Delhi District Court
Parveen Kumar Tanwar vs Gurucharan Anr on 20 May, 2025
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
RCA DJ No. 5218/16
IN THE MATTER OF:
Parveen Kumar Tanwar,
S/o Late Sh. Jai Singh,
R/o WZ-86, Naraina Vill.,
Ring Road, New Delhi.
Presently at:
9-B/8, N.P.L Colony,
New Rajender Nagar,
New Delhi. ......Appellant
Vs.
1. Gurucharan
S/o late Banwari Lal,
R/o WZ-41B, Vill. Naraina,
Ring Road, New Delhi-28.
2. Swamicharan
S/o Late Banwari Lal,
R/o WZ-41C, Vill. Naraina,
Ring Road, New Delhi-28. ...Respondents
Date of Institution: 21.12.2015
Date of Arguments: 26.03.2025
Date of Judgment: 20.05.2025
JUDGMENT
1. The appellant/plaintiff has filed the present appeal u/s. 96 CPC challenging the judgment and decree dated 06.11.2015 passed by the Ld. Civil Judge-05, Central District, Tis Hazari Courts, Delhi in Suit No.595/2014, whereby the suit of the appellant/plaintiff for possession of property bearing no.WZ/86, Village Naraina, New Delhi RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 1 of 50 ('suit property') and damages/mesne profits and permanent injunction was dismissed.
APPELLANT'S/PLAINTIFF'S CASE IN THE SUIT
2. The case of the plaintiff/appellant as pleaded in the plaint before the Ld. Trial Court, in a nutshell, was as follows. The plaintiff is the adopted son of late Sh. Jai Singh. The plaintiff was born on 08.10.1979. The biological father of the plaintiff i.e. Sh. Surender Kumar was the brother of late Sh. Jai Singh. The defendants are also the brothers of late Sh. Jai Singh and Sh. Surender Kumar, and as such they are the paternal uncles of the plaintiff. Late Sh. Jai Singh adopted the plaintiff vide a registered adoption deed dated 19.04.1988 when the plaintiff was a minor. As per a family settlement, the two defendants as well as Sh. Surender Kumar got shares in the joint family property bearing no.WZ-41, Village Naraina, New Delhi-28, whereas late Sh. Jai Singh got the property bearing no.WZ/86, Village Naraina, New Delhi, which is the suit property. Late Sh. Jai Singh died in a road accident on 24.12.1997. After the plaintiff's adoptive father i.e. late Sh. Jai Singh died, the plaintiff became owner of the suit property by way of the law of inheritance. A family settlement was also executed on 20.03.1998 in writing between the plaintiff, the two defendants and Sh. Surender Kumar which bore the signatures of the parties and was got attested before the notary public. As per the family settlement, the plaintiff was owner of the suit property, whereas the two defendants and Sh. Surender Kumar had RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 2 of 50 their shares in the joint family property bearing no.WZ-41, Village Naraina. The plaintiff was living alone in the suit property, however, the plaintiff was in the suit property only in the day time and in the night, the plaintiff generally used to stay in the university hostel. On 21.06.2001, in the night, when the plaintiff was not at home in the suit property, the defendants along with four to five persons forcibly and illegally occupied the suit property and the belongings of the plaintiff kept therein were thrown out by the defendants and the defendants put their locks on the suit property. On the next day, when the plaintiff reached the suit property and found the house locked and the plaintiff confirmed about the matter and approached the defendants, the defendants openly threatened the plaintiff. The plaintiff also put his lock on the main door and since then, both the locks are there on the main gate of the suit property. The plaintiff approached the police and lodged a complaint but to no avail. The plaintiff asked the defendants several times to deliver the physical and vacant possession, but the defendants failed to give possession. On this basis, the plaintiff filed the suit seeking possession of the suit property being the property bearing no.WZ-86, Village Naraina, New Delhi-28 along with mesne profits and damages as well as for permanent injunction against the defendants in relation to the suit property.
DEFENDANTS'/RESPONDENTS' CASE IN THE SUIT
3. The defendants/respondents filed their written statement in the suit and sought dismissal of the suit. The defence of RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 3 of 50 the defendants as raised in the suit is summarised as follows. Late Sh. Banwari Lal, father of the defendants, was absolute owner of the suit property i.e. the property bearing no.WZ-86, Village Naraina, New Delhi-28, and after his death on 13.02.1995, the plaintiff is having only part share in the suit property. It is denied that the plaintiff was the absolute owner of the suit property. It is further denied that there was any family settlement as alleged by the plaintiff. It is stated that no settlement as alleged by the plaintiff had been made. It is stated that no settlement had been executed between the parties. It is further stated that the defendant had not signed any alleged settlement and if there were any signatures of the defendants, the same were forged and fabricated. It is further stated that the property bearing no. WZ-41, Naraina Village, New Delhi was absolutely owned/possessed by the defendant no.1 and thereafter, the defendant no.1 gave portion of the said property to his brothers being the defendant no.2 and another younger brother Sh. Surender Kumar Tanwar. It is further stated that the defendants were in possession of the suit property after the death of the mother of the defendants, and that the suit property was not in a habitable condition, but the plaintiff with the mala fide intention to grab the whole suit property in which he only had a share had resorted to forcibly take possession by putting lock over the main gate and filing false and frivolous complaints against the defendants to the police authorities. On this basis, the defendants sought the dismissal of the suit.
