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2021 DIGILAW 529 (HP)

Jodha Nand v. Moti Lal & Ors.

2021-08-06

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The plaintiff instituted a Civil Suit bearing No. 7-1 of 2004, before the court of the learned Civil Judge (Senior Division), District Kinnaur, H.P. In the afore civil suit, he claimed rendition of a decree for permanent prohibitory injunction, for restraining the defendants, from further raising construction over the vacant portion of the suit land comprised in Khasra No.1036, measuring 0-00-82 hectare, Kahta Khatauni No. 97/159, situated in Mauza Kashmir, Tehsil Kalpa, District Kinnaur, H.P. Furthermore, the construction raised upon the vacant portion of the suit land was prayed to be demolished, through the making a decree for mandatory injunction, vis-a-vis, the plaintiff, and, against the defendant. The learned Civil Judge (Senior Division) concerned, decreed the plaintiff's suit. 2. The defendant Moti Lal, became aggrieved, from the afore made verdict by the learned Civil Judge (Senior Division) concerned, and, for ventilating his grievance, he reared thereagainst a Civil Appeal bearing No. 37 of 2005, before the learned First Appellate Court. The learned First Appellate Court modified the judgement and decree as made by the learned trial Court to the extent that the plaintiff, was declared entitled to a decree of permanent prohibitory injunction, for restraining the defendant No.1 from raising any construction, over the vacant portion of the suit land or any part of it, and, also from further making any additions and alterations thereons, hence uptil the suit property is partitioned by metes and bounds. Further, the learned First Appellate Court interfered with the decree of mandatory injunction as became accorded to the plaintiff by the learned trial Court. Nonetheless, the learned First Appellate Court in the operative part of its verdict, made an order, that the structure already raised on the suit land, shall be subject to the relevant adjustment, at the time of partition of the suit land, and, that for the afore purpose, the party which has raised construction upon the vacant portion of the suit land, shall have no right to claim any compensation or any other relief in the event of demolition or allotment to another party. 3. The plaintiff now represented by his legal heirs, is aggrieved from the afore made decision by the learned First Appellate Court, upon, Civil Appeal No. 37 of 2005, and, for ventilating his grievance, he reared the extant Regular Second Appeal before this Court. 4. 3. The plaintiff now represented by his legal heirs, is aggrieved from the afore made decision by the learned First Appellate Court, upon, Civil Appeal No. 37 of 2005, and, for ventilating his grievance, he reared the extant Regular Second Appeal before this Court. 4. When the appeal came up for admission, this Court, on 26th July, 2011, hence, admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the learned lower Appellate Court has erred in ignoring the writings Ex.PW1/B and Ex.PW1/C? 2. Whether the learned lower Appellate Court has misconstrued and misinterpreted the evidence in declining the relief of mandatory injunction to the appellant? Substantial questions of Law No.1 & 2: 5. The contesting litigants are real brothers. The suit property/land was constructed about 30 years prior to the institution of the civil suit hence by their common ancestor, one Dokun Dandub. Obviously, in the suit property, the litigating parties become co-owners through inheritance. The suit property, is, in the revenue records, recorded as joint property, and, the legal effect thereof, is that each of the co-owners thereins, hence hold unity of title and community of possession, over every inch thereof(s), and, the afore incident embodying the jurisprudential concept of joint property lasts upto, the occurrence of partition, of the suit land amongst the jointly recorded co-owners hence by metes and bounds. The further incident of joint property or the property recorded in the apposite land records, as, co-owned, is that the none of the co-owners can without the express, and, implied consent of other co-owners hence proceed to use any part of the jointly recorded property to his/their exclusive user. 6. There is no valid partition, by metes and bounds amongst the contesting litigants, of the property, recorded in the land records, as, joint property. Consequently, none of the contesting litigant is holding any leverage or right to, without the express or implied consent of other recorded co-owner/co-owners, use any portion of the jointly recorded suit property hence to his/their exclusive use. Consequently, none of the contesting litigant is holding any leverage or right to, without the express or implied consent of other recorded co-owner/co-owners, use any portion of the jointly recorded suit property hence to his/their exclusive use. Some portion of the joint suit property carries construction(s), construction(s) whereof, are raised thereon rather by the common ancestor of the contesting litigants, and, the allotments thereof has occurred in pursuance to writings/deeds, comprised in Ex.PW1/B, and, in Ex.PW1/C. The acerbic contest which has erupted inter se the contesting litigants, is, confined to the exclusive use by co-defendant No.1 of the vacant portion