Rajasthan High Court - Jodhpur
Municipal Council, Bhilwara vs Bal Mukand on 21 February, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023/RJJD/005225]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4012/2014
Municipal Council, Bhilwara
----Petitioner
Versus
Bal Mukand
----Respondent
For Petitioner : Mr. Kailash Nath Joshi
Mr. Kapil Joshi
For Respondent : Mr. R.S. Saluja
Ms. Anmol Saluja
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
Reserved on 13/02/2023
Pronounced on 21/02/2023
1. This Civil Writ Petition has been preferred claiming for the
following reliefs:-
"It is, therefore, most respectfully prayed on behalf of
petitioner that the writ petition may kindly be allowed and:-
a/- By an appropriate writ, order or directions in the nature
of certiorari, the impugned Order dated 01.03.2014
(Annex.4) passed by the learned Additional Civil Judge (Jr.
Div.), Bhilwara in Civil Original Case No. 21/2009 may kindly
be quashed and set-aside.
I/A- Further by an appropriate writ, order or direction, the
Hon'ble Court may please to pass an appropriate order to the
trial court to reject the above suit on the aforesaid facts and
circumstances of the case and settled position of law.
b/- Pending the petition, if any order is passed or any
action is taken against the petition prejudicial to his interest,
the same may kindly be quashed and set-aside.
c/- Any other appropriate order or direction, which this
Hon'ble Court considers just and proper in the facts and
circumstances of this case, may kindly be passed in favour of
the petitioner.
d/- Costs of the amended writ petition may kindly be
awarded to the petitioner.
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2. Brief facts of the case as placed before this Court by the
learned counsel for the petitioner are that the respondent-plaintiff
preferred a suit for permanent injunction, registered as 18/2001,
before the learned Trial Court with regard to property (bunch of
shops) situated at Ward No. 27 near Animal Hospital, Bhilwara
praying that the Municipal Council, Bhilwara shall not interfere
without due process of law in their peaceful possession of the land
in question. And that, during the course of trial, an application
under Order 7 Rule 14 CPC was preferred by the respondent-
plaintiff for taking family settlement as evidence on the record,
which came to be allowed by the learned Court below vide the
impugned order dated 01.03.2014 (at Annex.4)
3. Learned counsel for the petitioner assails the impugned order
on two grounds; that under Section 271 of the Rajasthan
Municipalities Act, 1959 as well as under Section 304 of the
Rajasthan Municipalities Act, 2009, two months notice is
mandatory for filing a suit, and that the family settlement was
incorrectly taken on the record by the learned Court below despite
the same being an unregistered and unstamped document.
For the sake of brevity, the said Sections are reproduced
hereunder:-
271. Suits against Board or Its officers--
(1) No suit shall be instituted against a Board, or against the
Chairman, Vice-Chairman, member, officer or servant of a
Board or against any person acting under the direction of any
of them in respect of an act done or purporting to have been
done in its or his official capacity until the expiration of two
months next after notice thereof in writing has been in the
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case of a Board, left at its office and, in the case of the
Chairman, Vice-Chairman, member, officer, servant or
person, delivered to him or left at his office or place of abode,
explicitly stating the cause of action, the nature of the relief
sought, the amount of compensation claimed and the name
and place of abode of the intending plaintiff, and the plaint
shall contain a statement that such notice has been so
delivered or left.
(2) No action such as is described in Sub-section (1) shall,
unless it is an action for the recovery of immovable property
or for a declaration of title, be commenced otherwise than
within six months next after the accrual of the cause of
action.
(3) Nothing in Sub-section (1) shall be construed to apply to a
suit wherein the only relief claimed is an injunction of which
the object would be defeated by the giving of the notice or
the postponement of the commencement of the suit or
proceeding."
