Jaidev Singh vs Sujan Singh and Another

D.P. Wadhwa, J.

(1) This is plaintill''s appeal. His suit for declaration and injunction against his two brothers and mother was dismissed by judgment dated 12/11/1969 by the Sub-Judge 1st Class, Delhi, plaintiff sought a decree that it be declared that property bearing No. 36/15,Tihar Ii, Ashok Nagar, New Delhi, comprising 2-1/2 storeyed and built on a plot of land measuring 100 sq. yards was a joint property of the plaintiff and his two brothers, defendants 1 and 2. The plaintiff also sought permanent injunction restraining the first defendant from disposing of the suit property without the express concurrence in writing of the plaintiff and the other brother, defendant No. 2.

(2) The principal contesting defendant was defendant No. 1 Sujan Singh in whose name the property was standing. During the pendency of the suit Sujan Singh died and so also the mother of the parties Parmeshwari Devi but not before they had appeared as witnesses during the trial. Defendants2 and 3 were ex pane. They appeared as witnesses, however. Defendant No. 2 Rawal Chand supported his brother Sujan Singh: Parmeshwari Devi, their mother, however, supported the plaintiff in their respective statements.

(3) The plaintiff alleged that he, his two brothers and mother migrated from Pakistan. His father had expired in Pakistan. He said the aforesaid properly was allotted to the parties as a rehabilitation measure and since Sujan Singh, the first defendant, was major and the plaintiff and defendant No. 2 as minors, the property was allotted in the name of Sujan Singh. At that time it consisted only of one built up singletree room. Thereafter with the contribution of all the brothers 2-1/2storeyed house was built. There were disputes among the parties. A Panchayat of elders was formed who settled the dispute and recorded the terms of settlement on 7/11/1965 Under this family settlement the plaintiff and the second defendant Rawel Chand were to own and remain in physical possession and enjoyment of the ground floor of the property and the defendant Sujan Singh was entitled to the physical possession and enjoyment of the remaining house other than the ground floor. Mother of the parties, defendant No. 3, was to be entitled to living and maintenance from the plaintiff and Rawal Chand. The parties were also liable to individually pay off the loan raised by them, if any, and the household effects were to be partitioned by the parties themselves and it was said that in case there was any difficulty on that score assistance of the respectable would be procured for that purpose, plaintiff then alleged that this family arrangement was partly acted upon and the plaintiff and defendants 2 and 3 were in physical possession and enjoyment of the ground floor. Cause of action to file the suit arose when Sujan Singh started quarreling with the plaintiff and other two defendants and disowning the family arrangement. It is alleged that be was also manipulating to dispose of the suit property fraudulently, thus depriving the other parties of their valuable rights therein. plaintiff claimed the suit property to be joint property and parties bound by the terms of the aforesaid family arrangement. As noted above, defendant No. 2 Rawel Chand and mother Parmeshwari Devi were proceeded ex parte. First defendant Sujan Singh filed his written statement. He disputed the case set up by the plaintiff. He raised many preliminary objections and said the property was governed by the provisions of title Displaced Persons (Compensation and Rehabilitation) Act and that jurisdiction of the Civil Court was barred He said property was allotted in his own right and none of the defendants has any right, title or concern in the same. He said family arrangement was forced upon him and it has even otherwise no legal sanctity. In short the case of the first defendant was that the conveyance deed and lease deed of the property in question was granted to him in his sole name as owner by the authorities under the Displaced Persons (.Compensation and Rehabilitation) Act. He said claim was made before these authorities and each of the defendants got Rs. 919.00 in cash as his/her respective share of compensation but the plaintiff instead of getting that compensation got the allotment of the house in question which was at Rs. 1670.69. The balance of the amount after deducting Rs. 919.00 was payable in Installments which the first defendant said was paid by him.

(4) On the pleadings of the parties the following issues were framed:-

Whether the property in suit is the joint property or the plaintiffs and defendants 1 and 2 ? OPP.2. Whether the order of rehabilitation authorities conferring the right of ownership of the house in dispute in favor of defendant No. 1 has become final, if so what is its effect? OPD.3. Whether the jurisdiction of Civil Court to try this suit is barred by Section 36 of Act 44 of 1954 ? OPD.4. Whether the suit is not maintainable ? OPD.5. Whether the suit has been correctly valued for purposes of Court fee and jurisdiction ? OPD.6. Whether Union of India is a necessary party ? CPD.7. Relief.

