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2021 DIGILAW 353 (MP)

Jawahar Agrawal v. Manish Agrawal

2021-03-12

ANJULI PALO

body2021
ORDER : Anjuli Palo, J. 1. This appeal has been preferred by the appellants/defendants being aggrieved by the judgment and decree dated 05.02.2019 passed by learned 3rd Additional District Judge, Betul in C.A. No. 116/2017 arising out of the judgment and decree dated 14.11.2017 passed by learned 1st C.J.-I, Betul in C.S. No. 500004-A/2016 whereby the lower Appellate Court partly allowed the appeal filed by the plaintiffs (respondents) and dismissed the cross objection preferred by the appellants 1 and 2 (defendants 1 and 2). The lower Appellate Court held that that the plaintiffs/respondents are in legal possession of the plot admeasuring 2400 square feet and the house constructed in first floor of the aforesaid plot as well as a plot on east side adjacent to the aforesaid plot admeasuring 3200 square feet situated on the east of the aforesaid plot. The lower Appellate Court also granted permanent injunction in favour of the plaintiff restraining the defendants 1 and 2 from dispossessing the plaintiffs/respondents from the aforesaid property without proper course of law. 2. It is not in dispute that the plaintiff No. 1 is husband of the plaintiff No. 2. The defendants 1 and 2 are father and mother of the plaintiff No. 1. Defendants 3 and 4 are married sisters of the plaintiff No. 1. 3. The plaintiffs have filed the suit for declaration of title and permanent injunction for the house constructed on the plot situated at Nazul Sheet No. 19, Plot No. 1/18 layout Plot No. 1/62 admeasuring 2400 and plot admeasuring 3200 square feet situated at Layout Plot No. 1/87 restraining the appellants/defendants from interfering with their possession over the suit property and from transferring the same. 4. The plaintiffs pleaded that the defendants 1 and 2 with them were residing jointly with them at Betul as Hindu Undivided Family in the suit house. However six months prior to filing of the suit on 13.10.2015, the defendants 1 and 2 had left Betul to reside with defendant No. 3 Manisha and since then they are residing with her. The appellant No. 1/defendant No. 1 is Karta of HUF. He purchased a plot admeasuring 2400 square feet situated at Nazul Sheet No. 19, plot number 1/18 layout number 1/62 from Smt. Malti. A house was constructed on the ground floor on 1200 square feet by the defendant No. 1. The appellant No. 1/defendant No. 1 is Karta of HUF. He purchased a plot admeasuring 2400 square feet situated at Nazul Sheet No. 19, plot number 1/18 layout number 1/62 from Smt. Malti. A house was constructed on the ground floor on 1200 square feet by the defendant No. 1. Thereafter, the plaintiff with the consent of his father, got construction of first floor on the above construction from his own income. The plaintiff No. 1 with the consent of his father also got construction of a Bedding Room, X-ray operating room, etc. on 800 sq. ft. in the said plot on the ground floor out of his own income. The defendant No. 2 from the income of the joint family also purchased another plot admeasuring 3200 sq. ft. situated at Nazul Sheet No. 19, plot number 1/18, layout number 1/87 in the name of defendant No. 2 on 22.01.1996. The said plot is also in possession of the plaintiffs. The taxes of the suit properties are being paid by the respondents. 5. It is averred that on 12.06.2015, the defendant No. 1 executed a Family Settlement deed (Exhibit P-18) before the witnesses by which the suit properties have been given to the plaintiff No. 1 and simultaneously the original documents were also handedover to the plaintiff No. 1/respondent No. 1. Thereafter on 13.10.2015 the defendants 1 and 2/appellants 1 and 2 shifted to Nagpur to reside with their daughter-defendant No. 3. Since, then, the defendants 1 and 2 are residing at Nagpur with the defendant No. 3. The defendant No. 1 sold certain other properties in January, 2016. The plaintiff No. 1 received information that the defendant No. 1 is trying to sell the suit property which is in possession of the plaintiffs, hence, plaintiffs filed the suit seeking the relief of declaration of title and permanent injunction. 6. The defendants 1 and 2 filed their written statement. A preliminary objection was taken by them that the defendant No. 1 purchased the plot in question in the year 1990 from his own income and constructed a house thereon. The plaintiffs have valued the suit properties on lesser side and hence the court fee has not been paid properly. The family settlement deed (Exhibit P-18) does not contain the signature of the defendant No. 1 but plaintiffs have fabricated the document by putting forged signature on it. The plaintiffs have valued the suit properties on lesser side and hence the court fee has not been paid properly. The family settlement deed (Exhibit P-18) does not contain the signature of the defendant No. 1 but plaintiffs have fabricated the document by putting forged signature on it. The said document is neither stamped nor registered. It is further stated that all the constructions on the suit land has been made by the defendant No. 1 by his own income. Therefore, the defendants/appellants prayed for dismissal of the suit filed by the respondents/plaintiffs. 