Tripura High Court
Smt. Sunipa Saha vs A) Miss. Anushka Saha on 7 December, 2018
Equivalent citations: AIR 2019 (NOC) 426 (TRI.), AIRONLINE 2018 TRI 324
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RSA 40 of 2015
Smt. Sunipa Saha,
wife of late Ramjoy Saha,
daughter of late Naresh Saha,
resident of Hariganga Basak Road,
Melarmath, P.S. West Bengal,
District : West Tripura
............ Appellant(s)
- Vs -
1. a) Miss. Anushka Saha,
daughter of late Ramjoy Saha,
resident of Hariganga Basak Road,
Melarmath, P.S. West Agartala,
District : West Tripura
(being minor, she is represented by her
natural guardian, next friend and mother Smt. Sunipa Saha)
b) Smt. Laxmi Rani Saha,
wife of late Narayan Chandra Saha,
resident of Madhya Bazar,
P.S. Bishalgarh, District : Sepahijala
2. Sri Amitabha Chowdhury,
son of late Subhash Ch. Chowdhury,
resident of Ramthakur Lane,
Durga Chowmuhani,
P.S. West Agartala, District : West Tripura
............ Respondent(s)
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellant(s) : Mr. S. Mahajan, Advocate
For the respondent(s) : Mr. T.K. Deb, Advocate
Date of hearing : 13.07.2018
Date of Judgment
& Order : 07.12.2018
Whether fit for reporting : YES
Page 2 of 17
Judgment and Order
This is an appeal under Section 100 of the CPC from the
judgment dated 27.07.2015 delivered in Title Appeal No. 43 of 2013
by the District Judge, West Tripura, Agartala.
2. By the said judgment dated 27.07.2015, the judgment dated
05.04.2013 delivered in Title Suit 129 of 2005 by the Civil Judge,
Junior Division, Court No.2, Agartala, West Tripura (hereinafter
referred to as the trial court) has been affirmed and consequently,
the first appeal has been dismissed. By the said judgment dated
05.04.2013, the suit instituted by the appellant has been dismissed.
3. At the time of admitting this appeal, the following substantial
question of law was framed by the order dated 04.02.2016 :
"Whether the judgment and decree passed by the
trial Court and affirmed by the appellate Court suffer
from perversity for non appreciation/mis-
appreciation of the pleadings and evidence on record
?"
The appellant was strangely given liberty to raise any other
substantial question of law at the time of hearing. But Mr. Mahajan,
learned counsel appearing for the appellant did not press any other
substantial question of law for purpose of challenging the impugned
judgment dated 27.07.2015.
4. The relevant fact is required to be introduced at the outset to
appreciate the challenge. The appellant instituted the suit for
cancellation of the sale deed No.1-5563 dated 25.05.2007 executed
by the defendant No.1 (Exbt.A). The plaintiff is the widow of the
original defendant No.1 namely Ramjoy Saha, now deceased. In their
wedlock, a female child was borne to them. For some irreconcilable
disputes between the plaintiff and the original defendant No.1, the
marital relation got seriously jeopardised. In the plaint, it has been
Page 3 of 17
alleged that the original defendant No.1 had developed illicit relation
with another lady and started a reckless life. The plaintiff on
08.04.2007 found them in a compromising position. The original
defendant No.1 in the wake of that incident left the house. The
mother in law of the plaintiff came forward to restitute their marital
life. In a conciliation meeting, it was decided that the shop premises
measuring 0.002 acre will be handed over to the plaintiff and
accordingly, one agreement dated 15.04.2017 was entered into, by
the original defendant No.1. Having got the information from the
reliable source on 24.04.2007 that the original defendant No.1 was
going to transfer the suit land, the plaintiff rushed to the registry
office along with her mother in law and filed the objection against the
sale of the suit land. The apprehension came true when the sale
deed was presented in the office of the District Sub-registrar on
receiving the consideration money of Rs.60,000/- on 25.05.2007, but
the District Sub-registrar on the face of the said objection had kept
the registration pending and fixed a date for hearing on the objection.
At the intervention of the local club, a meeting was convened on
25.06.2007. In the said meeting, it was settled, according to the
plaintiff, that the suit premises will be with the appellant and the
original respondent No.1 will not transfer the suit land to the
defendant No.2 in future. The defendant No.2 will not purchase the
suit land. The earnest money of Rs.20,000/- along with expenditure
for preparation of the sale deed of Rs.15,000/- had to be paid back to
the defendant No.2. Accordingly, those terms was reduced in writing
in the form of agreement. But the defendant No.2 on 12.09.2007
came to the suit land and demanded the vacant possession of the suit
Page 4 of 17
land showing the sale deed dated 25.05.2007. But the plaintiff
resisted him and denied to put him in the possession.
