Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 334 (TRI)

Sukumar Bhowmik v. Subal Bhowmik

2014-09-24

S.TALAPATRA

body2014
JUDGMENT : S. Talapatra, J. Against the concurrent findings of fact returned by the Addl. District Judge, West Tripura, Agartala, Court No.3 in Title Appeal No.42 of 2006 this appeal, under Section 100 of the CPC, questions the legality of the judgment and decree dated 23.05.2007. While admitting the appeal, by the order dated 07.09.2007 the following substantial questions of law were formulated for consideration. "(i) Whether the life estate of Sagari under the Provisions of Hindu Womens Right to Property Act, 1937 did not extend to the B scheduled land, whether the decision of the learned courts below in respect of Issue No.(iv) is correct holding that Sagari acquired transferable right over the B scheduled land by partition? (ii) Is the decision of the Ld. Courts below in respect of issue No.(ii) is sustainable in law as to the admissibility of the unregistered deeds of family settlement dated 4th Chaitra 1377 B.S. marked as Ext.7 & 8 in evidence." 2. The fact relevant for appreciation may briefly be laid at the outset. The plaintiff, Subal Bhowmik instituted the suit for declaration of title for the properties in Schedule-B, for partition of properties described in Schedule-C.1 and recovery of possession his share and for perpetual injunction over the properties described in the Schedule-C.1 of the plaint. The plaintiffs grand-father namely Kailash Kapali of Nischintapur was the owner in possession of a large tract of land ad measuring 15.89 acres of Nal, Charra and Viti class of land. He had four sons namely Murari, Alanga, Mukunda and Baikuntha. Of them, Murari died before the death of Kailash Kapali leaving his wife Sagari Kapali and only daughter Hemanta Bala Kapali. Hemanta Bala Kapali subsequently died leaving behind her only son, Gopal Chandra Bhowmik. After death of Kailash, the properties left by him was amicably partitioned among the three surviving sons and Sagari Kapali, widow of deceased son, Murari by executing the memoranda of the family settlement denoting partition on 4th Chaitra, 1377 BS. Through these memoranda, each of the heirs of Kailash Kapali got, according to the plaint, their definite shares of property and the delivery of their plots for purpose of possession was also complete simultaneously. As is evident that the said memoranda so effected, four chhaham Nos.1, 2, 3 & 4 fell respectively in the shares of Alanga, Mukunda, Baikuntha and Sagari. As is evident that the said memoranda so effected, four chhaham Nos.1, 2, 3 & 4 fell respectively in the shares of Alanga, Mukunda, Baikuntha and Sagari. The memoranda of the family settlement are the records of specific land falling in the share of each co-sharers and the fact of delivery of possession. Alanga Kapali had two sons namely Tarani and Tarini Kapali. Baikuntha Kapali had six sons namely Subal Kapali i.e. the plaintiff and Sukumar Kapali, Dilip Kapali, Dulal Kapali and Amrit Lal Kapali, i.e. the defendants No.1 to 4. He had another son namely Rajkumar Bhowmik, since he was predeceased, his son Mithan Bhowmik and daughter Gouri Bhowmik have been impleaded as the defendant Nos.5 and 6. All the sons of Baikuntha Kapali subsequently changed their surname from Kapali to Bhowmik. The share of Sagari Kapali in chhaham No.4 was to the extent of 13 (thirteen) kanies (four) gandas 3 (three) karas and 1 (one) kranta. This land is described in Schedule A of the plaint. Out of love and affection to the plaintiff namely Subal Bhowmik, Sagari Kapali gifted eight kanies eight gandas three karas two krantas of nal and chara land with specific boundaries by a gift deed executed on 28.02.1980 and gave delivery of possession. This land is described in the schedule B. Subsequently, the plaintiff mutated his name over the gifted land and Khatian No.1391 was created. The mutated land however admeasures 7 (seven) kanies (five) gandas 1 (one) kara 1 (one) kranta and 8 (eight) dhurs corresponding to 2.84 acres. This land is described in the Schedule "C" of the plaint. Similarly, Sagari also made gift deed for 5 (five) kanies and odd nal land in favour of Tarini and Tarani executing a gift deed on the same date i.e. 28.02.1980. After the death of Hemanta Bala Kapali, daughter of Murari, her son Gopal instituted T.S. No.98 of 1980 against Tarani, Tarini, Subal and Sagari challenging the two gift deeds alleging that Sagari had no right to make any gift. It was also alleged that three donees got the gift deeds executed by her on exerting undue influence and exercising fraud on her. He claimed reversionary rights over the gifted land. The suit was contested by all four of them and ultimately by the judgment, the court held that both the gift deeds were genuine and thus, the suit was dismissed. He claimed reversionary rights over the gifted land. The suit was contested by all four of them and ultimately by the judgment, the court held that both the gift deeds were genuine and thus, the suit was dismissed. It has been pleaded further that no appeal was preferred against this judgment dated 06.02.1988 which thus attained finality. It is alleged that defendants No.1 to 5, at the instigation of the defendant No.6, started creating disturbance in the physical possession of the land of the plaintiff mentioned in schedule "C" even to the extent of trying to take forcible possession. This resulted in filing the petition by the plaintiff under section 145 Cr.P.C. and leading to the registration of the Misc. case No.08 of 2001 in the court of the Sub-Divisional Magistrate, Bishalgarh. Following this, the land was attached by order dated 28.06.2002 but violating this order, the defendants cut down bamboos and other trees from the land on 19th, 20th & 21st March, 2002. It has been further alleged that the defendants have also been creating disturbance in the peaceful possession of the plaintiff over the land left by Baikuntha Kapali described in Schedule C-1 of the plaint. For all the aforesaid reasons, it has been urged to declare the jote right of plaintiff over the gifted land and recovery of its possession from the defendants and also to perpetually restrain them from interfering with