Punjab-Haryana High Court
Rajni Bajaj And Ors. vs Ram Piari on 12 August, 2005
Equivalent citations: (2006)142PLR708
JUDGMENT M.M. Kumar, J.
1. This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that plaintiff-respondent Ram Piari was entitled to possession by way of partition to the extent of 1/4th share in the property left by her son Goverdhan Kumar who died in-testate leaving behind his father Dr. Gopal Dass. defendant-appellants Rajni, widow and two minor daughters Rosy and Archana. The plea set up by the defendant-appellants has been that plaintiff-respondent Ram Piari was not owner in possession of the property in dispute and 1/4th share which she has relinquished in favour of the defendant-appellants. In this regard a reference was made to a decree Ex.D1 dated 21.3.1989 allegedly suffered by plaintiff-respondent Ram Piari in favour of the defendant-appellants. However, both the Courts' below have found that the defendant-appellants have failed to prove that Ram Piari plaintiff-respondent ever suffered any decree like Ex.D1 dated 21.3.1989 in their favour. The file of Civil Suit No.2 of 1989 wherein consent decree Ex.Dl was passed had never been summoned nor the statement made by Ram Piari in the aforementioned file has ever been produced. In these circumstances, tendering of a certified copy of the judgment and decree Ex.D1. has not been considered sufficient to record a finding that the plaintiff-respondent actually suffered a decree in favour of the defendant-appellants,
2. It has further been found that in any case, such a decree like Ex.Dl would not result into fructification of any right because no pre-existing rights through the family settlements were proved by leading cogent evidence. It, therefore, has led to the conclusion that the rights were created for the first time through consent decree under Section 17 of the Registration Act, 1908 (for brevity, 'the Act') which envisages that any property worth more than Rs. 100/- was required to be registered compulsorily. In that regard, reliance has been placed on a judgment of the Supreme Court in the case of Bhoop Singh v. Ram Singh Major and Ors. (1995-1)112 P.L.R. 559 (S.C.). The aforementioned judgment has been applied to the facts of the present case particularly where Rajni Bajaj defendant-appellant when appeared in the witness box as DW-1 has stated that she would produce the family settlement which has been recorded in black and white. However, the family settlement did not see the light of the day which also resulted in an adverse inference that there was no such family, settlement in existence and there were no pre-existing rights, even if the consent decree Ex.Dl was presumed to have been suf-tered by the plaintiff-appellant.
3. I have heard the learned Counsel at a considerable length and do not feel persuaded to take a view different than the one taken by the Courts below. It has been established on record that son of the plaintiff-respondent, who was also husband of defendant-appellant No. l had died in-testate. He was survived by old parents which included his mother the plaintiff-respondent, his widow and two daughters who are defendant-appellants. Both the Courts below have concurrently found that the plaintiff-respondent, mother of the deceased is entitled to l/4th share, whereas the defendant-appellants are entitled to 3/4th share. The plea of the defendant-appellants in the shape of consent decree firstly has not been proved and secondly the Courts below have tested the consent decree after presuming it to be a valid legal document and as a decree suffered by the plaintiff-respondent. It has been found concurrently that the document would require registration as it creates rights, for the first time in favour of the defendant-appellants. The failure to register such a document which is worth more than Rs. 100/- has been taken as fatal. Section 17 of the Act as interpreted by the Supreme Court in the case of Bhoop Singh (supra) has been applied to conclude that in the absence of any pre-existing rights proved before the Courts by cogent evidence, such a consent decree cannot be made the basis for concluding that it confers any rights in favour of the transferee. Therefore, there is no occasion to interfere in pure findings of fact. There is no proof of family settlement which was orally stated to be in existence by defendant-appellant No. l when she appeared as her own witness as DW-1 and the same was never produced by her as was her atemen before the Court. There is, thus, no merit in the appeal warranting its admission. No question of law has been raised.
4. In view of the above, this appeal fails and the same is dismissed.