Karnataka High Court
Shivakantabai vs Sharifabee on 21 March, 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
(THROUGH VIDEO CONFERENCING
SITTING AT DHARWAD BENCH)
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
RSA No.2242 OF 2007
BETWEEN:
SHIVAKANTABAI,
W/O KALYANI,
AGED ABOUT 41 YEARS,
OCC: KIRANA SHOP,
R/O HIRAPUR TALUK,
GULBARGA DISTRICT - 585 104.
...APPELLANT
(BY SRI. AMRESH S. ROJA, ADVOCATE)
AND:
1. SHARIFABEE,
W/O LAL AHMED JUJAWAR,
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD,
R/O HIRAPUR NAYA MOHALLA,
GULBARGA TALUK AND DISTRICT - 585 104.
2. SALEEMA BEGUM,
W/O MOULANA MIYAN,
AGED ABOUT 50 YEARS,
2
OCC: HOUSEHOLD,
R/O HIRAPUR TALUK,
GULBARGA DISTRICT - 585 104.
...RESPONDENTS
(BY SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE
FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
***
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CPC, AGAINST JUDGMENT AND DECREE DATED
30.06.2007 PASSED IN R.A. NO.292/2006 ON THE FILE OF
THE I ADDITIONAL CIVIL JUDGE (SR.DN.) GULBARGA
DISSMISSED THE APPEAL CONFIRMING THE JUDGMENT
AND DECREE DATED 28.11.2006 PASSED IN O.S.
NO.145/04 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE (JR. DN) GULBARGA, PARTLY DECREEING THE SUIT
FOR DECLARATION, POSSESSION AND MANDATORY
INJUNCTION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The present appeal by the unsuccessful defendant Shivakantha Bai W/o Kalyani assailing the judgment and decree dated 30.06.2007 in RA No.292/2006 on the file of the I Additional Civil Judge (Sr.Dn.,) Gulbarga, confirming the judgment and decree dated 28.11.2006 in OS No.145/2004 on the file of the I Additional Civil Judge (Jr.Dn.) Gulbarga.
2. The parties herein are referred to as per the ranking of the Trial Court for the sake of convenience.
3. The suit property is an open space measuring 21' x 40' situated in property No.1453/1 of Hirapur Village. Suit for declaration, possession, mandatory injunction and for mesne profits by Sharifa Bee, W/o Lal Ahmed Mujawar contending that, Ibrahim Sab was the owner in possession of the open 4 space with house totally measuring 125' x 113' x 171' x 198' and was residing along with his family members in the said house. The said Ibrahim Sab had three sons namely, Mehaboob Sab, Mohd. Khasim Sab and Lal Ahmed and the plaintiff is the wife of the third son Lal Ahmed. It is further averred that the suit property is the Matruka property of all the three brothers and after the death of their father Ibrahim Sab, the name of the elder son Mehaboob Sab was entered in the revenue records to the entire open space and the house properties. As a dispute arose between the three brothers in respect of the entire open space and the house situated in CTS No.1453, the brothers entered into a partition/settlement by way of a Partition/settlement Deed dated 15.07.1987, by which the entire plot was divided into three portions, northern portion was allotted to the plaintiff, middle portion to Mohd. Khasim Sab and the southern 5 portion to Mehaboob Sab and accordingly, the panchayat has assigned house Nos.2-187/1, 2-187/2 and 2-187/3 to the plaintiff and her husband's brother share. Defendant Nos.1 and 2 without there being any right in respect of the said CTS No.1453/1 bearing Corporation No.11-2105/1-H, measuring 5991 Sft. belonging to the plaintiff, defendant No.1 illegally occupied the suit open space measuring 21'x40' and has put up a small purkle room. It is further averred that in the absence of the plaintiff, in the suit property, defendant No.1 has constructed this small kacha room. On an enquiry, the plaintiff came to know that defendant No.2 under the guise of an alleged sale deed dated 1989 in his favour, has sold the suit property to defendant No.1 on the ground that the suit property is part and parcel of CTS No.1454. It is specifically contended by the plaintiff that defendant Nos.1 and 2 have no concern over plot 6 No.1453/1 or 1454 and the suit open space is part and parcel of plot No.1453/1 and not plot No.1454 and further averred that defendant No.1 cannot claim to be the owner on the basis of a registered sale deed said to have been executed by defendant No.2 who had no saleable interest in the suit property.