his peaceful possession. It has been further prayed to pass a decree of partition determining ?th share of the plaintiff in the land described in schedule C.1 and a final decree thereof. Even though the defendant Nos.1, 2 and 5 have by filing a written statement jointly resisted such prayer of the plaintiff, but the entitlement of the plaintiff to the property left by Baikuntha Kapali has not been disputed. It has however been denied that through the family settlement deed dated 4th Chaitra, 1377 B.S. the suit property was amicably partitioned among the three surviving sons and widow of the deceased son of Kailash Kapali followed by delivery of possession. It has however been denied that through the family settlement deed dated 4th Chaitra, 1377 B.S. the suit property was amicably partitioned among the three surviving sons and widow of the deceased son of Kailash Kapali followed by delivery of possession. It is the case of the defendants that Kailash Kapali died on nd Jaishtha, 1377 and his son Murari died before him, in 1952 A.D. It is contended that as the Hindu Succession Act came into force on 17th June, 1956, the devolution of interest of Kailash Kapali was governed by Daya Bhaga School of Hindu Law. Consequently, Sagari, the widow of Murari cannot inherit any property of Kailash Kapali. However, in view of the provision of Hindu Womens Rights to Property Act, 1937, Sagari had limited interest over the dwelling house of the original owner and by virtue of Section 14(1) of the Hindu Succession Act, 1956, this limited interest became absolute. However, right of Sagari cannot extend to the agricultural land left by Kailash Kapali. This being the legal position, it has been contended that the family partition deed was void ab initio. Secondly, Sagari had no right and authority to execute the gift deeds in favour of the plaintiff as well as Tarani and Tarini Bhowmik. It has been further contended that as the contesting defendants were not parties to the Title Suit No.98 of 1980, the decision therein is not binding on them. It has been denied that the plaintiff has possession over the C schedule land notwithstanding the records of right. Regarding the schedule C-1, it is contended that Baikuntha Kapali did not accept Chhaham No.3. Apart that, description of B schedule and C schedule is visited some gross discrepancies, as they asserted. 3. For the purpose of further reference to the factual perspective, it is to be noted that the following issues were framed by the trial court, the Civil Judge, Sr. Divn., West Tripura, Agartala, Court No.2. "(i). Is the suit maintainable? (ii). Was there any valid and legal amicable deed of partition on 4th Chaitra, 1377 B.S. of the landed properties left by Kailash Kapali among his three surviving sons namely, Ananga, Mukunda and Baikuntha and Sagari, the widow of predeceased son Murari followed by delivery of possession to each of them? (iii). "(i). Is the suit maintainable? (ii). Was there any valid and legal amicable deed of partition on 4th Chaitra, 1377 B.S. of the landed properties left by Kailash Kapali among his three surviving sons namely, Ananga, Mukunda and Baikuntha and Sagari, the widow of predeceased son Murari followed by delivery of possession to each of them? (iii). Did Sagari get possession of the chhaham No.4 of the deed of partition as described in schedule A of the plaint? (iv). Did Sagari make a valid gift of the land of B schedule to the plaintiff executing a deed on 28.2.80? (v). Was the land of B schedule in possession of the plaintiff and out of this land, was the land of C schedule validly recorded in Khatian No.1391? (vi). Was the plaintiff dispossessed from the C schedule land on 19th, 20th & 21st March, 2002, by the defendants? (vii). Is the land of schedule C-1 liable to be partitioned among the plaintiff and defendants No.1 to 4 to the extent of ?th share each followed by preliminary decree? (viii). Is the plaintiff entitled to get the decree as prayed for? (ix). To what other relief plaintiff is entitled?" 4. The plaintiff has adduced both oral and documentary evidence. Manmohan Bhowmik, Gouranga Bhowmik, Dulal Bhowmik were his witnesses. He examined himself as PW-1 and admitted in the evidence certified copy of the judgment of TS No.98 of 1980 (Exbt.1), certified true copy of an order passed in Misc. Case No.08 of 2001 (Exbt.2), certified true copy of order dated 05.08.2004 passed in TS No.83 of 2004 (Exbt.3), certified true copy of order dated 24.08.2004 passed in TS No.83 of 2004 (Exbt.4), Original registered gift deed No.1-4120 (Exbt.5), certified true copy of Khatian No.1391 (Exbt.6) and two unstamped deeds of partition of family settlement dated 4th Chaitra, 1377 B.S. (Exbt.7 & 8). The defendant No.2 has examined himself but no documentary evidence has been adduced for the defendants. The trial court after analysing the evidence held that Exbt.7 and 8 evidenced the family settlement for purpose of partition of the joint stick property, between the three sons of Kailash Kapali and the widow of his pre-deceased son, Murari and the partition of the land in common has been effected by delivery of possession of the respective Chhaham to each of the co-sharers. The contents can well be appreciated for the purpose of determining the right of the parties. It has been further held that the defendants cannot take a contrary position to what has been stated in Exbt.7 and 8. Moreover, it has been observed that Exbt.7 and 8 were also challenged in Title Suit No.98 of 1980, instituted by Gopal Chandra Bhowmik, son of Hemantabala, and Sachindra against Tarani, Tarini, Subal Bhowmik and Sagari Kapali. While deciding the said title suit it was held that both the gift deeds are genuine and valid. It has been observed that even though the said decision passed in Title Suit No.98 of 1980 cannot operate as the res judicata against the defendants as they are not parties in that suit but that judgment is a good piece of evidence on the point in issue. Regarding the absence of signature or thumb impression of Baikuntha Kapali in Exbt.7, it is observed that on comparison of Exbt.7 and 8 it revealed that the beneficiary did not put his signature in the memoranda. Consequently, Baikuntha being the beneficiary of