Delhi District Court
Pradeep Shastri Alias Pradeep Kumar vs Rattan Kumari on 16 July, 2024
IN THE COURT OF SH. ABHITOSH PRATAP SINGH RATHORE
DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
SUIT No.: CS DJ 357/2021
CNR No.: DLST01-006082-2021
IN THE MATTER OF:
Pradeep Shastri Alias Pradeep Kumar
Son of Late Shri Dwij Kumar Shastri
R/o C-4/113, Ground Floor,
Safdarjung Development Area,
New Delhi-110016. ...Plaintiff.
Versus
1. Rattan Kumari
Wife of Late Shri Mahendra Pratap Singh
2. Amit Kumar
Son of Late Shri Mahendra Pratap Singh
3. Anand Kumar
Son of Late Shri Mahendra Pratap Singh
All Residents of:
C-4/113, Terrace/Third Floor
Safdarjung Development Area
New Delhi-110016 ...Defendants.
Date of institution of the suit : 18.08.2021.
Date of pronouncement of judgment : 16.07.2024.
SUIT FOR POSSESSION AND DAMAGES
JUDGMENT
1. The brief facts of the case as averred in the plaint are that Shri Dwij Kumar Shastri, father of the plaintiff was the sole and absolute owner of three storied property measuring 200 square yards bearing no. C-4/113, Safdarjung Development Residential Scheme (known as Safdarjung Development Area), New Delhi (hereinafter referred to as 'Suit Property') vide Lease Deed dated 06.11.1968, comprising Ground Floor, First Floor, Second Floor CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 1 of 22 and Terrace/Third Floor, out of which second floor was sold by Sh. Dwij Kumar Shastri, father of plaintiff during his life time. The defendant no.1 to 3 are the widow and sons of Sh. Mahendra Pratap Singh (since deceased) who was the elder brother of the plaintiff.
As per the plaint, Sh. Dwij Kumar Shastri had executed his last Will on 30.12.1996 in respect of his immovable properties that included the suit property. As per the terms of the aforesaid Will, the Will was to come in effect only on the demise of Sh. Dwij Kumar Shastri and his wife Smt. Kusum. Sh. Dwij Kumar Shastri expired on 08.04.1997 leaving behind his widow Smt. Kusum, three sons namely, Sh. Mahendra Pratap Singh, Ashok Kumar and Sh. Pradeep Kumar and two daughters namely Smt. Geeta and Smt. Gayatri. At the time of demise of Sh. Dwij Kumar Shastri, all his three sons were living in different portions of the suit property with their respective families. Shri Mahender Pratap Singh (since deceased) and his family had occupied the terrace floor (Third floor) and started using the same for their residence. Smt. Kusum, wife of Sh. Dwij Kumar Shastri expired on 20.11.2007. On the death of both Smt. Kusum and Sh. Dwij Kumar Shastri, the Will dated 30.12.1996 came into effect and various portions of the suit property devolved upon the three sons of late Sh. Dwij Kumar Shastri namely Sh. Mahender Pratap Singh (predecessor-in-interest of the defendants), Sh. Ashok Kumar and the plaintiff.
2. As per the plaint, a portion on the ground floor of the suit property (shown in 'Green' in the site plan) alongwith entire Terrace/Third Floor of the suit property (shown in 'Red' in the CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 2 of 22 site plan) fell in the share of the plaintiff in terms of the said Will dated 30.12.1996. The portion shown in 'Brown' in the site plan fell in the share of Sh. Ashok Kumar, while the portion shown in 'Blue' in the said plan fell to share of Sh. Mahendra Pratap Singh (predecessor-in-interest of defendants). The defendants being legal representatives of Sh. Mahendra Pratap Singh are already in possession of the portion of the said property, which has fallen into the share of Sh. Mahendra Pratap Singh in terms of Will dated 30.12.1996, except one room on the ground floor Marked 'X' in the site plan, which is presently being used by the plaintiff. Plaintiff undertook to vacate the said room marked 'X' simultaneously with the defendants handing over vacant & peaceful possession of the premises in question i.e. entire Terrace/Third Floor of the suit property, which defendants are occupying since the life time of Sh. Mahender Pratap Singh. Plaintiff, as per plaint, requested Sh. Mahendra Pratap Singh to vacate the Terrace/Third Floor of the suit property but he failed to do so and disputed the right of the plaintiff in respect of the same. Thereafter, plaintiff filed a petition being TEST.CAS.No.12/2009, titled 'Pradeep Kumar vs State & Ors.' under Indian Succession Act, 1925 before the Hon'ble High Court seeking probate of said Will dated 30.12.1996. After the trial in the said petition, Hon'ble High Court vide judgment dated 25.02.2019 granted Letter of Administration in respect of the Will. The said judgment was not challenged by any legal representative of Sh. Dwij Kumar Shastri including Sh. Mahendra Pratap Singh or the defendants or the married daughters of Sh. Mahendra Pratap Singh and has since become final and binding on the parties.
CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 3 of 223. As per the plaint, after the said judgment dated 25.02.2019, Sh. Mahendra Pratap Singh and his legal representatives i.e. the defendants were repeatedly requested to vacate and hand over the possession of the entire Terrace/ Third Floor of the suit property to the plaintiff but they failed to do so. It is averred that defendants being in illegal and unauthorized occupation of the said Terrace / Third Floor are liable to pay damages for use and occupation of the same at market rate which at present is not less than Rs.50,000/- per month even at a very conservative estimate. Plaintiff is also seeking an enquiry under provisions of Order 20 Rule 12 of CPC, 1908 for determination of the rate at which the plaintiff is entitled to damages from the date of filing present suit till recovery of possession of Terrace / Third Floor of suit property. Hence, the present suit has been filed by the plaintiff.
4. Written statement the above mentioned plaint was filed on behalf of defendants in which defendants denied the averments of the plaint and took the preliminary objections that suit is not maintainable as same is without any cause of action. Plaintiff has not approached the court with clean hands and has concealed true, correct and material facts from this Court. Plaintiff has not valued the suit property for the purpose of court fee. Suit is bad for non joinder of necessary parties. It is stated that plaintiff as well as other family members and near relatives of late Sh. Dwij Kumar Shastri had intentionally and deliberately waived off their respective rights/bequeaths given to them under the said Will dated 30.12.1996 by way of an oral family agreement, which was later on reduced into writing on 30.12.1997. After the death of CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 4 of 22 Sh. Dwij Kumar Shastri, a joint family meeting of the family members took place and it had been consciously decided, agreed and undertaken by all the parties to arrive at a common consensus qua their respective shares in the suit property.
It is stated that mere grant of probate by the Hon'ble Court would not change or alter or in any manner, nullify the effect of the agreement dated 30.12.1997, signed, made and executed between the parties. Further, grant of probate would not give any cause of action to the plaintiff to file the present suit. In parawise reply on merits, it is stated that the defendants are in possession of the premises in question in their own right since 1997 and therefore, they are not liable to vacate or hand over the possession of the premises in question to anyone including plaintiff.
5. Replication was filed by the plaintiff in response to the written statement filed on behalf of defendants in which most of the averments made in plaint were reiterated.
6. On the basis of pleadings, following issues were framed:
1. Whether the suit of the plaintiff is barred by limitation?OPP
2. Whether the plaintiff is entitled for possession of the suit property i.e. entire Terrace / Third Floor of the property bearing No. C-4/113, Safdarjung Development Area, New Delhi-
110016?OPP
3. Whether the plaintiff is entitled for recovery of damages / use and occupation charges of suit property from the defendant, as prayed?OPP CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 5 of 22
4. Relief.
7. Plaintiff had examined himself as PW-1. In his evidence, plaintiff had relied upon the following documents:
1. Site plan, Ex.PW-1/A;
2. Certified copy of WILL dated 30.12.1996, Ex.PW-1/B;
3. Certified copy of judgment of Hon'ble High Court of Delhi (TEST.CAS NO.12/2009) dated 25.02.2019 Ex.PW-1/C;
4. Copy of letter of Administration dated 07.04.2021 Ex.PW-1/D (OSR).
8. Defendants in support of their case have examined Sh. Amit Kumar (defendant no.2).
9. This court has heard the arguments and perused the record carefully.
10. My findings on the issues are as follows:
Issue no.1.
1. Whether the suit of the plaintiff is barred by limitation?
OPP None of the parties has led any evidence on this point nor was this issue pressed during the course of arguments, although, in the written submissions of defendant, this issue has been dealt with. Defendant has rested his case on the point that the agreement dated 30.12.1997 cannot be challenged after 25 years but plaintiff has neither challenged the agreement dated CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 6 of 22 30.12.1997 nor it is a part of his pleadings. Therefore, this argument is not relevant for deciding this issue. Besides, there is no specific time limit prescribed for seeking possession of property, after obtaining probate of the Will. Even if it is taken to be covered by the residuary Article 137 of Limitation Act, 1963, this suit filed 2.5 years after grant of probate is within limitation.
