IN THE HIGH COURT OF PATNA
Second Appeal No. 229 of 2002
Decided On: 04.07.2018
Narendra Prasad Singh Vs. Ram Ashish Singh and Ors.
Hon'ble Judges/Coram:
Chakradhari Sharan Singh, J.
Citation: AIR 2018 Patna 205
1. The appellant, in the present appeal under Section 100 of the Code of Civil Procedure assails the judgment and decree dated 18.02.2002, passed by learned VIth Additional District Judge, Patna in T.A. No. 162 of 1996, whereby he has confirmed the judgment and decree dated 07.09.1996, passed by learned Munsif Ist, Patna, in T.S. No. 38 of 1990.
2. The appellant was defendant No. 1 before the trial Court. The suit was filed by Respondent No. 1 and others seeking a declaration of their title over the Schedule II of the plaint and also for a declaration that the deed of gift dated 12.08.1991, executed by Ash Kuer (Defendant No. 4) in favour of the appellant was fraudulent, illegal, null and void, inoperative, ineffective, unauthorized and not binding on the plaintiff and the defendant and that the appellant had not acquired title and possession over the aforesaid gifted property on the basis of the said gift deed dated 12.08.1991.
3. The suit property has been described in Schedule II of the plaint as follows:-
4. For the purpose of clarity, the parties are being described in the present judgment and order as per their position before the trial court.
Case of the Plaintiff
5. According to the plaintiff's case, one Munsi Singh had three sons, namely, Shyam Nandan Singh, Deonandan Singh and Girija Nandan Singh and a daughter Chandrakali Devi. Ash Kuer (Defendant No. 4) (since deceased) was wife of Deonandan Singh, who predeceased her husband. Deonandan Singh and Ash Kuer had three sons, namely, Ram Khelawan Singh, Ram Ashish Singh and Narendar Prasad Singh and two daughters, namely, Urmila Devi and Sita Devi. Sons of Munsi Singh had inherited ancestral properties and the property as described in Schedule II, which Munsi Singh had purchased in the name of his wife Ash Kuer (defendant No. 4) between 1941 to 1958, having total area of 2.33 acres. The said 2.33 acres of land was joint family property and in 1982 there had been partition among sons of Munsi Singh through deed of partition dated 23.08.1982 being Ext. 4/a. Further, it was the case of the plaintiff that Deonandan Singh, his wife and his three sons had appointed three punchas for partition of their properties on 13.12.1987 (ext. 2) and there had been partition vide Ext. 4 dated 14.12.1987, with the intervention of the punchas in which Schedule II property along with other properties were allotted to the plaintiffs and certain other properties were separately allotted to his brother Narendra Prasad Singh (defendant No. 1 (appellant herein)). A memorandum of partition was accordingly prepared on 14.12.1987, which was duly signed by the parties and the punchas. Ash Kuer (defendant No. 4) has put her LTI on the memorandum of partition so prepared, which was duly acted upon, based on which the plaintiff came in actual physical and cultivating possession of Schedule II land and as such they were exclusive owners and possessors thereof. As the defendants caused obstructions and attempted to take forcible possession over the Schedule II land, the same gave the plaintiffs cause of action leading to filing of the suit. It transpires that after filing of the suit, the plaintiff had filed a petition for temporary injunction for restraining the defendant No. 4 from transferring the suit property described in Schedule II, whereupon the trial Court had passed an order dated 08.08.1991, restraining the defendant No. 4 from alienating, selling and encumbering the suit land. It appears that defendant No. 4, (since deceased), however, executed gift deed dated 12.08.1991, despite the injunction order dated 08.08.1991, in favour of defendant No. 1. A petition was filed thereafter for initiation of contempt proceeding under Order 39 Rule 2A of the Code of Civil Procedure, 1908 for prosecution of defendant No. 4 but was subsequently dropped in view of the death of the said defendant No. 4. The plaintiff had sought amendment in the plaint for challenging the deed of gift dated 12.08.1991 executed by defendant No. 4 in favour of defendant No. 1, which was allowed.
