Law Web: Whether it is mandatory to register a memorandum of family settlement if a family member not having title to the property previously was allocated a particular property?

The settled legal position is

that when by virtue of a family settlement or arrangement,

members of a family descending from a common ancestor or a

near relation seek to sink their differences and disputes, settle

and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete

harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a threeJudge Bench of this Court had observed thus: “

9.….. A family arrangement by which the property is

equitably divided between the various contenders so as to

achieve an equal distribution of wealth instead of

concentrating the same in the hands of a few is

undoubtedly a milestone in the administration of social

justice. That is why the term “family” has to be

understood in a wider sense so as to include within its

fold not only close relations or legal heirs but even those

persons who may have some sort of antecedent title, a

semblance of a claim or even if they have a spes

successionis so that future disputes are sealed for ever

and the family instead of fighting claims inter se and

wasting time, money and energy on such fruitless or futile

litigation is able to devote its attention to more

constructive work in the larger interest of the country.

The courts have, therefore, leaned in favour of

upholding a family arrangement instead of disturbing

the same on technical or trivial grounds. Where the

courts find that the family arrangement suffers from a

legal lacuna or a formal defect the rule of estoppel is

pressed into service and is applied to shut out plea of

the person who being a party to family arrangement

seeks to unsettle a settled dispute and claims to

revoke the family arrangement under which he has

himself enjoyed some material benefits. …..”

(emphasis supplied)

In paragraph 10 of the said decision, the Court has delineated

the contours of essentials of a family settlement as follows: “

10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form,

the matter may be reduced into the form of the following

propositions:

“(1) The family settlement must be a bona fide one

so as to resolve family disputes and rival claims by a

fair and equitable division or allotment of properties

between the various members of the family;

(2) The said settlement must be voluntary and

should not be induced by fraud, coercion or undue

influence;

(3) The family arrangement may be even oral in

which case no registration is necessary;

(4) It is well settled

that registration would be

necessary only if the terms of the family arrangement

are reduced into writing. Here also, a distinction

should be made between a document containing

the terms and recitals of a family arrangement

made under the document and a mere

memorandum prepared after the family

arrangement had already been made either for the

purpose of the record or for information of the

court for making necessary mutation. In such a

case the memorandum itself does not create or

extinguish any rights in immovable properties and

therefore does not fall within the mischief of Section

17(2) of the Registration Act and is, therefore, not

compulsorily registrable;

(5) The members who may be parties to the family

arrangement must have some antecedent title, claim

or interest even a possible claim in the property which

is acknowledged by the parties to the settlement. Even

if one of the parties to the settlement has no title

but under the arrangement the other party

relinquishes all its claims or titles in favour of such

a person and acknowledges him to be the sole

owner, then the antecedent title must be assumed

and the family arrangement will be upheld and the

courts will find no difficulty in giving assent to the

same;

(6) Even if bona fide disputes, present or possible,

which may not involve legal claims are settled by a

bona fide family arrangement which is fair and

equitable the family arrangement is final and binding

on the parties to the settlement.”

(emphasis supplied)

Again, in paragraph 24, this Court restated that a family

arrangement being binding on the parties, clearly operates as an

estoppel, so as to preclude any of the parties who have taken

advantage under the agreement from revoking or challenging the

same. In paragraph 35, the Court noted as follows: “

35. … We have already pointed out that this Court

has widened the concept of an antecedent title by holding

that an antecedent title would be assumed in a person

who may not have any title but who has been allotted a

particular property by other party to the family

arrangement by relinquishing his claim in favour of such

a donee. In such a case the party in whose favour the

relinquishment is made would be assumed to have an

antecedent title. …..”

And again, in paragraph 36, the Court noted as follows: “

36. … Yet having regard to the near relationship

which the brother and the soninlaw

bore to the widow

the Privy Council held that the family settlement by which

the properties were divided between these three parties

was a valid one. In the instant case also putting the case

of Respondents Nos. 4 and 5 at the highest, the position

is that Lachman died leaving a grandson and two

daughters. Assuming that the grandson had no legal title,

so long as the daughters were there, still as the

settlement was made to end the disputes and to benefit

all the near relations of the family, it would be sustained

as a valid and binding family settlement. …”

While rejecting the argument regarding inapplicability of principle

of estoppel, the Court observed as follows: “

38. … Assuming, however, that the said

document was compulsorily registrable the courts

have generally held that a family arrangement being

binding on the parties to it would operate as an

estoppel by preventing the parties after having taken

advantage under the arrangement to resile from the

same or try to revoke it. …..”

(emphasis supplied)

And in paragraph 42, the Court observed as follows: 42.

..… 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 Nos. 4 and 5. Respondent No. 1 as also the

High Court, therefore, committed substantial error of law

in not giving effect to the doctrine of estoppel as spelt out

by this Court in so many cases. …”

(emphasis supplied)

A priori, we have

no hesitation in affirming the conclusion reached by the first

appellate Court that the document Exhibit P6

was nothing but a

memorandum of a family settlement. The established facts and

circumstances clearly establish that a family settlement was

arrived at in 1970 and also acted upon by the concerned parties.

