Punjab-Haryana High Court
Kidara vs Mange on 7 December, 2000
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1. This regular second appeal has been directed by the plaintiff against judgment and decree dated 29.8.1980 passed by Additional District Judge, Jind, whereby, the appeal filed by the defendants was accepted and the suit of the plaintiffs for declaration was dismissed, but the parties were left to bear their own costs throughout.
2. Briefly stated the facts are that Shiv Lal son of Mekha was owner of 1/2 share of land measuring 109 Kanal and 5 Marlas detailed in the heading of the plaint. On 20.9.1973, he executed a will in favour of the respondents (defendants) of his entire share in the above mentioned land.
3. The appellants brought a suit for declaration and challenged the above said will. However, compromise took place between them. Consequently, two agreement Ex.P1 and Ex.P2 were executed between the parties and according to these agreements, they would transfer 2/3rd share of the inherited property to the appellants. The said agreements were not produced in the Court, nor any order was passed on the basis of compromise. The appellants got their suit dismissed in default under Order 9 rule 2 C.P.C. on 17.8.1973 vide order Ex.P-9.
4. After the death of Shiv Lal, the mutation of the above mentioned land was sanctioned in favour of the respondents and they did not transfer 2/3rd share of the suit land in favour of the appellants as agreed. Consequently, the appellants filed a suit for declaration that they were owners of 2/3rd share out of 1/2 share of land measuring 109 Kanal-5 Marla, situated in village Inael Kalan, Tehsil and District Jind, as per jamabandi 1970-71 and further, they were entitled to get possession after getting it partitioned.
5. The respondents contested the suit and filed written statement. They stated that they never entered into alleged compromise with the appellants, nor executed agreements Ex.P1 and Ex.P2 in their favour. They further stated that the said agreements, if any, are the result of fraud and deceit practised upon them and as such, the same were not binding upon them. They next stated that during the life time of Shiv Lal, they had no right to execute the said agreements. They also stated that the suit was not maintainable in the present form as appellants were not in possession of the suit land and further they had no locus standi to file the suit. They next stated that the suit was not properly valued for the purposes of court fees and jurisdiction.
6. In view of these pleadings, the following issues were struck by the then Sub Judge, II Class, Jind on 10.2.1976:--
1. Whether there was any agreement between the parties, as alleged in paras 2 and 3 of the plaint. If so, what are its terms and its effect ? OPP
2. Whether defendant No. 2 is properly described, if not its effect ? OPP
3. Whether plaint is defective for want of description of the land in plaint, if so, its effect ? OPD
4. Whether plaintiffs have no locus standi to bring the suit in presence e of Chanderpati daughter of Shiv Lal ? OPD
5. Whether defendants had no right to enter into an agreement qua the land of Shiv Lal during the life time ? OPD.
6. Relief.
7. On 3.10.1978, the two following additional issues were also framed:--
5-A. Whether the suit is not maintainable in the present form ? OPD 5-B. Whether the plaint has not been properly valued for the purposes of court fees and jurisdiction ? OPD
8. After hearing counsel for the parties and perusing the evidence on the file, the then Sub Judge 11 Class, Jind, decreed the suit by holding under issue No. 1 that the respondents had executed the agreements Ex.P1 and Ex.P2 in favour of the appellants and according to those agreements, they were bound to get sanctioned mutation of 1/3rd share of the suit land in favour of appellants 1 and 2 and 1/3rd share in favour of appellants 3 to 5. Under issues 2, 3 and 4, it was held that respondent No. 2 is properly described in the plaint and the suit is not defective for want of description of land and further the appellants had locus standi to file the suit. Under issue No. 5, it was held that the respondents were competent to enter into agreement qua the suit land of Shiv Lal during the life time as contingent contract can be entered into under Section 34 of the Contract Act. Under issue No. 5-A, it was held that the suit was maintainable in the present form and under issue No. 5-B, it was held that the suit was properly valued for the purposes of Court fees and jurisdiction.
9. Aggrieved by the judgment and decree, the defendants filed an appeal which was heard by Additional District Judge, Jind. He vide judgment and decree dated 29.8.1980, set aside the judgment and decree of the Sub Judge, II Class, Jind, dated 29.11.1978 and dismissed the suit of the appellants for declaration by holding that although the respondents had executed the agreements Ex.P-1 and Ex.P2, yet the same could not be enforced as they were unregistered. It was also held that the suit for declaration simplicitor was not maintainable as they had not claimed joint possession by way of consequential relief.
10. Aggrieved by the findings of the Appellate Court on issues No. 1 and No. 5-A, plaintiffs have filed the present regular second appeal.
11. Counsel for the appellants Shri Gopi Chand and counsel for the respondents Shri Rajesh Chaudhary were heard and the records were perused.
12. There is no dispute about it that the respondents had executed agreement Ex.P-1 and Ex.P-2. Through these agreements, the respondents had agreed that after the death of Shiv Lal, if the suit land was mutated in their favour, they would divide it amongst themselves as under :-
1. Kidara and Lachhman sons of Maara ----1/3rd share Singh appellants 1 & 2
2. Tala, Sila and Chhota sons Molu ap- ----1/3rd share pellants 3 to 5
3. Mange, Dalip sons of Chander respon- ----1/3rd share dents
13. These agreements are otherwise also proved from the statements of PW4 Ram Sarup, attesting witness of the agreement Ex. P1, PW2 Kishan Lal attesting witness of the agreement Ex. P-2 and Babu Ram petition writer who had scribed the aforesaid agreements; PW3 Yash Pal Chand Jain has also stated in his report Ex.P-5 that agreement Ex.Pl contains the thumb impression of Dalip respondent No. 2, while agreement Ex.P-2 contains the thumb impression of Mange respondent No. 1. Even DW-3 Sube Singh attesting witness of the agreements Ex.Pl and Ex.P2 had admitted the execution of the said agreements which were scribed by Babu Ram Petition Writer.
