RAVINDER KAUR GREWAL & ORS. versus MANJIT KAUR & ORS.

[2020] 8 S.C.R.

ARAVINDER KAUR GREWAL & ORS.

MANJIT KAUR & ORS.

(Civil Appeal No. 7764 Of 2014)

BJULY 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 ownershipand possession in respect of the suit land comprising Khasra No.C935/1 and 935/2 including constructions thereon of 16 shops, aservice station and boundary wall with Samadhi of his wife in theland, was accepted and acknowledged by his two brothers in afamily settlement – However, dispute arose between predecessor ofthe appellants and his brothers regarding the suit land – Thereafter,Da memorandum of family settlement dated 10.03.1988 was executedbetween the parties – The brothers of the predecessor of theappellants, however, again raised new issues to resile from the familyarrangement – As result, suit was filed by plaintiff/predecessorof the appellants against his brothers, original defendant nos. 1 &2 for declaration that he was the exclusive owner of the suit landE– The trial Court decreed the suit partly in favour of the plaintiff –However, the First Appellate Court declared the plaintiff as the ownerof the suit land – The First Appellate Court also held that thedocument dated 10.03.1988 was indisputably executed by the partiesand the said document was merely memorandum of familyFsettlement and not document containing terms and recitals of thefamily settlement made thereunder – Being memorandum of familysettlement, it was not required to be registered – In the second appeal,the High Court set aside the conclusion recorded by the FirstAppellate Court and opined that the document which for the firsttime create right in favour of plaintiff in an immovable propertyGin which he has no pre-existing right would require registration,being the mandate of law – Accordingly, the High Court restoredthe decree passed by the trial Court – On appeal, held: TheJamabandi for the year 1984-85 of the property in dispute revealsthat Khasra No. 935/1/1/1 (5-19) shows name of original defendantH

nos. 1 & 2 as owners, whereas the name of plaintiff is shown againstkhasra No. 935/1/1/2 (5-18) as owner – Although the ownership ofthe suit property recorded in Jamabandi is of the concerneddefendant, the plaintiff had carried constructed thereupon and wasin possession – The possession of the plaintiff is admitted and hecame in possession with the consent of his brothers – Notably, thisfinding has not been disturbed by the High Court – That apart, it isalso established from records that plot in the name of plaintiffwas given to original defendant no. 2, which was otherwise inpossession of original defendant no. 1 – Further, plot purchasedby the plaintiff in the name of his son was given to original defendantno. 1 and his wife – These facts clearly establish that there was notonly univocal family arrangement between the parties, but it wasacted upon by them without any exception – Now, it was not open toresile from the same – They were estopped from contending to thecontrary – The High Court committed manifest error in interferingwith and in particular reversing the well-considered decision of theFirst Appellate Court, which had justly concluded that the documentdated 10.03.1988 was merely memorandum of family settlement,and it did not require registration – Therefore, impugned judgmentand decree of the High Court is set aside – The judgment and decreepassed by the First Appellate Court is restored in favour of theplaintiff (appellants).

Allowing the appeal, the Court

HELD: 1. The first appellate Court has also justly opinedthat the parties had acted upon the stated family settlement andif this Court may say so, to the prejudice of the other party. Inthat, the property in the name of plaintiff at Prem Basti was givento original defendant No. 2, which was otherwise in possession oforiginal defendant No. 1. Further, the plot purchased by the plaintiffin the name of his son was given original defendant No. 1 and hiswife, but that plot was admittedly sold by them to another person.Being case of family settlement between the real brothersand having been acted upon by them, it was not open to resilefrom the same. They were estopped from contending to thecontrary. This crucial aspect has been glossed over by the HighCourt and if this Court may say so, the second appeal has beendisposed of in most casual manner. [Para 15][1155-C-E]

A2. Be that as it may, the High Court has clearly misappliedthe dictum in the relied upon decisions. The settled legal positionis that when by virtue of family settlement or arrangement,members of family descending from common ancestor or anear relation seek to sink their differences and disputes, settleand resolve their conflicting claims or disputed titles once andBfor all in order to buy peace of mind and bring about completeharmony and goodwill in the family, such arrangement ought tobe governed by special equity peculiar to them and would beenforced if honestly made. The object of such arrangement is toprotect the family from long drawn litigation or perpetual strivesCwhich mar the unity and solidarity of the family and create hatredand bad blood between the various members of the family, asobserved 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 expositionin previous decisions referred to and duly analysed in the reportedDjudgment. The question formulated by the High Court, in opinionof this Court, stands answered in favour of the appellants (plaintiff),in light of exposition of this Court in Kale. priori, this Court hasno hesitation in affirming the conclusion reached by the firstappellate Court that the document Exhibit P-6 was nothing but aEmemorandum of family settlement. The established facts andcircumstances clearly establish that family settlement wasarrived at in 1970 and also acted upon by the concerned parties.That finding of fact recorded by the first appellate Court beingunexceptionable, it must follow that the document Exhibit P-6was merely memorandum of family settlement so arrived at.FResultantly, it was not required to be registered and in any case,keeping in mind the settled legal position, the contestingdefendants were estopped from resiling from the statedarrangement in the subject memorandum, which had recordedthe settlement terms arrived at in the past and even acted uponGrelating to all the existing or future disputes qua the subjectproperty amongst the (signatories) family members despiteabsence of antecedent title to the concerned property. [Para16][1159-C-D; 1160-A-B]

4. Considering the above, this Court has no hesitation inconcluding that the High Court committed manifest error inH

interfering with and in particular reversing the well-considereddecision of the first appellate Court, which had justly concludedthat document dated 10.3.1988 executed between the parties wasmerely memorandum of settlement, and it did not requireregistration. It must follow that the relief claimed by the plaintiffin the suit, as granted by the first appellate Court ought not tohave been interfered with by the High Court and more so, in acasual 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 – reliedon.