Exbt.7, his signature or thumb impression was not there. Similarly, Ananga being the beneficiary of Exbt.8, his signature was also not obtained in Exbt.8. Exbts.7 and 8 being the original documents, more than 30(thirty) years old had been admitted in the evidence on consideration of their antiquity. The purpose of creating the Exbt.7 and 8 has been placed by the testimonies of the PWs 2, 3 and 4. PW-1 is one of the sons of Baikuntha Kapali and he has clearly deposed about the family settlement. Furthermore, DW-1 in his cross-examination has denied his knowledge about the amicable partition of the properties of Kailash Kapali. Similarly, in his deposition regarding the gift deed executed by Sagari in favour of the plaintiff has also not been denied. That apart, the age of ink in the signature of the plaintiff in the six pages of Exbt.8 appeared to be similar to other hand writing and did not appear to be a recent one as argued by the learned counsel of the defendants. Exbt.7 and 8 clearly recite that after the amicable family partition, delivery of possession of the share of each beneficiary was given. PWs 1 to 4 deposed in this regard. Issue No.(ii) has thus been decided in the affirmative. Exbt.7 and 8 clearly recite that after the amicable family partition, delivery of possession of the share of each beneficiary was given. PWs 1 to 4 deposed in this regard. Issue No.(ii) has thus been decided in the affirmative. As stated, the chhaham No.4 fell in the share of Sagari. According to the defendants, Sagari could not have any share to the agricultural land of Kailash Kapali. But such agricultural land is attracted by the gift deeds in question. Sagari had no competence to make the gift. It has been also contended that the judgment of TS No.98 of 1980 marked Exbt.1 is not binding upon the defendants as they are not party in that suit. It is undisputed that if the properties of Kailash Kapali was to be partitioned among his heirs taking recourse to the provisions of law and it should have been done as per the provisions of Daya Bhaga School of Hindu Law. But if the property was decided to be partitioned among the beneficiaries through amicable family settlement and if it was decided to give some properties to the widow of deceased brother, the law obviously cannot stand on the way of such partition. In a different way, the trial court has observed that if any of the surviving sons of Kailash Kapali disputed the partition, it ought to have been done on strict construct of inheritance law. But when it is done amicably, obviously, any portion of the property can be given to any beneficiary. This is how the partition was effected. This amicable partition effected by the heirs of Kailash Kapali has been questioned by the defendants. There cannot be any doubt that the judgment, Exbt.1, does not operate as res judicata so far as the defendants of the suit are concerned but it cannot be disputed that in the said suit, the validity of the gift deeds was put to close scrutiny. Having undertaken the legal test, the court came to the decision that the gift deeds are valid. Though that decision does not operate as res judicata in this case but the said judgment is a good piece of evidence on the matter in issue, as contended by the plaintiff. The family settlement in respect of the property of Kailash Kapali was held to be valid. Though that decision does not operate as res judicata in this case but the said judgment is a good piece of evidence on the matter in issue, as contended by the plaintiff. The family settlement in respect of the property of Kailash Kapali was held to be valid. The gift deeds made by Sagari are related to a portion of the land that came to her in the family settlement. It has been further held that as per the recitals of the gift deeds and the oral evidence on record, the plaintiff got possession of the land in question. It has been also proved that there had been some attempts by the defendants to dispossess the plaintiff from his jote land belonging to C schedule land. All other issues except issue Nos.8 and 9 have been decided in favour of the plaintiff. The prayer of the plaintiff for declaring his ?th share of the land left by his father described in schedule C-1 by a preliminary decree has been refused by the trial court. While deciding the issue No.9, the said issue has been discarded. As a result, the outcome of the suit can be gathered from the excerpts below: "Right, title, interest and possession of the plaintiff over the C schedule land as reflected in Khatian No.1391 marked Exbt.6 is hereby declared. In this regard, it is clarified that in view of the exbt.6, it does not appear that plaintiff has possession over the dag No.3650, 3184, 3166, 3167, 3677, 3810(P), 3805, 4108(P) and 3102 of the gift deed at present. The defendants are perpetually restrained from interfering with the peaceful possession of the plaintiff over the C schedule land." 5. Being aggrieved by the said judgment and decree dated 09.04.2006 delivered in TS No.10 of 2005 the defendants filed an appeal under Section 96 of the CPC being title Appeal No.42 of 2006. The said appeal was also dismissed by the Addl. District Judge, West Tripura, Agartala, Court No.3 holding that: "So, on analysis of the entire material, I have absolutely no hesitation to hold that the Ld. Court below had analysed and evaluated the entire case on the proper perspective and had arrived at the correct decision." 6. The said judgment and order dated 23.05.2007 passed in the title appeal No.42 of 2006 is under challenge in this appeal. 7. Mr. Court below had analysed and evaluated the entire case on the proper perspective and had arrived at the correct decision." 6. The said judgment and order dated 23.05.2007 passed in the title appeal No.42 of 2006 is under challenge in this appeal. 7. Mr. D. Chakraborty, learned senior counsel appearing for the appellants has contended that all the substantial questions of law would be addressed substantially if three questions are considered by this Court. (1) Whether Sagari Kapali wife of the pre-deceased son of Kailash Kapali had any right over the property left by the Kailash Kapali or in other way whether Sagari Kapali had right to estate under the Hindu Womens Right to Property Act, 1937 or to the B schedule land? (2) Whether agricultural land can be inherited by Sagari Kapali after death of Kailash Kapali? (3) Whether the memorandum of family settlement covered by Exbts.7 and 8 can grant any transferable right to Sagari Kapali for those being not registered? 