Sunita Aggarwal & Ors. vs Ankit Jain Alias Sonu & Ors. on 22 October, 2018

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Delhi High Court

Sunita Aggarwal & Ors. vs Ankit Jain Alias Sonu & Ors. on 22 October, 2018

1. This application is filed under Order 12 Rule 6 CPC seeking a preliminary decree of partition in favour of the plaintiffs stating that the parties have 1/7th undivided share in the suit property bearing No. 4596/1A,11, Ansari Road, Darya Ganj, New Delhi-110002. The suit is filed by the plaintiffs for partition of the suit property. It has been pleaded in the plaint that the said property measuring 140 square yards was bought by the predecessor-in-interest of the parties, namely, Smt.Prem Lata Jain on 04.10.1974 by a registered sale deed. On 18.12.1992 Smt.Prem Lata Jain died intestate leaving behind four sons and three daughters. The daughters/LRs of the daughters are the plaintiffs while the LRs of the sons have been impleaded as defendants. It is the case of the plaintiffs that on CS(OS)59/2017 Page 1 23.10.2016 after the unfortunate demise of the eldest son of Smt.Prem Lata Jain, namely, Shri Rakesh Kumar Jain, the defendants, in collusion and connivance with each other started harassing and pressurising the plaintiffs to succumb to their illegal and unlawful demands and further started threatening to deprive the plaintiffs of their legitimate share in the property. Hence, the suit for partition.

2. I have heard learned counsel for the parties. Learned counsel for defendants No.1 to 4 and 5 to 8 have opposed the present application. They have pleaded that immediately on the death of Late Smt.Prem Lata Jain the parties entered into an oral family settlement whereby the sons divided the property in parts as depicted by a siteplan duly prepared and signed by all the four brothers ( as Shri Arun Kumar Jain had expired his wife signed the same) It is further pleaded that the sisters, namely the plaintiffs agreed to claim no right or interest in the suit property as they had already been given cash/gifts/jewellery at the time of marriage. Reliance is placed on judgment of the Supreme Court in Sahu Madho Das and Ors. vs. Mukand Ram and Ors., AIR 1955 SC 481, Kale and Others vs. Deputy Director of Consolidation and Others, (1976) 3 SCC 119 and judgment of the Bombay High Court in Ramdas Chimna vs. Prahlad Deorao, AIR 1965 Bom 74 to contend that a family settlement between the parties would be binding and that a family settlement can provide for relinquishment of the share of a family member and such relinquishment would be valid and binding.

3. Learned counsel appearing for the plaintiffs has, however, vehemently argued that there can be no relinquishment of rights via an Oral family settlement and the same would necessarily require execution and registration of an appropriate document under section 17 of the Registration Act. He CS(OS)59/2017 Page 2 relies upon judgment of this court in Sushila & Ors. vs. Vijay Kumar Bhardwaj & Ors., 2014 LawSuit (Delhi) 5620.

4. The only dispute for the purpose of adjudication of the present application is as to whether the alleged family settlement propounded by some of the defendants if accepted lead to the conclusion that the plaintiffs had relinquished their rights in the suit property by means of the stated oral family settlement.

5. In Sahu Madho Das and Ors. vs. Mukand Ram and Ors. (supra) the Supreme Court held as follows:-

"54. But before doing that, we will pause to distinguish 'Rani Mewa Kuwar v. Rani Hulas Kuwar' Ind App 157 (D); 'Khunni Lal v. Gobind Krishna Narain' 38 Ind App 87 (E), and 'Ramsumran Prasad v. Shyam Kumari' AIR 1922 PC 3.56 (F). It is well settled that a compromise or. family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively.

That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.

But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest to all the CS(OS)59/2017 Page 3 properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.

55. The legal position in such a case would be this. The arrangement or compromise would set out and define that the title claimed by A to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him. Next, it would effect a transfer by A to B, C and D (the other members to the arrangement) of properties X, Y and Z; and thereafter B, C and D would hold their respective titles under the title derived from A. But in that event, the formalities of law about the passing of title by transfer would have to be observed, and now either registration or twelve years adverse possession would be necessary. But in the present case, we are dealing with an arrangement made in 1875 at a time when the Transfer of Property Act was not in force and no writing was required; and, as there is no writing, the Registration Act does not apply either. Therefore, the oral arrangement of 1875 would be sufficient to pass title in this way and that in our opinion, is what happened."

6. Hence, as per the said judgment of the Supreme Court where one set of member abandons all claims to all title and interest to all the properties in dispute and acknowledges that the sole and absolute title lies only in one member the same would be legal and valid. The above judgment was also cited with approval by the Supreme Court in Kale and Others vs. Deputy Director of Consolidation and Others (supra). In that case the Supreme Court held as follows:-

"10. In other words to put the binding effect and the essentials of CS(OS)59/2017 Page 4 a family settlement in a concretized form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

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

(3) The family 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 immoveable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family CS(OS)59/2017 Page 5 arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.

12. In Lala Khunni Lal v. Kanwar Gobind Krishna Narain (1911) 38 Ind. App 87, 102 (PC) the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council. In this connection. the High Court made the following observations which were adopted by the Privy Council:

The learned judges say as follows:

The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, 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, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement.

Their Lordships have no hesitation in adopting that view.

This decision was fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi v. Mt. Sohan Bibi, AIR 1914 PC 44.

13. In Sahu Madho Das v. Pandit Mukand Ram, AIR1955SC481 , this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J. speaking for the Court, observed as follows:

CS(OS)59/2017 Page 6 It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present."

