Civil Suit No. 64 of 2018 · High Court
Case Details
A.F.R. HIGH COURT OF ORISSA : CUTTACK RSA NO.117 of 2023 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned District Judge, Koraput-Jeypore in RFA No.14 of 2020 in confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Jeyproe in C.S. No.64 of 2018. ……… Jami Vijayalakhmi & Others :::: Appellants -:: VERSUS ::- Jami Ashok :::: Respondent Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellants … Mr.G. Mukherjee, Sr. Advocate For Respondent … Ms.Sagarika Sahoo, Advocate ------ CORAM HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 19.01.2024 :: Date of Judgment: 15.02.2024 --------------------------------------------------------------------------------------- D.Dash,J. The Appellants, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned District Judge, Koraput, Jeypore in R.F.A. No.14 of 2020. {{ 2 }} These Appellants as the Plaintiffs had filed Civil Suit No.64 of 2018 in the Court of the Civil Judge (Sr. Division), Jeypore. The suit is with the prayer declaration that the Family Settlement Deed dated 26.03.2010 is valid and binding on the parties with further prayer that the right, title, interest and possession of the Plaintiffs over ‘B’ schedule property as stated in the plaint falling to the share of the Plaintiff in the said family settlement and for permanent injunction against the Respondent arraigned therein as the Defendant. The suit having been dismissed, these Appellants had carried Appeal under section 96 of the Code which has also been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the Trial Court. 3. Plaintiffs case:-
Facts
The Plaintiff No.1 is the widow of Jami Someswar Rao whereas the Plaintiff Nos.2 and 3 are the sons of said Jami Someswar Rao and the Defendant is the son of Jami Panduranga. All are related to each other. Jami Someswar Rao and Jami Panduranga are two brothers being the sons of Jami Gurumurti. The properties described in schedule ‘A’ of the plaint are the joint family properties. Jami Someswar Rao expired in the year 1989 when the family was maintaining a joint status. After the death of Jami Someswar Rao, the husband of the Plaintiff No.1 and father of the Plaintiff Nos.2 and 3, there arose a dispute in the family Page 2 of 20 {{ 3 }} with regard to the business activities as also their house properties. The house properties and business activities were then separated. However, the landed properties of the family described in schedule ‘A’ were not the subject matter of the said settlement and that continued to remain joint. Subsequently, the landed properties of the family situated in Jeypore town were partitioned in metes and bounds among the parties. Accordingly, they possessed and enjoyed the same. Later on a Deed of Family Settlement was made on 26.03.2010 wherein the properties mentioned in schedule ‘B’ of the plaint was shown in the share of the Plaintiff and properties in schedule ‘C’ was noted to be in the share of the Defendant. The Defendant also signed in the said family settlement and sold a portion of the landed property which had fallen to his share in the partition and noted in the family settlement. Later on the Defendant claimed his share on schedule ‘B’ property which was objected to by the Plaintiffs. So, the Plaintiffs have come up with the suit. 4. The Defendant in his written statement admitted that Jami Gurumati had four sons and after his death, two of his sons, Jami Someswar and Jami Panduranga continued to stay in joint status for some time. It is further stated that they being in joint mess purchased the suit property over which the family members of Jami Someswar and Jami Panduranga had the right, title, interest and possession. After the death of Jami Someswar there was a dispute and the family business and house properties were Page 3 of 20 {{ 4 }} separated whereas the landed properties remained joint. He also admitted that there was family settlement in which the properties were settled and by a document dated 26.03.2010 it was so noted and the Defendant being the power of attorney holder had singed the settlement deed. It is further stated by the Defendant that he has sold some of his landed properties falling to his share to other. His grievance is only on the score that small portion of the landed properties which had fallen to his share is still in possession of the Plaintiff which is described in schedule ‘B’ of the plaint for which he prayed to dismiss the suit. 5. The Trial Court on the above rival pleadings having framed ten issues answered the three issues, i.e., Issue Nos.VI, VII and VIII together as those are interlinked and concern with the validity of the family Settlement Deed dated 26.03.2010 and the right, title and interest of the parties over the property in schedule ‘B’ as also the share of the Defendant. 6. The Trial Court finally came to the conclusion that the Family Settlement Deed is not valid and binding on the parties and the Plaintiffs, therefore, have no right, title, interest and possession over schedule ‘B’ properties. Accordingly, the suit having been dismissed; the unsuccessful Plaintiff having carried the First Appeal, the First Appellate Court has also affirmed those findings of the Trial Court and accordingly confirmed the dismissal of the suit. Page 4 of 20 {{ 5 }} 7. The present Appeal is admitted to answer the following substantial question of law:- “Whether the First Appellate Court is right in saying that the declaration confirming family settlement which has been proved by the Plaintiff and admitted in evidence as Ext.1 is inadmissible for being taken note of for the purpose as it is not a registered one and in that view of the matter whether the First Appellate Court is right in confirming the decision rendered by the Trial Court?”