That finding of fact recorded by the first appellate Court being

unexceptionable, it must follow that the document Exhibit P6

was merely a memorandum of a family settlement so arrived at.

Resultantly, it was not required to be registered and in any case,

keeping in mind the settled legal position, the contesting

defendants were estopped from resiling from the stated

arrangement in the subject memorandum, which had recorded

the settlement terms arrived at in the past and even acted upon

relating to all the existing or future disputes qua the subject

property amongst the (signatories) family members despite

absence of antecedent title to the concerned property.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7764 OF 2014

Ravinder Kaur Grewal Vs Manjit Kaur

A.M. Khanwilkar, J.

Dated: July 31, 2020.

1. This appeal emanates from the judgment and decree dated

27.11.2007 passed by the High Court of Punjab and Haryana at

Chandigarh1 in R.S.A. No. 946/2004, whereby the second appeal

filed by the respondent Nos. 1 to 3 (heirs and legal

representatives of Mohan Singh original

defendant No. 1) came

to be allowed by answering the substantial question of law

formulated as under: “

Whether the document Ex.P6

required registration as by

way of said document the interest in immovable property

worth more than Rs.100/was

transferred in favour of

the plaintiff?”

1 For short, “the High Court”

2. Briefly stated, the suit was filed by the predecessor of the

appellants herein Harbans

Singh, son of Niranjan Singh,

resident of Sangrur, Punjab against his real brothers Mohan

Singh (original defendant No. 1) and Sohan Singh (original

defendant No. 2) for a declaration that he was the exclusive

owner in respect of land admeasuring 11 kanals 17 marlas

comprising khasra Nos. 935/1 and 935/2 situated at Mohalla

Road and other properties referred to in the Schedule. He

asserted that there was a family settlement with the intervention

of respectable persons and family members, whereunder his

ownership and possession in respect of the suit land including

the constructions thereon (16 shops, a samadhi of his wife –

Gurcharan Kaur and one service station with boundary wall) was

accepted and acknowledged. Structures were erected by him in

his capacity as owner of the suit land. It is stated that in the

year 1970 after the purchase of suit land, some dispute arose

between the brothers regarding the suit land and in a family

settlement arrived at then, it was clearly understood that the

plaintiff – Harbans Singh would be the owner of the suit property

including constructions thereon and that the name of Mohan

Singh (original defendant No. 1) and Sohan Singh (original

defendant No. 2) respectively would continue to exist in the

revenue record as owners to the extent of half share and the

plaintiff would have no objection in that regard due to close

relationship between the parties. However, the defendants raised

dispute claiming half share in respect of which Harbans Singh

(plaintiff) was accepted and acknowledged to be the exclusive

owner and as a result of which it was decided to prepare a

memorandum of family settlement incorporating the terms

already settled between the parties, as referred to above. The

stated memorandum was executed by all parties on 10.3.1988.

However, after execution of the memorandum of family

settlement dated 10.3.1988, the defendants once again raised

new issues to resile from the family arrangement. As a result,

Harbans Singh (plaintiff) decided to file suit for declaration on

9.5.1988, praying for a decree that he was the owner in

possession of the land admeasuring 11 kanals 17 marlas

comprising of khasra Nos. 935/1 and 935/2 situated at Mohalla

Road. An alternative plea was also taken that since plaintiff was

in possession of the whole suit property to the knowledge of the

defendants openly and adversely for more than twelve years, he

had acquired ownership rights by way of adverse possession.

3. The suit was resisted by the defendants by filing written

statement. Harbans Singh (plaintiff) filed replications. On the

basis of rival pleadings, the Civil Judge (Junior Division), Sangrur

in Suit No. 187/1988 B.T. No. 185 of 18195

(18195)

framed

following issues: “

1.Whether the plaintiff is owner in possession of suit

land? OPP

2. Whether there was any family settlement between the

parties on 10.3.1988 and memo of family settlement

was executed by parties on that day? OPP

3. Whether the plaintiff constructed shops, a service

station and boundary wall around the disputed

property? OPP

4. Whether the plaintiff has become owner of suit land by

adverse possession? OPP

5. Whether the property in dispute was purchased out by

the income of Joint Hindu Family coparcenary

property and construction on the suit land was also

purchased by Joint Hindu Family coparcenary

property? OPD

6. Whether Sohan Singh, Mohan Singh and Harbans

Singh constitute a Joint Hindu Family? OPD

7. Whether the defendants are estopped from denying the

execution of memo of family settlement by their act

and conduct? OPP

8. Relief.”

During the pendency of the suit, Harbans Singh (plaintiff) expired

and, therefore, the appellants herein were brought on record

being his legal heirs. The trial Court vide judgment and decree

dated 19.1.2000, partly decreed the suit in the following terms: “

RELIEF

30. In view of my discussion on various issues

above, the suit of the plaintiff partly succeeds and partly

fails. Therefore, his suit is decreed partly to the extent

that he is declared to be owner in possession of khasra

no. 935/1/1/2 (518)

and to the extent of ½ share in

khasra no. 935/1/1/1 (519)

with construction there

upon. Keeping in view the relationship between the

parties and the circumstances of the case, no order as to

cost. Decree sheet be prepared accordingly. File be

consigned to the record room.”

