fraud and impersonation, and it did not require registration? (ii) Whether the Courts below, recorded perverse findings on account of misreading and misappreciation of evidence that a family settlement was arrived at, on the basis whereof, the decree dated 24.01.78, was passed, and, thus, it did not create any right, for the first time in immovable property worth more than Rs. 100/- in favour of Pat Ram? (iii) Whether the Courts below recorded perverse finding by misreading and misappreciating the evidence, that, at the time of passing the decree, the plaintiff/appellant, was not minor and, as such, was competent to suffer the same? (iv) Whether the Courts below, fell into a legal error, in holding, that the suit was barred by limitation? 9. I have heard the Counsel for the plaintiff/appellant, and have gone through and perused the documents, on record, carefully. RSA No. 820 of 2004 7 10. The Counsel for the appellant, submitted that since the appellant, was minor, at the time of passing of the alleged decree she was not competent to suffer the same, and this ground was sufficient to set aside the same. He further submitted that even there was no family settlement, amongst the parties, and, as such, the decree created right and title, in the property, in favour of Pat Ram, father of defendants No. 1 and 2, for the first time, in the immovable property, worth more than Rs. 100/- and required registration. He further submitted that the judgement and decree were the result of fraud and impersonation. He further submitted that the Courts below, were wrong, in coming to the conclusion that the suit was barred by time. He further submitted that the judgements and decrees, being illegal,were liable to be set aside. 11. On the other hand, the Counsel for the respondents submitted that there was a family settlement, amongst the parties, as they were nearly related, as a result whereof, Pat Ram, through his guardian filed a suit against Manbhari and Rajkali, plaintiff/appellant and Manbhari, wherein, they admitted his claim, as a result whereof, the decree was passed. He further submitted that there was a pre- existing right, in favour of Pat Ram, in the land, in question, on the basis of the family settlement and the decree did not create right and title for the first time. He further submitted that no evidence with regard to fraud and impersonation was produced. He further submitted that even the plaintiff was not minor at the time of suffering the decree alongwith Manbhari. He further submitted that the Courts below, were right, in coming to the conclusion, that the suit was barred by time. RSA No. 820 of 2004 8 He further submitted that the judgements and decrees, 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 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, the suit property was owned and possessed by Ram Swaroop, who was the husband of Manbhari and father of the appellant, and Pat Ram (deceased), whose sons are Jitender and Rinku, respondents No. 1 and 2. As such, the appellant and the respondents are nearly related to each other. On the death of Ram Swaroop his three legal heirs namely Raj Kali daughter, appellant, Manbhari, widow, and Pat Ram (deceased) father of respondents No. 1 and 2, became the owners in joint RSA No. 820 of 2004 9 possession in equal shares of the land, in dispute, and mutation No. 3044, was sanctioned in their favour on 30.10.77 as is clear from D6. Decree dated 24.01.78, in respect of the land, in dispute, was passed in favour of Pat Ram in civil suit No. 201/1 of 1977, against Manbhari and Raj Kali, vide judgement copy whereof is Ex. P9. The first question, that falls for consideration, is, as to whether Raj Kali at the time she suffered the decree, referred to above, was minor or not. According to the appellant, she was 12 years old, at the time, when the decree was passed and, as such, was not competent to give her consent, as the consent of minor is no consent in the eyes of law. It was for the appellant to prove, by leading cogent and convincing evidence, that she was actually minor, at the time of instituting the suit, which culminated into the passing of judgement and decree dated 24.01.78. She did not produce and get proved, on record, any birth entry, from the office of the Registrar (Birth and death) or from the register of the Chowkidar. PW9/A is a copy of the written statement, in the previous suit, wherein, Raj Kali, appellant, was not mentioned as minor. Pat Ram was mentioned as minor and he sued through his guardian. No plea, in that suit, was taken by Raj Kali or her Counsel, that she was minor and, as such, was incompetent to give consent for suffering the decree. Mr. G.C. Manchanda, PW9, was the Advocate, on behalf of Raj Kali, appellant, and Manbhari in that suit. He in clear-cut terms, stated that Raj Kali, was major,at the time of filing the previous suit. During