Bhoop Singh v. Ram Singh Major & Ors. (1995) 5 SCC709 : [1995] 3 Suppl. SCR 466; Hans Raj & Ors. v.Mukhtiar Singh (1996) 3 RCR (Civil) 740; HariShankar 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 MukandRam, AIR 1955 SC 481 : [1955] SCR 22; Ram CharanDas v. Girjanandini Devi, AIR 1966 SC 323 : [1965]SCR 841; Tek Bahadur Bhujil v. Debi Singh Bhujil,AIR 1966 SC 292; Maturi Pullaiah v. MaturiNarasimham, AIR 1966 SC 1836; Krishna Biharilal v.Gulabchand (1971) 1 SCC 837 : [1971] Suppl. SCR27; S. Shanmugam Pillai v. K. Shanmugam Pillai, (1973)2 SCC 312 : [1973] 1 SCR 570; Dhiyan Singh v. JugalKishore, AIR 1952 SC 145 : [1952] SCR 478; T.V.R.Subbu Chetty’s Family Charities v. M. GaghavaMudaliar, AIR 1961 SC 797 : [1961] SCR 624 –referred to.

Jagdish & Ors. v. Ram Karan & Ors. PLR (2003) 133P&H 182; Lala Khunni Lal v. Kunwar Gobind KrishnaNarain, ILR 33 All 356; Mt. Hiran Bibi v. Mst. SohanBibi, AIR 1914 PC 44; Ramgopal v. Tulshi Ram, AIR1928 All 641; Sitala Baksh Singh v. Jang BahadurSingh, AIR 1933 Oudh 347; Mst. Kalawati v. SriKrishna Prasad, AIR 1944 Oudh 49; Bakhtawar v.Sunder Lal, AIR 1926 All 173; Awadh Narain Singh v.

[2020] 8 S.C.R.

ANarain Mishra, AIR 1962 Pat 400; RamgoudaAnnagouda v. Bhausaheb, AIR 1927 PC 227;Brahmanath Singh v. Chandrakali Kuer, AIR 1961 Pat79; 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 ControllingBRevenue Authority v. Smt. Satyawati Sood, AIR 1972Delhi 171 (FB); Shyam Sunder v. Siya Ram, AIR 1973All 382 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7764Fof 2014.

From the Judgment and Order dated 27.11.2007 of the High Courtof 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 KumarGAggarwal, Surinder Singh Pannu, Abhishek Grover, Pareekshit Bishnoi,Nage Nanya, Sanjay Jain, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. This appeal emanates from the judgment and decree dated27.11.2007 passed by the High Court of Punjab and Haryana atChandigarh[1] in R.S.A. No. 946/2004, whereby the second appeal filedby the respondent Nos. 1 to 3 (heirs and legal representatives of MohanSingh - original defendant No. 1) came to be allowed by answering thesubstantial question of law formulated as under: -

“Whether the document Ex.P-6 required registration as by wayof said document the interest in immovable property worth morethan Rs.100/- was transferred in favour of the plaintiff?”

2. Briefly stated, the suit was filed by the predecessor of theappellants herein - Harbans Singh, son of Niranjan Singh, resident ofSangrur, Punjab against his real brothers Mohan Singh (original defendantNo. 1) and Sohan Singh (original defendant No. 2) for declaration thathe was the exclusive owner in respect of land admeasuring 11 kanals 17marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Roadand other properties referred to in the Schedule. He asserted that therewas family settlement with the intervention of respectable personsand family members, whereunder his ownership and possession in respectof the suit land including the constructions thereon (16 shops, samadhiof his wife – Gurcharan Kaur and one service station with boundarywall) was accepted and acknowledged. Structures were erected by himin his capacity as owner of the suit land. It is stated that in the year 1970after the purchase of suit land, some dispute arose between the brothersregarding the suit land and in family settlement arrived at then, it wasclearly understood that the plaintiff – Harbans Singh would be the ownerof the suit property including constructions thereon and that the name ofMohan Singh (original defendant No. 1) and Sohan Singh (originaldefendant No. 2) respectively would continue to exist in the revenuerecord as owners to the extent of half share and the plaintiff would haveno objection in that regard due to close relationship between the parties.However, the defendants raised dispute claiming half share in respect ofwhich Harbans Singh (plaintiff) was accepted and acknowledged to bethe exclusive owner and as result of which it was decided to preparea memorandum of family settlement incorporating the terms alreadysettled between the parties, as referred to above. The stated memorandum

1 For short, “the High Court”

Awas executed by all parties on 10.3.1988. However, after execution ofthe memorandum of family settlement dated 10.3.1988, the defendantsonce again raised new issues to resile from the family arrangement. Asa result, Harbans Singh (plaintiff) decided to file suit for declaration on9.5.1988, praying for decree that he was the owner in possession ofthe land admeasuring 11 kanals 17 marlas comprising of khasra Nos.B935/1 and 935/2 situated at Mohalla Road. An alternative plea was alsotaken that since plaintiff was in possession of the whole suit property tothe knowledge of the defendants openly and adversely for more thantwelve years, he had acquired ownership rights by way of adversepossession.C3. The suit was resisted by the defendants by filing writtenstatement. Harbans Singh (plaintiff) filed replications. On the basis ofrival 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? OPPD2. Whether there was any family settlement between the partieson 10.3.1988 and memo of family settlement was executed byparties on that day? OPP