Case of the Defendant
6. Defendant No. 1 in his written statement denied the claim of the plaintiff of purchase of said 2.33 acres of land by Deonandan Singh, father of plaintiff, defendant No. 1 in the name of defendant No. 4. He asserted that the said property was acquired by defendant No. 4 out of her stridhan and that defendant No. 4 herself had paid the entire consideration money. He, accordingly, asserted that defendant No. 4 always exercised her independent right, title and interest over the said piece of land and always treated the same as herself acquired property and not a joint family property as alleged in the plaint. He denied the factum of family arrangement and asserted that no punchas were ever appointed and Ext. 4 does not bear the thumb impression either of the said defendant or defendant No. 4. He also asserted that the so-called agreement and award of punchas were neither registered nor any petition was ever filed in the Court for making the award rule of the court.
Issues before the trial court
7. Based on the rival pleadings to the aforesaid effect, learned trial Court framed altogether seven (7) issues out of which the following two were the core issues and are relevant for the present adjudication also:-
" ....... ....... ......
(v) Whether the arbitration award was acted upon and was binding on both sides?
(vi) Whether the gift deed dated 12.08.1991 executed by Ash Kuer (defendant No. 4) in favour of defendant No. 1 was fraudulent, illegal, null and void, inactive, unauthorized and a nullity in the eye of law?"
Trial Court proceedings and findings
8. The parties adduced their evidence. The deed of partition dated 23.08.1982, among the sons of Munsi Singh was exhibited by the plaintiff as Ext. 4/a. It transpires that though initially defendant No. 1 had denied the partition deed dated 23.08.1982 (Ext. 4/a), he admitted in his cross-examination in paragraph 88 of his evidence before the trial Court that his signature was there over the said Ext. 4/a. Whereas it was pleaded in the written statement by defendant No. 1 that Ash Kuer exercised her exclusive right title over the suit property purchased in her name, he admitted in his cross examination that the same was being cultivated along with the other properties of the family. On appreciation of the evidence adduced at the trial, particularly in the light of admission of his own signature by defendant No. 1 over Ext. 4/a, the trial Court recorded his finding that Ext. 4/a was written and signed on 23.08.1982 and the date was wrongly mentioned as 08.08.1982 by the Typist. The trial Court was of the view that Ext. 4/a being in the nature of a partition deed, it ought to have been registered and in the absence of registration, it could not be said to be totally reliable but for limited purpos, the said Ext. 4/a could be considered.
9. Coming to Ext. 4, the alleged memorandum of partition of 1987 relied on by the plaintiff, which according to the plaintiff contained the signature of the defendant No. 1 and LTI of defendant No. 4 also, the trial Court relying on the evidence of the handwriting and finger print expert, recorded his conclusive finding of existence of signature of defendant No. 1 and thumb impression of Ash Kuer (defendant No. 4) (ext. 4) which was not forged, rather true. The letter appointing punchas was exhibited as Ext. 2.
10. On the basis of the evidence of the handwriting and finger print expert, the trial Court recorded the conclusive finding that both the Ext. 2 and Ext. 4, contained the signature of defendant No. 1 and Ash Kuer had also put her thumb impression on Exts. 2 and 4.
11. Considering the plea taken by defendant No. 1 in his written statement that award of punchas having not been registered nor having been made rule of the Court could not be relied on, learned trial Court held that the same could not be treated to be an award which was signed by the parties. The defendant No. 1 had endorsed on the said document as follows:-
12. Similar endorsement is made by plaintiff No. 1 and defendant No. 3; Ash Kuer had also put her TI on Ext. 4. In the light of the evidence of the plaintiff, the trial Court concluded that Ext. 4 was not an award, rather a mere memorandum of partition which had already taken place on 13.12.1987. In terms of the said memorandum of partition, the trial Court held that Schedule II land of the plaint was allotted to the plaintiff.