4. Pursuant to the summons issued by the Trial Court defendant No.1 appeared and filed his written statement denying the plaint averments contending that the description of the suit property as mentioned in the plaint is not proper and further averred that the said Ibrahim had any right, title or interest in the suit property, that the memorandum of partition/settlement dated 15.07.1987 is a concocted document and the plaintiff cannot claim ownership and possession on the basis of the partition/settlement deed. It is further averred that spot panchanama was conducted on 28.02.2004 in 7 the presence of the plaintiff and defendant No.1 was shown as in possession of the suit property. It is the contention of defendant No.1 that suit property is situated in Government Gouthana land which was measuring more than 30 acres and was in possession of different persons, one Ismail Sab S/o Imam Sab Mujabad was in possession of 40'x100' of land and the same was allotted to the said Imam Ismail Sab in the year 1962, after his death, Shamsuddin was in possession of the open space measuring 40'x60', in the year 1989 a portion of the land was sold to Mohd. Moulana, the husband of defendant No.2 and subsequently, in the year 2001 an area measuring 21'x40' was sold in favour of defendant No.1 by way of a registered sale deed dated 6.11.2001 and it is the contention that in view of the sale, defendant No.1 is in possession of suit property.
8
5. The Trial Court on the basis of the pleadings and material on record, framed the following issues;
ISSUES "1. Whether the plaintiff proves that, she is the owner of suit property shown in red colour in annexed map?
2. Whether the plaintiff further proves that, defendant No.1 is in illegal possession of the suit property?
3. Whether the defendant proves that, the plaintiff has not properly valued the suit and paid insufficient Court Fee?
4. Whether the plaintiff is entitled for the relief sought?
5. What decree or order?"
6. The Trial Court by its judgment and decree, decreed the suit of the plaintiff in part and declared that the plaintiff is the owner of the suit property 9 shown in red color as shown in the annexed sketch map. Further, the Trial Court directed defendant No.1 to handover possession of the suit property by dismantling the purkle room in the suit property to the plaintiff within 60 days from the date of the order. However, insofar as the mesne profits the plaintiff was granted liberty to initiate separate proceedings.
7. Aggrieved by the judgment and decree of the Trial Court, defendant No.1 preferred RA No.292/2006 before the First Appellate Court. The First Appellate Court framed the following points for consideration;
POINTS "1. Whether the lower court is justified in holding that the plaintiff is the owner of the suit schedule property and construction of a room over the suit schedule property by defendant No.1 is illegal and unauthorized by answering 10 issue Nos.1, 2 and 4 in the affirmative and proceeded to decree the suit in part?
2. Whether the finding given by the lower court on issue No.3 is proper?
3. Whether the appellant proves that the lower court has not framed an issue on limitation which has caused prejudice to him?
4. Whether the findings given by the lower court on all the issues are perverse, capricious, unreasonable, arbitrary which warrants any interference by this appellate court?
5. What order?"
8. The First Appellate Court on re-appreciation of the material on record, confirmed the judgment and decree of the Trial Court. Aggrieved by the concurrent findings of facts of the Courts below, the present appeal is preferred by the defendant No.1.11
9. This Court vide order dated 06.02.2008, framed the following substantial question of law;
"Whether the courts below were justified in granting a decree for mandatory injunction in respect of a construction which came into existence in 1962, in a suit filed in the year 2004?"
10. Further, this Court vide order dated 21.09.2021 re-casted the substantial question of law framed on 06.02.2008, as under;
"Whether the Courts below were justified in granting a decree for declaration of title based on the memorandum of partition?"
11. Heard Sri Amresh S Roja, learned counsel for the appellant and Sri Sharanabassapa K Babshetty, learned counsel for respondent No.1.
