Janardan Rai & Ors vs Umesh Prasad Rai & Ors

The plaintiffs have filed this First Appeal challenging the

judgment and decree dated 10.03.1978 passed by the learned 7th Addl.

Sub Judge, Bhagalpur in Title Suit No.163 of 1975 whereby the

learned trial Court dismissed the plaintiff''s suit.

The plaintiff appellants filed the aforesaid suit praying for

declaration of title and for declaration that by execution of sale deed

dt.29.01.1975 executed by defendant 2nd party in favour of defendant

Ist party has not affected the title of the plaintiffs.

The plaintiff case in short is that Anant Ram Rai and Tarni

Rai were brothers and members of joint Mitakshra family. The

plaintiffs are the descendents of Anant Ram Rai whereas the widow

and daughters of Tarni Rai are the defendants 2nd party. The

defendant Ist party are the purchasers from defendant 2nd party. Since

Tarni Rai had only daughters and was keeping bad health as such was

difficulty in borrowing money for marriage of his daughter.

Apprehending future litigation, he entered into arrangement with his

brother Anant Ram and his sons and according to the arrangements,

Tarni Rai relinquished his interest in the joint family properties in

favour of his brother, late Anant Ram Rai and the plaintiff. As

agreed, Anant Ram Rai maintained the family of Tarni and got

married his daughters. This arrangement was made in January, 1962

and Memorandum was prepared on 11.03.1962 and since then the

plaintiffs and their father became the exclusive owner of the entire

suit property.

The further case is that the defendant 2nd party, the widow

of Tarni Rai came under influence of the defendant Ist party and

executed a sale deed dated 19.01.1975. The sale deed is without

consideration and it contains false and fictitious recital of legal

necessity. The plaintiffs are owner of the property and still are

continuing in possession. Because of this sale deed, a cloud has been

casted over the title of the plaintiff so the suit was filed.

The defendants on being noticed appeared. Separate

written statements were filed by defendant No.7, the defendant No.2

and 3 filed joint written statement, the defendant No.1 and 6 filed

joint written statement and the defendant No.8 and 9 filed joint

written statement. This defendant No.8 and 9 are the widow and one

daughter of Tarni Rai. The defence is almost the same. Mainly, it is

contended that after the death of their father, Asharfi, in the year

1952, both the brother separated themselves in mess and status. By

provisional arrangement, 50 biggha including the suit land out of 118

biggha joint properties were allotted to Tarni Rai which was being

separately cultivated by Tarni Rai. After death of Tarni Rai in 1964,

his widow, defendant No.8 came in possession along with her

daughters. The story of family arrangement has been denied by these

defendants. The allegation of bad health and apprehension of

litigation and requirement of money for marriages is also denied by

the defendant.

The further defence is that the so called Memorandum dated

11.03.1962 is forged and fabricated document which has been created

for the purpose of this suit. The plaintiffs nor their father ever came

in possession of the suit land. Tarni Rai himself got his first daughter

married in the year 1960. After his death, the defendant No.8 got her

second and third daughter married in 1965 and 1975 respectively and

the fourth one was still unmarried. The sale deed was executed by

them in favour of the defendant Ist party for the benefit of their family

and delivered possession to the purchasers and since then the

purchasers are coming in possession.

On the basis of the aforesaid pleadings of the parties, the

learned trial Court framed the following issues :-

(i) If the suit as framed is maintainable?

(ii) Have the plaintiffs any cause of action for this suit?

(iii) Is the suit property valued and court fee paid is sufficient?

(iv) If the suit is hit by section 34 of the Specific Relief Act?

(v) Is the suit bad for non-joinder of parties?

(vi) Was there any separation between Anant Ram Rai and Tarni

Rai in the year 1952 as alleged by the defendants?

(vii) Was there any family arrangement on 11.03.1962 as alleged

by the plaintiffs and if the plaintiffs acquired absolute title in

the properties of Tarni Rai by virtue of the said

arrangement?

(viii) Are the plaintiffs entitled for declaration as claimed?

(ix) To what relief or relief, if any, the plantiffs, are entitled.

The learned trial Court after hearing the parties and

considering the evidences came to the conclusion that there was

neither any family arrangement in January, 1962 or in the month of

March, 1962 as alleged by the plaintiff as such the plaintiff have not

acquired title over the share of late Tarni Rai. Accordingly, plaintiff''s

suit was dismissed.

The learned counsel, Dr. Ansuman, appearing on behalf of

the plaintiff appellant submitted that it is the settled law that family

arrangements should be given effect to. The plaintiff produced the

family arrangement, i.e., Panchnama, ext.2 in support of his case that

there was family arrangement between both the brothers but the

learned trial Court discarded this documentary evidence on untenable

grounds. The plaintiffs also produced evidences in support of the case

that after the family arrangement, the plaintiff continued in possession

of the entire property and in fact the plaintiff and their father

maintained the family of Tarni Rai but the learned Court below

disbelieved the evidences of the plaintiff. Therefore, the learned trial

Court mis-appreciated the evidences as a result of which the

plaintiff''s suit has been dismissed.

The learned counsel further submitted that it is quite natural

that a father who has got only daughters will think for the future of the

daughters and will naturally be worid that his property will be graved

by any person and therefore, in this situation, Tarni Rai entered into

the family arrangement with his brother, Anant Rai and relinquished

his interest in the property by ext.''2''. Since the said family

arrangement the title of Tarni Rai vested on the Anant Rai and his son

but the learned trial Court disbelieved this case also. The widow and

the daughters of Tarni Rai had no right to sell the property because

Tarni Rai during his life time, himself had relinquished his share,

therefore, the widow and daughters did not inherit anything as such

there was no question of transferring the suit property, the title of

which vested on the plaintiff but the learned trial Court disbelieved

this story and this case also and wrongly dismissed the plaintiff'' suit.