Legal Reasoning
settlement in the following propositions: “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 Page 8 of 20 {{ 9 }} 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 registerable; (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 Page 9 of 20 {{ 10 }} 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) 14. In case of Subraya M.N. Vrs. Vittala M.N.; (2016) 8 SCC 705, in a dispute with regard to plaint items 1 and 2 properties, a resolution passed by the village Panchayat had been signed by the Panchayatdar, Plaintiffs 3 and 4 and Defendant. It was, inter alia, mentioned there that the Defendant, in whose favour the Plaintiffs 3 and 4 relinquished the rights, had paid Rs.15,000/- each to the said Plaintiffs. Dealing with the impact of Section 17 and 49 of the Registration Act the Court, inter alia, held: “16. Even though recitals in Ext. D-22 are to the effect of relinquishment of right in Items 1 and 2, Ext. D-22 could be taken as family arrangements/ settlements. There is no provision of law requiring family settlements to be reduced to writing and Page 10 of 20 {{ 11 }} registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ext. D-22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in Items 1 and 2.” (Emphasis supplied) 15. The above view has also been followed in Thulasidhara v. Narayanappa (2019) 6 SCC 409. Paragraph-9.5 reads as below: “9.5. As held by this Court in Subraya M.N. [Subraya M.N. v. Vittala M.N., (2016) 8 SCC 705] even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement Page 11 of 20 {{ 12 }} made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23-4-1971 and he also admitted that 3 to 4 panchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of the plaintiff that there was an oral partition on 23-4-1971, the document, Ext. D-4 dated 23-4-1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Ext. D-4 dated 23-4-1971.” 16. In Ram Charan v. Girja Nandini, AIR 1966 SC 292, the Apex Court was dealing with a case of a compromise decree and went on to hold that it was a family arrangement. It went on to hold as follows: .. For as the Privy Council poi`nted out in Mst. Hiran Bibi’s case, AIR 1914 PC 44 in a family settlement each party takes a Page 12 of 20 {{ 13 }} share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden 46 Ind App 72 (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say affection.” (Emphasis supplied) 17. This view has been reiterated in Krishna Beharilal v. Gulabchand: AIR 1971 SC 1041. In Yellapu Uma Maheswari and Another vrs. Buddha Jagadheeswararao and Ors.: (2015) 16 SCC 787, the Court found that the relinquishment of the right was made through the document. Hence, it was found that documents were compulsorily registrable. The Court inter alia held as follows: 15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very Page 13 of 20 {{ 14 }} clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition. (Emphasis supplied) 18. In another case of Ravinder Kaur Grewal & Others Vrs.Manjit Kaur & Others, (2019) 8 SCC 729, the Hon’ble Apex Court having discussed the entire law holding the field has said the followings:- “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 Page 14 of 20 {{ 15 }} but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions 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 persons 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) 19. 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 Page 15 of 20 {{ 16 }} 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 Page 16 of 20 {{ 17 }} 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, the 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 Page 17 of 20 {{ 18 }} 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 son-in-law 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. …..” And in paragraph 42, the Court observed as follows: (emphasis supplied) Page 18 of 20 {{ 19 }} “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) 20. Testing the facts and circumstances of the present case as those emanate from the rival pleadings and evidence let in by the Plaintiffs, remaining uncountered and unopposed; first of all it is seen that the document in question, i.e., Ext.1 has been nomenclatured as “Declaration Confirming Family Settlement”. This, title, itself, denotes that a family settlement had already taken place and the same was then at some later point of time had been reduced into writing for the sake of confirmation and evidence in future. It is nowhere forthcoming that the properties in question were partitioned under this very document-Ext1 and here, in fact, the Defendant is not saying so on oath in appearing in the witness box. Furthermore, when the Plaintiff claims that the Defendant has sold certain properties which had fallen to his share in the said partition, he is not coming forward to deny the same by leading any evidence, either by examining himself or through anyone else. Said fact has remained established, which Page 19 of 20 {{ 20 }} thus shows that the partition has also been acted upon and that too by the Defendant, who has gone steps forward as stated. In that view of the matter, the substantial questions of law are answered in favour of the Plaintiffs which in turn leads this Court to hold that the judgments and decrees passed by both the Courts below are liable to be set aside. 21. The Appeal is thus allowed. The suit filed by the Plaintiffs seeking the reliefs as prayed for is decreed. No order as to cost. Himansu (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 20-Mar-2024 12:33:23 Page 20 of 20