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 4 of 50 ISSUES FRAMED IN THE SUIT
4. The following issues were framed in the suit:
1) Whether the plaintiff is entitled to get a decree of possession against the defendant as prayed? OPP
2) Whether the plaintiff is entitled to get a decree of pendente lite, mesne profits and damages against the defendant till the actual delivery of the possession of the suit property? OPP
3) Whether the plaintiff is entitled to get a decree of permanent injunction against the defendant as prayed for? OPP
4) Whether the suit is liable to be dismissed for misjoinder and non joinder of the necessary parties?
OPD
5) Whether there is no cause of action in favour of the plaintiff and against the defendant? OPD
6) Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD
7) Relief
5. Both sides led their respective evidence, both oral as well as documentary, before the Ld. Trial Court.
IMPUGNED JUDGMENT RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 5 of 50
6. Vide the impugned judgment and decree, the Ld. Trial Court decided the Issues Nos. 4, 5 and 6 in favour of the appellant/plaintiff and against the respondents/defendants. However, the Issues Nos. 1, 2 and 3 were decided against the appellant/plaintiff, and hence, the suit came to be dismissed.
7. Before the Ld. Trial Court, the case of the plaintiff/appellant was squarely based on the family settlement which was alleged by the plaintiff and the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A which was stated to have been executed in writing between the plaintiff, the defendants and Sh. Surender Kumar. The Ld. Trial Court did not go into the question whether the family settlement was proved, but held that even if for the sake of argument the settlement deed dated 20.03.1998 was admitted to be executed between the parties, the same amounted to partition between the parties by metes and bounds and, since the settlement deed was unregistered, it could not be read in evidence. Thus, it was held that the settlement deed dated 20.03.1998 was inadmissible in evidence being an unregistered document. It was further held that the plaintiff had also failed to prove that he was in settled possession of the suit property. On this basis, the suit of the plaintiff/appellant came to be dismissed vide the impugned judgment dated 06.11.2015.
8. Being aggrieved by the impugned judgment dated 06.11.2015, the appellant/plaintiff has filed the present appeal.
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 6 of 50 APPELLANT'S SUBMISSIONS
9. Ld. counsel for the appellant/plaintiff has referred to the Trial Court Record and has submitted that the Ld. Trial Court has not properly appreciated the evidence on record and has come to a perverse finding in dismissing the suit. It is submitted that the impugned judgment is unsustainable both in law and on facts. It is submitted that, on the basis of the evidence led, the plaintiff has been able to prove that he was the adopted son of late Sh. Jai Singh. Ld. Counsel has further submitted that the plaintiff has also been able to prove that there was a partition between the four brothers, i.e. late Sh. Jai Singh, the two defendants and Sh. Surender Kumar, as per which the property bearing no. WZ-41, Village Naraina, came to the share of the defendants and Sh. Surender Kumar, whereas the suit property, i.e. the property bearing no.WZ-86, Village Naraina, came to the share of late Sh. Jai Singh, i.e. the plaintiff's adoptive father. It is submitted that through the evidence led, the appellant/plaintiff has also been able to prove the execution of the memorandum of settlement dated 20.03.1998 Ex. PW1/8A between the plaintiff, the two defendants and Sh. Surender Kumar. It is submitted that the plaintiff has been able to prove the memorandum of settlement Ex.PW1/8A through the evidence of the plaintiff as PW-1, the attesting witness Sh. N.P. Verma as PW-2, as well as Sh. Surender Kumar as PW-3. It is submitted that the defendants were unable to discharge the onus to show that their signatures were taken on the RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 7 of 50 settlement document by fraud or misrepresentation. It is submitted that in the memorandum of settlement Ex.PW1/8A, the defendants have admitted the adoption of the plaintiff by late Sh. Jai Singh. It is further submitted that the memorandum of settlement Ex.PW1/8A was also evidence of the partition which had already taken place between the four brothers, i.e. the two defendants, late Sh. Jai Singh and Sh. Surender Kumar. Ld. Counsel has submitted that the Ld. Trial Court has grossly erred in dismissing the suit merely on the basis that the memorandum of settlement dated 20.03.1998 Ex. PW1/8A was an unregistered document. Ld. Counsel has submitted this was a gross error committed by the Ld. Trial court, since the memorandum of settlement Ex. PW1/8A was itself not a document of partition, but was only a record of the partition which had already taken place long ago between the four brothers (i.e. Sh. Jai Singh, the two defendants and Sh. Surender Kumar) through a family arrangement, and which was subsequently recorded in writing in the document between the plaintiff, the two defendants and Sh. Surender Kumar, after the death of late Sh. Jai Singh, in order to avoid any disputes in the future. It is submitted that in the memorandum of settlement Ex.PW1/8A it is recorded that the two defendants and Sh. Surender Kumar were already in possession of the property bearing no. WZ-41, Village Naraina, New Delhi which had already been partitioned between themselves and that these three persons were already in possession of their separate shares and had divided the same amongst RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 8 of 50 themselves as WZ-41A, WZ-41B and WZ-41C. It is submitted that by way of the memorandum of settlement Ex.PW1/8A, crucially, it was also recognised by all the parties including the two defendants that the plaintiff, as the adopted son of late Sh. Jai Singh, was the owner of the suit property. It is submitted that since the memorandum of settlement dated 20.03.1998 Ex.PW1/8A was only a record of an oral partition through a family settlement or arrangement which had already taken place in the family, the same was not required to be registered as per the well settled law.