304. Suits against Municipality or its officers.-
(1) No suit shall be instituted against a Municipality or against
the Chairperson, Vice-Chairperson, member, officer or servant
of Municipality or against any person acting under the
direction of any of them in respect of an act done or
purporting to have been done in its or his official capacity,
until the expiration of two months next after notice thereof in
writing has been, in the case of a Municipality, left at its office
and, in the case of the Chairperson, Vice-Chairperson,
member, officer, servant or person delivered to him or left at
his office or place or abode explicitly stating the cause of
action, the nature of the relief sought, the amount of
compensation claimed and the name and place of abode of
the intending plaintiff, and the plaint shall contain a
statement that such notice has been so delivered or left.
(2) No action such as is described in sub-section (1) shall,
unless it is an action for the recovery of immovable property
or for a declaration of title thereto, be commenced otherwise
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than within six months next after the accrual of the causes of
action.
(3) Nothing in sub-section (1) shall be construed to apply to a
suit wherein the only relief claimed is an injunction of which
the object would be defeated by giving of the notice or the
postponement of the commencement of the suit or
proceeding.
4. Learned counsel for the petitioner further assails the
impugned order and submits that the learned Court below has
erred in placing reliance on the judgment rendered by the Hon'ble
Apex Court in the case of Tek Bahadur Bhujil v. Devi Singh
Bhujil & Ors. AIR 1966 SC 292 as the same does not apply in
the present case.
5. Learned counsel for the petitioner placed reliance; on the
judgment rendered by the Hon'ble Apex Court in the case of
Roshan Singh and Ors. v. Zile Singh and Ors. (Civil Appeal
No. 2185/1987) decided on 24.02.1988 and on the judgment
rendered by this Court in the case of Smt. Jamna Bai v. Tulsi
Ram (Civil Revision Petition No. 632/1996) decided on
25.09.1996.
Relevant portion of the said judgments as relied upon by the
learned counsel is reproduced hereunder:-
In Roshan Singh (supra):-
"It is well-settled that while an instrument of partition which
operates or is intended to operate as a declared volition
constituting or severing ownership and causes a change of
legal relation to the property divided amongst the parties to
it, requires registration under s.17(1)(b) of the Act, a writing
which merely recites that there has in time past been a
partition, is not a declaration of will, but a mere statement of
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fact, and it does not require registration. The essence of the
matter is whether the deed is a part of the partition
transaction or contains merely an incidental recital of a
previously completed transaction. The use of the past tense
does not necessarily indicate that it is merely a recital of a
past transaction. It is equally well-settled that a mere list of
properties allotted at a partition is not an instrument of
partition and does not require registration. Sec. 17(1)(b) lays
down that a document for which registration is compulsory
should, by its own force, operate or purport to operate to
create or declare some right in immovable property.
Therefore, a mere recital of what has already taken place
cannot be held to declare any right and there would be no
necessity of registering such a document. Two propositions
must therefore flow: (1) A partition may be effected orally;
but if it is subsequently reduced into a form of a document
and that document purports by itself to effect a division and
embodies all the terms of bargain, it will be necessary to
register it. If it be not registered, s. 49 of the Act will prevent
its being admitted in evidence. Secondary evidence of the
factum of partition will not be admissible by reason of s. 91 of
the Evidence Act, 1872. (2) Partition lists which are mere
records of a previously completed partition between the
parties, will be admitted in evidence even though they are
unregistered, to prove the fact of partition: See Mulla's
Registration Act, 8th edn., pp. 54-57."