5. On apprehension of dispossession, the plaintiff filed the suit
and urged for cancellation of the said sale deed by declaring that the
disputed instrument is illegal and void ab-initio. The plaintiff has also
urged for perpetual injunction from disturbing and interfering with the
possession of the land described in the plaint as 'the scheduled
property'. Both the defendants filed the written statements separately
and stated that the allegations made in the pleadings are all false. At
the instance of the plaintiff, he was arrested and harassed. The
original defendant No.1 had asserted that he took loan from various
sources and thus he had no other alternative but to sell off the
scheduled property. In para-16 of the written statement, the original
defendant No.1 has asserted as under :
"16. That on 25.05.2007 the answering Defdt. sold
out the suit land to the Defdt. No.2 vide Sale Deed
No.1-5563 and delivered possession. The Defdt. No.2
also got possession over the suit land and fixed the
signed board in the suit land. On 01.09.2007 the
answering Defdt. called by Women P.S. and when the
answering Defdt. appeared before the Women P.S. he
was arrested by the police against a false case
instituted by the Plaintiff by the help of the father of
the Plaintiff. After returning from the jail the
answering Defdt. found that the Plaintiff forcefully
entered into the suit land and took possession over
the suit land by breaking the locks used by the Defdt.
No.2. The Defdt. No.1 also came to know that the
Defdt. No.2 had filed a complaint before the P.S. for
the same."
6. The defendant No.2, Sri. Amitabha Chowdhury in his written
statement has stated that he got the possession from the original
defendant No.1 when the sale deed was presented for registration on
25.05.2007, even though the sale deed was registered on
03.08.2007. But the plaintiff dispossessed the defendant No.2 on
27.08.2007. He has strongly denied that the sale deed bearing No.1-
5563 is void ab-initio. That apart, the defendant No.1 has
Page 5 of 17
categorically admitted that he got the full consideration money and
executed the sale deed in favour of the defendant No.2 in presence of
the witnesses. The trial court had framed the following issues
amongst other issues for determining the suit :
"(iii) Whether the registered sale deed vide No.1-
5563 dated 20.05.2007 executed by defendant No.1
in favour of defendant No.2 is illegal and void ab-
initio?
(iv) Whether the plaintiff is entitled to decree of
cancellation of the disputed sale deed?"
7. The plaintiff adduced two witnesses and five documentary
evidence and the defendants have produced three witnesses and
executed three documentary evidence. The trial court on appreciation
of the evidence has returned the finding inter alia as under :
"Exbt.A is a registered sale deed bearing No.1-5563
dated 25.05.2007. The said sale deed entered
between defendant No.1 (since deceased) & 2 in
respect of the suit land. Exbt.2 is also a sale deed
bearing No.1-4448 entered between the father of
defendant No.1 (since deceased) namely Narayan Ch.
Saha and defendant No.1 (since deceased) and Exbt.
C is a Khatin No.412 in the name of defendant No.1
(since deceased) for the suit premises.
7.5. From the above documents I find that defendant
No.1 (since deceased) purchased the suit land from
his father by a registered sale deed and mutated h is
name in a Khatian bearing No.412 and thereafter he
sold the said land by a registered sale deed bearing
No.1-5563 to defendant No.2. Accordingly, there is no
dispute in respect of the title of the defendant No.1
(since deceased) regarding the suit land. Now,
plaintiff alleged that there was an agreement deed
vide Exbt.1 dated 15.04.2007 in which it was alleged
that the defendant No.1 for the maintenance of
plaintiff and her daughter, the suit land has been
given to plaintiff. Now, the burden of proof lies upon
plaintiff to prove the Exbt.1. This is a un-registered
agreement deed and no witness of the said deed was
examined by the plaintiff to prove the said agreement
deed. Above all, in cross examination PW-1 admitted
that she purchased the stamp paper of the above
stated agreement deed dated 15.04.2007 and that
stamp paper was purchased on day before the said
agreement though on perusal of the stamp I find that
it was purchased near about one year ago."
8. The trial court has returned the finding that the agreements
(Exbts.3 and 4) did not deal with the title but of the 'perpetual'
possession by the plaintiff. It thus becomes a document mandatorily
Page 6 of 17
registrable. The plaintiff alone has vouched the agreement and its
execution did not get support from any other person. On the face of
the claim of the original defendant No.1, no such agreement was ever
executed by him [this assertion has been made by way of
amendment in the written statement], it has been clearly observed
by the trial court that since the original defendant No.1 had
competence to execute the questioned sale deed, it cannot be
cancelled under Section 31 of the Specific Relief Act, 1963. Section
31 of the Specific Relief Act reads as under :
31. When cancellation may be ordered - (1) Any
person against whom a written instrument is void or
voidable, and who has reasonable apprehension that
such instrument, if left outstanding may cause him
serious injury, may sue to have it adjudged void or
voidable ; and the Court may, in its discretion, so
adjudge it and order it to be delivered up and
cancelled.
