Law Web: Whether it is necessary to remove suspicious circumstances for proof of family settlement?

The presence of PW-4-Harbans Singh at the time of

execution of the family settlement (Ex.P-1) is not believable. He has

deposed that the document Ex.P-1 was not typed in his presence. He did

not remember that where the document was typed. He further deposed

that the same was signed at petrol pump of Udhampur, but he did not

remember who was the owner of the said petrol pump. He even did not

remember the trade name of said petrol pump. He admitted that no money

transaction took place in his presence. He is the father-in-law of the

plaintiff. Even as per the case of the plaintiff, this family settlement was

executed 2-3 days after his marriage. So, it is not believable that such a

new relative will be roped in such affairs of the family. If in-fact, any

family settlement would have taken place between the parties, it must

have been signed at least by their father, sisters and other family

members, who must be present in the house due to the occasion of the

marriage of the plaintiff. There was also no reason to attest the family

settlement (Ex.P-1) by PW-4-Harbans Singh at the petrol pump, rather

then the house of the plaintiff. The plaintiff also could not tell the name

of the typist and he took the plea that the same was got typed by the

defendant.

25. It is further the settled principle of law that Court can only

act upon on the clear, categoric and unequivocal admission of the parties

to arrive at the conclusion. The vague or the retracted admission carries

no evidentiary value. In the instant case, though initially the defendant in

his part cross-examination has stated that the signatures on the family

settlement looks like his signatures, but in the same breath he added that

these are not his signatures. So, there is no admission on the part of the

defendant that the family settlement (Ex.P-1) bears his signatures. Thus,

the family settlement (Ex.P-1) is surrounded by various suspicious

circumstances, which negates the valid execution thereof. Consequently,

the plaintiff has not been able to establish the genuineness and valid

execution of the family settlement (Ex.P-1) by the defendant.
IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

Lt. Col. Hargobind Singh

CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation: AIR 2017 P&H 3

The present appeal has been preferred against the judgment

and decree dated 16.10.2013 passed by the learned Additional District

Judge, Chandigarh, whereby the appeal filed by the appellant-plaintiff

against the judgment and decree dated 24.04.2013 passed by the learned

Civil Judge (Jr. Division), Chandigarh, has been dismissed.

2. Appellant-plaintiff has filed the suit for declaration to the

effect that he is owner in possession of 50% share of house/plot no.1394,

Sector 33-C, Chandigarh. He has also sought the consequential relief of

permanent injunction restraining the defendant from selling/ mortgaging/

alienating the aforesaid house/plot in any manner without the written

consent of the plaintiff and further to restrain him from interfering in the

possession of the plaintiff. He also sought the decree for mandatory

injunction directing the defendant to get the name of the plaintiff entered

in the revenue record and the record of the Estate Office, Chandigarh as

50% share holder in the aforesaid disputed property.

3. As per averments in the plaint, the plaintiff-appellant and

defendant-respondent were the real brothers having no other brother. The

defendant joined the Army in young age and plaintiff helped his father as

well as was cultivating the agricultural land. In the year 1968, defendant

approached the plaintiff with an idea that they should purchase some

property outside their native village and proposed to buy house in a

modern city like Delhi or Chandigarh. He told that he was eligible for

allotment of plot in defence quota at Chandigarh. He proposed that if the

plaintiff pays money to him, he shall buy a plot and construct the house in

Chandigarh as their children will study in good city. Defendant

represented that both of them shall be joint owner of the plot and house

purchased and constructed by the money of the plaintiff. The plaintiff

believed and trusted his elder brother blindly and gave him ` 48,000/- in

cash out of his income and funds earned from agriculture on the promise

that defendant shall buy the plot in Chandigarh in the joint names of the

plaintiff and defendant showing both of them as owner to the extent of

50%. Later on, he came to know that defendant has purchased/got allotted

a two canal plot out of the said money. Defendant told that the said plot

has been purchased solely in his name as the rules does not allow the

allotment of the plot of quota of defence personnel in the name of

anybody, who does not belong to the defence services. Thereafter, they

decided that they will put their entire transaction in writing, so that there

may not be any dispute in future and both the brothers would keep their

share to the extent of 50% each. Ultimately, a family settlement regarding

the aforesaid plot/house in question was executed between the parties in

the presence of the witnesses on 10.11.1970, which was executed by

defendant out of his free will since he felt morally bound and obliged as

all the money for buying as well as for raising construction thereupon

was raised by the plaintiff. Defendant also gave an undertaking that he

will get 50% share of the demised property entered in the records in the

name of the plaintiff as soon as the rule permits. Thereafter, the plaintiff

has been reminding the defendant off and on with respect to the entry in

the record of the Estate Office, Chandigarh regarding 50% ownership in

his favour, but each time the defendant had been putting of the matter on

the excuse that rules did not permit the transfer. But, later on the plaintiff

came to know that the said embargo was for initial few years, which was

over. Then, the plaintiff immediately demanded from the defendant

regarding the change in the records as per the terms and conditions of the

family settlement, but of no avail. Hence the suit.