Arguments
8. Heard Mr. G. Mukherjee, learned Senior Counsel for the Appellant and Ms. Sagarika Sahoo, learned counsel for the Respondent at length. 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 10. Indisputedly Jami Someswar, the husband of the Plaintiff No.1 and father of Plaintiff Nos.2 and 3 is the brother of Jami Panduranga, the father of the Defendant and as such they are the members of the joint family. The property in schedule ‘A’ was jointly acquired in the name of the Plaintiff No.1, the parents of Defendant and the husband of the Plaintiff No.1. It is also not in dispute that after death of husband of Plaintiff No.1, an amicable family settlement had taken place between the parents of the Defendant being represented by the Defendant as he is their the Page 5 of 20 {{ 6 }} power of attorney holder and the Plaintiffs on 26.03.2010 and property in schedule ‘B’ of the plaint had fallen to their share. The Defendant have further admitted to have signed on the said deed for and on behalf of all the members who of course has denied the claim of the Plaintiffs to have sold the entire share in schedule ‘A’ which he had got in the family settlement. Both the Courts below have taken a view that the Family Settlement Deed (Ext.1) has no evidentiary value with regard to the partition of the property in schedule ‘A’ by metes and bounds as claimed by the Plaintiff. It has been held that once the family settlement is reduced into writing and it relates to properties worth more than Rs.100/- the same requires registration. Having said so, since Ext.1 is not a registered one, it has been kept beyond the purview of consideration for grant of the reliefs to the Plaintiff as prayed for. It has been stated that since the very document on the basis of which the Plaintiffs claim their title over schedule ‘B’ property is inadmissible, the right, title, interest and possession of the Plaintiff over schedule ‘B’ property cannot be declared. In that view of the matter even though the Defendant has not challenged the evidence of the Plaintiff nor adduced any evidence in support of his plea that he too has some portion to get from schedule ‘B’ property and even when during hearing of the First Appeal from the side of the Defendant consent was given for the Plaintiffs suit to be decreed; the same was ignored. It has been lastly said by the First Appellate Court as follows:- Page 6 of 20 {{ 7 }} “The learned Trial Court is right in holding the Family Settlement Deed dated 26.03.2010 (Ext.1) to be not valid and binding on the Plaintiffs and thus the Plaintiffs have not right, title, interest and possession over schedule ‘B’ property”. 11. It be stated at this stage that the Plaintiff before filing the Second Appeal had filed one Revision Application before the First Appellate Court vide Review Petition, which however has been rejected saying that no error apparent on the face of the record is disclosed in the judgment and the Plaintiff’s review was found to be based on contentions touching the merits of the decision which has rightly or wrongly been taken by the First Appellate Court subject to scrutiny by the superior court. Thereafter, this Second Appeal has been filed and there being delay in challenging the judgment and decree passed by the First Appellate Court, in the First Appeal, the same has been condoned. The law is well settled that the party is not precluded from filing the Appeal after filing or disposal of the Review Application but the time spent after Review cannot be said to be sufficient cause preventing the party from filing the Appeal as it was at this option. Be that as it may, in the present Appeal, that delay being not much has been condoned. 12. The Plaintiffs case in the pleading as well as in the evidence is that although at the initial stage the house properties and Page 7 of 20 {{ 8 }} business were partitioned between the two branches, no partition had been affected in respect of the landed properties which continued to remain joint and subsequently the landed properties of the family were partitioned by metes and bounds amongst the members of the two branches and thereafter the said amicable partition was confirmed through the document dated 26.03.2010 (Ext.1) by all the members of the family and in the partition which later on confirmed in the Family Settlement Deed, the schedule ‘B’ properties had fallen to the share of the Plaintiff. The Defendant has not adduced any evidence to counter the Plaintiffs case. 13. The position of law is well settled as to when a deed nomenclatured as Family Settlement Deed is required to be registered. In case of Korukonda Chalapathi Rao & Others Vrs. Korukonda Annapurna Sampath Kumar; (Manu/SC/0757/2021), the Hon’ble Supreme Court placing reliance upon the ratio in case of Kale v. Dy. Director of Consolidation MANU/SC/0529/1976: AIR 1976 SC 807 has summed up the essentials of the family