7. Similarly, the Bombay High Court in Ramdas Chimna vs. Prahlad Deorao (supra) was dealing with a proposition as to whether an oral relinquishment can take place. The court held as follows:-

"Mr. Deshpande, however, drew my attention to the provisions of Section 17 of the Registration Act. There is nothing in the Registration Act or the provisions of Section 17 thereof, which requires any particular transaction to be recorded in writing. That Act requires only that when certain transactions are so recorded, the writing shall be registered. There is nothing in the Transfer of Property Act or any other law that I am so far aware CS(OS)59/2017 Page 7 which requires that a mere extinguishment of an interest in the immovable property shall be in writing. The relinquishment by Bainabai of her interest in the joint family property was merely abandonment of her interest in the joint family property in favour of her two sons. Such a relinquishment or abandonment of interest in the joint family property, even though it consists of immovable properties and is of the value of Rs.100/- and upwards, can be effected without a written instrument, though if one is executed, it would undoubtedly require registration under Section 17 of the Registration Act, Gauri Bai v. Gaya Bai, AIR 1927 NAG 44.

Thus, the oral relinquishment by Bainabai of her interest in the joint family properties in favour of her two sons after the death of Ramji was valid and effective in law. Since the time of that relinquishment she ceased to have any interest in the joint family properties. The learned Additional District Judge was in error in taking the view that an oral relinquishment, even if proved, would not divest Bainabai of her interest in the joint family properties."

8. The legal position that follows from the above is that an oral family settlement would be binding on the parties. By an oral family settlement, a member can relinquish his/her rights in favour of another member of the party. The oral family settlement need not be a registered document.

9. Having seen the legal position regarding the family settlement, I may now look into the factual aspect of the matter. The case of the concerned defendants is that on the death of Late Sh. Prem Lata Jain, an oral family settlement was arrived at and the sons divided the property as depicted by a site plan duly signed by all the four brothers (the wife of Sh.Arun Kumar Jain also signed the same). Sisters including the plaintiffs have agreed that they will claim no right, title and interest in the suit property. It has also CS(OS)59/2017 Page 8 been pleaded that late Smt. Prem Lata Jain expired in December 1992. The plaintiffs have never sought partition of the property till now. Clearly, indicating the existence of a family settlement.

10. In Chanchal Chopra and Ors, vs, Sunil Chopra and Ors., MANU/DE/0555/2015 this Court held as follows:-

"30....

28. A family arrangement can, as a matter of law, be implied from a long course of dealings between the parties:- "Clifton v. Cockburn'(1834) 3 My & K. 76 (B) and - 'Williams v. Williams'(1867) 2 Ch. 294 (C) ; & we have such a course of dealing here..."

.....

"35.....

The conduct of the various members of the family is relevant to show that their actings, viewed as a whole, suggest the existence of the family arrangement on which the defendants rely. At this distance of time gaps in evidence that would otherwise be available have to be filled in from inferences that would normally have little but corroborative value. But circumstanced as we are, inferences from the conduct of the family is all that can reasonably be expected in proof of an arrangement said to have been made in 1875. The statements that Har Devi and Maha Devi made as witnesses are therefore as relevant as recitals made by them in deeds and statements made by them in pleadings. They do not in themselves prove the fact in issue, namely the family arrangement, because, in the absence of Section 32(3) , they are not admissible for that purpose, but as their conduct is relevant these statements are admissible as evidence of that conduct."

11. Hence, a family arrangement as a matter of law can be implied from a long course of dealings. I cannot help noticing that the plaintiffs have chosen CS(OS)59/2017 Page 9 to wait for 25 years before claiming a right from the property from the brothers who have deceased in the meantime.

12. The reliance of learned counsel for the defendant on the judgment of this court in Sushila & Ors. vs. Vijay Kumar Bhardwaj & Ors. (supra) is misplaced. No doubt in that case also the issue was about partition claimed by the daughters against the brothers. However, in that case the court noted that the defendant in another suit had admitted the parties to have 1/5 th share in the property. In the light of this admission the court concluded that the oral family settlement and an oral relinquishment of share taken by defendant is in contradiction to the earlier admission in the aforesaid civil suit. The plea of the plaintiff in that case was accordingly rejected.

13. In my opinion, there are no clear admissions in this case which can warrant passing of a decree under Order 12 Rule 6 CPC. The matter would require to go to trial to enable the said defendants No.1 to 4 and 5 to 8 to prove their claim in respect of oral family settlement. The defence raised by the said defendants cannot be brushed aside as make belief or fictitious.

14. Order 12 Rule 6 CPC reads as follows:-

"6. Judgment on admissions.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

CS(OS)59/2017 Page 10

15. Catena of judgments of this court and the Supreme Court have settled the requirement of Order 12 Rule 6 i.e.:

(i) Vijaya Myne v. Satya Bhushan Kuara 142(2007)DLT483(DB)

(ii) Usha Rani Jain v. Nirulas Corner House Pvt. Ltd. 2005(12) ILR (Del.)349.

(iii) Bhupinder Singh Bhalla v. Neelu Bhalla@Neelam Singh 2014(207)DLT 572

(iv) Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15 SCC 273

16. Reference may be had to judgment of Supreme Court in the case of Himani Alloys Ltd. v. Tata Steel Ltd. (supra) wherein the Court held as follows:-

"9. It is true that a judgment can be given on an "admission"

contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a Defendant to contest the claim. In short the discretion should be used only when there is a clear 'admission' which can be acted upon."

17. Admissions can be inferred from vague and evasive denials or admissions can even be inferred from the facts and circumstances of the case. Facts of the present case do not show that any conclusion can follow that the defence raised by the defendants is vague or evasive. It is not CS(OS)59/2017 Page 11 possible to accept the plea of the plaintiffs and pass a decree under Order 12 Rule 6 CPC.

18. The application is dismissed.

JAYANT NATH, J OCTOBER 22, 2018 n Corrected and signed on 20.11.2018.

CS(OS)59/2017                                                           Page 12

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