13. Based on such finding, the trial Court held that the plaintiffs got their perfect title over the Schedule II land.
14. Coming to the challenge by the plaintiffs to the gift deed dated 12.08.1991 executed by the defendant No. 4, the trial Court held that the gift deed was executed despite the order of status-quo granted by the Court. The trial Court held that the defendant No. 4 executed the gift deed on 12.08.1981 in favour of defendant No. 1, breaching the order of status-quo granted by the Court. The trial Court, in view of the findings in respect of Exts. 4/a and 4 and also in view of the execution of the deed of gift during the operation of the status-quo order, held the gift deed dated 12.08.1991 executed by defendant No. 4 in favour of defendant No. 1 to be fraudulent, null and void and unauthorized. The trial Court decided this issue also in favour of the plaintiffs and decreed the suit.
Findings of the Appellate Court
15. Defendant No. 1 preferred an appeal against the judgment and decree of the trial Court giving rise to Title Appeal No. 162 of 1996, which came to be registered in the file of the Court of 6th Additional District Judge, Patna for final adjudication. The learned appellate Court on careful appreciation of the stand of the parties in their pleadings and the evidence adduced at the trial, was in respect of land of Schedule II of the plaint which was being claimed by the defendant to be self acquired land of Ash Kuer, the mother of plaintiff No. 1 and defendant No. 1. Learned first appellate Court, upon detailed appreciation of the evidence recorded its finding that the acquisitions were made in the joint family in the name of the female members of the joint family from the joint family fund and the same were treated as joint family property. Learned appellate Court noticed the evidence of D.W.4 in paragraph 6 wherein he had deposed that after the death of Shyam Nandan Singh, partition had taken place between sons of Shyam Nandan Singh (Ambika Singh) on the one hand and husband of Ash Kuer, namely, Deonandan Singh. The first appellate Court affirming the finding recorded by the trial Court, held that all the relevant pieces of evidence went to show that in the family partition, by way of family arrangement, the disputed land as described in Schedule II of the plaint along with other land were allotted in the share of the plaintiffs and since then the land mentioned in Schedule II of the plaint came in exclusive possession of the plaintiffs and other members of the family had got no concern with the same.
16. On the question of the requirement of registration of Ext. 4, the learned appellate Court below held that the separation had taken place on 13.12.1987 and all the joint family property including the purchased property was partitioned amicably in three parts, under the said arrangement, as disclosed in Ext. 4, which was memorandum of partition dated 14.12.1987. It was not an award of punchas and was, therefore, not required to be registered and could be used for collateral purpose.
Concurrent findings
17. There are, thus, concurrent findings of fact recorded by the two Courts below on following three aspects:-
(i) The Ext. 4 dated 14.12.1987, was not an award made by punchas rather it was memorandum of partition based on amicable family arrangement made on 13.12.1987 itself and, therefore, it did not require any registration.
(ii) The appointment of punchas through Punchnama marked as Ext. 2 contained the signature of the plaintiffs, defendant No. 1 and LTI of defendant No. 1 as well as Deonandan Singh, their father. It also contained LTI of defendant No. 4, Ash Kuer. Ext. 4 dated 14.12.1987 too, contained the signature of the plaintiffs, defendant No. 1 and LTI of defendant No. 4.
(iii) The property which was purchased in the name of Ash Kuer was purchased out of joint family fund and the joint family had been making purchases of properties in the names of the females of the family.
Developments in the present Second Appeal
17. In the aforesaid background, the present second appeal has been preferred by defendant No. 1. The second appeal was earlier taken up by this Court on 28.02.2014, when this Court, after having found that no substantial question of law was arising consideration in this appeal, had dismissed the appeal under Order 41 Rule 11 of the Code of Civil Procedure. The appellant had thereafter, moved to the Supreme Court by filing Special Leave Petition giving rise to Special Leave to Appeal CC 18557 of 2014. The Supreme Court, disposed of the said SLP No. 18557 of 2014 in following terms:-
"Heard learned counsel for the petitioner.
It is submitted by the learned counsel for the petitioner that the High Court has not taken into consideration the ground No. 8 raised in the Memorandum of Appeal which is really a substantial question of law, for an award passed by the Arbitrator dividing the properties between the parties is required to be registered under the law.
Regard being had to the aforesaid submission, we grant liberty to the petitioner to file an application for review within a period of four weeks hence, which shall be dealt with on merits and not be thrown at the threshold on the ground of limitation.
If the petitioner is visited with any adverse order, liberty is granted to him to challenge the order passed in review, as well as the order impugned herein.