Additional Issue:

Whether there was any valid family arrangement? If so, to what effect? OPP.

(5) In support of his case the plaintiff produced live witnesses including himself, and the defendant also produced five witnesses including himself. The defendant also brought on record the family arrangement/ dated 7/11/1965 which was marked as "A". First witness of the plaintiff was his mother. She said the expenditure on the construction of the house was borne by her and her three sons and that earlier the house had been allotted in lieu of the property left by the parties in Pakistan which property, sHe said. belonged to her husband. She said that all the three brothers had shares in the house and also said she had herself a share in it as well. She said the entire family was joint and the first defendant being the eldest son was doing acts on behalf of all the parties. She also referred to the dispute and subsequently that being settled by the panchayat. She admitted that she had received her share of compensation of Rs. 919.00 in cash and also received the shares of her two minor sons, the plaintiff and defendant No. 2. She said though no records were kept of the expenditure incurred on the house, but all the brother would give money to the first defendant. She admitted that no application was made to the rehabilitation authorities for allotment of the house in the name of all the heirs. She said first defendant would not like the house to be partitioned. Second witness of the plaintiff is Beant Singh. He was member of the panchayat and proved his signature on the family settlement mark ''A''. Third witness is Sunder Singh. He said, he knew the parties and that their father had passed away before Pakistan was formed. He said after the death of the father, first defendant Sujan Singh was the katra and the house in question was allotted to him being head of the family. He said the house had been constructed by all the three brothers, jointly. He admitted that he was living in Malviya Nagar while the house in question was situated at Tri Nagar at a distance of about 10 to 12 miles. He said he had no relationship with the parties but said they were on visiting terms. He said family arrangement mark ''A'' was written by Sardul Singh in his presence. Fourth witness is Jaswant Singh and also witness to the family arrangement. Then the plaintiff appeared as PW-5. He reiterated what he said in his plaint. He said there was a dispute regarding the house and other material and as there was settlement other material was also partitioned. This material, He said, was partitioned by the parties themselves later on which was after IU/15days of the date of the settlement. He said after family settlement mark ''A''was written partition was to be got registered after getting the stamp paper, but the first defendant refused to do so. As such the suit had to be filed. He said when the house was allotted in the name of the first defendant he was minor and so was his second brother and that there was no understanding. He said his guardian was his brother Sujan Singh and not his mother though his claim was received by his mother. He said he did not maintain any account of his income from which he gave any money to his brother Sujan Singh. Then comes the evidence of the first defendant. First witness is TaraChand, a U.D.C. from the office of the Chief Settlement Officer under the Displaced Person (Compensation and Rehabilitation) Act. He said a joint claim was filed in the name of Sujan Singh, Rawel Chand and Jai Dev Singh through their mother Parmeshwari Devi. Subsequently the claim was split up in the names of all of them separately. The witness had brought relevant the record and on the basis of the record he said each share was in the sum of Rs. 9191-and 5 annas. He said the share of Sujan Singh was adjusted against House No.36/15, Tihar II; while other claimants got their shares in cash. Parmeshwari Devi, mother, bad also received share on behalf of her minor son, the plaintiff, while the second son Rawel Singh (Rawal Chand) received his share in cash. Second witness is Rawel Chand, defendant No. 2. He admitted, he received his share of compensation in cash. He said the share of first defendant Sujan Singh was adjusted against the price of the house in question and the remaining house was constructed by Sujan Singh himself. He said neither he nor the plaintiff had any share in the house in dispute. He supported the first defendant. Third witness of the defendant is Mallu Ram,a clerk from the office of the Municipal Corporation of Delhi. He deposed about the property taxes being paid by the first defendant. Yet another witness is Veer Bhan from the office of the Land and Development Office, New Delhi. He produced record of the allotment of the house in question in favor of the first defendant. He said a man of over five years age was treated as an adult and where family consisted of more than five adult members that was allotted a two rooms house and the allotment was used to be made to the family and it was made in the head of the family. He said allotment was it made to a single person. He said, he, however, had not brought any instructions to show that a person of over five years of age was considered as an adult. He denied knowledge of allotment of some houses whether they were allotted as per the guidelines stated by him. He admitted that lease deed in respect of the property in question was issued in the name of the first defendant. Then there is statement of the first defendant himself. He has supported his case set out in the written statement. He said other parties we reliving in the house because of the relationship with the first defendant. He admitted the family arrangement but said it was the plaintiff who backed away from it and did not divide the house in question as per that family settlement. He said it was he who was paying the house tax all through. He denied any contribution paid by any of the brothers towards construction of the house.

