Delhi District Court
Smt. Kamlesh Jindia vs Smt. Koshal Jindia on 29 July, 2020
IN THE COURT OF CIVIL JUDGE-06, (CENTRAL), TIS HAZARI COURTS,
DELHI
DATE OF INSTITUTION: 09.05.2016
CIS NO. : 98257/2016
CNR NO. : DLCT03-001044-2016
DATE OF DECISION: 29.07.2020
PRESIDING OFFICER: Mr. RUPINDER SINGH DHIMAN
Smt. Kamlesh Jindia,
W/o Sh. Swaran Jindia,
R/o H. No 271, HM Colony,
Jamalpur Colony, Metro Road
Near Gole Market,
Ludhiana, Punjab. ........Plaintiff
Versus
Smt. Koshal Jindia,
W/o Sh. Krishan Kumar Jindia,
Shop no 1315, Chowk Sangtrashan,
Paharganj, Delhi. .......Defendant
Argued by:
Sh. Sagar Dawar, Counsel for Plaintiff.
Sh. Amit Kumar, Counsel for Defendant
CNR: DLCT03-001044-2016 Page 1 of 36
SUIT FOR PARTITION, POSSESSION, MANDATORY AND PERMANENT
INJUNCTION
JUDGMENT
1) Vide this Judgment, I shall dispose off the present suit for partition, possession, mandatory and permanent injunction which has been filed by the plaintiff Smt. Kamlesh Jindia against the defendant Smt. Koshal Jindia. The suit property in the present suit refers to shop bearing no. 1315, ground floor, without terrace right, measuring 200 sq. feet situated at Chowk Sangtrashan, Paharganj, New Delhi.
2) Succinctly put, the factual matrix of the case as culled out from a bare perusal of the Plaint is as under: -
It is the case of the plaintiff that she and defendant are the joint owners of the suit property. This property was purchased in the name of plaintiff and defendant by virtue of the sale deed dated 16.07.1991. The sale deed is in the custody of the defendant. Joint business in partnership amongst Sh. Krishan Kumar Jindia (husband of defendant), Smt. Kamlesh Jindia (Plaintiff) and Sh. Ramesh Kumar was being run from this shop vide partnership deed duly executed between the parties. However, it was decided that the ownership right in the suit property shall always continue with plaintiff and the defendant and that the third party shall have no right in the suit property if the partnership is dissolved. The possession of the undivided share of the plaintiff in the suit property remained in the possession of the plaintiff as the plaintiff was doing the business in partnership at the suit property. At that time, the plaintiff was residing in Punjab and used to visit frequently to the suit property to look after the business as well as suit property along with her husband. Since June, 2015 the relation of the husband of the plaintiff and the husband of the defendant are not cordial. Hence the plaintiff and her husband decided to dissolve the partnership. To dissolve the partnership, a meeting was held at Punjab with the CNR: DLCT03-001044-2016 Page 2 of 36 defendant and the partnership was dissolved but till date the accounts of the business has not been provided by the defendant to the plaintiff. In the month of August 2015, the husband of the defendant and the defendant approached the plaintiff in Punjab and offered the plaintiff and the husband of the plaintiff that they are interested in purchasing the undivided share of the plaintiff in the suit property as now there is no business in partnership. The plaintiff refused to sell the same as the plaintiff and the husband of the plaintiff wanted to keep the same for their son. Request to mutually partition the suit property was also made by the plaintiff, but all in vain. The defendant, however, threatened the plaintiff that he shall let out the suit property on rent to third person and will also mortgage the entire suit property to some private financer. Thereafter, since August, 2015 to March, 2016 the plaintiff and the husband of the plaintiff made various visits to the suit property so that the defendant and the husband of the defendant may mutually partition the suit property but to no avail. Left with no other equally efficacious remedy, Plaintiff alleges that she has been constrained to file the present suit.
3) On notice, the defendant filed the written statement wherein she denied the allegations of the plaintiff and averred that: -
The plaintiff and defendant are relatives of each other through their husbands. Both the families were living together in state of Punjab at place called Maler Kotla. In order to ameliorate their position, husband of the plaintiff, being elder brother advised his younger brother Sh. Krishan Kumar (husband of defendant) to explore means of livelihood at Delhi since one of the relations of family was settled there. In pursuance of the same, the younger brother started business venture at Delhi and suit shop in question was purchased in joint name of the wives of the brothers i.e. plaintiff and the defendant. With passage of time it was decided between brothers that the elder brother would stay at Maler Kotla i.e. native place and would take care of established set up and younger brother would continue to earn his livelihood from shop at Delhi. Accordingly, both the families in presence of CNR: DLCT03-001044-2016 Page 3 of 36 eminent witnesses entered into a family settlement wherein details about ownership and business were mentioned and it was agreed amicably that the elder brother i.e. Husband of the plaintiff would take care of business at native place without there being any share of the younger brother and in lieu of that the elder brother and plaintiff agreed to surrender there share in Delhi business and property being run by husband of the defendant i.e. younger brother. It was further agreed that ownership, goodwill and profit etc. of business as well as the property with description 1315, Sangtrashan Chowk, Pahar Ganj, New Delhi (suit property) would be owned by the respective parties of their shares. The terms were agreed amicably and family settlement dated 16.03.1995 was entered therein where signatures were appended by all concerned in witness of reputed personalities of native place. Accordingly, ownership in property was surrendered and partnership was dissolved by virtue of said settlement. Since then i.e. from year 1995 both the families neither maintained family nor business relations. The husband of the defendant was taking care of the business at Delhi and husband of the plaintiff was taking care of affairs at native place. It is only in the year, 2016 all of sudden the plaintiff has instituted the present suit. The suit filed by the plaintiff is an abuse of law and she is not entitled to any relief at all.
4) Thereafter, replication was filed on behalf of the plaintiff wherein she, inter alia, denied that any family settlement was entered into between parties or that her share in the suit property was surrendered. Plaintiff alleged that the family settlement relied upon by the defendant is sham document and its execution is disputed.