the course of his cross-examination G.C. Manchanda, Advocate, PW9, admitted it as correct that Raj Kali got recorded her age as 22, in her RSA No. 820 of 2004 10 statement, in the Court, copy whereof is Ex. D2. In the face of such documentary evidence, on record, containing the age of Raj Kali, as 22 years, the onus lay heavily upon her, to rebut the same. The oral evidence of Puran Singh, PW1, Jagdish, PW2, Ramdia, PW3, Hari Singh, PW4 and Banwari, PW5, that she was minor, at the time the previous suit was instituted, was hardly of any consequence, in the absence of production of the birth entry, from the office of the Registrar (Birth and death) or from the record of the Chowkidar. The oral evidence of these witnesses, at the most, could be said to be based on conjectures and surmises. The Courts below, were, thus, right in coming to the conclusion, that Raj Kali, was not minor, at the time of the institution of the previous suit, in which, she alongwith her mother Manbhari, admitted the claim of Pat Ram, as a result whereof, decree, referred to above, was passed. 13. The next question, that falls for determination, is, as to whether, the decree, in question, was the result of impersonation and fraud. An argument was advanced by the Counsel for the appellant, that some other person in place of Raj Kali, in the previous suit, was produced and her thumb impression was obtained on the written statement. He, thus, argued that the decree was the result of impersonation and fraud. It is settled principle of law, that fraud, in a civil case, is required to be proved, as in the criminal case. No particulars of fraud, were set up, in the plaint. No worthwhile evidence was produced, as to how, the fraud was played. The written statement, bore the thumb impression of Raj Kali. The respondents produced RSA No. 820 of 2004 11 Yaspal Chand Jain, Handwriting and Finger Prints Expert, as DW3, who after comparison of the questioned thumb impression of Raj Kali, on the written statement of admission, in the previous suit, with her specimen thumb impression, came to the conclusion, that the questioned thumb impression tallied with her specimen thumb impression. Under these circumstances, the submission of the Counsel for the appellant, to the effect, that some lady impersonated Raj Kali, and, thus, fraud was played upon her, was rightly held to be without any substance by the Courts below. 14. As stated above, Ram Swaroop, was the owner of the property in dispute. He died leaving him surviving Pat Ram, his son father of respondents No. 1 and 2, Manbhari, his widow and Raj Kali, appellant, his daughter. After his death all of them became joint owners in joint possession of the land in dispute. Under these circumstances, every joint owner was having right and title in each and every inch of the joint property. He was, thus, having antecedent title, in the property. In the plaint of the previous suit, it was in clear-cut terms, stated that an oral family settlement was arrived at, amongst Raj Kali, her mother Manbhari, and Pat Ram earlier. If with a view to put an end to any family dispute, a settlement was arrived at, as a result whereof, Manbhari and Raj Kali, relinquished their right, and title in the joint property in favour of Pat Ram, it could be said that there was a legal and valid family settlement. The object of the family arrangement, is to protect the family, from long drawn litigation of perpetual strifes, which mar the unity and solidarity of the family and create hatred and RSA No. 820 of 2004 12 bad blood, between various members of the family. A family arrangement, 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, or a claim or even if they have spes succession so that future disputes are sealed for ever and the family instead of fighting claims inter-se, and wasting time, money and energy, on such fruitless litigations, is able to devote its attention, to more constructive work, in the larger interest of the Country. The Courts have, therefore, leaned in favour upholding a family arrangement, instead of disturbing the same, on technical or trivial grounds. 15. In other words, to put the binding effect, and the essentials of a family settlement, in a concretized form, the matter may be reduced into the form of the following propositions, as held 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: - “(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 RSA No. 820 of 2004 13 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; (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”. 16. 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 RSA No. 820 of 2004 14 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 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, 1972 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 RSA No. 820 of 2004 15 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