JUDGMENT
Ajay Kumar Mittal, J.
1. The dispute involved in this Regular Second Appeal is between the offsprings of two real brothers, namely, Piara Singh and Kaur Singh pertaining to their properties situated in two villages, Ghudani Kalan and Ghudani Khurd, Tehsil Payal, District Ludhiana. In order to appreciate the controversy raised herein, it is deemed appropriate to notice as to who are the legal representatives left behind by Piara Singh and Kaur Singh. The two brothers are said to have expired, long ago even prior to the filing of the suit. Savinder Singh, Jasbir Singh, Jaswinder Singh and Sukhbir Singh are the sons of Piara Singh. Savinder Singh has also died, leaving behind his widow Ravinder Kaur and two sons-Harjinder Singh and Sukhjiwan Singh. On the other side, Jagmohan Singh, Manmohan Singh and Harmohan Singh are the sons of Kaur Singh whereas Avtar Singh is the son of aforesaid Jagmohan Singh.
2. A suit for declaration and permanent injunction was filed by Savinder Singh through his legal representatives i.e. widow Ravinder Kaur and two sons Harjinder Singh and Sukhjiwan Singh (hereinafter referred to as ‘plaintiff-appellants’) and the remaining three sons of Piara Singh, namely, Jaswinder Singh, Jasbir Singh and Sukhbir Singh against three sons of Kaur Singh, namely, Jagmohan Singh, Manmohan Singh, Harmohan Singh and Avtar Singh son of Jagmohan Singh (hereinafter referred as ‘defendant-respondents).
3. The plaintiff-appellants sought a decree for declaration to the effect that they are owners in possession in equal shares in the land in dispute. They also prayed for a decree for permanent injunction restraining the defendant-respondents from interfering in their peaceful possession over the suit land. It was averred in the plaint that the predecessor-in-interest of the plaintiffs i.e. Piara Singh and of defendant No. l to 3, i.e. Kaur Singh were real brothers who owned property in two villages i.e. in Ghudani Kalan and Ghudani Khuard as co-sharers. In the year 1960, aforesaid Piara Singh and Kaur Singh arrived at an oral family settlement in respect of the property situated in the two villages and this family settlement (Exhibit P1) was reduced into writing on 8.9.1961 which was signed by both the parties and the witnesses. As per the family settlement, Piara Singh got the agricultural and residential properties owned by both the brothers in village Ghudani Kalan whereas Kaur Singh got such property which was owned by the two brothers in village Ghudani Khurd. Piara Singh paid a sum of Rs. 3,800/- to Kaur Singh towards costs of house and some land which he had got in excess of his share and an endorsement to this effect was made in the family settlement. Both brothers agreed to get the mutations entered and sanctioned on the basis of the above family settlement, which somehow could not be done during their life time. It was further averred that after the death of Piara Singh, his widow Hardial Kaur and four sons became owners of the property and after the death of Hardial Kaur, her share also fell in the share of the plaintiffs by way of natural succession. The plaintiff-appellants claimed that ever since the day of arriving at the oral family settlement, they are in peaceful, uninterrupted and exclusive possession of the property situated in village Ghudani Kalan.
4. It was further averred that the defendants moved an application for partition of the land- before the Assistant Collector, Ist Grade with a view to rake up the matter of difference of land between the parties through the predecessor-in-interest of the defendants i.e. Kaur Singh had already been compensated by paying a sum of Rs. 3,800/-. It was claimed that the defendants had no right and title to the land which fell in the share of the father of the plaintiffs and after his death, to the share of the plaintiffs. The defendants had been threatening the plaintiffs by causing interference in their peaceful and exclusive possession over the property.
5. The defendants resisted the claim of the plaintiffs by filing written statement, stating that no oral family settlement was ever arrived at between Kaur Singh and Piara Singh and the alleged writing dated 8.9.1961 is illegal, null and void and has no effect on the rights of the defendants. It was incorrect that the land situated in village Ghudani Kalan was given to Piara Singh. It was alleged that Kaur Singh was not the exclusive owner of the property situated in village Ghudani Kalan and he remained owner in possession as co-sharer to the extent of his share and after the death of Kaur Singh, defendants 1 to 3 became the owners in possession of his share. The defendants admitted that share of Piara Singh in the property was inherited by the plaintiffs and that of Kaur Singh was inherited by them. It was alleged that the defendants never leased out their share in the suit land and were still owners in possession of the same. The factum of transfer of the property of the share of defendant No. 4 in his favour was admitted.
6. The plaintiffs filed replication controve ing the averments contained in the written statement and reiterating those taken in the plaint.
7. The respective pleadings of the parties gave rise to the following issues:-
i) Whether plaintiffs are owners in possession of suit land? OPP
ii) Whether the suit land was partitioned and settlement was reduced into writing on 8.9.1961? OPP
iii) Whether the plaintiffs are entitled to the injunction as prayed for? OPP
iv) Whether the suit is not maintainable? OPD
v) Relief.