5) Based upon the pleadings of the parties, the following issues were framed on 27.10.2016: -
i) Whether the plaintiff is entitled to a decree of partition of suit shop as prayed for? OPP
ii) Whether the plaintiff is entitled for permanent and mandatory injunction as prayed for? OPP CNR: DLCT03-001044-2016 Page 4 of 36
iii) Whether the plaintiff has entered into the family settlement under misrepresentation? OPP
iv) Whether the suit of the plaintiff is barred by law of limitation? OPD
v) Whether the suit of the plaintiff has not been properly valued for the purpose of court fees? OPD
vi) Whether the plaintiff has concealed the material facts regarding the family settlement? If yes, whether concealment is material and its effects. OPD
vii) Relief
6) Matter was then fixed for plaintiff's evidence (hereinafter referred to as PE). In PE, plaintiff examined herself as PW1. She tendered her evidence by way of affidavit Ex PW1/1, wherein she repeated the averments made in the plaint. In addition, she relied upon the following documents: -
i) Ex PW1/A: Copy of Sale Deed
ii) Ex PW1/B: Site Plan
iii) Ex PW1/C: Copy of Partnership Deed being photocopy was de-exhibited and
marked as Mark A.
7) She was duly cross-examined by the counsel for defendant. In her cross-
examination, she stated that the suit shop is being run in partnership with the defendant in Delhi in the name of Balaji Steels. She also stated that she has never received any share in the profits generated by the shop being run in partnership. The defendant never furnished any details regarding partnership business. She volunteered that she had gone to the shop in question along with her husband and asked the defendant for a share in profits generated since the inception of the partnership. However, the defendant refused to oblige and manhandled her husband. She was also unable to recall the particulars of the other shops situated adjacent to/in vicinity of the shop in question in cross examination. She admitted that her son is currently employed and is supporting her financially.
8) She was also confronted with family settlement Ex PW1/D1 in her cross examination. She denied entering into any family settlement though recognised the CNR: DLCT03-001044-2016 Page 5 of 36 signatures at point A to be hers. She admitted that the signatures at point A was her signature but thereafter tried to wriggle out of said admission. She stated that the signatures could be her signature but she normally signs as "Kamlesh Jindia" and not as "Kamlesh Rani". She denied the contents of the document. She explained that in the year, 1995 she had undergone hysterectomy and at that time husband of the defendant had procured her signatures on certain documents, stating that the same were required for presentation in certain business-related transactions. She submitted that she signed those documents without perusing the same and going through the contents of the same. She also stated that signatures on document marked Ex.PW1/D1 were taken at her residence (i.e. Maler Kotla).
9) The witness was further shown signatures (in Punjabi) at point B and C in the document marked Ex.PW1/D1. She denied the same to be her. She further stated that she cannot identify the signatures of her husband and therefore was unable to confirm if the signature purported to be that of her husband in document marked Ex.PW1/D1 were actually his or not. She admitted that she knew Charanjeet Bhatia (witness of the family settlement) but denied knowing the other witness Sh. Satpal Sharma. She also admitted that she knew Sh. Shyam Lal Gupta who is the deed writer.
10) Plaintiff also examined her husband Sh. Swaran Jindia as PW2. He tendered his evidence by way of affidavit Ex PW2/A. In his examination in chief, he supported the case of the plaintiff. He denied entering into any family settlement. However, in his cross examination, he admitted that signatures at points A, B and C on Ex PW1/D1 were his.
He stated that that he had signed on the said documents at the request of his brother (defendant's husband), when the latter had told him that certain documents were needed to be filed by him before some Government Department. He further stated that he signed the said papers without asking anything as he shared a relationship of trust him as the latter was his brother. He stated that when he signed the said documents, the same were blank. He also admitted that the back portion of the document marked Ex.PW1/1-D1 reads his CNR: DLCT03-001044-2016 Page 6 of 36 name as Swaran S/o. Janki Dass but denied that he had purchased stamp papers on which the family settlement was executed.
11) He was also confronted with para 11 and para 15 of his affidavit of evidence of Ex.PW2/A wherein it is stated that the defendant had approached the plaintiff and him in the month of August, 2015 expressing her willingness to purchase the same but he denied the said paragraphs in toto. The counsel for the plaintiff sought permission of this Court to re-examine PW2 regarding two paragraphs mentioned in the affidavit of PW2 i.e. para 11 and para 15, as the PW2 has denied the same in toto. However, the said request was declined by the Learned Predecessor of this court on the ground that re-examination is not permissible to rectify a glaring contradiction in the statement of the witness.
12) Plaintiff also summoned records from Department of Archives to prove the sale deed and the site plan. She closed her evidence on 27.04.2018 and matter was then fixed for defendant's evidence (hereinafter referred to as DE).
13) In DE, defendant examined Sh. Satish Jindal as DW1. He tendered his evidence as DW1/A wherein he supported the version of the defendant. He deposed that both the families in presence of eminent witnesses entered into family settlement. He stated that terms of settlement were agreed amicably and thereafter signatures where appended by all concerned in presence of witnesses. He further deposed that ownership in property was surrendered by virtue of said settlement.
14) In his cross examination, he stated that Krishna Kumar (husband of defendant) might have come to Delhi in the year 1990-91. The family of Krishan Kumar stayed at Maler Kotla while Krishan Kumar stayed his house for the period of 18-20 years. Krishan Kumar started business of stainless steel in the year 1991. However, he did not know if business of stainless steel under the name of Balaji steel was started by CNR: DLCT03-001044-2016 Page 7 of 36 him in partnership with Kamlesh Jindia and Ramesh Kumar. He did not remember when the shop no. 1315, Sangtrashan Chowk, Pahar ganj, Delhi (suit property) was purchased nor did he go for registration of the sale deed of the said shop.
However, his testimony with respect to family settlement was hearsay evidence as he stated that he had only heard from other relatives about the family settlement. Nor did he know when the family settlement was executed.