4. Aggrieved by this decision, the appellants/plaintiffs filed

first appeal before the District Judge, Sangrur being Civil Appeal

No. 45 of 522000

B.T. No. 60 of 1162001.

The first appellate

Court, after reappreciating the pleadings and evidence on record,

was pleased to allow the appeal and modify the judgment and

decree passed by the trial Court. The first appellate Court

declared the original plaintiff as owner of the suit land alongwith

constructions including 16 shops, a service station and boundary

wall with samadhi in the land. The operative order passed by the

first appellate Court, dated 29.11.2003, reads thus: “

18. In the light of the above discussion, the appeal is

allowed and the judgment passed by the learned trial

court is modified and the suit of the plaintiff is decreed.

The plaintiff is declared owner of the land measuring 11

kanals 17 marlas comprised in rectangle and killa no.

935/1/1/1 (519),

935/1/1/2 (518)

situated in Mehlan

Road, Sangrur along with construction including 16

shops, a service station and boundary wall with samadh

in the land. In view of the peculiar circumstances of the

case the parties are left to bear their own costs. Decree

sheet be prepared and copy of the judgment be placed on

the file of the learned trial court and the same be

returned immediately to the successor court of Smt.

Harreet Kaur PCS, the then Civil Judge (Junior Division),

Sangrur. This court file be consigned to the record

room.”

5. The respondent Nos. 1 to 3 being legal representatives of

Mohan Singh (original defendant No. 1) preferred second appeal

before the High Court being R.S.A. No. 946/2004. The learned

single Judge answered the substantial question of law

reproduced in paragraph 1 above in favour of the said

respondents. The High Court was pleased to set aside the

conclusion recorded by the first appellate Court and opined that

the document which, for the first time, creates a right in favour of

plaintiff in an immovable property in which he has no preexisting

right would require registration, being the mandate of

law. Accordingly, the second appeal came to be allowed and the

judgment and decree passed by the lower appellate Court was set

aside, thereby restoring the decree passed by the trial Court, vide

impugned judgment dated 27.11.2007.

6. The appellants have questioned the correctness of the view

taken by the High Court and in particular, reversing the

conclusion reached by the first appellate Court. When the

present appeal was taken up for hearing, the Court referred the

matter to a larger Bench of threeJudges

to answer the question

as to whether the acquisition of title by adverse possession can

be taken by plaintiff under Article 65 of the Limitation Act, 1963

and is there any bar under the Limitation Act to sue on aforesaid

basis in case of infringement of any rights of a plaintiff. The

appeal accordingly proceeded before the threeJudge

Bench,

which in turn answered the said question vide judgment dated

7.8.20192 in favour of the plaintiff. As a result, the matter has

been placed before us for consideration of the appeal on its own

merits.

7. The appellants would contend that the High Court disposed

of the second appeal in a casual manner and more so, without

dealing with the finding of fact recorded by the first appellate

Court in favour of the plaintiff. It is urged that the first appellate

Court, after noticing the admitted factual position, proceeded to

first examine the question whether the document dated

10.3.1988 (Exhibit P6)

was executed by the parties or not. That

fact has been answered in favour of the plaintiff (appellants) after

analysing the evidence on record. It has been held that the

stated document was indisputably executed by the parties. The

next question considered by the first appellate Court was whether

2 Reported as (2019) 8 SCC 729

the stated document required registration or not, which has been

justly answered in favour of the plaintiff (appellants) on the

finding that it was merely a memorandum of family settlement

and not a document containing terms and recitals of the family

settlement made thereunder. For that, the first appellate Court

noted that the plaintiff had constructed 16 shops and a samadhi

including boundary wall on the suit land on his own, which fact

was indisputable and established from the evidence on record.

Further, the plaintiff was in possession of the suit land. Even

this finding is supported by the evidence on record and is wellestablished.

It is also established from record that as per the

family settlement, the plot in Prem Basti belonging to Harbans

Singh (plaintiff) was given to Sohan Singh (original defendant No.

2), which was in possession of Mohan Singh (original defendant

No. 1) and that another plot purchased by plaintiff in the name of

his son Vikramjit Singh was given to Mohan Singh (original

defendant No. 1) and his wife. Notably, the Defendant Witness

No. 1 (DW1)

admitted that the said property was sold thereafter

to one Surjit Kaur. In substance, it is established that the

parties had acted upon the family settlement, which was

recorded in the form of document Exhibit

being a

memorandum of family settlement. In other words, the

concerned parties had acted upon the family arrangement as per

the settlement terms decided in 1970 and reinforced by the

document Exhibit P6

(memorandum of family settlement). Being

a memorandum of family settlement, it was not required to be

registered and, in any case, the parties having acted upon the

terms of the said settlement to the prejudice of the other party, it

was not open to them to resile from the said arrangement. Thus,

they are estopped from disowning the arrangement already

reached, acted upon and so recorded in the memorandum of

family settlement. Thus understood, the plaintiff was accepted

and acknowledged to be the owner of the suit property by all the

family members who were also party to the memorandum of

family settlement (Exhibit P6).