10. It is further submitted by the Ld. Counsel for the appellant that in the cross-examination, the defendants have admitted that the property no. WZ-41, Village Naraina had already been partitioned between the two defendants and Sh. Surender Kumar, and that Sh. Jai Singh did not have any share in the said property, and that the defendants were in possession of their separate shares in the property no. WZ-41, Village Naraina since 1980. It is submitted that thus, the plaintiff was able to prove that there was already a prior oral partition between the four brothers by way of a family arrangement, and that the memorandum of settlement dated 20.03.1998 Ex.PW1/8A was only a record of this settlement and arrangement in the family which had already taken place between the four brothers. It is submitted that, hence, there was no requirement to register the memorandum of settlement dated 20.03.1998 Ex.PW1/8A as per law.
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 9 of 50
11. Ld. counsel for the appellant has submitted that, thus, the appellant/plaintiff was able to clearly prove his title to the suit property based on the evidence on record. It is submitted that the plaintiff was able to prove the execution of the settlement dated 20.03.1998 Ex.PW1/8A, in which, the defendants had admitted the ownership of the plaintiff over the suit property. It is further submitted that the plaintiff has been able to prove that the defendant had illegally taken possession of the suit property on 21.06.2001. It is submitted that the defendant no.2 as DW-2 admitted in his cross-examination that the defendants had removed the lock of the plaintiff and had put their own locks. It is submitted that the plaintiff had, thus, also proved that he had been dispossessed from the suit property.
12. Ld. Counsel for the appellant/plaintiff has submitted that hence, the impugned judgment is liable to be set aside and the appellant/plaintiff would be entitled to decree of possession as well as mesne profits and permanent injunction as claimed in the suit.
RESPONDENTS' SUBMISSIONS
13. On the other hand, Ld. Counsel for the respondents/defendants has supported the impugned judgment and has submitted that the judgment is well reasoned and does not call for any interference.
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14. Ld. counsel for the respondents has made the following submissions:
14.1. That the Memorandum of Understanding Ex.
PW-1/8A has no relevancy in the eyes of law as firstly the same is fabricated and the same is not even registered and even does not include the other legal heirs of Late Sh. Banwari Lal like the daughters of Sh. Banwari Lal, therefore the said Memorandum of Understanding had no relevancy in the eyes of law.
14.2. That the appellant is seeking relief of possession, however the onus was upon the appellant to show his actual physical possession of the suit premises. However, to show his possession, the appellant only produced some documents which depicted the address of suit property as his address but without proof of any physical possession in the suit premises. The appellant has filed the simplicitor suit for possession without even seeking the declaration of his rights of ownership in the suit property or even seeking partition of the suit property, therefore the present suit was an attempt by the appellant to grab the suit property only on the basis of the fabricated documents by showing the address proof through some documents, which were not even proved during trial, and that even such documents do not make anyone entitled for possession, as the address proof does not in any RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 11 of 50 manner construe the physical possession of the suit property.
14.3. That the appellant has miserably failed to show the actual physical possession of the suit property which was the essential requirement for the present case and just relied simply on some documents which do not in any manner show that the appellant was in actual physical possession. The said documents can only be termed as address proof, which were created just for the purpose to grab the suit property illegally by the appellant in connivance of his biological father.
14.4. That the appellant has also brought one witness Sh.
N. P. Verma i.e PW-2 in support of his case, who himself deposed during the cross examination that the property No. WZ-86 was in inhabitable condition from prior to 1990 and even PW1 during his cross examination had admitted that there was no electricity since the year 1987 and even the said property was also not having toilet, which itself shows that the case of the appellant himself that he was residing in the suit property does not hold any substance, therefore, the appellant miserably failed to prove the case regarding the possession of the suit property therefore, the Learned Trial Court rightly dismissed the suit.
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 12 of 50 14.5. That the appellant has deliberately not sought to be declared as owner of the suit premises nor sought any partition as the appellant himself knows that he could not get any relief on merits, as the basis of claiming the ownership on the basis of Memorandum of Understanding Ex. PW-1/8A has no relevancy as firstly the said documents is fabricated as the same was never executed which can be seen from the contradictory versions of PW-1, 2 and 3 regarding the execution of the said Memorandum of Understanding. Secondly, the same is not registered, and it is settled law that any family settlement if put in writing has to be registered. Thirdly, the other legal heirs of Late Sh. Banwari Lal, are not the party to the said Memorandum of Understanding. Lastly, the basis of the Memorandum of Understanding that the defendants along with biological father of the appellant were already given property bearing No. WZ-41, therefore the suit property came into the share of adopted father of appellant, was false, due to the fact that the defendants in their evidence have produced the documents which shows that the late father of the defendants Late Sh. Banwari Lal has himself stated that he was never the owner of the property bearing No. WZ-41, thus there is no question of any partition of the said property. Further, if there was partition of the said property and suit property there must be some document in RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 13 of 50 this regard or some witness of the family other than the interested witness who would have been examined. This categorically shows that the appellant has no locus to claim the entire ownership over the suit property.
