RAVINDER KAUR GREWAL & ORS. versus MANJIT KAUR & ORS.
[2020] 8 S.C.R. 1138, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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RAVINDER KAUR GREWAL & ORS.
v.
MANJIT KAUR & ORS.
(Civil Appeal No. 7764 Of 2014)
JULY 31, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Registration Act, 1908 – s. 17 – Document of family settlement
– The predecessor of the appellants asserted that his ownership
and possession in respect of the suit land comprising Khasra No.
935/1 and 935/2 including constructions thereon of 16 shops, a
service station and a boundary wall with Samadhi of his wife in the
land, was accepted and acknowledged by his two brothers in a
family settlement – However, dispute arose between predecessor of
the appellants and his brothers regarding the suit land – Thereafter,
a memorandum of family settlement dated 10.03.1988 was executed
between the parties – The brothers of the predecessor of the
appellants, however, again raised new issues to resile from the family
arrangement – As a result, a suit was filed by plaintiff/predecessor
of the appellants against his brothers, original defendant nos. 1 &
2 for a declaration that he was the exclusive owner of the suit land
– The trial Court decreed the suit partly in favour of the plaintiff –
However, the First Appellate Court declared the plaintiff as the owner
of the suit land – The First Appellate Court also held that the
document dated 10.03.1988 was indisputably executed by the parties
and the said document was merely a memorandum of family
settlement and not a
document containing terms and recitals of the
family settlement made thereunder – Being a memorandum of family
settlement, it was not required to be registered – In the second appeal,
the High Court set aside the conclusion recorded by the First
Appellate Court and opined that the document which for the first
time create a right in favour of plaintiff in an immovable property
in which he has no pre-existing right would require registration,
being the mandate of law – Accordingly, the High Court restored
the decree passed by the trial Court – On appeal, held: The
Jamabandi for the year 1984-85 of the property in dispute reveals
that Khasra No. 935/1/1/1 (5-19) shows name of original defendant
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nos. 1 & 2 as owners, whereas the name of plaintiff is shown against
khasra No. 935/1/1/2 (5-18) as owner – Although the ownership of
the suit property recorded in Jamabandi is of the concerned
defendant, the plaintiff had carried constructed thereupon and was
in possession – The possession of the plaintiff is admitted and he
came in possession with the consent of his brothers – Notably, this
finding has not been disturbed by the High Court – That apart, it is
also established from records that a plot in the name of plaintiff
was given to original defendant no. 2, which was otherwise in
possession of original defendant no. 1 – Further, a plot purchased
by the plaintiff in the name of his son was given to original defendant
no. 1 and his wife – These facts clearly establish that there was not
only univocal family arrangement between the parties, but it was
acted upon by them without any exception – Now, it was not open to
resile from the same – They were estopped from contending to the
contrary – The High Court committed manifest error in interfering
with and in particular reversing the well-considered decision of the
First Appellate Court, which had justly concluded that the document
dated 10.03.1988 was merely a memorandum of family settlement,
and it did not require registration – Therefore, impugned judgment
and decree of the High Court is set aside – The judgment and decree
passed by the First Appellate Court is restored in favour of the
plaintiff
(appellants).
Allowing the appeal, the Court
HELD: 1. The first appellate Court has also justly opined
that the parties had acted upon the stated family settlement and
if this Court may say so, to the prejudice of the other party.  In
that, the property in the name of plaintiff at Prem Basti was given
to original defendant No. 2, which was otherwise in possession of
original defendant No. 1. Further, the plot purchased by the plaintiff
in the name of his son was given original defendant No. 1 and his
wife, but that plot was admittedly sold by them to another person.
Being a case of a family settlement between the real brothers
and having been acted upon by them, it was not open to resile
from the same. They were estopped from contending to the
contrary. This crucial aspect has been glossed over by the High
Court and if this Court may say so, the second appeal has been
disposed of in a most casual manner. [Para 15][1155-C-E]
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
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2. Be that as it may, the High Court has clearly misapplied
the dictum in the relied upon decisions. The settled legal position
is that when by virtue of a family settlement or arrangement,
members of a family descending from a common ancestor or a
near relation seek to sink their differences and disputes, settle
and resolve their conflicting claims or disputed titles once and
for all in order to buy peace of mind and bring about complete
harmony and goodwill in the family, such arrangement ought to
be governed by a special equity peculiar to them and would be
enforced if honestly made. The object of such arrangement is to
protect the family from long drawn litigation or perpetual strives
which mar the unity and solidarity of the family and create hatred
and bad blood between the various members of the family, as
observed in Kale & Ors. vs. Deputy Director of Consolidation &
Ors.. [Para 16][1155-H; 1156-A-C]
3. The view so taken is backed by the consistent exposition
in previous decisions referred to and duly analysed in the reported
judgment. The question formulated by the High Court, in opinion
of this Court, stands answered in favour of the appellants (plaintiff),
in light of exposition of this Court in Kale. A priori, this Court has
no hesitation in affirming the conclusion reached by the first
appellate Court that the document Exhibit P-6 was nothing but a
memorandum of a family settlement. The established facts
and
circumstances clearly establish that a family settlement was
arrived at in 1970 and also acted upon by the concerned parties.
That finding of fact recorded by the first appellate Court being
unexceptionable, it must follow that the document Exhibit P-6
was merely a memorandum of a family settlement so arrived at.
Resultantly, it was not required to be registered and in any case,
keeping in mind the settled legal position, the contesting
defendants were estopped from resiling from the stated
arrangement in the subject memorandum, which had recorded
the settlement terms arrived at in the past and even acted upon
relating to all the existing or future disputes qua the subject
property amongst the (signatories) family members despite
absence of antecedent title to the concerned property. [Para
16][1159-C-D; 1160-A-B]
4. Considering the above, this Court has no hesitation in
concluding that the High Court committed manifest error in
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interfering with and in particular reversing the well-considered
decision of the first appellate Court, which had justly concluded
that document dated 10.3.1988 executed between the parties was
merely a memorandum of settlement, and it did not require
registration. It must follow that the relief claimed by the plaintiff
in the suit, as granted by the first appellate Court ought not to
have been interfered with by the High Court and more so, in a
casual manner, as adverted to earlier. [Para 19][1162-B-C]
Kale & Ors. vs. Deputy Director of Consolidation &
Ors. (1976) 3 SCC 119 : [1976] 3 SCR 202 – relied
on.