In Smt. Jamna Bai (supra):-
"It may be stated at the very outset that the document in
question was registerable and it ought to have been written
on proper stamps. The document is, therefore, neither
registered nor written on stamp papers. It cannot be gainsaid
that under Section 49 of the Registration Act, a document can
be allowed to be admitted in evidence for a collateral purpose
or to determine the nature and character of possession and
there cannot be any dispute regarding the correctness of this
proposition. However, in the present case, the document
suffers from second infirmity, namely, it was not written on
proper stamps. Hence, provisions of Section 35 of the Stamps
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Act come into play and Section 35 provides that the document
cannot be admitted in evidence for any purpose. What is the
exact connotation of the words "for any purpose"? This
question came for interpretation before Allahabad High Court
in Mst. Bibo's case (MANU/UP/0038/1936 : AIR 1937 All 101)
and it was held by Allahabad High Court that the phrase
undoubtedly implies each and every purpose whatsoever
without any exception and it matters little whether the
purpose is the main purpose or a collateral one. In Nihal-
singh v. Singhraj and others' case (1989 (1) R LR 384)
(supra) this Court concurred with the Allahabad High Court's
view. In fact, the present case falls squarely within the ratio
decidendi of the Nihalsingh's case. In that case also the
document in question was neither properly stamped nor
registered. The party wanted its reception in evidence for the
collateral purpose of proving the nature and character of
possession. It was held that such a document cannot be
admitted in evidence even for a collateral purpose. I fully
agree with this rule."
6. On the other hand, learned counsel for the respondent
opposed the submissions made on behalf of the petitioner and
submitted that the mandate of two months notice as under the old
Act being the Rajasthan Municipalities Act, 1959 and under the
new Act being the Rajasthan Municipalities Act, 2009, is not
attracted in the present case, as it would come under the
exception contained in sub-section (3) of Section 271 of the old
Act / sub-section (3) of Section 304 in the new Act, as the only
relief sought is that of injunction.
7. Learned counsel for the respondent further submitted that
the document in question was a family arrangement, and
therefore, did not require to be registered or stamped. In this
regard, reliance was placed upon the judgment rendered by the
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Hon'ble Apex Court in the case of Hansa Industries Pvt. Ltd. &
Ors. v. Kidarsons Industries Pvt. Ltd. (Civil Appeal No.
1682/1999) decided on 13.10.2006, and by this Court at Jaipur
Bench in the case of Mohan Leelani v. Pevi Bai & Ors. (S.B.
Civil Revision Petition No. 338/1998) decided on 20.09.2000.
Relevant portion of the said judgments as relied upon by the
learned counsel are reproduced hereunder:-
In Hansa Industries Pvt. Ltd. (supra):-
"This Court held that courts have 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 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 principles were
concretized and succinctly reduced to 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
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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."
In Mohan Leelani (supra):-
"It is not disputed that the family settlement does not require
any registration. In family settlement parties do agree for
creating and taking away certain rights in the property and in
the circumstances mentioned, if family members do agree to
share the property equally, it canot be said that it is not a
family settlement. In my opinion, the trial Court has erred
and has not exercised the jurisdiction vested in it by declining
to take on record the family settlement."
8. Heard learned counsel for the parties and perused the record
of the case.
9. This Court observes that the relief sought in the suit in
question is that of injunction, and therefore, as rightly contended
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by the learned counsel for the respondent, it would fall under the
exception contained in sub-section (3) of Section 271 of the old
Act i.e. the Act of 1959 as also under sub-section (3) of Section
304 of the new Act i.e. the Act of 2009.
10. This Court further observes that the admission of
unregistered documents, which are compulsorily registrable
documents as under Section 17 of the Registration Act, 1908 into
evidence, may be admitted in accordance with the proviso
contained in Section 49 of the Registration Act, 1908.
For the sake of brevity, the same is reproduced as hereunder:-
49. Effect of non -registration of documents required to be
registered:-
...
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (IV of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1887 (I of 1887), or as evidence of any collateral transaction not required to be effected by a registered instrument.
11. The Hon'ble Apex Court in the judgment rendered in the case of Kale v. Dy. Director of Consolidation 1976 AIR 807 has settled the law with respect to registration of a family arrangement/settlement. The same was reiterated by the Hon'ble Apex Court in the case of Hansa Industries Pvt. Ltd. (supra), cited on behalf of the petitioner, and again in the recent case of Korukonda Chalapathi Rao & Anr. v. Korukonda Annapurna (Downloaded on 23/02/2023 at 11:54:07 PM) [2023/RJJD/005225] (10 of 13) [CW-4012/2014] Sampath Kumar (Civil Appeal No. 6141/2021) decided on 01.10.2021.