14.6. That there is no material on record to show that property bearing No. WZ-41 is an ancestral property of the father of the defendants. In fact there is document placed on record written by the father of the defendants stating that he is not having any ownership of the property bearing No. WZ-41 and only his three sons i.e. the Respondents and Surender Kumar Tanwar had the occupation and ownership rights.
14.7. That the Memorandum of Understanding exhibited by the appellant is itself forged and fabricated document as on one hand the appellant is stating that the partition had occurred in the 1970s then why there would have been need to execute Memorandum of Understanding later on which categorically shows that it is a fabricated document got prepared by the appellant in connivance with his father Surender Kumar Tanwar to grab the suit property entirely by taking the advantage that the brother of the defendants i.e. Sh. Jai Singh was unmarried and by making the false story that Sh. Jai singh got the property from his father in lieu of partition held in 1970 whereas there is no RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 14 of 50 document/evidence which has been placed on record in this reference.
14.8. That PW2 Shri N. P. Verma has been called by the appellant as he was having good relations with his father Sh. Surender Tanwar and even the said witness has deposed that the suit property was in an inhabitable condition which completely falsifies the story of the appellant that he was in possession of the suit property and has been residing in the said property. It is submitted that mere deposition is not enough to prove the ownership as the appellant has failed to produce even a single document that the property bearing No WZ-41 has been owned by the father of the defendants whereas the document has been brought on record which says that the father of the defendants has no role of whatsoever in the said property i.e WZ-41.
14.9. That the witness Sh. Surender Kumar PW3 is an interested witness being the father of the appellant and all the story and the game plan has been executed by him only by showing the appellant as adopted son of Late Sh. Jai Singh just to grab his share in the property but now also to grab the entire share of all the legal heirs of the father of the defendants.
14.10. That merely the documents showing the address of the plaintiff in the suit property do not show the RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 15 of 50 possession of the appellant as it has been proved on record that the suit property was not been in habitable condition and even does not having toilet which substantially shows that the entire story has been fabricated by the appellant. It is submitted that all the documents were got prepared by the appellant in connivance with his father just to grab the suit property.
14.11. On this basis, it is submitted that the appeal be dismissed.
15. Both parties have also filed their respective written submissions.
DISCUSSION & FINDINGS
16. I have considered the submissions of the Ld. Counsels for the parties and I have perused the record, both in the appeal as well as the Trial Court Record.
17. The undisputed position is that the two defendants and Sh.
Jai Singh and Sh. Surender Kumar were brothers. It is the case of the plaintiff/appellant in the plaint that he is the biological son of Sh. Surender Kumar and that he was adopted by Sh. Jai Singh. It is further the case of the plaintiff in the plaint that there was a family settlement between the four brothers as per which the joint family property bearing no. WZ-41, Village Naraina, New Delhi went to the share of the two defendants and Sh. Surender RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 16 of 50 Kumar, whereas the suit property being property bearing no. WZ-86, Village Naraina, New Delhi came to the share of the plaintiff's adoptive father i.e. Sh. Jai Singh. Sh. Jai Singh had died 24.12.1997. It is further the case of the plaintiff in the plaint that a Memorandum of Settlement was executed on 20.03.1998 between the plaintiff, the two defendants and Sh. Surinder Kumar as per which the suit property came to the share of the plaintiff.
18. The issue of execution and admissibility of the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A is the crux of the entire suit. It would be appropriate to extract the same, in extenso, as under:
"MEMORANDUM OF SETTLEMENT.
THIS MEMORANDUM OF SETTLEMENT is made on this 20th day of March, 1998, BETWEEN S/shri Swami Charan, Guru Charan, Surender Kumar, all sons of late Shri Banwari Lal and permanent residents of WZ-41, Village Naraina, New Delhi (hereinafter called the Ist party) and Shri Parveen Kumar adopted son of late Shri Jai Singh r/o WZ-41, Village Naraina, New Delhi (hereinafter called the Second Party). The expressions Ist Party and Second Party shall mean and include the parties, their successors, legal heirs and assigns.
WHEREAS the Second Party Shri Parveen Kumar was adopted by late Shri Jai Singh son ofShri RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 17 of 50 Banwari Lal r/6 WZ-86, Village Naraina, New Delhi, vide a registered Adoption Deed registered before the Sub Registrar, Delhi on 19.4.88.
AND WHEREAS the parties were jointly owning property bearing No.41 and WZ-86, village Naraina.
AND WHEREAS Swami Charan, Guru Charan and Surinder Kumar are in possession of property No. WZ-41, village Naraina New Delhi which has already been partitioned. between themselves and are now in possession of separate shares of this property and have divided the same as WZ-41-A, WZ-41-B and WZ-41-C. Portion 41-A is in possession of Shri Surinder Kumar, WZ-41-B is in possession of Shri Guru Charan and WZ-41-C is in possession of Sh. Swami Charan. Sh. Jai Singh was in absolute and sole possession of property no. WZ-86, Village Naraina, New Delhi and was residing therein.