(2) If the instrument has been registered under the
Indian Registration Act, 1908, the Court shall also
send a copy of its decree to the officer in whose office
the instrument has been so registered; and such
officer shall note on the copy of the instrument
contained in his books the fact of its cancellation."
9. The said judgment was challenged by the plaintiff by filing
the first appeal being T.A.43 of 2013 in the Court of the District
Judge. By the impugned judgment dated 27.07.2015, the first
appellate court returned the finding as noted below and dismissed the
appeal :
"........Thereafter, the Sale Deed the recital of which
was prepared on 25.05.2007 and presented to the
Sub Registrar the same day but kept pending because
of the dispute was registered on 03.08.2007. Pleaded
case of the defendant no.2 is that thereafter,
removing all objections and obstructions, he paid the
consideration money to defendant No.1 according to
the market value and the suit land was sold to him
regarding which, deed was submitted before the Sub
Registrar on 25.05.2007. It is also his pleaded case
that it was agreed by the parties that the objection
application filed by the plaintiff and another before
the Sub-Registrar shall be withdrawn personally by
them and that thereafter, the deed was registered on
03.08.2007. Accordingly, he adduced his evidence
Page 7 of 17
and that of Dws. 2 and 3 which could not be shaken
in the cross examination.
14. Now, the points on which the learned Court below
laid stress need to be discussed. Learned Court below
at para 7.5 held that it was the burden of plaintiff to
prove the agreement marked Exbt.1. In the opinion of
this Appellate Court, the burden was discharged
exhibiting it when no objection was raised by
defendant No.2. So, examination of the witnesses
was not called for. However, one of the witnesses
was her mother in law who was substituted as
defendant but did not contest the suit and thus did
not oppose the case of the plaintiff. In the cross
examination, it was suggested that the agreement
was forged which since not proved, carries no
meaning. Again, when the agreement is proved, the
date of purchase of the stamp paper is irrelevant. The
deciding factor of the case comes next. Learned Court
below has held that though defendant no.2 admitted
his signature in the documents marked Exhibits 3 and
4, these not being registered, in view of the
provisions of Section 17(1)(b) of the Registration Act
shall apply to Exbt.3. Section 17(1)(c) of the Act
applies when the instrument acknowledges the
receipt of payment of any consideration on account of
the creation, declaration, assignment, limitation or
extinction of any such right, title or interest. So, the
clause will apply to Exbt.4 because, through this
document the money was refunded. Thus, both
Exhibits 3 and 4 not being registered and Exbt.A
being registered, the latter will prevail in view of the
provisions of Sections 49 and 50 of the Registration
Act as has been held by the learned Court below."
10. Mr. S. Mahajan, learned counsel appearing for the appellant
has submitted that the sale deed was registered by practising fraud
and misrepresentation on 03.08.2007 and such the purported sale
deed was without any consideration and is a sham transaction. Mr.
Mahajan, learned counsel has further submitted that the agreement
to sale does not 'create extinguish or limit any right or charge on
property', as such it will not come within the purview of Section 17(c)
of the Registration Act. The admission by the respondent No.2
regarding the execution of the agreement dated 26.05.2007 (Exbt.4)
has estopped the respondent No.2 to make any further agreement
has been alleged but it is evident from the records that on the basis
of the presentation made on 25.05.2007 the sale deed was registered
on 03.08.2007. From the said agreement to sale dated 11.05.2007
(Exbt.3) it surfaces that the land value was determined at
Page 8 of 17
Rs.5,00,000/- and out of that amount a sum of Rs.20,000/- was
given as the earnest money. That the said land has been registered
showing the value at Rs.60,000/-. Thus the sale deed dated
25.05.2007 is without valid and reasonable consideration and by
misrepresentation and fraud. That apart, by the agreement dated
15.04.2007, the original defendant No.1 transferred the right to use
the suit land in favour of the plaintiff appellant to maintain her
livelihood and for her and their daughters' livelihood. Mr. Mahajan,
learned counsel has therefore submitted that the scheduled or the
questioned document being the sale deed dated 25.05.2007 is liable
to be cancelled on the ground that the original respondent No.1 was
obligated by the agreement dated 15.04.2007 [Exbt.1 series], not
registered, which provides that the original defendant No.1 would
never be entitled to sale, mortgage or transfer the said dokan viti
under any circumstances to anyone. Mr. Mahajan, learned counsel for
the appellant has fairly submitted that agreement was not registered,
as that was a family arrangement.
