Family Arrangement
   Date :03-Aug-2020

current trends in law_1&n
 
 
By Adv. R. S. Agrawal
 
The established facts and circumstances clearly indicate that a family settlement was arrived at in 1970 and also acted upon by the concerned parties. That finding of fact recorded by the first appellate court being unexceptional one, it must follow that the document was merely a memorandum of a family settlement so arrived at. Resultantly, it was not required to be registered. 
 
THROUGH a judgment in the case – Ravinder Kaur Grewal & Others v. Manjit Kaur & Others, delivered on July 31, 2020, the Supreme Court has held in a verdict of far-reaching importance that document relating to interest in immovable property worth more than Rs 100/- transferred in favour of the plaintiff did not require registration. Justice A. M. Khanwilkar and Justice Dinesh Maheshwari have upheld, approved and restored the judgment of the first appellate court – District Judge, Sangrur and set aside the judgment of the Punjab & Haryana High Court. On November 29, 2003, the said District Judge allowed the plaintiffs’ appeal and modified the judgment and decree passed by the trial court.
 
The first appellate court declared the original plaintiff as owner of the suit land along with constructions including 16 shops, a service station and boundary wall with samadhi on the land. The HC set aside the conclusion recorded by the lower Appellate Court and opined that the document which, for the first time, creates a right in favour of plaintiff in an immovable property in which he had no pre-existing right would require registration, being the mandate of law. Accordingly the second appeal came to be allowed and the judgment and decree of the First Appellate Court was set aside by the HC, which restored the decree of the trial court, of November 27, 2007.
 
The apex court has pointed out that the core issue is whether the document was required to be registered as interest in immovable property worth more than Rs 100/- was transferred in favour of the plaintiff? It was not in dispute that the parties are closely related. Original defendants 1 and 2 are real brothers of original plaintiff. It may appear from the revenue record that the concerned parties owners in respect of separate properties and not as joint owners. The facts in the case clearly establish that there was not only univocal family arrangement between the parties, but it was even acted upon by them without any exception.
 
 
This factual position has not been doubted by the HC. As a matter of fact, the HC has not even bothered to advert to this aspect, while analysing the correctness of finding of fact recorded by the first appellate court, which was the final fact-finding court. From the impugned judgment, it is noticed that after giving the basic facts, the HC first extracted the relevant portion from the trial court’s judgment and thereafter adverted to the finding and conclusion recorded by the trial court on other issues. The established facts and circumstances clearly indicate that a family settlement was arrived at in 1970 and also acted upon by the concerned parties.
 
That finding of fact recorded by the first appellate court being unexceptional one, it must follow that the document –Exhibit P-6 was merely a memorandum of a family settlement so arrived at. Resultantly, it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.
 
In the SC’s considered view, reliance placed by the HC on this court’s decisions will be of no avail to alter or impact the conclusion recorded by the first appellate court. In its decisions- Bhoop Singh v. Ram Singh Major –(1995) 5 SCC 709 and Somdev & others v. Ratiram-(2006) 10 SCC 788, the SC dealt with question of necessity to register any decree or order of a court governed by clause (vi) of section 17 (2) of the Registration Act, 1908. In the present case, however, clause (v) of sub- section (2) of section 17 of the said Act is attracted. In the context of applicable clause (vi) of section 17(2) The Court has held in the Bhoop Singh’s decision that: (1) Compromise decree if bona fide, in the sense that the compromise not a device to avoid payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
 
(2) If the compromise decree were to create ‘for the first time’ right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration. In the present case, clause (v) of Section 17(2) is attracted, which pertains to execution of any document creating or extinguishing right, title or interest in an immovable property amongst the family members. Considering this, the SC has stated that it has no hesitation in concluding that the HC committed manifest error in interfering with and in particular reversing the well –considered verdict of the first appellate court, which had justly concluded that document of March 10, 1988 executed between the parties was merely a memorandum of settlement and it did not require registration. It must follow that the relief claimed by the plaintiff in the suit, as granted by the first appellate court ought not to have been interfered with by the HC and more so in a casual manner. Having said so, it was held by the Court that it was unnecessary to examine the alternative plea taken by the plaintiff to grant decree as prayed on the ground of having become owner by adverse possession.
 
In fact, the trial court had found that the possession of the plaintiff was only permissive possession and that finding has not been disturbed by the first appellate court. In such a case, it is doubtful that the plaintiff can be heard to pursue relief, as prayed on the basis of his alternative plea of adverse possession. The court deemed it appropriate to set aside the impugned judgment and restore the decree and judgment passed by the first appellate court in favour of the appellant- plaintiffs. Accordingly, the SC has allowed the appeal, set aside the impugned judgment of the HC and restored the judgment and decree passed by the first appellate court in favour of the appellant-plaintiffs (before the Supreme Court).