Bhoop Singh v. Ram Singh Major & Ors. (1995) 5 SCC
709 : [1995] 3 Suppl. SCR 466; Hans Raj & Ors. v.
Mukhtiar Singh (1996) 3 RCR (Civil) 740; Hari
Shankar Singhania & Ors. v. Gaur Hari Singhania &
Ors. (2006) 4 SCC 658 : [2006] 3 SCR 726; Som Dev
& Ors. v. Rati Ram & Anr. (2006) 10 SCC 788 : [ 2006]
5 Suppl. SCR 778; Sahu Madho Das v. Pandit Mukand
Ram, AIR 1955 SC 481 : [1955] SCR 22; Ram Charan
Das v. Girjanandini Devi, AIR 1966 SC 323 : [1965]
SCR 841; Tek Bahadur Bhujil v. Debi Singh Bhujil,
AIR 1966 SC 292; Maturi Pullaiah v. Maturi
Narasimham, AIR 1966 SC 1836; Krishna Biharilal v.
Gulabchand (1971) 1 SCC 837 : [1971] Suppl. SCR
27; S. Shanmugam Pillai v. K. Shanmugam Pillai, (1973)
2 SCC 312 : [1973] 1 SCR 570; Dhiyan Singh v. Jugal
Kishore, AIR 1952 SC 145 : [1952] SCR 478; T.V.R.
Subbu Chetty’s Family Charities v. M. Gaghava
Mudaliar, AIR 1961
SC 797 : [1961] SCR 624 –
referred to.
Jagdish & Ors. v. Ram Karan & Ors. PLR (2003) 133
P&H 182; Lala Khunni Lal v. Kunwar Gobind Krishna
Narain, ILR 33 All 356; Mt. Hiran Bibi v. Mst. Sohan
Bibi, AIR 1914 PC 44; Ramgopal v. Tulshi Ram, AIR
1928 All 641; Sitala Baksh Singh v. Jang Bahadur
Singh, AIR 1933 Oudh 347; Mst. Kalawati v. Sri
Krishna Prasad, AIR 1944 Oudh 49; Bakhtawar v.
Sunder Lal, AIR 1926 All 173; Awadh Narain Singh v.
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
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Narain Mishra, AIR 1962 Pat 400; Ramgouda
Annagouda v. Bhausaheb, AIR 1927 PC 227;
Brahmanath Singh v. Chandrakali Kuer, AIR 1961 Pat
79; Mst. Bibi Aziman v. Mst. Saleha, AIR 1963 Pat 62;
Kanhai Lal v. Brij Lal, AIR 1918 PC 70; Rachbha v.
Mt. Mendha, AIR 1947 All 177; Chief Controlling
Revenue Authority v. Smt. Satyawati Sood, AIR 1972
Delhi 171 (FB); Shyam Sunder v. Siya Ram, AIR 1973
All 382 – referred to.
Case Law Reference
[1976] 3 SCR 202
relied on
Para 7
[1995] 3 Suppl. SCR 466
referred to
Para 12
[2006] 3 SCR 726
referred to
Para 12
[1955] SCR 22
referred to
Para 16
[1965] SCR 841
referred to
Para 16
AIR 1966 SC 292
referred to
Para 16
[1971] Suppl. SCR 27
referred to
Para 16
[1973] 1 SCR 570
referred to
Para 16
[1952] SCR 478
referred to
Para 16
[1961] SCR 624
referred to
Para 16
[2006] 5 Suppl. SCR 778
referred to
Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7764
of 2014.
From the Judgment and Order dated 27.11.2007 of the High Court
of Punjab and Haryana at Chandigarh in R.S.A. No. 946 of 2004.
Manoj Swarup, Sr. Adv. Rishi Malhotra, Utkarsh Singh,
Ms. Neelmani Pant, Mohit Chaudhary, Prem Malhotra, Parveen Kumar
Aggarwal, Surinder Singh Pannu, Abhishek Grover, Pareekshit Bishnoi,
Nage Nanya, Sanjay Jain, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. This appeal emanates from the judgment and decree dated
27.11.2007 passed by the High Court of Punjab and Haryana at
Chandigarh1 in R.S.A. No. 946/2004, whereby the second appeal filed
by the respondent Nos. 1 to 3 (heirs and legal representatives of Mohan
Singh - original defendant No. 1) came to be allowed by answering the
substantial question of law formulated as under: -
“Whether the document Ex.P-6 required registration as by way
of said document the interest in immovable property worth more
than Rs.100/- was transferred in favour of the plaintiff?”
2. Briefly stated, the suit was filed by the predecessor of the
appellants herein - Harbans Singh, son of Niranjan Singh, resident of
Sangrur, Punjab against his real brothers Mohan Singh (original defendant
No. 1) and Sohan Singh (original defendant No. 2) for a declaration that
he was the exclusive owner in respect of land admeasuring 11 kanals 17
marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road
and other properties referred to in the Schedule. He asserted that there
was a family settlement with the intervention of respectable persons
and family members, whereunder his ownership and possession in respect
of the suit land including the constructions thereon (16 shops, a samadhi
of his wife – Gurcharan Kaur and one service station with boundary
wall) was accepted and acknowledged. Structures were erected by him
in
his capacity as owner of the suit land. It is stated that in the year 1970
after the purchase of suit land, some dispute arose between the brothers
regarding the suit land and in a family settlement arrived at then, it was
clearly understood that the plaintiff – Harbans Singh would be the owner
of the suit property including constructions thereon and that the name of
Mohan Singh (original defendant No. 1) and Sohan Singh (original
defendant No. 2) respectively would continue to exist in the revenue
record as owners to the extent of half share and the plaintiff would have
no objection in that regard due to close relationship between the parties.
