Punjab-Haryana High Court
Smt. Sunehri Devi vs Pritam Singh And Ors. on 29 November, 2005
Equivalent citations: (2006)143PLR397, AIR 2006 (NOC) 841 (P&H) = (2006) 2 REC CIV R 1(2)
JUDGMENT M.M. Kumar, J.
1. This is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging the view taken by the learned Lower Appellate Court holding that the consent decree dated 18.4.1988 suffered by her, had not been procured by fraud. The trial Court on the aforementioned issue has also recorded identical findings and to the extent of issue of fraud, the findings are concurrent by both the Courts. It has been held by both the Courts below that there was no evidence on the file to prove that the plaintiff-appellant Smt. Sunheri Devi did not appear in the Court or she had not thumb marked the written statement or the other documents which resulted into passing of consent decree. The learned Lower Appellate Court has rightly placed reliance on a judgment of Supreme Court in the case of Union of India v. Chatarbhai M. Patel and Company , wherein it has been held that any plea of fraud either in civil or in criminal proceedings must be established like any other charge beyond a reasonable doubt. It has also been held that suspicion cannot even take the place of proof. Same view has been taken by the Supreme Court in the case of Kale v. Dy. Director Consolidation .
2. The plea of the plaintiff-appellant that she did not ever appear before the trial Court to suffer the consent decree dated 18.4.1988 has been rejected by both the Courts below. Both the Courts below have discarded the opinions of the Handwriting Experts produced by the respective parties because the Experts have deposed in support of the cases of their respective parties and have submitted contradictory reports. In such a situation the Courts below have to fall back upon the other evidence available on record. The plea of fraud raised by the plaintiff-appellant has been repelled by the statement made by Shri Sahab Singh Saini, Advocate District Court, Kurukshetra, who has appeared as DW-3 and has categorically stated about drafting of written statement on behalf of the plaintiff-appellant. He has also identified the thumb impression on the written statement as well as on the power of attorney. He went on to depose that plaintiff-appellant Sunheri Devi and others had appeared in the Court to make a statement and they had affixed their thumb impressions on those statements, recorded in the Court. It is also pertinent to mention that even otherwise, under Section 80 of the Evidence Act, 1872 there is presumption in favour of any part of the evidence given by a witness in a judicial proceeding. Therefore, the ground of fraud has been rightly repelled by both the Courts below.
3. The learned trial Court has set aside the consent decree dated 18.4.1988 solely on the ground of non-registration, as contemplated by Section 17(2) of the Registration Act, 1908. However, the findings have been reversed by the learned Lower Appellate Court by observing that in para No. 3 of the plaint, filed in the earlier civil suit, which resulted into passing of the consent decree, the following averments were made - .
19..."that a dispute arose between the parties regarding the suit land to avoid the daily disputes, the parties entered into family settlement on 12.6.1986 and in that family settlement, the land mentioned in para No. l of the plaint fell to the share of the plaintiff in equal shares and possession of the same was also handed over to the plaintiffs on the same day in pursuance of the family settlement....
4. The learned Lower Appellate Court, placing reliance on a judgment of Supreme Court in the case of Kale and Ors. (supra) has emphasized the object of family settlement. The observation of the Supreme Court in Kale's case (supra) reads as under:
The object of the agreement 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 on egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unit 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 family arrangement by which the property is equitably divided between the various contenders so as to achieve on equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration 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 of even if they have a spes succession is 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 the larger interest of the country.
The aforementioned view becomes more pronounced from the reading of judgment of the Supreme Court in the case of Ram Charan Doss v. Girija Nandini Devi . According to the Supreme Court a family settlement cannot be discarded merely on the ground that there were no pre-existing rights or there were no relationship entitling a party to assert the right of succession. It has been observed in paras 10 and 11 that a semblance of relationship say love and affection is sufficient to sustain a family settlement. It has further been observed that if such a family settlement has been acted upon and a consent decree or a writing based thereon has been executed then it cannot be ignored for want of registration as contemplated by Section 17(2) of the Registration Act, 1908.
5. Mr. Pritam Saini, learned Counsel for the petitioner has placed reliance on a judgment of this Court in the case of Brij Lal v. Smt. Part Devi and argued that such a decree would require registration as the family settlement could not be entered into with a stranger. Learned Counsel has emphasized that the view taken by the trial Court deserves to be upheld and that of the lower appellate Court must be set aside on that count.
6. Having heard the arguments of the learned Counsel and perusing the judgments of both the Courts below, I am of the considered view that this appeal does not merit admission in exercise of jurisdiction vested in this Court under Section 100 of the Code because no question of law has been raised. In the present case Smt. Snehari Devi is found to have suffered a judgment and decree dated 18.4.1988 in favour of her brothers in Civil Suit No. 125 of 1988. The aforementioned civil suit was filed with the object of settling every day dispute that had arisen between the parties in respect of suit land as is evident from para 19 of the plaint. In the written statement filed by the plaintiff-appellant the aforementioned factual position was not disputed and the decree was suffered. It is also evident that the dispute was settled about two years before the filing of the suit in a family settlement dated 12.6.1986 and the consent decree was merely manifestation of already settled disputes. There was no document of family settlement in writing which could be registered under Section 17(2) of the Registration Act, 1908. Therefore, the consent decree was in the nature of memorandum of past events and it would not require registration in any case as has been held in the case of Ram Charan Dass (supra) and Kale's case (supra). Therefore, there is no merit in this appeal.
