Punjab-Haryana High Court
Parduman Singh And Anr. vs Kartar Singh on 8 December, 1995
Equivalent citations: (1996)112PLR772
Author: S.C. Malte
Bench: S.C. Malte
ORDER S.C. Malte, J.
1. This appeal by the original defendants is against the judgment and decree by which the respondent-plaintiff was granted decree for partition of the land mentioned in the plaint. The rival contentions can be briefly summarized from the pleadings set-forth by the parties.
2. In order to appreciate the controversy between the parties, the following geological pedigree-table will render help -
Diwan Singh |
--------------------------------------
| |
Nand Singh Ganda Singh
Partap Singh |
(Adopted Puran Singh Defendant 3) |
(on 12.10.1920) --------------------------
| |
Amar Singh Ralla Singh
| |
Puran Singh Kartar Singh
(Defendant 3) (Plaintiff)
(Given in adoption to Partap Singh)
Since Partap Singh was issueless, he adopted Puran Singh, said adoption deed is said to have been registered, and there does not seem to be any dispute as to fact of such adoption. Puran Singh thus became the adopted son of Partap Singh. The said Puran Singh has two sons, namely, Parduman Singh (defendant No. 1) and Phuman Singh (defendant No. 2). Thus this is dispute between Kartar Singh, plaintiff on one said and his cousin Puran Singh as an adopted son of Kartar Singh and sons of Puran Singh on the other side.
3. Respondent-plaintiff Kartar Singh contended that on account of the adoption of Puran Singh by Partap Singh, it was felt that there was an imbalance in shares which otherwise would have fallen in the absence of adoption. That has led execution of a document dated 28.2.1924 which is titled as a will, though the plaintiff mentions it in the plaint as "a family settlement". On the basis of that document, the above mentioned Amar Singh declared that the lands, mentioned in the plaint, would go to the plaintiff after the death of the said Amar Singh. Amar Singh died on 19.6.72. Plaintiff therefore claimed that he has become the owner of the property that was covered by the document dated 28.2.1924. Despite that, certain mutations entries were affected by the Revenue Officers on the basis of some will in favour of defendants 1 and 2 (present appellants). He contended that deceased Amar Singh had not executed any such will in favour of these defendants; and if any such document was executed, it was not a valid will in view of the family settlement that had taken place a long back in 1924. He further alleged that the said document in favour of defendants 1 and 2 was an outcome of fraud and undue influence by these defendants. He further alleges that defendants 1, 2 and 3 obtained forcible and illegal possession of the suit land after 11.12.1974. The plaintiff, therefore claims the possession of this suit-land on the basis of title.
4. Defendants (present appellants) by their written statement opposed the suit. Besides the technical objections, such as, bar of limitation and locus standi to file the suit, on merits, they have contended that the document on which the plaintiff relies was not a family settlement, nor the deceased Amar Singh ever executed such a document in favour of the plaintiff. They further claimed that even if for arguments sake, it was held that such document, executed in 1924, did exist, the same was cancelled later on by Amar Singh, and the said Amar Singh during his life time executed a valid will on 22.9.1987 and duly registered it, and thus gave his property to defendant No. 1. As per that will the children born to defendant No. 3 were also entitled to get their due share, and other defendants were also therefore entitled to the share in the suit property. They denied that they illegally took possession of the suit property.
5. The trial Court was of the view that the document executed on 28.2.1924, was not a will but was a family settlement. On that premise, he further observed that the deceased Amar Singh had no authority to cancel the said family settlement. According to him, the said document was nothing but a relinquishment of the rights over the property by Amar Singh. On this main finding, he decreed the suit for possession. Against the said judgment, the present appellants took up the matter to the District Court by way of a civil appeal. The Additional District Judge concurred with the view of the trial Court that the said document dated 28.2.1924 (Exhibit PA) was a family settlement, though it was executed in the form of a will.
6. The counsel for the appellants submitted before me that the will executed in 1924 had been cancelled by the subsequent deed executed in 1937, followed by the last will dated 21.6.1937. It was submitted that the trial Court committed an error in arriving at the conclusion that the deceased Amar Singh was not legally entitled to cancel the document for the respondent submitted that the circumstances that led to execution of a document in 1924 clearly indicate that it was a family settlement or arrangement though titled or drafted in the form of a will. Briefly stated therefore he supported the trial court's judgment.