12. It is the foremost contention of learned counsel for appellant that the Courts below have taken into consideration Ex.P.11 an unregistered 12 partition/settlement to decree the suit of the plaintiff and grant a declaration in her favour. It is further contended that the Courts below have not considered the registered sale deed in respect of suit property vide Ex.D.14 in favour of defendant No.1 by defendant No.2 and would contend that the right has been accrued in favour of defendant No.1 in view of the registered sale deed in his favour as against an unregistered partition/settlement at Ex.P.11 which requires registration as envisaged under Section 17(1)(b) of the Registration Act. In order to substantiate his contention, learned counsel for the appellant relied upon a judgment of this Court in the case of Sri Aralappa vs. Sri Jagannath and others reported in ILR 2007 Kar. 339. [Aralappa]
13. Per contra, learned counsel for the respondent would contend that the suit property is the Matruka property of the plaintiff and the brothers of 13 her husband and the father-in-law Ibrahim Sab were owners in possession of the open space with house situated in CTS No.1453/1. In view of the partition effected by way of partition/settlement dated 15.07.1987, the plaintiff has become the absolute owner of the suit property and the suit property has been encroached by the defendants under the guise of the sale deed in their favour. It is further contended that the Courts below concurrently have held that the plaintiff is the absolute owner of the suit property in view of the memorandum of partition/settlement dated 15.07.1987 and absolute right has been created in plaintiff's favour and substantial question of law framed for consideration is to be answered in favour of the plaintiff.
14. Having heard the learned counsel for the parties and having perused the material on record, the question that needs to be answered by this Court in 14 the light of the substantial question of law re-casted are in four fold points.
i) Point No.1: Firstly, whether the suit property forms part and parcel of CTS No.1453/1 as contended by the plaintiff and whether the suit property is of the ownership of the plaintiff and her husband's brothers inherited from the father-in-law Ibrahim Sab by way of inheritance.
ii) Point No.2: Secondly, whether the suit property annexed to the plaint is under the ownership of the plaintiff which acquired to the plaintiff by way of a partition/settlement Ex.P11 between the plaintiff and her husband's brothers and whether Ex.P11 is compulsorily registerable document under Sections 17 and 49 of the Registration Act.
iii) Point No.3: Thirdly, whether defendant No.2 had any saleable interest to sell the property in 15 favour of defendant No.1 in the light of Ex.D.11 dated 27.01.1989.
iv) Point No.4: Fourthly, whether defendant No.1 has encroached upon the suit property of the plaintiff.
15. A perusal of the averments in the plaint would depict that the plaintiff claims, that the suit property forms part and parcel of CTS No.1453/1 and the property was acquired by the plaintiff in view of the partition/settlement dated 15.07.1987 and that the property was originally owned by her father-in-law Ibrahim Sab and it is a Matruka property and she is the absolute owner of the suit property by virtue of partition/settlement dated 15.07.1987 and defendant Nos.1 and 2, without there being any right, interest in their favour, have encroached upon the suit property. On the other hand, the averments in the written 16 statement is that the suit property is Government Gouthana Land and one Ismail Sab, S/o Imam Sab Mujabad was in possession of 40' x 100' and on his death, Shamsuddin was in possession of 40' x 60' and subsequently, it appears that the said Shamsuddin sold the property to the husband of defendant No.2 in the year 1989 and defendant No.2 inturn sold the suit property measuring 21' x 40' in favour of defendant No.1.
16. The plaintiff in order to substantiate her contentions examined herself as PW.1 and got marked documents at Exs.P.1 to P.15. The defendants on the other hand, examined defendant No.1 as DW.1 and defendant No.2 was examined as DW.2 and got marked documents at Exs.D.1 to D.17. 17
17. The four fold points are answered by considering the rival contentions, oral and documentary evidence on record.
18. The perusal of the records reveals that the suit property forms part and parcel of CTS No.1453/1 as contended by the plaintiff as the defendant in his written statement has not disputed regarding the suit property not forming part and parcel of CTS No.1453/1. It is only the contention of defendant No.1 that suit property measuring 20' x 40' has been purchased by defendant No.1 under registered Sale Deed. There being no rebuttal evidence on the part of defendant No.1 to discard the evidence and materials produced by the plaintiff to show that the suit property forms part and parcel of CTS No.1453/1, the contention of the plaintiff is justifiable. The CTS No.1453/1 as per the contention of the plaintiff is that it has been inherited by the plaintiff and her husband's 18 brothers from Ismail Sab who was the owner in possession of CTS No.1453/1. As per the sketch annexed to the plaint Ex.P.1, the CTS No.1453/1 is shown in red color and the suit property is shown to the north-west corner with measurements. Ex.P.2 is the mutation entry evidencing the division of the property number 2-187/1 showing the partition between the plaintiff and her brothers-in-law. Even assuming that a partition/settlement does not create any right seeking for declaration that the plaintiff has become the owner of the suit property what can be gathered from the record is that the plaintiff is asserting her right in view of the property belonging to the family of plaintiff and her husband's brothers. Exs.P.3 and P.4 are the Tax paid receipts depicting the tax paid from 1991-1992 to 2001-2002 and subsequently. Ex.P.7 shows the name of the 19 plaintiff in respect of the open space with house No.11-2105/H measuring 5991 Sq.ft.