However, the defendants raised dispute claiming half share in respect of
which Harbans Singh (plaintiff) was accepted and acknowledged to be
the exclusive owner and as a result of which it was decided to prepare
a memorandum of family settlement incorporating the terms already
settled between the parties, as referred to above. The stated memorandum
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
1 For short, “the High Court”
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was executed by all parties on 10.3.1988. However, after execution of
the memorandum of family settlement dated 10.3.1988, the defendants
once again raised new issues to resile from the family arrangement. As
a result, Harbans Singh (plaintiff) decided to file suit for declaration on
9.5.1988, praying for a decree that he was the owner in possession of
the land admeasuring 11 kanals 17 marlas comprising of khasra Nos.
935/1 and 935/2 situated at Mohalla Road. An alternative plea was also
taken that since plaintiff was in possession of the whole suit property to
the knowledge of the defendants openly and adversely for more than
twelve years, he had acquired ownership rights by way of adverse
possession.
3. The suit was resisted by the defendants by filing written
statement. Harbans Singh (plaintiff) filed replications. On the basis of
rival pleadings, the Civil Judge (Junior Division), Sangrur in Suit No.
187/1988 B.T. No. 185 of 18-1-95 (18-1-95) framed following issues: -
“1. Whether the plaintiff is owner in possession of suit land? OPP
2. Whether there was any family settlement between the parties
on 10.3.1988 and memo of family settlement was executed by
parties on that day? OPP
3. Whether the plaintiff constructed shops, a service station and
boundary wall around the disputed property? OPP
4. Whether the plaintiff has become owner of suit land by adverse
possession? OPP
5. Whether the property in dispute was
purchased out by the
income of Joint Hindu Family coparcenary property and
construction on the suit land was also purchased by Joint Hindu
Family coparcenary property? OPD
6. Whether Sohan Singh, Mohan Singh and Harbans Singh
constitute a Joint Hindu Family? OPD
7. Whether the defendants are estopped from denying the
execution of memo of family settlement by their act and conduct?
OPP
8. Relief.”
During the pendency of the suit, Harbans Singh (plaintiff) expired
and, therefore, the appellants herein were brought on record being his
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legal heirs. The trial Court vide judgment and decree dated 19.1.2000,
partly decreed the suit in the following terms: -
“RELIEF
30. In view of my discussion on various issues above, the suit of
the plaintiff partly succeeds and partly fails. Therefore, his suit is
decreed partly to the extent that he is declared to be owner in
possession of khasra no. 935/1/1/2 (5-18) and to the extent of ½
share in khasra no. 935/1/1/1 (5-19) with construction there upon.
Keeping in view the relationship between the parties and the
circumstances of the case, no order as to cost.  Decree sheet be
prepared accordingly. File be consigned to the record room.”
4. Aggrieved by this decision, the appellants/plaintiffs filed first
appeal before the District Judge, Sangrur being Civil Appeal No. 45 of
5-2-2000 B.T. No. 60 of 11-6-2001. The first appellate Court, after
reappreciating the pleadings and evidence on record, was pleased to
allow the appeal and modify the judgment and decree passed by the trial
Court. The first appellate Court declared the original plaintiff as owner
of the suit land alongwith constructions including 16 shops, a service
station and boundary wall with samadhi in the land. The operative order
passed by the first appellate Court, dated 29.11.2003, reads thus: -
“18. In the light of the above discussion, the appeal is allowed and
the judgment passed by the learned trial court is modified and the
suit of the plaintiff is decreed. The plaintiff is declared
owner of
the land measuring 11 kanals 17 marlas comprised in rectangle
and killa no. 935/1/1/1 (5-19), 935/1/1/2 (5-18) situated in Mehlan
Road, Sangrur along with construction including 16 shops, a service
station and boundary wall with samadh in the land. In view of the
peculiar circumstances of the case the parties are left to bear
their own costs. Decree sheet be prepared and copy of the
judgment be placed on the file of the learned trial court and the
same be returned immediately to the successor court of Smt.
Harreet Kaur PCS, the then Civil Judge (Junior Division), Sangrur.
This court file be consigned to the record room.”
5. The respondent Nos. 1 to 3 being legal representatives of
Mohan Singh (original defendant No. 1) preferred second appeal before
the High Court being R.S.A. No. 946/2004. The learned single Judge
answered the substantial question of law reproduced in paragraph 1
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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above in favour of the said respondents. The High Court was pleased to
set aside the conclusion recorded by the first appellate Court and opined
that the document which, for the first time, creates a right in favour of
plaintiff in an immovable property in which he has no pre-existing right
would require registration, being the mandate of law. Accordingly, the
second appeal came to be allowed and the judgment and decree passed
by the lower appellate Court was set aside, thereby restoring the decree
passed by the trial Court, vide impugned judgment dated 27.11.2007.
6. The appellants have questioned the correctness of the view
taken by the High Court and in particular, reversing the conclusion
reached by the first appellate Court. When the present appeal was taken
up for hearing, the Court referred the matter to a larger Bench of three-
Judges to answer the question as to whether the acquisition of title by
adverse possession can be taken by plaintiff under Article 65 of the
Limitation Act, 1963 and is there any bar under the Limitation Act to sue
on aforesaid basis in case of infringement of any rights of a plaintiff.
The appeal accordingly proceeded before the three-Judge Bench, which
in turn answered the said question vide judgment dated 7.8.20192 in
favour of the plaintiff. As a result, the matter has been placed before us
for consideration of the appeal on its own merits.