Hence, this issue is decided with the finding that suit of the plaintiff is not barred by limitation.
ISSUE No. 2 & 32. Whether the plaintiff is entitled for possession of the suit property i.e. entire Terrace / Third Floor of the property bearing No. C-4/113, Safdarjung Development Area, New Delhi- 110016?OPP &
3. Whether the plaintiff is entitled for recovery of damages / use and occupation charges of suit property from the defendant, as prayed?OPP Issue No.2 & 3 are being decided together as being interconnected in nature.
Plaintiff is claiming possession on the ground that there is a Will by his late father whereby the property, whose possession is being sought in the present suit, was bequeathed in his favour. Regarding the said Will Probate was also granted by the Hon'ble High Court of Delhi vide order dated 25.02.2019. Defendant has contested the suit on the ground that plaintiff and defendant with their wish and consent have waived off their respective rights by way of an oral Family Agreement, which was later reduced into writing on 30.12.1997. Back story is that after the death of late Sh. Dwij Kumar Shastri and on becoming aware of the factum of the execution of the said Will, a joint meeting of the family CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 7 of 22 members was held and it was consciously decided that parties will take share according to their own mutual agreement.
Defendant has vehemently agreed, during various stages of this suit that plaintiff has concealed these material facts from the court and therefore, the suit deserves dismissal on this ground alone.
This court considers it appropriate to first deal with the contention of the defendant that there has been concealment of material fact. The Agreement dated 30.12.1997 has neither been admitted nor been denied by the plaintiff but during his cross- examination on 13.02.2023 plaintiff has admitted his signatures on the said Agreement. It has also come into the evidence of plaintiff that he has never deposited the House Tax in respect of the first & third floor of the suit property. In his cross- examination, plaintiff has evaded the question that till date he had neither disputed nor challenged, nor filed any suit in relation to the Agreement dated 30.12.1997.
Perusal of record shows that nowhere in the plaint has this fact been mentioned. Plaintiff himself has produced site plan of the property, certified copy of the Will, certified copy of the judgment passed by the Hon'ble High Court of Delhi and the Letter of Administration dated 07.04.2021, but no copy of this agreement has been produced. It is produced by the defendant. The said agreement is on record as Ex.PW-1/DX1.
A perusal of Agreement dated 30.12.1997 shows that it is executed between Sh. Mahendra Pratap Singh, Sh. Ashok and Sh. Pradeep Kumar. Sh. Mahendra Pratap Singh is Party no.1, Sh. Ashok is Party no.2 and Sh. Pradeep Kumar (Plaintiff) is Party no.3. A perusal of said agreement shows that the possession of CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 8 of 22 the share that is being sought in the present suit falls in the share of Sh. Mahendra Pratap Singh(except front portion on left side).
Para 1 to 13 of the same are reproduced hereunder:
"1) that the First Party will continue to possess Right hand side portion on First floor and portion on Third floor Constructed area (except front portion on left side on Third floor) of said Property No.C-4/113, Safdarjang Development Area, New Delhi, alongwith 1/3 undivided share in the land (more particularly described in the plan attached to this Deep and marked Green) and Room on Ground Floor and kitchen of Property bearing NO.938, situated at Punjabi Mohalla, Subzi Mandi, Clock Tower, Delhi, and this fact is confirmed by the Second Party and the Third Party.
2) That the Second Party will continue to possess one room on Ground Floor towards rights hand side, and left hand side portion on First Floor of said Property No.C-4/113, Safdarjang Development Area, New Delhi-16, alongwith 1/3 undivided share in the land (more particularly) described in the plan attached this Deep and marked Red) and this fact is confirmed by the First Party and the Third party.
3) That the Third party will continue to possess entire Ground Floor, (except one Front Room towards the right hand side) and Left hand side Portion on Third Floor of constructed area said Property No.C-4/113, Safdarjang Development Area, New Delhi-16, alongwith 1/3 undivided share in the land (more particularly described in the plan attached to this Deed and marked Blue) and Store and Terrace of Second Floor of Property bearing No.938, situated at Punjabi Mohalla, Subzi Mandi, Clock Tower, Delhi, and this fact is confirmed by the First Party and the Second Party.
4) That each party assures between themselves to other that none of the parties has crated any charges in the said portions in any manner.
