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Heirs of father of Hindu female are included as person who can succeed; members of family qua female

When heirs of the father of a female are included as a person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.” (Para 27)


KHUSHI RAM & ORS. V/S NAWAL SINGH & ORS.

CIVIL APPEAL NO.5167 of 2010 - 22 February 2021


The Hon’ble Supreme Court consisting of Justice Ashok Bhushan and Justice R. Subhash Reddy held in this case that, in the celebrated judgment of this Court in Kale and Ors. Vs. Deputy Director of Consolidation and Ors., (1976) 3 SCC 119 had elaborately considered all contours of the family settlement. This Court laid down that term “family” has to be understood in a wider sense to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim, or even if they have a spes succession. A detailed note has been made after hearing the arguments of both parties.


The brief facts of the case as emerging from the pleadings of the parties are that One Badlu, who was the tenure-holder of agricultural land situated in Village Garhi Bajidpur, Tehsil, and District Gurgaon, had two sons Bali Ram and Sher Singh. Sher Singh died in the year 1953 issueless leaving his widow Smt. Jagno. Plaintiffs-appellants are descendants of Bali Ram. After the death of Sher Singh, his widow inherited a share of her late husband, i.e., half of the agricultural property owned by Badlu. A Civil Suit No.317 of 1991 was filed by Nawal Singh and two others against Smt. Jagno in the Court of Sub-Judge, Gurgaon claiming decree of declaration as owners in possession of the agricultural land mentioned in the suit to the extent of half share situate in Village Garhi Bajidpur. The plaintiffs claimed that Smt. Jagno, who was a sharer of the half share, has in a family settlement settled the land in favor of the plaintiffs, who were the brother’s sons of Smt. Jagno. Smt. Jagno filed a written statement in the suit admitting the claim of the plaintiffs. Smt. Jagno also made a statement in the suit accepting the claim of plaintiffs, the trial court vide its judgment and decree dated 19.08.1991 passed the consent decree in favor of the plaintiffs declaring the plaintiffs' owners in possession of the half share in the land.


The trial court framed nine issues. It was found that Issue Nos. 2 to 5 were answered in favor of the defendants. The trial court also rejected the argument of the plaintiffs that in absence of registration of decree, no right or title would pass in favor of the defendants. The First Appellate Court held that under Section 14(1) of the Indian Succession Act, a Hindu female becomes full owner of the property, which she acquires before the commencement of the Act and not as a limited owner. After hearing Shri Ranbir Singh Yadav, learned counsel for the appellant, and Shri Manoj Swarup learned senior counsel for the respondent, the high court stated that:

There is no dispute between the parties that Shri Sher Singh, husband of Smt. Jagno had half share in the agricultural land situated in village Garhi Bajidpur, which was suitable property. Sher Singh died in 1953. Smt. Jagno after enforcement of the Hindu Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property. The bone of contention between the parties centres round the decree dated 19.08.1991 passed by the Sub-Judge in Civil Suit No.317 of 1991 filed by defendant Nos.1 to 3 against Smt. Jagno seeking declaration that they are owners in possession of the suit land”. (Para 9)


In the aforesaid suit, a written statement was filed by Smt. Jagno admitted the claim of the defendants. The trial court in its decree dated 19.08.1991 held the following in paragraph. The defendant appeared and filed a written statement admitting to the claim of the plaintiffs. Statements of the parties were also recorded. In view of the written statement and statements of parties, a consent decree in favor of the plaintiffs and against the defendant is passed for declaration as prayed for, leaving the parties to bear their own costs. Decree sheet is prepared and the file is consigned to the record room.”. In this appeal, the following two questions arise for consideration:-

(1) Whether the decree dated 19.08.1991 passed in Civil Suit No.317 of 1991 requires registration under Section 17 of the Indian Registration Act, 1908?; and

(2) Whether the defendant Nos.1 to 3 were strangers to defendant No.4 so as to disable her to enter into any family arrangement with defendant Nos.1 to 3?

With regard to question 1, there is no dispute that in the earlier Civil Suit No.317 of 1991 in which consent decree was passed on 19.08.1991, the subject matter of suit was the agricultural land situated in Village Garhi, Bajidpur. Further, the suit was decreed on the written statement filed by Smt. Jagno accepted the claim of plaintiffs that there was a family settlement between the parties in which the half share in the land was given to the plaintiffs of Civil Suit No.317 of 1991. Looking at the issue in the hands of The Supreme Court, after hearing out both the counsels the court held that

This Court held that since the decree which was sought to be exhibited was with regard to the property which was subject matter of suit, hence, was not covered by exclusionary clause of Section 17(2) (vi) and decree did not require registration. The issue in the present case is squarely covered by the above judgment. We, thus, conclude that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause. Thus, we answer question No.1 that the consent decree dated 19.08.1991 was not registrable and Courts below have rightly held that the decree did not require registration.(Para 20)


With regard to the 2nd question, the case of Kale and Ors. Vs. Deputy Director of Consolidation and Ors., (1976) 3 SCC 119 had elaborately considered all contours of the family settlement. The reference of this case was that term “family” has to be understood in a wider sense to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes succession. In this case, the Kale, with whom the two sisters of his mother entered into the family settlement was not a legal heir within the meaning of U.P. Tenancy Act, 1939 but the family settlement entered with Kale was upheld by this Court. Reverting to the facts for which the present case was dealt out, the court held that:

“The defendants-respondents were nephews, i.e., brother’s sons of Smt. Jagno. We need to look into the Hindu Succession Act, 1956, Section 15, which deals with the general rules of succession in the case of female Hindus for properties inherited by female Hindus, which are devolved according to Sections 15 and 16. (Para 26)


The court also stated with reference to Section 15(1)(d) “ When heirs of the father of a female are included as a person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.” (Para 27)


Concluding the Court held that;

In the present case, Smt. Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. We, thus, do not find any merit in the submission of learned counsel for the appellants that the defendants-respondents were strangers to the family.” (Para 28)

The appeal was dismissed, with parties bearing their own costs.


To view/ download judgment: KHUSHI RAM & ORS. V/S NAWAL SINGH & ORS.


Aaron Varughese

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