The special leave petition is disposed of accordingly."
18. As is evident, ground No. VIII taken in the second appeal was brought to the notice of the Supreme Court to contend that a substantial question of law arose in the second appeal to the effect that an award passed by the arbitrator dividing the properties between the parties is required to be registered under law or made rule of the court. Ground No. VIII taken in the second appeal reads thus:-
"(VIII) For that alleged AWARD by purchase as alleged was not registered nor made rule of the Court nor filed alongwith plaint and was filed after commencement of trial even then the Courts below held that it is not the award but the memorandum of partition (Ext. 4) which is illegal."
19. In the light of the Supreme Court's order in SLP No. 18557 of 2014, the appellant filed review application before this Court seeking review of the judgment and order dated 28.02.2014, whereby the second appeal was dismissed. This Court, in view of the observations of the Supreme Court, allowed the prayer for review with following observation paragraph 6:-
"6. After considering the submissions as well as the materials on record including the judgment and order passed in the second appeal under review, it is manifest that the plaintiffs filed the suit for declaration of title over the suit land and also for declaration that the deed of gift dated 12.08.1991 in favour of the defendant No. 1 was illegal, null and void and not binding upon the plaintiffs. Admittedly the suit property was initially the part of the joint family property of the plaintiff and the defendants and it was the case of the plaintiffs that the suit property was allotted exclusively to the plaintiff No. 1 in partition. In support of the said fact the plaintiff adduced evidence and relied upon the document (Exhibit-4) evidencing the allotment of the suit property to plaintiff No. 1. The contesting defendant however denied the genuineness of the said document (Exhibit-4) and also assailed the same on the ground that the said document being an award of partition of the family properties, was not registered nor made the rule of the Court. Both the Courts below, however, have recorded the finding that the said document(Exhibit-4) was not a partition deed or award, rather it was a memorandum of the partition recording the fact of partition which had taken place between the parties a day before. It is, thus, evident that interpretation of the said document (Exhibit-4) either as memorandum of partition or award of partition was one of the crucial issues which arose in the suit between the parties. Though both the courts below have considered the said issue and interpreted the said document as only a memorandum of partition but in view of the observations of the Apex Court as aforementioned and after considering the submissions, this Court is inclined to allow the prayer for review of the judgment and order as prayed by the petitioner."
20. The order dismissing the second appeal having been recalled by order dated 22.06.2016, passed in Civil Review No. 425 of 2014, the second appeal was thereafter, again placed for hearing under Order 41 Rule 11 of the Code of Civil Procedure. This Court formulated following substantial questions of law while admitting the appeal, by order dated 05.10.2016:-
"The substantial question of law is arising for consideration in this appeal is as to whether the document of partition (Ext. 4) has been rightly interpreted to be only a memo of partition and not an award of partition of the family properties between the parties by both the courts below."
21. At the time of hearing of the second appeal, learned Senior Counsel appearing on behalf of the appellant suggested additional substantial questions of law, which arose in the present second appeal and following additional substantial questions of law were framed by order of this Court dated 10.10.2017:-
"I. Whether both the Courts below have not committed jurisdictional error by not appreciating that admittedly the properties in suit were acquired by Ash Kunwar Devi, original defendant No. 4 (since deceased) and all sale in that regard stood in her name, and hence the properties were her Stridhan which could not have been treated as a part of the joint family property, there was complete lack of unity of title and unity of possession and those properties could not have been treated as blended in the joint family property also.
II. Whether both the Courts below have not committed jurisdictional error by not appreciating that the suit and the relief sought therein regarding plaintiffs title and non-title of the defendants (which include defendant No. 4) was barred u/s. 4 of the Benami Transactions (Prohibition) Act, 1988.
III. Whether both the courts below have not committed jurisdictional error by not appreciating that the documents of partition Ext. 4 was necessarily required to be registered as per Section 17 of the Registration Act and since the document was not registered hence the same was not liable to be taken into consideration by a Court of law, in regard to any immovable property comprised therein, nor as an evidence of any transaction affecting such property."