8. Mr. Chakraborty, learned senior counsel for the appellants has submitted that Kailash Kapali, the predecessor in interest of the entire tract of land died sometime in the middle of May 1956 whereas the Hindu Succession Act, 1956 has come into effect w.e.f. 17.06.1956, after death of Kailash Kapali. Unless Sagaris right is covered by the provisions of Section 14(1) of the Hindu Succession Act, 1956, Sagari cannot have the title over the schedule-B land by way of inheritance. Mr. Chakrabaorty, learned senior counsel has further contended that by way of memoranda of settlement dated 4th Chaitra, 1377 B.S., Exbts.7 and 8, Sagari Kapali cannot get the transferable right over the Schedule-B land inasmuch as both the memoranda of settlements are mandatorily registrable under Section 17 (1) (b) of the Registration Act, 1908. He has also submitted that by admitting those documents in the evidence both the courts below have acted against the provisions of Section 49 of the Registration Act, 1908 whereby it has been provided that no document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall, inter alia, be received as evidence of any transaction affecting such property confer such power unless it has been registered. In support of his contention Mr. In support of his contention Mr. Chakraborty, learned senior counsel has referred a decision of the apex court in Nani Bai v. Gita bai Kom Rama Gunge reported in AIR 1958 SC 706 where it has been held that: "For partition in the latter sense of allotting specific properties or parcels to individual coparcener's, agreement amongst all the coparcener's is absolutely necessary. Such a partition may be effected orally, but if the parties reduced the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of section 17(1)(b)" 9. Mr. Chakraborty, learned senior counsel for the appellants has also referred a decision of the apex court in Kale and others v. Deputy Director of Consolidation and others reported in (1976) 3 SCC 119 where the apex court has held that the registration would be necessary only if the terms of family arrangement were reduced into writing. Mr. Chakraborty, learned senior counsel has referred another decision to buttress his argument on that aspect of the matter in K. G. Shivalingappa v. G. S. Eswarappa and others reported in (2004) 12 SCC 189 where the apex court has held as under: "In Nani Bai v. Gita Bai Kom Rama Gunge ( AIR 1958 SC 706 ), it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1)(b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of Section 17(1)(b) of the Indian Registration Act. This decision was followed in Shiromani and Ors. v. Hem Kumar and Ors., ( AIR 1968 SC 1299 ) and Roshan Singh v. Zile Singh ( AIR 1988 SC 881 ). In Sk. Sattar Sk. Mohd. This decision was followed in Shiromani and Ors. v. Hem Kumar and Ors., ( AIR 1968 SC 1299 ) and Roshan Singh v. Zile Singh ( AIR 1988 SC 881 ). In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996)6 SCC 373 , after analysing the judgments, referred to above, this Court observed: (SCC p.382, para 27) "Partition, specially among the coparcener's, would be a "Transfer" for purposes of Registration Act 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge ( AIR 1958 SC 706 ) and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would all within the mischief of Section 17(1)(b) of the Registration Act under which the document is compulsorily registrable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in Siromani v. Hemkumar ( AIR 1968 SC 1299 ) and Roshan Singh v. Zile Singh ( AIR 1988 SC 881 )."(Emphasis added) 10. In Sardar Singh v. Krishna Devi (Smt) and another reported in (1994) 4 SCC 18 the apex court has held as under: "5. Section 49 declares the effect of non-registration that no document required under Section 17 to be registered shall have an effect in any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered. A conjoint reading of Sub-Section 17 (1) (b) and Section 49 of the Registration Act establishes that a non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish in present or future any right, title or interest, whether vested or contingent to or in any Immovable property of the value of Rs.100 and above, shall compulsorily be registered, otherwise the instrument does not affect any Immovable property comprised therein or shall not be received as evidence of any transaction affecting such immovable property, this Court in Lachhman Dass v. Ram Lal and Anr. (1989)3 SCR 250, 259), held the purpose of registration that: In other words, it is necessary to examine not so much what it intends to do but what it purports to do. The real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected. Section 17 of the said Act being a disabling section, must be construed strictly. Therefore, unless a document is clearly brought within the provisions of the section, its non-registration would be no bar to its being admitted in evidence." 11. Mr. Chakraborty, learned senior counsel has submitted that in view of the decision of the Federal Court in the matter of the Hindu Womens Rights to Property Act, 1937 reported in AIR 1941 FC 72 it has been held that: "The Court is therefore of opinion that the answers to the questions comprised in the special reference are as follows: (1) The Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938, (a) do not operate to regulate succession to agricultural land in the Governors' Provinces; and (b) do operate to regulate devolution by survivorship of property other than agricultural land. (2) The subject of devolution by survivorship of property other than agricultural land is included in entry No. 7 of List 3, the Concurrent List. The Court will report to His Excellency accordingly." (Emphasis added) 12. Thus, Mr. Chakraborty, learned senior counsel has contended that the Hindu Womens Rights to Property Act, 1937 and the Hindu Womens Rights to Property (Amendment) Act, 1938 do not operate to regulate succession to the agricultural land in the governors provinces. Thus, the agricultural land that has been devolved to Sagari Kapali cannot be inherited by means of the Hindu Womens Rights to Property Act, 1937. 