7. The appellants would contend that the
High Court disposed of
the second appeal in a casual manner and more so, without dealing with
the finding of fact recorded by the first appellate Court in favour of the
plaintiff. It is urged that the first appellate Court, after noticing the
admitted factual position, proceeded to first examine the question whether
the document dated 10.3.1988 (Exhibit P-6) was executed by the parties
or not. That fact has been answered in favour of the plaintiff (appellants)
after analysing the evidence on record. It has been held that the stated
document was indisputably executed by the parties. The next question
considered by the first appellate Court was whether the stated document
required registration or not, which has been justly answered in favour of
the plaintiff (appellants) on the finding that it was merely a memorandum
of family settlement and not a document containing terms and recitals of
the family settlement made thereunder. For that, the first appellate Court
noted that the plaintiff had constructed 16 shops and a samadhi including
boundary wall on the suit land on his own, which fact was indisputable
and established from the evidence on record. Further, the plaintiff was
2 Reported as (2019) 8 SCC 729
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in possession of the suit land. Even this finding is supported by the
evidence on record and is well-established. It is also established from
record that as per the family settlement, the plot in Prem Basti belonging
to Harbans Singh (plaintiff) was given to Sohan Singh (original defendant
No. 2), which was in possession of Mohan Singh (original defendant
No. 1) and that another plot purchased by plaintiff in the name of his son
Vikramjit Singh was given to Mohan Singh (original defendant No. 1)
and his wife. Notably, the Defendant Witness No. 1 (DW-1) admitted
that the said property was sold thereafter to one Surjit Kaur.  In substance,
it is established that the parties had acted upon the family settlement,
which was recorded in the form of document - Exhibit P-6 being a
memorandum of family settlement. In other words, the concerned parties
had acted upon the family arrangement as per the settlement terms
decided in 1970 and reinforced by the document Exhibit P-6
(memorandum of family settlement). Being a memorandum of family
settlement, it was not required to be registered and, in any case, the
parties having acted upon the terms of the said settlement to the prejudice
of the other party, it was not open to them to resile from the said
arrangement. Thus, they are estopped from disowning the arrangement
already reached, acted upon and so recorded in the memorandum of
family settlement. Thus understood, the plaintiff was accepted and
acknowledged to be
the owner of the suit property by all the family
members who were also party to the memorandum of family settlement
(Exhibit P-6). The appellants have placed reliance on the decision of this
Court in Kale & Ors. vs. Deputy Director of Consolidation & Ors.3
They pray for restoration of the decree passed by the first appellate
Court and setting aside the impugned judgment.
8. On the other hand, the respondent Nos. 1 to 3 would contend
that the High Court has rightly considered the document Exhibit P-6 as
containing terms and recitals of family settlement and for which reason
it was essential to get the same registered. It is urged that there was no
pre-existing title in favour of the plaintiff in respect of the suit property,
as the same was purchased in the name of concerned defendant by way
of a registered sale deed. The parties were not in possession of Joint
Hindu Family property as such and therefore, the question of partition of
that property does not arise. The plea that there was no Joint Hindu
Family property was taken by the plaintiff in the replication filed before
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
3 (1976) 3 SCC 119
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the trial Court. This plea was taken in the context of the assertion made
by the defendants in the written statement that the suit property was
jointly owned by Mohan Singh (original defendant No. 1) and Sohan
Singh (original defendant No. 2). The contesting respondents have
reiterated the stand that there was no family settlement in 1970, as stated
by the plaintiff and that the signature of the defendant No. 2 appearing
in document Exhibit P-6 is forged and fabricated. Further, the High Court
has justly non-suited the plaintiff and preferred to restore the partial
decree passed by the trial Court on the conclusion that the document
Exhibit P-6 is inadmissible in evidence, as it has not been registered
despite the transfer of title in immovable property worth more than
Rs.100/-. In other words, the High Court answered the substantial question
of law against the plaintiff and as a result of which it rightly allowed the
second appeal filed by the defendants (respondent Nos. 1 to 3). The
view so taken by the High Court is unexceptionable.
9. We have heard Mr. Manoj Swarup, learned senior counsel for
the appellants and Mr. Parveen Kumar Aggarwal, learned counsel for
the respondents.
10. The core issue involved in this appeal is: whether the document
Exhibit P-6 was required to be registered as interest in immovable
property worth more than Rs.100/- was transferred in favour of the
plaintiff?
11. It is not in dispute that
the parties are closely related.  Mohan
Singh (original defendant No. 1) and Sohan Singh (original defendant
No. 2) were real brothers of Harbans Singh (original plaintiff).  Original
defendant No. 4 – Harjinder Kaur is the wife of Sohan Singh (original
defendant No. 2). The father of the plaintiff and defendant Nos. 1 and 2
died during minority of defendant Nos. 1 and 2. The defendants had
proved the copy of sale deed dated 16.4.1970 (Exhibit DW-3/A), whereby
Mohan Singh (original defendant No. 1) and Sohan Singh (original
defendant No. 2) purchased land admeasuring 5 kanals 19 marlas
comprised in khasra No. 935/1. Harbans Singh (plaintiff) had appeared
on behalf of the purchaser at the time of execution of the sale deed.
Jamabandi for the year 1984-1985 of the property in dispute (Exhibit D-
1) reveals that khasra No. 935/1/1/1 (5-19) shows the name of Mohan
Singh (original defendant No. 1) and Sohan Singh (original defendant
No. 2) as owners, whereas the name of Harbans Singh (plaintiff) is
shown against khasra No. 935/1/1/2 (5-18) as owner.  Mohan Singh
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(original defendant No. 1) had stated that the land standing in the name
of Harbans Singh (original plaintiff) was purchased by him from the
funds of joint family, but that fact has not been proved or established by
the contesting defendants. In that sense, it may appear from the revenue
record that the concerned parties were owners in respect of separate
properties and not as joint owners. The fact remains that Harbans Singh
(original plaintiff), Mohan Singh (original defendant No. 1) and Sohan
Singh (original defendant No. 2) are closely related being real brothers.