(6) After examining the pleadings of the parties and the evidence both oral and documentary, the learned Sub Judge in his well considered judgment held issue No. 1 and additional issue in favor of the first defendant and held all other issues in favor of the plaintiff. He /held the family arrangement mark ''A'' to be inadmissible in evidence holding that it required registration under Clause (b) of Sub-section (1) of Section 17 of the Registration Act as a document which was compulsorily registrable .The result was that the suit was dismissed with gcosts.j Mr. Jain; learned Counsel for the plaintiff-appellant said stress on the statement of the mother of the plaintiff and that of Veer Bhan Clerk from the office of the Land and Development Office. To the extent that there was a family settlement he also relied upon the statement of defendant No. 2 as well as of the first defendant. We may note at this stage itself that before us defendant No. 2 now supported the plaintiff when earlier in his statement he had supported the first defendant. Mr. Jain stressed that the first defendant being head of the family had been allotted the house in question in lieu of the properties left by the parties in Pakistan. He also stressed that the construction of the house subsequently was done by pooling the resources of all the three brothers together. He said it was the first defendant who was head of the family and relying on the statement of Veer Bhan he said that the house was allotted in the name of the first defendant as head of the family. He also said that the amount of cash received by the other parties was given to the first defendant for the purpose of paying the full cost of the house and subsequent construction thereon. To us it appears this is a half hearted approach to the problem. The document do not support the case set up by the plaintiff''. The fact remains that the house was allotted to the first defendant in lieu of the compensation payable to him and the other parties received their respective compensation in cash. There is no evidence of any contribution paid by the plaintiff and the second defendant to the first defendant for further construction of the house, In fact second defendant stands condemned by his own statement. Mr. Manmohan Singh appearing for the first defendant said that though the application for compensation was joint it was split up and each of the parties had got his/her individual share of compensation. The allotment letter (Ext.PW5/1) he said was in the name of the first defendant. He said the family settlement mark ''A'' was inadmissible in evidence as rightly held by the learned Sub Judge.

(7) We cannot find fault with the judgment of the learned Sub Judge. He has considered all the aspects of the matter in their proper perspective. It is possible that when the members had good relations there may not been any record of any contribution and it could also be possible that the plaintiff and the second defendant did make some payment to the first defendant for further construction of the house, but that would not mean that by making this contribution they had become owner of the part of the house. Could it be that the share of the plaintiff and second defendant was held benami in the name of the first defendant ? Even if that be so Benami Transactions (prohibition) Act, 1988. would bar the remedy of these two brothers (see Mithilesh Kumar and Another Vs. Prem Behari Khare, . A great deal of argument was addressed on the document mark ''A'' and to understand the scope and effect of this document which has been held to be inadmissible in evidence it may be appropriate to set out the same in full :-

