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SUPREME COURT OF INDIA
Madan B. Lokur, C. Nagappan, JJ.
Phool Patti and Anr. – Appellants
Versus
Ram Singh (Dead) Through Lrs. & Anr. – Respondents
CIVIL APPEAL NO. 1240 OF 2005
Decided on : 06-01-2015
(2009) 13 SCC 22; 2008 (9) SCALE 215 : (2008) 13 SCC 102; (1995) 5 SCC 709 – Relied upon
1956 SCR 463; (1964) 7 SCR 760; (1993) 4 SCC 216, 225 – Referred
(b) Registration Act, 1908 – Section 17(1)(a) – Out of the 52 karnals, 20 kanals were purchased by Bhagwana and 32 kanals were ancestral property – Factum of family settlement accepted by trial court – Thus 32 karnals must relate to family settlement – Bhagwana’s statement that he gave land to Ram Singh relates to 20 karnals acquired by him – This would be gift – Gift being compulsorily registrable, registration of gift of 20 karnals was compulsory ram Singh’s claim over 32 karnals through family settlement did not require registration. (Para 29, 32)
(c) Administration of Justice – Judicial propriety – Appellants contending locus of Phool Patti and Phool Devi to challenge gift by Bahgwana to Ram Singh – No such pleading made before courts below – No issues framed in that regard – No evidence led to challenge validity of gift – Too late to raise the issue – Issue raised before Supreme Court for the first time – Not tenable. (Para 31)
Facts of the case:
Ram Singh (nephew of Bhagwana) filed a Suit stating that as a result of a family settlement 52 kanals of land with a residential house in the revenue estate of Nizampur Majra in district Sonepat which was joint Hindu family property was given to him. Ram Singh further stated that he was in cultivating possession of the agricultural land and in physical possession of the residential house.
Bhagwana in his written and oral statement admitted the entire claim set up by Ram Singh leading to a consent decree. As a result Ram Singh was declared the owner in possession of 52 kanals of the agricultural land and the residential house in the revenue estate of Nizampur Majra in district Sonepat.
Bhagwana had two daughters, namely Phool Patti and Phool Devi. He had no son.
On 11th March, 1982 another nephew of Bhagwana, that is, Shobha Ram along with Phool Patti and Phool Devi filed a Suit stating that Bhagwana is the owner of 52 kanals of land which was inherited by him from his lineal male ascendant and that the properties are ancestral in his hands. It was averred that Bhagwana could not gift the agricultural land and residential house to anybody thereby depriving his legal heirs (Phool Patti and Phool Devi) of their rights in the disputed property.
The Trial Court held that the decree dated 24th November, 1980 was a collusive decree and a nullity and therefore illegal and void.
Ram Singh preferred Civil Appeal.
The First Appellate Court held that Shobha Ram had no locus standii in the matter at all, since he had no right, title or interest in the disputed property. As regards the claim of Phool Patti and Phool Devi, it was held that they could not challenge the gift made by Bhagwana in favour of Ram Singh. The First Appellate Court further held that the decree dated 24th November, 1980 was not a collusive decree since Bhagwana had supported it. Accordingly, the appeal filed by Ram Singh was allowed and the decree of the Trial Court dated 31st May, 1983 was set aside.
Phool Patti and Phool Devi preferred Second Appeal in the High Court.
The High Court dismissed the Second Appeal.
Finding of the Court:
High Court rightly refused to interfere in the finding of fact by first appellate court.
Result: Appeal partly allowed.
JUDGMENT
Madan B. Lokur, J.
1. On 3rd November, 1980 Ram Singh (nephew of Bhagwana) filed Suit No. 630 of 1980 in the Court of the Senior Sub-Judge, Sonepat (Haryana). He stated in the plaint that 52 kanals of land in the revenue estate of Nizampur Majra in district Sonepat was joint Hindu family property. There was also a residential house situated in the village but it is not clear whether the residential house stood on the said land or was on a separate parcel of land. However, the appeal before us proceeded on the basis that the residential house is on the 52 kanals of land.
2. The plaint filed by Ram Singh further stated that some differences had arisen between the members of the joint Hindu family and as a result of a family settlement, the said land was given to him. Ram Singh further stated that he was in cultivating possession of the agricultural land and in physical possession of the residential house.
3. Ram Singh averred that Bhagwana refused to admit his (Ram Singh’s) claim to the agricultural land and the residential house and in effect sought to negate the family settlement. Accordingly, Ram Singh prayed for a declaration that he is the owner and in cultivating possession of the agricultural land and in physical possession of the residential house.
4. On 5th November, 1980 Bhagwana filed his written statement admitting the entire claim set up by Ram Singh. It appears that Bhagwana’s statement was also recorded subsequently. In view of the written statement as also Bhagwana’s oral statement, the Senior Sub-Judge, Sonepat passed a consent decree on 24th November, 1980 and decreed the suit as prayed for by Ram Singh. The result of the decree was that Ram Singh was declared the owner in possession of 52 kanals of land, that is, the agricultural land and the residential house in the revenue estate of Nizampur Majra in district Sonepat.
5. In view of the consent decree, there was no occasion for the Senior Sub-Judge to decide whether there was or was not any family settlement, nor did the occasion arise for him to specifically decide whether the said land was self-acquired or ancestral.
6. However, two conclusions can be drawn quite safely: (i) There was no denial of the existence of a family settlement but on the contrary this was admitted by Bhagwana; (ii) The family settlement could be with reference to both the ancestral property as well as the self-acquired property or only with reference to the ancestral property.
7. Bhagwana had two daughters, namely Phool Patti and Phool Devi. He had no son. On 11th March, 1982 another nephew of Bhagwana, that is, Shobha Ram along with Phool Patti and Phool Devi filed Suit No. 234 of 1982 before the Senior Sub-Judge, Sonepat. In that suit Ram Singh was the first defendant and Bhagwana was the second defendant.
8. It was stated in the plaint that Bhagwana is the owner of 52 kanals of land which was inherited by him from his lineal male ascendant and that the properties are ancestral in his hands. It was averred that Bhagwana could not gift the agricultural land and residential house to anybody thereby depriving his legal heirs (Phool Patti and Phool Devi) of their rights in the disputed property.
9. It was further averred in the plaint that the decree dated 24th November, 1980 was obtained collusively by Ram Singh and that the admissions made by Bhagwana in the suit filed by Ram Singh were without applying his mind. It was stated that there was no family settlement whatsoever and that the decree dated 24th November, 1980 amounted to a gift made by Bhagwana in favour of Ram Singh. This could only be through a written instrument that was duly stamped and registered. Since the gift was neither written, nor stamped, nor registered it could not be acted upon.
10. On the basis of the pleadings, the Trial Court framed three issues as follows:-
1. Whether judgment and decree dated 24.11.1980 is void, illegal and not binding upon the rights of the plaintiffs?
2. Whether any family settle
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