Submissions on behalf of the Appellant
22. Mr. J.S. Arora, learned Senior Counsel appearing on behalf of the appellant (defendant No. 1) has contended that according to the plaintiff himself the arbitrators were appointed vide Ext. 2 and through the arbitrators, partition had taken place by the award, which is ext. 4. According to him, in terms of the provision under the Arbitration Act, 1950, an award made by an arbitrator is necessarily required to be made rule of the Court and in the absence of the award having been made rule of the Court by a decree of the Civil Court, the same is not liable to be taken in evidence. He has submitted that the creation of any right in favour of any person with regard to an immovable property of more than Rs. 100/-, either by an award or any other document or even by a compromise decree was essentially required to be registered under Section 17 of the Indian Registration Act, 1908 and in the absence of registration, the said document could not be taken into evidence by any Court of law, in view of the clear provision under Section 49 of the said Act. In support of this proposition, he has relied on following decisions of Supreme Court's:-
1. MANU/SC/0003/1974 : AIR 1974 SC 1066 (Ratan Lal V. Purshottam)
2. 2015(4) PLJR (SC) 494 (Yellapu Uma Maheswari V. Buddha Jugadheeswararao)
23. Reliance has also been placed on a decision of this Court in the case of Dilip Gupta v. Debashish Palit reported in MANU/BH/0225/2005 : 2005(3) PLJR 623 in this regard. He has also submitted that even a document of partition, unless it is by way of a memorandum containing only recitals with regard to a partition having taken place in the past and having been acted upon, it would be necessarily required to be registered. Reliance has been placed on the decision of Supreme Court in the case of Sharad Vasant Kotak V. Ramniklal Mohanlal Chawda (MANU/SC/0910/1998 : AIR 1998 SC 877).
24. His next contention is that the property in dispute was purchased by Ash Kuer who had paid the consideration money as is evident from the recitals of the sale deed and that the finding recorded by the Courts below that the properties purchased in her name was not self acquired property is perverse. In support of his contention, he has relied on the following two Supreme Court's decisions:-
"1. MANU/SC/1052/1997 : (1997) 2 SCC 397(Rashmi Kumar V. Mahesh Kumar Bhada).
2. MANU/SC/1330/2015 : (2016) 2 SCC 705 (Krishna Bhattacharjee V. Sarathi Choudhary)"
25. He has also contended that the property of stridhan is not liable to be blended in with the joint family, in view of law laid down by the Supreme Court in the case of Jai Prakash v. Union of India (MANU/SC/0557/1997 : AIR 1997 SC 2237).
26. Relying on another decision of the Supreme Court in the case of M/S Rishi Trade Centre v. Collector of Customs and others (MANU/SC/0413/1997 : AIR 1997 SC 1786), Mr. Arora contends that a property of a lady, even if she is not in actual physical possession, but has got the right to possess, will be deemed to be her stridhan and she would be the owner of the said property, for all purposes. He has then relied on Section 4 of the Benami Transactions (Prohibitions) Act, 1988 to contend that no suit can be filed for seeking a relief that the property, even though standing in the name of another, is in fact, the property of the plaintiff. Since the suit was filed in the year 1990, after coming into force of the said Act, the institution of the suit itself was barred in view of the said provision of law. He would contend that there could not be a partition or partition decree in respect of the property standing in the name of a lady member for the family, particularly after the coming into force of Benami Transactions Prohibitions Act, 1988, in view of the law laid down by this Court in case of Rameshwar Mistry v. Bebulal Mistry (MANU/BH/0008/1991 : AIR 1991 Patna 53).
27. In response to the argument advanced on behalf of the plaintiff that a family arrangement is a conclusive arrangement and the right accrued thereof in favour of any person shall be absolute, Mr. Arora has submitted that family arrangement in respect of a partition would be of no effect, if it is in respect of a property, which is not of the family, since the basic ingredient of partition of a property is that there must be unity of title and unity of possession. In regard to the property of a lady family member, being her stridhan, it can never be treated to be property of joint family. He has contended that as per the law as the same stood at the relevant point of time, a lady family member was not the coparcener of a joint family.