19. Ex.P.11 is the partition/settlement dated 15.07.1987 between the plaintiff and her brothers-in- law. It is the contention of the plaintiff that the suit property was inherited by the sons of Ibrahim Sab, after his death, as the property was Matruka property in view of the partition effected, the suit property fell to the share of the plaintiff. It is no doubt true that the concept of joint family is not recognized under the Muslim Law, however in order to resolve the dispute, the partition was effected by way of a written document. The said partition at Ex.P.11 is not a registered document and it is the contention of the appellant that the same cannot be relied to grant a declaration in favour of the plaintiff as the partition is not a transfer and cannot acquire title for the first time. As stated above, the plaintiff is not claiming 20 right exclusively by way of partition, but claiming that the property is the joint family property of the plaintiff and her brothers-in-law acquired by inheritance.
20. The relevant portion of Ex.P11 reads as under:-
"And whereas dispute arise between the parties to this deed and it has become very essential to the parties to divide the property and to live separately. Therefore the first party thought it better to divide the property and to end the dispute. Hence with the consent of all the parties, well wishers, panchas etc. the parties to this deed have divided their above mentioned property in the following manners and each parties are in peaceful possession and enjoyment of their share. Parties to this deed are entitled to get their names mutated in the CTS records and other phodi records of their property. Whereas the property fallen to the share of the first party is as follows:
Property having C.T.S.No.1453/3 & 34-50 (details shown in the annexed map) 21 Open space measuring 36-50/Meters East and West both sides 25-30 meters and 26-20 meters towards North- and South. Two constructed rooms measuring both 10-50 and x 4-50 all property is situated at Hirapur Tq: and Dist: Gulbarga.
Property fallen to the share of the second party.
Property having CTS No.1453/1 situated at Hirapur Tq and Dist: Gulbarga Open Space measuring 38-00 - 37-50 Meters x 12-50-17-00 Detail shown in the annexed map.
Property fallen to the share of the third party. Property having CTS No.1453/2 situated at Hirapur Tq and Dist: Gulbarga Open Space measuring 37-50 - 36-50 x 13- 30-17-70 meters.
Detail shown in the annexed map.
That the party number forth has not given any property to her share as the first party has to lookafter her and maintain her. Therefore the property CTS No.1453/3 which is a big property consisting of big open space and 22 rooms is fallen to his share, towards the maintenance of the fourth party by the first party.
The second party's husband died during the year 1972 therefore the share of husband of second party is allotted to his wife. The fourth party has got three sons i.e., first party, second party's husband and thirty party.
All parties are entitled to get their names mutated in the concerned records and entitled for phodi etc. incity survey records, etc. That the words First party, Second party, Third party and fourth party shall include all their respective heirs assigns etc."
21. Perusal of Ex.P.11 the partition/settlement would disclose that the differences are resolved by the parties, there is no question of one deriving title from the other and therefore, the arrangement does not fall within the mischief of Section 17(1) read with Section 49 of the Registration Act as the interest in the property is not created or declared by the document 23 for the first time and the disruption has been taken place by mutating the names in the revenue records in view of the partition/settlement and the same has been acted upon. Section 17(1) b of the Registration Act reads as under:-
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) xxx
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;24
Section 49 of the Registration Act reads as under:-
"Section 49 in The Registration Act, 1908
49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific 55 56 Relief Act, 1877 (3 of 1877) , [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] 25
22. In the present case, the plaintiff is seeking a declaration on the ground of inheritance from Ibrahim Sab as the property was Matruka property and the internal partition between the heirs of Ibrahim Sab cannot be questioned by the strangers more particularly, defendants in this suit. The Hon'ble Apex Court in the case of Kale and Others Vs. Deputy Director of Consolidation and others reported in AIR 1976 SC 807 (Kale) held that a family arrangement must be bonafide one so as to resolve the family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family, the Hon'ble Apex Court at Para Nos. 10, 25, 27, 28 and 44 held as under;
"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:26
(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 pre pared after the family arrangement had already been made either for the purpose of the record or for in formation 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 27 within the mischief of Section 17(2)(sic) (Sec.17(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 'It 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.