4. The suit was contested by the defendant-respondent-Lt. Col.

Hargobind Singh (now deceased) on the grounds inter alia that the father

of the parties was a retired Head Master of School and was getting

` 38/- as pension. They had eight sisters. Defendant helped his father for

the marriage of the sisters and that of the plaintiff. He joined the Army as

an officer in the year 1949. At that time, the plaintiff was minor. He

purchased about 70 acres of land in District Udham Singh Nagar with his

own funds. Later on, this land was developed into a big farm. Defendant

transferred some of land in favour of the plaintiff. Plaintiff did not have a

single penny when the land was purchased. The father of the parties died

in the year 1985. He has further pleaded that he had appointed the

plaintiff as his attorney in good faith to look after and manage the

aforesaid land. But, later on the said power of attorney was cancelled on

29.07.1975 as the plaintiff in connivance with some other persons had

intention to grab the land of the defendant. He also forged and fabricated

a sale deed in favour of Prabhjot Singh and Balbir Singh etc. It was

further pleaded that no family settlement has ever been entered into with

regard to the house/plot in dispute in the year 1970 as there was no

allotment of the plot in that year. It was further pleaded that the said

family settlement is a forged and fabricated document. The same is hit by

the provisions of The Benami Transactions (Prohibition) Act, 1988 and

the Indian Registration Act, 1908(for short 'Registration Act'). With these

pleas, he pleaded for dismissal of the suit.

5. From the pleadings of the parties, the following issues were

framed by the learned trial Court vide order dated 14.09.2004:-

1. Whether the plaintiff is owner in possession of 50% share of the

suit property on the ground taken in the plaint?OPP

2. If issue no.1 is proved, whether the plaintiff is entitled for

declaration and injunction on the groudns taken in the plaint?

OPP

3. Whether the suit is barred by limitation?OPD

4. Whether the suit is not maintainable in the present form?OPD

5. Whether the alleged family settlement is forged and fabricated

and is not legal for want of registration?OPD

6. Whether the present suit is bad being provisions of Benami

transaction?OPD

7. Whether the suit is bad for non joining of Estate Officer being

necessary party?OPD

8. Whether the Court fee has not been affixed?OPD

9. Relief.

6. On appreciation of the evidence adduced by the parties and

the contentions raised by the learned counsel for the parties, the learned

trial Court dismissed the suit vide impugned judgment and decree dated

23.04.2013.

7. Aggrieved with the aforesaid judgment and decree, the

appellant-plaintiff preferred the appeal. The same has also been dismissed

by the learned Additional District Judge, Chandigarh, vide impugned

judgment and decree dated 16.10.2013. Hence this Regular Second

Appeal.

8. I have heard Mr. G.S.Kaura, Advocate, learned counsel for

the appellant, Mr. Gurbakhsh Singh, Advocate, learned counsel for LR's

of respondent and have meticulously gone through the record of the case.

9. Initiating the arguments, Mr. G.S.Kaura, Advocate, learned

counsel for the appellant contended that the property in dispute was

purchased by the defendant by utilizing the money i.e. ` 48,000/- given to

him by the plaintiff. The earnest money for allotment of the plot was

deposited with the Estate Office, Chandigarh on 05.08.1969. Thereafter,

the family settlement has taken place between the parties as they were the

real brothers. The plot was allotted to the defendant out of the defence

quota and due to this reason, the allotment was in favour of the

defendant. There was also a condition in the allotment letter that the said

plot could not be transferred before the expiry of the period of ten years.

