Punjab-Haryana High Court
Harpal Singh And Ors. vs Mohinder Singh And Ors. on 31 January, 2002
JUDGMENT V.K. Bali, J.
1. This is defendant's regular second appeal, who failed in their defence in a suit brought about by Mohinder Singh- plaintiff for declaration of his rights.
2. Briefly stated, Mohinder Singh plaintiff averred in his plaint that he Malkiat Singh and Gurdhian Singh, being members of coparcenary, formed by them inter-se, were owners to the extent of l/3rd share with all rights attached to land measuring 42 kanals six and half marlas out of land measuring 126 kanals 19 and half marlas. He further stated that he was individual owner of l/15th share with all rights in land measuring 8 kanals six and half marlas out of land measuring 126 kanals 19 and half marlas, fully detailed in the head note of the plaint. He, thus, prayed for a decree for declaration that he be held entitled to get this share recorded in the revenue records by correction or mutation. Plaintiff and Harpal Singh defendant are the sons of Dharam Singh who was son of Harnam Singh. Punjab Kaur is their-mother and Jaswant Kaur and Mohinder Kaur are their sisters. Gejja Singh is their uncle and Malkiat Singh and Gurdhian Singh defendants are his sons whereas Sukhdev Singh and Gurmukh Singh are the sons of Harpal Singh defendant. All of them it is pleaded, are Jat Sikhs and as such are governed by Hindu Law and Hindu Succession Act in the matters of succession. Dharam Singh who died about three years back, was a member of the joint Hindu family. He was karta and the land in dispute was their coparcenary property. On his death, his share in the coparcenary property is to be worked out through notional partition as he also left behind his widow and daughters. Under this notional partition, he was entitled to l/3rd share at the time of his death whereas he and Harpal Singh defendant were entitled to l/3rd share each as representatives of their respective coparcenary. l/3rd share of Dharam Singh shall be inherited by him, Harpal Singh, Jaswant Kaur, Mohinder Kaur and Punjab Kaur defendants in accordance with the Hindu Succession Act. All of them have got 1/5th share out of l/3rc share of Dharam Singh. Thus, he became the separate owner of 1/15the share also. Similarly, Harpal Singh, Punjab Kaur, Jaswant Kaur and Mohinder Kaur became owners of 1/15th share each out of the land in dispute measuring 126 kanals 19 and half marlas. This notional partition ought to have been resorted to as required by the Hindu Succession Act. After the death of Dharam Singh aforesaid shares of coparceners and his other relations have been quantified and defined and they have become co-sharers in the property in dispute. The mutation in respect of the land was wrongly sanctioned by the revenue authorities presuming that Dharam Singh was owner of this land whereas in fact the suit land was ancestral and coparcenary property of the parties having descended upon Dharam Singh from his ancestors. It is from the facts, as stated above, that plaintiff challenged the mutation proceedings and asserted his right to the extent as described above.
3. The suit was contested by the defendants No. 1,3,5 and 6 on the ground which may be reflected from the issues framed by the learned trial court which read thus:-
"I. Whether Dharam Singh and his son and their linear descendants form joint hindu family as alleged? OPP
2. Whether the and in dispute was coparcenary property of Dharam Singh etc., and as alleged in the plaint? OPP
3. If issue No. 2 proved, what is the effect of the death of Dharam Singh and what are the shares of coparceners? OPP
4. Whether the plaintiff has no locus standi to file the present suit as alleged in preliminary objection No. 1?OPD
5. Whether the decree dated 25.5.80 is binding upon the plaintiff and other as alleged in preliminary objection No. 3 of the written statement? OPD
6. Whether the suit is bad for mis-joinder of necessary parties? OPD
7. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD
8. Whether the compromise dated 25.5.80 was effected between the parties, if so, its effect? OPD
9. Whether the suit for declaration without consequential relief as alleged is not maintainable? OPD
10. What is the effect of the thumb impression on the plaint and power of attorney without any name? OPD
11. Whether defendants No. 7 and 8 are major and claim relief without impleading them as plaintiff? OPD
12. Whether the suit is not maintainable in the present form as alleged in para No. 12 of the plaint? OPD
13. Whether the plaintiffs are entitled to the declaration prayed for? OPD
14. Relief."
4. The trial Court decree dated 24.11.1982 has since been affirmed in appeal. Hence, the present Regular Second Appeal.
5. The issue with regard to property being Joint Hindu Family and coparcenary property has not been challenged before this Court during the course of arguments.
6. All that has been contended by the learned counsel for the appellants in support of this appeal is that a document mark 'A' is proved to be a family settlement. This family settlement was projected in defence to the claim of the plaintiff. It did not require compulsory registration. Consequent upon the family settlement aforesaid, the parties were entitled to the properties as per their shares recorded therein. If this document was interpreted to be a family settlement not requiring any registration, the suit of plaintiff ought to have been dismissed, contends the learned counsel. This precise contention was raised before the first Appellate Court as well. It would be useful to extract the findings of learned Appellate Court on this precise controversy. Same is as follows:-
"It is argued by learned counsel for the appellant that there was compromise between the parties on 25.5.80 and according to that plaintiff was given l/5th share of the whole land and that was accepted by the plaintiff and that was family arrangement and that document does not require any registration. But I do not agree with this version because it is not mentioned in the written statement that a family arrangement or settlement was made. Simply it is written that a compromise was effected and written on 25.5.80. I have seen the compromise the copy of which is mark A that is written in the present form and not regarding past transaction, this document create right in the property. So, this document requires registration under Section 17 of the Indian Registration Act. It is not a memorandum, even for arguments sake if it is to be taken as family arrangement even then it requires registration. In this connection AIR 1976 Supreme Court page 807, Kale and Ors. v. Deputy Director of Consolidation and Ors., be referred where it was held:-
"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."
First of all this document is not proved to be a family settlement. Secondly this document is not a memorandum of partition at most this document is partition deed by which the share were divided by some owner. This has come into evidence that there were 5 heirs of Dharam Singh, Mohinder Singh, Harpal Singh, Jaswant Kaur, Mohinder Kaur and Punjab Kaur. This document mark A is not signed by Jaswant Kaur when all of the heirs of Dharam Singh were not present at that time, writing of this document could not be treated as a family arrangement or family settlement. The document mark A can not be looked into, as this document creates right in the land in dispute between the parties and such document requires registration."
7. I find no illegally or infirmity in the observations made by the learned appellate Court pertaining to document mark 'A' which has been held to be a partition deed and not a family settlement The reading of the document would clearly show that so far as the shares of the parties were concerned, there was no dispute as each one of them as per document aforesaid was to get 1/5the share. Inasmuch as the property at that particular time, was jointly owned as mentioned above to the extent of l/5th share each, the dispute was only regarding partition and that is what precisely has been done in compromise/partition mark A. That being so, the only contention raised by the learned counsel for the appellant has rightly been rejected by the Courts below.
8. No merit. Dismissed.
9. Parties are left to bear their own costs.