25. It would be seen that when the name of appellant No. 1 Kale was mutated in respect of 28 the Khatas by the Naib Tehsildar by his order dated December 5, 1955 which is mentioned at p. 4 of the Paper Book respondents 4 and 5 filed an application for setting aside that order on the ground that they had no knowledge of the proceedings. Subsequently a compromise was entered into between the parties a reference to which was made in the compromise petition filed before the Revenue Court on August 7, 1956. A perusal of this compromise petition which appears at pp. 15 to 18 of the Paper Book would clearly show two things-(1) that the petition clearly and explicitly mentioned that a compromise had already been made earlier, and (2) that after the allotment of the Khatas to the respective parties the parties shall be permanent owners thereof. The opening words of the petition may be extracted thus:
"It is submitted that in the above suit a compromise has been made mutually between the parties."
It would appear from the order of the Assistant Commissioner, 1st Class, being Annexure 4 in Writ Petition before the High Court, appearing 29 at page 19 of the Paper Book that the parties sought adjournment from the Court on the ground that a compromise was being made. In this connection the Assistant Commissioner, Ist Class, observed as follows:
"On 11th January 1956 Mst. Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed on 5th December 1955. On this application he summoned the parties and an objection was filed against the restoration application. The parties sought adjournment on the ground that a compromise was being made.
The parties filed compromise before the Naib Tehsildar according to which two lists were drawn, one of these is to be entered in the name of. Kale and the other in the name of Har Piari and Ram Piari."
This shows that even before the petition was filed before the Assistant commissioner informing him that a compromise was being made, The parties had a clear compromise or a 30 family arrangement in contemplation for which purpose an adjournment was taken. These facts coupled together unmistakably show that the compromise or family arrangement must have taken place orally before the petition was filed before the Assistant Commissioner for mutation of the names of the parties in pursuance of the compromise. The facts of the present case are '` therefore clearly covered by the authorities of this Court and the other High Courts which laid down that a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the Court for its information for mutation of names is not compulsorily registrable and therefor can be used in evidence of the family arrangement and is final and binding on the parties. The Deputy Director of Consolidation respondent No. 1 as also the High Court were, therefore, wrong in taking the view that in absence of registration the family arrangement could not be sustained. We might mention here that in taking this view, the High Court of Allahabad completely over looked its own previous decisions on this point which were definitely binding on it. This, 31 therefore, disposes of the first contention of the learned counsel for the respondents that as the family arrangement having been reduced into the form of a document which was presented before the Assistant Commissioner was unregistered it is not admissible and should be excluded from consideration.
27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word 'family' cannot he construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that the appellant Kale being the grand son of Lachman and therefore a reversioner at the time when the talks for compromise` took place was undoubtedly a prospective heir and also a member of the family. Since respondents 4 and 5 relinquished their claims in favour of the appellant Kale in respect of Khatas 5 and 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by respondents 4 and 32
5. Apart from this there is one more important consideration , which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes. Under the family arrangement as referred to in the mutation petition the respondents 4 and 5 were given absolute and permanent rights in the lands in dispute. In 1955 when the compromise is alleged to have taken place the Hindu Succession Act, 1956, was not passed and respondents 4 and 5 would have only a limited interest even if they had got the entire property which would ultimately pass to the appellant Kale after their death. The respondents 4 and 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners. At that time they did not know that the Hindu Succession p Act would be passed a few months later. Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter's son the appellant Kale in equal shares and was, therefore, both fair and equitable. In fact if respondents 4 and 5 would have got all the 33 lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law. We have, therefore to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out their differences. Having regard to the circumstances indicated above, we cannot conceive of a " more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances therefore, it cannot be said that the family settlement was not bona fide Moreover respondents 4 and 5 had at no stage raised the issue before the Revenue Courts or even before the High Court that the settlement was not bona fide. The High Court as also respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.
28. There is yet one more intrinsic circumstance which shows that the 34 compromise was an absolutely bona fide transaction. It would appear that at the time of the compromise respondent 5 Ram Pyari was faced with a situation when her marriage in 1955 was not so far proved. If she was absolutely certain that her marriage had taken place in 1955 she would not have agreed to the terms at all. On the other hand if she thought that she might not be able to prove that her marriage took place in 1955 and if it was shown that she had married before 1955 then she would be completely disinherited and would get nothing at all with the result that the appellant Kale would get the entire property. On the other hand the appellant must have similarly thought that a bird in hand is worth two in the bush. So long as Ram Pyari was alive he would not be able to enjoy the property and would have to wait till her death. It was, therefore, better to take half of the property immediately as a permanent tenure holder and give the half to the daughters of Lachman, namely, Har Pyari and Ram Pyari. Thus under the terms of the compromise both the parties got substantial benefits and it was on the whole a very fair and equitable bargain. 35 In these circumstances, therefore, the parties struck a just balance and fair and beneficial settlement which put an end to their disputes."
