Chanan Singh and Others vs Surjit Singh and Others

Rajive Bhalla, J.—This order shall dispose of RSA Nos. 789 of 1981 and 2483 of 2002, as they relate to the same property and as adjudication of RSA No. 789 of 1981 would determine the outcome of RSA No. 2483 of 2002.

The plaintiff-appellants, in RSA No. 789 of 1981 challenge the judgment and decree dated 28.2.1981, passed by the District and Sessions Judge, Sangrur accepting the appeal filed by the respondents, reversing the judgment and decree, passed by the trial Court and as a result dismissing their suit. Respondent No. 4 Surjan Singh has filed RSA No. 2483 of 2002, challenging the judgment and decree dated 2.3.2002 passed by the Additional District Judge, Sangrur accepting the appeal, setting aside the judgment and decree passed by the Civil judge, (Junior Division) Malerkotla, dated 28.7.2001, and as a result dismissing his suit.

The appellants filed a suit for ejectment by alleging that they are owners of the suit land as they have a preferential right to succeed to the estate of Jiwa Singh-deceased, as reflected in Mutation No. 256, dated 29.2.1964. The respondents filed a written statement claiming that after the demise of Jiwa Singh, parties to the suit effected a family partition dated 12.7.1957. As a result of this settlement, they have become owners in possession of the suit land. In the alternative, they pleaded that they have become owners by adverse possession as they are in possession since 1957. On the basis of these pleadings, the learned trial Court framed the following issues:

Whether there has been family partition where under the land measuring 9 bighas 7 biswas bearing khasra Nos. 412/1-10, 444min/2-1, 443/3-11, 442/2-5, fell to the share of defendant No. l as alleged in the written statement? If so its effect? OPD

Whether defendants have become owners of land measuring 18 bighas 14 biswas bearing Khasra Nos. 412 min/1-10, 444min/2-0, 443min/3-11, 442min/2-5, 412miri/1-10,444/2-1,443min/3-11, 442min/2-5 by way of adverse possession? OPD

Whether the plaintiffs are estopped from instituting the suit by their act and conduct? OPD

Relief.

After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court decreed the suit. The trial Court affirmed the execution of the family partition but held that as concededly the appellants are preferential heirs, the family settlement executed in ignorance of the law, would not bind their rights. The trial Court also held that the respondents have failed to prove that they have become owners by adverse possession.

Aggrieved by the aforementioned judgment and decree, the respondents filed an appeal. The first appellate Court, accepted the appeal, reversed the judgment and decree passed by the trial Court and dismissed the suit by holding that the appellant are estopped from challenging the admitted family settlement. The first appellate Court also upheld the respondents claims that they had become owners by adverse possession.

Surjan Singh, respondent No. 4 filed a suit for a permanent injunction to restrain the appellants herein, from alienating land measuring 9 bighas 7 biswas. The trial Court decreed the suit but the Additional District Judge, Sangrur accepted the appeal, reversed the judgment and decree passed by the trial Court and dismissed the suit by holding that as the dispute with respect to title is pending adjudication before the High Court, the appellants could not be restrained from alienating the suit land by grant of an injunction.

Counsel for the parties are ad idem that if RSA No. 789 of 1981 is dismissed and it is held that parties are bound by the family settlement, RSA No. 2483 of 2002 would have to be allowed.

Counsel for the appellants submits that the document Ex.D-2, dated 12.7.1957 reflects a partition and not a family settlement. The tenor of the document clearly suggests that parties thereto effected a partition, thereby vesting and divesting proprietary interest in immovable property exceeding Rs. 100/-. The document Ex.D-2, is compulsorily reg-istrable and could not have been led into evidence without registration.

Another argument pressed into service by counsel for the appellants is that as Jiwa Singh passed away on 8.6.19S7, after coming into force of the Hindu Succession Act, 1956, the appellants, who are his legal heirs under the aforementioned enactment executed Ex.D-2 in ignorance of their statutory rights. The respondents admit that the appellants are preferential heirs to the estate of Jiwa Singh. As statutory rights cannot be disavowed the first appellate Court committed an error in upholding the settlement Ex.D-2. The trial Court, therefore, rightly held that as there can be no estoppel against statute, the partition/settlement Ex.D-2 would not estop the appellants from filing the suit. It is further admitted that as Ex.D-2 was executed in ignorance of law, it does not bind the appellants.

The final argument advanced by counsel for the appellants is that the first appellate Court has erred while accepting the respondents assertion that they have become owners by adverse possession. The respondents, admittedly, came into possession as owners pursuant to Ex.D-2. Whatever be the circumstances thereafter they can not assert or allege ownership by way of adverse possession. Even if it is accepted that the appellants made an attempt to dispossess the respondent in 1964, their adverse possession commenced, at best, from 1964 and, therefore, the period of 12 years had not expired before the suit was filed in 1972. The first appellate Court, therefore, could not have held that the respondents had perfected their ownership by adverse possession.