3. Whether the plaintiff constructed shops, service station andboundary wall around the disputed property? OPPE4. Whether the plaintiff has become owner of suit land by adversepossession? OPP

5. Whether the property in dispute was purchased out by theincome of Joint Hindu Family coparcenary property andFconstruction on the suit land was also purchased by Joint HinduFamily coparcenary property? OPD

6. Whether Sohan Singh, Mohan Singh and Harbans Singhconstitute Joint Hindu Family? OPD

7. Whether the defendants are estopped from denying theGexecution of memo of family settlement by their act and conduct?OPP

8. Relief.”

During the pendency of the suit, Harbans Singh (plaintiff) expiredand, therefore, the appellants herein were brought on record being hisH

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 ofthe plaintiff partly succeeds and partly fails. Therefore, his suit isdecreed partly to the extent that he is declared to be owner inpossession of khasra no. 935/1/1/2 (5-18) and to the extent of ½share in khasra no. 935/1/1/1 (5-19) with construction there upon.Keeping in view the relationship between the parties and thecircumstances of the case, no order as to cost. Decree sheet beprepared accordingly. File be consigned to the record room.”

4. Aggrieved by this decision, the appellants/plaintiffs filed firstappeal before the District Judge, Sangrur being Civil Appeal No. 45 of5-2-2000 B.T. No. 60 of 11-6-2001. The first appellate Court, afterreappreciating the pleadings and evidence on record, was pleased toallow the appeal and modify the judgment and decree passed by the trialCourt. The first appellate Court declared the original plaintiff as ownerof the suit land alongwith constructions including 16 shops, servicestation and boundary wall with samadhi in the land. The operative orderpassed by the first appellate Court, dated 29.11.2003, reads thus: -

“18. In the light of the above discussion, the appeal is allowed andthe judgment passed by the learned trial court is modified and thesuit of the plaintiff is decreed. The plaintiff is declared owner ofthe land measuring 11 kanals 17 marlas comprised in rectangleand killa no. 935/1/1/1 (5-19), 935/1/1/2 (5-18) situated in MehlanRoad, Sangrur along with construction including 16 shops, servicestation and boundary wall with samadh in the land. In view of thepeculiar circumstances of the case the parties are left to beartheir own costs. Decree sheet be prepared and copy of thejudgment be placed on the file of the learned trial court and thesame 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 ofMohan Singh (original defendant No. 1) preferred second appeal beforethe High Court being R.S.A. No. 946/2004. The learned single Judgeanswered the substantial question of law reproduced in paragraph 1

Aabove in favour of the said respondents. The High Court was pleased toset aside the conclusion recorded by the first appellate Court and opinedthat the document which, for the first time, creates right in favour ofplaintiff in an immovable property in which he has no pre-existing rightwould require registration, being the mandate of law. Accordingly, thesecond appeal came to be allowed and the judgment and decree passedBby the lower appellate Court was set aside, thereby restoring the decreepassed by the trial Court, vide impugned judgment dated 27.11.2007.6. The appellants have questioned the correctness of the viewtaken by the High Court and in particular, reversing the conclusionreached by the first appellate Court. When the present appeal was takenCup for hearing, the Court referred the matter to larger Bench of three-Judges to answer the question as to whether the acquisition of title byadverse possession can be taken by plaintiff under Article 65 of theLimitation Act, 1963 and is there any bar under the Limitation Act to sueon aforesaid basis in case of infringement of any rights of plaintiff.DThe appeal accordingly proceeded before the three-Judge Bench, whichin turn answered the said question vide judgment dated 7.8.2019[2] infavour of the plaintiff. As result, the matter has been placed before usfor consideration of the appeal on its own merits.

7. The appellants would contend that the High Court disposed ofEthe second appeal in casual manner and more so, without dealing withthe finding of fact recorded by the first appellate Court in favour of theplaintiff. It is urged that the first appellate Court, after noticing theadmitted factual position, proceeded to first examine the question whetherthe document dated 10.3.1988 (Exhibit P-6) was executed by the partiesor not. That fact has been answered in favour of the plaintiff (appellants)Fafter analysing the evidence on record. It has been held that the stateddocument was indisputably executed by the parties. The next questionconsidered by the first appellate Court was whether the stated documentrequired registration or not, which has been justly answered in favour ofthe plaintiff (appellants) on the finding that it was merely memorandumGof family settlement and not document containing terms and recitals ofthe family settlement made thereunder. For that, the first appellate Courtnoted that the plaintiff had constructed 16 shops and samadhi includingboundary wall on the suit land on his own, which fact was indisputableand established from the evidence on record. Further, the plaintiff was