15) Defendant also examined Sh. Charanjit Bhatia as DW2. He tendered his evidence by way of affidavit Ex DW 2/A wherein he supported the version of the defendant. He deposed that for effecting the settlement, a written family settlement was prepared wherein terms of settlement were mentioned. Therein it was mutually agreed by the plaintiff that she and her family would retain control of the shop at Maler Kotla and defendant and her husband would retain control of the shop at Delhi. He further deposed that he personally witnessed the family settlement and, in his presence, signatures were appended on the said family settlement Ex PW1/D1 by the plaintiff, her husband, defendant and her husband.
16) He was duly cross examined by the Counsel for plaintiff. In his cross-examination, he stated that he does not remember exact the date or month when family settlement took place but it was in the year 1995. He stated that the meeting for taking decision regarding the settlement took place in the house of Krishan Kumar Jindia. He then stated that the family settlement was written at Kachahri in Maler Kotla by Sh. Shyam Lal Gupta by hand. The family settlement was dictated by both brothers. At the time of dictation Mr. Swaran Kumar Jindia, wife of Swaran Kumar Jindia(i.e. Plaintiff), Krishan Kumar Jindia and wife of Krishan Kumar Jindia( i.e. defendant) were present. He stated that the family settlement was prepared on stamp paper and it took 1 ½ hour to get the settlement prepared. He however did not know the value of the stamp paper or when the stamp paper was purchased. He deposed that Mr. Swaran Kumar Jindia and his wife signed the settlement deed with right hand. Mr. Swaran Kumar Jindia had signed the settlement deed CNR: DLCT03-001044-2016 Page 8 of 36 firstly but he did not remember who signed the family settlement thereafter. He also admitted his signature on the family settlement and stated that he had not read the family settlement but after both brothers told him about the settlement, he signed as a witness.
17) He also testified that Mr. Satpal Sharma had signed the settlement deed in his presence though he did not read the family settlement in his presence. Further he testified that Shyam Lal Gupta also signed and stamped the family settlement.
18) Defendant examined herself as DW3. She tendered her evidence by way of affidavit Ex DW3/A, wherein she repeated the averments made in the written statement. The same are not repeated herein for the sake of brevity. In addition, she relied upon the family settlement already marked as Ex PW1/D1.
19) In her cross-examination, she stated that she, along with her husband and son shifted to Delhi in the year 2007 at sector 24, Rohini. She deposed that they had a shop under the name of M/s Balaji Steel Agency, Sangtrashan Chowk in Paharganj even before shifting to Delhi. She stated that her husband alone was running shop M/s Balaji Steel thought but she did know whether the firm M/s Balaji Steel Agency was a partnership firm or not. She also did not know Sh. Ramesh Kumar and if he was also a partner in the said firm. She further testified that the suit property was purchased for a sum of Rs. 50,000/- in the year 1991 and the same was also registered. She also admitted that the suit property was never partitioned between owners.
20) She stated that she herself read the family settlement which she has filed in the present suit is written in Punjabi language as she can read little bit Punjabi language. She deposed that the family settlement was written in the Court of Maler Kotla at about 12.00 to 01.00 (noon). She deposed that Mr. Swaran Kumar Jindia (husband of plaintiff) dictated the contents of family settlement to Mr. Shyam Lal who scribed the same. She denied that herhusband got the signatures of the plaintiff on some documents on the pretext that the CNR: DLCT03-001044-2016 Page 9 of 36 same were required for presentation in certain business-related transactions. She read her name on entire page on Ex PW1/D1 and identified her signatures (written in English. She also identified her husband's signatures at point C.
21) Defendant also examined her husband as DW4 who supported the version of defendant. In his cross-examination he stated that the suit property was purchased for a sum of Rs. 50,000/- in the year 1991 and the same was registered at Asaf Ali Road, Delhi. He admitted that the suit property was never partitioned in between the owners. He stated that the family settlement was entered into the year 1995 at my home i.e. at Maler Kotla. He deposed that he and Swaran Kumar Jindia (husband of plaintiff) were residing in the separate houses at the time of family settlement. He stated that Mr. Satish Kumar Jindal, Mr. Charanjit Bhatia, his sister Smt. Raj Kumar, Swaran Kumar, Smt. Kamlesh Kumari and Smt. Koshal Rani were present at the time of settlement. Mr. Swaran kumar dictated the contents of the family settlement to Shyam lal. He further stated that Swaran Kumar, Kamlesh Rani, Krishan Kumar, Koshal, Charanjit Bhatia and Satpal signed the family settlement. Mr. Charanjit Bhatia and Satpal signed the last paper of the family settlement and rest of the persons signed at each page of the family settlement.
22) Defendant also examined Sh. Sham Lal Gupta (the deed writer of the family settlement Ex PW1/D1). The family settlement is in Punjabi Language. In his examination in chief, he deposed that the Memorandum of Partition Ex PW1/D1 was scribed by him. The English translation of Memorandum of Partition as per him is reproduced herein for ready reference:
Memorandum of family partition.
We, Swaran Kumar, S/o Sh. Janki Dass, S/o Sh. Madho Ram, R /o Maler Kotla, Party No.1. Mst. Kamlesh Rani, W/o Swaran Kumar, S/o Janki Dass, R/o Maler Kotla, Party No.2. Krishan Kumar, S/o Janki Dass, S/o Madho Ram, R/o Maler Kotla, Party No.3. Mst. Kaushal Rani, W/o Krishan Kumar, S/o Janki Dass, R/o Maler Kotla Party No.4.CNR: DLCT03-001044-2016 Page 10 of 36
Whereas Party No.1 and Party No.3 are real brothers. Party No.2 is wife of party no.1 and Party No.4 is the wife of Party No.3. The property mentioned below was joint property of the parties (Dhiran Di Nimlikhit Jaydad Mushtarka Si).