TODAY, the 7/11/1965, Sardar Suddar Singh, Maluk Singh, Sunder Singh, Sardar Jagat Singh of Tilak Nagar, Sardar Jaswant Singh of Tilak Nagar, Sardar Beant Singh of Tilak Nagar and Sardar Sardul Singh of Hari Nagar have assembled to form a Panchayat. As there was difference regarding house No. 36/15.Ashok Nagar, in which Sujan Singh, Rawel Chand and Jai DeviSingh and their mother live and concerning other household effects which became the cause of dispute. Accordingly, all the three brothers unanimously called the Panchayat consisting of the above said members and they accepted the following decision of the Panchayat. (1) The entire lower portion of the house shall be with Rawel Chand, Jai Dev Singh and their mother. Both have equal share in the lower portion.(2) The upper portion which has been newly constructed has come to the share of Sujan Singh.(3) Rawel Chand, Jai Dev and their mother have no concern with the upper portion and Sujan Singh has no concern with the lower portion. They themselves shall divide among themselves the remaining household effects according to the list. If they are unable to divide the same themselves, then they may call some members of the Panchayat and get the household goods divided. Rawel Chand and Jai Dev have no right to the goods concerning the marriage of Sujan Singh. Whatever loan has been raised in connection with the aforesaid house by any one of them, he will be liable to pay the same. Sujan Singh shall bring and give to his mother Rs. 1700.00 which are with Ahliya Devi in Rama Krishan Puram. Sujan Singh shall have to give to his mother this sum by April, 1966.After this decision, the formalities concerning the division of household goods stand completed. Keeping in view the just decision made by the Panchayat, we are satisfied that no dispute of any kind is left over. If we raise any kind of dispute among ourselves after this, the person who is held guilty by this Panchayat shall have to pay Rs. 500.00 as fine. Sujan Singh shall shift from the ground floor to the upper portion with his entire goods within one month. In the meantime he shall construct his own separate passage leading to the upper portion. In this way they shall have separate passage for themselves. Hence this writing has been executed before the Panchayat so that it may be of service in time of need. The panics shall get this writing made on a stamp paper of Rs 2.00 within a period of15 days."

(8) Under Clause (b) of Sub-section (1) of Section 17 of the Registration Act, 1908, a document of the following description is compulsorily registrable:

(B)non-testamentary instruments which purport or operate to create, declare, assign, limit, or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable proprty;

(9) Then u/s 49 of this Act if such a document is not registered it shall not affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property. The proviso to Section 49 is as under :-

"PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act,1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877 (I of 1877), or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral, transaction not required to be effected by registered instrument."

We are, however, not concerned with the proviso in the present controversy between the parties.

(10) In Roshan Singh and Others v. Zile Singh and Others, Air 1988 S C. 88l, it has been clearly held that if the writing itself affects a division it must be registered. On the question as to how look at the family settlement mark ''A'' the following passage from the judgment of the Supreme Court in Roshan Singh''s case would be quite apt .-

"IT is well settled that while an instrument of partition which operates or is intended to operate as a declared volition Constituting or severing ownership and chooses a change of legal relation to the property divided amongst the parties to it. requires registration u/s 17(1) (b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(l)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must Therefore flow : (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain it will be necessary to register it. It be not registered. Section 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition : See Mulla''s Registration Act8th Edn Jpp. 54-57."

(11) In Tek Bahadur Bhujil v. Debi Singh Bhujil and Others Air 1976S.C. 292 the Supreme Court said as under on the essentials of family arrangement vis-a-vis its requirement for registration :-

"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 be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notions above it in future. It is only when the family arrangement reduced in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document requires registration because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration u/s 17 of the Registration Act."

(12) If reference be made to document mark ''A'' keeping in view the principles of law as laid down it is apparent that entire lower portion of the house was given to the plaintiff and the second defendant and their mother both these brothers having equal shares. The upper portion which had been newly constructed came to the share of first defendant Sujan Singh Household items were to be divided by the parties themselves. First defendant Sujan Singh was also required to shift from the ground floor to the upper portion which had come to his share with his entire goods within one month. He was also required to construct his own separate passage leading to the was portion To such a document provisions of Section 17(l)(b) are clearly attracted. It was to be registered and not having done so Section 49 would bar this document to be of any consequence. We agree with the conclusions arrived at by the learned Subordinate Judge, but "we should not be taken to have said anything on the applicability of proviso to Section 49 of the Registration Act to the family settlement mark ''A.'' During the cause of hearing of the appeal we made attempts if the matter could be settled between the parties, but we were not successful. The appeal is Therefore dismissed. In the circumstances we will leave the parties to bear their own costs.