11. Mr. Mahajan, learned counsel has referred a decision of the
apex court in Ram Saran Lall versus Domini Kuer reported in AIR
1961 SC 1747, but this court is of the considered view that the
proposition of law in respect of Section 54 of the Transfer of Property
Act and Section 47 of the Registration Act does not have any specific
relevance in the context. However in Ram Saran Lall (supra) it has
been observed that Section 47 of the Registration Act does not,
provide that when a sale would be deemed to be complete. It only
permits a document when registered to operate from a certain date
which may be earlier than the date when it was registered. The object
Page 9 of 17
of this section is to decide which of two or more registered instrument
in respect of the same property is to have effect.
12. Mr. Mahajan, learned counsel has on the aspect of
registration relied on a decision of the apex court in Kale and Other
versus Deputy Director of Consolidation and Others reported in
(1976) 3 SCC 119 where the apex court having referred to Section
17(1)(b) of the Registration Act, 1908 has observed as follows :
".........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 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 concretized
form, the matter may be reduced into the form of the
following propositions:
(1) The family settlement must be a bona fide one so
as to resolve family disputes and rival claims by a fair
and equitable division or allotment of properties
between the various members of the family;
(2) The said settlement must be voluntary and should
not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in
which case no registration is necessary;
Page 10 of 17
(4) It is well settled that registration would be
necessary only if the terms of the family arrangement
are reduced into writing. Here also, a distinction
should be made between a document containing the
terms and recitals of a family arrangement made
under the document and a mere memorandum
prepared after the family arrangement had already
been made either for the purpose of the record or for
information of the Court for making necessary
mutation. In such a case the memorandum itself does
not create or extinguish any rights in immoveable
properties and therefore does not fall within the
mischief of Section 17(2) (sic) (Section 17(1)(b)?) of
the Registration Act and is, therefore, not
compulsorily registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim
or interest even a possible claim in the property
which is acknowledged by the parties to the
settlement. Even if one of the parties to the
settlement has no title but under the arrangement
the other party relinquishes all its claims or titles in
favour of such a person and acknowledges him to be
the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld,
and the Courts will find no difficulty in giving assent
to the same;
(6) Even if bona fide disputes, present or possible,
which may not involve legal claims are settled by a
bona fide family 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
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.
Page 11 of 17
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 149:18 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
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 : 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 recognition of the right
Page 12 of 17
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 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.
xxx
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."
[Emphasis added]
13. While arguing on the right of the plaintiff based on the
purported 'family arrangement' as reduced in the writing Mr.
Mahajan, learned counsel has also relied a decision of the apex court
in Raghubar Singh and Others versus Gulab Singh and Others
Page 13 of 17
reported in (1998) 6 SCC 314. The passages as referred by Mr.
Mahajan, learned counsel are reproduced below :
"20. Fazal Ali, J in his exhaustive judgment, dealing
with the question of the pre-existing right of a Hindu
widow laid down: (SCC pp. 113-14, para 20)
"20.Thus on a careful consideration and detailed
analysis of the authorities mentioned above and the
Shastric Hindu Law on the subject, the following
propositions emerge with respect to the incidents and
characteristics of a Hindu woman's right to
maintenance:
(1) that a Hindu woman's right to maintenance is a
personal obligation so far as the husband is
concerned, and it is his duty to maintain her even if
he has no property. If the husband has property then
the right of the widow to maintenance becomes an
equitable charge on his property and any person who
succeeds to the property carries with it the legal
obligation to maintain the widow;
(2) though the widow's right to maintenance is not a
right to property but it is undoubtedly a pre-existing
right in property, i.e. it is a jus ad rem not jus in rem
and it can be enforced by the widow who can get a
charge created for her maintenance on the property
either by an agreement or by obtaining a decree from
the civil court;
(3) that the right of maintenance is a matter of
moment and is of such importance that even if the
joint property is sold and the purchaser has notice of
the widow's right to maintenance, the purchaser is
legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a
pre-existing right which existed in the Hindu law long
before the passing of the Act of 1937 or the Act of
1946, and is, therefore, a pre-existing right;
(5) that the right to maintenance flows from the
social and temporal relationship between the
husband and the wife by virtue of which the wife
becomes a sort of co-owner in the property of her
husband, though her co-ownership is of a
subordinate nature; and
(6) that where a Hindu widow is in possession of the
property of her husband, she is entitled to retain the
possession in lieu of her maintenance unless the
person who succeeds to the property or purchases
the same is in a position to make due arrangements
for her maintenance."
