Basant Lal and Others vs Ramji Dass (deceased) through L.R.'s and Others

J.V. Gupta, J.—This is defendant''s second appeal against whom suit for permanent injunction was dismissed by the trial Court, but was decreed in appeal.

Ramji Dass and Data Ram sons of Raikhi Ram filed this suit for the grant of permanent injunction restraining Basant Lal defendant No.1 from alienating the property in dispute being house No. 1613, Ward No.8, Safidon Mandi, on the plea that, firstly, the plaintiffs are the full owners of the house and in the alternative they have 1/8 share in the said house and the defendant had no right to alternate the same to any one in any manner. According to the plaintiffs, their father Rikhi Ram purchased the said house, though, in the name of Ruldu Ram their great grand father and thus they are the owners of the said property. Hence the suit for the grant of permanent injunction.

The suit was contested only by Basant Lal. The other defendants are proforma defendants. In his written statement he submitted that the house in dispute was purchased by his father Ruldu Ram and uncle Jamna Dass from His Highness Maharaja of Jind by means of a registered deed (Kabala), dated 21.9.1940 and the said house fell to his share in a family partition which took place on 30th March, 1949. He denied that the said house was purchased by Rikhi Ram in the name of Ruldu Ram or that the plaintiffs were full owners or they had 1/8th share in the said house.

The trial Court after discussing the entire evidence found that the plaintiffs having not been able to show that the house in dispute was the joint property of the plaintiffs and the defendants, they were not entitled to the grant of permanent injunction restraining the defendants from alienating the same, On the other hand, the overwhelming documentary evidence produced by the defendant leads to the irresistible conclusion that the defendant was the exclusive owner in possession of the house in dispute, and he was entitled to deal with it in any manner he liked. Consequently, the plaintiff''s suit was dismissed vide judgment dated August 30,1976. In appeal, the learned Senior Sub Judge with enhanced appellate powers reversed the said findings of the trial Court. According to the lower appellate Court, the family partition set up by Basant Lal defendant being un-registered could not be relied upon and in the absence of any family partition, the defendant could not claim himself to be the exclusive owner. According to the learned Senior Sub Judge, the fact that Ruldu Ram had 1/2 share, in the house in dispute, share of the appellants comes to 1/16th in the said house. He also observed that this position would stand only if it is held that the house in question was not partitioned. In view of this finding, the plaintiffs'' suit was decreed to the following effect:

"The suit of the appellant is decreed and respondent No.1 is restrained by way of injunction from alienating the suit property beyond his share in it, till actual partition of the property."

Learned counsel for the defendant-appellant submitted that the view taken by the lower Appellate Court was wholly wrong, illegal and mis-conceived. The endorsement on the document Exhibit DW2/1 was in the nature of family settlement and therefore it did not require any registration. It was under that arrangement that he house in dispute had fallen to the share of the defendant. Moreover, argued the learned counsel, the same was admissible to show the nature of the possession of the defendant if it required registration. In support of his contention he referred to Rikhi Ram v. Sada Ram, 1976 C.L.J. (Civil) 594. Thus according to the learned counsel the plaintiff''s suit the permanent injunction as such not maintainable since he was never in possession of the house. Even the plaintiff himself did not come into the witness box in support of his case and therefore the trial Court rightly dismissed the plaintiffs'' suit.

On the other hand, the learned counsel for the plaintiff-respondents submitted that endorsement Exhibit DW2/1 could not be said to be a family arrangement. IT was a clear case of partition as such and hence it required registration. In support of his contention, he referred to Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others, . He further submitted that it was of no consequence that the plaintiff did not enter the witness box. From the evidence of the record it has been held that, there was no partition and therefore the plaintiff had 1/16th share therein. According to the learned counsel, this being a finding of fact could not be interfered with in the second appeal.

After hearing the learned counsel for the parties and going through the relevant record of the case, I am of the considered view that the approach of the lower Appellate Court in holding that the endorsement Exhibit DW2/1 required registration is wring. It was in then nature of family arrangement which took place as far back as on 30th March, 1949. Since then the defendant Basant Law is in exclusive possession thereof. Moreover Section 49 of the Indian Registration Act does not bar the proving of unregistered instrument of partition for the purposes of ascertaining the nature of possession. Nature of possession can be proved by oral and other documentary evidence as held by this Court in the judgment referred to above. The approach of the trial Court in this behalf was more reasonable particularly when it was found that apart from the Kabalanama, the receipt in Ex. D.1 clearly shows that the plaintiffs have credited the amount of rent in the account of the defendant in respect of certain property including the property in dispute. Exhibit D.1 clearly shows that property in dispute is exclusively owned by Basant Lal defendant No. 1 and is not the joint property of the parties. In Tek Bahadur''s case (supra), it was held that family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notions about it in future. It was further held therein that a document which is no more than a memorandum of what had been agreed to between than the parties does not required compulsory registration under S.17 of the Registration Act. Thus in the circumstances of the case, the endorsement of Exhibit DW2/1 did not require compulsory registration. Consequently, this appeal succeeds and the judgment and decree of the lower Appellate Court is set aside and that of the trial Court dismissing the plaintiff suit is restored with no order as to costs.