Manjit Singh and Another vs Manorath Singh Kohli

Permod Kohli, J.—Having suffered judgments and decrees against them, the defendants have come in appeal before this Court. With the filing of the appeal, an application for leading additional evidence under Order 41 Rule 27 of the CPC has also been filed. Before going to the merits of the appeal, it is deemed appropriate to consider the application for additional evidence. Through the medium of this application, the appellants/applicants want to place on record copy of Sanad Allotment and Jamabandi for the year 1958-59. The documents were in existence in the year 1958-59, but the same have not been produced before the courts below particularly during the trial, even though the suit was instituted in the year 1998. The only averment made in paragraph 2 of the application is that the document was not in the knowledge of the appellants and could not be produced after exercising due diligence. This averment is not supported by any details or materials to show that how the due diligence was exercised.

It is the case of the defendants/appellants in the written statement itself that the property at village Dhulkot was sold by the plaintiff, their father in the year 1967. Even after having made these averments, no attempt was made to summon the revenue record or even to secure the copies of the relevant documents, including Jamabandi for the year 1958-59 and Sanad Allotment and produce the same in the Court by way of evidence. Exercise of due diligence is sine qua non for production of additional evidence under Order 41 Rule 27 of the CPC. There is absolutely no averment regarding the manner of exercise of due diligence. A bare statement that due diligence was exercised is not enough to sustain the plea of additional evidence. There is no merit in this application which is hereby rejected.

Defendants, appellants herein are sons of respondent-Manorath Singh Kohli who filed the suit for mandatory injunction against them seeking a direction to vacate the suit property. It was alleged that the defendants being the sons were living with the plaintiff, their father as licencees and after the retirement of the plaintiff, he has occupied the house and he does not want to allow them to continue in the house. It is also alleged in the plaint that the premises can fetch rent of Rs. 3,000/- for the plaintiff who is retired employee. Plaintiff also pleaded that some blank papers were got signed from him by the defendants so as to grab his property. It was accordingly, stated that the defendants are holding the property against the wishes of the plaintiff and the plaintiff served legal notice upon the defendants asking them to vacate the premises.

The defendants who are two amongst the four sons of the plaintiff, pleaded that the plot under the house was purchased by the plaintiff in the year 1969 after selling the ancestral property in the year 1967 and the house was constructed with the sale proceeds of the ancestral property. They also pleaded that they contributed for the construction and also secured loan from the Bank. The defendants also pleaded that even the loan secured by their father-plaintiff is being re-paid by them and relied upon some of the receipts regarding re-payment of the loan amount. The defendants further pleaded that a family settlement-cum-compromise was arrived at between the parties on 14.4.1997 whereunder the suit property was given to the defendants i.e. half share of the house leaving rest half share for the other two sons of the plaintiff. On the basis of the pleadings of the parties, the trial Court framed following four issues:

Whether the plaintiff is entitled for decree for mandatory injunction seeking direction against the defendant to hand over the vacant possession of the premises in dispute? OPP

Whether the land was sold by plaintiff in village Ugala and which plot was purchased in lieu of that and the land in dispute was purchased out of the sale proceeds of ancestral land? OPD

Whether the present suit is not maintainable?

Relief.

Both the parties led their respective evidence and produced number of documents. The trial Court on consideration of the evidence came to the conclusion that the defendants have failed to produce any evidence to show that the property sold by the plaintiff in the year 1967 was ancestral property and since the property was sold by the plaintiff alone, it is presumed that it was a self-acquired property of the plaintiff. It also returned a finding that the plot under the house was purchased by the defendant in the year 1969 and the registered sale deed is in his own name. He also raised loan of Rs. 1.00 lac. from Bank for purposes of raising construction. Consequently, the trial Court held that the house in question is a self-acquired property of the plaintiff. In regard to the alleged family settlement, though the execution thereof has been established, but the trial Court held that the document itself creates and extinguishes right in the immovable property valuing more than Rs. 100/- it required a compulsorily registerable document. The document is admittedly unregistered and is not admissible in evidence. Resultantly, the suit of the plaintiff was decreed vide judgment and decree dated 15.4.2005 and the defendants were directed to hand over the vacant possession of the premises to the plaintiff. Defendants were also burdened with the mesne profits amounting to Rs. 20,000/-.