I. The business whose name is M/s J. Jindia & Sons, Railway Road, Maler Kotla, the business of which is to sell medicines i.e. chemist shop and the said shop belongs Smt. Vinod Jain, W/o Sh. Prem Chand, Maler Kotla and from whom the said shop has been taken on rent. II. Party No.1 and 3 had purchased a shop no. 1315, Sangat Rashan Chowk, Pahar Ganj, New Delhi about in July 1991 and in the same business in the name of M/s Balaji Steel Delhi is running. Smt. Kamlesh and Smt. Kaushal Rani, Party no.2 and 4 purchased the aforesaid property in equal shares and the business was running. III. In the presence of family members and respected members of the society about two months back, the above joint family property after mutual settlement was partitioned with consent as family settlement. In terms of said settlement, the business at J.Jindia, Railway Road, Maler Kotla and the entire assets and liability of said business including goodwill, furniture and other articles fell in the share of party no.2 Sh. Swaran Kumar i.e. Swaran Kumar and his wife Smt. Kamlesh Rani became owners of the same. And the shop at Pahar Ganj Delhi and right title and interest in the running business at said shop including capital, furniture and goodwill fell in the share of party no. 3 and 4 Sh. Krishan Kumar and Smt. Kaushal Rani and they became owner of the same. Parties had also separated at the time of family settlement. From the date of family settlement, Sh. Swaran Kumar and Smt. Kamlesh Rani became the owners of the Business J. Jindia, Maler Kotla and Smt. Kaushal Rani and Sh. Krishan Kumar became owner of the shop at Pahar Ganj, New Delhi and the business running therein the details of which have been mentioned above. And CNR: DLCT03-001044-2016 Page 11 of 36 since then the aforesaid businesses are being run separate as owners. Both the parties have full ownership rights including sale, mortgage and all other rights in their respective shares. Parties have not made any written agreement with respect to aforesaid family settlement till date. So that no misunderstanding arises at any point of time, therefore, the parties have thought it necessary to reduce the aforesaid family settlement into writing. Hence, parties with full senses affirm the aforesaid family settlement as correct and parties and their successors will be bound by it. Hence, these few words after listening and understanding the same as correct have been reduced into writing for memory on 16.03.1995. This writing was prepared in duplicate and both the parties have been given one copy each. 16.03.1995.
Witness Swaran Kumar Kamlesh Rani Krishan Kumar Sh. Charan Dass, Party No.1 Party No.2 Party No.3 S/o Sh. Shankar Dass Bhatia, Sign in eng. Sign in eng. Sign in eng. Maler Kotla (Kamlesh Rani (Kaushal Rani Sign in eng. Sign in eng). Sign in eng). Sh. Satpal Sharma, Smt. Kaushal Rani Seal of Sham Lal Gupta S/o Sh. Mela Ram, Party No.4. Sign in eng. R/o Maler Kotla Sign in eng. S.No.295 dated 16.03.1995 Sign in eng. 23) It is pertinent to mention that Sham Lal Gupta had previously expressed his
inability to come and depose in Delhi. In his cross examination, he stated that though he had handed over affidavit with regard to his inability to come and depose in Delhi as he was suffering from Prostrate but at the request of Mr. Kaku Ram, who is the friend of the son of Mr. Krishan Kumar Jindia, he decided to come. However, he denied that he was deposing at the instance of Sh. Krishan Kumar Jindia. In his cross examination he admitted that though did not receive any summon produce the record register but he has brought CNR: DLCT03-001044-2016 Page 12 of 36 the same. He deposed that he had made appropriate entries with respect to the scribing of family settlement in his record register. Copy of the same was exhibited as Ex. DW1/5A. He stated that as per the rules and regulations of Document Writers Act, he is bound to maintain the document writer register which is verified by the DC Office at the time of issuance. When the entries in the register are complete, the same is again verified by the Sub-Registrar. He deposed that he wrote the Ex. PW-1/1-D1 himself and parties did not bring any rough draf but he did not remember who purchased and brought the stamp paper. He deposed that it took about 1½ hours to write Ex. PW-1/1-D1(memorandum of partition) and that he wrote Ex. PW-1/1-D1 twice and prepared two original memorandums of partition. To the query, if he made the entry of the deed twice in his register, he stated that writing charges for both were entered. He, however, admitted that nowhere in his register it was stated that family settlement was made as duplicate.
24) During cross examination, Counsel for plaintiff also enquired from him if there is court holiday on the festival of Dulhandi and Holi at Maler Kotla, Punjab. He answered in affirmative and stated that courts are closed on festival of Dulhandi at Maler Kotla.
Suggestion was put to him by counsel for plaintiff that no family settlement was prepared on 16.03.1995 as the court was closed on the said date due to festival of Dulhandi but he denied the same. He also stated that Hindi translation of Ex. PW-1/1-D1 on record had mistakes in it and therefore, he translated the document in court itself.
25) Thereafter, Counsel for defendant closed the evidence on 11.10.2019. Matter was then notified for final arguments.
26) I have heard the final arguments and perused the material available on record. In a nutshell, I find that the decision of the present suit hinges upon the legitimacy of the family settlement. It is not disputed between the parties that the suit property was originally purchased in the joint name of plaintiff and defendant. If it is proved CNR: DLCT03-001044-2016 Page 13 of 36 that by means of voluntarily entered family settlement, share in suit property was surrendered by the plaintiff, plaintiff's claim fails.
27) Hence, before dealing with the respective contentions of the parties, it is pertinent to refer to the law relating to family settlements in India. In Kale & Ors. Vs. Deputy Director of Consolidation (1976) 3 SCC 119, the Supreme Court observed:
"9......By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus;
"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend."
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A CNR: DLCT03-001044-2016 Page 14 of 36 family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving-its honour.
The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.CNR: DLCT03-001044-2016 Page 15 of 36
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections- to the binding effect of family arrangements".
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:
(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 within the mischief of s. 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 '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 CNR: DLCT03-001044-2016 Page 16 of 36 of such a person and acknowledges him to be the sole 9 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.
12. In Lala Khunni Lal & Ors. v. Kunwar Gobind Krishna Narain and Anr.(1) 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 and others v. Mt. Sohan Bipi.
13. In Sahu Madho Das and others v. Pandit Mukand Ram and another, 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:
CNR: DLCT03-001044-2016 Page 17 of 36"It is well settled that 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."