Thus, in these circumstances, in order to rule out any future dispute

between the parties, both the parties ultimately entered into the family

settlement dated 10.11.1970 (Ex.P-1). He contended that the execution of

the said family settlement is duly established from the statement of PW-1-

Hargursharan Singh-plaintiff himself and PW-4-Harbans Singh, the

attesting witness of the family settlement. Second attesting witness Fateh

Singh had already died. He further contended that even the testimony and

report of the handwriting expert shows that the family settlement (Ex.P-1)

was very much signed by deceased-defendant Lt. Colonel Hargobind

Singh. Thus, he contended that the oral evidence adduced by the plaintiff

on the execution of the family settlement is also corroborated from the

expert evidence. He contended that even defendant has admitted his

signatures on the family settlement (Ex.P-1). Thus, he contended that the

plaintiff by leading cogent and convincing evidence has established the

execution of the family settlement (Ex.P-1) by the defendant, whereby the

plaintiff was admitted to be the owner of 50% share of the suit property.

10. He further contended that there is no rebuttal to the aforesaid

evidence adduced by the plaintiff. Defendant-Hargobind Singh has

appeared in the witness box. He filed his affidavit in his examination in

chief. He also faced the part cross-examination and thereafter, he did not

appear. So, his incomplete statement cannot be taken into consideration.

He further contended that the defendant has raised the plea that the family

settlement (Ex.P-1) was forged and fabricated, these facts could only be

in the personal knowledge of the defendant. DW-1-Parminder Kaur, the

power of attorney of the defendant is not a competent witness to depose

on these facts, which were in the personal knowledge of the defendant

and her testimony carries no evidentiary value. To support his

contentions, he relied upon cases Man Kaur (dead) by LRs. Vs. Hartar

Singh Sangha 2011(1) R.C.R.(Civil) 189 and Bhajan Kaur and others

Vs. Tarlok Singh 2009(3) RCR (Civil) 609.

11. He further contended that the learned Courts below have

wrongly discarded the family settlement (Ex.P-1) on the ground that it

requires registration. He contended that the plaintiff-appellant was having

the pre-existing rights in the suit property as he has already paid `

48,000/- for the purchase of the suit property, so the family settlement

(Ex.P-1) did not require any registration. To support his contentions, he

relied upon case Bhoop Singh Vs. Ram Singh Major and others

1996(1) PLR 559. He further contended that the learned Courts below

should lien in favour to recognize the family settlement. There is no

necessity to establish the pre-existing rights when the family settlement is

otherwise proved to be bona fide. He relied upon case Mythili Nalini Vs.

Kowmari and others 1991 (2) HLR 689. Thus, he contended that the

family settlement (Ex.P-1) is legal and valid. Appellant-plaintiff is owner

in possession to the extent of 50% share of the house in dispute.

12. On the other hand, Mr. Gurbakhsh Singh, learned counsel for

the LRs of respondent contended that the whole suit of the plaintiff is

based on the alleged family settlement dated 10.11.1970 (Ex.P-1), which

is a forged and fabricated document. He contended that there are various

suspicious circumstances surrounding the said family settlement. He

contended that from the letters Ex.D-1 to D-7, it is established that the

plaintiff had no source of income to pay the amount of ` 48,000/- in those

days. It is nowhere mentioned in the family settlement as to on what date

and month, the said amount was paid. He further contended that even the

plot was not allotted by 10.11.1970, the alleged date of family

settlement , so there can be no question of any family settlement even

before the allotment of the plot. He contended that as per the case of the

plaintiff, the family settlement took place after 2-3 days of his marriage.

As per the letter written by the father of the parties, his marriage was

fixed for 16.11.1970, whereas the family settlement has been shown to be

of 10.11.1970, even prior to the marriage. He further contented that PW-

4-Harbans Singh, the attesting witness is the father-in-law of the

appellant, it is not believable that a new relative shall be involved in these

matters. The family settlement is not signed by their father, sisters or

other family members. He further contended that it is alleged that `

48,000/- was paid by the plaintiff for the purchase of the plot and for

raising construction. Whereas, even the possession of the plot was

delivered to the defendant on 26.04.1971. So, it is not expected that the

money for raising construction will also be paid by the plaintiff even

before the delivery of possession of the plot. He further contended that

the sale price of the plot was only ` 18,729/- as per the conveyance deed,

so it is not expected that the plaintiff will pay ` 48,000/- for 50% share.

He further contended that in-fact, the defendant has taken the housing

loan from the bank for raising the construction.

13. He further contended that the testimony and report of the

handwriting expert examined by the plaintiff cannot establish the

execution of the family settlement (Ex.P-1). The expert evidence is only

an opinion and the Court is required to record the findings independently

by applying the mind to all the material available on record. He relied

upon case Shashi Kumar Banerjee and others Vs. Subodh Kumar

Banerjee and others AIR 1964 (SC) 529.

