Uttarakhand High Court
Mani Ram vs Padam Datta (D) By Lrs. And Anr. on 25 April, 2007
Equivalent citations: AIR2007UTR74, 2007(4)AWC3911, AIR 2007 UTTARANCHAL 74, 2007 (6) ABR (NOC) 948 (UTR.) = AIR 2007 UTTARAKHAND 74, 2007 AIHC (NOC) 533 (UTR.) = AIR 2007 UTTARAKHAND 74
Author: Prafulla C. Pant
Bench: Prafulla C. Pant
JUDGMENT Prafulla C. Pant, J.
1. These appeals, preferred under Section 100 of Code of Civil Procedure, 1908, are directed against the judgment and decree dated 7-5-1979, passed by Civil Judge, Dehradun, in civil appeal No. 145 of 1978 and civil appeal No. 22 of. 1979, whereby the judgment and decree dated 30-10-1978, passed by Illrd Additional Munsif, Dehradun, in Civil Suit No. 257 of 1977, and judgment and decree dated 4-4-1979, passed by Munsif, Dehradun, in Civil Suit No. 268 of 1977, are reversed.
2. Heard learned Counsel for the parties and perused the record.
3. Factual matrix of the case is that two suits i.e. Original Suit No. 257 of 1977 and 268 of 1977, are filed by plaintiff/appellant Mani Ram, one for cancellation of gift deed, executed in favour of the defendant/respondent Sada Nand Dobhal, and another suit for cancellation of sale deed, executed in favour of defendant Padma Datta and Dev Datta respectively. Both the deeds are said to have been executed by Jeet Ram Bahuguna, father of the plaintiff/appellant. Defendant/respondents Padma Datta and Dev Datta, are real brothers, of plaintiff/ appellant, while Sada Nand Dobhal (defendant/respondent) is brother-in-law of the plaintiff (son-in-law of Jeet Ram Bahuguna). It is pleaded by the plaintiffs in both the suits that Jeet Ram Bahuguna being head of the Joint Hindu Family, owned landed property in Tehri Garhwal and apart from plot No. 800/4, measuring area of 65 acres and plot No. 800/11, measuring area 2.82 acres in village Nathuwala, District Dehradun. The plaintiff pleaded in both the suits that during life time his father Jeet Ram Bahuguna, partitioned the property amongst his three sons and his two brothers namely, Padma Datta and Dev Datta through a family settlement dated 27-3-1961 to which all the three brothers and their father were parties. The plaintiffs father (Jeet Ram Bahuguna) died on 20-2-1976. After his death when the plaintiff suggested his brothers to move mutation application for substitution of their names, he was informed that the mutation had already taken place. He was told that the landed property in Tehri Garhwal, has been mutated equally in the names of plaintiff and his brothers. Plaintiff thereafter sought mutation in respect of landed property of his father, situated in Nathuwala, Dehradun, but he came to know that on 10-7-1977, said land had already been mutated in favour of his brother-in-law Sada Nand Dobhal (defendant) to the extent of half share. On inspection of the record, the plaintiff came to know that his father has executed registered gift deed dated 3-11-1969 in favour of his brother-in-law Sada Nand Dobhal (son-in-law of donor). He also came to know that in the remaining half share in the land situated, at Nathuwala, Dehradun, plaintiffs father has executed registered sale deed dated 7-4-1970 in favour of Padma Datta and Dev Datta (brothers' of plaintiff). The plaintiffs case is that his father had no right to execute the aforesaid gift deed and the sale deed in favour of the defendants, as the property was already been partitioned vide settlement deed dated 27-3-1961. Hence two separate suits were filed for cancellation of gift deed and the sale deed.
4. In original suit No. 257 of 1977 (for cancellation of gift deed) in written statement filed by defendant Sada Nand Dobhal, it is pleaded that the property in question at Nathuwala, Dehradun, is a self acquired property of Jeet Ram Bahuguna, which he purchased in the year 1950. In said year, itself he expressed his view that he would be parting half share to the answering defendant in said property and accordingly later on transferred 10 bighas of land through impugned gift deed (a registered document). It is specifically pleaded that no undue influence was exercised on the donor nor any fraud was played. It is also pleaded that the suit is barred by limitation. It is also pleaded by said defendant that the family settlement was executed or enforced. In suit No. 268 of 1977, defendants Padma Datta and Dev Datta, denied the plea that the family settlement was ever enforced. In additional pleas they also stated that the property situated at Nathuwala, Dehradun, was a self acquired property of Jeet Ram Bahuguna. It is further pleaded by these two defendants that in the year 1961, though father of the defendants and the plaintiff, wanted to apportion the property amongst his three sons but certain conditions were required to be fulfilled. Since the conditions were not fulfilled, as such, delivery of possession not given by the father of the defendants and the plaintiff, nor the family settlement was acted upon. In the year 1970, according to these defendants, their father was in need of money and he transferred 9 bighas of land to them after accepting from them Rs. 2,000/- as consideration and executed the registered sale deed before Sub-Registrar, Dehradun. The two defendants in suit No. 268 of 1977 also took plea that the suit is not maintainable as the same is barred by time and the plaintiff is not entitled to any relief.