Submission on behalf of the contesting Respondents
28. Mr. Kamal Nayan Choubey, learned Senior Counsel, appearing on behalf of the plaintiff-respondents has submitted, on the other hand, that family arrangement is an arrangement between members of the same family, intended to be generally and reasonably for the benefit of the family, either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family, by avoiding litigation. He has submitted that the family arrangement was acted upon by all the parties and it was only after the death of Devnandan Singh, father of the plaintiff and defendant No. 1 that the defendant No. 1 started causing disturbance in respect of lands described in Schedule II, which the plaintiff was possessing, by virtue of family arrangement dated 13.12.1987, reduced into writing on 14.12.1987, vide memorandum dated 14.12.1987. He would further contend that suit cannot be said to be hit by the Benami Transactions Prohibitions Act, 1988 since the plaintiff was claiming his title on the basis of family arrangement (Ext. 4) and not as benamidar. He has submitted that Ext. 4 cannot be treated to be an award and the punchas cannot be treated to be arbitrators since it was only for the purpose of arriving at a family arrangement, that they were appointed. He contends that the parties to the family arrangement are themselves the executors of the family arrangement to which the punchas only signed as witnesses. He has emphatically submitted that Ext. 4 cannot be treated to be a deed of partition because the partition had taken place on 13.12.1987 itself and only the memorandum was prepared on 14.12.1987. It is his contention, accordingly that Ext. 4 did not require registration for the purpose of the same being taken as evidence. He has further submitted that the defendant No. 1 is estopped to question the validity of Ext. 4, his being a signatory to the said document.
29. Reliance has been placed in support of his submission on a decision reported in the case of Martin Cashin and others v. Peter J. Cashin and others (MANU/PR/0080/1938 : AIR 1938 P.C. 103). Reliance has also been placed by him on a decision of this Court rendered on 01.07.2017 in SA No. 197 of 2013 (Punam Devi and others v. Jain Narain Rai and others), in support of this plea.
Discussions
30. Before I proceed to consider rival submissions advanced on behalf of the parties and the materials available on record for the purpose of adjudication of the present second appeal by answering substantial questions of law, I must refer to certain concurrent findings recorded by the Courts below:-
(I) Ext. 4, which is at the core of the controversy was signed by the plaintiff, defendant No. 1 and their father, Deonandan Singh which also bears the thumb impression of defendant No. 4.
(II) There was a family arrangement with the aid of the punchas, arrived at by the family members on 13.12.1987 itself, based on which the memorandum dated 13.12.1987 was prepared.
(III) The punchas were appointed through a document which contained the signatures of the plaintiff and the contesting defendants as well as the said Deonandan Singh.
The concurrent findings so recorded cannot be assailed since the said findings are based on appreciation of evidence.
31. Questioning For answering the substantial question of law initially framed in the light of the Supreme Court's decision the moot question which this court is required to consider is as to whether Ext. 4 can be treated to be an award or a partition deed which was compulsorily required to be made rule of the court or registered under the Indian Registration Act, 1908.
32. There is yet another concurrent finding recorded by the Courts below to the effect that the disputed property was purchased in the name of defendant No. 4 out of joint family fund. Whether the plea of defendant No. 1 that on the ground that the property being her stridhan could not have been part of family arrangement(Ext. 4) in any view of the matter, is another aspect which needs to taken note of and discussed.
33. Mr. Arora, learned Senior Counsel has given much emphasis on his submission that Ext. 4 being apparently an award given by the Arbitration Tribunal, it was essentially required to be made rule of the Court by passing of a decree in accordance with Section 17 of the Arbitration Act. In the absence of the award having been made rule of the Court by decree of the Civil Court, Ext. 4 could not be taken as evidence, according to him. The said submission deserves to be rejected since I am of the view that Ext. 4 cannot be treated to be an award within the meaning of the Arbitration Act, 1940, which was required to be made rule of the Court under Section 17 of the Arbitration Act. It is true that by written agreement between the parties, punchas were appointed for effecting partition, which is evident from Ext. 2 dated 13.12.1987, making it clear that the parties would be bound by a decision of the punchas. There is no award prepared by the punchas nor there is any evidence that any such award was ever prepared. Section 2(b) of the Arbitration Act defines award to be an arbitration award. Section 14 of the Arbitration Act makes it mandatory in case of the award prepared by the arbitrator that the arbitrator shall sign the award and give notice in writing to the parties of making and signing thereof. Sub-section (2) of Section 14 thereafter, requires an award to be filed in the Court. In between appointment of punchas and making of Ext. 4 signed by the plaintiff, there was no award prepared by the punchas appointed by the parties. Ext. 4 has been signed by the plaintiff-defendant and their father Deonandan Singh.