Further, although the ownership of the suit property recorded in Jamabandi
is of concerned defendant, Harbans Singh (plaintiff) had constructed 16
shops, samadhi of his wife – Gurcharan Kaur and a boundary wall on
the property and was in possession thereof.  Pertinently, the trial Court
had opined in paragraph 24 of its judgment that all the three brothers –
Harbans Singh (plaintiff), Mohan Singh (original defendant No. 1) and
Sohan Singh (original defendant No. 2), as noted in Exhibit P-6, owned
various properties, on which possession of Harbans Singh (plaintiff) being
the eldest brother is admitted. However, it was a permissive possession.
The first appellate Court has also opined in paragraph 16 of the judgment
that Harbans Singh (plaintiff) came in possession of the suit property
with the consent of the defendants. Notably, this finding of fact has not
been disturbed by the High Court.
That apart, it is established from the
record that plot at Prem Basti belonged to Harbans Singh (plaintiff),
which was given to Sohan Singh (original defendant No. 2) after taking
possession thereof from Mohan Singh (original defendant No. 1). Further,
plot purchased by Harbans Singh (plaintiff) in the name of his son was
given to Mohan Singh (original defendant No. 1) and his wife. It has
been admitted by DW-1 that later on the said plot was sold to one Surjit
Kaur. These facts clearly establish that there was not only univocal
family arrangement between the parties, but it was even acted upon by
them without any exception. This factual position has not been doubted
by the High Court.
12. As a matter of fact, the High Court has not bothered to even
advert to this aspect, whilst analysing the correctness of the finding of
fact recorded by the first appellate Court, which was the final fact-
finding Court. From the impugned judgment, it is noticed that after giving
the basic facts, the High Court first extracted the relevant portion from
the trial Court’s judgment (paragraphs 17-21 thereof) and thereafter
adverted to the finding and conclusion recorded by the trial Court on
other issues. The High Court then went on to extract paragraph 16 of
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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the judgment of the first appellate Court in its entirety, running into about
8 pages and then formulated the substantial question of law. For
answering the said substantial question of law, the High Court first
adverted to the decision of this Court in Bhoop Singh vs. Ram Singh
Major & Ors.4 and reproduced paragraphs 12, 13, 16 and 18 thereof.
After that, the relevant portion of the decision of the same High Court in
the case of Hans Raj & Ors. vs. Mukhtiar Singh5 has been extracted.
After doing so, the High Court then referred to the contention of the
appellants herein and extracted paragraphs 44 and 54 of the judgment in
Hari Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.6
The High Court then adverted to a decision of the same High Court in
Jagdish & Ors. vs. Ram Karan & Ors.7 and reproduced paragraph
14 thereof. Only after reproducing the aforesaid extracts inextenso,
learned single Judge of the High Court adverted to the factual aspects
of the present case in the following words, to allow the appeal: -
“On a consideration of the matter, I find that a document which,
for the first time, creates a right in favour of plaintiff in an immovable
property in which he has no pre-existing right, then registration is
required. The presumption of pre-existing right can only be inferred
if a consent decree is passed where such claim is admitted by the
other party, but a document which is not disputed by the party
and
there is no admission regarding the acceptance of a right and suit
is based on such a document under which the right is transferred
to the plaintiff in a property in which he has no pre-existing right,
then it would not require registration as is the ratio of the judgment
of the Hon’ble Supreme Court in the case of Som Dev and others
(supra). In view of this proposition of law if the matter is considered,
the question of law, as framed, has to be answered in favour of
the appellants.
In the present case, it may be noticed that the property in
dispute was purchased by way of two sale deeds and the ownership
of the parties was duly reflected in the revenue record. The plaintiff
claimed right to the property under the deed of family settlement
Exhibit P-6. Thus he claimed that the defendants had relinquished
4 (1995) 5 SCC 709
5 (1996) 3 RCR (Civil) 740 (paragraphs 7 to 9)
6 (2006) 4 SCC 658
7 PLR (2003) 133 P&H 182
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their right in the immovable property in his favour under the
memorandum of family settlement which was alleged to have
been executed much earlier. In any case, it has to be held that the
document transferring title in an immovable property worth more
than Rs.100/- rupees, even if it was by way of relinquishment, the
same required registration. Thus, the learned trial Court was right
in holding that no title passed on to the plaintiff under Exhibit P-6
i.e. family settlement entered into between the parties. This view
of mine finds support from the judgment of the Hon’ble Supreme
Court in the case of Hari Chand (dead) through LRs vs. Dharampal
Singh Baba, 2007 (4) Herald (SC) 3028, wherein the Hon’ble
Supreme Court has been pleased to lay down that the family
settlement could only be if one has lawful right over the property
and then alone family settlement could be executed. When there
is no lawful rights of the parties over the property, there was no
occasion to file the suit on the basis of family settlement.
In view of what has been stated and discussed above, this
appeal is allowed and the judgment and decree passed by the
learned lower Appellate Court is set aside and that of the learned
trial Court is restored, but with no order as to costs.”
13. As against this, the first appellate Court thoroughly examined
the pleadings and the evidence, oral as well as documentary, placed on
record by the concerned parties. In the first place, it examined the
question
whether the document Exhibit P-6 was executed by the parties or not.
After adverting to the relevant evidence, the first appellate Court opined
that the trial Court was right in concluding that Exhibit P-6 was executed
by the parties referred to therein. That being concurrent finding of fact,
needs no further scrutiny. The High Court has not reversed this finding
of fact, as is noticed from the extracts of its judgment reproduced above.
