SEC 17 REG
KHUSHI RAM vs. NAWAL SINGH, SC 2021
FACTS – One Badlu, who was the tenure-holder of agricultural land situate in Village Garhi Bajidpur, Tehsil and District Gurgaon, had two sons Bali Ram and Sher Singh. Sher Singhdied in the year 1953 issueless leaving his widow Smt. Jagno. Plaintiffs-appellants are descendents of Bali Ram. After death of Sher Singh, his widow inherited share of her late husband, i.e., the half of the agricultural property owned by Badlu. A Civil Suit was filed by Nawal Singh and two others against Smt. Jagno in the Court of Sub-Judge, Gurgaon claiming decree of declaration as owners in possession of the agricultural land mentioned in the suit to the extent of half share situate in Village Garhi Bajidpur.
The plaintiffs claim was that Smt. Jagno, who was sharer of the half share, has in a family settlement settled the land in favour of the plaintiffs, who were the brother’s sons of Smt. Jagno. Smt. Jagno filed a written statement in the suit admitting the claim of the plaintiffs. Smt. Jagno also made a statement in the suit accepting the claim of plaintiffs, the trial court vide its judgment and decree passed the consent decree in favour of the plaintiffs declaring the plaintiffs owners in possession of the half share in the land.
The plaintiffs, who were descendents of brother of husband of Smt. Jagno filed a Civil Suit in the Court of Senior Sub-Judge Gurgaon praying for declaration that the decree passed earlier is illegal, invalid and without legal necessity. The plaintiffs also claimed decree of declaration in their favour declaring them owners in possession of land in question. In the suit a joint written statement was filed by the defendants. Smt. Jagno was also a defendant i.e.,No.4.The defendants supported the earlier decree. The defendants No.1 to 3 claimed land by family settlement out of love and affection by the defendant No.4, which family settlement was duly affirmed by the earlier Civil Court decree.
The trial court in the subsequent suit framed nine issues. Issue No. 5 being “Whether the earlier decree dated is illegal, invalid without jurisdiction and against custom, without legal necessity and consideration and a result of fraud and undue influence and is liable to be set aside?
Issue Nos. 2 to 5 were answered in favour of defendants. The trial court also rejected the argument of the plaintiffs that in absence of registration of decree, no right or title would pass in favour of the defendants. Trial court held that registration is required when fresh rights are created for the first time by virtue of decree itself. It was held that in the case in hand, defendants were having pre-existing right in the suit property under as in a family settlement defendant No.4 acknowledged them as owner and surrendered the possession of the suit property in their favour at the time of family settlement and the earlier decree merely affirms their pre- existing rights and hence, does not require registration.
The plaintiffs aggrieved by the judgment filed first appeal before the learned District Judge, which too was dismissed. The First Appellate Court held that under Section 14(1) of the Indian Succession Act, a Hindu female become full owner of the property, which she acquires before the commencement of the Act and not as a limited owner. The First Appellate Court also held that defendants being near relations of defendant No.4, they cannot be said to be strangers to her. First Appellate Court also held that decree did not require registration. The findings of the trial court were affirmed by the First Appellate Court dismissing the appeal.
Aggrieved against the judgment of the First Appellate Court, the plaintiffs filed R.S.A.The High Court answered the above question of law against the plaintiffs and in favour of the defendants-respondents. The High Court held that judgment and the decree rendered in earlier Civil Suit merely recognise the existing right which was created by the oral family settlement. High Court further held that apart from relationship of Smt. Jagno with defendants-respondents 1 to 3, she has developed close affinity, love and affection for defendant respondent Nos.1 to 3 as per the findings recorded by the learned Courts below. The High Court dismissed the second appeal, aggrieved against which judgment, this appeal has been filed.
CAUSE – Judgment dated 16.04.2009 of High Court of Punjab & Haryana dismissing the second appeal filed by the appellant.