14. In Ram Charan. Das v. Girjanandini Devi & Ors. (3), this Court observed as follows:
"Courts give effect to a family settlement upon the broad " and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the content is not to be under stood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute..... The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants the settlement CNR: DLCT03-001044-2016 Page 18 of 36 consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter."
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil and others(1) it was pointed out by this Court that a family arrangement could be arrived 4 at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed , to did not require registration. This Court had observed thus:
"Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights f in what properties the parties possess."
16. Similarly in Maturi Pullaiah and Anr. v. Maturi Narasimham and ors.(2) it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court. Similarly it has also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement. In this connection this Court observed as follows: -
"It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a sufficient ground to sustain it. ***** Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which CNR: DLCT03-001044-2016 Page 19 of 36 may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family,enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it."
17. In Krishna Biharilal v. Gulabchand and others, it was pointed out that the word 'family' had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share. The Court then observed:
"To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all , belong to one family. As observed by this Court in Ram Charan Das v. Girjanandini Devi and ors.[1965] 3 SCR 841 at pp. 850 & 851-the word "family" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement see Ramcharan Das's case.
The courts lean strongly in favour of family arrangements to bring about harmony in a family and do Justice to its various members and avoid in anticipation future disputes which might ruin them all."
18. In a recent decision of this Court in S. Shanmugam Pillai and others v. K. Shanmugam Pillai & others,2) the entire case law was discussed and the Court observed as follows:
"If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements.
**** Now turning to the plea of family arrangement, as observed by this Court in Sahu Madho Das and others v Pandit Mukand Ram and Another CNR: DLCT03-001044-2016 Page 20 of 36 [1955] 2 SCR 22 the courts lean strongly 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. As observed in that case the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.
In Maturi Pullaiah and Another v. Maturi Narasimham and Others- AIR 1966 SC 1836 this Court held that although conflict of legal claims in praesenti or in future isgenerally condition for the validity of family arrangements, it is not necessarily so. Even bona fide dispute present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it."
19. Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds.
20. A full bench of the Allahabad High Court in Ramgopal v. Tulshi Ram and another(1) has also taken the view that a family arrangement could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary. In this connection the full bench adumbrated the following propositions in answering the reference:
" We would, therefore return the reference with a statement of the following general propositions:
With reference to the first question:
(1) A family arrangement can be made orally.CNR: DLCT03-001044-2016 Page 21 of 36
(2) If made orally, there being no document, no question of registration arises.
With reference to the second question:
(3) If though it could have been made orally, it was in fact reduced to the form of a "document", registration (when the value is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced to the form of a document"
is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a document", registration was not necessary (even though the value is Rs. 100 or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct. (6) If the terms were "reduced to the form of a document" and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document."
21. Similarly in Sitala Baksh Singh and others v. Jang Bahadur Singh and other (1) it was held that where a Revenue Court merely gave effect to the compromise, the order of the Revenue Court did not require registration. In this connection the following observations ' were made:
"In view of this statement in para 5 of the plaint it is hardly open to the plaintiffs now to urge that Ex. 1, the com promise, required registration when they themselves admit that it was embodied in an order of the Revenue Court and that it was given effect to by the Revenue Court ordering mutation in accordance with the terms of the compromise. **** We hold that as the Revenue Court by its proceeding gave effect to this compromise, the proceedings and orders of the Revenue Court did not require registration."CNR: DLCT03-001044-2016 Page 22 of 36
Similarly in a later decision of the same Court in Mst. Kalawati v. Sri Krlshna Prasad and others it was observed as follows:
"Applying this meaning to the facts of the present case, it seems to us that the order of the mutation court merely stated the fact of the compromise having been arrived at between the parties and did not amount to a declaration of will. The order itself did not cause a change of legal relation to the property and therefore it did not declare any right in the property."
22. The same view was taken in Bakhtawar v. Sunder Lal and others(3), where Lindsay, J., speaking for the Division Bench observed as follows:
"It is reasonable to assume that there was a bona fide dispute between the parties which was eventually composed each party recognizing an antecedent title in the other. I this view of the circumstances I am of opinion that there was no necessity to have this petition registered. It does not in my opinion purpose to create, assign, limit, extinguish or declare within the meaning of these expressions as used in S. 17(1)(b) of the Registration Act. It is merely a recital of fact by which the Court is informed that the parties have come to an arrangement."
23. Similarly the Patna High Court in Awadh Narain Singh and others v. Narain Mishra and others(4) pointed out that a compromise petition not embodying any terms of agreement but merely conveying in formation to the Court that family arrangement had already been arrived at between the parties did not require registration and can be looked into for ascertaining the terms of family arrangement. This is what actually seems to have happened in the present case when the mutation petition was made before the Assistant Commissioner.
24. This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same......"
CNR: DLCT03-001044-2016 Page 23 of 3628) In the light of the decisions indicated above, we shall now try to apply the principles laid down by the Apex Court and the other Courts to the facts of the present case. Ex. PW1/D1 is memorandum of family partition relied upon by the defendant to prove factum of partition and surrender of share by the plaintiff. During the course of final arguments, both the counsels submitted at bar that they have no objection to the English translation of the document as done by the witness Sham Lal Gupta and the same be considered as the correct version of the document relied upon by the defendant.
