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1969 Supreme(Ori) 206
IN THE HIGH COURT OF ORISSA
S.K. Ray, J.
RANJIT BISWAL - APPELLANT
Versus
MST. USHA SANDHA AND OTHERS - RESPONDENT
Second Appeal No. 42 of 1965
Decided On : 12-09-1969
R.C. Misra, for the Appellant; S.C. Mohapatra, for the Respondent
A family settlement is not compulsorily registrable if it is a memorandum of family settlement and not the basis of the rights of the parties.
Headnote:
FAMILY SETTLEMENT - ESSENTIALS - REGISTRATION - COMPULSORY - FAMILY ARRANGEMENT - OBJECT - CONSIDERATION - PERSONS CONSTITUTING MEMBERS OF FAMILY - INCIDENTS - CIRCUMSTANCES REQUIRING REGISTRATION.
Fact of the Case:
Plaintiff filed a suit for declaration that the deed of gift executed by Mst. Chhai, mother of Defendant-1, in favor of the latter on 20.5.1950, is not binding upon the Plaintiff and is inoperative and also claims the relief of recovery of possession of the land with the house thereon which is the subject-matter of the deed of gift. The Plaintiff is the nearest reversioner of Khedu and after the death of Chhai succussion devolved on the Plaintiff and the Plaintiff is entitled to succeed to the suit-properties. The deed of gift will not affect his right of succession. Defendant-1 acquired a valid title to the suit-property on the footing of the deed of gift. In 1957, the Plaintiff created a dispute by preferring a false claim to the suit-land and on the intervention of some respectable gentlemen of the village a settlement was arrived at between the Plaintiff and Defendant-1 and each of the disputing parties, viz., the Plaintiff and Defendant-1 executed a document in favor of the other on 19-10-1957, containing the terms of the settlement of their rival claims. This document is merely a memorandum of terms of such settlement. This settlement was valid and voluntarily made.
Finding of the Court:
The deed of gift by Chhai who was a limited owner was not valid beyond her lifetime and that the Plaintiff was beyond doubt the next reversioner of late Khedu and as such, was entitled to succeed to the suit-property. Ext. F the deed of family settlement has been executed by the Plaintiff and is not vitiated by fraud, but that document is inadmissible in evidence being compulsorily registrable, but not registered. The plea of estoppel cannot be sustained. Ext. F is not a deed of family settlement. Even if it is one, it purporting to make a conveyance of properties valued at more than one hundred rupees, is compulsorily registrable, and in absence of registration, ext. F is inadmissible in evidence. Ext. F is a memorandum of family settlement. Evidence has been led by Defendants, which has not been challenged in cross-examination that there was a Punchayati where disputes were settled and thereafter two stamps were purchased, one by the Plaintiff and the other by the Defendants on which terms of settlement were scribed. Thus, this document, ext. F, is not the basis of the rights of the parties, but it is just a memorandum for the purpose of being used as a proof of what had been settled between the parties. This document evidencing the transaction of family settlement does not bring about any transfer of property or create an interest in property. As such, it is beyond the purview of Section 17 of the Indian Registration Act, and not compulsorily registrable. The transaction evidenced by ext. F is a family settlement and is not compulsorily registrable.
Issues: Whether ext. F is a deed of family settlement and is compulsorily registrable?
Ratio Decidendi: A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family, (a) either by compromising doubtful or disputed rights or by preserving the family property, (b) or the peace and security of the family by avoiding litigation, (c) or by saving its honours. A family settlement 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 recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. A document called a family arrangement as such is not immune from registration. But it will be a question of fact to be determined in each case primarily on the interpretation of the document; and the surrounding circumstances whether the document in question itself creates title or it only acknowledges the antecedent title to the property. A family arrangement need not be reduced to writing and even if it is, it need not be registered. But if the family settlement is one under which a person having an absolute title to property transfers his right, title and interest in some items of that property to other., it would require compliance of formalities of law in regard to transaction of sale. If properties so transferred under the family settlement is valued at Rs. 100/- or more, it would be valid and admissible in evidence only if registered. Ext. F is a memorandum of family settlement. Evidence has been led by Defendants, which has not been challenged in cross-examination that there was a Punchayati where disputes were settled and thereafter two stamps were purchased, one by the Plaintiff and the other by the Defendants on which terms of settlement were scribed. Thus, this document, ext. F, is not the basis of the rights of the parties, but it is just a memorandum for the purpose of being used as a proof of what had been settled between the parties. This document evidencing the transaction of family settlement does not bring about any transfer of property or create an interest in property. As such, it is beyond the purview of Section 17 of the Indian Registration Act, and not compulsorily registrable.