On these ground the learned counsel, Dr. Anshuman submitted that

this First Appeal be allowed, the judgment and decree be set aside and

the plaintiff'' suit be decreed in toto holding that the sale deed

executed by defendant 2nd party in favour of defendant Ist party is as

void document and did not affect the title of the plaintiff.

Nobody appeared on behalf of the respondent.

In view of the above submission of the learned counsel for

the appellant, the only point arises for consideration is as to whether

by the relinquishment, i.e., Panchnama, ext.''2'' title passed to plaintiff

and their father?

The main dispute between the parties is the relinquishment

of title by Tarni Rai. According to the plaintiffs, by this family

arrangement, Tarni Rai relinquished his title. On the contrary,

according to the defendants, neither there was any family arrangement

nor there was any panchnama and Tarni never relinquished his title.

The decision of this First Appeal centers around this point. If it is

held that by this relinquishment, title passed to Anant Rai and his sons

then naturally the consequences will be that Tarni''s heir had no right

but if it is held that by family arrangement and relinquishment deed,

i.e., Panchnama, ext.2. Title did not pass to Anant Rai then the

consequences will be that title remained with Tarni Rai and after his

death, his heirs inherited. Therefore, the other evidences regarding

rent receipt, possession or that the sale deed is without consideration

will be immaterial.

The plaintiff has examined the Punches who had prepared

the Memorandum of Panchnama, i.e., ext.2. The Punches are P.W.4,

6, 8. They have deposed that there was oral arrangement between

the two brothers and pursuant to the said oral arrangement ext. ''2'' was

prepared by them. The other witnesses P.W.1, 3, 7, 9 including the

punches also have stated about the bad health of Tarni Rai. Their

statement is only to the fact that Tarni Rai was keeping bad health.

Therefore, these statements made by these witnesses are only bald

statement without there being any supporting documentary evidences.

Moreover, keeping bad health or entering cannot be ground of

relinquishment of his interest. If he was in bad health then he could

have got himself treated out of the income of 50 bigghas or he could

have sold some land for generating fund for his treatment or for

managing the family affairs. It is not believable that he will relinquish

his title over the land.

On the contrary the defendant also produced the witness

D.W.2, 7, 9 and 11. All of them have denied illness of Tarni Rai.. As

stated above, these oral evidences are not very material as these

evidences related to the illness or bad health of Tarni Rai. Now, let us

consider accepting the case of plaintiff that Tarni Rai was keeping

bad health and he entered into arrangement and relinquished his share

by ext. ''2''. It may be mentioned here that this ext. ''2'' is unregistered

deed. The property involved is 50 bigghas.

The Hon''ble Supreme Court in the case of Yellapu Uma

Maheshwari Vs. Buddha Jugagheeswara Rai 2015 (4) PLJR 494 SC

has held that ''it is well settled that the nomenclature given to the

document is not decisive factor but the nature and substance of the

transaction has to be determined with reference to the terms of the

document and that the admissibility of a document is entirely

dependent upon the recitals contained in that documents but not on the

basis of the pleadings set up by the party to seek to introduce the

document in question. Where there is relinquishment of right in

respect of immovable property through a document which is

compulsorily registerable document and if the same is not registered,

becomes an inadmissible document as envisaged under Section 49 of

the Registration Act. Hence ext. ''B-21'' and ''B-22'' are the document

which squarely fall within the ambit of Section 17 (1) (b) of the

Registration Act and hence are compulsorily registerable document

and the same are inadmissible in evidence for the purpose of proving

the factum of partition between the parties.''

It appears that in the case before the Supreme Court, Ext. B-

21 and B-22 were the two relinquishment deed. The Supreme Court

held that because of non-registration, these documents are

inadmissible. In the present case according to the plaintiff by this

family arrangement, ext. ''2'' Tarni Rai relinquished title over 50

biggha land. The nomenclature has been given as Memorandum of

Panchanama. In view of the decision of the Supreme Court, the

nomenclature is immaterial but the recital is the decisive factor for

considering the nature of document. By this document, title with

respect to immovable property has been relinquished, therefore it

requires compulsory registration. Since it is not registered, it is

inadmissible in evidence.

It is settled principle of law that on admission, title will not

pass. Title will pass only after registering a document and on

payment of consideration amount. Therefore, merely by oral

relinquishment coupled with Panchnama, ext.''2'', title never passed to

Anant Rai. In other words, title remained with Tarni Rai. So far the

mutation paper or rent receipts are concerned, it is also settled law that

the revenue records or documents neither create title nor extinguish

title. Now, therefore, when title did not pass because of ext. ''2'', there

is no question of passing title because of mutation or because of

obtaining rent receipt arises.

The learned counsel for the appellant submitted that the

leaned trial Court itself has recorded that there was some sort of

family arrangement between the brothers which supports the case of

the plaintiff. So far this submission is concerned also, it has got

nothing to do with passing of title from Tarni Rai to Anant Rai.

In view of my above discussion, I find that the plaintiff

appellant failed to prove their title over the suit property. The finding

of the trial Court on this point is, therefore confirmed. The point is

answered against the appellant and in favour of the respondent.

In the result, I find no merit in this First Appeal.

Accordingly, this First Appeal is dismissed. Since nobody is

appearing on behalf of the respondent, no order to cost.