14. He further contended that as per Section 17(1)(b) of the

Registration Act, the family settlement (Ex.P-1) was compulsorily

registrable as the said document is shown to have created the right in

favour of the plaintiff for the first time. Admittedly, the family settlement

deed (Ex.P-1) is not a registered document. So, the same is in admissible

in evidence for all purposes. He relied upon cases Bhoop Singh Vs. Ram

Singh Major (supra) and Bankey Behari Vs. Surya Narain @

Munnoo 2004(11) Supreme Court Cases 393. He further contended that

the plaintiff was having no pre-existing rights in the suit property. The

alleged payment of ` 48,000/- is not established at all. So, the family

settlement (Ex.P-1) did not convey any title in favour of the plaintiff

15. He further contended that the suit of the plaintiff is

hopelessly time barred. The family settlement (Ex.P-1) is stated to be of

10.11.1970. The plot in question was allotted on 11.01.1970. The

condition for non transfer of the plot of ten years had come to an end in

the year 1981, whereas the suit has been filed in the year 2004 i.e. after

23 years. Thus, the suit is time barred.

16. He further contended that in-fact the present suit is a counter

blast to the proceedings initiated by the defendant to get the sale deeds

executed by plaintiff declared null and void with respect to the

agricultural land situated in District Rampur and has only been filed to

harass the defendant and his family members. Thus, he contended that the

learned Courts below have rightly dismissed the suit of the plaintiff.

17. I have given my thoughtful consideration to the aforesaid

contentions.

18. There are certain admitted facts that defendant-Horgobind

Singh has moved the application on 15.02.1967 (Ex.P-11) for allotment

of the plot. He was conveyed that the plot no.1394, Sector 33-C,

Chandigarh has been allotted to him vide letter dated 15.01.1968 (Ex.P-

12). The allotment letter dated 11.01.1971 (copy Ex.P-13) for the

aforesaid plot was issued in favour of the defendant by the Chandigarh

Administration. As per the said allotment letter, the approximate price of

the plot was ` 18729/-. The conveyance deed was executed in favour of

the defendant on 26.04.1971 by the Estate Officer, Chandigarh

Administration (Copy Ex.P-14). In the conveyance deed also the sale

price is mentioned as `18729/-. Thus, the aforesaid documents shows that

it was defendant who had applied for the plot and the plot in dispute was

allotted to him. As per the condition no.11 of the allotment letter, the

transfer of the plot was not permissible before the expiry of the period of

ten years. As per condition no.12 of the allotment letter, no fragmentation

of the plot was permitted. Similarly, as per the para no.9 of the

conveyance deed, the defendant was not competent to transfer the plot by

way of sale, gift, mortgage or otherwise except by way of lease on a

monthly basis or any right, title or interest therein for a period of ten

years from the date of completion of the construction on the said site.

19. The entire case of the plaintiff-appellant is based on the

family settlement dated 10.11.1970 (Ex.P-1). It is the settled principle of

law that the plaintiff has to stand on his own legs. He cannot take the

benefit of the weakness in the case of the defendant. Reference can be

made to case Punjab Urban Planning and Dev. Authority Vs. M/s

Shiv Saraswati Iron & Steel Re-Rolling Mills, 1998(2) R.C.R (Civil)

292. Thus, it was incumbent upon the appellant-plaintiff to establish that

the due execution of the family settlement (Ex.P-1) by the defendant. He

was also duty bound to clear all the suspicious circumstances surrounding

the validity and legality thereof.

20. There can be no dispute with the proposition of law that an

attorney is not a competent witness with respect to the facts

which could be in the personal knowledge of the party to the suit. So

even if the statement of DW-1-Parminder Kaur, on those facts which

could be in the personal knowledge of defendant, is not taken into

consideration, that will not absolve the appellant-plaintiff to prove his

case to claim the title to the suit property. To prove the execution of the

family settlement (Ex.P-1), plaintiff-Hargursharan Singh has himself

stepped into the witness box as PW-1 and has also examined PW-4-

Harbans Singh, one of the attesting witness. The second attesting witness

namely Fateh Singh is stated to have died. But, it is pertinent to mention

that PW-4 Harbans Singh is none else then the father-in-law of the

plaintiff. Plaintiff has also examined the expert witness PW-3-Devendra

Parsad, the handwriting expert to establish that the family settlement

(Ex.P-1) bears the signatures of the defendant. It is the settled principle of

law that the expert evidence is only an opinion. It could just corroborate

the substantive evidence. The expert evidence cannot substantiated the

execution of the document. It is also the settled principle of law that mere

proof of signatures cannot establish the due execution of a document. So,

the expert evidence adduced by the plaintiff-appellant will not be of much

consequence to establish the due execution of the family settlement

(Ex.P-1) and to explain the suspicious circumstances surrounding it.