2 Reported as (2019) 8 SCC 729H

in possession of the suit land. Even this finding is supported by theevidence on record and is well-established. It is also established fromrecord that as per the family settlement, the plot in Prem Basti belongingto Harbans Singh (plaintiff) was given to Sohan Singh (original defendantNo. 2), which was in possession of Mohan Singh (original defendantNo. 1) and that another plot purchased by plaintiff in the name of his sonVikramjit Singh was given to Mohan Singh (original defendant No. 1)and his wife. Notably, the Defendant Witness No. 1 (DW-1) admittedthat 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 amemorandum of family settlement. In other words, the concerned partieshad acted upon the family arrangement as per the settlement termsdecided in 1970 and reinforced by the document Exhibit P-6(memorandum of family settlement). Being memorandum of familysettlement, it was not required to be registered and, in any case, theparties having acted upon the terms of the said settlement to the prejudiceof the other party, it was not open to them to resile from the saidarrangement. Thus, they are estopped from disowning the arrangementalready reached, acted upon and so recorded in the memorandum offamily settlement. Thus understood, the plaintiff was accepted andacknowledged to be the owner of the suit property by all the familymembers who were also party to the memorandum of family settlement(Exhibit P-6). The appellants have placed reliance on the decision of thisCourt in Kale & Ors. vs. Deputy Director of Consolidation & Ors.[3]They pray for restoration of the decree passed by the first appellateCourt and setting aside the impugned judgment.8. On the other hand, the respondent Nos. 1 to 3 would contendthat the High Court has rightly considered the document Exhibit P-6 ascontaining terms and recitals of family settlement and for which reasonit was essential to get the same registered. It is urged that there was nopre-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 wayof registered sale deed. The parties were not in possession of JointHindu Family property as such and therefore, the question of partition ofthat property does not arise. The plea that there was no Joint HinduFamily property was taken by the plaintiff in the replication filed before

Athe trial Court. This plea was taken in the context of the assertion madeby the defendants in the written statement that the suit property wasjointly owned by Mohan Singh (original defendant No. 1) and SohanSingh (original defendant No. 2). The contesting respondents havereiterated the stand that there was no family settlement in 1970, as statedby the plaintiff and that the signature of the defendant No. 2 appearingBin document Exhibit P-6 is forged and fabricated. Further, the High Courthas justly non-suited the plaintiff and preferred to restore the partialdecree passed by the trial Court on the conclusion that the documentExhibit P-6 is inadmissible in evidence, as it has not been registereddespite the transfer of title in immovable property worth more thanCRs.100/-. In other words, the High Court answered the substantial questionof law against the plaintiff and as result of which it rightly allowed thesecond appeal filed by the defendants (respondent Nos. 1 to 3). Theview so taken by the High Court is unexceptionable.

9. We have heard Mr. Manoj Swarup, learned senior counsel forDthe appellants and Mr. Parveen Kumar Aggarwal, learned counsel forthe respondents.

10. The core issue involved in this appeal is: whether the documentExhibit P-6 was required to be registered as interest in immovableproperty worth more than Rs.100/- was transferred in favour of theEplaintiff?

11. It is not in dispute that the parties are closely related. MohanSingh (original defendant No. 1) and Sohan Singh (original defendantNo. 2) were real brothers of Harbans Singh (original plaintiff). Originaldefendant No. 4 – Harjinder Kaur is the wife of Sohan Singh (originalFdefendant No. 2). The father of the plaintiff and defendant Nos. 1 and 2died during minority of defendant Nos. 1 and 2. The defendants hadproved the copy of sale deed dated 16.4.1970 (Exhibit DW-3/A), wherebyMohan Singh (original defendant No. 1) and Sohan Singh (originaldefendant No. 2) purchased land admeasuring 5 kanals 19 marlascomprised in khasra No. 935/1. Harbans Singh (plaintiff) had appearedGon 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 MohanSingh (original defendant No. 1) and Sohan Singh (original defendantNo. 2) as owners, whereas the name of Harbans Singh (plaintiff) isHshown against khasra No. 935/1/1/2 (5-18) as owner. Mohan Singh(original defendant No. 1) had stated that the land standing in the nameof Harbans Singh (original plaintiff) was purchased by him from thefunds of joint family, but that fact has not been proved or established bythe contesting defendants. In that sense, it may appear from the revenuerecord that the concerned parties were owners in respect of separateproperties and not as joint owners. The fact remains that Harbans Singh(original plaintiff), Mohan Singh (original defendant No. 1) and SohanSingh (original defendant No. 2) are closely related being real brothers.Further, although the ownership of the suit property recorded in Jamabandiis of concerned defendant, Harbans Singh (plaintiff) had constructed 16shops, samadhi of his wife – Gurcharan Kaur and boundary wall onthe property and was in possession thereof. Pertinently, the trial Courthad opined in paragraph 24 of its judgment that all the three brothers –Harbans Singh (plaintiff), Mohan Singh (original defendant No. 1) andSohan Singh (original defendant No. 2), as noted in Exhibit P-6, ownedvarious properties, on which possession of Harbans Singh (plaintiff) beingthe eldest brother is admitted. However, it was permissive possession.The first appellate Court has also opined in paragraph 16 of the judgmentthat Harbans Singh (plaintiff) came in possession of the suit propertywith the consent of the defendants. Notably, this finding of fact has notbeen disturbed by the High Court. That apart, it is established from therecord that plot at Prem Basti belonged to Harbans Singh (plaintiff),which was given to Sohan Singh (original defendant No. 2) after takingpossession thereof from Mohan Singh (original defendant No. 1). Further,plot purchased by Harbans Singh (plaintiff) in the name of his son wasgiven to Mohan Singh (original defendant No. 1) and his wife. It hasbeen admitted by DW-1 that later on the said plot was sold to one SurjitKaur. These facts clearly establish that there was not only univocalfamily arrangement between the parties, but it was even acted upon bythem without any exception. This factual position has not been doubtedby the High Court.

