Radha Krishan Bhardwaj @ Rakesh ... vs Ishwar Dutt Sharma
2012 Latest Caselaw 1525 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.79/2004

%                                                     5th March, 2012

         RADHA KRISHAN BHARDWAJ
         @ Rakesh Kumar Sharma                         ..... Appellant
                         Through: Mr. Sandeep Bajaj, Adv.


                      versus


         ISHWAR DUTT SHARMA                                      ..... Respondent

                      Through:           Mr. J.S.Sinha with
                                         Mr. Vikas Malhotra with
                                         Mr. M.P.Sahay, Advs.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?            Yes


VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal(RFA)

filed under Section 96 of the Code of Civil Procedure, 1908(CPC) is to the

impugned judgment of the Trial Court dated 22.9.2003 dismissing the suit

for partition and possession filed by the appellant/plaintiff.

2. The disputes in the present case pertain to the property

originally owned by Sh. Chhidu Singh, father of the respondent/defendant

and grandfather of the appellant/plaintiff. This property is a plot of land

admeasuring 126 sq. yds. along with construction thereupon. Out of the

126 sq. yds, the front portion of 72 sq. yds. was constructed so far as the

ground, first and second floors, and on the remaining 54 sq. yds. portion

(which is the back portion) there was construction only of the ground floor.

Sh. Chhidu Singh died on 14.12.1973, and before his death he had executed

a total of four Wills, the last of which was the Will dated 27.7.1973, with

its amendment dated 27.9.1973. This Will is not in dispute between the

parties, and the parties agree that late Sh. Chhidu Singh had executed this

Will dated 27.7.1973 along with the amendment dated 27.9.1973.

3. The parties thereafter had also admittedly signed an untitled

document on 24.12.1977. This document is signed not only by both the

parties to the suit, but also by their late mother-Smt. Ram Devi. This

document dated 24.12.1977 is actually a decision of one Sh. Sohan Lal

Sharma to whom parties had referred their disputes for settlement. In fact

Sh. Sohan Lal Sharma was designated in the Will dated 27.7.1973 for

resolving any dispute between the parties. Sh. Sohan Lal Sharma was thus

a referee/umpire (wrongly referred to by the trial Court as an arbitrator) and

his decision was accepted by the parties by signing the document dated

24.12.1977. By this admitted document dated 24.12.1977, there was, what

is said to be an „amendment‟ to the Will dated 27.7.1973, and as amended

on 27.9.1973. The dispute between the parties is as to what exactly is the

nature of this amendment for the requirement as to the registration i.e. the

dispute is actually a technical dispute inasmuch as the appellant/plaintiff

claims that this document dated 24.12.1977 ought to have been registered

under Section 17 (1)(b) of the Registration Act, 1908, but having not been

registered, the same cannot create any rights in view of Section 49 thereof.

4. After as many as 24 years (no less) of the parties having

executed this document dated 24.12.1977, suddenly the appellant/plaintiff

woke up and claimed rights which were in effect a challenge to the

document dated 24.12.1977. It was firstly argued that the document dated

24.12.1977 required registration inasmuch as when this document allowed

construction to be made and enjoyed by the respondent/defendant over the

54 sq. yds. back portion (which had till then been only constructed upto the

ground floor) the same created a right, title and interest over the property in

excess of `100/-. The object of challenging this document was that the

plaintiff/appellant claimed that as per the fourth Will dated 27.7.1973 with

its amendment dated 27.9.1973 he had an equal right in the entire land of

126 sq. yds. and therefore the respondent/defendant should be denied the

right to construct over and above the constructed ground floor on the

back/southern portion of 54 sq. yds.( and which rights were given to

defendant/respondent by the document dated 24.12.1977 signed/accepted

by all the parties), as the same would be a negation of his equal right in

such construction over and above the ground floor back portion on 54 sq.

yds.

5. To the argument on behalf of the appellant/plaintiff of

invalidity of the document dated 24.12.1977 on account of lack of

registration of the same, the respondent/defendant countered that the

document in question did not require any registration inasmuch as the same

did not create any rights for the first time but was only a document which

recorded an existing right under a family settlement or the document dated

24.12.1977 only recorded a clarification of that portion of the last Will

dated 27.7.1973, executed by late Sh. Chhidu Singh along with its

amendment on 27.9.1973, which pertained to the rights of the parties in the

different parts of the whole property and the land of 126 sq. yds. on which

the property was situated.

6. The Trial Court has decided this issue by holding that this

document dated 24.12.1977 did not require registration because the same

only contained a recital of what had already been agreed and the document

did not create a right, title and interest for the first time. The relevant

observations of the Trial court in this regard read as under:-

"If, the Memorandum of Understanding dated 24.12.1977 Ex.D-1 is examined in the light of aforesaid judgments, it seems that the document in question a merely recital of what has already taken place cannot be held to declare any right, thus, the same was not required registration.