13. While refuting such submissions of Mr. Chakraborty, learned senior counsel for the appellants, Mr. S. Deb, learned senior counsel appearing for the respondents has submitted that the interpretation as extended by Mr. Chakraborty, learned senior counsel cannot be tenable for having been contrasted with the settled position of law. Mr. 13. While refuting such submissions of Mr. Chakraborty, learned senior counsel for the appellants, Mr. S. Deb, learned senior counsel appearing for the respondents has submitted that the interpretation as extended by Mr. Chakraborty, learned senior counsel cannot be tenable for having been contrasted with the settled position of law. Mr. Deb, learned senior counsel for the respondents has also made reference to the Federal Court decision reported in AIR 1941 FC 72 where it has been held that: "14. There is this also to be said. The underlying purpose of Act 18 is plainly stated in its Preamble: "Whereas it is expedient to amend the Hindu law to give better rights to women in respect of property." It is therefore a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief; and as such it ought to receive a beneficial interpretation: If the enactment be manifestly intended to be remedial, it must be so construed as to give the most complete remedy which the phraseology will permit: [Gover's Case, Coal Economising Gas. Co., In re. (1875) 1 Ch D 182 at page 198]. 15. It may well be that the Indian Legislature, if it had been able to pass the Act while it still possessed plenary powers, would have desired that the "better rights" which it sought to give to Hindu women should extend to agricultural land as well as to other property; but it cannot be supposed that when, after restriction of its powers, it passed an Act with the above Preamble, it did not intend to make the enactment as effective as it was within its power to make it. It was contended before the Court that the passing of the Act with a restricted effect might result in some cases in a widow being deprived of advantages which she possessed under the pre-existing law. It was contended before the Court that the passing of the Act with a restricted effect might result in some cases in a widow being deprived of advantages which she possessed under the pre-existing law. The examples adduced by the Advocate-General of India were by no means conclusive, and it should not be assumed that the Court accepts the contention; but even if it were true that an Act intended to be remedial, though possibly limited in scope, was found in a small minority of cases to prejudice rather than to benefit those whom it was intended to help, this would be no reason why the Court should not adopt the construction which is on the whole best calculated to give effect to the manifest intention of the Legislature." The opinion as rendered by the Federal Court is extracted having regard, to the context of that case, where the Hindu Womens Rights to Property Act, 1937 operates by virtue of the Governors assent not by way of the central legislatures so far the agricultural land is concerned. 14. Having referred to a decision of the apex court in Vaijanath and others v. Guramma and another reported in (1999) 1 SCC 292 , Mr. Deb, learned senior counsel has submitted that the Federal Court on examination the question of legislative competence of the central legislature to enact the Hindu Womens Rights to Property Act, 1937 so far the agricultural land is concerned held that under Entry 21 of List II which applied to the provincial legislature, laws in respect to agricultural land could only be enacted by the provincial legislature. The Federal Court has also observed that while the Act purports to deal in quite general terms with the "property" or "separate property" of a Hindu dying intestate, or his "interest in joint family property"; it does not distinguish between the agricultural land and other properties and is therefore not limited in terms to the latter. However, looking to the aspect of competence of the Central Legislature to enact such a law the word 'property' will have to be suitably construed. However, looking to the aspect of competence of the Central Legislature to enact such a law the word 'property' will have to be suitably construed. "When legislature with limited and restricted powers makes use of such a word of such a wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other." The Federal Court, therefore, restricted the application of the Hindu Women's Rights to Property Act, 1937 by excluding agricultural lands from its purview. However, in Vaijanath it has been also held that a restricted interpretation was given to the original Hindu Womens rights to Property Act, 1937. The central entries in the Government of India Act, 1935 which excluded the legislative competence of the central legislature over agricultural land. Such is not the case in respect of the Hindu Womens rights to Property Act, 1937 as enacted by the State legislature of the State of Hyderabad as restriction would even imply in that case. 15. The crux that follows is that if the State legislature or the competent instrumentality enacts the Hindu Womens rights to Property Act, 1937 it would be applicable to the agricultural land. 16. In respect of the application of the provisions of Section 17(1)(b) of the Registration Act, 1908 in respect of the memoranda of settlement as stated, Mr. Deb, learned senior counsel has referred a decision of the apex court in Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate reported in (1996) 6 SCC 373 where it has been held that: "22. This Section contemplates transfer of property by a person who has a title in the said property to another person who has no title. A family arrangement, on the contrary, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a "conveyance of property" from a person who has title to it to a person who has no title. 23. This Court in Kale and Ors. v. Deputy Director of Consolidation and Ors. (1976)3 SCC 119 and Ram Charan Das v. Girja Nandini Devi and Ors.