12. As matter of fact, the High Court has not bothered to evenadvert to this aspect, whilst analysing the correctness of the finding offact recorded by the first appellate Court, which was the final fact-finding Court. From the impugned judgment, it is noticed that after givingthe basic facts, the High Court first extracted the relevant portion fromthe trial Court’s judgment (paragraphs 17-21 thereof) and thereafteradverted to the finding and conclusion recorded by the trial Court onother issues. The High Court then went on to extract paragraph 16 of

Athe judgment of the first appellate Court in its entirety, running into about8 pages and then formulated the substantial question of law. Foranswering the said substantial question of law, the High Court firstadverted to the decision of this Court in Bhoop Singh vs. Ram SinghMajor & Ors.[4] and reproduced paragraphs 12, 13, 16 and 18 thereof.After that, the relevant portion of the decision of the same High Court inBthe case of Hans Raj & Ors. vs. Mukhtiar Singh[5] has been extracted.After doing so, the High Court then referred to the contention of theappellants herein and extracted paragraphs 44 and 54 of the judgment inHari Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.[6]The High Court then adverted to decision of the same High Court inCJagdish & Ors. vs. Ram Karan & Ors.[7] and reproduced paragraph14 thereof. Only after reproducing the aforesaid extracts inextenso,learned single Judge of the High Court adverted to the factual aspectsof the present case in the following words, to allow the appeal: -“On consideration of the matter, I find that document which,Dfor the first time, creates right in favour of plaintiff in an immovableproperty in which he has no pre-existing right, then registration isrequired. The presumption of pre-existing right can only be inferredif consent decree is passed where such claim is admitted by theother party, but document which is not disputed by the party andthere is no admission regarding the acceptance of right and suitEis based on such document under which the right is transferredto the plaintiff in property in which he has no pre-existing right,then it would not require registration as is the ratio of the judgmentof 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,Fthe question of law, as framed, has to be answered in favour ofthe appellants.

In the present case, it may be noticed that the property indispute was purchased by way of two sale deeds and the ownershipof the parties was duly reflected in the revenue record. The plaintiffGclaimed right to the property under the deed of family settlementExhibit 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

H7 PLR (2003) 133 P&H 182

their right in the immovable property in his favour under thememorandum of family settlement which was alleged to havebeen executed much earlier. In any case, it has to be held that thedocument transferring title in an immovable property worth morethan Rs.100/- rupees, even if it was by way of relinquishment, thesame required registration. Thus, the learned trial Court was rightin holding that no title passed on to the plaintiff under Exhibit P-6i.e. family settlement entered into between the parties. This viewof mine finds support from the judgment of the Hon’ble SupremeCourt in the case of Hari Chand (dead) through LRs vs. DharampalSingh Baba, 2007 (4) Herald (SC) 3028, wherein the Hon’bleSupreme Court has been pleased to lay down that the familysettlement could only be if one has lawful right over the propertyand then alone family settlement could be executed. When thereis no lawful rights of the parties over the property, there was nooccasion to file the suit on the basis of family settlement.

In view of what has been stated and discussed above, thisappeal is allowed and the judgment and decree passed by thelearned lower Appellate Court is set aside and that of the learnedtrial Court is restored, but with no order as to costs.”

13. As against this, the first appellate Court thoroughly examinedthe pleadings and the evidence, oral as well as documentary, placed onrecord by the concerned parties. In the first place, it examined the questionwhether the document Exhibit P-6 was executed by the parties or not.After adverting to the relevant evidence, the first appellate Court opinedthat the trial Court was right in concluding that Exhibit P-6 was executedby the parties referred to therein. That being concurrent finding of fact,needs no further scrutiny. The High Court has not reversed this findingof fact, as is noticed from the extracts of its judgment reproduced above.The first appellate Court then went on to examine whether the documentrequired registration. The High Court has reproduced paragraph 16 ofthe judgment of the first appellate Court in its entirety. What is relevantto notice is that the first appellate Court adverted to the pleadings andoral and documentary evidence produced by the respective parties andfound that the plaintiff had proved the compromise (Exhibit CX) dated15.5.1992 between the plaintiff and defendant Nos. 2 and 3, namely,Sohan Singh and Harjinder Kaur. Harjinder Kaur had stepped into witnessbox and admitted the said fact. She also admitted the fact of execution

Aof family settlement. Thus, the dispute was between the successors ofHarbans Singh (plaintiff) and successors of Mohan Singh (originaldefendant No. 1). The first appellate Court thus accepted the stand ofthe plaintiff that in the year 1970, after purchase of land, dispute arosebetween the parties regarding the suit land and in that family settlement,plaintiff was held to be owner of the suit property including itsBconstructions. The first appellate Court in that context observed thus: -

“16. … The specific case of the plaintiff that he constructed withhis personal money 16 shops on the suit land, one service stationwith boundary wall and also samadh of Smt. Gurcharan Kaur. Itis admitted that samadh of Gurcharan Kaur is in the suit property.CIf the plaintiff was not acknowledged the owner of the suit propertythen there was no question of construction of samadh ofGurcharan Kaur his wife by the plaintiff on the suit property. Sothe version of the defendant that no dispute arose in the year1970 and no family settlement took place can not be accepted…”