Another point argued on behalf of the defendant that assuming for the sake of argument deed dated 24.12.77 falls within the mischief of Section 17(1)(b) and Section 49 of the Act, even then the said document can still be taken consideration for the collateral purpose to ascertain the factum and nature of the possession of the parties over the suit property, more so, when the document is an admitted document.

To support his contention, Ld. counsel for the defendant referred the citation as reported in 2003(4) SCC 161 in the matter of Bondar Singh & Ors. vs. Mihal Singh, wherein Their Lordships were pleased to make the following observations:-

"Registration Act, 1908-S.17- Unstamped and unregistered sale deed. Though does not convey title to the vendee and not admissible in evidence, can be looked into for collateral purposes."

On perusal of the aforesaid judgment, it is manifestly clear that under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. It is true the Memorandum of Understanding dt. 24.12.1977 is an admitted document. Further more, Mr. Sohan Lal, Arbitrator appointed by the testator himself in the Will Ex.PW1/8 with a view to settle the dispute or confrontation, if arises between the parties on the vacation of the second floor of the suit property by their tenant.

If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s.17 read with s. 49 of the Registration Act as no interest in property is created

or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das‟ case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore, no conveyance is necessary in view of the law laid down by the Hon‟ble Supreme Court in Roshan Singh‟s case (supra).

It needs to be noticed that no objection certificate with regard to the Memorandum of Understanding was also signed by the parties to the suit apart from Late Smt. Ram Devi. Therefore, I have no hesitation to hold that the Memorandum of Understanding Ex.D-1 does not fall within the mischief of Section 17 read with Section 49 of the Registration Act as no interest in property is created or decided by the document for the first time. So, issue no. (ii) is accordingly decided in favour of the defendant and against the plaintiff."

7. Learned counsel for the appellant/plaintiff has once again

before this Court very vehemently stressed the fact that the document dated

24.12.1977 was invalid for want of registration and thus the

appellant/plaintiff was entitled to half ownership interest in the entire suit

property, including the back portion of 54 sq. yds., because as per the

appellant/plaintiff para 4 of the last Will dated 27.7.1973 specifically

mentioned equal co-ownership of the parties in the total plot area of 126 sq.

yds. i.e. the right of each party to 63 sq. yds. of land, and thus entitling the

appellant/plaintiff to maintain the suit for partition as the plaintiff/appellant

had equal right in the construction to be made over and above the ground

floor construction in the back portion of 54 sq. yds.

8. Before stating anything further, one needs to very strongly

stress the fact that for as many as 24 years no challenge was laid by the

appellant/plaintiff to this admitted document dated 24.12.1977, and surely,

24 years is an extremely long period of time. Therefore, having accepted

the document for as long as 24 years, then to thereafter file a suit disputing

the validity of the document dated 24.12.1977, is in my opinion, dishonest

to say the least. Not only is the dishonesty apparent from the fact that the

document dated 24.12.1977 has been challenged after 24 years, it is also

apparent from the fact that the challenge is, in effect, only a technical

challenge as to the invalidity of the document dated 24.12.1977 on the

ground of want of registration. Also, the so-called reason, of the document

dated 24.12.1977 causing unequal division of the suit property and which

was not intended by the Will dated 27.7.1973, as amended on 27.9.1973, is

a contrived and a false self-serving reason. This is because, to understand

that the division of the property was roughly equal, we have to go back to

the year 1973/1977. In 1973/1977 a third floor i.e. a floor above the

ground, first and second floor, was not permitted. On the subject plot of

126 sq. yds., construction and rights as existing were basically equally

divided by giving the plaintiff two constructed floors built over 72 sq. yds.

i.e. two flats built over land of 72 sq. yds. i.e. constructed area of 72 sq.

yds. for one floor plus 72 sq. yds. for the second floor being a total of 144

sq. yds. and to the defendant ground floor constructed over the 126 sq. yds.

plot, i.e. the defendant getting in fact a lesser constructed area. During

1973/1977 the construction above second floor not being permitted, ground

floor was slightly costlier than the floors above. Thus though the defendant

got lesser constructed area the value of such constructed area must be

approximately in and around the value of the two floors given to the

plaintiff considering the fact that the defendant also got the unconstructed

area above the ground floor back portion (lesser valuable than front

portion) and which he had to construct if he so wanted at his own cost. I,

therefore, do not think that there is any merit in the plea of alleged unequal

division as pleaded by the plaintiff for the first time after 24 years,

considering that no division is division exactly equal either to the last sq.

yd. or to the last rupee.

9. In my opinion, the arguments as have been urged on behalf of

the appellant/plaintiff are misconceived and the appeal is bound to fail.

