Laxman Dangi vs Hari Singh & Others

 The appellant/plaintiff has filed this appeal being aggrieved by the judgment and decree dated 29.6.2000 passed in Civil Appeal No.57-A/1998 by

the 3rd Addl. District Judge, Khargone, and decree dated 10.11.1997 passed by Civil Judge, Class-II, Khargone by which suit as well as First Appeal

both have been dismissed.

The facts of the case, in short, for effective disposal of this appeal are as under .

(1) That Sitaram and Shankarsingh are sons of late Nanuram. The plaintiff â€" Laxman is son of Sitaram and Defendants â€" Motisingh and

Harisingh are sons of Shankersingh. Defendant No.4 and 5 are sons of Motisingh.

(2) That Nanuram after his death had left agricultural land situated in Village Banihar having total area 65.43 Acres. After the death Sitaram

and Shankersingh had jointly inherited the said land as joint family property. According to the plaintiff being the only son became the co-owner of half

share in the suit property after the death of Sitaram in the year 1983. Since he was in service he left the village and by taking advantage of his

absence, the defendants had got mutated their name in the revenue records. The plaintiff filed an application for partition before the Revenue Court

but vide order dated 27.7.1988, the Sub Divisional Officer dismissed the appeal, therefore, the plaintiff filed the suit claiming partition, possession of the

suit property measuring 65.43 Acres.

The defendants jointly filed the written statement and refuted the claim of the plaintiff by submitting that the partition between Shankersingh and

Sitaram had been taken place in the year 1933 by which Sitaram kept only 5 Acres of land and relinquished the rights in favour of Shankersingh.

Sitaram filed an application before the Tehsildar which has been dismissed on 10.3.1981. The aforesaid pleading was made in the written statement by

way of amendment.

On the basis of pleadings, the learned trial Court framed 8 issues for adjudication. Thereafter plaintiff has got examined himself as P.W.1, Harisingh

as P.W.2. He got exhibited Khasra entry of the year 1925-26 as Ex. P/1, Khasra entry of the year 1922-23- as Ex. P/2 and legal notice as Ex. P/3.

The defendants have got examined Shobharam as D.W.1, Badrisingh as D.W. 2, Sadhuram as D.W.3. The defendants have got exhibited partition

deed as Ex. D/1, application dated 23.8.1998 filed by Late Sitaram for partition as Ex. D/2, proceeding dated 10.3.1981 as Ex. D/3, proceeding dated

23.8.1986 of a case filed by the plaintiff as Ex. D/4, proceeding dated 13.3.1987 as Ex. D/5, order dated 29.6.1987 passed by Tehsildar as Ex. D/6,

order of SDO dated 29.9.1988 as Ex. D/7.

The learned Civil Court vide judgment and decree dated 10.11.1997 has dismissed the suit on the ground that partition held by Ex. D/1 is binding on

the plaintiff and he is owner of only 5 ‘Bigha’ land out of entire suit property which he is entitled to get the same by way of partition through the

Revenue Court.

Being aggrieved by the dismissal of the suit, the plaintiff filed the first appeal. Vide judgment and decree dated 29.6.2000, the first appeal has been

dismissed, hence the present second appeal before this Court.

Vide order dated 24.4.2002, the appeal has been admitted on the following substantial questions of law :-

“(1) Whether Lower Appellate Court was justified in non suiting the plaintiff by relying upon Ex. D/1 ?

(2) Whether the Lower Appellate Court wasjustified in holding that Ex. D/1 relied upon by the defendant is legally proved and can be used for non

suiting the plaintiff ?

(3) Whether the defendant could be given benefitof Section 90 of the Evidence Act for the purpose of proving Ex. D/1 which according to the

defendant was a partition deed executed by plaintiff’s father ?

(4) Whether lower Appellate Court was justified innot awarding mesne profit to the plaintiff even in respect of the decree passed in their favour ?â€​

I have heard the arguments of Shri J B Mehta Ld Counsel for appellant and Shri Arpit Oswal Ld. Counsel for the respondents .

That, plaintiff Laxman being the son of Sitaram filed the suit for declaration, partition and possession claiming 1/2 share in the suit land left by his

grandfather Nanuram. After the death of Nanuram, the land was jointly recorded in the name of Shankersingh and Sitaram as evident from Ex. P/1

i.e. Khatoni Bandobast of the year 1925. As per defence taken by the defendant that the said property was partitioned between Shanker and Sitaram

and for which a relinquishment deed was executed on 29.5.1933 by Sitaram. Sitaram had signed it by accepting the contents of the deed. As per the

aforesaid deed, Sitaram had relinquished his right over the land in favour of Shanker and kept only 5 ‘Bighas’ of land with house for himself. He

has authorized Shanker to use the land came into his share . The Shankar took liability to repay the loan also .

The plaintiff had argued before the Civil Court as well as before the appellate Court that the said partition deed/relinquish deed is not admissible

in the evidence for want of registration u/s. 17 of the Registration Act, 1908. Admittedly, the said deed is an unregistered deed, but whether Sitaram

did receive any share and relinquished his right over the other suit land. Therefore, this Court has admitted the appeal only on the substantial

question of law as to whether the plaintiff can be non-suited by relying unregistered Ex. D/1 and the defendants could be given the benefit of

Section 90 of the Indian Evidence Act.