5)That each party will have the right to get this portion/property mutated, substituted and assessed in his own name in the records of MCD, DDA or CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 9 of 22 any concerned authority on the basis of this Agreement.
6)That this parties to this deed shall be abide by the terms and conditions of this Agreement.
7)That this arrangement by this agreement is fair one therefore, the parties to this Agreement and their heir/successors shall not further claim in further in any manner.
8) That non of party will raise any objection to this Agreement, for the reason the equal share has been equalize with monetary consideration.
9)That the Original Title Deed of the said property shall be misused by any party and in this respect reach party shall keep harmless and indemnify to other.
10) That none of the party shall obstruct the peaceful enjoyment of each other in any manner whatsoever.
11) That the parties to this Agreement shall always abide by terms and conditions of this Agreement.
12)That the First, Second and Third party executed this Agreement, Voluntarily, without any pressure form any quarter and in their full senses, contents of this Agreement have been explained to them and they admit and understand the same as correct.
13)That the three original copies of this Agreement have been executed by parties to this Deed, therefore each party shall keep the original Agreement duly signed by all the parties simultaneously and duly attested by notary public at the same time, place, day, month and year first above written..."
The Will is on record as Ex.PW1/B. The Will has been reproduced in the judgment passed by the Hon'ble High Court of CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 10 of 22 Delhi in Test.CAS.12/2009, titled 'Pradeep Kumar vs State & Anr.', which reads as under:
"WILL I, Dwij Kumar Shastri S/o Late Thakur Shri Mangal Sain, resident of C-4/113, S.D.A. Mangal Bhawan, New Delhi
- 110016 on this day of 30-12-96 in my full senses and without any pressure or anxiety, make this Will which will be effective/implemented after my death and my wife Kusum's death.
The above mentioned C-4/113, S.D.A, Mangal Bhawan is completely my Kothi. Nobody has invested to build this house, neither my family members nor relatives. I have got it made by my income and loan from Delhi Administration & my friends, details of which are in the receipt of payment of Govt. dues and names of my friends mentioned in a big diary.
Keeping in mind the maintenance, Ground Rent & House Tax etc, I distribute this Kothi among my three sons as written below. My both the daughters have no right/claim in this Kothi because their right /claim has already been given in the form of dowry and cash.
It is my keen desire and order that none of my sons will sell, mortgage, execute power of attorney or transfer his portion from this kothi.
I give right hand portion set of 1st Floor, C-4/113, S.D.A and complete ground floor of Ghanta Ghar house to my elder son Mahendra Pratap Singh.
I give left hand side portion set of 1st floor and roof of Ghanta Ghar house to Ashok Kumar.
Right hand side small room set of ground floor will be given on rent and rent income will be distributed equally between Sh. Mahendra Pratap Singh and Ashok Kumar.
I give left hand side portion of big room set on ground floor and complete third floor to Pradeep Kumar.
All three brothers will pay their House tax, ground rent and other government dues as per their share.CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 11 of 22
I distribute half portion of 'Padhele' named farms by the river side in Village Kurra Chittarpur, equally among three sons. All three brothers will arrange to distribute Rs.51/- shirni on the memorial (chatari) of my parents in the village Rs.251/- shall be sent to Sidh Baba every year.
After my death, all three brothers will bear the expenses of livelihood of my wife, but I myself give special responsibility to Pradeep Kumar. My first Will dated 20.09.1996, registered be treated as cancelled Sd/-(Dwij Kumar Shastri) Signatures Sd/-
1. Kirpal Singh B-263, Matiayal Extension Uttam Nagar, New Delhi.
2.Sd/-
Swarn Singh Off.cum Res.-21, Pvt. Colony Srinivas Puri, New Delhi"
Joint reading of both documents makes it clear that Pradeep Kumar was to get the third floor, wheres in the Agreement which plaintiff himself has admitted to have signed, the same portion is given to Sh. Mahendra Pratap Singh. Relevant line of the Agreement reads a follows:
"that the First Party will continue to possess Right hand side portion on First floor and portion on Third floor Constructed area (except front portion on left side on Third floor) of said Property No.C-4/113, Safdarjang Development Area, New Delhi..."
It is evident that there is a difference between the allotment of share in the Will and the Agreement. The Agreement is dated 30.12.1997, whereas Will is dated 30.12.1996. The date of death of Sh. Dwij Kumar Shastri is CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 12 of 22 shown as 08.04.1997, hence it is evident that plaintiff had entered into an agreement regarding allotment of shares after the execution of Will.