7. The judgment of this Court in Brij Lal's case (supra) on which reliance has been placed by the learned Counsel for the appellant, does not require any serious consideration in view of the fact that there the family partition was entered with a total stranger which was held not to create any existing right. There was not even semblance of relationship and therefore registration under Section 17(2) of the collusive decree based on such family partition was held to be compulsory. The aforementioned judgment is distinguishable from the facts of the present case and therefore, it has no application because in the instant case the parties are sisters and brothers.
8. Thus, it is evident that as long as family settlement is a bona fide one so as to resolve family disputes and rival claims, then no registration would be necessary.
9. Before parting, it would be necessary to say a word about the conflicting Expert reports which have become order of the day. In common law country like England, Expert Witness Institute has been opened in order to curb the menance of circumventing the scientific basis of expert evidence by creating a unified system of trained experts and offering them to the parties to choose anyone of them by consensus. Lord Woolf has addressed the aforementioned problem in various judgments and had offered some solution which can be a source of guidance for the Courts in this Country. To illustrate it would be appropriate to cite the judgment of the Court of Appeal in the case of Field v. Leeds City Council (2002)17 E.G. 165. In that case a tenant had made a claim against a local authority for disrepair and alleged resulting personal injuries. The main issue between the parties was whether the disrepair was caused by rising damp or condensation. On the direction made by the District Judge, an independent survey report was required to be obtained by the counsel. The council wanted to use one of its employees (Mr. Broadbent) as an Expert who had inspected premises when the initial problems with the accommodation had arisen. Such an employee was unacceptable as an Expert as he was working in the council. The Court of Appeal had to consider the issue whether under the Civil Procedure Rules it was appropriate for a party to call an Expert who was its employee. The Court of Appeal did not agree in the manner the District Judge had dealt with the matter. Accordingly, it was held that the District Judge should have indicated that on the information received with regard to the employee the District Judge could not assent to accept him as a witness. He could have then left it to the council to satisfy him subsequently, that Mr. Broadbent was capable of giving this evidence. If the counsel wished to use a witness such as Mr. Broadbent, it was important that they show that he had full knowledge of the requirements of an expert to give evidence before the Court and that he was fully familiar with the need for maintaining objectivity. It was recommended that in similar cases the authority concerned should provide some training for an employed person whom they wished to use as an expert. The authority concerned could then point to this training to show that such an employee had acquired the necessary awareness of the difficult role of an expert. Lord Woolf M.R., speaking for the Court of Appeal went on to make some comments which are of more general nature and relevant for these jurisdictions and the same reads as under:
22. Before I leave this case, I think it is right to say something of a more general nature. These cases have financial implications on local authorities and to the tenants which should not be ignored. The amounts which are in issue can be relatively small. Anything which reduces that expense is to be warmly welcomed. The ideal way of disposing of issues such as that which arise in this case, is for one expert to be appointed by both sides. Clearly, someone in Mr. Broadbent's position is not going to be acceptable by the other side. I would hope that procedures will be devised where claimants in cases such as this intend to engage so that the view of the authority can be taken into account. That could lead to single experts being appointed much more often than has happened in the past which is ideally to be desired.
23. I was at one time minded to try and given general directions as to how the parties in this situation should behave prior to litigation. I had indicated in my Access to Justice report the desirability of a protocol being established to deal with these claims. I pointed out that those who are involved in this area of litigation, both for tenants and authorities, had already at the time of my final report made considerable progress. But, alas, the hoped for protocol being has not yet been agreed. I was concerned as to whether it would ever be agreed, albeit that it was very much in the public interest that it should. However, Mr. Luba told me of more promising developments which have recently taken place. Those developments need time to reach fruition. It seems to me preferable that they should have that time and reach a protocol by agreement rather than have one imposed by the Court. I, therefore, do not propose to make any more remarks of a general nature in this case. I hope that it will not be necessary for me to return to this subject in a later case.
(italics added) In order to overcome the difficulties of expert evidence in this country, it would be profitable to establish unified system of experts who should be chosen by consensus of the parties so that such an expert after proper training may make proper use of his skill without stressing the principles governing the area of expertise. Such a need is imperative if we keep in view the huge area which the experts cover by using their scientific skill in medical profession, DNA, handwriting and finger printing and many others. A unified system of expertise would advance the object of administration of justice which is the basic gamut of every society based on rule of law.
For the reasons aforementioned this appeal fails and the same is dismissed.