DThe first appellate Court then analysed the evidence of defendantwitnesses and held that the same were not reliable or trustworthy asthey did not know any fact regarding the suit property. The first appellateCourt then adverted to another crucial fact and noted that Mohan Singh(original defendant No. 1) and Sohan Singh (original defendant No. 2)Ewere residing in house situated at Prem Basti prior to 1988, whichbelonged to Harbans Singh (plaintiff). As noted earlier, this property asper the family arrangement was given to Sohan Singh and has been sorecorded in the memorandum of family settlement (Exhibit P-6). Thefirst appellate Court found that the defendants had failed to prove thatthey were in possession of the suit property or remained in possessionFthereof. On the other hand, the evidence on record clearly establishedthat the plaintiff was in possession of the suit property. The first appellateCourt then interpreted document Exhibit P-6 and found that it was notwith regard to khasra No. 935 (11-17), but it referred to other properties.After analysing the relevant evidence, the first appellate Court held thatGExhibit P-6 cannot be construed as document containing terms andrecitals of family arrangement, but only memorandum of familyarrangement. 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.HA plot situated in Prem Basti which was in the name of Harbans

Singh and Gurcharan Kaur was already got vacated from MohanSingh and was given to Sohan Singh and Harjinder Singh. plotmeasuring 17 marlas which was purchased by Vikaramjit Singhwas 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 presenttense but the court is to see from the material on record whetherthe said document created right in the immovable property or rightswere already created but the document was written by way ofmemorandum. 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 saiddocument created right in khasra no. 935/1/1/1 (5-19) then therewas no question of throwing khasra no. 935/1/1/2 in common pooland other property of the parties. There is specific recital that onthe basis of sale deeds Harbans Singh was owner in possessionof 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 beingconsidered as owner in possession of the suit property.Prior to execution of the said document on that day theycompromised not to raise any dispute regarding hisownership. So this document was writing with regard tofact which was already being considered and admitted bythe parties. So it cannot be said that this document, copy ofwhich is Ex.P-6 created right for the first time in theimmovable property.…..”

(emphasis supplied)

And again, as follows: -

“16.….. Since the parties were closely related to eachother and document was executed with regard to the fact-which they were already admitting so I am of the view thatdocument dated 10.3.1988 copy of which is Ex.P-6 did notrequire registration. In case Hans Raj cited supra the matterwas got compromised and document itself created right in theproperty. In case Hari Singh vs. Shish Ram & others cited suprait was held that document between the parties was partitionedand consideration was passed from one party to other. In Shishpal

ABC

FGH

vs. Vikram cited supra it was held that during life time of GyaniRam the plaintiff filed suit so there could not be any familysettlement. In case Smt. Karamjit Kaur and another versus Smt.Sukhjinder Kaur and others cited supra vide compromise theplaintiff and defendant no. 1 to 4 had agreed to take 30 bighas ofland out of 90 bighas left by Mohinder Singh so it was held thatsaid compromise has created right in favour of defendants no. 5and 6 to the property of more than Rs.100/- So require registration.All the above said authorities cited by counsel for defendants aredistinguishable on facts and ratio of said authorities cannot beapplied to the facts of the present case. Since plaintiff is provedto be in existence in possession of the suit property. So constructionof shops land service station on the said property was done by theplaintiff himself and not from funds of joint family. This fact isfurther corroborated by writing dated 10.3.1988 copy of which isEx. P-6. Since said document did not require registration so plaintiffis proved to be owner of the suit property. The defendants estoppedfrom denying the execution of the family settlement. Defendantshave failed to prove that Harbans Singh, Mohan Singh and SohanSingh constituted Joint Hindu Family Property and constructionof 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 constructedshops and service station and boundary wall on the suit propertywith his own funds. The defendant has failed to prove that propertyin dispute was purchased by the income of the Joint Hinducoparcenary property and Sohan Singh, Mohan Singh and HarbansSingh constituted Joint family. So these issues are decided in favourof the plaintiff. Parties executed document Ex.P-6 dated10.3.1988 by way of memorandum of family settlement andit did not require registration. The defendants are estoppedfrom denying the execution of the said document andplaintiff is proved to be owner in possession of the suitland. Issues No. 1 and 2 and 7 are also decided in favour of theplaintiff. Since the plaintiff came in possession of the suit propertywith the consent of the defendants and his possession never becomeadverse to the interest of the defendants so finding of the learnedtrial Court on issue no. 4 is affirmed.”

(emphasis supplied)

14. As noticed from the extracted portion of the judgment of theHigh Court in paragraph 12 above, it is amply clear that the High Courthas not dealt with the factual aspects adverted to by the first appellateCourt to conclude that the document Exhibit P-6 was only memorandumof family settlement and not document containing the terms and recitalsof family settlement. Being the former, no registration was necessary.For which reason, relief claimed by the plaintiff founded on the familysettlement between the real brothers arrived at in 1970, acted uponwithout any exception and documented on 10.3.1988, ought to follow.15. The first appellate Court has also justly opined that the partieshad acted upon the stated family settlement and if we may say so, to theprejudice of the other party. In that, the property in the name of plaintiffat Prem Basti was given to Sohan Singh (original defendant No. 2),which was otherwise in possession of Mohan Singh (original defendantNo. 1). Further, the plot purchased by the plaintiff in the name of his sonwas given to Mohan Singh (original defendant No. 1) and his wife, butthat plot was admittedly sold by them to one Surjit Kaur. Being case ofa family settlement between the real brothers and having been actedupon by them, it was not open to resile from the same. They wereestopped from contending to the contrary. This crucial aspect has beenglossed over by the High Court and if we may say so, the second appealhas been disposed of in most casual manner. Inasmuch as, the impugnedjudgment of the High Court merely contains extraction of the judgmentof the trial Court and first appellate Court and of the relied upon judgments(precedents). The only consideration is found in two concludingparagraphs, which are extracted above (paragraph 12). Even on liberalreading of the same, it is not possible to conclude that the High Court inexercise of its appellate jurisdiction (second appeal) had undertaken properanalysis and scrutiny of the judgment of the first appellate Court in rightperspective, much less keeping in mind the limited scope of jurisdictionto entertain second appeal under Section 100 of the Code of CivilProcedure, 1908. The impugned judgment is bordering on casualapproach by the High Court in overturning the well-considered decisionof the first appellate Court. Although the impugned judgment runs into36 pages, the manner in which it proceeds leaves us to observe that it iscryptic. We say no more. On this count alone, impugned judgment doesnot stand the test of judicial scrutiny.