IT IS NOW AGREED DETWEEN THE PARTIES AS UNDER:
1. That the property bearing No. WZ-41, village Naraina, New Delhi which has already been mutually divided and separate portions thereof are in possession of the Ist Party, will be the owners of the respective portions in their possession.
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 18 of 50
2. That the Second Party Shri Parveen Kumar adopted son of late Shri Jai Singh will be the sole owner of property No.WZ-86, Village Naraina, New Delhi.
3. That the Ist Party declares that they will not claim any right, title or interest of inheritance in property No. WZ-86, village Naraina, New Delhi by/virtue of this deed.
4. That the Second Party undertakes that he will not claim any right, title or interest of inheritance in property No. WZ-41, village Naraina, New Delhi, which shall exclusively belong to the Ist Party.
IN WITNESS WHEREOF both the parties have put their signatures on this Deed on the date, month and the year first hereinforementioned in the presence of the witnesses."
19. This memorandum of settlement dated 20.03.1998 Ex.PW-1/8A consists of two pages of stamp paper containing the settlement in writing and purports to contain the signatures of the executants, i.e. the plaintiff, the two defendants and Sh. Surender Kumar on the first page, and the signatures of these four executants as well as of two witnesses being Sh. N.P. Verma and Sh. Sukhbir Singh on the second page.
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20. In their written statement, the defendants have denied that there was any settlement as alleged by the plaintiff. The defendants further denied the execution of the settlement dated 20.03.1998. Crucially, with regard to the memorandum of settlement dated 20.03.1998 which was relied upon by the plaintiff, the defendants stated in their written statement that no signatures of the defendants were on the settlement document and if there was any signature of the defendants then the same was forged and fabricated. The defendants further stated that it was possible that the plaintiff with the help of Sh. Surender Kumar Tanwar took the signatures of the defendants on the stamp papers because the defendants along with the other legal heirs of Late Sh. Banwari Lal had filed some civil proceedings with regard to compensation of acquired land.
21. In the impugned judgment, the Ld. Trial Court did not go into the aspect as to whether the execution of the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was proved, and simply held that, even if the execution of the memorandum of settlement was admitted to be executed between the parties, even then the same being an unregistered document could not be read in evidence.
22. Since the Ld. Trial Court did not go into the aspect of proof of the execution of the settlement deed, it would be appropriate to first consider the evidence on the record to see whether the execution of the settlement deed dated 20.03.1998 Ex.PW-1/8A has been proved.
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23. In order to prove the execution of the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A, the plaintiff has examined the parties to the documents, i.e. himself as PW-1 as well as Sh. Surender Kumar Tanwar as PW-3, as well as the witness to the document i.e. Sh. N.P. Verma as PW-2.
24. Sh. N.P. Verma (PW-2), who is a witness to the settlement deed, has supported the case of the plaintiff in his evidence and has deposed to the effect that the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was executed by the parties. He has deposed that he was residing at Naraina since birth and knew the plaintiff since his birth and also knew the father of the plaintiff. In his cross-examination, he has deposed that he along with the plaintiff, the defendants, Sh. Surender Tanwar and Sh. Sukbeer Singh were present at the time of execution of the settlement deed. He has deposed that the parties had gone to the Tis Hazari Court premises for execution of the settlement deed and that the parties had signed the document before the notary public. He has denied the suggestion that the settlement deed was not executed before him or that the same was false or fabricated.
25. Sh. Surender Kumar Tanwar (PW-3), who is also a party to the document, has also supported the case of the plaintiff and has deposed to the effect that the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was executed by the parties. He has also deposed in his cross-examination that the six persons who had signed the settlement deed, RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 21 of 50 i.e. the four parties and two witnesses, had gone together to Tis Hazari Courts to get the same executed. He has denied the suggestion that the settlement deed was prepared with the connivance of the plaintiff to grab the suit property. He has further deposed that the settlement deed was prepared at the instance of the defendant Sh. Gurcharan as he had an apprehension that the plaintiff would seek a share in the property bearing no. WZ-41.
26. The plaintiff has also deposed as PW-1 regarding the execution of the settlement deed Ex.PW-1/8A. He has also deposed that the parties had gone to the Tis Hazari Courts to execute the document and that the document was prepared at the Tis Hazari Courts.
27. On the other hand, both the defendants in their deposition denied having executed the settlement deed Ex.PW-1/8A and took the stand that it was possible that their signatures were taken by the plaintiff with the help of Sh. Surender Kumar Tanwar on the stamp papers to create the settlement deed since the defendants along with some other legal heirs had filed some suit for compensation of acquired land and the said case was being looked after by Sh. Surender Kumar Tanwar.
28. The two stands of the defendants in their written statement as well as in their deposition that, firstly, the settlement deed did not contain their signatures and, secondly, that Sh. Surender Kumar Tanwar had taken signatures of the defendants on stamp papers to create the settlement deed RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 22 of 50 are mutually contradictory and irreconcilable. In view of the stand taken by the defendants that their signatures were taken by Sh. Surender Kumar Tanwar to create the settlement deed, the inference which is drawn is that the defendants were not denying their signatures on the document being the settlement deed but it was their contention that their signatures were fraudulently taken by Sh. Surender Kumar Tanwar on stamp papers on the pretext that the same were to be used in certain suit proceedings.