The appellants have placed

reliance on the decision of this Court in Kale & Ors. vs. Deputy

Director of Consolidation & Ors.3 They pray for restoration of

the decree passed by the first appellate Court and setting aside

the impugned judgment.

8. On the other hand, the respondent Nos. 1 to 3 would

contend that the High Court has rightly considered the document

3 (1976) 3 SCC 119

Exhibit P6

as containing terms and recitals of family settlement

and for which reason it was essential to get the same registered.

It is urged that there was no preexisting

title in favour of the

plaintiff in respect of the suit property, as the same was

purchased in the name of concerned defendant by way of a

registered sale deed. The parties were not in possession of Joint

Hindu Family property as such and therefore, the question of

partition of that property does not arise. The plea that there was

no Joint Hindu Family property was taken by the plaintiff in the

replication filed before the trial Court. This plea was taken in the

context of the assertion made by the defendants in the written

statement that the suit property was jointly owned by Mohan

Singh (original defendant No. 1) and Sohan Singh (original

defendant No. 2). The contesting respondents have reiterated the

stand that there was no family settlement in 1970, as stated by

the plaintiff and that the signature of the defendant No. 2

appearing in document Exhibit P6

is forged and fabricated.

Further, the High Court has justly nonsuited

the plaintiff and

preferred to restore the partial decree passed by the trial Court

on the conclusion that the document Exhibit P6

is inadmissible

in evidence, as it has not been registered despite the transfer of

title in immovable property worth more than Rs.100/.

In other

words, the High Court answered the substantial question of law

against the plaintiff and as a result of which it rightly allowed the

second appeal filed by the defendants (respondent Nos. 1 to 3).

The view so taken by the High Court is unexceptionable.

9. We have heard Mr. Manoj Swarup, learned senior counsel

for the appellants and Mr. Parveen Kumar Aggarwal, learned

counsel for the respondents.

10. The core issue involved in this appeal is: whether the

document Exhibit P6

was required to be registered as interest in

immovable property worth more than Rs.100/was

transferred in

favour of the plaintiff?

11. It is not in dispute that the parties are closely related.

Mohan Singh (original defendant No. 1) and Sohan Singh

(original defendant No. 2) were real brothers of Harbans Singh

(original plaintiff). Original defendant No. 4 – Harjinder Kaur is

the wife of Sohan Singh (original defendant No. 2). The father of

the plaintiff and defendant Nos. 1 and 2 died during minority of

defendant Nos. 1 and 2. The defendants had proved the copy of

sale deed dated 16.4.1970 (Exhibit DW3/

A), whereby Mohan

Singh (original defendant No. 1) and Sohan Singh (original

defendant No. 2) purchased land admeasuring 5 kanals 19

marlas comprised in khasra No. 935/1. Harbans Singh (plaintiff)

had appeared on behalf of the purchaser at the time of execution

of the sale deed. Jamabandi for the year 19841985

of the

property in dispute (Exhibit D1)

reveals that khasra No.

935/1/1/1 (519)

shows the name of Mohan Singh (original

defendant No. 1) and Sohan Singh (original defendant No. 2) as

owners, whereas the name of Harbans Singh (plaintiff) is shown

against khasra No. 935/1/1/2 (518)

as owner. Mohan Singh

(original defendant No. 1) had stated that the land standing in

the name of Harbans Singh (original plaintiff) was purchased by

him from the funds of joint family, but that fact has not been

proved or established by the contesting defendants. In that

sense, it may appear from the revenue record that the concerned

parties were owners in respect of separate properties and not as

joint owners. The fact remains that Harbans Singh (original

plaintiff), Mohan Singh (original defendant No. 1) and Sohan

Singh (original defendant No. 2) are closely related being real

brothers. Further, although the ownership of the suit property

recorded in Jamabandi is of concerned defendant, Harbans Singh

(plaintiff) had constructed 16 shops, samadhi of his wife –

Gurcharan Kaur and a boundary wall on the property and was in

possession thereof. Pertinently, the trial Court had opined in

paragraph 24 of its judgment that all the three brothers –

Harbans Singh (plaintiff), Mohan Singh (original defendant No. 1)

and Sohan Singh (original defendant No. 2), as noted in Exhibit

P6,

owned various properties, on which possession of Harbans

Singh (plaintiff) being the eldest brother is admitted. However, it

was a permissive possession. The first appellate Court has also

opined in paragraph 16 of the judgment that Harbans Singh

(plaintiff) came in possession of the suit property with the

consent of the defendants. Notably, this finding of fact has not

been disturbed by the High Court. That apart, it is established

from the record that plot at Prem Basti belonged to Harbans

Singh (plaintiff), which was given to Sohan Singh (original

defendant No. 2) after taking possession thereof from Mohan

Singh (original defendant No. 1). Further, plot purchased by

Harbans Singh (plaintiff) in the name of his son was given to

Mohan Singh (original defendant No. 1) and his wife. It has been

admitted by DW1

that later on the said plot was sold to one

Surjit Kaur. These facts clearly establish that there was not only

univocal family arrangement between the parties, but it was even

acted upon by them without any exception. This factual position

has not been doubted by the High Court.