(emphasis ours)
******************
23. Thus, we find that there is enough authority for the proposition that the right to maintenance of a Hindu female is a pre-existing right, which existed in the Hindu Law long before the Act of 1937 or the Act of 1946 came into force and is not a creation of those statutes, which only recognised that position. In the words of Fazal Ali, J. in Tulasamma's case : (SCC p. 135, para 62) "(1)The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from Page 14 of 17 the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights."
14. Finally Mr. Mahajan, learned counsel has brought to the notice of the court a decision of the Allahabad High Court in Beni Prasad and Others versus Smt. Ujji and Others reported in AIR 1978 All 421 where the Allahabad high court has observed that if the executant of the sale deed was holding the property in her own right it could certainly bind the members of the Hindu joint family to which she belongs. On the other hand if the property was only held in her name to secure for her a right or maintenance, and she was in fact not the owner of the property as alleged in the plaint then in that case, the sale deed was certainly one which purported to wrongly fully deprived the plaintiffs of their right to the property and they are certainly entitled to have it cancelled in order to safeguard their rights.
15. Mr. T.K. Deb, learned counsel appearing for the respondents has categorically submitted that the plaintiff does not hold any status to seek cancellation of the registered sale deed inasmuch as the plaintiff does not have any right over the property as demised in the disputed registered instrument to demonstrate her apprehension may cause serious injury to her. There is no dispute that the original defendant No.1 was the owner of the land before the transfer as caused by the registered instrument. So far the issue of consideration Page 15 of 17 value of the land is concerned those are full in the jurisdiction of the revenue. It does not affect the legal right and mere collateral to the context of a person. Mr. Deb, learned counsel has admitted that no suit has been filed by the defendant No.2-respondent against the plaintiff. As the defendant No.2 has admitted that he has been ousted from the possession, the option of taking legal action for recovery of possession still remains with the defendant No.2, unless it is shown that such suit as contemplated is barred by limitation. It is not contentions here.
16. Having appreciated the rival contentions as well as the evidence, this court is of the view that the family arrangement as reduced in writing (Exbt.1 series) cannot be admitted in the evidence for the bar created by Section 49 of the Registration Act, 1908. Section 49 provides that effect of non registration of documents which required to be registered is that it cannot be considered for any purpose. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered, shall affect immovable property comprised therein or confer any right to adopt or be received as the evidence of any transaction affecting such property or conferring such power unless it has been registered. An unregistered document affecting immovable property to be registered may be received as contract in a suit for specific performance or as evidence of part performance or as evidence of any collateral transaction not required to be affected by the registered instrument. Therefore, by way of the purported family arrangement, the document has been created in writing (Exbt.1 series) was required to be registered. From a bare reading, it surfaces that creation of perpetual right of the plaintiff on the scheduled property has been so Page 16 of 17 created by the said deed of agreement dated 15.04.2007. The answer is available in Kale (supra) where it has been categorically culled out that the registration would be necessary only if the terms of family arrangement are reduced into writing, creating the rights thereby. Whether a family arrangement is always mandatorily registrable in all the circumstances it has been observed by the apex court that a compromise or family arrangement if based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what the 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, is not registrable. This is not the case in hand. By the said agreement dated 11.5.2007 some rights have been created in favour of the plaintiff but that right is not on the basis of an antecedent title, therefore the said agreement even if assumed to be executed by the original defendant No.1 that will not satisfy the conditions required for cancellation of a registered instrument as provided under Section 31 of the Specific Relief Act and as such, the suit must fail.
17. The decision of the Allahabad high court in Beni Prasad (supra) is counterproductive to the argument as launched by Mr. Mahajan, learned counsel. It has been clearly held that if the property is held by a female in her name to secure her right of maintenance and she was in fact not the owner of the property as alleged in the plaint, then, in that case, the sale deed as executed by the said female was certainly one which purported to wrongfully deprive the plaintiffs who instituted the suit for their right over the property and they have certainly entitled to have it cancelled. Creating a right for maintenance does not always convert to a right of title. It is well Page 17 of 17 settled that if the property allocated for maintenance and is not transferred for the said purpose even then also, the proprietor can transfer the said property to any other person. However, on consideration of nature and conditions of arrangement for maintenance, at best the right of maintenance can devolve to the transferee. Thus this court does not find any infirmity in the finding returned by the first appellate court.
Hence, this appeal being devoid of merit is dismissed. Draw the decree accordingly.
Send down the records thereafter.
JUDGE Sabyasachi B