Girdwari and Others vs Reshmi (Since Deceased, Through Her LRs.) and Another

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?

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.

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.

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 observed 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 had 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 appeal filed, through a judgment which is as cryptic and laconic, the appellate Court relied on a

judgment of the Supreme Court in Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar and Another, 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 earlier suit constituted the vitiating circumstance and set aside the judgment. Taking up the issue of the maintainability, the

appellate Court held that the daughters had a right and interest in the property and at any rate, the suit was maintainable.

The plaintiffs, who sued to challenge the decree passed in Civil Suit No. 438 of 1979 allowing for the right to be asserted by the grandchildren

were aware that such a relief was possible only if they could establish their own subsisting interest in the property. They had, therefore, a plea to

make in suit, which was essential, that the properties had been gifted orally by their mother at the time of respective marriages of their three

daughters and the plaintiffs together were entitled to a 2/3rd share in the properties. Surprisingly at the trial, there was no serious attempt to prove

the marriage settlements. Indeed, there could be no oral gifts in the eye of law, for, transfer of property was required to be made only through an

instrument in writing and registered in the manner required u/s 17 of the Registration Act. There is no room available for a claim to property by oral

gift for Hindus. A plea of oral gift on the basis of which suit was filed was on a slippery ground and the suit should have been rejected on a

fundamental premise of non-maintainability of the suit at the instance of the plaintiffs. Unfortunately, the trial Court did not address the issue

properly but made a statement that the defendant did not show as to how the plaintiffs had no locus standi and the appellate Court answered the

issue by saying that the plaintiffs were the daughters of 6th defendant-mother and, therefore, the suit was maintainable.

I would find the approach of the courts below to be cavalier and not oriented to any judicial principles. Cases are not decided merely on

proximity of relationship between parties and that a suit could be filed by a daughter against the mother. What was essential to be seen was

whether the plaintiffs had any subsisting interest that could be a subject of adjudication by a challenge brought about to a transaction by the mother.

In my view, the property, which admittedly originally belonged to the father Mam Raj, on his death in the early 1940s, fell to be succeeded as the

widow''s estate by his widow Dhapan-the 6th defendant. In the scheme of Mitakshara law governing succession in the absence of sons, the first

heir was the widow. The daughter was the next in the order of succession if the widow was not there. Daughters did not inherent till all the widows

were dead (Mulla''s Hindu Law, Volume-I, 21st Edition, 2010 page 145). The widow''s estate of what Dhapan''s held enlarged to an absolute

estate on the coming into force of the Hindu Succession Act by virtue of Section 14(1). When therefore, the whole property belonged to the

mother, the daughters had merely a chance of succession called in legal parlance as spes successionis. The plaintiffs could not have, therefore,

maintained the suit as persons, who had no subsisting right to challenge any transaction which the mother entered into. If the oral gift was not

approved by both the courts below, the shortest exist from the litigation was for the Court to hold that no other relief was necessary to be granted.

The issue of whether the decree was valid or binding did not simply arise, for, the plaintiffs were themselves not parties to the suit and the grant of a

declaration that a decree passed between their mother and grandchildren were null and void was not required to be answered at all. It is

fundamental principle that a decree can bind only parties to the suit except in three known situations of admiralty, succession and insolvency

jurisdictions. Only the said three types result in judgments in rem and in all other situations, they are judgments in personam. Inevitably, the decree

allowing for the grandsons to assert a claim to the property was not a, decree which the plaintiffs had a locus standi to question, so long as there

was no entitlement to the property to the plaintiffs by virtue of the alleged oral gift.

The suit which was dismissed was on a finding that the family settlement was valid. I cannot go as far as to uphold the validity of the settlement

on the ground that the mother accepted the family settlement in the manner canvassed by the appellant. The issue of whether it would require to be

registered or not has come in situations where there were disputed claims to the property which were sought to be quelled through an amicable

settlement. The law that accords sanctity to family settlement has therefore arisen in situations, rights of parties amongst the shares in Hindu Joint

families have been considered. The learned counsel for the appellants has brought before me several judgments which have upheld family

settlements and views expressed diluting the rigors of a written instrument and registration. I will merely state them for completion of consideration

as all the points which were addressed through pleadings and brought before the courts below, but not as matters which are necessary for the

disposal of this appeal. Kale and Others Vs. Deputy Director of Consolidation and Others, was probably the fulcrum on which the entire

jurisprudence of family settlement has come about. The Supreme Court was considering a case of a family settlement between persons, who were

entitled to shares in the property and the manner in which the rights were adjusted. Referring to its own ruling in a S. Shanmugam Pillai and Others

Vs. K. Shanmugam Pillai and Others, , the Court held that the family properties and family peace among the close relations were settled through

family settlement amicably. The Supreme Court observed that it would be reluctant to disturb the same. Referring to the questions raised that arose

for consideration, the Court said that family arrangement could be made even orally. It could be even issues of doubtful claims but there must be at

least some semblance of claims.