ARGUMENTS – Learned counsel for the appellants, Shri Yadav submits that no family settlement could have been entered by Smt. Jagno in favour of defendant Nos.1 to 3, they being strangers to the family. A Hindu widow cannot constitute a Joint Hindu Family with the descendants of her brother, i.e., her parental side. Family settlement can take place only between members, who have antecedent title or pre-existing right in the property proposed to be settled. Smt. Jagno could have transferred her absolute share in favour of the respondents or to any stranger only in accordance with law by complying with the provisions of the Transfer of Property Act, 1882, the Indian Registration Act, 1908 and the Indian Stamp Act,1899. Learned counsel further contends that registration of compromise decree was compulsory by virtue of Section 17 of the Indian Registration Act and the decree dated 19.08.1991 having not been registered, it did not confer any valid title to the defendant Nos.1 to 3. All the Courts below committed error in upholding the decree dated 19.08.1991 whereas the decree being an unregistered decree was liable to be ignored and declared in operative.
Learned senior counsel for the respondents refuting the submissions of the learned counsel for the appellant contends that defendant Nos.1 to 3 had pre-existing right in the suit property, which was clear from the pleadings of Civil Suit No.317 of 1991. In the above suit, it was categorically pleaded that family settlement/arrangement took place about two years back and since then plaintiffs are owners in possession of land and defendant No.4 had relinquished all her rights therein.
It is submitted that decree passed in the Civil Suit dated 19.08.1991 only declared the existing rights of the defendant Nos.1 to 3, which was based on the family settlement. It is submitted that the defendant Nos.1 to 3 being brother’s sons of Smt.Jagno, they were not strangers to Smt. Jagno and family settlement could have been very well entered by Smt. Jagno with them. It is submitted that the expression “family” for the purpose of family settlement is not to be given any narrow meaning; it should be given a wide meaning to cover the members, who are by any means related. It is further submitted that the decree dated 19.08.1991 did not require any registration under Section 17 of the Indian Registration Act, 1908. The decree was passed with regard to subject matter of the suit property,it was exempted from registration by virtue of Section 17(2)(vi) of the Indian Registration Act, 1908. Shri Swarup further contends that the family settlement could have been made out of love and affection with regard to which there was ample pleading in the Civil Suit No.317 of 1991 and out of love and affection defendant No.4, Smt. Jagno could have very well settled the properties in favour of defendant Nos.1 to 3, her nephews being brother’s sons.
ISSUE – Whether the decree dated 19.08.1991 passed in Civil Suit No.317 of 1991 required registration under Section 17 of the Indian Registration Act, 1908? Whether the defendant Nos.1 to 3 were strangers to defendant No.4 so as to disable her to enter into any family arrangement with defendant Nos.1 to 3?
DECISION – With respect to the whether the consent decree required registration under Section 17 of the Indian Registration Act, 1908 the SC held that since the decree which was sought to be exhibited was with regard to the property which was subject matter of suit, hence, was not covered by exclusionary clause of Section 17(2)(vi) and decree did not require registration. The Issue in the present case is squarely covered by the above judgment. We, thus, conclude that in view of the fact that the consent decree dated 19.08.1991relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2)(vi).
With respect to whether the defendant Nos.1 to 3 were strangers to defendant No.4 so as to disable her to enter into any family arrangement with defendant Nos.1 to 3 the court explained the idea of family in family settlement and held that every party taking benefit under a family settlement 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.
The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.
The court held that 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 maybe 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.
(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.”
Reverting to the facts of the present case,admittedly, the defendants-respondents were nephews,i.e., brother’s sons of Smt. Jagno. We need to look into the Hindu Succession Act, 1956, Section 15,which deals with the general rules of succession inthe case of female Hindus for properties inherited by female Hindus, which are devolved in according to Sections 15 and 16.
A perusal of Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed. When heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.
A perusal of Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed. When heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.thus, do not find any merit in the submission of learned counsel for the appellants that the defendants-respondents were strangers to the family.