5. On the basis of the pleadings of parties, the trial Court framed following issues in suit No. 257 of 1977:
1. Whether the father of the plaintiff had partitioned his property including the disputed land, as alleged in para 3 of the plaint?
2. Whether the father of the plaintiff has no right to execute the gift deed in question?
3. Whether the alleged gift deed was executed as alleged in paras 9, 10 and 11 of the written statement?
4. Whether the suit is bad for non joinder of necessary parties?
5. Whether the suit is barred by time?
6. To what relief, if any, the plaintiff is entitled?
The trial Court, which tried suit No. 268 of 1977 framed following issues on the basis of the pleadings of the parties:
1. Whether the sale deed in question is illegal and ineffective?
2. Whether the family settlement in respect of property in suit was rejected by the parties. If so, its effect?
3. Whether the suit is barred by time?
4. To what relief, if any, the plaintiff is entitled?
6. In suit No. 257 of 1977, the trial Court (IIIrd Additional Munsiff, Dehradun) after recording the evidence and hearing the parties held that property had already been partitioned by Jeet Ram Bahuguna (father of the plaintiff) through settlement deed in the year 1961 and as such, he had no right to execute the gift deed in favour of the defendant Sada Nand Dobhal. It further held that the gift deed was got executed by defendant No. 1 Sada Nand Dobhal taking undue advantage of old age of his father-in-law Jeet Ram Bahuguna. The trial Court further held that the suit is not barred by time, as the plaintiff had no knowledge of the registered gift deed till 10-7-1977.
7. In suit No. 268 of 1977, Munsif, Dehradun, who tried said suit, held that defendants could not disclose which of the conditions remained unfulfilled for enforcement of the family settlement as such it is found that the settlement was not rejected by the parties. It further held that since witnesses of the sale deed were not produced, as such, there is doubt in the validity of the sale deed. The said Court found that the registered sale deed in question is illegal and ineffective. The issue of limitation was decided in negative on the ground that the defendants failed to prove how the suit is barred by time.
8. Since both the suits were decreed as such, the defendants of the respective suits preferred civil appeals before the District Judge. Civil appeal No. 145 of 1978 was preferred by defendant-Sada Nand Dobhal (son-in-law of Jeet Ram Bahuguna) against the judgment and decree dated 30-10-1978, passed by IIIrd Additional Munsif, Dehradun in civil suit No. 257 of 1977, while civil appeal No. 22 of 1979 was filed by defendants Padma Datta and Dev Datta against the judgment and decree dated 4-4-1979, passed by Munsif, Dehradun in suit No. 268 of 1977. Both the appeals were consolidated by learned Civil Judge, Dehradun to whom the appeals were transferred and the same were heard together. Said lower appellate Court observed in its judgment that following four points of determination were raised before it by the parties:
1. Whether the suit is time barred?
2. Whether the suit for declaration alone is not maintainable as plaintiff is out of possession?
3. Whether Late Sri Jeet Ram Bahuguna had no right to execute the impugned sale deed and the gift deed?
4. Whether the impugned sale deed and the gift deed have been obtained by exercising undue influence?
9. Learned Civil Judge after hearing the parties decided point. No. 1 in favour of the plaintiff and affirmed the findings of the trial Courts that the suits are not barred by time as the limitation under Article 59 of Limitation Act, 1963, begins from the date when the plaintiff had knowledge of the disputed deed/deeds, as such the three years period of limitation had not expired from the date of knowledge alleged by the plaintiff. Point No. 2 is also decided by lower appellate Court in favour of the plaintiff on the ground that there is no evidence when the plaintiff was disposed from the property in question, as such, it held that as required under Section 34 of Specific Relief Act, 1963, it was not necessary for the plaintiff to seek possession with the relief of declaration. However, points No. 3 and 4 mentioned above were discussed and decided in favour of the defendants holding that alleged document of the family settlement of 1961, relied by the plaintiff in fact is a document by which rights of the parties stood transfer in respect of the immovable property, as it involves relinquishment of the rights. As such, alleged document of family settlement of 1961, which requires registration under Section 17 of Registration Act, 1908, was violative of Section 49 of said Act, as such, it could not have been read in evidence nor was it admissible in evidence. The lower appellate Court further found that no duty was paid as required under Section 61 Indian Stamp Act on said document. The lower appellate Court due to this reason found that on the basis of such document of family settlement which was not admissible in evidence, it cannot be said that Late Jeet Ram Bahuguna had no right to transfer his self acquired property through registered gift deed or registered sale deed. The lower appellate Court on point No. 4 after discussing evidence found that son-in-law and the sons (defendants) of Late Jeet Ram Bahuguna were not in position to exercise undue influence on him and as such, the execution of the registered gift deed and that of registered sale deed cannot be doubted. It is further observed by the lower appellate Court that age of Jeet Ram Bahuguna was 70 years at the time of execution of the impugned deeds, while he died at the age of 82 years.