44. "In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in a accordance with the law, the view of Respondent No.1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly the view of the High court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High court further erred in law in not giving effect to the doctrine of estopped which is always applied whenever any party to the valid family settlement tries to assail it."
23. In the light of the judgment of the Hon'ble Apex Court in the case of Kale (stated supra) the 36 plaintiff being the member entered into a family arrangement and had antecedent title, claim and interest in the suit property and the same was acknowledged by the parties to the settlement way back in the year 1987 and the defendants without there being any right, title and interest cannot claim or obstruct the plaintiff's title.
24. Insofar as the judgment relied upon by the learned counsel for the appellant in the case of Aralappa (supra) there is no quarrel in regard to the settled proposition of law that by way of partition deed there cannot be a right created in the property for the first time. However, in the present case, there was already an existing right in favour of the plaintiff. Under these circumstances, the judgment relied is not applicable to the present facts of the case. 37
25. This Court in the case of Chamanbi V/s. Batulabi in RSA No.100004/2015 under similar circumstances, considering Sheshamnal V/s. Hasankani reported in 2011 (9) SCC 223 and Modinsheb Peersaheb Peerzade V/s. Meerabi reported in 2000 (6) KLJ 616, wherein the judgment of the Apex Court in Kale's Case stated supra was referred and held that under both general and personal law it is clear that Mohammedan Law enjoins in clear and unequivocal terms that there is no legal inhibition to transfer the right already vested. Under these circumstances for the reasons and principles laid down in Kale's case and the judgment in Sheshamnal and Modinsheb stated supra the plaintiff has proved that the suit property is under the ownership of the plaintiff as rightly held by the Courts below.
38
26. The other contention of the appellant, is that defendant No.1 has acquired right by way of a registered sale deed Ex.D.11 in respect of the suit property. The source of title of defendant No.1 is from defendant No.2. Defendant No.2 has purchased the property from one Shamsuddin by way of an unregistered Sale Deed dated 27.01.1989 as per Ex.D.11. Ex.D11 reads as under:-
"Rjâ PÁUÀzÀ ¥ÀvÀæ £Á£ÀÄ ±ÀªÄÀ ±ÉÆâÝãÀ vÀA. E¸Áä¬Ä®¸Á§ ªÀÄÄeÉêÁgÀ ¸Á:»ÃgÁ¥ÀÄgÀ vÁ:f: UÀÄ®âUÁð EzÀÄÝ £Á£ÀÄ £À£Àß ¸ÀéAvÀ CqÀZu À AÉ iÀÄ ¸À®ÄªÁV ªÀÄ£É £ÀA. _____ EzÀÄÝ £À£Àß ªÀÄ£ÉAiÀÄ DªÀgt À zÀ°Aè iÀÄ §AiÀÄ®Ä eÁUÀª£ À ÀÄß £À£Àß CqÀZu À AÉ iÀÄ ¸À®ÄªÁV 40' 40' eÁUÀª£ À ÀÄß RjâzÁgÀ ªÀĺÀäzÀ ªÀi˯Á£À vÀAzÉ ¯ÁqÉèøÁ§ ªÀÄÄeÉêÁgÀ ¸Á:»ÃgÁ¥ÀÄgÀ, vÁ:f: UÀÄ®âUÁð EªÀjUÉ £ÀUz À ÀÄ 3500/- (ªÀÄÆgÀÄ ¸Á«gÀzÀ LzÀÄ£ÀÆgÀÄ gÀÆ¥Á¬ÄUÀ½UÉ) £ÀUz À ÀÄ ºÀtPÉÌ AiÀiÁªÀÅzÉà vÀPg À ÁgÀÄ E®èzÃÉ , £Á£ÀÄ gÁf RĶ¬ÄAzÀ Rjâ ªÀiÁrzÀÄÝ ¤d«gÀÄvÀÛz.É Rjâ PÁUÀzÀ ¥ÀvÀæ ¢£ÁAPÀ 27-01-1989 gÀAzÀÄ vÀAiÀiÁj¸À¯ÁVzÉ. Rjâ ªÀiÁjzÀ §UÉÎ £Á£ÀÄ ªÀÄÄAzÉ AiÀiÁªÀÅzÉà £ÁåAiÀiÁ®AiÀÄzÀ PÀnÖ ºÀvÀĪ Û ÀÅ¢®è.39