( AIR 1966 SC 323 , also took the same view and held that a "Family Arrangement" proceeds on the assumption that the parties, in whose favour the arrangement was made and who, under that arrangement, come to have definite and positive share in the property, is not a transfer but is only a recognition of the title already existing in them. It was also pointed out by this Court in Tek Bahadur Bhujil v. Debt Singh Bhujil and Ors.( AIR 1966 SC 292 ), as also in an earlier decision in Ram Charan Das v. Giria Nandini Devi and Ors. (supra), that it was not necessary to show that every person taking a benefit under a Family Arrangement had a share in the property; it was enough if they had a possible claim or even if they are related, a semblance of a claim. Gajendragadkar, CJ, in V.I. Sarin v. Ajit Kumar Poplai [1966] 1 SCR 349 observed that, "the true effect of partition was that each coparcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family." (Emphasis added) 17. It has been further held in Sk. Sattar Sk. Mohd. Choudhari that if a partition of the joint family property takes place by act of parties, it would not, as seen above, be treated as "transfer" within the meaning of Section 5 of the Transfer of Property Act for obvious reason. But if a suit for partition is filed and the partition is brought about through a decree of the Court, it would amount to a "Transfer" vide Section 2(d), which specifically excludes transfers by operation of law or under a decree or order of a Court. But if a suit for partition is filed and the partition is brought about through a decree of the Court, it would amount to a "Transfer" vide Section 2(d), which specifically excludes transfers by operation of law or under a decree or order of a Court. Section 5, which, in a way, defines transfer, is, therefore, overridden by Section 2(d) of the Act. 18. As sequel to the proposition of Sk. Sattar Sk. Mohd. Choudhari, Mr. Deb, learned senior counsel has revisited Kale and others v. Deputy Director of Consolidation and others where the apex court has held in the passage at paragraph-10, as extracted, as under: "10. In other words to put the binding effect and the essentials of a family settlement in a concreted form, the matter may be educed 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 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 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." (Emphasis added) 19. Having reference to Kale and others v. Deputy Director of Consolidation and others, Mr. Deb, learned senior counsel has submitted that family settlement even if was not registered it would operate as a complete estoppel. As such, the legal heirs of the other coparcener's cannot question the settlement as arrived between the three sons and the wife of the pre-deceased son of Kailash Kapali. 20. Having referred to Nani Bai, Mr. Deb, learned senior counsel has contended that the change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be evidenced by a document. He has further contended that if the document does not evidence any partition by metes and bounds, that is to say, the partition by itself, it does not come within the purview of section 17(1)(b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purport or operate to do any of the things referred to in that section. Hence, in so far as the documents referred to above are evidence of partition only, they are not compulsorily registrable under section 17(1)(b), and would, therefore, not come within the mischief of section 49 which prohibits the reception into evidence of any document "affecting Immovable property". It must, therefore, be held that those memoranda of settlement have rightly been received in evidence for that limited purpose. In this regard, Mr. Deb, learned senior counsel has also referred a decision of the apex court in Maturi Pullaiah and Anr. v. Maturi Narasimham and Ors. It must, therefore, be held that those memoranda of settlement have rightly been received in evidence for that limited purpose. In this regard, Mr. Deb, learned senior counsel has also referred a decision of the apex court in Maturi Pullaiah and Anr. v. Maturi Narasimham and Ors. reported in AIR 1966 SC 1836 where the apex court has held as under: "17. Briefly stated, though conflict of legal claims in present or in future if generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it." 21. In Halsburys Laws of England, 3rd Edn., Vol.17 at pp. 215-216 it has been observed as under: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term 'family arrangement' is applied. The principles the Courts should bear in mind in appreciating the scope of such family arrangement are stated thus: Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements. This passage indicates that even in England Courts are averse to disturb family arrangements but would try to sustain them on broadest considerations of the family peace and security. This concept of a "family arrangement" has been accepted by Indian Courts but has been adapted to suit the family set up of this country which is different in many respects from that obtaining in England. As in England so in India, Courts have made every attempt to sustain a family arrangement rather then to avoid it, having regard to the broadest considerations of family peace and security." 22. Thus, Mr. Deb, learned senior counsel has contended that the Exbts.7 and 8 have evidenced the partition of the land that had taken place prior to the memoranda of settlement were entered into by the legal heirs of Kailash Kapali and there was no contemporaneous challenge against the said family arrangement. Therefore, it cannot be proposed that the Exbts.7 and 8 are mandatorily registrable under Section 17(1)(b) of the Registration Act, 1908. 