12. As a matter of fact, the High Court has not bothered to even

advert to this aspect, whilst analysing the correctness of the

finding of fact recorded by the first appellate Court, which was

the final factfinding

Court. From the impugned judgment, it is

noticed that after giving the basic facts, the High Court first

extracted the relevant portion from the trial Court’s judgment

(paragraphs 1721

thereof) and thereafter adverted to the finding

and conclusion recorded by the trial Court on other issues. The

High Court then went on to extract paragraph 16 of the judgment

of the first appellate Court in its entirety, running into about 8

pages and then formulated the substantial question of law. For

answering the said substantial question of law, the High Court

first adverted to the decision of this Court in Bhoop Singh vs.

Ram Singh Major & Ors.4 and reproduced paragraphs 12, 13,

16 and 18 thereof. After that, the relevant portion of the decision

of the same High Court in the case of Hans Raj & Ors. vs.

4 (1995) 5 SCC 709

Mukhtiar Singh5 has been extracted. After doing so, the High

Court then referred to the contention of the appellants herein and

extracted paragraphs 44 and 54 of the judgment in Hari

Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.6

The High Court then adverted to a decision of the same High

Court in Jagdish & Ors. vs. Ram Karan & Ors.7 and

reproduced paragraph 14 thereof. Only after reproducing the

aforesaid extracts in extenso, learned single Judge of the High

Court adverted to the factual aspects of the present case in the

following words, to allow the appeal: “

On a consideration of the matter, I find that a document

which, for the first time, creates a right in favour of

plaintiff in an immovable property in which he has no

preexisting

right, then registration is required. The

presumption of preexisting

right can only be inferred if a

consent decree is passed where such claim is admitted by

the other party, but a document which is not disputed by

the party and there is no admission regarding the

acceptance of a right and suit is based on such a

document under which the right is transferred to the

plaintiff in a property in which he has no preexisting

right, then it would not require registration as is the ratio

of the judgment of the Hon’ble Supreme Court in the case

of Som Dev and others (supra). In view of this proposition

of law if the matter is considered, the question of law, as

framed, has to be answered in favour of the appellants.

In the present case, it may be noticed that the

property in dispute was purchased by way of two sale

deeds and the ownership of the parties was duly reflected

in the revenue record. The plaintiff claimed right to the

5 (1996) 3 RCR (Civil) 740 (paragraphs 7 to 9)

6 (2006) 4 SCC 658

7 PLR (2003) 133 P&H 182

property under the deed of family settlement Exhibit P6.

Thus he claimed that the defendants had relinquished

their right in the immovable property in his favour under

the memorandum of family settlement which was alleged

to have been executed much earlier. In any case, it has

to be held that the document transferring title in an

immovable property worth more than Rs.100/rupees,

even if it was by way of relinquishment, the same

required registration. Thus, the learned trial Court was

right in holding that no title passed on to the plaintiff

under Exhibit P6

i.e. family settlement entered into

between the parties. This view of mine finds support from

the judgment of the Hon’ble Supreme Court in the case of

Hari Chand (dead) through LRs vs. Dharampal Singh

Baba, 2007 (4) Herald (SC) 3028, wherein the Hon’ble

Supreme Court has been pleased to lay down that the

family settlement could only be if one has lawful right

over the property and then alone family settlement could

be executed. When there is no lawful rights of the parties

over the property, there was no occasion to file the suit on

the basis of family settlement.

In view of what has been stated and discussed above,

this appeal is allowed and the judgment and decree

passed by the learned lower Appellate Court is set aside

and that of the learned trial Court is restored, but with no

order as to costs.”

13. As against this, the first appellate Court thoroughly

examined the pleadings and the evidence, oral as well as

documentary, placed on record by the concerned parties. In the

first place, it examined the question whether the document

Exhibit P6

was executed by the parties or not. After adverting to

the relevant evidence, the first appellate Court opined that the

trial Court was right in concluding that Exhibit P6

was executed

by the parties referred to therein. That being concurrent finding

of fact, needs no further scrutiny. The High Court has not

reversed this finding of fact, as is noticed from the extracts of its

judgment reproduced above. The first appellate Court then went

on to examine whether the document required registration. The

High Court has reproduced paragraph 16 of the judgment of the

first appellate Court in its entirety. What is relevant to notice is

that the first appellate Court adverted to the pleadings and oral

and documentary evidence produced by the respective parties

and found that the plaintiff had proved the compromise (Exhibit

CX) dated 15.5.1992 between the plaintiff and defendant Nos. 2

and 3, namely, Sohan Singh and Harjinder Kaur. Harjinder Kaur

had stepped into witness box and admitted the said fact. She

also admitted the fact of execution of a family settlement. Thus,

the dispute was between the successors of Harbans Singh

(plaintiff) and successors of Mohan Singh (original defendant No.