34. Mr. Arora has taken this Court to the endorsement made by the punchas on Ext. 4 to the effect that the said document has been prepared on the basis of the decision of the punchas and, therefore, Ext. 4 is an award under the Arbitration Act. I would reiterate here that there is no decision of the punchas. On the other hand, it transpires that the family arrangement was made on 13.12.1987 itself, and, therefore, may be, with the intervention of the punchas facilitating amicable family arrangement between the parties. The memorandum of the same was prepared on 14.12.1987. Be it noted that there is a concurrent finding recorded by the Courts below that separation had taken place on 13.12.1987 when all the joint family properties including the disputed property was partitioned amicably. The finding to the effect that the separation had taken place on 13.12.1987 recorded by the Courts below cannot be said to be perverse since the findings are based on the appreciation of the evidence. The question whether Ext. 4 could be treated to be an award under the Arbitration Act will have to be considered in the background of this crucial fact, which goes to the root of the matter. In my view, there being a finding that the partition had taken place or the family arrangement was arrived at on 13.12.1987 itself, there would be no question of preparation of an award in respect of the family arrangement on a subsequent date. I wish to emphasize here that the concurrent findings recorded by the Courts below to the effect that the partition had taken place on 13.12.1987, is binding on this Court in this second appeal in the absence of any perversity shown in respect of the said finding. As a natural corollary thereof, Ext. 4 cannot be treated to be an award rather a memorandum of partition that had taken place on a previous date on 13.12.1987. Merely because there is reference to the opinion of the punchas in Ext. 4 dated 14.12.1987, the same cannot alter the finding of the courts below that the partition/family arrangement had taken place on 13.12.1987. In that view of the matter, I answer the first substantial question of law accordingly and hold that the document of partition (Ext. 4) has been rightly interpreted to be a memo of partition and not an award of partition of family properties by the punchas. The substantial question of law originally formulated by order, dated 15.10.2016 stands answered accordingly.
35. I will now be coming to the submission made by Mr. Arora of the compulsory registration as required under Section 17 of the Registration Act, 1908 for a document to be taken in evidence, in view of Section 49 of the Act to address the third substantial question of law formulated vide order, dated 10.10.2017 as the same is integrally connected with the question as already answered above. As has already been noticed, it is the case of the appellant that Ext. 4 had the effect of creation of right in favour of persons in respect of immovable properties of more than Rs. 100/- and, therefore, an award or any other document prepared even by compromise, requires registration. There cannot be any dispute over the legal proposition that any agreement or award having consequence of creation of rights in favour of any persons with regard to an immovable property worth more than Rs. 100/- would require compulsorily registration and if unregistered, the same cannot be looked into. If Ext. 4 could be held to be an award or deed of partition, the matter would have been different and registration of such document would have been compulsory for the same to be taken in evidence.
36. Mr. Kamal Nayan Choubey, learned Senior Counsel has, in my opinion, rightly placed reliance on the Supreme Court's decision in the case of Kale v. Deputy Director, Consolidation MANU/SC/0529/1976 : (1976) 3 SCR 202). The Supreme Court held in the said case that even if a family settlement was not registered, it would operate as a complete estoppel against the respondents. Mr. Choubey is correct in his stand that the appellant is estopped from challenging the validity of Ext. 4, he being admittedly party to the same.
37. Following observation made by the Supreme Court in the case of Kale v. Deputy Director, Consolidation (supra), is relevant for the present dispute, which is being reproduced herein below:-
"In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law is not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha V. Mt. Mendha (1) Chief Controlling Revenue Authority V. Smt. Satyawati Sood and others (2) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same.
Finally it was contended by the respondents that this Court should not interfere because there was no error of law in the judgment of the High Court or that of Respondent No. 1. This argument is only stated to be rejected.
