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2005 DIGILAW 1041 (PNJ)

Som Dev v. Rati Ram

2005-09-28

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. The only question raised in this appeal filed under Section 100 of the Code of Civil Procedure, 1908, is whether the judgment and decree dated 10.10.1980, suffered by one Seo Ram in favour of the plaintiff-respondent could be taken into account for the purpose of deciding the issue as to whether the plaintiff-respondent has acquired the status of co-sharer in the suit land to the extent of 1/2 share. The aforementioned question has arisen because plaintiff-respondent has claimed right to pre-emption on the basis of being co-sharer in respect of the other 1/2 of the land sold by one Smt. Sardarli d/o Shri Phusa to the defendant-appellants. Thus, the following question of law would require determination by this Court:- Whether the judgment and decree dated 10.10.1980 (Ex.D1 and Ex.D2) would confer upon the plaintiff-respondent a status of co-sharer although the same is not a registered document?FACTS: 2. The plaintiff-respondent filed a Civil Suit No.236 of 1986 on 18.7.1986 for possession by way of pre-emption claiming that one Smt. Sardarli, defendant-respondent No. 2 had transferred by way of sale-deed dated 2.8.1985, the suit land fully described in para I of the plaint for a fictitious sale consideration of Rs. 40,000/- to the defendant-appellants despite the fact that the plaintiff-respondent Rati Ram was a co-sharer and had a preferential right of pre-emption against them under Section 15 of the Punjab Pre-emption Act, 1913 (as applicable to Haryana). It was claimed that the sale deed dated 2.8.1985 has to be avoided in favour of the plaintiff-respondent being a co-sharer on account of preferential right of pre-emption. The defendant-appellants, who are the vendees, contested the suit by raising the objection that the suit was time barred. Zarepanjam was to deposited within specified time and they also asserted tha Rs. 40,000/- was the actual price. 3. The trial Court decreed the suit by holding that the plaintiff-respondent was a co-sharer with the vendor Smt. Sardarli and accordingly he had preferential right of preemption against the vendees-who are defendant-appellants in this appeal. The aforementioned finding has been recorded on the basis of jamabandi for the year 1982-83 (Ex.Pl) and the judgment and decree dated 10.10.1980 (Ex.D2). The contention that the decree was required to be registered under Section 17(2)(vi) of the Registration Act, 1908 , was rejected. The aforementioned finding has been recorded on the basis of jamabandi for the year 1982-83 (Ex.Pl) and the judgment and decree dated 10.10.1980 (Ex.D2). The contention that the decree was required to be registered under Section 17(2)(vi) of the Registration Act, 1908 , was rejected. It was further found that the salt price of the land was Rs.40,000/- and the plaintiff respondent failed to prove that the price was fictitious. On the basis of the aforementioned findings, the suit of the plaintiff-respondent was decreed holding that the plaintiff-respondent was entitled to recover possession of the suit land by way of pre-emption from the defendant-appellants on payment of an amount of Rs.40,000/- as sale consideration and Rs.5,500/- as registration expenses. 4. On appeal filed by the defendant-appellant, the view taken by the trial Court was upheld by the learned Lower Appellate Court. The argument of the defendant-appellants that the consent decree was required to be registered in order to transfer any valid title, has been rejected by holding as under:- 8. Findings on issue No. 1 of the trial Court are that plaintiff is the co-sharer in the land in suit and so, has a preferential right of pre-emption against defendant-vendees. This has been assailed by learned Counsel for the appellants on the ground that the consent decree Ex.Dl and Ex.D2 on the basis of which plaintiffs is claiming to be a co-sharer is not binding on the appellants because the same has not registered as required under the Indian Registration Act. It has been held in 1989 P.L.J. 38 (Tej Singh and Ors. v. Jagrup Singh and Ors.) and 1989 P.L.J. 182 (Gurdev Kaur and Ors. v. Mehar Singh and Ors.) that "consent decree unless set-aside on the ground of fraud, misrepresentation, coercion etc., is a good and valid decree and does not require registration. Similar observations were made in the authorities reported in 1981 P.L.J. 492 (Harpal and Ors. v. Smt. Ram Piari and Ors.); Kaushal Singh and Ors. v. Devinder Nath and Ors.) (1983)85 P.L.R. 711 and Mst. Jangir Kaur v. Ajaib Singh and Ors. 1989( 1) L.L.R. 404. In these circumstances the contention of the learned Counsel for the appellant that it required registration, is of no avail. v. Smt. Ram Piari and Ors.); Kaushal Singh and Ors. v. Devinder Nath and Ors.) (1983)85 P.L.R. 711 and Mst. Jangir Kaur v. Ajaib Singh and Ors. 1989( 1) L.L.R. 404. In these circumstances the contention of the learned Counsel for the appellant that it required registration, is of no avail. 