Allahabad High Court
Raj Gopal Sharma vs Krishna Gopal Sharma on 14 March, 2013
Equivalent citations: AIR 2013 ALLAHABAD 187
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- SECOND APPEAL No. - 858 of 2004 Petitioner :- Raj Gopal Sharma Respondent :- Krishna Gopal Sharma Petitioner Counsel :- Saran Kumar,A. Mishra,Rahul Mishra,Vivek Chaudhary Respondent Counsel :- P.Mittal,Manish Goyal,Shiv Sagar Singh Hon'ble Sudhir Agarwal,J.
1. Heard Sri Rahul Mishra, learned counsel for the appellant and Sri Manish Goyal, Advocate assisted by Sri Sheo Sagar Singh, Advocate for the respondents.
2. Following two questions were formulated by this Court, which need adjudication :
A. Whether the lower appellate court could have ignored the family settlement which was reduced in writing on 29.5.1977 only because it was not registered in view of the law laid down by the Apex Court in the case of Kale and others Vs. Deputy Director of Consolidation and others, (1976) 3 SCC 119 ?
B. When a family settlement is said to have acted upon so as to show that parties were ad idem, can it be disregarded and dislodged on its being unregistered ?
3. Original Suit No.611 of 1992 was instituted by Krishna Gopal against Raj Gopal for partition. The case set up by plaintiff was that he and defendant, both, were sons of Late Mangelal Sharma, and members of Joint Hindu Family, of which late Mangelal Sharma was Karta. He (Mangelal Sharma) died about 13 years back i.e. some time in 1979 leaving his joint Hindu family property consisting of three houses. Defendant no.2, Om Prakash Sharma, had already separated during lifetime of Sri Mangelal Sharma, and one house, described at item no.3 in the schedule of plaint, was given in his share. After the death of Mangelal Sharma, remaining members of family entered into a family settlement that except the house, given in the share of Sri Om Prakash Sharma, rest of the two, over which Om Prakash's claim had ceased, would be the property of plaintiff and defendant no.1.
4. Defendant no.3, widow of late Mangelal Sharma and mother of plaintiff and defendants 1 and 2 gave up all her rights over property and it was agreed that she will stay as per her choice with anyone of them, i.e. the plaintiff and defendants 1 and 2 and such person shall take care of her. Now, she is residing with defendant no.1. Plaintiff and defendant no.1 had 50% share in both the houses and now the same are sought to be divided by metes and bound.
5. During pendency of suit, by way of amendment, it was also pleaded that defendant 2 has sold property no.3, mentioned in plaint, to one Smt. Santosh, and now, after her death, his heirs and legal representatives, Sri Ashok and Smt. Mamto have been impleaded as defendants 4 and 5, who have no right in the property i.e. houses mentioned at item no.1 and 2 schedule in the plaint.
6. The suit was contested by defendants 1 and 3 admitting that there was an oral family settlement which was reduced in writing on 27.5.1977 whereby house no.3 came to the share of defendant 2. The property house no.1 went in the share of plaintiff and property house no.2, in the share of defendant no.1. It is in these circumstances defendant 2 sold house no.3 to Smt. Santosh since it was his own share, and no cause of action survived for any partition between plaintiff and defendant 1.
7. The Trial Court held that partition between members of family has not been proved and no document except paper no.89Ka was adduced in evidence to prove. It, therefore, held that plaintiff and defendants 1 and 2 are entitled for one-third share in the entire property. Since defendant 2 has sold house no.3 to Smt. Santosh but sale is valid only to the extent of one third share. It, accordingly, decreed the suit vide judgment dated 15.11.1999. There-against Civil Appeal No.24 of 2000 preferred by defendant no.1 Raj Gopal Sharma has partly been allowed by modifying decree of Trial Court to the extent that in respect of property house no.1 and 2, plaintiff and defendant no.1 shall have half share each.
8. This second appeal has been preferred by defendant no.1 challenging judgments and decree of both the courts below and he has sought ultimate relief of dismissal of suit.