16. Be that as it may, the High Court has clearly misapplied thedictum in the relied upon decisions. The settled legal position is that

Awhen by virtue of family settlement or arrangement, members of afamily descending from common ancestor or near relation seek tosink their differences and disputes, settle and resolve their conflictingclaims or disputed titles once and for all in order to buy peace of mindand bring about complete harmony and goodwill in the family, sucharrangement ought to be governed by special equity peculiar to themBand would be enforced if honestly made. The object of such arrangementis to protect the family from long drawn litigation or perpetual striveswhich mar the unity and solidarity of the family and create hatred andbad blood between the various members of the family, as observed inKale (supra). In the said reported decision, three-Judge Bench of thisCCourt had observed thus: -“9.….. family arrangement by which the property isequitably divided between the various contenders so as to achievean equal distribution of wealth instead of concentrating the samein the hands of few is undoubtedly milestone in theDadministration of social justice. That is why the term “family” hasto be understood in wider sense so as to include within its foldnot only close relations or legal heirs but even those persons whomay have some sort of antecedent title, semblance of claim oreven if they have spes successionis so that future disputes aresealed for ever and the family instead of fighting claims inter seEand wasting time, money and energy on such fruitless or futilelitigation is able to devote its attention to more constructive workin the larger interest of the country. The courts have, therefore,leaned in favour of upholding family arrangement insteadof disturbing the same on technical or trivial grounds.FWhere the courts find that the family arrangement suffersfrom legal lacuna or formal defect the rule of estoppel ispressed into service and is applied to shut out plea of theperson who being party to family arrangement seeks tounsettle settled dispute and claims to revoke the familyarrangement under which he has himself enjoyed someGmaterial benefits. …..”

(emphasis supplied)

In paragraph 10 of the said decision, the Court has delineated thecontours of essentials of family settlement as follows: -

“10. In other words to put the binding effect and the essentials ofa family settlement in concretised form, the matter may bereduced into the form of the following propositions:

“(1) The family settlement must be bona fide one so as toresolve family disputes and rival claims by fair and equitabledivision or allotment of properties between the various membersof the family;

(2) The said settlement must be voluntary and should not beinduced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in whichcase no registration is necessary;

(4) It is well-settled that registration would be necessary onlyif the terms of the family arrangement are reduced into writing.Here also, distinction should be made between adocument containing the terms and recitals of familyarrangement made under the document and merememorandum prepared after the family arrangement hadalready been made either for the purpose of the recordor for information of the court for making necessarymutation. In such case the memorandum itself does notcreate or extinguish any rights in immovable properties andtherefore does not fall within the mischief of Section 17(2) ofthe Registration Act and is, therefore, not compulsorilyregistrable;

(5) The members who may be parties to the family arrangementmust have some antecedent title, claim or interest even apossible claim in the property which is acknowledged by theparties to the settlement. Even if one of the parties to thesettlement has no title but under the arrangement theother party relinquishes all its claims or titles in favourof such person and acknowledges him to be the soleowner, then the antecedent title must be assumed andthe family arrangement will be upheld and the courts willfind no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which maynot involve legal claims are settled by bona fide family

1158SUPREME COURT REPORTS

Aarrangement which is fair and equitable the family arrangementis final and binding on the parties to the settlement.”

(emphasis supplied)

Again, in paragraph 24, this Court restated that familyarrangement being binding on the parties, clearly operates as an estoppel,Bso as to preclude any of the parties who have taken advantage under theagreement from revoking or challenging the same. In paragraph 35, theCourt noted as follows: -

“35. … We have already pointed out that this Court has widenedthe concept of an antecedent title by holding that an antecedentCtitle would be assumed in person who may not have any title butwho has been allotted particular property by other party to thefamily arrangement by relinquishing his claim in favour of such adonee. In such case the party in whose favour the relinquishmentis made would be assumed to have an antecedent title. …..”

DAnd again, in paragraph 36, the Court noted as follows: -

“36. … Yet having regard to the near relationship which the brotherand the son-in-law bore to the widow the Privy Council held thatthe family settlement by which the properties were divided betweenthese three parties was valid one. In the instant case also puttingEthe case of Respondents Nos. 4 and 5 at the highest, the positionis that Lachman died leaving grandson and two daughters.Assuming that the grandson had no legal title, so long as thedaughters were there, still as the settlement was made to end thedisputes and to benefit all the near relations of the family, it wouldFbe sustained as valid and binding family settlement. …”While rejecting the argument regarding inapplicability of principleof estoppel, the Court observed as follows: -

“38. … Assuming, however, that the said document wascompulsorily registrable the courts have generally held thatGa family arrangement being binding on the parties to it wouldoperate as an estoppel by preventing the parties afterhaving taken advantage under the arrangement to resilefrom the same or try to revoke it. …..”