5 The other argument that the parties to the consent decree as per the pedigree table Ex.D-3, did not belong to the same family and, therefore, the decree was not based on a family settlement was also rejected by observing as under: - It is evident from consent decree dated 10.10.1980 Ex.D2 passed in suit titled "Rati Ram v. Seo Ram" that plaintiff became co-sharer in the khewat out of which land in suit has been sold. A perusal of plaint Ex.DW3/l of the said suit shows that Smt. Sardarli vendor had one sister SmtChalti Devi, mother of Seo Ram, who gave his land by way of consent decree in favour of Rati Ram and his brother Raghbir Singh, sons of Phool Singh. Similarly pedigree table of the parties, Ex. D3, shows that they were related to one another and Seo Ram abandoned his right over the land in suit in favour of Rati Ram etc., on the basis of relationship and on the basis of judgment and decree dated 10.10.1980 vide Ex. D1 and Ex.D2 in favour of Rati Ram etc. Jamabandi for the year 1982-83 Ex. P1 also shows that Rati Ram, plaintiff, became co-sharer in the land in suit sold by Sardarli, vendor, to vendee-defendants." The appeal was, therefore, dismissed by the learned Lower Appellate Court and the defendant-appellants feeling aggrieved have filed this appeal. 6. Mr. R.S. Mittal, learned Senior Counsel for the defendant-appellants has submitted that the plaintiff-respondent Rati Ram cannot be considered as a co-sharer on the basis of the judgment and decree dated 10.10.1980 because it does not confer any proprietary rights on the plaintiff-respondent as the aforementioned judgment and decree required registration under Section 17 of the Registration Act, 1908 and also according to the view expressed by the Supreme Court in Bhoop Singh v. Maj. Ram Singh1 (1996-1)112 P.L.R. 559 (S.C.). Ram Singh1 (1996-1)112 P.L.R. 559 (S.C.). Learned Counsel has emphasised that after the judgment of the Supreme court in Bhoop Singhs case (supra), no reliance could be placed on the judgments of this Court in the cases of Akhara Shri Braham Buta v. State of Punjab and Ors. (1989-1)95 P.L.R. 47 and Gurdev Kaur and Ors. v. Mehar Singh and Ors. 1989 P.L.J. 182. Mr. Mittal has further made a reference to the statement of PW-1 Rati Ram, who is alleged to have admitted that the land was gifted to him by Seo Ram, by suffering the consent decree. It has further been pointed out that the defendant-appellants are in possession of the suit land since the date of its sale on 2.8.1985 and it will result in extreme hardship if they are dispossessed by an adverse order of the Court, especially when the right of pre-emption is a very weak right. 7. Mr. Jai Vir Yadav, learned Counsel for the plaintiff-respondent has argued that the decree dated 10.10.1980, cannot be disputed by the defendant-appellants because the same is based on the admission of averments made in para 4 of the plaint. Learned Counsel has drawn my attention to the averments made in para 4 of the plaint (at page 117 of the Lower Court record) and submitted that Seo Ram had transferred the land to the plaintiff-respondent by treating him as his sisters son (Bhanja) although there was no actual relationship. According to the learned Counsel the land, in fact, had already been transferred and the consent decree merely recognised on existing fact of putting the plaintiff-respondent in possession. Learned Counsel has placed reliance on paras 14 and 16 of the judgment of this Court in the case of Hari Singh v. Gurucharan Singh. He has also made a detailed reference to the judgment of the Supreme Court in the case of Ram Charan Dass v. Giri Nandini Devi, Referring to paras 10 and 11 of the aforementioned judgment, learned Counsel has argued that when a family settlement is entered into by the parties, who are members of a family in a bona fide manner so as to put an end to the dispute amongst themselves, then no element of transfer is involved nor it is creation of an interest. According to the learned Counsel it is also not necessary to show that every party actually had a share in the property and it is enough to prove that the parties were related to each other in some way or it has a semblance of a claim on some other ground say out of love and affection. Learned Counsel has then referred to the judgment of the Supreme Court in the case of Sahu Madho Das v. Mukand Ram A.l.R. 1955 S.C. 481. 