A widow, who inherits the property from husband and who holds it absolutely, gives no room to a maternal grandson to seek a claim nor was

even an effort made at the trial to show that the grandsons had any semblance of right in the property otherwise than through the decree. If the

grandmother had allowed for a transfer of interest in the property, then if the persons in whose name the transfer was made already had a

subsisting interest, a decree per se would operate to acknowledge such title. If the grandmother was the absolute owner and she was creating a

transfer of interest on an alleged acknowledgment that she had recognized her grandchildren to be the owners through a family settlement, then

such settlement which creates an interest for the first time would require to be registered. It is a repeated theme in our courts that the parties resort

to collusive action of decrees which do not obtain any validity and get to be impeached by the suits filed by other members of the family. There are

any number of decisions which hold that a decree which creates an interest in the property for the first time to a person, who did not already have a

right would require to be registered and a transfer of interest cannot take place through a decree itself. We have not learnt our lessons but this is a

vexed subject time and time again in our courts and subordinate courts merely act as mute participants by granting decree and adding up to the

number of disposals. It gives no credit to the institution of justice to be allowing for decrees which are meaningless. This point was brought out in a

judgment of the Supreme Court in Bhoop Singh Vs. Ram Singh Major and others, that held that the compromise decree or a consent decree

which purports to create right in the property with no pre-existing right to one party was not valid to create a transfer of interest if it was not

registered being against Section 17 of the Registration Act. A still earlier ruling in K. Raghunandan and Others Vs. Ali Hussain Sabir and Others,

also held that a decree which purports to create an interest for the first time that remains unregistered shall not be valid. Bhoop Singh (supra) as

doubted in a still later judgment of the Supreme Court in Phool Patti and Another Vs. Ram Singh (Dead) through Lrs. and Another, where a two

member Bench has referred to a larger Bench for consideration of the correctness of the judgment in Bhoop Singh (supra), but even without such a

doubt expressed, K. Raghunandan (supra) itself is an answer to the issue that a compromise decree that acknowledges a right to the party, who

did not previously have any pre-existing interest, cannot secure a right without registration of the compromise.

The learned counsel for the appellants cites before me that the Court will have power to uphold oral partitions. That is simply not the issue

before this Court. There is no prohibition under law for members of a family to partition the property orally. The partition does not result in transfer

within the definition of ''transfer'' under the Transfer of Property Act and it is specifically excluded. Consequently, an oral adjustment of rights

through partition does not require to be written at all. However, there are two important propositions that have emerged in this area. If a partition is

brought about through an instrument which contains the bargain between parties, it is required to be written on appropriate stamp papers and duly

registered. If partition, on the other hand, is oral and a list is prepared as a fait accompli, then such an instrument, which is in the nature of an

acknowledgment of an oral partition, does not require registration. Several decisions which are cited before me one after another do not dilute the

proposition which I have outlined above. Mukanda Vs. Kura Ram and Others, and Khushi Ram and Others Vs. Nawal Singh and Others, relate

only to issues of an oral family settlement or the settlement which the Court recognizes as valid. In the latter judgment, the Court was considering

the case of a decree suffered by the sister in favour of her brothers after a family settlement after a dispute 2 years earlier and found by the Court

as not requiring registration since it was an issue of an attempt to quell family dispute between persons, who had some semblance of rights. I have

already observed in this case that grandchildren cannot have even a semblance of right during the grandmother''s lifetime. Like the plaintiffs, they

also had merely a chance of succession, if all the daughters had pre-deceased the grandmother. Otherwise an acknowledgment of a right by the

grandmother to the grandchildren cannot operate to create any transfer of interest. It is a settled law that title to immovable property cannot be

transferred by mere admission. (See. Ambika Prasad Thakur and Others Vs. Maharaj Kumar Kamal Singh and Others, ). The settlement which

the defendants were propounding, namely, a decree granting to them a right would stand, as a decree for the plaintiffs in the said suit, to whatever

circumstance that they may think they could use to it, but as a principle of law, I would only hold that the decree does not secure any particular

legal right in the property.

Having found the suit to be not maintainable and that the suit was liable to be dismissed, I need not have answered this issue but I have allowed

for this exposition to go in order that I answer all issues which are raised in suit.

During the time of the pendency of the suit and at the trial, the mother was still alive. The mother has preferred an appeal along with her

grandchildren and the sister of the plaintiffs, Girdwari, challenging the judgment of the appellate Court. At least, till the appeal was filed before this

Court, the grandmother had been litigating against the plaintiffs. On her death, during the pendency, the Court has merely recorded the fact of

death and has held no steps are necessary. What consequence it would make to her estate is not a matter that is decided in this suit. I have stated

this to stave clear of any apprehension of either of the parties that this litigation traverses beyond what was bargained for by the respective parties.

The judgment and the decree of the lower appellate Court are set aside although for different reasons and the appeal is allowed, but subject to the

observations made above.