(emphasis supplied)

And in paragraph 42, the Court observed as follows: -

42. ..… In these circumstances there can be no doubt thateven if the family settlement was not registered it wouldoperate as 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 thedoctrine 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 previousdecisions[8 ]referred to and duly analysed in the reported judgment. Thequestion formulated by the High Court, in our opinion, stands answeredin favour of the appellants (plaintiff), in light of exposition of this Court inKale (supra). priori, we have no hesitation in affirming the conclusionreached by the first appellate Court that the document Exhibit P-6 wasnothing but memorandum of family settlement. The established factsand circumstances clearly establish that family settlement was arrivedat in 1970 and also acted upon by the concerned parties. That finding of

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 481E 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 641F 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 62G Kanhai Lal vs. Brij Lal, AIR 1918 PC 70 Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145T.V.R. Subbu Chetty’s Family Charities vs. M. Gaghava Mudaliar, AIR 1961 SC 797Rachbha vs. Mt. Mendha, AIR 1947 All 177Chief Controlling Revenue Authority vs. Smt. Satyawati Sood, AIR 1972 Delhi 171(FB)Shyam Sunder vs. Siya Ram, AIR 1973 All 382H

Afact recorded by the first appellate Court being unexceptionable, it mustfollow that the document Exhibit P-6 was merely memorandum of afamily settlement so arrived at. Resultantly, it was not required to beregistered and in any case, keeping in mind the settled legal position, thecontesting defendants were estopped from resiling from the statedarrangement in the subject memorandum, which had recorded theBsettlement terms arrived at in the past and even acted upon relating to allthe existing or future disputes qua the subject property amongst the(signatories) family members despite absence of antecedent title to theconcerned property.

17. As regards the decision in Bhoop Singh (supra) and SomCDev & Ors. vs. Rati Ram & Anr.[9], the same dealt with the question ofnecessity to register any decree or order of Court governed by clause(vi) of Section 17(2) of the Registration Act, 1908[10]. In the present case,however, clause (v) of sub-Section 2 of Section 17 of the 1908 Act isattracted. Section 17 as applicable when the cause of action arose (priorDto amendment of 2001) reads thus: -

“Part III

OF REGISTRABLE DOCUMENTS

(v)any document not itself creating, declaring, assigning, limitingGor extinguishing any right, title or interest of the value ofone hundred rupees and upwards to or in immovableproperty, but merely creating right to obtain another

9 (2006) 10 SCC 788H10 For short, “the 1908 Act”

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 onthe decisions of this Court will be of no avail to alter or impact theconclusion recorded by the first appellate Court. As aforementioned, inBhoop Singh (supra) and Som Dev (supra), the Court was dealing withthe issue of compulsory registration of decree or order of Court. Inthe 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 theaforesaid discussion, be summarised as below:

(1) Compromise decree if bona fide, in the sense that thecompromise is not device to obviate payment of stamp duty andfrustrate the law relating to registration, would not requireregistration. In 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 orupwards in favour of any party to the suit the decree or orderwould 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 aforesaidPrivy Council and this Court’s cases, it is apparent that the decreewould 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 ofcompromise cannot be derived, even if suit were to be disposedof 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 byAct 21 of 1929, which has its origin in the aforesaid decision ofthe Privy Council, according to which the original clause wouldhave been attracted, even if it were to encompass property notlitigated.”

AIn the present case, as noted earlier clause (v) of Section 17(2) isattracted, which pertains to execution of any document creating orextinguishing right, title or interest in an immovable property amongstthe family members. Thus, the dictum in Kale (supra) is attracted in thefact situation of this case.B19. Considering the above, we have no hesitation in concluding

B19. Considering the above, we have no hesitation in concludingthat the High Court committed manifest error in interfering with and inparticular reversing the well-considered decision of the first appellateCourt, which had justly concluded that document dated 10.3.1988 executedbetween the parties was merely memorandum of settlement, and it didnot require registration. It must follow that the relief claimed by theCplaintiff in the suit, as granted by the first appellate Court ought not tohave been interfered with by the High Court and more so, in casualmanner, as adverted to earlier.

20. Having said that, it is unnecessary to examine the alternativeplea taken by the plaintiff to grant decree as prayed on the ground ofDhaving become owner by adverse possession. For the completion ofrecord, we may mention that in fact, the trial Court had found that thepossession of the plaintiff was only permissive possession and that findinghas not been disturbed by the first appellate Court. In such case, it isdoubtful that the plaintiff can be heard to pursue relief, as prayed on theEbasis of his alternative plea of adverse possession.

21. Be that as it may, we deem it appropriate to set aside theimpugned judgment and restore the judgment and decree passed by thefirst appellate Court in favour of the plaintiffs (appellants herein).

22. Accordingly, this appeal is allowed. Impugned judgment andFdecree of the High Court is set aside. The judgment and decree passedby the first appellate Court is restored in favour of the plaintiff (appellantsherein). Decree be drawn up accordingly. There shall be no order as tocosts. Pending interlocutory applications, if any, shall stand disposed of.

Ankit Gyan

Appeal allowed.