8. Having heard learned Counsel for the parties, after perusing the record and the view taken by both the Courts below, I am of the considered view that the question posed in the opening para of the judgment in this case deserve to be answered in the affirmative. In other words, the judgment and decree dated 10.10.1980 (Ex.Dl and D2) would be deemed to have conferred status of co-sharer upon the plaintiff-respondent No. 1 and the same did not require registration. It is appropriate to make a reference to the averments made in para 4 of the plaint, which constitute the basis of passing judgment and decree dated 10.10.1980. When translated into English, the aforementioned para 4 of the plaint reads as under:- (4) That by mutual consent the defendant who is Bhanja (sisters son) of the plaintiffs in relation, had abandoned his ownership rights in respect of his 1/2 share in the land as detailed in Para No.2-A, B of this plaint in favour of the plaintiffs, because during the lifetime of Phusa Ram, the defendant was also on visiting terms with the plaintiffs. In turn, plaintiffs has also been inviting the defendant on each and every function, solemnized as per their social customs from time to time, and giving him due regard as their real Bhanja. On the other hand, the defendant has also realized the fact during the life time of Shri Phusa Ram and plaintiffs had been treating him as their real Bhanja, and as such he would abandon all his ownership rights concerning the land fallen to his share in favour of the plaintiffs after the death of Shri Phusa Ram and would also get necessary entries regarding transfer of his ownership rights in favour of the plaintiffs, made in the revenue record. On the basis of this mutual understanding,the plaintiffs have been continuously using the land fallen to the share of the defendant as owners in possession after the death of Shri Phusa Ram, now the defendant has ceased to have any right, title and intestate (interest (sic)) in the aforesaid land. 9. The averments in para 4 were accepted in the written statement filed by Shri Seo Ram. From the perusal of para 4 it is obvious that Shri Seo Ram, predecessor-in-interest of the plaintiff-respondent had abandoned 1/2 share of the share of the suit land in favour of the plaintiff-respondent. The reason for abandoning the rights in the land has also been mentioned in para 4 namely that Shri Sheo Ram used to consider the plaintiff-respondent as his sisters son (Bhanja) for all intents and purposes. It has been substantiated that in all functions, customs and in discharge of other social duties the plaintiff-respondent used to be considered by Shri Seo Ram as his sisters son and accordingly the decree dated 10.10.1980, Ex.D2, was suffered by him in his favour. The lower Appellate Court in para 8, as extracted above, has, therefore, rightly concluded that the plaintiff-respondent became a co-sharer by virtue of the judgment and decree dated 10.10.1980. It is not necessary for a relation to emanate from the close blood relation alone so as to be sustained in the eyes of law. It appears that a causal and semblance of a relationship would constitute a basis for valid transfer. The matter is no longer res Integra and has been considered by the Supreme Court in Ram Charan Dasss case (supra). After analyzing various judgments of the Privy Council, their Lordships have observed as under: ...Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagoudas case, 54 Ind App 896:(A.I.R. 1927 P.C. 227), of the three parties to be settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. In Ramgouda Annagoudas case, 54 Ind App 896:(A.I.R. 1927 P.C. 227), of the three parties to be settlement of a dispute concerning the property of a deceased person one was his widow, other her brother and the third her son-in-law. The two latter could not, under the Hindu Law, be regarded as the heirs of the deceased. Yet, bearing in mind their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter. 10. Holding further that settlement of share by way of family settlement would not involve the element of alienation/transfer.their Lordships observed as under- Here the transaction in question is a family settlement entered into by the parties bona fide for the purpose of putting an end to the dispute among family members. Could it be said that this amounts to a transfer of or creation of an interest in property? For, unless it does, the action of Kadma Kaur would not fall within the purview of the aforesaid clause of Section 37. In Mt. Hiran Bibi v. Mt. Sohan Bibi A.I.R. 1914 P.C. 44, approving the earlier decision of Khunni Lal v. Govind Krishna Narain I.L.R. 33 All. 356 (P.C.), the Privy Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family property. This case, therefore, would support the conclusion that the transaction does not amount to a transfer. Mr. Sinha, however, contends that the transaction amounts to creation of an interest by the wird in property which was under the superintendence of the Court of Wards and in support of his contention relies on Man Singh v. Nawlakhbati 53 Ind App 11 :A.I.R. 1926 P.C. 2. In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as they Privy Council pointed out in Mst. In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as they Privy Council pointed out in Mst. Hiran Bibis.case, A.I.R. 1914 P.C. 44 in a family settlement each party takes a 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:A.I.R. 1918 P.C, 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 grounds as say, affection....