Counsel for the respondents, on the other hand, submits that the appellant admit the execution of the settlement Ex.D-2. Their plea that they executed Ex.D-2 in ignorance of their rights under the Hindu Succession Act, was rightly negatived by the first appellate Court. It is submitted that as Ex.D-2 was executed voluntarily, without any fraud, coercion or misrepresentation, the appellants cannot be allowed to plead ignorance of their rights, as such a defence is impermissible in law. Parties are close relatives who sat across the table to resolve their difference and decided to apportion Jiwa Singh''s estate. The settlement was subsequently reduced into writing reflected by Ex.D-2. The appellants therefore, cannot disavow the family settlement. As regards the plea that Ex.D-2 is compulsorily registrable, as it reflects a partition and not a family settlement, it is submitted that a partition can only take place between co-sharers. Admittedly, the respondents are not co-sharers and therefore, whatever the tenor of the document or the words used therein, Ex.D-2 is a family settlement and, therefore, not compulsorily registrable. It is further argued that this argument was not raised, whether before the trial Court or the first appellate Court and even the grounds accompanying the memo of appeal are silent as to any such argument. It is further submitted that registration of a document is a mixed question of law and fact, with facts preceding law and, therefore, cannot be urged for the first time during arguments. As the impugned judgment and decree does not suffer from any error or infraction of law as would raise a substantial question of law, the appeal be dismissed.

I have heard learned Counsel for the parties and perused the impugned judgments and decrees.

Counsel for the appellants framed substantial questions of law, but during arguments, the following questions of law have arisen for adjudication:

Whether a point that has not been pleaded or raised before the courts below and does not find mention in the grounds of appeal can be urged for the first time during argument in second appeal?"

Whether an admission made by a party in ignorance of rights conferred by law binds the person who has made the admission?"

Whether a person, who enters possession under colour of title can claim ownership by adverse possession?

Counsel for the appellants, as noticed in his submissions, asserts that as the document Ex.D-2, vests in parties or divests them of proprietary rights, in immovable property exceeding Rs. 100/- it cold not be read into evidence, without registration. Counsel for the appellants fairly concedes that such a submission was neither pleaded nor urged before the Courts below and that such an objection has not been raised, in the grounds of appeal filed before this Court. Furthermore, it is not denied that Ex.D-2, was led into evidence, without objection as to admissibility, relevance or mode of proof and both parties admit that Ex.D-2 was executed by them. As a general rule of legal prudence, facts not pleaded can not be raised during arguments. Courts have on occasion, relaxed this strict rule, in appropriate cases, where the arguments is either discernible from the pleadings or raises a pure questions of law that does not require pleadings, evidence or findings on facts. The appellant seeks to urge that Ex.D-2 should be ruled out of consideration for want of registration. The argument, though attractive must fail. Both parties admit to the voluntary execution of Ex.D-2. The only plea raised against Ex.D-2, before the trial Court, the first appellate Court and before this Court, in the grounds of appeal, is that the document does not bind the appellants as it was executed in ignorance of rights under the Hindu Succession Act. Ex.D-2 was led into evidence without objection. No objection was raised at any stage of the proceedings that this document could not be lead or read into evidence for want of registration. The grounds of appeal accompanying the memorandum are silent as to any such assertion. Failure to register a document and its consequences are mixed questions of fact and law: facts being the nature of the document, the inter se status of the parties, their antecedent rights, their intention, whether the document records a prior oral family settlement or the document confers and divests proprietary rights in immovable property exceeding Rs. 100/-. A plea based upon non-registration of a document is, therefore, a mixed question of fact and law, that must be pleaded and based upon specific and material evidence. In the absence of any pleadings much less specific, and any evidence. In the absence of any pleadings much less specific, and any evidence much less material evidence, the question of non-registration of the settlement Ex.D-2 cannot be urged for the first time during arguments in second appeal. As a result, the first question of law is answered by holding that an argument that raises mixed questions of fact and law cannot be raised for the first time while addressing arguments, in second appeal. The document Ex.D-2, therefore, cannot be ruled out of consideration.

The next question that merits adjudication is whether the first appellate Court was right in holding that the respondents have become owners by adverse possession. Admittedly, the respondents came into possession of the suit property pursuant to the settlement Ex.D-2. The settlement Ex.D-2 records the conferment of proprietary rights upon the respondents. The respondents therefore, came into possession of the suit property, under colour of title. A person who enters possession under colour of title possessory or proprietary, whether perceived or assumed shall not thereafter be heard or urge that his possession is adverse to the possessory and proprietary rights of the true owner. Possession under colour of title, inheres in the trespasser, a belief that his possession is legal and valid. As assertion of adverse possessory title would, therefore, be a contradiction in terms. The first appellate Court did not consider this principle and also disregarded the fact that the respondents came into possession in the year 1957 under colour of title, drawn from the document Ex.D-2. Their possession from 1957-64 was at best permissive. It was only after an attempt was made to dispossess them in 1964 could they assert that their possession had become open, hostile and in opposition to the possessory and proprietary rights of the appellants. The suit was filed in 1972 before their alleged hostile possession had ripened into ownership. The first appellate Court disregarded this principle and these facts, while holding that the respondents had become owners by adverse possession. The finding that the respondents have become owners by adverse possession suffers from a misreading of material evidence and an error of law that renders it illegal and, therefore, to be reversed.