23. In response to the ground raised by Mr. D. Chakraborty, learned senior counsel that Sagari Kapali cannot have any right over the agricultural land, Mr. Deb, learned senior counsel has contended that such submission is entirely retrograde and contrasts to the very object of the Hindu Womens Right to Property Act, 1937. He has pointed out that by means of Union Territories (Laws) Act, 1950 for the State of Tripura, the Hindu Womens Rights to Property Act, 1937 has been extended w.e.f. 16.04.1950 even though the said Act has been enacted by the Parliament but the said Act has been so enacted for the Union Territories inasmuch as all function of the Union Territories the Central Government is vested with all powers by the Constitution. As such, it has all features of the State Act. Therefore, the inheritance to the agricultural land cannot be excluded inasmuch as there is no provision in the Hindu Womens Rights to Property Act, 1937 that a Hindu woman cannot inherit the agricultural land. Thereafter, Mr. As such, it has all features of the State Act. Therefore, the inheritance to the agricultural land cannot be excluded inasmuch as there is no provision in the Hindu Womens Rights to Property Act, 1937 that a Hindu woman cannot inherit the agricultural land. Thereafter, Mr. Deb, learned senior counsel has submitted that Sagari Kapali, after death of Kailash Kapali by means of the proviso to Section 3 of the Hindu Womens Rights to Property Act, 1937 as the widow of the pre-deceased son, has inherited in the like manner as a son if there is no son surviving of such predeceased son and has inherited in the like manner as a sons son if there is a surviving son or son of such pre-deceased son. Therefore, when the Hindu Succession Act, 1956 came into effect, Sagari has to be treated as possessive over the land left by Kailash Kapali, either in actual possession or in the constructive possession. 24. Finally, Mr. Deb, learned senior counsel has submitted that with the advent of Hindu Succession Act, 1956, the property on which Sagari Kapali had right to estate and possession has become her absolute property as Section 14(1) of the Hindu Succession Act, 1956 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner. Thus, the impugned judgment does not suffer from any infirmity. 25. While appreciating the rival contentions of the learned counsel appearing for the parties, this Court has no hesitation to hold that a distinction should be made between a document containing the terms of a family settlement/arrangement made and the document partitioning joint property by itself. If the document after the family arrangement had already been made, for the purpose of record or for information of the court or for making necessary mutation, such documents or the memorandum itself do not create or extinguished any right in the immovable properties and therefore do not fall within the mischief of Section 17(2)(b) of the Registration Act and hence, are not compulsorily registrable. The members who may be the parties to the family arrangement must have some antecedents title, claims or interest or even a possible claim in the property which is acknowledged by the parties to the settlement. The members who may be the parties to the family arrangement must have some antecedents title, claims or interest or 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 relinquished all its claims or titles, either the full or part thereof, in favour of such a person and acknowledged may be the sole owner, then the undisputed title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same. [Kale and others v. Deputy Director of Consolidation and others: (1976) 3 SCC 119 ]. So that no controversy takes its sweep, this Court for a very limited purpose has examined the nature of the documents, the memoranda of settlement, Exbts.7 and 8. It appears that the documents have been entered into not for the purpose of partition or for allotting specific properties or parcel to the individual coparcener's or for the purpose of affecting exclusive title or for extinguishing right on a particular property by partition. But it reads that the parties to the memoranda of settlement had already on consensus settled the share of the property left by Kailash Ch. Kapali alias Bhowmik and taken possession of the respective part exclusively and for the purpose of recording them the memoranda, Exbts.7 and 8 have prepared and executed. 26. In Maturi Pullaiah and another v. Maturi Narasimham and others reported in AIR 1966 SC 1836 it has been held that: "16. This Court in Sahu Madho Das v. Mukand Ram, 1955-2 SCR 22 at pp. 42-43; (S) AIR 1955 SC 481 at pp. 490-491), defined the scope of a family arrangement and its ingredients. That appeal arose out of a suit filed by a reversioner for the recovery of the properties alienated from persons claiming under the widow, after the succession opened. The defendants relied upon an arrangement between the widow and her daughters grandsons where under the widow gave certain properties to them absolutely. In dealing with the question whether such an arrangement would amount to a valid family arrangement, Vivian Bose. The defendants relied upon an arrangement between the widow and her daughters grandsons where under the widow gave certain properties to them absolutely. In dealing with the question whether such an arrangement would amount to a valid family arrangement, Vivian Bose. J., speaking for the Court, observed: "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 recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. 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 claims 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 number (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] 27. After careful consideration, this Court is of the view that Nani Bai v. Gita bai Kom Rama Gunge does not have any manner of application in the present controversy. What has been held in Sardar Singh v. Krishna Devi (Smt) and another has immense relevance in the present controversy. After careful consideration, this Court is of the view that Nani Bai v. Gita bai Kom Rama Gunge does not have any manner of application in the present controversy. What has been held in Sardar Singh v. Krishna Devi (Smt) and another has immense relevance in the present controversy. In Sardar Singh it has been held that "Each case must be considered from its own facts and circumstances; the pre-existing relationship of the parties: the rights inter vires and the interest or rights they claimed and decided in the award and the legal consequences." It has been also held there that "A conjoint reading of Sub-section 17(1)(b) and Section 49 of the