The first appellate Court then went on to examine whether the document
required registration. The High Court has reproduced paragraph 16 of
the judgment of the first appellate Court in its entirety. What is relevant
to notice is that the first appellate Court adverted to the pleadings and
oral and documentary evidence produced by the respective parties and
found that the plaintiff had proved the compromise (Exhibit CX) dated
15.5.1992 between the plaintiff and defendant Nos. 2 and 3, namely,
Sohan Singh and Harjinder Kaur. Harjinder Kaur had stepped into witness
box and admitted the said fact. She also admitted the fact of execution
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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of a family settlement. Thus, the dispute was between the successors of
Harbans Singh (plaintiff) and successors of Mohan Singh (original
defendant No. 1). The first appellate Court thus accepted the stand of
the plaintiff that in the year 1970, after purchase of land, dispute arose
between the parties regarding the suit land and in that family settlement,
plaintiff was held to be owner of the suit property including its
constructions. The first appellate Court in that context observed thus: -
“16. …  The specific case of the plaintiff that he constructed with
his personal money 16 shops on the suit land, one service station
with boundary wall and also samadh of Smt. Gurcharan Kaur.  It
is admitted that samadh of Gurcharan Kaur is in the suit property.
If the plaintiff was not acknowledged the owner of the suit property
then there was no question of construction of samadh of
Gurcharan Kaur his wife by the plaintiff on the suit property.  So
the version of the defendant that no dispute arose in the year
1970 and no family settlement took place can not be accepted…”
The first appellate Court then analysed the evidence of defendant
witnesses and held that the same were not reliable or trustworthy as
they did not know any fact regarding the suit property. The first appellate
Court then adverted to another crucial fact and noted that Mohan Singh
(original defendant No. 1) and Sohan Singh (original defendant No. 2)
were
residing in house situated at Prem Basti prior to 1988, which
belonged to Harbans Singh (plaintiff). As noted earlier, this property as
per the family arrangement was given to Sohan Singh and has been so
recorded in the memorandum of family settlement (Exhibit P-6). The
first appellate Court found that the defendants had failed to prove that
they were in possession of the suit property or remained in possession
thereof. On the other hand, the evidence on record clearly established
that the plaintiff was in possession of the suit property. The first appellate
Court then interpreted document Exhibit P-6 and found that it was not
with regard to khasra No. 935 (11-17), but it referred to other properties.
After analysing the relevant evidence, the first appellate Court held that
Exhibit P-6 cannot be construed as a document containing terms and
recitals of a family arrangement, but only a memorandum of family
arrangement. It went on to observe as follows: -
16. …  Document Ex.P-6 is not with regard to khasra no. 395
(11-17) but other property is also included in the said document.
A plot situated in Prem Basti which was in the name of Harbans
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Singh and Gurcharan Kaur was already got vacated from Mohan
Singh and was given to Sohan Singh and Harjinder Singh.  A plot
measuring 17 marlas which was purchased by Vikaramjit Singh
was given to Manjit Kaur and Mohan Singh and Manjit Kaur DW-
1 has admitted that she had already sold that plot to Surjit Kaur.
So it can be concluded that said document was acted upon.
Although few sentences of the said documents are in the present
tense but the court is to see from the material on record whether
the said document created right in the immovable property or rights
were already created but the document was written by way of
memorandum. The said document does not pertain to khasra no.
935/1/1/1 (5-19) but entire khasra no. 935/1 (11-17). Had the said
document created right in khasra no. 935/1/1/1 (5-19) then there
was no question of throwing khasra no. 935/1/1/2 in common pool
and other property of the parties. There is specific recital that on
the basis of sale deeds Harbans Singh was owner in possession
of the suit property and was coming in possession of the same.
Harbans Singh has constructed 16 shops and service station there.
In other words, it proves that Harbans Singh was being
considered as owner in possession of the suit property.
Prior to execution of the said document on that day they
compromised not to raise any dispute regarding his
ownership. So this document was a writing with regard to
fact which was already being considered and admitted by
the parties. So it cannot be said that this document, copy of
which is Ex.P-6 created right for the first time in the
immovable property.…..”
(emphasis supplied)
And again, as follows: -
“16.
…..  Since the parties were closely related to each
other and document was executed with regard to the fact-
which they were already admitting so I am of the view that
document dated 10.3.1988 copy of which is Ex.P-6 did not
require registration. In case Hans Raj cited supra the matter
was got compromised and document itself created right in the
property. In case Hari Singh vs. Shish Ram & others cited supra
it was held that document between the parties was partitioned
and consideration was passed from one party to other. In Shishpal
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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vs. Vikram cited supra it was held that during life time of Gyani
Ram the plaintiff filed suit so there could not be any family
settlement. In case Smt. Karamjit Kaur and another versus Smt.
Sukhjinder Kaur and others cited supra vide compromise the
plaintiff and defendant no. 1 to 4 had agreed to take 30 bighas of
land out of 90 bighas left by Mohinder Singh so it was held that
said compromise has created right in favour of defendants no. 5
and 6 to the property of more than Rs.100/- So require registration.
All the above said authorities cited by counsel for defendants are
distinguishable on facts and ratio of said authorities cannot be
applied to the facts of the present case. Since plaintiff is proved
to be in existence in possession of the suit property.  So construction
of shops land service station on the said property was done by the
plaintiff himself and not from funds of joint family. This fact is
further corroborated by writing dated 10.3.1988 copy of which is
Ex. P-6.  Since said document did not require registration so plaintiff
is proved to be owner of the suit property. The defendants estopped
from denying the execution of the family settlement. Defendants
have failed to prove that Harbans Singh, Mohan Singh and Sohan
Singh constituted Joint Hindu Family Property and construction
of the suit property was raised from the Joint Hindu Family Funds.
Thus, finding recorded by the learned Trial Court on
issues No. 3,
5 and 7 are set aside and it is held that the plaintiff constructed
shops and service station and boundary wall on the suit property
with his own funds. The defendant has failed to prove that property
in dispute was purchased by the income of the Joint Hindu
coparcenary property and Sohan Singh, Mohan Singh and Harbans
Singh constituted Joint family. So these issues are decided in favour
of the plaintiff. Parties executed document Ex.P-6 dated
10.3.1988 by way of memorandum of family settlement and
it did not require registration. The defendants are estopped
from denying the execution of the said document and
plaintiff is proved to be owner in possession of the suit
land. Issues No. 1 and 2 and 7 are also decided in favour of the
plaintiff.  Since the plaintiff came in possession of the suit property
with the consent of the defendants and his possession never become
adverse to the interest of the defendants so finding of the learned
trial Court on issue no. 4 is affirmed.”
