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PUNJAB AND HARYANA HIGH COURT
K. Kannan, J.
Girdwari and Ors. —Appellants
versus
Reshmi (since deceased, through her LRs) and Anr. —Respondents
Regular Second Appeal No. 3516 of 1985 (O&M)
Decided on 10.10.2013
For the Appellant Nos. 1, 6 and 7:Mr.Jasminder Singh Thind, Advocate
For the Appellant Nos.2 to 5:Mr.Ravi Sodhi, Advocate
For the Respondents:Mr.R.S.Mittal, Sr.Advocate with Mr.Abhimanyu and Mr.Chander Shekhar Singh, Advocates
IMPORTANT POINTS
1. Oral family settlement even if produced in writing subsequent will not require registration.
2. A widow inheriting property from her husband becomes absolute owner and any transfer made by her cannot be challenged by her maternal grand children.
Headnote:(i) Family Settlement – Oral Partition- Permissibility- There is no prohibition for members of a family to partition the property orally- However, if partition is brought out through an instruments which contains bargain between the parties it would be quired to be written on appropriate stamp papers and would also require registration- In case of oral partition a list prepared as a fait accompli, being in the nature of acknowledgment of oral partition, will not require registration- However, there can be no transfer of immovable property on the basis of admission only (para 9 AIR 1966 SC 605 relied on)
(ii) Indian Registration Act 1908 Section 17- Family Settlement- Requirement of registration- The family property and family peace among the close relations, settled through family settlement amicably- Such family settlement cannot be disturbed- If the family settlement is oral and later it is reduced in writing, it will be in the nature of acknowledgment of oral family settlement and will not require registration. (Paras 5,8, and 9)
(iii) Indian Registration Act 1908, Section 17- Family Settlement- Grand mother allowing transfer of property in favour of grand sons, already having subsisting interest- Such transfer by way of decree will not require registration- However, if the transferee had no subsisting interest, it will require registration. ( Para 8 and 9) ( 1995 (5) SCC 509 relied on)
(iv) Hindu Succession Act 1956, Section 14- Hindu law by Mulla, volume one, 21st addition 2010, page 145- Decree passed by widow in favor of grand children- Locus standi of the maternal children to challenge the same- As per Section 14, a widow becomes absolute owner and when a transfer made by her is challenged, the plaintiff must show their subsisting right in the property- The plea of oral gift by widow to the plaintiff not accepted as under the law there could be no oral gift- Validity of the gift not approved by the Court- The plaintiffs having no pre-existing right, had no locus standi to challenge the decree suffered by widow in favour of grand children. (Para 6,7 and 8)
Result: Appeal Allowed
K.Kannan, J.— The following substantial questions of law arise for consideration in the second appeal:
(i) Whether the plaintiffs had any subsisting right to the property during the lifetime of the mother to institute the suit and question the decree that was allowed between the mother and her grandchildren through another daughter?
(ii) Whether the decree allowing for the properties to be taken by the grandchildren through one of the daughters was a family settlement, as pleaded and hence, did not require to be registered?
(iii) Whether the grandchildren through the daughter have any pre-existing right that could allow for devolution even without registration of consent decree suffered by the mother?
2. Before I begin my discourse on the points raised, I must observe that it had been a long time practice of this Court to admit second appeal without framing any substantial question of law. Later, when the law was such a procedure was mandatory, it has been supplanted by a practice of lawyers appearing for appellants to frame the substantial questions in a separate memorandum and the Court placing it on record. We shall remind ourselves that it is again a wrong procedure. It is the Court’s duty to elicit the questions of law, formulate them and place them on record and direct the attention of the counsel to address arguments on the formulated questions. This preface is to govern our own judicial procedure and it is expected that the bar assists the Court in framing substantial questions of law and apprise itself about the formulations before the arguments are addressed.
3. The second appeal is at the instance of the defendants against whom there was a suit filed for a declaration that the decree allowing for the properties to be in the ownership and possession of the grandchildren of Dhapan (mother of plaintiffs) was brought about by fraud and not binding. There was a prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs’ 2/3rd share on a plea made by the plaintiffs that they were the owners of the property to a 2/3rd share by a gift by their mother at the time of their respective marriages. The defendants, who were the mother, sister and sister’s children of the plaintiffs, entered a contest denying that the plaintiffs had any locus standi to file the present suit and that there had been no oral gift in favour of the plaintiffs by the mother-6th defendant. It was also contended that the suit properties had been the subject of a decree in Case No.438 of 1979 in favour of the grandchildren described as defendants 2 to 5.
4. The suit had gone for a trial on the contentions raised by the parties including an issue of whether the decree was null and void and liable to be set aside in the manner contended by the plaintiffs. The maintainability of the suit in the present form was also taken as an issue for consideration. The trial Court found that the plea that the property had been settled in their favour was not established and the Court also observe with reference to the khasra girdwaris that they were in the names of the defendants 2 to 5 and 7 and the plaintiffs could have no concern whatsoever with it. However, taking up the issue of locus standi of the plaintiffs, the Court observed that the defendants bad not shown as to how the plaintiffs did not have a locus standi. The trial Court predominantly went on the admission made by the mother in the written statement admitting to the right and title of the grandchildren and dismissed the suit. In appeared, through a judgment which is as cryptic and laconic, the appellate Court relied on a judgment of the Supreme Court in Kuppuswami Chettiar v. A.S.P.A. Arumugam Chettiar and another, AIR 1967 SC 1395 that a decree passed suppressing an important fact would be vitiated and that the material factor of existence of two daughters not having been set forth in the written statement filed by the mother in the