1). The first appellate Court thus accepted the stand of the

plaintiff that in the year 1970, after purchase of land, dispute

arose between the parties regarding the suit land and in that

family settlement, plaintiff was held to be owner of the suit

property including its constructions. The first appellate Court in

that context observed thus:

“16. … The specific case of the plaintiff that he

constructed with his personal money 16 shops on the suit

land, one service station with boundary wall and also

samadh of Smt. Gurcharan Kaur. It is admitted that

samadh of Gurcharan Kaur is in the suit property. If the

plaintiff was not acknowledged the owner of the suit

property then there was no question of construction of

samadh of Gurcharan Kaur his wife by the plaintiff on the

suit property. So the version of the defendant that no

dispute arose in the year 1970 and no family settlement

took place can not be accepted…”

The first appellate Court then analysed the evidence of defendant

witnesses and held that the same were not reliable or trustworthy

as they did not know any fact regarding the suit property. The

first appellate Court then adverted to another crucial fact and

noted that Mohan Singh (original defendant No. 1) and Sohan

Singh (original defendant No. 2) were residing in house situated

at Prem Basti prior to 1988, which belonged to Harbans Singh

(plaintiff). As noted earlier, this property as per the family

arrangement was given to Sohan Singh and has been so recorded

in the memorandum of family settlement (Exhibit P6).

The first

appellate Court found that the defendants had failed to prove

that they were in possession of the suit property or remained in

possession thereof. On the other hand, the evidence on record

clearly established that the plaintiff was in possession of the suit

property. The first appellate Court then interpreted document

Exhibit P6

and found that it was not with regard to khasra No.

935 (1117),

but it referred to other properties. After analysing

the relevant evidence, the first appellate Court held that Exhibit

cannot be construed as a document containing terms and

recitals of a family arrangement, but only a memorandum of

family arrangement. It went on to observe as follows: 16.

… Document Ex.P6

is not with regard to

khasra no. 395 (1117)

but other property is also

included in the said document. A plot situated in Prem

Basti which was in the name of Harbans Singh and

Gurcharan Kaur was already got vacated from Mohan

Singh and was given to Sohan Singh and Harjinder

Singh. A plot measuring 17 marlas which was purchased

by Vikaramjit Singh was given to Manjit Kaur and Mohan

Singh and Manjit Kaur DW1

has admitted that she had

already sold that plot to Surjit Kaur. So it can be

concluded that said document was acted upon. Although

few sentences of the said documents are in the present

tense but the court is to see from the material on record

whether the said document created right in the

immovable property or rights were already created but the

document was written by way of memorandum. The said

document does not pertain to khasra no. 935/1/1/1 (519)

but entire khasra no. 935/1 (1117).

Had the said

document created right in khasra no. 935/1/1/1 (519)

then there was no question of throwing khasra no.

935/1/1/2 in common pool and other property of the

parties. There is specific recital that on the basis of sale

deeds Harbans Singh was owner in possession of the suit

property and was coming in possession of the same.

Harbans Singh has constructed 16 shops and service

station there. In other words, it proves that Harbans

Singh was being considered as owner in possession of

the suit property. Prior to execution of the said

document on that day they compromised not to raise

any dispute regarding his ownership. So this

document was a writing with regard to fact which was

already being considered and admitted by the parties.

So it cannot be said that this document, copy of

which is Ex.P6

created right for the first time in the

immovable property. …..”

(emphasis supplied)

And again, as follows: “

16. ….. Since the parties were closely related to

each other and document was executed with regard to

the factwhich

they were already admitting so I am of

the view that document dated 10.3.1988 copy of

which is Ex.P6

did not require registration. In case

Hans Raj cited supra the matter was got compromised

and document itself created right in the property. In case

Hari Singh vs. Shish Ram & others cited supra it was

held that document between the parties was partitioned

and consideration was passed from one party to other. In

Shishpal vs. Vikram cited supra it was held that during

life time of Gyani Ram the plaintiff filed suit so there

could not be any family settlement. In case Smt.

Karamjit Kaur and another versus Smt. Sukhjinder Kaur

and others cited supra vide compromise the plaintiff and

defendant no. 1 to 4 had agreed to take 30 bighas of land

out of 90 bighas left by Mohinder Singh so it was held

that said compromise has created right in favour of

defendants no. 5 and 6 to the property of more than

Rs.100/So

require registration. All the above said

authorities cited by counsel for defendants are

distinguishable on facts and ratio of said authorities

cannot be applied to the facts of the present case. Since

plaintiff is proved to be in existence in possession of the

suit property. So construction of shops land service

station on the said property was done by the plaintiff

himself and not from funds of joint family. This fact is

further corroborated by writing dated 10.3.1988 copy of

which is Ex. P6.