14. Counsel for the respondents contended that the agreements Ex.Pl and Ex.P2 were not admissible in evidence on account of non-registration. In support of his contention, he placed reliance on Section 17(1)(b) of the Indian Registration Act, 1908 which stated that non-testamentory instruments which support or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest vested or contingent, of the value of Rs. 100/- and upwards, to or in immovable property require compulsory registration.
15. There is no dispute about it that the value of the land in the present case is more than of Rs. 100/-. It is not the case that the agreements Ex.P-1 and Ex.P-2 by way of compromise were filed in the Court and the Court had passed the order on the basis of the said agreements. On the other hand, the suit which was filed by the appellants during the life time of Shiv Lal was got dismissed in default under Order 9 Rule 2 C.P.C. It was next stated by Dalip in agreement Ex.P-1 and by Mange in Ex.P-2 that their uncle Shiv Lal son of Mokha executed the will in their favour on 20.4.1973, but the Panchayat had got effected compro-mise that if the will in their favour remained intact, then after the death of Shiv Lal, they were to be owners as under:--
1. Kidara and Lachman sons of Maara ----1/3rd share Singh appellants 1 &2
2. Tala, Sila and Chhota sons Molu ap- ----1/3rd share pellants 3 to 5
3. Mange. Dalip sons of Chander respon- ----1/3rd share dents
16. Thus, according to these documents on the death of Shiv Lal, if the will remained intact in favour of the respondents, then the appellants would be owners of 2/3rd share of the property in question. Therefore, these documents purport or operate to create or declare right, title or interest in the suit land to the extent of 2/3rd share in favour of the appellants, which is contingent on the happening of the event i.e. the death of Shiv Lal and the will in favour of the respondent remaining intact. Hence, according to Section 17(1)(b) of the Registration Act, 1908, the said documents require compulsory registration. Being unregistered, the same cannot be read into evidence.
17. Counsel for the appellants contended that family arrangement had taken place between the parties and in view of that family arrangement, the agreements in the shape of memorandum were executed and as such the same did not require the compulsory registration. He has placed reliance on an authority of the Supreme Court; Kale and others v. Deputy Director of Consolidation and others, AIR 1976 Supreme Court 807 in which, it was observed as under :-
"The family arrangement may be even oral in which case no registration is necessary. The 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 is, therefore, not compulsorily registerable. AIR 1928 All 641 (FB), AIR 1933 Oudh 347, AIR 1944 Oudh 49 (FB), AIR 1926 All 173; AIR 1962 Pat 400 Approved.
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 sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Court will find no difficulty in giving assent to the same. AIR 1961 Pat 79 and AIR 1963 Pat 62, Over-ruled."
This authority is not applicable to the facts of the present case because the agreements Ex.P-1 and Ex.P-2 do not talk about family arrangement. Even the appellants have not mentioned in the plaint that family settlement had taken place between the parties. It is not further stated in the plaint as to how they were related to Shiv Lal. It is also not stated that in the event of Shiv Lal dying without testamentary disposition, they would have been entitled to inherit the suit land to the extent of 2/3rd share. It is also not a memorandum of family arrangement. On the other hand, by these instruments, the right has been created in the suit land to the extent of 2/3rd share in favour of the appellants for the first time which is contingent on the death of Shiv Lal and that too if the will remains intact.
18. Counsel for the appellants further referred to an authority of Hon'ble Supreme Court : Krishna Biharilal v. Galabchand and others, 1971 Current Law Journal 652, in which it was held that all parties to the settlement need not belong to one family and, it can be executed between near relations. Again, there are no pleadings that the appellants were closely related to Shiv Lal or they belonged to one family. Thus, there is no question that a family settlement had taken place between the parties.
19. Counsel for the respondents contended that suit for declaration simplicitor was not maintainable and the appellants should have also claimed the relief of joint possession under Section 34 of the Specific Relief Act. For this contention, he placed reliance upon an authority of Supreme Court; Ram Saran and another v. Smt. Ganga Devi, AIR 1972 Supreme Court 2685, in which it was held that where merely a relief of declaration is claimed, although he was entitled to possession, then the suit is not maintainable.
20. Counsel for the appellants on the order hand, contended that the learned lower appellate Court had misconstrued the provision of Section 34 of the Specific Relief Act and in fact, the relief of partition as well as possession had been claimed. A perusal of the relief column which is at page 3 of the plaint shows that the appellants had stated that their suit for declaration to the extent that they were owners of the sires as mentioned in para 3 of the plaint be decreed and they were also entitled to get possession after partition and also to get mutation sanctioned in their favour. Certainly, the relief of partition of agriculture land cannot be granted by the Civil Court. It has to be granted by the Revenue Court. The appellants have not claimed relief of joint possession without getting the land partitioned. Virtually, it is suit for declaration simplicitor which is not maintainable as admittedly, the appellants are not in possession of the suit land.
Therefore, as a sequel to the aforesaid findings there is no force in the Regular Second Appeal, and as such the same is dismissed.
21. Appeal dismissed.