For the sake of brevity, the relevant portion of the judgment rendered in the case of Kale v. Dy. Director of Consolidation (supra) is reproduced hereunder:-
"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 settlement. Even if one of the parties to the settlement has no title but under (Downloaded on 23/02/2023 at 11:54:07 PM) [2023/RJJD/005225] (11 of 13) [CW-4012/2014] 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."
12. This Court also observes that with regard to requirement of stamp duty of a family arrangement/settlement, the Hon'ble Apex Court in the case of Korukonda Chalapathi Rao & Anr. (supra) has observed as under:-
"35. As far as stamp duty goes, on our finding regarding the nature of the document, viz., Khararunama, being record of the alleged transactions, it may not require to be stamped."
13. This Court also observes that it is not the contention of the petitioner that the document in question is not a family arrangement, and the learned Court below vide the impugned order dated 01.03.2014, has categorically recorded the finding that the document in question is a family arrangement/settlement. Furthermore, the said document has not been placed on the record for a perusal of this Court.
Relevant portion of the impugned order dated 01.03.2014 is reproduced hereunder:-
" nkSjku lk{; oknh] oknh }kjk ikfjokfjd le>kSrki= fnukWd 16-11-99 dks izn'kZ vafdr djkuk pkgk ftl ij vf/koDrk & izfroknh us vkifRr tkfgj dj rdZ izLrqr fd;k fd mDr (Downloaded on 23/02/2023 at 11:54:07 PM) [2023/RJJD/005225] (12 of 13) [CW-4012/2014] nLrkost viathd`r gksdj vi;kZIr eqnzakd ij gS ftls lk{; esa xzkg~; ugha ekuk tk ldrkA ;g Hkh rdZ izLrqr fd;k fd mDr nLrkost ds voyksdu ls ;g ikfjokfjd le>kSrk i= izdV u gksdj fjyht & MhM dh JS.kh esa vkrk gS ftldk iathd`r gksuk vko';d gSaA mDr nLrkost ds voyksdu ls izdV gS fd mDr nLrkost le>kSrki= izFkei{kx.k yknwyky] izgyknjk; o d`".k xksiky }kjk oknh ckyeqdan f}rh; i{k ds e/; esa mHk; i{kdkjku ds firk }kjk iwoZ esa fu"ikfnr ckgeh caVokMk dh gh ?kks"k.kk dh xbZ gSA mDr nLrkost esa ek= bl rF; dk vadu gS fd tks tk;nkn cky eqdan [kkrh ds fgLls esa mlds firk LoxhZ; exuhjke dh e`R;q ds i'pkr~ vkbZ gS] mlls izFke i{kx.k dk dksbZ ysuk nsuk ugha gSaA izkFkhZ }kjk mDr izkFkZuki= ds lkFk layXu nLrkostkr lwpuk ds vf/kdkj ds rgr oknh }kjk izkIr fd;s x;s gSA okni= ds voyksdu ls izdV gksrk gS fd oknh us oknxzLr tk;nkn ds laca/k esa izfroknh ds fo:) LFkkbZ fu"ks/kkKk dk vuqrks"k pkgk gSA oknh }kjk izLrqr nLrkostkr oknxzLr tk;nkn ds laca/k esa oknh }kjk dh xbZ dk;Zokgh ds laca/k esa gksuk izdV gksrs gSaA"
14. This Court further observes that the case-laws cited on behalf of the petitioner do not apply in the facts and circumstances of the present case.
15. As an upshot of the above discussion and in the given factual matrix, this Court is disinclined to upset the finding of the learned Court below.
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16. The present petition is dismissed. Accordingly, the pending stay application also stands dismissed.
17. No order as to costs.
(DR.NUPUR BHATI),J 74-Sanjay/-
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