Jagdish vs Mani Ram

N.K. Kapoor, J.—This is defendants'' regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court thereby decreeing the suit of the plaintiffs.

Parties are real brothers. Plaintiffs filed a suit for declaration on the basis of a family settlement that both the plaintiffs have been given 4 kanals land each. According to the plaintiffs a family settlement took between the parties and ever since then they are in possession of the same as owners. So, the revenue record which continued to show defendant to be owner of the land to the extent of these 8 kanals is liable to be corrected in favour of the plaintiffs.

Defendant resisted the claim set up by the plaintiffs on the ground of locus standi, mis-joinder and non-joinder of necessary parties, maintainability of the suit, plea of estoppel and jurisdiction etc. On merit, it was stated that defendant is owner in possession of the suit land and that no family settlement took place between the parties.

On the pleadings of the parties a number of issues were framed but primarily the contest revolved around issue No. 1, which reads as:-

Whether the plaintiffs are owners in possession of the suit land in equal share on the basis of family settlement as alleged? OPP:

Trial Court after considering the oral as well as documentary evidence especially the document exhibit P-l, an affidavit bearing the thumb impression of the defendant, found substance in the plea of the plaintiffs and so decided this issue in favour of the plaintiffs. The Court further held that the possession of the suit land had already been delivered to the plaintiffs. In view of material finding of issue No. I in favour of the plaintiffs the suit of the plaintiffs was decreed as prayed for.

The lower appellate Court on reconsidering the matter on fact as well as law found no valid reason to vary or reverse the findings recorded by the trial Court. Thus, the appeal too was dismissed.

Challenging the concurrent findings recorded by the Court below, the counsel for the appellant has termed these to be wholly unwarranted on facts as well as unsustainable in law. Accordingly to the counsel, Courts below have erred in law in placing implicit reliance upon document Exhibit P-l as well as taking the same in evidence without the same being registered thus, leading to the decreeing of the suit. According to the counsel, a bare perusal of exhibit P-l dated 17.3.1986 reveals that same is an affidavit allegedly bearing the thumb impression of the defendant. There is no mention in the document as to any alleged family settlement having been taken prior to the execution of this document for any inference of a family settlement can be drawn from this document. The affidavit has not been duly attested by the oath Commissioner/ Notary Public/Magistrate. There is no reference in this document as to any prior oral family settlement as now set up by the plaintiffs. Not only this, even the so called family settlement does not bear the signatures of the plaintiffs. Thus, the Courts below have erred in law in relying upon this document and concluding that a family settlement took place between the parties.

Counsel for the respondent on the other hand argued that the basis of the suit is the oral family settlement between the parties and this document exhibit P-l merely evidences the earlier concluded family settlement between the parties and so the same did not require registration In any case, admission made by the defendant to the fact that he has parted with 4 kanals of land each in favour of both the plaintiffs is by itself a sufficient proof that in fact a family settlement took place between the parties. So, non-attestation of this document no way decreases the value of this document. Otherwise too, the Courts below on appreciation of evidence led by the parties have rightly came to the conclusion that the defendant parted with the land in favour of the plaintiff.

I have heard the learned counsel for the parties as well as perused exhibit P-I and other documents referred to by the respective counsel. Admittedly, the parties are real brothers. Basis of the suit is a family settlement. Plaint though merely makes mention of the family settlement but does not make any mention of document exhibit P-l dated 17.3.1986. In fact, this document has not been even filed alongwith the plaint. It is subsequently on 8.1.1988, when the same was placed in record. Document exhibit P-l does not bear the signatures of the plaintiff. It has also not been attested by an Oath Commissioner/Notary Public or by a Magistrate. A perusal of this document (which is an affidavit) reveals that there is no mention of a family settlement or of any such settlement having taken place prior to the swearing of this affidavit. There is no denying the fact that a family arrangement can be even oral requiring no registration; all the same a family settlement has to be a bona fide one so as to resolve family disputes and claims by a fair and equitable division or allotment of properties between various members of the family. All that this document exhibit P-l states is that defendant gives 4 Kanals of land to Manpnool and 4 Kanals to Mani Ram. Reference to any family settlement is singularly missing in exhibit P-l. As noticed in the earlier part of the judgment, the plaint also does not make mention of the existence of any document like exhibit P-l. Had this document exhibit P-l, a family settlement or memorandum of settlement the same would have borne the signatures/thumb impression of the plaintiffs as well. Reliance cannot be placed upon this document exhibit P-1 as the same has not been attested. Execution of such a document is not free from doubt especially when the same is being made the basis for transferring of immovable property of value exceeding rupees one hundred. Courts below have erred in law in not critically examining the unattested affidavit exhibit P-1. Except for this document there is no evidence worthy of credence on the basis of which it could be inferred that there has been a family settlement between the brothers. Accordingly, I accept the appeal, set aside the judgments and decrees of the Courts below and dismiss the suit of the plaintiffs.

No order as to costs.