29. This being the position, the onus lay heavily on the defendants to show that a fraud had been played on them to take their signatures on the settlement document. However, a perusal of the evidence shows that the defendants have failed to discharge this onus. Although the defendants have claimed that their signatures were taken by Sh. Surender Singh Tanwar on stamp papers on the pretext that the same would be used in some suit for compensation for acquisition of land which was being looked after by Sh. Surender Kumar Tanwar, however, no details or particulars of this alleged suit or legal proceedings have been given by the defendants. Hence, the ground taken by the defendants to contend that their signatures having been taken by fraud is wholly vague and without material particulars. Even during his cross- examination, the defendant no.2 as DW-2 admitted that he did not have any document to prove the alleged case in respect of which the defendants were contending that their RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 23 of 50 signatures were taken. Hence, since the defendants have failed to show that there was any alleged case for land acquisition which was pending, the clear inference which is drawn is that the defence raised by the defendants that their signatures were taken on the stamp papers by fraud or misrepresentation is wholly bogus.
30. Furthermore, crucially, the defendant no.2 as DW-2 has stated in his cross-examination that the respective portions of the three brothers being the two defendants and Sh. Surender Tanwar had been partitioned at the time of marriage of Sh. Surender Tanwar and that these three brothers had constructed their respective portions on the property WZ-41 and had numbered the same as WZ-41A, WZ-41B and WZ-41C, respectively. This position is in consonance with the recital in the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A in which it is stated that the two defendants and Sh. Surender Kumar Tanwar were in possession of property No. WZ-41, Village Naraina, Delhi which was already partitioned between them and that they were in possession of their separate shares as WZ-41A, WZ-41B and WZ-41C, respectively. This also leads credence to the case of the plaintiff that the parties had executed the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A.
31. I have carefully considered the evidence on record, and based on the evidence on record, on a balance of probabilities, the plaintiff has proved the execution of the memorandum of settlement dated 20.03.1998 between the RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 24 of 50 plaintiff, the two defendants and Sh. Surender Kumar Tanwar.
32. Now, that I have already held that the execution of the settlement deed stands proved, the next question is with respect of admissibility of the settlement deed due to lack of registration.
33. The Ld. Trial Court has held that the settlement deed dated 20.03.1998 was an instrument of partition which was compulsorily registrable, and hence, being an unregistered document, the settlement deed could not be read in evidence. I have carefully considered this aspect of the matter, and, with due respect, I am unable to agree with this finding of the Ld. Trial Court.
34. The memorandum of settlement dated 20.03.1998 Ex.PW-1/8A records in the recitals that the plaintiff was adopted by late Sh. Jai Singh vide registered adoption deed dated 19.04.1988. Hence, the adoption of the plaintiff by Sh. Jai Singh stands admitted by the defendants in the memorandum of settlement.
35. The memorandum of settlement dated 20.03.1998 Ex.PW-1/8A further records that the parties were jointly owning the properties bearing No.WZ-41 and WZ-86, Village Naraina. The memorandum further records that the two defendants and Sh. Surender Kumar Tanwar were already in possession of property bearing No. WZ-41 which was already partitioned between them and that they RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 25 of 50 were in possession of their separate shares of the property which were divided as WZ-41A, WZ-41B and WZ-41C. It is further recorded that Sh. Jai Singh was in the absolute and sole possession of the property no.86 and was residing therein.
36. As already discussed, the defendant no.2 as DW-2 has stated in his cross-examination that the respective portions of the three brothers being the two defendants and Sh. Surender Tanwar in the property WZ-41 had already been partitioned between them at the time of marriage of Sh. Surender Tanwar and that these three brothers had constructed their respective portions on the property WZ-41 and had numbered the same as WZ-41A, WZ-41B and WZ-41C, respectively. This only goes to show that there was already a partition through a family arrangement which had already been effected between the four brothers long ago, much prior to the execution of the memorandum of settlement dated 20.03.1998. This partition was not effected through any document in writing but was by the conduct of and dealing between the parties and was oral in nature. Hence, the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was nothing but only a record of the oral partition between the four brothers through a family arrangement which had already been made long ago. The parties seem to have executed the memorandum of settlement dated 20.03.1998, since Sh. Jai Singh had died on 24.12.1997 and the parties wanted that the factum RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 26 of 50 of the partition be recorded in writing so as to avoid any disputes in the future.
37. Since the memorandum of settlement dated 20.03.1998 was itself not an instrument of partition but was only a document by which the parties were acknowledging and recording the factum of the oral partition which had already taken place through a family arrangement much earlier, the memorandum of settlement was not required to be compulsorily registered. In this regard, it would be appropriate to refer to the decision of the Hon'ble Supreme Court in Kale & Others vs Deputy Director Of Consolidation Ors. (1976) 3 SCC 119.
38. In the decision in Kale (supra), the Hon'ble Supreme Court has held that family settlements or arrangements are governed by a special equity peculiar to themselves and that the Courts have leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. It was further held that even 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. It has further been held in the said decision that a family arrangement may be even oral in which case no registration is necessary, and that a mere memorandum prepared after the family arrangement had RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 27 of 50 already been made for the purpose of the record does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable. The relevant portion of the decision in Kale (supra) is extracted hereunder:
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. 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 honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 28 of 50 mistake or ignorance of fact as to what 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 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 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 or even if they have a spes successionis 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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 29 of 50 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.