29) The onus to prove that there was family settlement between the parties with respect to the suit property is on the defendant as the said fact has been asserted by her. In order to prove the said fact, she has deposed on oath that both the families in presence of eminent witnesses entered into a family settlement wherein it was agreed amicably that husband of the plaintiff Swaran Jindia would take care of business at native place and surrender the share in the suit property and in lieu of that she and her Husband Krishan Kumar, surrendered the share in the business at native place. For proving the factum of partition, she has relied upon Ex. PW1/D1. Perusal of english transalation of Ex. PW1/D1 shows that two months prior to purported execution of said memorandum of partition, a family settlement was entered into between the two brothers along with their wives wherein the partition of property took place. Thereafter the terms were reduced into writing at Kacheri in Maler Kotla for the purpose of memory and signatures were appended by all concerned in witness of reputed personalities of native place. Accordingly, ownership in property was surrendered and partnership was dissolved by virtue of settlement. Defendant further deposed since then i.e. from year 1995 both the families neither maintained family nor business relations. Her version is also corroborated by Sh. Charanjit Bhatia who was examined as DW2. He deposed that for effecting the settlement a meeting took place at the house of Krishan Kumar wherein terms were agreed. Thereafter, written family settlement was prepared wherein terms of settlement were mentioned. Therein it was mutually agreed by the plaintiff that she and her family would CNR: DLCT03-001044-2016 Page 24 of 36 retain control of the shop at Maler Kotla and defendant and her husband would retain control of the shop at Delhi. He further deposed that he personally witnessed the family settlement and, in his presence, signatures were appended on the said family settlement Ex PW1/D1 by the plaintiff, her husband, defendant and her husband. But he could not recall the exact the date or month when family settlement took place It is pertinent to note DW2 is also known to the plaintiff as admitted by the plaintiff himself. He then stated that the family settlement was written at Kachahri (Court) in Maler Kotla by Sh. Shyam Lal Gupta by hand and the family settlement was dictated by both brothers. He identified the signatures of all the parties on Ex PW1/D1. He also admitted his signature on the family settlement and stated that he had not read the family settlement but afterwards both brothers told him about the settlement and then he signed as a witness. Barring minor contradictions and improvements between his testimony and that of defendant, version of the defendant is duly corroborated by DW2. As per him, dictation of the terms was given by both the brothers, whereas defendant deposed that it was Swaran Jindia who dictated the terms. The said contradiction is immaterial as both the plaintiff and her husband did not deny their signatures on the said document. In her cross examination on being confronted with family settlement Ex PW1/D1, plaintiff recognised the signatures at point A to be hers. Though she denied entering into any family settlement and tried to wriggle out of said admission, but her explanation appears to be more of an afterthought. She stated that in the year, 1995 she had undergone hysterectomy and at that time, husband of the defendant had procured her signatures on certain documents, stating that the same were required for presentation in certain business-related transactions. She submitted that she signed those documents without perusing the same and going through the contents of the same. Her version is contradicted by the testimony of her husband itself. Though he too denied entering into any family settlement but in his cross examination he admitted his signatures at points A, B and C on Ex PW1/D1 were his. It is also pertinent to note that plaintiff states that she did not read the contents of the papers before affixing her signatures on the Ex. PW1/D1 but her husband deposed that he had signed on blank papers.
CNR: DLCT03-001044-2016 Page 25 of 3630) Thus, both plaintiff and her husband have admitted their signatures on the document Ex PW1/D1 though they deny the contents of the same. In these circumstances, burden of showing that signatures on Ex. PW1/D1 was taken under misrepresentation was on the plaintiff. Section 91 and 92 of the Indian Evidence Act, 1872 prohibits the admission of oral evidence to prove the subject of a document. They read as under:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents--
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
Exception 1. --When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.--Wills [admitted to probate in [India]] may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation. 2.--Where there are more originals than one, one original only need be proved.
Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
CNR: DLCT03-001044-2016 Page 26 of 3692. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso(1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law:
Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3)--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:
Proviso (4)--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5)--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract: Proviso (6)--Any fact may be proved which shows in what manner the language of a document is related to existing facts.CNR: DLCT03-001044-2016 Page 27 of 36
31) In the present case, the plaintiff and her husband have not denied their signatures on Ex PW1/D1. Hence by virtue of 'best evidence rule' embodied in Section 91 and 92 of the Indian Evidence Act, plaintiff is prohibited from contradicting the terms of said memorandum of partition. Though proviso (1) to section 92 of Evidence Act, permits the plaintiff to prove facts invalidating Ex PW1/D1, however, other than merely denying the family arrangement, nothing has been brought on record by the plaintiff to support the version. Rather, it seems plaintiff wishes to reopen the matter already settled by consent between the parties. On the other hand, defendant's version is supported by the attesting witness DW2 as well as the deed writer Sham Lal Gupta. Plaintiff also admitted in her cross examination that she knew Sham Lal Gupta. Thus, he is not an unknown deed writer but one known to both parties. Sham Lal Gupta also produced the record register Ex.
DW1/5A maintained by him in compliance of rules and regulations of Document Writers Act. The relevant entries with respect to the scribing of Memorandum of Partition have also been made in the same. He deposed that it took about 1½ hours to write Ex. PW-1/1- D1(memorandum of partition) and that he wrote Ex. PW-1/1-D1 twice and prepared two original memorandums of partition. Thus, he corroborated the version of the defendant. Here, it is also relevant to mention that during arguments on application under interim injunction, stand taken by the Plaintiff was that the purported memorandum of partition was not signed under free will and was the result of mis-representation. But no such misrepresentation was pleaded or deposed in examination in chief. Rather the said plea is more of an afterthought and untenable.
32) From a review of the decisions analysed above, it is clear that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re- opened by the parties to the agreement on frivolous or untenable grounds. During cross examination of Sham Lal Gupta, another such contention was raised by the Counsel for CNR: DLCT03-001044-2016 Page 28 of 36 Plaintiff to challenge the Memorandum of partition. It was alleged by the Counsel for Plaintiff the Ex PW1/D1, purportedly executed on 16.03.1995, was a sham document, as the festival of Dulhendi fell on 16.03.1995 and courts at Maler Kotla were closed on the said date. It is pertinent to note that the said objection was taken for the first time at the time of cross examination of Sham Lal Gupta. No pleadings have been made in this respect by the Plaintiff and said objection is beyond pleadings. However, ignoring the said aspect, it is pertinent to mention that Court Calendar of Punjab for the said year was not produced. Court Calendar of Delhi for said year for shown at the time of final arguments. However, in the absence of Court calendar of Punjab, it cannot be said for certain that District Courts at Maler Kotla were closed on the said date as it is matter of common knowledge that there is difference in local holidays of District Courts of different states. Even otherwise, Sham Lal Gupta deposed that he even works on Court holidays. Thus, the said objection also does not hold any merit.