ªÀÄvÀÄÛ F PɼU À É ¸À»ªÀiÁrzÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀª ë ÀÄ £À£U À É 3500/-
(ªÀÄÆgÀÄ ¸Á«gÀzÀ LzÀÄ £ÀÆgÀÄ gÀÆ¥Á¬Ä_) £À£U À É ªÀÄÄnÖgÀÄvÀª Û .É F PÁUÀzÀ ¥ÀvÀæ AiÀiÁªÀÅzÉà zÀÄAzÀÄUÁjPÉAiÀÄ°è §gÉAiÀÄzÉà ¹ÜvÀ ¥Àe æ ÉÕ¬ÄAzÀ §gÉAiÀįÁVzÉ. F PɼU À É ¸À» ªÀiÁrzÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ £Á£ÀÄ M¦àzÉÝãÉ. ªÀÄvÀÄÛ J®ègÀ ¸ÀªÀÄÄäRzÀ°è £Á£ÀÄ £À£Àß AiÀiÁªÀÅzÉ vÀPg À ÁgÀÄ E®èzÃÉ M¦à £Á£ÀÄ ¸À» ªÀiÁrgÀÄvÉÛãÉ. Rjâ ¥ÀPæ ÁgÀ §gÀ¨ÃÉ PÁzÀ ºÀt £À£U À É ¸ÀA¥ÀÆtð ªÀÄÄnÖgÀÄvÀz Û .É ¥ÀƪÀðPÉÌ : ¥ÁPÁ vÀA¢ ¯Á®CºÀäzÀ ¹n ¸ÀªÃÉ ð¥ÀPæ ÁgÀ zÀQt ë : ¸ÁªÀÄÆ»PÀ ¨Á« GvÀg Û :À ¸ÀgPÀ Áj gÀ¸ÛÉ ¥À²ª Ñ ÀÄ: UÁæªÀÄzÀ ¸ÁªÀðd¤PÀ gÀ¸ÉÛ"
27. The perusal of Ex.D.11 depicts that the title is shown as Rjâ PÁUÀzÀ ¥Àv,Àæ but, invariably it is an unregistered document and the contents of the said document clearly reveals that there is no mention about the survey number or the CTS number but only the measurement to the extent of 40' x 40' has been shown. The said document is silent about the mentioning of Survey numbers and also the boundaries pertaining to the property, which makes it 40 clear that, there is no right conferred by Shamsuddin in favour of defendant No.2 by way of the alleged Deed dated 27.01.1989. Subsequently, it appears that in the guise of the Deed dated 27.01.1989 (Ex.D.11) which has no value in the eye of law, the defendant No.2 without there being any saleable interest in his favour has executed a registered Sale Deed in favour of defendant No.1.
28. Further, Ex.D.14 is the registered sale deed of the house wherein defendant No.2 has sold the suit property in favour of defendant No.1. What could be gathered from the material on record is that defendant No.1 contends that they are in possession of the suit property, admittedly, there is no right conferred upon defendant No.1 in respect of the suit property and the materials produced by the defendants themselves would clearly establish the fact that other than the measurements shown in Ex.D.11 41 and D.14, no corresponding survey number or CTS Number has been mentioned in the said documents. This being so, the defendants cannot claim any right in the suit property as against the plaintiff. Admittedly, it is the contention of the plaintiff that defendant No.1 has encroached in CTS No.1453/1 and constructed a room illegally in his absence and this is evident from Ex.D.10 corresponding to Ex.P.9. The plaintiff, in view of the panchanama dated 28.02.2004 at Ex.D.10, has sought for recovery of possession from the defendant.
The courts below considering the material on record were justified in granting a decree of declaration of title based on the memorandum of partition/settlement as the partition effected recognizes the existing right and the Courts regarded it as the property belonging to the family of the plaintiff. Accordingly, the substantial question of law 42 framed is answered in favour of the plaintiff and against the defendants.
29. In view of the reasons stated above, this Court pass the following;
ORDER
i) The appeal filed by defendant No.1 is hereby dismissed.
ii) No order as to costs.
Sd/-
JUDGE PJ