The trial Court after appreciating evidence on record held that the family settlement dated 8.9.1961, Exhibit P-1, being not registered one as required in law, the same could not be looked into and the plaintiffs could not be held to be in exclusive possession as owners of the suit land. It was further held that since the plaintiffs were not proved to be in exclusive possession of the suit land, they were not entitled to the permanent injunction as prayed for. In view of these findings, the suit of the plaintiffs was dismissed by the trial Court by judgment and decree dated 12.1.2000.
8. The appeal carried by the plaintiffs before the District Judge also met with failure and this is how, they have filed the present second appeal. It deserves to be mentioned that the lower appellate Court also concurred with the findings of the trial Court and held that the alleged partition Exhibit P-1 did not carry any value in the eyes of law and nor was there any partition legally made between Kaur Singh and Piara Singh and therefore, the plaintiffs could not claim themselves to be in exclusive possession of the suit land.
9. I have heard learned counsel for the parties and have gone through the entire record including that of the trial Court.
10. Learned counsel for the plaintiffs-appellants Shri B.S. Guliani submitted that the following substantial question of law arises in this appeal;-
“Whether the document Exhibit P1 which is a memorandum of settlement, required registration under Section 17 of the Indian Registration Act, 1908 ?”
11. The learned counsel submitted that Exhibit P1 did not require registration being a memorandum of family settlement and, therefore, the same is binding on the successors-in-interest of Kaur Singh. He further submitted that the finding to the effect that Exhibit P1 is not a memorandum of partition is legally unsustainable and is based on misreading of document Exhibit P1. In support of the legal proposition as raised by him in this appeal, the learned counsel placed reliance on decisions of the Supreme Court in Kale and Ors. v. Deputy Director of Consolidation and Ors., A.I.R. 1976 S.C. 807, Ram Lal v. Harbhagwan Dass, (1995-1)109 P.L.R. 368 and Mool Chand v. Udho Ram, (1994-2)107 P.L.R. 736.
12. Controverting the submissions of learned counsel for the appellants, Shri Satinder Khanna, learned counsel for the respondents submitted that the appeal does not involve any substantial question of law and both the Courts below have concurrently recorded a finding that Exhibit P1 is not a memorandum of partition and in fact it creates a right in praesenti and therefore, under the provisions of Section 17 of the Indian Registration Act, 1908 (for short, ‘the Act’), it required registration. Since the document Exhibit P1 is unregistered, it cannot be acted upon by the parties. The learned counsel has relied upon the following case law to buttress his arguments:
i) K.G. Mal v. Sham Behari Mal and Ors., 90 (2001) DLT 455.
ii) Harpal Singh and Ors. v. Mohinder Singh and Ors., 2002(2) P.L.J. 281;
iii) Bankey Bihari v. Surya Narain alias Munnoo, A.I.R. 1999 All. 167 and
iv) Chander Shekhar and Ors. v. Des Raj and Ors., (1989-2)96 P.L.R. 393.
13. The learned counsel further submitted that Manmohan Singh had been given l/4th share in 1953 and thus, he had become a co-sharer to that extent along with Piara Singh and Kaur Singh, and, therefore, Exhibit P1 could not have been legally and validly executed without associating him. He conversely submitted that Exhibit P-l without associating Manmohan Singh is nullity. In this regard, he placed reliance on 1997 (Supp.) C.C.C. 633.
14. The legal position relating to registration of family settlement has been conclusively settled by the Apex Court in Kale and Ors. v. Deputy Director of Consolidation and Ors., A.I.R. 1976 S.C. 807. The legal position governing registration of family settlement as laid down by the Apex Court is in para 10 thus:-
“10. In other words to put the binding effect and the essentials of a family settlement in a concertised 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 arrangements 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. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2)(sic) Section 17(1)(b)(?) of the Registration Act and, therefore, not compulsorily registerable;
(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 owners, 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 arrangements is final and binding on the parties to the settlement.”
The legal principal thus enunciated by the Apex Court is that where the document is containing terms and recitals of a family arrangement made under the document, it requires registration whereas a mere memorandum prepared after the family arrangement had already been effected, then in that situation it does not require registration as in such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(1)(b).
15. The only controversy between the parties is that whether Exhibit P1 is a memorandum of settlement, as alleged by the plaintiff-appellant and thus did not require registration in view of Section 17 of the Act or this is a document creating rights of the parties by partition and compulsorily required registration. I have closely examined the document Exhibit P1. A careful reading of the documents shows that it has been mentioned in the heading “Agreement”. The tenor of the agreement is in present tense and the recitals show that the parties to the agreement are partitioning the properties by virtue of the said document. Further, the condition regarding payment of Rs. 3,800/- i.e. Rs. 1,500/- and Rs. 2,300/- by Piara Singh to Kaur Singh also shows that the receipt of consideration on account of creation, declaration, assignment, limitation or extinguishment of any right, title or interest was in praesenti and, therefore, it required compulsory registration under the Act. Further, Exhibit P1 does not associate Manmohan Singh who had become cosharer in 1953 by virtue of sale deed executed by Kaur Singh to the extent of l/4th Share and, therefore, without associating him, document Exhibit P1 could not have been validly executed.