In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly, the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder and others v. Siya Ram and another (1) it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title."
38. In view of the discussions as above, holding the nature of Exhibit-4 to be a memorandum of family arrangement and not a deed of partition, it is held that the same was not required to be compulsorily registered under Section 49 of the Indian Registration Act. In any view of the matter, following the decision in the case of Kale v. Deputy Director, Consolidation (supra), it is held that the appellant is estopped from denying the factum of family arrangement, he being admittedly signatory to the same. The Supreme Court's decisions in the case of Ratan Lal v. Purshottam (supra) and in the case of Yellapu Uma Maheswari (supra), will have no application in view of the discussions as above. I have failed to understand why learned Senior Counsel has relied on Supreme Court's decision in case of Sharad Vasant Kotak (supra), which has no connection at all with the question involved in the present case. Third additional substantial question of law stands answered accordingly.
39. Discussed the first additional substantial question of law to the effect that the suit property was acquired by original defendant No. 4 which were her stridhan and could not be treated as part of the joint family property. The manner in which the land in dispute was acquired in the name of Ash Kuer has been discussed in the judgments of the Courts below. There is clear finding based on the statement of the plaintiff's witnesses supported by the defendant's witnesses that the acquisition was being made in the name of female members of the joint family from the joint family fund and the same was treated as joint family property and was being cultivated like joint family land. This finding is based on appreciation of the evidence which cannot be said to be without evidence and, therefore, cannot be treated to be perverse.
40. It is evident from the materials on record that the property so acquired in the name of Ash Kuer from the joint family fund was treated as joint family property right from the very beginning and the family arrangement was made between the members of the family for avoiding any future disputes and for preserving peace and security of the family by avoiding litigation. The suit property acquired in the name of Ash Kuer even if the said property was to be as stridhan of Ash Kuer, the same had become part of the hooch pouch of the joint family property and evidently for the purpose of peace in the family and avoiding future litigation. The family arrangement was made on 13.12.1987. However, I find no legal infirmity in the concurrent findings recorded by the Courts below that the joint family fund was the source of the money used for the purchase of the suit property in the name of Ash Kuer. The same, therefore, has rightly not been held to be stridhan by the courts below.
41. Situated thus, in view of the concurrent findings recorded by the Courts below, the suit property could not be considered to be the stridhan of Ash Kuer, which was acquired in her name and the other female members of the family from the joint family fund.
42. I now come to the second additional substantial question of law pertaining to the stand of the appellant that claim of the plaintiff's title and not the title of the defendants over the suit property was barred under Section 4 of the Benami Transaction (Prohibition) Act, 1988. The said submission, in my view, cannot at all be accepted since acquisition of the land in the name of a member of a family from the joint family property cannot be regarded as a benami transaction within the meaning of Section 2 of the Benami Transaction (Prohibition) Act, 1988. Benami transaction has been defined under Section 2(a) of the Benami Transaction (Prohibition) Act, 1988 as any transaction in which property is transferred to one person and a consideration is paid or provided by another person. In the present case, the consideration has been found to have been provided by the joint family fund which cannot be treated as fund of another person. In my view, therefore, the said provision does not have any application at all in the present facts and circumstances. This is also to be noted that the plaintiff claimed his title purely on the basis of the family arrangement and not aa benamidar and, therefore, the suit cannot be said to be hit by Benami Transaction (Prohibition) Act, 1988. The said question is also answered accordingly.
43. I must observe after having answered the substantial questions of law as above, during the pendency of the suit before the Court below and during operation of an interim order passed by the trial Court for maintaining the status-quo and restraining the parties from alienating the suit property, the defendant No. 4 (since deceased) had executed the gift deed in favour of defendant No. 1 (the appellant). On the one hand, thus, the appellant questioned the terms of the family arrangement to which he was found to be party as has already been noticed above and despite knowing about the interim order passed by the trial Court, he became a party to the gift deed dated 12.08.1991.
44. In the aforesaid background, I do not find any merit in this second appeal, which is, accordingly, dismissed.
45. However, in the facts and circumstances, the parties shall bear their own costs.
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