9. According to him, property having already been divided by metes and bound between the parties, as is evident from document dated 27.5.1977, there was no occasion to make any further partition in respect of aforesaid property. It is contended that document dated 27.5.1977/29.5.1977, paper no.89Ka, was in fact a family settlement and not a deed of partition and therefore, its registration was not necessary. Section 49 of Registration Act,1908 (hereinafter referred to as "Act, 1908") therefore, would not come to be attracted in the case in hand. He has also said, since aforesaid document regarding property forming respective share of parties, was already given effect to, as is evident from the fact that defendant no.2 sold house no.3, which came to his share, there was no occasion now to ignore the aforesaid document. Sri Rahul Mishra, learned counsel for the appellants placed reliance on Apex Court's decision in Digambar Adhar Patil Vs. Devram Girdhar Patil (Died), AIR 1995 SC 1728=1995 SCC (Supp. 2) 428 to fortify his submissions.
10. However, I do not find that the aforesaid decision lend support to defendant 1-appellant (hereinafter referred to as 'appellant') in respect of the two questions formulated above. The above decision is an authority in respect of a different proposition, which was canvassed therein. This is evident from the following findings recorded in para 5 of the aforesaid judgment:
"The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it."
(Emphasis added)
11. On the contrary, I find that issue in question is no more res integra. From bare perusal of document in question it cannot be doubted that though it may be said to be a settlement between family members but as a result of settlement, parties thereto have sought to give effect to partition of property, initially belonged to late Mangelal Sharma, and, therefore, in effect, document in question has resulted in giving effect to partition of property.
12. Under Section 17(1)(b) of Act, 1908, a document recognizing oral partition, if put, in writing, need not to be registered but if it is a document of partition, as such, it needs be registered, otherwise by virtue of Section 49 of Act, 1908, it would be inadmissible in evidence.
13. A partition of a property in a family precedes a settlement or compromise between members of family as to how property commonly and jointly, owned by them, should be settled among them.
14. The word "settlement" has been defined in Oxford Advanced Learner's Dictionary of Current English by A.S.Hornby, Seventh edition at page 1390 as under:
"the action of reaching an agreement; the settlement of a dispute, the conditions, or a document stating the conditions, on which money or property is given, an official agreement that ends an argument between two people or groups to negotiate a peace settlement."
15. In Black's Law Dictionary its meaning has been given as, "act or process of adjusting or determining; an adjusting; an adjustment between persons concerning their dealings or difficulties; an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other; arrangement of difficulties; composure of doubts or differences; determination by agreement; and liquidation."
16. Under some statutory provisions also definition of "settlement" has been provided. In Section 2(b) of Specific Relief Act, 1963, the "settlement" has been defined as under:
"settlement" means an instrument other than a will or codicil as defined by the Indian Succession Act, 1925 (39 of 1925) whereby the destination or devolution of successive interests in moveable or immovable property is disposed of or is agreed to be disposed of."
17. Section 2(24) of Indian Stamp Act, 1899 also define "settlement" as under:
"settlement" means any non-testamentary disposition, in writing, of movable or immovable property made-
(a) in consideration of marriage,
(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or
(c) for any religious or charitable purpose;
and includes an agreement in writing to make such a disposition and, where, any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition."
18. In Sita Ram Vs. Board of Revenue, AIR 1979 All 301, this Court also observed that the expression "settlement" means a non-testamentary disposition of property by an instrument in writing, containing even a declaration of trust, for distribution of property among the settlor's family or his dependents or those for whom the settlor desires to provide or for religious or charitable purpose. In other words, settlement among members of family in respect of the property jointly owned by them is a kind of compromise/mutual concession and arrangement between the members of family to settle their rights in respect of the member of the family. This term "Compromise" has been defined in the Law Lexicon, the Encyclopaedic Law Dictionary, 2nd Edition Reprint 2007 by P. Ramanatha Aiyar, page 373 as under:
"Compromise. To adjust by mutual concession ; to settle without resort to the law ; to compound . (as noun) An "adjustment of matters in dispute by mutual concessions." "An agreement between the parties to a controversy for a settlement of the same." (Abbott.) "A settlement of differences by mutual concessions." "The mutual yielding of opposing claims ; the surrender of some right or claimed right in consideration of a like surrender of some counter-claim." (Anderson Law Dict.) "An agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon." (Bouvier.)"
