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Memorandum of family settlement does not require registration under Sec 17 of Registration Act-SC



Ravinder Kaur Grewal & Ors. V. Manjit Kaur & Ors. CIVIL APPEAL NO. 7764 OF 2014- July 31, 2020.

The Bench comprising of A.M. Khanwilkar, J. pronounced the judgment on the appeal against the judgment passed by the High Court of Punjab and Haryana.

The appellants would contend that the High Court disposed of the second appeal in a casual manner and more so, without dealing with the finding of fact recorded by the first appellate Court in favour of the plaintiff. It is urged that the first appellate Court, after noticing the admitted factual position, proceeded to first examine the question whether the document dated 10.3.1988 (Exhibit P6) was executed by the parties or not. That fact has been answered in favour of the plaintiff (appellants) after analysing the evidence on record. It has been held that the stated document was indisputably executed by the parties. The next question considered by the first appellate Court was whether the stated document required registration or not, which has been justly answered in favour of the plaintiff (appellants) on the finding that it was merely a memorandum of family settlement and not a document containing terms and recitals of the family settlement made thereunder. For that, the first appellate Court noted that the plaintiff had constructed 16 shops and a samadhi including boundary wall on the suit land on his own, which fact was indisputable and established from the evidence on record. Further, the plaintiff was in possession of the suit land. Even this finding is supported by the evidence on record and is wellestablished. It is also established from record that as per the family settlement, the plot in Prem Basti belonging to Harbans Singh (plaintiff) was given to Sohan Singh (original defendant No.2), which was in possession of Mohan Singh (original defendant No. 1) and that another plot purchased by plaintiff in the name of his son Vikramjit Singh was given to Mohan Singh (original defendant No. 1) and his wife.

The respondent Nos. 1 to 3 would contend that the High Court has rightly considered the document Exhibit P6 as containing terms and recitals of family settlement and for which reason it was essential to get the same registered. It is urged that there was no preexisting title in favour of the plaintiff in respect of the suit property, as the same was purchased in the name of concerned defendant by way of a registered sale deed. The parties were not in possession of Joint Hindu Family property as such and therefore, the question of partition of that property does not arise. The plea that there was no Joint Hindu Family property was taken by the plaintiff in the replication filed before the trial Court. This plea was taken in the context of the assertion made by the defendants in the written statement that the suit property was jointly owned by Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2). The contesting respondents have reiterated the stand that there was no family settlement in 1970, as stated by the plaintiff and that the signature of the defendant No. 2 appearing in document Exhibit P6 is forged and fabricated. Further, the High Court has justly nonsuited the plaintiff and preferred to restore the partial decree passed by the trial Court on the conclusion that the document Exhibit P6 is inadmissible in evidence, as it has not been registered despite the transfer of title in immovable property worth more than Rs.100/. In other words, the High Court answered the substantial question of law against the plaintiff and as a result of which it rightly allowed the second appeal filed by the defendants (respondent Nos. 1 to 3).The view so taken by the High Court is unexceptionable.

Being the former, no registration was necessary.  For which reason, relief claimed by the plaintiff founded on the family settlement between the real brothers arrived at in 1970, acted upon   without   any   exception   and   documented   on   10.3.1988, ought to follow.

The Court observed that;

In the present case, as noted earlier clause (v) of Section 17(2) is attracted, which pertains to execution of any document creating or extinguishing right, title or interest in an immovable property amongst the family members. Thus, the dictum in Kale & Ors. vs. Deputy Director of Consolidation & Ors (1976) 3 SCC 119 is attracted in the fact situation of this case. Considering the above section, this hon’ble court had no hesitation in concluding that the High Court committed manifest error in interfering with and in particular reversing the well-considered decision of the first appellate Court, which had justly concluded that document dated 10.3.1988 executed between the parties was merely a memorandum of settlement, and it did not require registration. It must follow that the relief claimed by the plaintiff in the suit, as granted by the first appellate Court ought not to have been interfered with by the High Court and more so, in a casual manner, as adverted to earlier. Having said that, it is unnecessary to examine the alternative plea taken by the plaintiff to grant decree as prayed on the ground of having become owner by adverse possession. For the completion of record, this hon’ble court mentions that in fact, the trial Court had found that the possession of the plaintiff was only permissive possession and that finding has not been disturbed by the first appellate Court. In such a case, it is doubtful that the plaintiff can be heard to pursue relief, as prayed on the basis of his alternative plea of adverse possession. Be that as it may, we deem it appropriate to set aside the impugned judgment and restore the judgment and decree passed by the first appellate Court in favour of the plaintiffs (appellants herein).

This Hon’ble court held that the judgment and decree passed by the first appellate Court is restored in favour of the plaintiff (appellants herein). Decree be drawn up accordingly. Therefore appeal is allowed and pending interlocutory applications, if any, shall stand disposed of.

View/ Download the Judgment Ravinder Kaur Grewal & Ors. V. Manjit Kaur & Ors

CIVIL APPEAL NO. 7764 OF 2014
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Karthik K.P (School of Law, SASTRA Deemed to be University)


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