of the joint land, rather through his raising construction thereon. For determining, the validity of the plaintiff's claim, that in pursuance to Ex.PW1/B, and, Ex.PW1/C, he became allotted, the vacant portion of the suit property, and, that hence defendant Moti Lal was completely barred from raising any construction thereon, and, further that the construction, if any, raised thereon by defendant Moti Lal, be demolished through the making of a decree for mandatory injunction being rendered against him, and, also the co-defendant be restrained from raising any further construction thereon, it becomes incumbent upon this Court, to analyse the legal import of Ex.PW1/B, and, of Ex.PW1/C. 7. Though, the contesting litigants, do not deny, the factum of Ex.PW1/B and Ex.PW1/C being validly drawn, inasmuch, theirs carrying the valid signatures of the contesting litigants concerned. However, though, a recital exists therein, that the vacant portion of the suit land is allotted to the plaintiff, one Jodha Nand. Nonetheless, the defendant had successfully contested the admissibility of Ex.PW1/B, on the trite ground, that since it creates or assigns, and, concomitantly extinguishes title(s) in the co-owners concerned, and, as appertains to the vacant suit land. Therefore,, Ex.PW1/B was compulsorily registrable, whereas, it not being registered, obviously rendered it unreadable and inadmissible in evidence, except for collateral purposes. 7. The learned counsel appearing for the plaintiff has contended with much vigour before this Court, that the findings returned in favour of defendant No.1, one Moti Lal, by the learned First Appellate court, upon the afore facet are legally frail, and, warrant interference by this Court. 7. The learned counsel appearing for the plaintiff has contended with much vigour before this Court, that the findings returned in favour of defendant No.1, one Moti Lal, by the learned First Appellate court, upon the afore facet are legally frail, and, warrant interference by this Court. In making the afore submission, he has depended, upon, a verdict recorded by the learned Apex Court, in a case titled as Kale and others v. Deputy Director of Consolidation and others, (1976) AIR SC 807, the relevant paragraph No. 10 whereof, stands extracted hereinafter:- 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 wellsettled 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 pre pared after the family arrangement had already been made either for the purpose of the record or for in formation 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 s. 17(2) 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 'It 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 9 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." The Hon'ble Apex Court has expostulated therein, that the apposite registration is necessary only if the terms of the family arrangement are reduced into writing, and, also that a distinction should be made between a document containing the terms and recitals of a family arrangement, as, 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, or for making the necessary mutation. It has also been expostulated therein, that the apposite memorandum, if does not create or extinguish any rights in suit property, hence, does not make it fall within the mischief of Section 17(2) of the Registration Act, and, is, therefore, not compulsorily registrable. It has been further expostulated therein, that members who may be parties to the family arrangement must have some antecedental title, claim or interest therein, or even a possible claim in the property and 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 tittles in favour of such a person, and, also acknowledges him to be the sole owner, then the antecedental title must be assumed, and, the family arrangement will be upheld by the courts of law. Furthermore, any party taking advantage of the terms drawn in any family arrangements, is precluded from making any challenge thereto. 8. Furthermore, any party taking advantage of the terms drawn in any family arrangements, is precluded from making any challenge thereto. 8. Be that as it may, this Court is hence required to determine from Ex.PW1/B, whether it creates or extinguishes title in the undivided suit property, from the time of its making or whether it is a document whose recitals are operative in future, and/or, whether it is merely a memorandum which records, hitherto occurring certain assignments, extinguishment(s) or creations of title. If, form a reading of Ex.PW1/B, it is apparent that threrethrough hence title was either created or extinguished amongst the litigating parties rather from the date of its making, and, hence it was to operate in future, thereupon, Ex.PW1/B was compulsorily registrable, and, for want of its being registered, it would be inadmissible, and, unreadble in evidence, except for collateral purposes. In the afore endeavour, upon, an incisive perusal of the Ex.PW1/B, by this Court, it appears that trite unfoldments, do emerge, that from the date of its making, it extinguished, created or invested title in the co-owners concerned, or hence the afore occurred since the date of its making, hence, Ex.PW1/B was compulsorily registrable. Moreso, when it obviously did not record any pre-existing arrangements which became prior thereto hence arrived at inter se the contesting litigants, and/or, that Ex.PW1/B was merely a memorandum reciting the apposite pre-existing settlement(s) rather occurring inter se the contesting litigants, and, whereupon, hence, there was no creation or investment or extinguishment(s) of titles, rather therethrough(s) amongst the litigating parties, thereupon(s), Ex.PW1/B would be not compulsorily registrable. 