33) A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving-its honour. The family arrangement in the present case can also be implied from a long course of dealing between the plaintiff and the defendant herein. Plaintiff admitted that she has never received any share in the profits generated by the shop being run at the suit property. Though in the plaint she claimed that she used to frequently visit the suit property to look after the business, however, she was also unable to recall the particulars of the other shops situated adjacent to/in vicinity of the shop in question in cross examination. From this, it can be fairly inferred that plaintiff has not visited the suit property in long time. Further, it is also clear that the partnership between the parties stood dissolved and plaintiff had no interest in the suit property. She admitted she was not receiving any share in the profits from the suit property. Thus, the conduct of the plaintiff clearly implies that for long time she was acting upon the family arrangement. Further, it is not disputed that no share in CNR: DLCT03-001044-2016 Page 29 of 36 profits was being to the defendant or her husband from the business at Maler Kotla. The two families, therefore, were acting separate and maintaining independent business in pursuance of the family arrangement. Such conduct would act as a estoppel against the Plaintiff from reopening the family settlement.
34) In these circumstances, it is clearly established that there was a family settlement between the parties vide which plaintiff and her husband surrendered their share in the suit property in favour of defendant and similarly, defendant and her husband surrendered their share in the business at Maler Kotla in favour of plaintiff and her husband. The said arrangement was thereafter reduced into a memorandum Ex. PW1/D1 to which both the parties affixed their signatures in the presence of witnesses.
35) In light of above observations and findings with respect to family arrangement between the plaintiff and defendant, my issue wise findings are as under.
ISSUE NO I Whether the plaintiff is entitled to a decree of partition of suit shop as prayed for? OPP
36) The onus to prove this issue was on the plaintiff. However, as discussed above, she has already surrendered her share in the suit property vide family settlement. Plaintiff and defendant are related to each other through their husbands who are brothers. Thus, plaintiff and defendant belong to a 'family' and are capable of entering into a family settlement. It is not in dispute that both had antecedent title in the suit property as it was originally purchased jointly in their names. Further, a bona fide dispute, in order to maintain peace and harmony, amongst the family was resolved through the impugned family arrangement. Plaintiff and her husband took over running business at Maler Kotla and defendant and her husband took over the shop at Delhi (suit property). The said arrangement was made orally and hence no registration was necessary. For the purpose of memory, the said arrangement was reduced into a Memorandum on Partition Ex. PW1/D1 CNR: DLCT03-001044-2016 Page 30 of 36 on which plaintiff and her husband have not disputed their signatures. Once a document has been proved, Section 91 and 92 of Evidence prohibits oral evidence of the terms of contents of such document. Perusal of terms of Ex. PW1/D1 shows clearly that it was made for the purpose of memory only and partition had taken place, two months prior to that. Hence, no registration was compulsory. Even otherwise, plaintiff has not pressed any objection with respect to its registration.
37) Recently, the apex court in the case titled as Subraya M. N Vs. Vittala M. N, (2016) 4 SCC (Civ) 163, observed that unregistered family settlement even though barred by Sections 17 and 49 of the Registration Act can be used as corroborative piece of evidence for showing or explaining the conduct of parties. In the said case, family arrangement though required to be registered was unregistered. Yet the same was looked into as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in the family properties.
38) Facts of the present case are similar to the above case. Even though no objection as to registration has been taken, but if for the sake of arguments, it is assumed that Ex PW1/D1 is required to be compulsorily registered, still Ex. PW1/D1 can be looked into as a corroborative piece of evidence. Ex. PW1/D1 in conjunction with other circumstances inter-alia including non-denial of signatures by Plaintiff and her husband on Ex.PW1/D1, testimony of attesting witness DW2 and deed writer Sham Lal Gupta, do clearly establish the factum of family settlement. Consequential conduct of plaintiff showing no interest in the suit property till the filing of present suit, no knowledge of business at Delhi and no demand of share in its profits show adoption of family arrangement and conduct in pursuance of it.
CNR: DLCT03-001044-2016 Page 31 of 3639) Accordingly, in view of the family settlement, plaintiff is not entitled to the relief of partition. Hence, Issue no. I is decided against the plaintiff and in favour of defendant.
ISSUE NO II Whether the plaintiff is entitled for permanent and mandatory injunction as prayed for? OPP
40) The onus to prove this issue was on the plaintiff. In order to be entitled to the relief of injunction, plaintiff must show legal right in the suit property as well as injunction is the appropriate remedy in the present case. However, in view of the family arrangement, she has already surrendered her share in the suit property. Hence, she has no right, title or interest in the suit property. Accordingly, plaintiff is not entitled to the relief of the injunction.
Issue no II is therefore decided against the plaintiff.
ISSUE NO III Whether the plaintiff has entered into the family settlement under misrepresentation? OPP
41) The onus to prove the said issue was on the Plaintiff. The said issue was framed in view of objections taken by the Counsel for plaintiff during arguments on the interim injunction wherein it was argued that the family settlement propounded by the defendant was not signed by Plaintiff under free will and was the result of mis-representation. But no such fact was mentioned in replication. Rather, Plaintiff denied entering into any family settlement in the replication. Here, I also find it relevant to mention that neither any evidence was led to establish the misrepresentation nor any arguments were advanced in this aspect. It was simply submitted that no such settlement was ever there and the document has been produced out of thin air. Further, no deposition in examination in chief was made by the plaintiff or her husband regarding any misrepresentation. Only in cross examination, story of signatures being obtained on blank papers was brought out which seems to be an afterthought. The plaintiff and her husband did not deny their signatures CNR: DLCT03-001044-2016 Page 32 of 36 on the memorandum of partition Ex PW1/D1. In these circumstances, a bare denial in the absence of any pleadings in this respect and any evidence being led is insufficient to support the case of plaintiff.
