IMPORTANT POINT
Family Settlement--Judgment and decree on basis of oral family settlement--Such judgment and decree does not require registration because it merely recognize existing rights flowing from oral family settlement

M.M.Kumar, J.

1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgement and decree passed by both the Courts below dismissing their suit. When the appeal came up for admission on 18.1.2005, the following question of law was framed:

"Whether in the absence of any pre-existing right with the defendant- respondents 1 to 3, a decree (Exhibit P.2) suffered by Jagno (who is fathers sister of defendant-respondent) required registration under Section 17(1) of the Indian Registration Act, 1908 ?"

2. In order to appreciate the controversy it would be necessary to extract pedi-degree table which is as under:

PEDIGREE OF APPELLANTS

3. It has come on record that Sher Singh died issueless in 1953. His widow Jagno, defendant- respondent No. 4 ( who died during the pendency of the proceedings) became absolute owner of the landed and other property to the extent of half share. This fact has not been disputed by both the parties. It has also remained undisputed that Jagno died in the year 1993 and did not re-marry. The Id. Addl. District Judge has recorded a categorical finding that after the death of her husband she had been living with her parental family where she died at village Chakarpur. The aforesaid findings have been recorded in paras 14,15 and 16 which reads thus :

"14. The word familyas appears in the expression family settlement is not having the narrow meaning of coparcenary. Although after her marriage Jagno was left with no ties with her parental family and she was transplanted in the family of her husband, she being issueless was left alone on the death of her husband. The plaintiffs may be saying in so many words that they had been serving Jagno who was called Baghtani, they could not conceal the truth. The truth becomes evident in the plaint itself when the plaintiffs claimed that defendant Nos.1 to 3 had undue influence over defendant No. 4, it presupposes that Jagno was living with them and not with the plaintiffs. She could be taken to the court for partition of the land of village Chakarpur only if she was living with the defendants and not with the plaintiffs. The very first witness examined by the plaintiffs named Dharam Singh admits that for 4 years before her death she was living in village Chakarpur. Hoshiar Singh PW also admits that Jagno died in Chakarpur.

15. None of the plaintiffs appeared in the witness box. On their behalf one Rang Rao Singh is examined. This Rang Rao Singh claims himself to be special attorney of Khushi Ram plaintiff. Khushi Ram plaintiff is stated by the attorney himself to be aged 50 years. In the documents Ex.P.l, the special power of attorney the executant claims himself to be unable to attend the court and he appointed Rang Rao Singh as his special attorney. He was no where given the authority to appear as a witness. The attorney is moreover not the son of anyone of the plaintiffs. By the appearance of Rang Rao Singh as PW 3 it can be said that the party has appeared in his own cause. The plaintiffs have clearly failed to appear in their own cause and adverse inference can be drawn against their case. All these circumstances compel me to believe that in her last days, she did not live with the plaintiffs but she lived with the defendants and she died with the defendants at village Chakarpur.

16. A woman who did not have a child and whose husband had died would shift to her parental family only if she does not find any support in the family of her husband." (emphasis added)

4. The 1st Appellate Court also considered the question whether the plaintiff-appellants had any cause of action to file suit during life-time of Jagno and answered the same in negative. It has come on record that Jagno has suffered a decree in favour of defendant-respondents passed in Civil Suit No. 317 of 1991 of 19.7.1991. The aforesaid judgement and decree recognised the oral family settlement reached between Jagno and defendant- respondents. The afore