(Emphasis added) 11. The aforementioned enunciation of law has also been supported by observation made by the Supreme Court in Sahu Madho Dass case,6 (supra). In the aforementioned judgment the following observation deserves to be quoted in extenso:- ...It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore, no conveyance is necessary. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore, no conveyance is necessary. But in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their members (provided he or she had claimed the whole and made such an assertion of title and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present. [Emphasis added] Therefore, it becomes evident that the plaintiff-respondent Shri Rati Ram was not required to have blood relationship with Shri Seo Ram, who had suffered decree in his favour so as to acquire a valid title because 1/2 share of the suit land had already been given to the plaintiff-respondent, who was considered to be his sisters son by Shri Seo Ram for all intents and purposes. In all social functions, customary events and all other purposes he was accepted as sisters son (Bhanja) by him. The consent decree was mere recognition of the aforementioned arrangement, which was the result of some relationship grown out of love and affection. It is for the aforementioned reason that the Supreme Court in Ram Charan Dasss case (supra) has emphasised that every person under the settlement who takes benefit, does not require to be shown to have a claim, under law, to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or even a semblance of claim on some other ground as, say, affection. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or even a semblance of claim on some other ground as, say, affection. Such family settlement recognised by a consent decree, therefore, would not involve any element of alienation or transfer as envisaged by Section 17(2)(vi) of the Registration Act, 1908 . 12. I am further of the view that the Courts below have returned concurrent findings of fact and law by concluding that the plaintiff-respondent has acquired the status of a co-sharer by virtue of judgment and decree dated 10.10.1980. Ex.D-1 & E-2 respectively. It has been repeatedly held by the Supreme Court that the High Court should not interfere in the concurrent findings of fact as well as the law in the absence of any substantive question of law, this Court is not to interfere in those findings. Holding that a question of law becomes a substantive question either if it is highly debatable or it has not been settled previously by the law of the land or by a binding precedent, their Lordships of the Supreme Court in Govindaraju v. Mariamman, have held as under- 16. As per settled law the scope of exercise of the jurisdiction by the High Court in second appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari case, that a point of law, which admits of no two opinions may be a proposition of law but cannot be substantial question of law. To be a "Substantial" question of law it must be debatable, not previously settled by the law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. To be a "Substantial" question of law it must be debatable, not previously settled by the law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law "involving in the case" it was observed that to be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of fact and it must be necessary to decide the question of law for a just and proper decision between the parties. In the present case, the judgment and decree dated 10.10.1980, Ex.D1 and Ex. D2 respectively, has been found to be the result of family arrangement and the same has been adequately supported by the evidence on record. 13 It is, thus, obvious that the proposition of law framed in the opening para of the judgment is already answered by a binding precedent in Ram Charan Dasss case (supra) and the above enunciation of law and the view taken therein has not been deviated in the later judgment of Bhoop Singhs case (supra). Therefore, the concurrent findings of fact as well as law recorded by the Courts below are not open to challenge in exercise of jurisdiction under Section 100 of the Code. The appeal is without any merit and is, thus,, liable to be dismissed. For the reasons mentioned, this appeal fails and the same is dismissed.