19. It can thus safely be said that a compromise is an agreement between two or more parties as a settlement of matters in dispute.
20. Privy Council in Trigge Vs. Lavallee, (1863) 15 P.C. 271, while construing the term "compromise" held that it is an agreement to put an end to disputes and to terminate or avoid litigation. In such cases, consideration which each party receives is the settlement of the dispute; the real consideration is not the sacrifice of a right but the abandonment of a claim.
21. Subsequently in Rani Mewa Kunwar v. Rani Hulas Kunwar (1874) 1 I.A. 157, the Court said that compromise is based on assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.
22. The above definition of "compromise" covers the cases wherein about the title of property, there may be a dispute but in respect to property whereof there was no doubt about the ownership of parties that it is rested in one or more of them, if it is brought within the scope of family arrangement, and is allotted to one of the other parties, it may result qua that property that there is a transfer of ownership. In this contest, in Khunni Lal v. Gobind Krishna [1911] 33 All. 356 the Court said, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement.
23. Following this, in Hiran Bibi Vs. Sohan Bibi, AIR 1914 P.C. 44, their Lordships said:
"A compromise of this character is, in no sense of the word, an alienation by a limited owner of the family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent and by way of compromise, admitted by the other parties."
24. The question relating to "family arrangement" came to be considered by a Full Bench of this Court in Ramgopal Vs. Tulshi Ram and Anr., AIR 1928 All. 641 and two questions considered therein were:
"(1) Does the arrangement amount to a contract?
(2)Was the matter '"reduced to the form a document?"
25. The Court observed that it has to determine, whether by a family arrangement dealing with immovable property, there is any transfer of ownership in certain property, for the ownership of certain other property. The Full Bench said that in the usual type of family arrangement in which there is no question of any property, the admitted title to which rests in one of the parties, being transferred to one of the other parties, there is no transfer of ownership as such, is necessary to bring the transaction within the definition of "exchange" in Section 118 of Transfer of Property Act, 1882. The Court said that, therefore, that a binding family arrangement of this type may be made orally. Thereafter, the Court referring to Section 91 of Evidence Act, 1872 and 17 and 49 of Act, 1908 held that a contract, if reduced in the form of a document, where the value of the subject-matter is Rs.100 or upwards, its registration is compulsory.
26. The matter also came to be considered by a three Judge Bench in Kale & Ors. Vs. Deputy Director of Consolidation & Ors., AIR 1976 SC 807, and Apex Court concretized certain propositions considering the effect and essentials of "family settlement" in para 10 of the judgment, and said:
(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 arrangements 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) (sic) [Section 17(1)(b)] 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 arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
27. Recently, this issue came to be considered in Narendra Kante Vs. Anuradha Kante & Ors., (2010) 2 SCC 77 and therein the Court reiterated the decision in Kale & Ors. Vs. Deputy Director of Consolidation & Ors. (supra), and observed that registration would be necessary only if the terms of family arrangement are reduced into writing but there also a distinction should be made between a document containing 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 recording or for information of the Court for making necessary mutation. In such a case, the Memorandum itself does not create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of Section 17(2) of Act, 1908 nor is it compulsorily registrable.
28. In the present case, document in question has been signed by Sri Mangelal Sharma and witnessed by Sri Swaroop Singh Tomar. It does not contain signatures of all the members of joint family. It thus cannot be said that it was a mere "family settlement" between members of family and signed by all the members. If the aforesaid document sought to be enforced so as to determine title of respective parties, i.e. plaintiff and defendants 1 and 2 on the property of late Mangelal Sharma, it would have to be given status of 'partition deed' and its registration was necessary.
29. In my view, the aforesaid document has rightly been held inadmissible in evidence being not registered. However, since defendant no.2 has already sold his share in respect of house no.3, applying principle of estoppel, as upheld by Apex Court in Kale (supra), he has been excluded from partition of property in dispute and rightly so. The partition, in respect of rest of properties, has been ordered by directing to prepare a preliminary decree and, in my view, there is no legal or otherwise error, in the judgment of Courts below.
30. Both the questions are answered against defendant no.1-appellant and second appeal is accordingly dismissed.
31. The cost is made easy.
Order Date :- 14.3.2013 KA