42) Accordingly, the issue remained unproved. ISSUE NO IV
Whether the suit of the plaintiff is barred by law of limitation? OPD
43) The onus to prove this issue was on the defendant. The present suit for partition and injunction has been filed in 2016. Counsel for defendant has argued that since by virtue of family arrangement, plaintiff had already surrendered her share in the suit property in 1995, the present suit is barred by limitation act being beyond 12 years the date of family arrangement. Defendant has already proved the family arrangement whereby plaintiff surrendered her share in 1995. No interest was being claimed by the plaintiff in the suit property since then. She is admittedly not in physical possession of the suit property. Though she claims to be in de jure possession by virtue of partnership business being run in the suit property, but fails to prove the said claim. Plaintiff herself admitted that she has never received any share in the said partnership business nor any claim has been ever filed by her in this respect. She also could not recall particulars of any shop in the vicinity of suit property. Therefore, it is clear that since 1995, plaintiff in pursuance of the family settlement, she had no relation with the suit property or the business being run the said shop.
44) Signatures on Ex.PW1/D1 have also been admitted by the plaintiff and therefore, since 1995 plaintiff was having knowledge of the said family settlement. Even if it is assumed for the sake of arguments, that she was not aware about the said settlement being the result of misrepresentation or fraud and consequently the limitation would not start to run, the onus was on plaintiff to plead and prove the particulars of misrepresentation, date CNR: DLCT03-001044-2016 Page 33 of 36 of knowledge of such misrepresentation etc. But no such fact has been pleaded or proved and limitation would run from 1995. Hence, present suit filed in 2016 would be barred by limitation.
Accordingly, Issue no IV is decided in favour of defendant.
ISSUE NO V. Whether the suit of the plaintiff has not been properly valued for the purpose of court fees? OPD
45) The onus to prove this issue was on the defendant. Defendant pleaded that the suit property has not been properly valued for the purpose of court fees. Plaintiff has sought partition and possession of the suit property. The suit property is a shop in Delhi which was purchased in 1991 for Rs. 50,000/-. The plaintiff has valued the relief of possession at Rs. 25,000 being half the value of the purchase price (Rs 50,000/-). Ad valorem court fees has been paid as plaintiff seeks the relief of possession which also implies thereby that she is not in possession of suit property. Judicial notice can be taken of the fact that real estate prices in Delhi have skyrocketed since 1991. Therefore, it is inconceivable that the market value of suit property has remained the same since then. By no stretch of imagination, it can be said that the market value of the suit property, which is a commercial property of ground floor, without terrace right, measuring 200 sq. feet situated at Chowk Sangtrashan, Paharganj, New Delhi in the year 2016 (year of filing) is the same as that in 1991 i.e. Rs 50,000 only. Therefore, the relief of possession has been undervalued and proper court fees has not been paid by the plaintiff.
Accordingly, this issue is decided in favour of the defendant and against the Plaintiff.
ISSUE NO VI Whether the plaintiff has concealed the material facts regarding the family settlement? If yes, whether concealment is material and its effects. OPD CNR: DLCT03-001044-2016 Page 34 of 36
46) The onus to prove the said issue was on the defendant. Defendant has pleaded that the plaintiff has not come to court with clean hands and has concealed material facts i.e. the factum of family settlement. Counsel for Defendant argued that a false claim has been raised by the plaintiff. Despite receiving the share in terms of family settlement, plaintiff is trying to reopen the said settlement on frivolous grounds. Counsel for defendant argued that plaintiff has intentionally misled the court and deliberately the family settlement was concealed.
47) Perusal of record shows that on the one hand plaintiff pleaded that no family settlement was ever entered into and on the other pleaded that family settlement was the result of misrepresentation. Thereafter, during cross examination, theory of signing of blank papers was propounded though no such averment was made in Pleadings. It is also pertinent to note that even in examination in chief, neither plaintiff nor her husband deposed these facts. Thus, through clever drafting, inconsistent pleas have been propounded by the Plaintiff. It is also pertinent to refer to submissions of the Counsel for Plaintiff advanced while deciding the application for interim injunction. In para 13 of order dated 06.09.2016, Ld. Predecessor of this court has specifically noted that the submissions of counsel for plaintiff with respect to the family settlement. Counsel for Plaintiff had submitted that the family settlement was not executed by the Plaintiff under free will and was the result of mis-representation. This implies that plaintiff had knowledge about the said settlement. Yet the said fact was not pleaded. Particulars of alleged misrepresentation which affected the free will of the Plaintiff were also not pleaded. The sole motive which can be inferred from such conduct of the plaintiff is the desire to wriggle out of family arrangement. However, this is not permissible as she is estopped from doing so after acting in pursuance of the family settlement. This is no longer res integra as in catena of decisions it has been held that re-opening of family settlement on frivolous grounds is not permissible.
CNR: DLCT03-001044-2016 Page 35 of 3648) Here, I also find it relevant to mention that during arguments, it was also submitted by the Counsel for Plaintiff that the terms of Family settlement as purported by the defendant are not favourable to plaintiff and she could not have entered into such an arrangement. It was submitted that plaintiff could not have surrendered ownership in suit property for the business at Maler Kotla as the shop in which business was being run at Maler Kotla was on rent whereas in the suit property, plaintiff had title in immoveable property. However, the said argument is devoid of merit. A family arrangement cannot be equated to a commercial contract. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants, the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter. Moreover, even if, the said arrangement is looked at from the perspective of contractual law, it is not for the Courts to look at the adequacy of consideration.
49) In theses circumstances, I find that the Plaintiff has deliberately concealed material facts about the present dispute and not come to the court with clean hands. Such concealment, hence, disentitles the plaintiff from any relief.
Accordingly, Issue no VI is decided in favour of the defendant.
RELIEF
50) In view of aforesaid discussion and findings, the suit of the plaintiff stands dismissed. Cost of the suit are awarded to the defendant. Decree sheet be prepared accordingly.
51) File be consigned to record room after due compliance.
RUPINDER Digitally signed by
RUPINDER SINGH
SINGH DHIMAN
Date: 2020.07.29 16:45:58
DHIMAN +05'30'
(Rupinder Singh Dhiman)
Civil Judge -06 (Central)/THC
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