7. While dealing with these rival contentions one is required to keep in mind the contentions as raised by the parties through their pleadings. The respondent-plaintiff has in clear words come forth with the case that the deceased Amar Singh executed a family settlement in 1924 and declared that the properties belonging to him (Amar Singh) shall devolve after his death in a particular manner, which gave right to the plaintiff-respondent to own certain properties as mentioned in the plaint. The appellant-defendants in their written statement came forth with the case that the documents referred in the plaint and the written statement were the wills executed by Amar Singh and these respondents became the owner of the suit property. It is significant to note that these rival parties have proceeded on the basis that deceased Amar Singh exclusively owned the suit properties, in respect of which he was entitled to execute such documents as he would wish to. There is no dispute that these suit properties were exclusively owned by deceased Amar Singh. The whole controversy therefore rested on the question as to the nature of the documents executed by Amar Singh from time to time. As indicated above, both the courts below have come to the conclusion that the document executed on 28.2.1924 was a family settlement, though executed in the form of a will.
8. It clearly appears to me that both the lower courts have not taken into consideration the scope and meaning of the term 'family settlement' or 'family arrangement' as understood in the legal parlance. The concept of family arrangement that was used in England has been accepted by the Courts in India by adopting it to suit the family set-up in our country. While considering the meaning and the scope, of the said term the Supreme Court in a case of Maturi Pullaiah and Anr. v. Maturi Narasimham and Ors., A.I.R. 1966 S.C. 1836 has taken into consideration the meaning unsigned to another ruling reported in A.I.R. S.C. 481 (Sahu Madho Das v. Mukand Ram)' In the earlier case, the Supreme Court had observed:
"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."
After quoting these words, their Lordships in case of Maturi Pullaiah (supra) further observed that the principles governing family arrangement 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 that might ruin them all. After making these observations, their Lordships in para 17 of the report concluded as follows:
"Briefly stated, though conflict of legal claims in presenti 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."
9. It may further be mentioned that observations made in the said ruling came to be approved in a subsequent ruling reported in M.N. Aryamurthi and Anr. v. M.L. Subbaraya Setty (dead) by his LRs. and Ors., A.I.R, 1972 S.C. 1279. On reading of the case of Maturi Pullaiah (supra) I find that in that case, the facts indicated that there was a dispute among the members of the joint,, family as regards the extent of their rights in the joint family property The question, therefore, arose as to whether effect should be given to the family arrangement under which the certain shares were given to one of the contesting parties. Those facts led to the observations as mentioned above. The factual position as revealed in the case of M.N. Aryamurthi's case indicates that a document purporting to be a will had been executed, and the question arose as to the interpretation of it and extent of its operation. In that case, it was observed that it was not possible to give effect to the will because it was illegal on the ground that a coparcener cannot devise joint family property by will. After having held so, their Lordships further proceeded to consider the said document as the one that was executed to bring about harmony in the family by avoiding the disputes on the issue of shares among the joint family. It s in that context that their Lordships treated the said document as the family arrangement. It may be mentioned here that both the lower courts had committed an error in picking up certain lines from that ruling without considering the factual aspect that led to the observations by their Lordships. Moreover, I would say that both the lower Courts have lost sight of the meaning and the scope of the term 'family arrangement' or 'family settlement', as could be spelt out from various authorities to judicial pronouncements. The combined reading of the rulings referred above brings us to the following propositions that would help us to indicate the scope of the term ' family arrangement' or 'family settlement'. These are (i) compromise or family arrangement is based on assumption that there is an antecedent title of some sort in the contesting parties; (ii) the agreement acknowledges and defines what that title is; (iii) each party relinquishes certain claims to the property other than the one falling to his share; (iv) there is a recognition of the right of the others ; (v) the family arrangement is arrived at to avoid conflicts among the joint family members on the issue of their rights in the property, and with a view to maintain peace and harmony in the family; (vi) such arrangement is made either on account of the present disputes or future disputes among the joint family members; ,and (vii) that such family arrangement should be bona fide and terms thereof should be fair in the circumstances of the case.
10. The abovementioned principles should be taken into consideration while considering the nature of the documents involved in this case. At the same time one should remember that while interpreting the document, the words and phrases used therein should be given its plain and natural meaning, unless there is an ambiguity which necessitates the interpretation by deriving help from the attending circumstances. Both the lower Courts in this case have forgotten that primary principles while interpreting the document. As such the help of the extraneous material , and the circumstances should be drawn only if such a need arises to resolve certain ambiguity in the document. Both the courts rather adopted a reverse order while interpreting the nature of the document. They have first taken into consideration the circumstances of the case and then tried to interpret those circumstances to hold that said document indicates 'family arrangement'. Both the lower courts failed to take into consideration the various principles that govern the scope of the term "family arrangement" or "family settlement". Both the courts ignored the plain meaning of the term 'will' as defined under the various provisions.