21. It is the basic plea of the plaintiff as pleaded in para no.8 of

the plaint that the family settlement was executed after the solemnization

of his marriage. Even in his statement, he stated that the said family

settlement was executed after 2-3 days of the marriage while his brother

was leaving for his destination, where he was posted. As per the letters

Ex.DW1/L-1 and DW1/L-2 written by the father of the parties to the

defendant, it was intimated that the marriage of the plaintiff has been

fixed on 16.11.1970. The said date mentioned in these letters could not be

rebutted by the plaintiff. As per these letters, the marriage of the plaintiff

has taken place six days after the date of the alleged family settlement.

Thus, this evidence contradicts the very foundation of the date of the

family settlement.

22. It is alleged in the family settlement (Ex.P-1) that the

appellant-plaintiff has paid ` 48,000/- to the defendant in cash for the

purchase of the plot and its construction. But, the family settlement

(Ex.P-1) is totally silent as to when the said payment was made. `

48,000/- was a big amount in the year 1970. The plaintiff has not led any

evidence to establish his source of income to pay such a amount to the

defendant. In the cross-examination, he has stated that he has paid this

money out of his agricultural income. But, he has not produced any

corroborative evidence showing the sale of the crops and realization of

sufficient amount to pay ` 48,000/- to the defendant. It is the admitted

case of the plaintiff in the cross-examination that he was a student in the

year 1962-63 and was studying at Randhir College, Kapurthala. In the

cross-examination, he has admitted that he has written the letters Ex.D-1

to Ex.D-7 to the defendant and also admitted that the contents tehereof

are correct. In the letter Ex.D-1, the plaintiff has written that they were in

hard condition and it was difficult for them to make both ends meet. In

the letters Ex.D-2, D-3, D-4, D-5 and D-6, he has sought the financial

help from the defendant. These letters shows that in those days, the

plaintiff was not even having sufficient income to properly maintain him.

He required the money for his education and for making both ends meet.

Thus, it is not possible that suddenly in 2-3 years his financial position

improved so much that he was able to spare and pay ` 48,000/- to his

brother, who was a well settled army officer to purchase the plot. The

payment of this amount of ` 48,000/- is also not supported from any

documentary evidence. Even, in the oral evidence there is the sole

statement of the plaintiff on this aspect and his statement is not

corroborated from any source. PW-4-Harbans Singh, his father-in-law

and the attesting witness of the family settlement has also stated in the

cross-examination that he had no personal knowledge about the

transaction. Thus, in the absence of any corroborative evidence, the sole

statement of the plaintiff will not establish the payment of ` 48,000/- by

him to the defendant, particularly when no specific date, month and year

of the said payment has been mentioned either in the plaint or in the

statement of the plaintiff and even in the family settlement (Ex.P-1).

23. There was also no occasion to make the payment of `

48,000/- by the plaintiff to the defendant in the year 1970 or before that

as the allotment letter of the property in dispute was issued in favour of

the defendant on 11.01.1971. The possession thereof was delivered to

him on 26.04.1971. So, the construction could only be raised after

26.04.1971. Moreover, as per the conveyance deed, the total sale price

was ` 18729/-, so there was no reason with the plaintiff to advance a sum

of ` 48,000/- to the defendant for the purchase and construction of the

plot before the said alleged family settlement. It has also come in the

evidence that defendant had taken the loan for the construction of the

house. The plaintiff could not deny this fact in the cross-examination that

the defendant has taken the loan of ` 73,000/- for the construction of the

house. It has also come in evidence that the house was not constructed

prior to year 1977 as the building plan submitted by the defendant for

raising the construction was revalidated up to 31.03.1977 by the Estate

Office, Chandigarh. The construction was raised somewhere in the year

1976-77 and sewerage connection was released on 26.02.1977. If that

was so, there was absolutely no need for the plaintiff-appellant to pay `

48,000/- to the plaintiff prior to the family settlement dated 10.11.1970

(Ex.P-1). Thus, it appears that the story regarding payment of ` 48,000/-

has only been coined by the plaintiff to show the family settlement

genuine. But, on appreciation of the evidence available on record, the

plaintiff has not been able to establish that he had advanced ` 48,000/- to

the defendant for purchase and construction of the house.

24. The presence of PW-4-Harbans Singh at the time of