(emphasis supplied)
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14. As noticed from the extracted portion of the judgment of the
High Court in paragraph 12 above, it is amply clear that the High Court
has not dealt with the factual aspects adverted to by the first appellate
Court to conclude that the document Exhibit P-6 was only a memorandum
of family settlement and not a document containing the terms and recitals
of a family settlement. Being the former, no registration was necessary.
For which reason, relief claimed by the plaintiff founded on the family
settlement between the real brothers arrived at in 1970, acted upon
without any exception and documented on 10.3.1988, ought to follow.
15. The first appellate Court has also justly opined that the parties
had acted upon the stated family settlement and if we may say so, to the
prejudice of the other party. In that, the property in the name of plaintiff
at Prem Basti was given to Sohan Singh (original defendant No. 2),
which was otherwise in possession of Mohan Singh (original defendant
No. 1). Further, the plot purchased by the plaintiff in the name of his son
was given to Mohan Singh (original defendant No. 1) and his wife, but
that plot was admittedly sold by them to one Surjit Kaur. Being a case of
a family settlement between the real brothers and having been acted
upon by them, it was not open to resile from the same. They were
estopped from contending to the contrary. This crucial aspect has been
glossed over by the High Court and if we may say so, the
second appeal
has been disposed of in a most casual manner. Inasmuch as, the impugned
judgment of the High Court merely contains extraction of the judgment
of the trial Court and first appellate Court and of the relied upon judgments
(precedents). The only consideration is found in two concluding
paragraphs, which are extracted above (paragraph 12). Even on liberal
reading of the same, it is not possible to conclude that the High Court in
exercise of its appellate jurisdiction (second appeal) had undertaken proper
analysis and scrutiny of the judgment of the first appellate Court in right
perspective, much less keeping in mind the limited scope of jurisdiction
to entertain second appeal under Section 100 of the Code of Civil
Procedure, 1908. The impugned judgment is bordering on a casual
approach by the High Court in overturning the well-considered decision
of the first appellate Court. Although the impugned judgment runs into
36 pages, the manner in which it proceeds leaves us to observe that it is
cryptic. We say no more. On this count alone, impugned judgment does
not stand the test of judicial scrutiny.
16. Be that as it may, the High Court has clearly misapplied the
dictum in the relied upon decisions. The settled legal position is that
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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when by virtue of a family settlement or arrangement, members of a
family descending from a common ancestor or a near relation seek to
sink their differences and disputes, settle and resolve their conflicting
claims or disputed titles once and for all in order to buy peace of mind
and bring about complete harmony and goodwill in the family, such
arrangement ought to be governed by a special equity peculiar to them
and would be enforced if honestly made. The object of such arrangement
is to protect the family from long drawn litigation or perpetual strives
which mar the unity and solidarity of the family and create hatred and
bad blood between the various members of the family, as observed in
Kale (supra).  In the said reported decision, a three-Judge Bench of this
Court had observed thus: -
“9.
…..  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 successionis 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 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 disturbing 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. …..”
(emphasis supplied)
In paragraph 10 of the said decision, the Court has delineated the
contours of essentials of a family settlement as follows: -
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“10. In other words to put the binding effect and the essentials of
a family settlement in a concretised form, the matter may be
reduced into the form of the following propositions:
“(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and equitable
division or allotment of properties between the various members
of the family;
(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which
case no registration is necessary;
(4) 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 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 and is, therefore, not compulsorily
registrable;
(5) 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 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;
(6) Even if bona fide disputes, present or possible, which may
not involve legal claims are settled by a bona fide family
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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arrangement which is fair and equitable the family arrangement
is final and binding on the parties to the settlement.”
(emphasis supplied)
Again, in paragraph 24, this Court restated that a family
arrangement being binding on the parties, clearly operates as an estoppel,
so as to preclude any of the parties who have taken advantage under the
agreement from revoking or challenging the same. In paragraph 35, the
Court noted as follows: -
“35. …  We have already pointed out that this Court has widened
the concept of an antecedent title by holding that an antecedent
title would be assumed in a person who may not have any title but
who has been allotted a particular property by other party to the
family arrangement by relinquishing his claim in favour of such a
donee. In such a case the party in whose favour the relinquishment
is made would be assumed to have an antecedent title. …..”
And again, in paragraph 36, the Court noted as follows: -
“36. …  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 between
these three parties was a valid one. In the instant case also putting
the case of Respondents Nos. 4 and 5 at the highest, the position
is that Lachman died leaving a grandson and two daughters.
Assuming that the grandson had no legal title, so long as 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 would
be sustained as a valid and binding family settlement. …”
While rejecting the argument regarding inapplicability of principle
of estoppel, the Court observed as follows: -
“38. … Assuming, however, that the said document was
compulsorily registrable the courts have generally held that
a family arrangement being binding on the parties to it would
operate as an estoppel by preventing the parties after
having taken advantage under the arrangement to resile
from the same or try to revoke it. …..”
(emphasis supplied)
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And in paragraph 42, the Court observed as follows: -
42. ..…  In these circumstances there can be no doubt that
even if the family settlement was not registered it would
operate as a complete estoppel against Respondents Nos.
4 and 5. Respondent No. 1 as also the High Court, therefore,
committed substantial error of law in not giving effect to the
doctrine of estoppel as spelt out by this Court in so many cases.