A careful perusal of plaint shows that plaintiff has nowhere made any disclosure about the mutual settlement that had taken place between the parties in 1997. The fact that there was an agreement between the parties becomes material, particularly when this was not only after the execution of will in 1996 but also after the death of the father of the plaintiff in April, 1997. It is evident that plaintiff has concealed this fact from the court. It is also evident that plaintiff at several places in his evidence has admitted not only the existence but the fact of his consciously and willingly signing the document.
Law on this point is well settled.
Hon'ble Supreme Court of India in 'S.P Chengalvaraya Naidu vs Jagannath', (1994) 1 SCC 1 observed:
"A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side he would be guilty of playing fraud on the court as well as on the opposite party".
In the same judgment in Para 6, Hon'ble Supreme Court of India observed "Non production or even non mentioning of the release deed at the trial is tantamount to playing fraud on the court".
CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 13 of 22In view of the above discussion it can be safely said that Plaintiff has concealed material facts in his plaint and therefore his suit deserves dismissal on this ground alone.
But be that as it may, merits of the plaintiff' case need to be examined on the anvil of law as well.
The pertinent questions that are involved in this matter are:
(1) Whether parties in whose favour an interest has been created in a Will acquire any interest on the date when the Will is made even if the date of taking effect of the Will is postponed ?
(2) Whether such parties in whose favour an interest has been created in a Will but has yet not come into effect, can enter into a mutual settlement regarding the same properties which are subject matter of the Will ?
(3) Whether any such Family Settlement, if unregistered is binding upon the parties?
(4) Can it act as estoppel against the parties involved in the settlement ?
It is a settled provision of law that a Will expresses the last wish of a testator. Provisions of Indian Succession Act, 1925 are the guiding light for the determination of the validity of a Will.
In the present case, validity of the Will is not in question. It has been granted Probate by the Hon'ble High Court of Delhi CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 14 of 22 and Letters of Administration were issued. No party has ever disputed the validity of the Will.
This brings this court to another question as to what is the effect and implication of obtaining Probate.
Hon'ble Supreme Court of India in 'Chiranjilal Shrilal Goenka (Deceased) Through Lrs vs Jasjit Singh and Ors. (1993) SCC 507, observed :
16."the grant of a probate by court of competent jurisdiction is in the nature of a proceeding in rem.
So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the debate".
It is clear that Probate is conclusive as far as the due execution and validity of the Will is concerned. In the present matter no party has challenged the validity of the will. What is challenged is the applicability of a will, after the beneficiaries in it have re-arranged their share through mutual agreement.
The next important question that this court has to deal with is whether parties acquire any interest on the date when the Will is made even if the date of taking effect of the Will is postponed ?
In the matter of "Usha Subbarao vs B.N Vishveswaraiah and Ors. (1996) 5 SCC 201" directions of the testator in the Will CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 15 of 22 were similar to the directions in the present Will, which read as follows:
"After the lifetime of both myself and my wife, the said Nadiga Nanjamma, all the properties mentioned in A, B and D schedules shall be devided equally among my surviving children".
In this judgment Hon'ble Supreme Court in Para 23 observed:
23."We are unable to read the Will as indicating a contrary intention to make a departure from the rule regarding vesting of the legacy as contained in Section 119 of the Act. In our opinion, the Will cannot be construed as creating a contingent interest in the sons of the testator so as to postpone the date of vesting of the legacy after the death of Smt. Nadiga Nanjamma. On a proper construction the Will must be construed as containing a bequeath of a vested interest in favour of the sons surviving the testator which means that the legacy vested in the legatees, including the husband of the appellant, at the time of the testator's death and after the death of her husband, the appellant is entitled to claim the one-fifth share of her husband in properties mentioned in Schedule 'C' viz., the thrift deposits standing in the name of the appellant's husband in the Bank of Mysore Ltd."
In view of the clear dictum of the Hon'ble Supreme Court of India, it is not in doubt that parties in whose favour an interest is created by way of Will, even if the date of actual vesting/taking effect of the Will is delayed, parties still acquire a vested interest on the date of death of the testator. Therefore, in the present case, on the death of testator in 1997 parties had acquired a vested interest in the properties. Therefore, parties CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 16 of 22 were well within their rights to enter into an agreement / settlement.