Aggrieved of the aforesaid judgment and decree, the defendants preferred appeal before the Additional District Judge, Ambala. The plaintiff-respondent also preferred cross-objections. Both the appeal as also the Cross-objections have been dismissed by the lower appellate Court vide its impugned judgment and decree dated 17.8.2007.

I has been contended on behalf of the appellants that the plaintiff/respondent had (acquired the plot in the year 1969 by selling the ancestral property and thus, the suit property became the ancestral property of the parties. Admittedly, no evidence has been brought on record before the Courts below to show that the property sold in the year 1967 was ancestral property. The plea of additional evidence stands rejected. The findings of the courts below can not be faulted with as there is absolutely no evidence to establish that the property sold in the year 1967 was the ancestral property of the parties. There is another reason to support this view. Had it been ancestral property, then all the co-sharers would have been the vendors of the property which is not the position in the present case. The property was admittedly sold by the plaintiff alone. The sale deed in question has not been assailed in any manner nor the authority and right of the plaintiff to sell the property has been questioned. It is also admitted position on record that the plot under the house in question was purchased by the plaintiff vide sale deed dated 25.9.1969. It has also come on record that the plaintiff secured loan from the Co-operative Society for construction of the house. Plaintiff is pensioner. He has otherwise also funds available with him. He has also produced various receipts to show the return of the loan. It is also not disputed that the defendants also produced some of the receipts regarding the payment of the loan secured by the plaintiff but that not in any manner established that the defendants have acquired any title over the property. They might have contributed to discharge the liability of the father, but that does not give them any right to take over the property. It could be a pious obligation of the son towards the father. With a view to convince the father to part with the property in their favour, they have to behave like faithful sons and not to challenge the right of the father in any manner. There is a concurrent finding of fact recorded by the courts below that the house in dispute is self-acquired property of the plaintiff and the defendants status in the suit property is nothing more than that of licencees. Learned Counsel for the appellant has lastly contended that family settlement being admitted by plaintiff, the defendants are entitled to retain their share.

In so far as the document dated 14.4.1997 is concerned, a perusal of the same, particularly its preamble itself indicates that the document itself creates as also extinguishes right in the property. The document relates to immovable property valuing more than Rs 100/- and is thus compulsorily registrable u/s 17 of the Indian Registration Act. Learned Counsel for the appellants has relied upon the case of Kale and Others Vs. Deputy Director of Consolidation and Others, wherein following principles have been laid down.

In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form 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 arrangements 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) (sic) (Section 17(1)(b)?) 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 to 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.

Learned Counsel for the appellants has also relied upon the case of Sankar Dastidar Vs. Shrimati Banjula Dastidar and Another, , to argue that the document is not compulsorily registrable. In the aforesaid case, the Supreme Court upheld the validity of unregistered family settlement executed amongst co-sharers. In the case of Smt. Manju Devi Vs. Bishan Sarup Gupta and Others, , this Court upheld the validity of family partition/family settlement which was a memorandum and it was accordingly observed that it does not require registration. Same is the position in the case of Vijay Kumar Vs. Tarlok Chand, , where this court ruled that the Memorandum of Family Partition/arbitration award did not require registration. These judgments have no application to the facts of the present case. The parties are not co-sharers in the suit property as is the concurrent finding of fact recorded by the courts below. The present case falls in Clause 4 of Kales case (supra) which inter alia lays down that where the document itself creates or extinguishes the right in immovable property valuing more than Rs. 100/-, it requires registration.

In view of the dictum of the aforesaid judgment, the findings recorded by the courts below that the agreement dated 14.4.1997 is not admissible in evidence being unregistered one, are absolutely correct and legal. No substantial question of law arises in this appeal. I find no merit in this appeal which is accordingly dismissed.