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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 30 of 50 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 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 immovable 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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 31 of 50 settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
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. Kunwar Gobind Krishna Narain [LR 38 IA 87, 102 : ILR 33 All 356 : 8 ALJ 552] 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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 32 of 50 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 : 27 MLJ 49 : 18 MWN 929] .
13. In Sahu Madho Das v. Pandit Mukand Ram [(1955) 2 SCR 22, 42-43 : AIR 1955 SC 481] 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:
"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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 33 of 50 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 [(1965) 3 SCR 841, 850-851 : AIR 1966 SC 323] 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 context 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 .... 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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 34 of 50 recognition of the right asserted by each other cannot be permitted to be impeached thereafter."
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil [AIR 1966 SC 292, 295 : (1966) 2 SCJ 290] it was pointed out by this Court that a family arrangement could be arrived 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 in what properties the parties possess."
16. Similarly in Maturi Pullaiah v. Maturi Narasimham [AIR 1966 SC 1836 : (1967) 1 SCJ 848] 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 was also held that even the disputes based upon ignorance of the parties as to their rights were RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 35 of 50 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 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 Beharilal v. Gulabchand [(1971) 1 SCC 837 : 1971 Supp SCR 27, 34] 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: [SCC p. 843, paras 7-8] "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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 36 of 50 Das v. Girjanandini Devi 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 Ram Charan Das case [(1965) 3 SCR 841, 850-851 : AIR 1966 SC 323] .
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 the recent decision of this Court in S. Shanmugam Pillai v. K. Shanmugam Pillai [(1973) 2 SCC 312] the entire case law was discussed and this Court observed as follows: [pp. 319, 321-322, paras 12, 24-25] "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 v. Pandit Mukand Ram 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 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 37 of 50 inferred from a long course of dealings between the parties.
In Maturi Pullaiah v. Maturi Narasimham this Court held that although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bona fide disputes 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 reopened 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 [AIR 1928 All 641, 649 : 26 ALJ 952] 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:
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 38 of 50 "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. (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 v. Jang Bahadur Singh [AIR 1933 Oudh 347, 348-349] 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:
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 39 of 50 "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 compromise, 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 proceedings gave effect to this compromise, the proceedings and order of the revenue court did not require registration. Similarly in a later decision of the same court in Kalawati v. Krishna Prasad [ILR 19 Luck 57, 67 : AIR 1944 Oudh 49] 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 [AIR 1926 All 173, 175 : ILR 48 All 213 : 24 ALJ 116] 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. In this view of the circumstances I am of opinion that there was no necessity to have this petition registered. It does not RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 40 of 50 in my opinion purport to create, assign, limit, extinguish or declare within the meaning of these expressions as used in Section 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 v. Narain Mishra [AIR 1962 Pat 400 :
1962 BLJR 881] pointed out that a compromise petition not embodying any terms of agreement but merely conveying information 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. We shall deal with this point a little later when we consider the arguments of the respondents on the question of the estoppel. In the light of the decisions indicated above, we shall now try to apply the principles laid down by this Court and the other courts to the facts of the present case."
(Emphasis supplied by me)
39. In the decision in Kale (supra), it was also held by the majority view of the Hon'ble Supreme Court that even RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 41 of 50 assuming that the document recording the family settlement was compulsorily registrable, still the family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. The relevant portion of the decision in Kale (supra) is extracted hereunder:
"38. Rebutting the arguments of the learned counsel for the appellant, Mr Sharma for the respondents contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute. In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case. Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal [AIR 1918 PC 70 : LR 45 IA 118, 124 : ILR 40 All 487] the Privy Council applied the principle of estoppel to the facts of the case and observed as follows:
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 42 of 50 "Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot now claim as a reversioner."
39. This Court in Dhiyan Singh v. Jugal Kishore [(1952) 1 SCC 184 : AIR 1952 SC 145 :
1952 SCR 478] observed as follows:
"We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitrator makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions are correct. *** Even if the arbitrator was wholly wrong and even if he had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide. That, in our opinion is a representation of an existing fact or set of facts. Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst Mohan Dei an absolute interest in the suit property."
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 43 of 50 In view of the principle enunciated in the aforesaid case it is obvious that Respondents 4 and 5 would be estopped from denying the existence of the family arrangement or from questioning its validity.
40. In Ram Charan Das case while dwelling on the point of the family arrangement this Court observed as follows:
"It seems to us abundantly clear that this document was in substance a family arrangement and, therefore, was binding on all the parties to it. Moreover it was acted upon by them.... In our opinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal."
At p. 851 this Court pointed out that as the settlement consisted of recognition of the right asserted by each other none of the parties could be permitted to impeach it thereafter.
41. To the same effect is the decision of this Court in Krishna Beharilal case, where the doctrine of estoppel was discussed, and while referring to the previous cases of this Court, it was observed as follows:
"In Dhiyan Singh case this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the validity of the award or from going behind the award in a subsequent litigation. In T.V.R. Subbu Chetty's Family Charities v. M. Gaghava Mudaliar [AIR 1961 SC 797 : (1961) 3 SCR 624] RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 44 of 50 this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens. At the time of the compromise Lakshmichand and Ganeshilal were the nearest presumptive reversioners. They must be deemed to have known their rights under law. Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties. They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise."