The question that survives adjudication and would necessarily determine the outcome of this appeal is, whether an admission made in ignorance of legal rights binds the party making such an admission. Before proceeding to answer this question, it would be appropriate to examine the nature of the document Bx.D-2. The first appellate Court has held that Ex.D-2 is a family settlement that binds parties, whereas the trial Court held that, though a family settlement it does not bind the parties. Both the appellants and the respondents admit that Ex.D-2 was executed voluntarily. The respondents admit that but for the family settlement, the appellants would succeed to the estate of Jiwa Singh, deceased to their exclusion.

A family settlement is a voluntary, arrangement that sets at cost proprietary disputes. During a family settlement, members of the family assemble and after resolving their differences decide to apportion property amongst its members, irrespective of rights or shares actual or perceived flowing from the Hindu Succession Act. A settlement may confer rights upon members of the family, who have a possible or perceived claim to property, which would then be deemed to have been acknowledged by parties to the settlement. The Hindu Succession Act does not place an embargo on parties disavowing rights flowing therefrom and parties are, therefore, free to settle their property disputes by diminishing or enhancing their shares. If adherence to rights, as set out under the Hindu Succession Act, were to be held to be inviolable or sufficient to disavow a family settlement, it would negate the very concept of a family settlement. A reference in this regard would necessarily have to be made to a judgment of the Hon''ble Supreme Court reported as Kale and Others Vs. Deputy Director of Consolidation and Others, . A relevant extract of this judgment reads as follows:

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 claim 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.

It cannot be disputed that the defendants and the plaintiffs were members of the family. Under the Hindu Succession Act, the defendants did not have a right of succession but they had entered into possession in the estate of Jiwa Singh alongwith the plaintiffs and their rights of succession had been admitted by the plaintiffs and all the rights by the other co-sharers had been given up in their favour with respect to l/3rd share and this had been voluntarily entered into by the parties. There is no force in the contention raised by the learned Counsel for the plaintiffs were misguided to accept the claim of the defendants. I thus hold the view that Ex.D-2 was a family settlement and is enforceable as such and all the claims between the parties in respect to the land left by Jiwa Singh had been settled. In Ramji Dass and Ors. v. Dhanti Ram and Ors. (1979)81 P.L.R. 41, their Lordships held that once the close relations had entered into a family arrangement it is not open to either of the parties to back out of it and their Lordships made the following observations:

It is thus apparent that the close relations had entered into a family arrangement and once they had done so it is not open to either of the parties to back out of it. The position of law has been made abundantly clear by a comparatively recent judgment of their Lordships of the Supreme Court in Kale v. Deputy Director of Consolidation, in which it was observed as under:

...The principal that there is no estoppel against the statute does not apply to the present case. 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. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhia Lal v. Brij Lal AIR 1918 P.C. 70, the Privy Council applied the principle of estoppel to the facts of the case and observed as follows.

Applying the principle enunciated in the aforementioned judgment to the facts of the present case, it would have to be held that even if the respondents had no right, title or interest in the property, the appellants effected a settlement thus assuming title in the respondents. Their plea mat they committed an error as they were unaware of the provisions of the Hindu Succession Act cannot, therefore, be accepted. Ignorance of rights flowing from the Hindu Succession Act cannot be a ground to set aside a family settlement and as held in Kale and Ors. (supra), the family settlement would operate as an estoppel preventing parties thereto from disavowing its contents. The findings returned by the first appellate Court affirming the document Ex.D-2 as a family settlement that binds the rights of the parties is, therefore, affirmed and the second question of law is, answered accordingly.

In view of what has been stated herein above, as there is no merit in this appeal, it is dismissed with no order as to costs.

RSA No. 2483 of 2002.

In view of the fact that RSA No. 789 of 1981 has been dismissed, the present appeal would have to be allowed. The judgment and decree passed by the first appellate Court would have to be set aside and that of the trial Court restored as the appellants herein have no right, title or interest in the suit property that has fallen to the share of the respondents. The appeal is allowed, the judgment and decree dated 2.3.2002 passed by the Additional District Judge, Sangrur is set aside and that of Civil Judge (Junior Division) Malerkotla dated 28.7.2001 is restored.

No order as to costs.