11. Exhibit PA dated 28.2.1924 proceeds with the preface that it is a will. In the same preface the testator Amar Singh has also narrated the circumstances which led him to execute the will. Moreover the evidence on record undoubtedly indicates that execution of the said document was preceded by the circumstances that the plaintiff Kartar Singh had a grievance, regarding imbalance in inheritance of properties after the death of Amar Singh because Amar Singh's son Puran (defendant No. 3) had gone in adoption to his uncle Partap Singh, as per the registered adoption deed dated 12.10.1920. Amar Singh has also mentioned in the said will that he was executing these "wills" because of the possible disputes after his death. In the said will, Amar Singh has declared himself as the sole owner of the properties covered by the will, which are also said to be the suit properties. Moreover, it is an admitted position by both the sides that the properties thus dealt with by Amar Singh by executing various documents belonged to him exclusively, and he had right to dispose of these properties by executing documents. Amar Singh further states that after his death these properties shall devolve in the manner mentioned therein. A major portion of the property was to devolve on Kartar Singh. In the concluding line he has mentioned that he has thus executed the will. The said document has been registered as a will. It may be mentioned that plaintiff Kartar Singh was one of the persons who had signed on the said document as a witness while registering the document on 3.3.1924. In other words, it is clear that the beneficiary under the said document was present at the time of registration. The counsel for the respondent wanted to claim that the presence of, and signatures of Kartar Singh (Plaintiff) at the time of the registration, was an indication that he was party to the said document. I am unable to accept that claim. A person who signs in token of his presence at the time of registration of a document cannot be said to be a party to the document. Such signatures are only indication of the presence of the said person and nothing beyond that. It may be mentioned here that the properties were described by Amar Singh as exclusively belonging to him; and that is an admitted position from the pleadings also. It may, therefore, be mentioned that the said document was executed not with a view to sort out some rival claims to the property belonging to Amar Singh. There was no question that Kartar Singh was called upon to recognize the rights of some-one in the property covered by the said document. There was no question of Kartar Singh relinquishing certain claims to the property belonging to Amar Singh. All that was indicated was that Amar Singh wanted to keep Kartar Singh pleased by declaring that he (Kartar Singh) would get some share after the death of Amar Singh. It was contended by the counsel for the respondent that in the background of the circumstances it can be said to be a family settlement though it was contemplated to take effect after the death of Amar Singh. I am unable to accept that submission. It the disposition of property which is to take effect after the death of person disposing it of, it would certainly fall within the definition of a will Under Section 2(h) of the Indian Succession Act, 1925, or Section 2 of the Indian Succession Act, 1865 which was then in existence. The said definition says, "'will' means the legal declaration of intention of the testator with respect of his property, which he desires to be carried into effect after his death." Briefly stated, therefore, disposition of the property which the testator desires to be carried into effect after his death, would be a will. Besides the above position, it may be recalled that the necessary ingredients to indicate that the said document was a family arrangement, is lacking.
12. It was submitted on behalf of the respondent that the circumstances that led to the execution of the document dated 28.12.1924 should be taken into consideration while considering the effect of the said document. I am unable to accept that contention also. The settled position is that the document should be read and understood by giving it its natural and plain meaning of the words used. Secondly, what prompted the execution of the said document, though indicates the 'intention' that by itself would not be a decisive test to conclude it as a family arrangement, though the said document squarely falls within the definition of a 'will'. Besides that the necessary requirements to spell out the family arrangement are not found, as discussed above. Both the lower Courts committed error in not properly taking into consideration the legal position in that respect.
13. Once it is held that it was a will executed by Amar Singh, it follows that he was entitled to cancel it during his life time. He has thus cancelled it by Exhibit D-3 dated 23.9.1937. It was followed by another will Exhibit D-4 dated 21.6.1937. The said will is more than thirty years old when it was sought to be proved to the trial Court. The said will has come from proper custody is as much as it has been produced by the defendants (appellants) with whom deceased Amar Singh was staying till his death on 19.2.1972. Amar Singh while "executing the last will has clearly indicated that Kartar Singh (plaintiff) has betrayed his trust in him and had decline to look after him. The said will Exhibit D-4 is the registered will. There are no circumstances to indicate that the said will Exhibit D-4 was shrouded with suspicious circumstances. Amar Singh had survived thereafter for a long span of about 35 years. I, therefore, find that the appellants (defendants) were to get the properties as per the said will dated 21.6.1937. In the result, I allow the appeal, with costs and set aside the judgments and decrees passed by both the lower Courts, and dismiss the suit with costs.