The entire object and concept of a family settlement is to put a quietus to

the simmering dispute between parties. Courts have repeatedly upheld

family settlements inasmuch as the object of the family settlement is to

bring peace in the family. Unless and until strictly prohibited by law, in

considering the family settlement on account of the same being void for

lack of registration, Courts have taken a liberal and pragmatic view to

enforce the family settlement, in the interest of peace not only of the family

but society as such, inasmuch as, family is very much a unit of the society.

One such judgment holding so is the judgment of the Supreme Court in the

case of Roshan Singh Vs. Zile Singh, AIR 1988 SC 881. Looking at the

issue from this perspective, and including with respect to the language of

the document dated 24.12.1977, it is quite clear that the document dated

24.12.1977 did not require registration. This I say so for two reasons.

The first reason is that in the last Will dated 27.7.1973 and as

amended by the amendment dated 27.9.1973, besides mentioning the equal

co-ownership of the land, there was specific division with respect to the

constructed portion and denial to the appellant/plaintiff of any right on the

entire ground floor portion including in the back portion of 54 sq. yds. and

grant to him of only the existing construction on the first floor and second

floor in the 72 sq. yds. front portion. Once there is a specific division with

respect to the constructed portions, it is implicit that parties were to take

only those rights in satisfaction of what is set out in the Will. The

appellant/plaintiff only got the existing constructions on the 1st and 2nd

floors and which were only on the front portion of 72 sq. yds. i.e nothing

else including in the vacant space over the ground floor portion of 54 sq.

yds. falling at the back/south of the plot It is in fact because of an alleged

ambiguity of an entitlement to the construction over the back portion of the

ground floor, that the need had arisen to enter into the document dated

24.12.1977. This document dated 24.12.1977 therefore only is a

clarification to the existing position mentioned in the Will dated 27.7.1973,

as amended on 27.9.1973. There is no dispute that so far as the aspects of

the entire ground floor construction of the property being owned by the

respondent/defendant by the last Will dated 27.7.1973 and the amendment

dated 27.9.1973, and also the rights of the appellant/plaintiff with respect to

the ownership of the first floor and second floor if found in the Will dated

27.7.1973, and as amended on 27.9.1973, remains unaffected by the

document dated 24.12.1977. There was definitely a grey area with respect

to whether the ground floor on the entire portion of 126 sq. yds. which fell

to the share of the respondent/defendant, would or would not include the

entitlement to construct on the back portion of the constructed ground floor

in the 54 sq. yds. and hence the need for clarification (called as an

amendment) by the document dated 24.12.1977. Looking at it in this

manner, surely, document dated 24.12.1977 is, in fact, only a clarification

of what is stated in terms of existing rights as per the Will dated 27.7.1973,

as amended on 27.9.1973, and there were no rights which were created for

the first time. An endeavour after as long as 24 years thus to unsettle the

settled position under an admitted document of 24.12.1977 was accordingly

rightly disallowed by the Trial Court by dismissing the subject suit and

holding that the document dated 24.12.1977 did not require registration.

The second reason is that the document dated 24.12.1977 in

its last para specifically records that the „amendments‟ have been made in

accordance with the consent of all the parties, and thus surely, the consent

showed an existing agreement entered into, before the document dated

24.12.1977 was signed showing that the document did not create rights but

recorded rights which were already agreed upon under a family settlement.

The document dated 24.12.1977 thus did not create rights for the first time

and hence did not require registration. This last para of the document dated

24.12.1977 also notes that complete peace in the family has been restored

i.e. reference to an existing fact prior to the signing of the document dated

24.12.1977. The trial Court was thus justified in taking the document dated

24.12.1977 as recording an existing family settlement and that it was not a

partition deed.

10. The Supreme Court in the recent judgment in the case of

Ramrameshwari Devi and Others v. Nirmala Devi and Others (2011) 8

SCC 249 has held that it is high time that actual costs be awarded. The

Supreme Court has observed that unless actual costs are imposed a

dishonest litigant will take unnecessary benefit of the false litigation.

Earlier a Division Bench of three Judges of the Supreme Court in the case

of Salem Advocates Bar Association Vs. Union of India, (2005)6 SCC

344 in para 37 had observed that it is high time that actual costs be

imposed. I am also empowered to impose actual costs by virtue of Volume

V of the Punjab High Court Rules and Orders (as applicable to Delhi)

Chapter VI Part I Rule 15. Considering the facts of the case where the

respondent/defendant has been forced into litigation after as many as 24

years of the issues having been resolved by means of an admitted/signed

document, I consider the present to be a fit case to dismiss the appeal with

costs of `40,000/- which I assess as actual costs.

11. In view of the above, the appeal is dismissed with costs of

`40,000/-. Trial Court record be sent back. Costs be paid within a period

of 4 weeks from today.

VALMIKI J. MEHTA, J MARCH 05, 2012 ak