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2003 DIGILAW 1440 (PNJ)

Ram Piari v. Shamsher Singh

2003-10-16

ADARSH KUMAR GOEL

body2003
ORDER Adarsh Kumar Goel, J. - The appellant filed a suit for declaration that defendant No. 2 to 4 had secured a collusive decree dated 13.10.1978 from defendant No. 1 by exercising undue influence affecting the rights of the plaintiff, who is daughter of defendant No. 1. The suit was contested. A reference to para 8 of the judgment of the Reference Court shows that the plaintiff has not pressed grounds 8(a), (c) and (d) of the plaint and pressed only the grounds mentioned in para 8(b) of the plaint that the decree was vitiated by undue influence exercised by defendants No. 2 to 4. Lakhi Ram- defendant no.1 filed his own written statement disputing the plea. DWI Balwant Singh, DW2 Umed Singh, Sarpanch and DW4 Balwant deposed that Lakhi Ram was of disposing mind and voluntarily gave instructions to Rao Ran Singh, advocate to file written statement in a previous suit to admit the claim of defendants No. 2 to 4 that the suit property was given to them in family settlement. The trial Court dismissed the suit holdings that the plaintiff was not able to prove undue influence as alleged. On appeal, the plaintiff-appellant raised a further question that the decree dated 13.10.1978, Ex.P-2 was void for want of registration. This plea was rejected in view of provisions of Section 17(2) (vi) of the Indian Registration Act. It was held that suit property was subject matter of the previous suit and a family settlement did not require registration. It was observed that the word family in the context of a family arrangement could be understood in a narrow sense. Reference was made to decision of the Apex Court in Kale v. Deputy Director Consolidation, A.I.R. 1976 S.C. 807. 2. Learned counsel for the appellant submitted that defendants No. 2 to 4 had no pre-existing right as there could be no family settlement, they being nephews of defendant No. 1 and not members of the family; family settlement was valid only if all the members of the family were parties and defendants No. 1 was also required to be a party; thus, the decree was to defeat the statutory provisions of Stamp and Registration Act. He relies on the decision of the Apex Court in Bhoop Singh v. Ram Singh Major and others, (1996-1)112 P.L.R. 559 (S.C.), to submit that Section 17(2) (vi) of the Indian Registration Act is application in respect of pre-existing right only. 3. I do not find any merit in this contention. Appellant had challenged the decree only on the ground that there was undue influence, which has not been established. Apart from this consent decree which declares a pre-existing right does not require registration. This is so recognised in the judgment of the Apex in the case of Bhoop Singh (supra) itself. In Gurdev Singh and others v. Kartar Singh and others,: (2003-1)133 P.L.R. 173, this High Court held as under; "...No doubt in Tek Bahadurs case (supra) it has been laid down that the Court has to examine in each case whether parties have pre-existing right to immovable property, this judgment does not deal with the parameters for determining when a person can be said to be having pre-existing right-whether pre-existing right can exist only when a person has a share in the estate or whether such right can be put forward by a member of the larger family by claiming that such right was created under any oral family settlement, which is subsequently admitted in Court proceedings. In my view, the pre-existing right could also cover a claim of a member of larger family under an oral arrangement which is subsequently confirmed in Court proceedings." 4. In the present case, the plaintiff has not brought on record the pleading of the previous suit. It has been held by the lower appellate Court that the suit property was self acquire property and defendant No. 1 had absolute right to transfer the same. It was not necessary that the plaintiff, who is daughter of defendant No. 1 should have been made a party to a family settlement. Defendant No. 2 to 4 were members of the larger family of defendant No. 1. 5. For the above reasons, I do not find any merit in this appeal and the same is dismissed. Appeal dismissed.