…”
(emphasis supplied)
The view so taken is backed by the consistent exposition in previous
decisions8 referred to and duly analysed in the reported judgment. The
question formulated by the High Court, in our opinion, stands answered
in favour of the appellants (plaintiff), in light of exposition of this Court in
Kale (supra). A priori, we have no hesitation in affirming the conclusion
reached by the first appellate Court that the document Exhibit P-6 was
nothing but a memorandum of a family settlement. The established facts
and circumstances clearly establish that a family settlement was arrived
at in 1970 and also acted upon by the concerned parties. That finding of
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
8 Lala Khunni Lal vs. Kunwar Gobind Krishna Narain, ILR 33 All 356
  Mt. Hiran Bibi vs. Mst. Sohan Bibi, AIR 1914 PC 44
  Sahu Madho Das vs. Pandit Mukand Ram, AIR 1955 SC 481
  Ram Charan Das vs. Girjanandini Devi, AIR 1966 SC 323
  Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292
  Maturi Pullaiah
vs. Maturi Narasimham, AIR 1966 SC 1836
  Krishna Biharilal vs. Gulabchand, (1971) 1 SCC 837
  S. Shanmugam Pillai vs. K. Shanmugam Pillai, (1973) 2 SCC 312
  Ramgopal vs. Tulshi Ram, AIR 1928 All 641
  Sitala Baksh Singh vs. Jang Bahadur Singh, AIR 1933 Oudh 347
  Mst. Kalawati vs. Sri Krishna Prasad, AIR 1944 Oudh 49
  Bakhtawar vs. Sunder Lal, AIR 1926 All 173
  Awadh Narain Singh vs. Narain Mishra, AIR 1962 Pat 400
  Ramgouda Annagouda vs. Bhausaheb, AIR 1927 PC 227
  Brahmanath Singh vs. Chandrakali Kuer, AIR 1961 Pat 79
 Mst. Bibi Aziman vs. Mst. Saleha, AIR 1963 Pat 62
 Kanhai Lal vs. Brij Lal, AIR 1918 PC 70
 Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145
T.V.R. Subbu Chetty’s Family Charities vs. M. Gaghava Mudaliar, AIR 1961 SC 797
Rachbha vs. Mt. Mendha, AIR 1947 All 177
Chief Controlling Revenue Authority vs. Smt. Satyawati Sood, AIR 1972 Delhi 171
(FB)
Shyam Sunder vs. Siya Ram, AIR 1973 All 382
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fact recorded by the first appellate Court being unexceptionable, it must
follow that the document Exhibit P-6 was merely a memorandum of a
family settlement so arrived at. Resultantly, it was not required to be
registered and in any case, keeping in mind the settled legal position, the
contesting defendants were estopped from resiling from the stated
arrangement in the subject memorandum, which had recorded the
settlement terms arrived at in the past and even acted upon relating to all
the existing or future disputes qua the subject property amongst the
(signatories) family members despite absence of antecedent title to the
concerned property.
17. As regards the decision in Bhoop Singh (supra) and Som
Dev & Ors. vs. Rati Ram & Anr.9, the same dealt with the question of
necessity to register any decree or order of a Court governed by clause
(vi) of Section 17(2) of the Registration Act, 190810. In the present case,
however, clause (v) of sub-Section 2 of Section 17 of the 1908 Act is
attracted. Section 17 as applicable when the cause of action arose (prior
to amendment of 2001) reads thus: -
“Part III
OF REGISTRABLE DOCUMENTS
17.
Documents of which registration is compulsory.-
(1)
xxx
xxx
xxx
(2)
Nothing in clauses (b) and (c) of sub-section (1) applies to
–
(i) xxx
xxx
xxx
(ii) xxx
xxx
xxx
(iii)xxx
xxx
xxx
(iv)xxx
xxx
xxx
(v)
any document not itself creating, declaring, assigning, limiting
or extinguishing any
right, title or interest of the value of
one hundred rupees and upwards to or in immovable
property, but merely creating a right to obtain another
9 (2006) 10 SCC 788
10 For short, “the 1908 Act”
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document which will, when executed, create, declare, assign,
limit or extinguish any such right, title or interest; or
…..”
18. In our considered view, reliance placed by the High Court on
the decisions of this Court will be of no avail to alter or impact the
conclusion recorded by the first appellate Court.  As aforementioned, in
Bhoop Singh (supra) and Som Dev (supra), the Court was dealing with
the issue of compulsory registration of a decree or order of Court.  In
the context of the applicable clause (vi) in sub-Section (2) of Section 17,
the Court in Bhoop Singh (supra) went on to hold as follows: -
“18. The legal position qua clause (vi) can, on the basis of the
aforesaid discussion, be summarised as below:
(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 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.”
RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.
[A. M. KHANWILKAR, J.]
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In the present case, as noted earlier clause (v) of Section 17(2) is
attracted, which pertains to execution of any document creating or
extinguishing right, title or interest in an immovable property amongst
the family members. Thus, the dictum in Kale (supra) is attracted in the
fact situation of this case.
19. Considering the above, we have no hesitation in concluding
that the High Court committed manifest error in interfering with and in
particular reversing the well-considered decision of the first appellate
Court, which had justly concluded that document dated 10.3.1988 executed
between the parties was merely a memorandum of settlement, and it did
not require registration. It must follow that the relief claimed by the
plaintiff in the suit, as granted by the first appellate Court ought not to
have been interfered with by the High Court and more so, in a casual
manner, as adverted to earlier.
20. Having said that, it is unnecessary to examine the alternative
plea taken by the plaintiff to grant decree as prayed on the ground of
having become owner by adverse possession. For the completion of
record, we may mention that in fact, the trial Court had found that the
possession of the plaintiff was only permissive possession and that finding
has not been disturbed by the first appellate Court. In such a case, it is
doubtful that the plaintiff can be heard to pursue relief, as prayed on the
basis of his alternative
plea of adverse possession.
21. Be that as it may, we deem it appropriate to set aside the
impugned judgment and restore the judgment and decree passed by the
first appellate Court in favour of the plaintiffs (appellants herein).
22. Accordingly, this appeal is allowed.  Impugned judgment and
decree of the High Court is set aside. The judgment and decree passed
by the first appellate Court is restored in favour of the plaintiff (appellants
herein). Decree be drawn up accordingly. There shall be no order as to
costs. Pending interlocutory applications, if any, shall stand disposed of.
Ankit Gyan
Appeal allowed.