10. These appeals are transferred to this Court under Section 35 of U.P. Reorganisation Act, 2000. At the time of admission of these two second appeals before Allahabad High Court on 28-8-1979, following substantial question of law is formulated (same in both the appeals):
1. Whether the deed dated 27-3-1961 is a family settlement or mere memorandum or it is a gift deed in respect of which the deed is compulsorily required to be registered?
11. The original family settlement dated 27-3-1961 is paper No. 41-A in the trial Court's record in original suit No. 257 of 1977, which is exhibited as Ext. 14. The title mentioned in said deed is 'FARD BATWARA' (in it words 'Jameen Jagah Ka' appear to be added to the title). The English translation of first sentence of said deed is:
I partition the property to my three sons--Shri Mani Ram, Shri Padam Datta and Shri Dev Datta." There are three columns made in this deed. The first column refers to the property given to Mani Ram, second column refers to Padam Datta and the third to Dev Datta. As to the land of Dehradum, it is mentioned that 1/3rd share is given to each of the three brothers. However, on close scrutiny of this document, it is apparent that: words (Vernacular matter omitted....Ed.) in all the three columns appears to have been added by a different ink. In fact where this expression is mentioned in each column, the sub-title given in (Vernacular matter omitted....Ed.) in a different ink and expression (Vernacular matter omitted....Ed.) appears to have been added to if. Assuming for a moment there is no interpolation in the document, this Court has to see whether this document amounts to transfer of interest in immovable property or is a mere family settlement, which is not required to be registered.
12. Shri Rajendra Dobhal, learned Counsel for the appellant drew attention of this Court to the case of Ram Charan Das v. Girja Nandini Devi . On its basis, it is argued that a transaction of family settlement does not amount to transfer nor does it create any interest, as such, the same is not required to be registered. To support his contention, appellant further relied in principle of law laid down by the Apex Court in Kale v. Deputy Director of Consolidation . In the case of Ram Charan Das (supra) while holding that family settlement does not amount to transfer, it has been clearly mentioned that the reason for this is in family settlement each party takes share in the property by virtue of independent title, which is admitted to that extent by the other parties. In case of Kale (supra), the Apex Court, while holding that the registration of family settlement is not necessary, has observed that the members who may be parties to the family arrangement must have some antecedent title, claim or interest or even a possible claim in the property which is acknowledged by the parties to the settlement. In the present case, property in question is a self acquired property of Jeet Ram Bahuguna and it cannot be said that on 27-3-1961 when the document (paper No. 41-A Ext. 141 was executed and signed by the parties, the sons had any share in the self acquired property of their father. Therefore, the lower appellate Court has rightly held that division of 1/3rd share to each of the sons by Jeet Ram Bahuguna leaving no share for himself amounts to relinquishment of his interest in the property situated at Natuwala, Dehradun. As such the document is clearly covered by Clause (b) of Section 17 of Registration Act, 1908. In other words registration of the paper No. 41-A (Ext. 141 was necessary under said provision. That being so the unregistered document cannot be received in evidence as provided in Clause (c) of Section 49 of the said Act. In the circumstances, this Court has no hesitation in holding that the family settlement dated 27-3-1961, relied by the plaintiff/appellant though purports to be memorandum of partition but since in fact it pertains to the property in suit at Nathuwala, Dehradun, which was a self acquired property of Late Jeet Ram Bahuguna as such, by apportionment of said property between the three sons in fact it is execution of a non-testamentary document by Shri Jeet Ram Bahuguna extinguishing his own interest in his self acquired property and created new interest in favour of his sons, who has no interest therein. As such, such document being covered under Clause (b) and Clause (e) of Sub-section (1) of Section 17 of Registration Act, 1908, the registration of said document was compulsory, as such, the lower appellate Court has rightly held said document as not admissible in evidence. The being so, both the trial Courts, which decreed the suit No, 257 of 1977 and 268 of 1977, committed error of law in accepting the said document in evidence and on its basis in decreeing suits for cancellation of registered gift deed dated 3-11-1969 formal proof dispensed with (paper No. 12-A in original suit No. 257 of 1977) and registered sale deed (paper No. 9-A Ext. 6 in original suit No. 268 of 1977) dated 7-4-1970.
13. Also, after going through the entire evidence on record and after hearing the parties, this Court is of the view that there is no evidence to prove the fact that defendant/respondents had exercised undue influence over Jeet Ram Bahuguna for obtaining aforesaid registered gift deed and registered sale deed.
14. For the reasons, as discussed above, both the appeals are liable to be dismissed. The same are dismissed Costs easy.