7. The trial Court vide impugned judgment and decree dated 14.11.2017 held that the defendants 1 and 2 are rightful owners of the suit properties. However, the suit was partly allowed in favour of the plaintiff and also held that on the basis of the family settlement deed (Exhibit P-18) the plaintiffs have not acquired any right or title over the suit property because it is unregistered and stampeded document. The trial Court found that one property i.e. plot admeasuring 2400 sq ft was in joint possession of the plaintiffs and defendants 1 and 2. Hence, permanent injunction was granted to the effect that the defendants shall not dispossess the plaintiffs from the house constructed on the plot admeasuring 2400 sq ft without sanction of law. 8. The respondents/plaintiffs challenged the aforesaid findings before the Lower Appellate Court on the grounds that the plaintiffs are residing in the suit house for eighteen years and running a dental clinic on it. It was also contended that the trial Court has wrongly held that on the basis of the family settlement deed, respondents (plaintiffs) have not acquired any title over both the suit lands because the disputed plot admeasuring 3200 sq ft was purchased from the income of joint hindu family. 9. The lower Appellate Court vide impugned judgment and decree partly allowed the appeal and dismissed the cross-objection filed by the appellant/defendants. Lower Appellate Court held that the plaintiffs are in legal occupation of the plot admeasuring 2400 sq ft situated at Nazul Sheet No. 19, plot No. 1/18, layout plot number 1/62 and also the plot admeasuring 3200 sq ft situated on the east side of the aforesaid plot. Learned Lower Appellate Court also held that Family Settlement Deed (Exhibit P-18) executed by the defendant No. 1/appellant No. 1 for both the properties. Learned Lower Appellate Court also held that Family Settlement Deed (Exhibit P-18) executed by the defendant No. 1/appellant No. 1 for both the properties. This fact was found to be proved by the evidence of PW-3 (Raj Kumar) and PW-4 (Vivek). The lower appellate Court also granted decree of permanent injunction restraining the defendants from the possession of the plaintiffs over the suit properties i.e. construction made on first floor of the plot admeasuring 2400 square feet and a plot admeasuring 3200 sq ft, without sanction of law. The lower appellate Court also dismissed the cross-objection filed by the appellants/defendants by which the relief was sought to set aside the finding of the trial Court that the plaintiff was entitled to permanent injunction and impleadment of parties and valuation of the suit was found to be correct. 10. Impugned judgment and decree has been challenged by the appellants on the grounds that both the courts below have ignored the pleading with regard to injunction in the plaint and only relied on the statements of the plaintiff. Suit was wrongly valued in the lesser side. Finding regarding right created by the family arrangement is perverse. Thus, the appellants prayed to reverse the impugned judgment and decree dated 05.02.2019. 11. The following substantial questions of law have been proposed by the appellants in this appeal: "(i) Whether the lower Appellate Court was justified in accepting the family arrangement & reversing the finding reached by the learned trial Court, it being an unstamped & unregistered document? (ii) Whether, the courts below did not fall in substantial error while dismissing the counter claim for possession and valuation, even when not challenged in evidence? (iii) Whether, the rights created by the family arrangement could have been looked into by the Courts being unregistered and unstamped document, resulting finding to be perverse? (iv) Whether learned courts below did not go deep into the matter while rejecting the pecuniary jurisdiction where the valuation of property was much above the prescribes limit? (v) Whether the findings reached by the Courts below being contrary to the material on record has not resulted in it being perverse?" 12. Heard learned counsel for the parties and perused the record. The Lower Appellate Court has held that the defendant No. 1/appellant No. 1 has executed Family Settlement Deed (Exhibit P-18) in favour of the plaintiff No. 1, is found to be proved. Heard learned counsel for the parties and perused the record. The Lower Appellate Court has held that the defendant No. 1/appellant No. 1 has executed Family Settlement Deed (Exhibit P-18) in favour of the plaintiff No. 1, is found to be proved. It was also found proved that the parties are members of Hindu Undivided Family and the respondent No. 1 was Karta of the Family. It was also held that after 1995-96, the defendant No. 1/appellant No. 1 was also included as earning member of the family. The lower appellate Court also held that in the capacity of Karta of the HUF, the appellant No. 1/defendant No. 1 purchased many properties in the year 1997 and 2007 and sold some properties in the year 1997 and 1999. 