That under section 90 of the Indian Evidence Act, there is a presumption about the signature of Sitaram over the deed (Ex. D/1) as it is more than

30 years old document. The said presumption is rebuttable but plaintiff did not produce any evidence to establish that his father did not signed the

Exb.D/1. That at the time of producing the said document in during examination in chief the plaintiff raised an objection about its nonregistration. The

learned Civil Court has permitted to mark the same as Ex. D/1 with the condition that the said objection would be decided at the time of passing the

judgment. Section 17 of the Registration Act mandates compulsory registration of the deed of relinquishment.

In Ex. D/1, it had been recorded that the entire land and the business was with Shanker and Sitaram had agreed for that and permitted to continue

with Shankar. He took only 5 ‘Bighas’ of land out of entire land and that too he gave to Shanker for cultivation. The said deed was signed by

Sitaram alone on a stamp in presence of two witnesses. Therefore, the deed is neither a partition deed nor a relinquish deed, but an

acknowledgment by the Sitaram in respect of the arrangement between Shanker and Sitaram which was continuing after the death of Nanuram.

He had agreed that the same arrangement would continue further. Not only the land but the loan over the family was also given to Shanker by

Sitaram. It has come on the record that the plaintiff was in the employment and left the village and Shanker continued in possession over the entire

land. Therefore, Ex. D/1 is in the nature of family arrangement, which did not create any right in favour of Shanker and Sitaram, but given effect to

the pre-existing right over the suit property. Hence, such a document does not require registration. I find support from the following judgments of the

Apex Court.

The Apex Court in the case of Maturi Pullaiah V/s. Maturi Narasimham : AIR 1966 SC 1836, has held as under :-

 “15. Relying upon this judgment it is contended that a competing title is a necessary condition for the validity of a family arrangement. But it will

be noticed that the widows, who had only a woman's interest in the property, divided the property between themselves: they could not enlarge their

interest in the estate. A widow could enter into a bona fide arrangement in regard to the estate only to preserve it against a conflicting claim against

the estate.

 16. This Court in Sahu Madho Das v. Mukand Ram AIR1955SC481. defined the scope of a family arrangement and its ingredients. That appeal

arose out of a suit filed by a reversioner for the recovery of the properties alienated from persons claiming under the widow, after the succession

opened. The defendants relied upon an arrangement between the widow and her daughter's grandsons whereunder the widow gave certain properties

to them absolutely. In dealing with the question whether such an arrangement would amount to a valid family arrangement, Bose, J., speaking for the

Court, observed: “It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some

sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling

to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively.

But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in

a family and do justice to its various members and avoid, in anticipation, further disputes which might ruin them all, that we have no hesitation in taking

the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claims to all title and interest in all the

properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had

claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple

from him or her, or as a conveyance for consideration when consideration is present.

These observations show how strongly Courts lean in favour of a family arrangement that brings about harmony in the family. The decisions cited at

the Bar are only illustrations of the passage quoted from Halsbury's Laws of England in its application to the peculiar circumstances of our country.â€​

The Apex Court in another case of Kale & others V/s. Deputy Director of Consolidation : AIR 1976 SC 807, has held as under :-

“10. In other words to put the binding effect …..........

 (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a

distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere

memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for

making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore

does not fall within the mischief of Section 17(2) (sic) (Sec. 17(1) (b)?) of the Registration Act and is, therefore, not compulsorily registrable.â€​

The plaintiff in his evidence has admitted that he recognizes the signature of his father but denied the execution of Ex. D/1. He has only raised an

objection about its nonregistration of the deed (Ex. D1). P.W.2 has also stated that he has never seen Sitaram cultivating the land. Sitaram and

Shanker had separated from the family 40 years back. Sitaram filed an application for partition before the Tehsildar, but the same was dismissed.

Thereafter, the plaintiff filed an application for partition and that too was dismissed on merits by the Tehsildar as well as by the Sub Divisional

Officer. Neither plaintiff nor defendants’ witnesses have stated that they saw Sitaram cultivating the land during his life time. Therefore, the deed

Ex. D/1 was given effect way back in the year 1933 on the basis of arrangement which was going on in the family.

In view of the above, both the Courts below have rightly dismissed the suit as well as the appeal relying upon Ex. D/1, therefore, the question of

law Nos. 1, 2 and 3 are answered against the appellant/plaintiff.

The defendants have admitted the share of plaintiff up to 5 ‘Bighas’ of land and stated that they are ready to give him. Therefore, the

learned trial Court ought to have awarded the mesne profit along with decree of grant of 5 ‘Bighas’ of land to the plaintiff. The plaintiff had

claimed mesne profit @ Rs.5,000/- per year from the date of dispossession till handing over of the possession. The plaintiff has claimed possession by

filing an application before the Revenue Court for partition but did not disclosed exact date of his dispossession . In the suit he claimed mesne profit

from the last 3 years from the date of filling of the suit . Therefore, the suit is partly decreed in favour of appellant/plaintiff. The plaintiffs are entitled

for the mesne profit @ Rs.5,000/- per year from the date of filling of the suit till handing over of the possession in respect of 5 ‘Bighas’ of land.

Decree be drawn accordingly.