Since said document did not require

registration so plaintiff is proved to be owner of the suit

property. The defendants estopped from denying the

execution of the family settlement. Defendants have

failed to prove that Harbans Singh, Mohan Singh and

Sohan Singh constituted Joint Hindu Family Property

and construction of the suit property was raised from the

Joint Hindu Family Funds. Thus, finding recorded by the

learned Trial Court on issues No. 3, 5 and 7 are set aside

and it is held that the plaintiff constructed shops and

service station and boundary wall on the suit property

with his own funds. The defendant has failed to prove

that property in dispute was purchased by the income of

the Joint Hindu coparcenary property and Sohan Singh,

Mohan Singh and Harbans Singh constituted Joint

family. So these issues are decided in favour of the

plaintiff. Parties executed document Ex.P6

dated

10.3.1988 by way of memorandum of family

settlement and it did not require registration. The

defendants are estopped from denying the execution

of the said document and plaintiff is proved to be

owner in possession of the suit land. Issues No. 1 and

2 and 7 are also decided in favour of the plaintiff. Since

the plaintiff came in possession of the suit property with

the consent of the defendants and his possession never

become adverse to the interest of the defendants so

finding of the learned trial Court on issue no. 4 is

affirmed.”

(emphasis supplied)

14. As noticed from the extracted portion of the judgment of the

High Court in paragraph 12 above, it is amply clear that the High

Court has not dealt with the factual aspects adverted to by the

first appellate Court to conclude that the document Exhibit P6

was only a memorandum of family settlement and not a

document containing the terms and recitals of a family

settlement. Being the former, no registration was necessary. For

which reason, relief claimed by the plaintiff founded on the family

settlement between the real brothers arrived at in 1970, acted

upon without any exception and documented on 10.3.1988,

ought to follow.

15. The first appellate Court has also justly opined that the

parties had acted upon the stated family settlement and if we

may say so, to the prejudice of the other party. In that, the

property in the name of plaintiff at Prem Basti was given to

Sohan Singh (original defendant No. 2), which was otherwise in

possession of Mohan Singh (original defendant No. 1). Further,

the plot purchased by the plaintiff in the name of his son was

given to Mohan Singh (original defendant No. 1) and his wife, but

that plot was admittedly sold by them to one Surjit Kaur. Being

a case of a family settlement between the real brothers and

having been acted upon by them, it was not open to resile from

the same. They were estopped from contending to the contrary.

This crucial aspect has been glossed over by the High Court and

if we may say so, the second appeal has been disposed of in a

most casual manner. Inasmuch as, the impugned judgment of

the High Court merely contains extraction of the judgment of the

trial Court and first appellate Court and of the relied upon

judgments (precedents). The only consideration is found in two

concluding paragraphs, which are extracted above (paragraph

12). Even on liberal reading of the same, it is not possible to

conclude that the High Court in exercise of its appellate

jurisdiction (second appeal) had undertaken proper analysis and

scrutiny of the judgment of the first appellate Court in right

perspective, much less keeping in mind the limited scope of

jurisdiction to entertain second appeal under Section 100 of the

Code of Civil Procedure, 1908. The impugned judgment is

bordering on a casual approach by the High Court in overturning

the wellconsidered

decision of the first appellate Court.

Although the impugned judgment runs into 36 pages, the

manner in which it proceeds leaves us to observe that it is

cryptic. We say no more. On this count alone, impugned

judgment does not stand the test of judicial scrutiny.

16. Be that as it may, the High Court has clearly misapplied the

dictum in the relied upon decisions. The settled legal position is

that when by virtue of a family settlement or arrangement,

members of a family descending from a common ancestor or a

near relation seek to sink their differences and disputes, settle

and resolve their conflicting claims or disputed titles once and for

all in order to buy peace of mind and bring about complete

harmony and goodwill in the family, such arrangement ought to

be governed by a special equity peculiar to them and would be

enforced if honestly made. The object of such arrangement is to

protect the family from long drawn litigation or perpetual strives

which mar the unity and solidarity of the family and create

hatred and bad blood between the various members of the family,

as observed in Kale (supra). In the said reported decision, a

threeJudge

Bench of this Court had observed thus: “

9.….. A family arrangement by which the property is

equitably divided between the various contenders so as to

achieve an equal distribution of wealth instead of

concentrating the same in the hands of a few is

undoubtedly a milestone in the administration of social

justice. That is why the term “family” has to be

understood in a wider sense so as to include within its

fold not only close relations or legal heirs but even those

persons who may have some sort of antecedent title, a

semblance of a claim or even if they have a spes

successionis so that future disputes are sealed for ever

and the family instead of fighting claims inter se and

wasting time, money and energy on such fruitless or futile

litigation is able to devote its attention to more

constructive work in the larger interest of the country.

The courts have, therefore, leaned in favour of

upholding a family arrangement instead of disturbing

the same on technical or trivial grounds. Where the

courts find that the family arrangement suffers from a

legal lacuna or a formal defect the rule of estoppel is

pressed into service and is applied to shut out plea of

the person who being a party to family arrangement

seeks to unsettle a settled dispute and claims to

revoke the family arrangement under which he has

himself enjoyed some material benefits. …..”