Final Decision: Appeal dismissed with costs.
JUDGMENT :
S.K. Ray, J. - Plaintiff has filed this second appeal against the reversing judgment of Sri C.S. Misra, subordinate judge of Bargarh, dated the 20th November, 1964, passed in Title Appeal No. 59/656 of 1963, dismissing the suit.
2. The Plaintiff filed the suit for declaration that the deed of gift executed by Mst. Chhai, mother of Defendant-1, in favour of the latter on 20.5.1950, is not binding upon the Plaintiff and is inoperative and also claims the relief of recovery of possession of the land with the house thereon which is the subject-matter of the deed of gift.
3. It is necessary to set out the genealogy of the family from with the relationship of the parties will be clear.
Arjun
Khedu Bala
Bhara Chhai Narasi Pira Ranjit (Pltff.)
Usha-D-1 husband Nisamani (D-2)
According to the Plaintiff the suit-land along with other properties originally belonged to Arjun and after his death there was a partition between Khedu and Bala. The suit-land and the house described in schedule Ka and Kha were allotted to Khedu in that partition who in consequence remained in separate possession thereof. Upon the death of Khedu, Mst. Chhai succeeded him, and later on, she executed a registered deed of gift dated 20-5-1950 in favour of Defendant-1 in respect of the entire suit properties. In pursuance of this gift-deed, Defendant possessed the same. Chhai, however, died in 1952. The Plaintiff, it is further contended, is the nearest reversioner of Khedu and after the death of Chhai succussion devolved on the Plaintiff and the Plaintiff is entitled to succeed to the suit-properties. The deed of gift will not affect his right of succession. He alleged that after the death of Chhai, Defendant-1 with the help of some gentlemen of the village coerced from him a signature on a blank stamp paper saying that the villagers will settle the dispute between him and Defendant-1.
4. Defendants 1 and 2 filed a joint written statement. The genealogy is admitted. They say that Defendant-1 acquired a valid title to the suit-property on the footing of the deed of gift. In 1957, the Plaintiff created a dispute by preferring a false claim to the suit-land and on the intervention of some respectable gentlemen of the village a settlement was arrived at between the Plaintiff and Defendant-1 and each of the disputing parties, viz., the Plaintiff and Defendant-1 executed a document in favour of the other on 19-10-1957, containing the terms of the settlement of their rival claims. This document is merely a memorandum of terms of such settlement. This settlement was valid and voluntarily made. There is also a plea of estoppel raised: the Plaintiff being a party to the settlement and having taken benefit under it and in token of voluntary acceptance of the same, having put his signature to the memorandum of the terms of such settlement, is estopped from disputing its validity. In 1958, despite the settlement, the plain tiff trespassed upon the suit-land. There was a criminal case which ended in conviction of the Plaintiff. This was followed by a proceeding u/s 145, Code of Criminal Procedure in respect of the suit-land which terminated in favour of the Defendants. This has led the Plaintiff to file the present suit.
5. The trial Court held that the deed of gift by Chhai who was a limited owner was not valid beyond her lifetime and that the Plaintiff was beyond doubt the next reversioner of late Khedu and as such, was entitled to succeed to the suit-property. He also held that ext. F the deed of family settlement has been executed by the Plaintiff and is not vitiated by fraud, but that document is inadmissible in evidence being compulsorily registrable, but not registered. He further said that the plea of estoppel cannot be sustained. In the end, he decreed the suit.
6. The Defendants took the matter in appeal and succeeded. They did not challenge, in the first appellate Court nor do they do so here, that the Plaintiff was the next reversioner of Khedu and that the deed of g