9. 9. Even if, the afore inference has led this Court to draw a conclusion, that Ex.PW1/B was compulsorily registrable, yet it has to be determined from the facts available before this Court, and, from the evidence adduced thereon, whether the contesting litigants had derived any advantage, from Ex.PW1/B, and, that hence the principle of estopple enshrined in Kale Ram's case (supra), rather barring the litigants to, upon theirs evidently taking any advantage of Ex.PW1/B, hence resile from its making, and, concomitantly also barring them to contest the admissibility of Ex.PW1/B. However, the completely constructed portion of the suit property, in respect whereof, a settlement is recited in Ex.PW1/B, does disclose, that most of the constructed portion, is in possession of the litigants concerned, and, hence, through Ex.PW1/B, the contesting litigants consensually agreed to revere their apposite possession. Emphassisingly, hence, there was no occasion for any of the contesting litigants to, vis-a-vis, completely constructed portion of the property, take any advantage, as there apposite possessions, in any case, even when a regular partition, would take place, rather would become revered. Therefore, the exception carved in the Kale Ram's case (supra), that even when a document is compulsorily registrable and is not registered, yet when the parties have acted upon a document, though requiring compulsory registration, thereupon, they are barred to resile from its contents, is also not workable, vis-a-vis, the plaintiff. Even otherwise, as afore stated, the acerbic contest, which has erupted inter se, the contesting litigants is only confined, to the vacant portion of the undivided property, which as aforestated, is enumerated in Ex.PW1/B to be allotted to the plaintiff, one Jodha Nand. As aforestated, Ex.PW1/B though has created for the first time title thereon in Jodha Nand, and, concomitantly has extinguished the apposite title in other co-owners, since the date of its drawing hence was to be acted upon in future, thereupon, it was required to be compulsorily registered. The pronouncements made in Kale Ram's case (supra), is only confined to oral family arrangement, and/or oral settlement(s), in pursuance whereto, the contesting litigants strive for the making of an order of mutation. The pronouncements made in Kale Ram's case (supra), is only confined to oral family arrangement, and/or oral settlement(s), in pursuance whereto, the contesting litigants strive for the making of an order of mutation. It does not extend to documented arrangements, in respect whereof, even in judgment supra, a dire statutory necessity has been spelt, for compulsory registration thereof, especially when as in the extant case, it creates, extinguishes or assigns, title from the date of its drawing, and, creates the afore title or interest hence in future in the co-owners concerned. Necessarily there cannot be any estopple against a statute. 10. In Sita Ram Bhama vs. Ramvatar Bhama, (2018) 15 SCC 130 , the relevant paragraphs No. 10 to 15 whereof, stand extracted hereinafter:- 10. The only question which needs to be considered in the present case is as to whether document dated 09.09.1994 could have been accepted by the trial court in evidence or trial court has rightly held the said document inadmissible. The plaintiff claimed the document dated 09.09.1994 as memorandum of family settlement. Plaintiff's case is that earlier partition took place in the life time of the father of the parties on 25.10.1992 which was recorded as memorandum of family settlement on 09.09.1994. There are more than one reasons due to which we are of the view that the document dated 09.09.1994 was not mere memorandum of family settlement rather a family settlement itself. Firstly, on 25.10.1992, the father of the parties was himself owner of both, the residence and shop being self-acquired properties of Devi Dutt Verma. The High Court has rightly held that the said document cannot be said to be a Will, so that father could have made Will in favour of his two sons, plaintiff and defendant. Neither the plaintiff nor defendant had any share in the property on the day when it is said to have been partitioned by Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993. After his death plaintiff, defendant and their mother as well as sisters become the legal heirs under Hindu Succession Act, 1955 inheriting the property being a class I heir. The document dated 09.09.1994 divided the entire property between plaintiff and defendant which document is also claimed to be signed by their mother as well as the sisters. After his death plaintiff, defendant and their mother as well as sisters become the legal heirs under Hindu Succession Act, 1955 inheriting the property being a class I heir. The document dated 09.09.1994 divided the entire property between plaintiff and defendant which document is also claimed to be signed by their mother as well as the sisters. In any view of the matter, there is relinquishment of the rights of other heirs of the properties, hence, courts below are right in their conclusion that there being relinquishment, the document dated 09.09.1994 was compulsorily registrable under Section 17 of the Registration Act. 11. Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been settled by this Court. It is sufficient to refer to the judgment of this Court in Kale and others v. Deputy Director of Consolidation and others, (1976) 3 SCC 119 . The propositions with regard to family settlement, its registration were laid down by this Court in paragraphs 10 and 11: "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. 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; (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. 11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently." 12. We are, thus, in full agreement with the view taken by the trial court as well as the High Court that the document dated 09.09.1994 was compulsorily registrable. The document also being not stamped could not have been accepted in evidence and order of trial court allowing the application under Order XII Rule 3 CPC and the reasons given by the trial court in allowing the application of the defendant holding the document as inadmissible cannot be faulted. 13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. 13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of this Court in Yellapu Uma Maheswari and another v. Buddha Jagadheeswararao and others, (2015) 4 RCR(Civ) 765: 2015(5) Recent Apex Judgments (R.A.J.) 195 : (2015) 16 SCC 787 , is appropriate. In the above case also admissibility of documents Ext. B-21 dated 05.06.1975 a deed of memorandum and Ext. B-22 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1-plaintiff and appellant No.1-defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B-21 and B-22 held that they require registration. In paragraph 15 following was held: "15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition." 14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided appellantdefendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 following has been laid down: "16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy, (1969) AIR A.P. 242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title,l nature of possession of various shares but not for the primary purpose i.e. division of a joint properties by metes and bounds. An unstampted instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance." 17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 for collateral purpose subject to proof and relevance." 17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy." 15. Following the law laid down by this Court in the above case, we are of the opinion that the document dated 9.9.1994 may be admissible in evidence for collateral purpose provided the appellant gets the document impounded and to pay the stamp duty together with penalty as has been directged in the above case." the Hon'ble Apex Court, has held that, when the title or assignments, are created for the first time, through the apposite document(s), thereupon, it become compulsorily registrable, and, for want of its registration, it is both unreadable, and, obviously is inadmissible in evidence. In tandem with the afore decision, since this Court, has concluded that through Ex.PW1/B, the apposite investments, extinguishments taking place, since the date of its making, hence, when it was to be operating in future, and, obviously when it does not record any preexisting arrangement and settlements. Therefore, it is compulsorily registrable, and, whereas, its not being registered, hence, makes it both unreadble, and, also inadmissible in evidence, thereupon, any claim for mandatory injunction as claimed by Jodha Nand, as aptly recorded by the learned First Appellate Court, was not amenable, to be granted to him. However, as aptly concluded by the learned First Appellate Court, the equities amongst the litigating parties was to be, vis-avis, the afore vacant portion of the suit land, settled and adjusted, upon, occurrence of its partition, through, metes and bounds, as, may occur through the aegis of the Revenue Agency concerned. However, the decree for permanent prohibitory injunction, as, accorded, for restraining the defendant from raising any further construction upon the suit land, is both apt and tenable, as, uptil the dismemberment of the joint estate, through, metes and bounds, none of the litigating parties without the express, and, implied consent of the other co-owner, can endeavour to raise construction meant for his/their exclusive user. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court are based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court Court, has not excluded germane and apposite material from consideration. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court are based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court Court, has not excluded germane and apposite material from consideration. Accordingly, both the substantial questions of law are answered in favour of the respondent/defendant, and, against the plaintiff/appellant(s). 12. In view of the above discussion, there is no merit in the extant appeal, and, it is dismissed. In sequel, the judgement and decree, rendered by the learned First Appellate Court is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.