13. The family settlement deed is Exhibit P-18. The objection of the counsel for the appellants is that by the said document property has been transferred but the same is neither stamped nor registered, hence, it is inadmissible. 14. To know the nature of the document i.e. Family Settlement Deed' it is necessary to scrutinise the recital of the deed. In this regard, it is apt to reproduce the contents in page 2 of the family settlement deed (as has been reproduced by the lower appellate Court): ^^esjs uke ls fLFkr utwy Hkwfe ij cuk edku tks fd x.ks'k okMZ cSrwy ¼floy ykbZu cSrwy½ esa fLFkr utwy 'khV uacj 19 IykWV uacj 1@18 ,oa ysvkmV IykWV uacj 1@62 ,oa blls yxk;r ds uke ls utwy 'khV uacj 19 IykWV uacj 1@18 ,oa ysvkmV uacj 1@87 dh Hkwfe dks vius iq= MkW- euh"k vxzoky dks mi;ksx ,oa miHkksx gsrq nh xbZ gS^^A ^^esjk flfoy ykbaZl esa fLFkr laiw.kZ edku rFkk mls yxk gqvk IykWV esjs iq= MkW euh"k ,oa iq=o/kq MkW- euh"kk ds mi;ksx esa izkjaHk ls jgk gS vkSj ikfjokfjd O;OkLFkk ds rgr eSusa vius iq= ,oa viuh cgw dks ns Ø; dh xbZ vU; laifŸk ij esjk iq= ,oa cgw dksbZ gLrk{kj ugha djsaxs vkSj esjs vU; ifjokj ds lnL; esjs flfoy ykbZu esa fLFkr edku ,oa mlls yxh Hkwfe esa dksbZ gLr{ksi ugah djsxsaA Hkfo"; esa laifŸk dks ysdj dksbZ fookn u gks blfy, eSusa ;g ikfjokfjd O;oLFkk i= xokgksa ds le{k fcuk ncko o fcuk ykyp ds fy[k fn;k tks fd lgh gS^A 15. From perusal of the recital of the aforesaid document, it is apparent that no transaction of the properties in question has been made by the said document. But the aforesaid document has been executed only for remembrance of the parties with regard to use and enjoyment of the properties by the plaintiffs which was already in their possession. It is apparent that the plaintiffs were already enjoying the aforesaid properties and only a clarity has been shown by the family settlement deed for the purpose of avoiding any kind of confusion in future. Hence, no right over the property is extinguished or created by the said document. The lower appellate Court after considering the evidence on record and testimonies of Vivek (PW-4) and other witnesses, found that the plaintiff No. 1 has been in possession and using the disputed properties continuously since 1995-96 for the purpose of his residence and his profession. It was also found proved that the defendant No. 1 has executed Family Settlement Deed (Exhibit P-18) in favour of the plaintiff No. 1 in front of Raj Kumar (PW-4) and Vivek (PW-3). 16. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: "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. 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. 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." 17. In the case of Kale and Others v. Deputy Director of Consolidation and others, (1976) 3 SCC 119 in paragraph 10 it has been observed by Hon'ble the Supreme Court as thus: "10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: "(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement 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) of the Registration Act and is, therefore, not compulsorily registrable; 18. It is well settled in law that if a family settlement does not create or extinguish any rights in immovable property and merely recognises antecedent title of the same kind, the same does not require registration. It is well settled in law that if a family settlement does not create or extinguish any rights in immovable property and merely recognises antecedent title of the same kind, the same does not require registration. [See: Tek Bahadur Bhujil vs. Debi Singh Bhujil and others, AIR 1966 SC 292 , Ram Charan Das vs. Girja Nandini Devi and others, AIR 1966 SC 323 , Kale and Others v. Deputy Director of Consolidation and Others, AIR 1976 SC 807 and Roshan Singh and Others v. Zile Singh and Others, AIR 1988 SC 881 and Khushi Ram and Others v. Nawal Singh and Others, Civil Appeal No. 5167/2010 decided on 22.2.2021] 19. The findings recorded by the lower Appellate Court with regard to execution of Family Settlement, right of possession of the respondents 1 and 2 over the suit property are based on meticulous appreciation of evidence on record which by no stretch of imagination can be said either to be perverse or based on no evidence. Learned counsel for the appellant is unable to dislodge the aforesaid findings of fact. 20. Even otherwise, the jurisdiction of this Court to interfere with the findings of fact under Section 100 of the Code of Civil Procedure is well defined by catena of decisions of the Supreme Court. This Court cannot interfere with the finding of fact until or unless the same is perverse or contrary to material on record. [See: Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009) 5 SCC 264 , Hafazat Hussain v. Abdul Majeed and Others, (2011) 7 SCC 189, Union of India v. Ibrahim Uddin and Another, (2012) 8 SCC 148 , D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC 158 , Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288 and Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7 SCC 173 ] 21. For the aforementioned reasons, no substantial question of law arises for consideration in the instant appeal. Accordingly, the same is hereby dismissed.