42. Finally in a recent decision of this Court in S. Shanmugam Pillai case after an exhaustive consideration of the authorities on the subject it was observed as follows:
"Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.
*** As observed by this Court in T.V.R. Subbu Chetty's Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 45 of 50 relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open."
In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against Respondents 4 and 5. Respondent 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachbha v. Mt Mendha [AIR 1947 All 177 : 1946 ALJ 409] ; Chief Controlling Revenue Authority v. Smt Satyawati Sood [AIR 1972 Del 171 : ILR (1972) 2 Del 17 (FB)] and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same."
(Emphasis supplied by me)
40. As already discussed above, the execution of the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A between the parties clearly stands proved. The memorandum was only a document which only recorded the family arrangement which had already been entered into and even acted upon much earlier. As such, the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was not compulsorily registrable, and hence, the same was clearly admissible in evidence. The Ld. Trial Court grossly erred in holding that the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was inadmissible in evidence due to lack of registration. The defendants have also clearly RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 46 of 50 acknowledged in the memorandum of settlement that the plaintiff was the adopted son of late Sh. Jai Singh. The defendants have in the memorandum of settlement also clearly acknowledged the ownership of the plaintiff over the suit property and have also admitted that they would not claim any right, title and interest in the suit property. The defendants had also already taken advantage of the family arrangement and had received their respective shares in the property bearing No. WZ-41, Naraina Village in terms of the family arrangement. Thus, the family arrangement had already been acted upon and the defendants took the benefit of the same. Thus, the principle of estoppel would also clearly be applicable in the present case, and by virtue of the family arrangement, which is recorded in the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A, and which was also acted upon by the parties, the defendants are estopped from denying the title of the plaintiff to the suit property. The family arrangement which was arrived at between the parties and which is recorded in the memorandum of settlement dated 20.03.1998 Ex.PW-1/8A was made to ensure that there be no disputes in the family and the same has to be honoured by the defendants and they cannot wriggle out of the same. Thus, the suit of the plaintiff must succeed.
41. Accordingly, the impugned judgment and decree of the Ld. Trial Court is liable to be set aside, and the plaintiff would be entitled to decree of possession of the suit property. The RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 47 of 50 plaintiff would also be entitled to decree of permanent injunction as prayed.
42. Now, coming to the question of mesne profits. As per the case of the plaintiff, the plaintiff was dispossessed from the suit property on 21.06.2001. The defendant no.2 DW-2 has admitted in his cross-examination that since 22.06.2001, there was a lock put by the defendants on the suit property. Hence, clearly, the defendants had interfered with the possession of the suit property since 22.06.2001 by putting their lock on the property. The plaintiff would thus be entitled to mesne profits/damages for the period from 22.06.2001 till the date of actual handing over of possession.
43. As per the case of the plaintiff in the plaint, since he was dispossessed from the suit property, he was residing in a rental accommodation at the rent of Rs. 1,000/- per month in the area of village Naraina. The defendants have not come forward to show that the rental in the area of village Naraina was less than Rs. 1,000/- per month. Hence, it would be appropriate to grant to the plaintiff mesne profits for the period from 22.06.2001 till the date of actual handing over of possession taking the mesne profits for the base year in 2001 as Rs. 1,000/- per month and giving an increase of 10% every 3 years, since judicial notice would be taken of the fact that the rents have been increasing in Delhi over the years.
DECISION RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 48 of 50
44. In the result, the appeal is allowed, and the impugned judgment and decree dated 06.11.2015 is hereby set aside.
45. The following decree is passed in the suit:
45.1. Decree is passed in favour of the plaintiff/appellant and against the defendants/respondents for possession of the suit property being property bearing no. WZ/86, Village Naraina, New Delhi-110028; and 45.2. Decree is passed in favour of the plaintiff/appellant and against the defendants/respondents for mesne profits for the period from 22.06.2001 till the date of actual handing over of possession @ Rs. 1,000/- per month, with an increase of 10% every 3 years, along with interest @ 9% p.a. accruing on a monthly basis;
and 45.3. Decree of permanent injunction is passed in favour of the plaintiff/appellant and against the defendants/respondents restraining the defendants, their agents, servants, legal heirs or any other person acting on their behalf from disturbing the possession and enjoyment of the suit property by the plaintiff; and 45.4. Costs in the suit are awarded to the plaintiff.
Pleader's fee in the suit is fixed as Rs. 50,000/-.
RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 49 of 50
46. The costs in the appeal are also awarded to the appellant/plaintiff. Pleader's fee in the appeal is also fixed as Rs. 50,000/-.
47. Let the decree-sheet be drawn up accordingly.
48. Let the TCR be returned to the Ld. Trial Court.
49. File be consigned to record room after the due compliance.
Digitally signed by SATYABRATA SATYABRATA PANDA PANDA Date: 2025.05.20 16:41:05 +0530 (SATYABRATA PANDA) District Judge-04 Judge Code- DL01057 PHC/New Delhi/20.05.2025 RCA DJ No.5218/16 Parveen Kumar Tanwar Vs. Gurucharan & Anr. Page No. 50 of 50