16. The learned counsel for the appellants has referred to oral statements of witnesses and also to the revenue record in the form of documentary evidence and has tried to persuade this Court to take a different view from the one taken by both the Courts below. The trial Court in paras 11, 12 and 13 of its judgment, after considering the evidence on record, had recorded the following findings;-
“11. I have carefully applied to the respective submissions. Plaintiffs have sought declaration to the effect that they are the owners in possession in equal shares of the suit land. They also pleaded that land was partitioned between predecessors-in-interest of the parties vide agreement Ex. P1. Defendants have denied any partition and pleaded that parties are not in exclusive possession of the properties. Agreement Ex. P1 is on the file. Perusal of which shows that heading “agreement” is written on the top of this document. This agreement is written in present tense, so that it could be used in future. When partition of immoveable properties is reduced into writing so that it could be used in future at the time of need, the document requires to be registered compulsorily. It was so held in 1994(2) C.C.C. 675 (supra). In the Jamabandies Ex.P2 for the year 1963-64, Ex.P3 for the year 1969-70 and Ex.P4 for the year 1974-75, Manmohan Singh is shown to be joint owner in the property situated at village Ghudani Kalan. There is note in Jamabandi P5 for the year 1979-80 that Manmohan Singh had sold his entire share and mutation No. 6368 was effected/sanctioned in this regard. In the Jamabandi for the years 1984-85 Ex.P6 names of Avtar Singh and Jagmohan Singh figure in the column of ownership on the basis of which mutation No. 6368 was sanctioned. Similarly, Jamabandi for the years 1989-90 Ex.P7 is also depicting the said persons to be the owners to the extent of l/4th share. Therefore, it is evident that Manmohan Singh was co-owner in the property in dispute, but no land was given to him vide Ex.P1. It is well settled principle that when a co-sharer is not given land, the document in question cannot be looked into.
12. In the copies of Jamabandies Ex.P14 and P15 for the years 1960-61 and 1966-67, respectively, Kaur Singh and Piara Singh are shown to be joint owners to the extent of l/2th share each. Perusal of copy of Jamabandi Ex.P18 for the year 1981-82 depicts the sons of Kaur Singh and LRs of Piara Singh to be joint owners of th suit property. In this Jamabandi, Jagmohan Singh is shown to be in joint possession of the suit property. Therefore, plaintiffs cannot be held to be in exclusive possession as owners of the suit land.
13. As already discussed above, Ex.P1 is written in present tense and it being not registered as required, cannot be looked into. Even if this agreement is taken into consideration, then also same is illegal as Manmohan Singh was not given any land through the document Ex.P1. Hence, the rulings cited by plaintiffs are not helpful to them. Plaintiffs failed to prove both these issues and hence, both these issues are held against the plaintiffs.”
17. The lower Appellate Court dealing with the matter has held as under:-
“.. Admittedly in the case in hand Piara Singh and Kaur Singh were having share in the lands etc. situated in both villages Ghudhani Kalan and Ghudani Khurd at the time, when the alleged family settlement Ex.P1 was arrived at in the year 1960 and the same was reduced into writing on 8.9.1961. But from the perusal of this family settlement Ex.P1, it is found that said Piara Singh and Kaur Singh had partitioned not only their lands situated in above said both the villages. Besides this, there is an endorsement on this document at page 2 that a sum of Rs. 1,500/- and Rs. 2,300/- was paid to Kaur Singh by Piara Singh as the price of the house and as well as regarding the deficiency of the land respectively. Then as per the provisions of Section 17(c) of Registration Act, 1980, non-testamentary instruments which acknowledge the receipt or payment of any consideration or account of the creation, declaration, assignment, limitation or extinction of any right, title or interest are legally required to be registered. As above said, in the case in hand, a sum of Rs. 1,500/- and Rs. 2,300/- was paid to Kaur Singh by Piara Singh as price of some house and as well as deficiency of land, meaning thereby that right of Kaur Singh qua the said house and land situated in village Ghudani Kalan was extinguished on receipt of this payment from Piara Singh. So as per the provisions of the above said Section 17(c) of the Registration Act, alleged family settlement Ex.P1 becomes compulsorily registerable. The matter would have been different had there been no endorsement as above discussed made on family arrangement Ex.P1.”
However, the learned counsel for the appellants has not been able to point out any error or misreading of evidence and has only tried to assail the findings of fact recorded by the Courts below. Both the courts below after considering the oral as well as documentary evidence, rightly concluded that document Exhibit P-1 created rights in the present and, therefore, was required to be compulsorily registered. The same without registration would not confer any right on the plaintiffs-appellants. It has further been rightly held that Manmohan Singh not being party to the same, the document Exhibit P1 has no legal force.
18. The findings recorded by both the Courts below are unassailable. Accordingly, it is held that Exhibit P1 being an unregistered document could not have been acted upon and plaintiffs-appellants cannot derive any benefit from Exhibit P1. In the light of what has been observed above, the question as formulated by counsel for the plaintiffs-appellants is decided against the plaintiff-appellants. Thus, there is no merit in this appeal. The same is hereby dismissed. The judgments of both the Courts below are upheld.
There shall, however, be no order as to costs.