(emphasis supplied)

In paragraph 10 of the said decision, the Court has delineated

the contours of essentials of a family settlement as follows: “

10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form,

the matter may be reduced into the form of the following

propositions:

“(1) The family settlement must be a bona fide one

so as to resolve family disputes and rival claims by a

fair and equitable division or allotment of properties

between the various members of the family;

(2) The said settlement must be voluntary and

should not be induced by fraud, coercion or undue

influence;

(3) The family arrangement may be even oral in

which case no registration is necessary;

(4) It is well settled

that registration would be

necessary only if the terms of the family arrangement

are reduced into writing. Here also, a distinction

should be made between a document containing

the terms and recitals of a family arrangement

made under the document and a mere

memorandum prepared after the family

arrangement had already been made either for the

purpose of the record or for information of the

court for making necessary mutation. In such a

case the memorandum itself does not create or

extinguish any rights in immovable properties and

therefore does not fall within the mischief of Section

17(2) of the Registration Act and is, therefore, not

compulsorily registrable;

(5) The members who may be parties to the family

arrangement must have some antecedent title, claim

or interest even a possible claim in the property which

is acknowledged by the parties to the settlement. Even

if one of the parties to the settlement has no title

but under the arrangement the other party

relinquishes all its claims or titles in favour of such

a person and acknowledges him to be the sole

owner, then the antecedent title must be assumed

and the family arrangement will be upheld and the

courts will find no difficulty in giving assent to the

same;

(6) Even if bona fide disputes, present or possible,

which may not involve legal claims are settled by a

bona fide family arrangement which is fair and

equitable the family arrangement is final and binding

on the parties to the settlement.”

(emphasis supplied)

Again, in paragraph 24, this Court restated that a family

arrangement being binding on the parties, clearly operates as an

estoppel, so as to preclude any of the parties who have taken

advantage under the agreement from revoking or challenging the

same. In paragraph 35, the Court noted as follows: “

35. … We have already pointed out that this Court

has widened the concept of an antecedent title by holding

that an antecedent title would be assumed in a person

who may not have any title but who has been allotted a

particular property by other party to the family

arrangement by relinquishing his claim in favour of such

a donee. In such a case the party in whose favour the

relinquishment is made would be assumed to have an

antecedent title. …..”

And again, in paragraph 36, the Court noted as follows: “

36. … Yet having regard to the near relationship

which the brother and the soninlaw

bore to the widow

the Privy Council held that the family settlement by which

the properties were divided between these three parties

was a valid one. In the instant case also putting the case

of Respondents Nos. 4 and 5 at the highest, the position

is that Lachman died leaving a grandson and two

daughters. Assuming that the grandson had no legal title,

so long as the daughters were there, still as the

settlement was made to end the disputes and to benefit

all the near relations of the family, it would be sustained

as a valid and binding family settlement. …”

While rejecting the argument regarding inapplicability of principle

of estoppel, the Court observed as follows: “

38. … Assuming, however, that the said

document was compulsorily registrable the courts

have generally held that a family arrangement being

binding on the parties to it would operate as an

estoppel by preventing the parties after having taken

advantage under the arrangement to resile from the

same or try to revoke it. …..”

(emphasis supplied)

And in paragraph 42, the Court observed as follows: 42.

..… 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 Nos. 4 and 5. Respondent No. 1 as also the

High Court, therefore, committed substantial error of law

in not giving effect to the doctrine of estoppel as spelt out

by this Court in so many cases. …”

(emphasis supplied)

The view so taken is backed by the consistent exposition in

previous decisions8 referred to and duly analysed in the reported

judgment. The question formulated by the High Court, in our

opinion, stands answered in favour of the appellants (plaintiff), in

8 Lala Khunni Lal vs. Kunwar Gobind Krishna Narain, ILR 33 All 356

Mt. Hiran Bibi vs. Mst. Sohan Bibi, AIR 1914 PC 44

Sahu Madho Das vs. Pandit Mukand Ram, AIR 1955 SC 481

Ram Charan Das vs. Girjanandini Devi, AIR 1966 SC 323

Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292

Maturi Pullaiah vs. Maturi Narasimham, AIR 1966 SC 1836

Krishna Biharilal vs. Gulabchand, (1971) 1 SCC 837

S. Shanmugam Pillai vs. K. Shanmugam Pillai, (1973) 2 SCC 312

Ramgopal vs. Tulshi Ram, AIR 1928 All 641

Sitala Baksh Singh vs. Jang Bahadur Singh, AIR 1933 Oudh 347

Mst. Kalawati vs. Sri Krishna Prasad, AIR 1944 Oudh 49

Bakhtawar vs. Sunder Lal, AIR 1926 All 173

Awadh Narain Singh vs. Narain Mishra, AIR 1962 Pat 400

Ramgouda Annagouda vs. Bhausaheb, AIR 1927 PC 227

Brahmanath Singh vs. Chandrakali Kuer, AIR 1961 Pat 79

Mst. Bibi Aziman vs. Mst. Saleha, AIR 1963 Pat 62

Kanhai Lal vs. Brij Lal, AIR 1918 PC 70

Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145

T.V.R. Subbu Chetty’s Family Charities vs. M. Gaghava Mudaliar, AIR 1961 SC

797

Rachbha vs. Mt. Mendha, AIR 1947 All 177

Chief Controlling Revenue Authority vs. Smt. Satyawati Sood, AIR 1972 Delhi

171 (FB)

Shyam Sunder vs. Siya Ram, AIR 1973 All 382

light of exposition of this Court in Kale (supra). A priori, we have