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2009 DIGILAW 1827 (RAJ)

Prem Chand Jain v. Rent Tribunal, Tonk

2009-08-13

M.N.BHANDARI

body2009
JUDGMENT 1. - By this writ petition, a challenge has been made to the order dated 10.4.2009 by which application moved by the non-petitioner raising objection regarding admissibility of the family settlement, was accepted. 2. An application for eviction was filed by the petitioner under Section 9 of the Rajasthan Rent Control Act, 2001 (for short the Act of 2001'). After completion of the pleadings and filing of the documents, non-petitioners moved an application on 10.4.2009 raising objections regarding taking Ex.1 on record. It was stated that Ex.1 dated 17.4.2007 is an unregistered family settlement, thus the aforesaid document cannot be taken on record being inadmissible. Application so moved by the non-petitioner was accepted by the Rent Tribunal, Tonk vide the impugned order holding that Ex.1 is an unregistered family settlement, thus cannot be taken on record. 3. Learned counsel for petitioner submits that family settlement (Ex.1) is not a family settlement but a memorandum of the settlement. Family settlement took place between the brothers orally in the year 1995 and it was reduced in writing otherwise by Ex.1 as such no family settlement took place vide Ex.1. In support of his arguments, learned counsel for petitioner referred various judgments delivered in the cases of - (i) Bakhtawar Singh v. Gurdev Singh and another, reported in (1996) 9 SCC 370 ; (ii) Tek Bahadur Bhujil v. Debi Singh Bhujil and others, reported in AIR 1966 SC 292 ; (iii) Roshan Singh v. Zile Singh, reported in AIR 1988 SC 881 and (iv) Kale and others v. Deputy Director of Consolidation and others, reported in AIR 1976 SC 807 . 4. Learned counsel for respondents, on the other hand, submits that Ex.1 being an unregistered family settlement, thus not admissible in evidence and, therefore, application so moved by the non-petitioners was rightly accepted by the Rent Tribunal, hence, a challenge to the said order is not sustainable. To support his contention, learned counsel for respondents placed reliance on the following judgments in the cases of Rukmani Devi & Anr. v. Nand Kishore through its (sic) Legal Representatives & Ors. reported in 2005 (10) RDD 4438 (Raj) (DB) ; (ii) Avinash Kumar Chauhan v. Vijay Krishna Mishra, reported in 2009(1) WLC (SC) Civil 562 : AIR 2009 SC 1489 and (iii) Harshvardhan Singh v. Ranveer Singh and others, reported in 1996 (1) RLR 155 . 5. v. Nand Kishore through its (sic) Legal Representatives & Ors. reported in 2005 (10) RDD 4438 (Raj) (DB) ; (ii) Avinash Kumar Chauhan v. Vijay Krishna Mishra, reported in 2009(1) WLC (SC) Civil 562 : AIR 2009 SC 1489 and (iii) Harshvardhan Singh v. Ranveer Singh and others, reported in 1996 (1) RLR 155 . 5. I have considered the rival submissions made by the parties and scanned the matter carefully. 6. The issue in the present matter exists in regard to the memorandum of family settlement so produced by the petitioner in a suit for eviction filed under the provisions of the Act of 2001. The perusal of the judgments referred by both the parties shows that a family settlement is required to be a registered document, however, a distinction has been made by the Hon'ble Apex Court in a matter where an oral family settlement reduced in writing as a mere memorandum after family arrangement. If the facts of the present case and the document in question is looked into, then it comes out that oral family settlement between the brothers took place in the year 1995 and by virtue of aforesaid family settlement, brothers started maintaining the properties so partitioned. It is in the year 2007 that oral family settlement of 1995 reduced in memorandum mentioning therein to keep it as a memory. The perusal of the document does not show that partition or settlement took place between the brothers in the year 2007, thus aforesaid document cannot be said to be a family settlement entered for the first time. 7. In reference of the judgment of the Hon'ble Apex Court in the case of Kale and others (supra) is taken note of, then it comes out that an oral family settlement needs no registration. However, the registration would be necessary if terms of family arrangement are reduced in writing but then distinction has been made between a document containing terms and recitals of a family arrangement and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information to the Court. The perusal of the aforesaid judgment shows that if merely memorandum is prepared for family arrangement having been made orally, then it cannot be said to be a document that needs registration. The perusal of the aforesaid judgment shows that if merely memorandum is prepared for family arrangement having been made orally, then it cannot be said to be a document that needs registration. The same view has been taken by the Hon'ble Apex Court in the case of Roshan Singh (supra) wherein a partition took place by metes and bounds. The document made thereupon does not effect a partition but merely records nature of the arrangement arrived at, as regards the division of the remaining property and therein it was held that mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. The essence of the transaction, which is required to be looked into, is as to whether the deed itself effects partition or contains merely an incidental recital of a previously completed transaction. The same view was taken even in an earlier judgment of the Hon'ble Apex Court in the case of Tej Bahadur Bhujil (supra) wherein a family arrangement was arrived at orally and thereupon memorandum of arrangement was prepared. It was held that document needs no registration. Even in a subsequent judgment in the case of Bakhtawar Singh (supra), it was held that memorandum regarding past oral partition of joint Hindu family property as a family settlement, is not required to be registered. The aforesaid case of Bakhtawar Singh (supra) came up for consideration before the Hon'ble Supreme Court from a proceeding initiated under the Rent Control Act and the present case is of the same nature because herein also the proceeding arises out of the Rajasthan Rent Control Act. 8. In the case of Harshvardhan Singh (supra), it was held that registration of memorandum of family settlement produced therein was necessary and in the aforesaid case, judgment of the Hon'ble Apex Court in the case of Kale and others (supra) was referred. The substance of all the judgments referred to above is that oral family settlement needs no registration, however, when it is reduced in writing, then it can have two distinct features depending upon the document. If document contains terms and recitals of the family arrangement, then it is required registration. However, if it is a mere memorandum prepared after the family arrangement either for the purpose of record or for information of the Court, then it is not required to be registered. 9. If document contains terms and recitals of the family arrangement, then it is required registration. However, if it is a mere memorandum prepared after the family arrangement either for the purpose of record or for information of the Court, then it is not required to be registered. 9. The perusal of the document herein shows that an oral family settlement took place in the year 1995 between two brothers and as per the oral family settlement, they occupied the property so settled orally and during the entire period of 12 years before writing the memorandum of family arrangement, no dispute took place between brothers regarding the distributed properties and it is for the purpose of keeping it in record that memorandum was prepared. Thus, in view of the above facts, the oral family settlement reduced in writing cannot be said to be a family settlement containing terms or recitals of the family arrangement rather it seems to be mere memorandum prepared after family arrangement for the purpose of record or for information to the Court, thus document was not required to be registered, hence, impugned order passed by the Tribunal is not sustainable and accordingly order dated 10.4.2009 is set aside. As a consequence of which Ex.1 is ordered to be kept on record and be considered by the Tribunal while deciding the application for eviction. 10. In view of the above, writ petition is allowed with no order as to costs.Writ Petition Allowed. *******