Registration Act establishes that a non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish in present or future any right, title or interest, whether vested or contingent to or in any Immovable property of the value of Rs.100 and above, shall compulsorily be registered, otherwise the instrument does not affect any Immovable property comprised therein or shall not be received as evidence of any transaction affecting such immovable property. The nature of Exbts.7 and 8 does not fall within such category of non-testamentary instrument and hence it cannot be said that Exbts.7 and 8 are mandatorily registrable in terms of Section 17(1)(b) of the Registration Act, 1908 or their admission under Section 49 of the Registration Act, 1908 are prohibited. The proviso to Section 49 of the Registration Act, 1908 provides that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered, may be received as evidence, of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. As such, even though Exbts.7 and 8 are unregistered documents but as evidence of collateral transaction those may be admitted in the evidence. Hence, there is no infirmity in admission of the memoranda of family settlement, Exbts.7 and 8. 28. In Sk. Sattar Sk. Mohd. As such, even though Exbts.7 and 8 are unregistered documents but as evidence of collateral transaction those may be admitted in the evidence. Hence, there is no infirmity in admission of the memoranda of family settlement, Exbts.7 and 8. 28. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate the apex court has succinctly laid down that "A family arrangement, on the contrary, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a "conveyance of property" from a person who has title to it to a person who has no title." 29. Sagari Kapali alias Bhowmik has got the title in view of the Hindu Womens Right to Property Act, 1937 read with Union Territories (Laws) Act, 1950 for the State of Tripura, on the day when Kailash Kapali alias Bhowmik expired by virtue of the operation of the provision of Section 3 of the Hindu Womens Right to Property Act, 1937 as adopted for the State of Tripura by the Union Territories (Laws) Act, 1950 w.e.f. 16.04.1950. Sagari Kapali alias Bhowmik acquired the right to estate over the share of the pre-deceased son of Kailash Kapali, Sagaris husband, and it is not in dispute that she was in possession of the properties left by Kailash Kapali alias Bhowmik. Even if the possession were not direct or actual, the apex court in Mangal Singh and Ors. v. Shrimati Rattno and Anr. reported in AIR 1967 SC 1786 has held as under: "6. Section 14(1) of the Act is as follows :- "14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. v. Shrimati Rattno and Anr. reported in AIR 1967 SC 1786 has held as under: "6. Section 14(1) of the Act is as follows :- "14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation-In this sub-section, "property" includes both movable and immovable, "property acquired" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act." 7. The dispute in the case has arisen, because this section confers the right of full ownership on a Hindu female only in respect of property possessed by her, whether acquired before or after the commencement of the Act; and, in the present case, admittedly, the plaintiff had been dispossessed in the year 1954 and was not able to recover possession from the defendants-appellants until her death in the year 1958. It was urged on behalf of the appellants that, in order to attract the provisions of Section 14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that, even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights, in that property still exist and, in exercise of those ownership rights. she is capable of obtaining actual possession of it. It appears to us that, on the language used in Section 14(1) of the Act, the latter interpretation must be accepted." 30. In V. Tulasamma and Ors. v. Sesha Reddy (Dead) by Lrs. she is capable of obtaining actual possession of it. It appears to us that, on the language used in Section 14(1) of the Act, the latter interpretation must be accepted." 30. In V. Tulasamma and Ors. v. Sesha Reddy (Dead) by Lrs. reported in (1977) 3 SCC 99 the apex court has held that: "The words "possessed by" used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title." 31. In Sri Ramakrishna Mutt Rep. by Manager v. M. Maheswaran and Ors. reported in (2011)1 SCC 68 it has been held that: "13. Reference may be made to the decision rendered by this Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva ( AIR 1959 SC 577 ), where this Court expressed as under: The opening words "any property possessed by a female Hindu" obviously mean that, to come within the purview of the section, the property must be in the possession of the female concerned at the date of [the] commencement of the Act. They clearly contemplate the females possession when the Act came into force. That possession might have been either actual or constructive or in any form, recognised by law, but, unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word possession in its widest connotation, when the Act came into force, the section would not apply. (Ed. As observed in Gostha Behari v. Haridas Samanta, AIR 1957 Cal 557 , p.559, para 12) (Emphasis supplied). (Ed. As observed in Gostha Behari v. Haridas Samanta, AIR 1957 Cal 557 , p.559, para 12) (Emphasis supplied). Similar view was expressed in Dindayal v. Rajaram (1970)1 SCC 786 , where the constructive possession of a female Hindu was recognised for the purposes of application of Section 14(1) of the Hindu Succession Act. Therefore, even this contention fails." 32. In view of those decisions of the apex court no room has been left for any confusion that Sagar is right to estate left by Kailash Kapali has become absolute by operation of Section 14(1) of the Hindu Succession Act, 1956. Therefore, Sagari Kapali alias Bhowmik had acquired the absolute right to transfer. Thus, the gift deed as executed by Sagari Kapali alias Bhowmik cannot be held as executed by a person having no competence to transfer. 33. Having held so, this Court finds no merit in this appeal and accordingly the same is dismissed. There shall be no order as to costs.