The next question involved in this matter is whether an unregistered agreement / settlement can be taken into evidence. Plaintiff's arguments have been focused on this issue only. Even the authorities quoted by plaintiff Yellapu Apu Uma Mahesawari & Anr. Vs Buddha Jagadheeswara Rao & Ors., Civil Appeal 8441/2005, decided on 08.10.2015 and Sita Ram Bhama vs Ramavatar Bhama, SLP(C)110067/2017 decided on 23.03.2018 deal with the issue / effect of an unregistered Family Settlement and its admissibility.
Law regarding family settlements has been settled by Hon'ble Supreme Court of India through a catena of judgments; the most important being 'Kale & Others vs Deputy Director of Consolidation and Others', (1976) 2 SCC 119 in which Hon'ble Supreme Court of India held that an unregistered document can be used for collateral purposes, if the required stamp duty is paid.
Relevant sections of the Registration Act, 1908 are reproduced hereinunder:-
Section 17 (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 17 of 22
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
..........
Section 49 of the Registration Act, 1908:-
Effect of non-registration of documents required to be registered.
No document required by section 17 1 or by any provision of the Transfer of Property Act, 1882 (4 of 1882),to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
1[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 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, 1877 (3 of 1877) or as evidence of any collateral transaction not CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 18 of 22 required to be effected by registered instrument.
A conjoint reading of Section 17 (b) and Section 49 of Registration Act shows that any document that creates or takes away any right needs to be registered. If it is not registered, it cannot be taken in evidence except as evidence of any collateral transaction not required to be registered.
In para 16 of "Subraya M.N Vs. Vittal M.N and Ors. (2016) 8 SCC 705", Hon'ble Supreme Court of India observed:
"Even though recitals in Ext. D-22 are to the effect of relinquishment of right in Items 1 and 2, Ext. D-22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it requires registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ext. D-22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 19 of 22 conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in Items 1 and 2".
It is not a case filed for the enforcement of an unregistered agreement. Defendant's purpose of producing this agreement is only to claim estoppel against the Plaintiff and use it as a corroborative evidence.
Hon'ble Supreme Court of India, recently in 'Thulasidhara and Another vs Narayanappa and Others', (2019) 6 SCC 409 has observed that such a family settlement though not registered would operate as a complete estoppel against the party to such a family settlement.
Hon'ble Supreme Court of India in this matter referred to its earlier decision in S. Shanmugam Pillai vs K. Shanmugam Pillai, 1973 SCC 312 in which Hon'ble Supreme court had observed:
"13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope. "22. As observed by this Court in T.V.R Subbu Chetty's Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open."CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 20 of 22
Therefore, even if this argument is accepted that the agreement is not admissible in evidence, it would still operate as a complete estoppel. It can be used as corroborative evidence.
Plaintiff's suit, therefore, deserves dismissal not only on the ground of concealment of material facts but also on the ground that he cannot re-claim any interest on the basis of Will, when on the basis of the vested interest created through the same Will, he willingly and consciously exchanged his share with the other party.
It is also not in dispute and has also come into evidence of the parties that the agreement has been acted upon as far as suit property i.e. third floor is concerned. The area presently under possession of the property is in accordance with share allotted in agreement (with minor alterations). This has been the state of affairs for last 27 years. Lease deed dated 18.03.1998 further corroborates the fact that a part of 3 rd Floor was always under the control of Mahendra Pratap. For last 27 years parties are occupying their respective shares. If settlement is taken into consideration, plaintiff should have the possession of the left hand portion of 3rd Floor(suit property) but as plaintiff has concealed the very factum of agreement, plaintiff cannot be granted any relief.
Issue No.2 is decided with the finding that plaintiff is not entitled to possession of the premises in question i.e. entire Terrace / Third Floor of the property in question bearing No. C-4/113, Safdarjung Development Area, New Delhi-110016, more specifically shown in 'Red' in site plan, attached to the plaint.
CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 21 of 22Issue No.3, being dependent on Issue No.2 is also decided against the plaintiff.
Relief In the light of above discussion and settled proposition of law, the suit of the plaintiff is dismissed. Parties to bear their own costs.
Decree-sheet be prepared accordingly, on payment of deficient court fees, if any.
File be consigned to record room.
Typed to the dictation directly, corrected and pronounced in the open Court on 16.07.2024.
(Abhitosh Pratap Singh Rathore) District Judge-04, South District, Saket Courts, New Delhi.
CS DJ 357/21 Pradeep Shastry vs Rattan Kumari & Ors. . Page 22 of 22