Sandhyavu vs Peter
2024 Latest Caselaw 9833 Ker

Kerala High Court

Sandhyavu vs Peter on 5 April, 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
                           RSA NO. 433 OF 2022
 AGAINST THE DECREE AND JUDGMENT DATED 21.12.2019 IN A.S.NO.5 OF 2019 ON
 THE FILES OF THE II ADDITIONAL SUB COURT, ERNAKULAM ARISING OUT OF THE
 DECREE AND JUDGMENT DATED 12.10.2017 IN O.S.NO.353 OF 2012 ON THE FILES
                 OF THE ADDITIONAL MUNSIFF COURT, KOCHI


APPELLANT/APPELLANT/DEFENDANT:

           SANDHYAVU
           S/O.GEORGE, AGED 45 YEARS, AREEPARAMBIL HOUSE, PALLURUTHY,
           KOCHI - 682 006.
           BY ADVS.
           G.KRISHNAKUMAR
           B.S.SURAJ KRISHNA


RESPONDENT/RESPONDENT/PLAINTIFF:

           PETER
           S/O.GEORGE, AREEMPARAMBIL HOUSE,
           PALLURUTHY, KOCHI - 682 006.
           BY ADVS.
           DILEEP D BHAT
           SUCHITHRA K.R.
           SUNIL N.SHENOI
           GANESH.S.PAI
           GIRISH GOPI
           ARUN E.A



     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.3.2024,
THE COURT ON 5.4.2024 DELIVERED THE FOLLOWING:
 R.S.A. No. 433 of 2022
                                         2



                                                                 CR
                               JUDGMENT

Dated this the 5th day of April, 2024

This Regular Second Appeal has been filed under

order XLII Rule 1 read with Section 100 of the Code of

Civil Procedure ('C.P.C.' hereinafter) challenging the

decree and judgment in A.S.No.5 of 2019, dated

21.12.2019 on the files of the Court of the II Additional

Sub Judge, Ernakulam arose from decree and judgment

in O.S.No.353 of 2012 dated 12.10.2017 on the files of the

Munsiff Court, Kochi. The appellant is the defendant and

the respondent is the plaintiff in the above suit.

2. Heard the learned counsel for the appellant as

well as the learned senior counsel appearing for the

respondent. Perused the relevant materials and the

verdicts under challenge.

3. Parties in this appeal shall be referred as

"plaintiff" and "defendant" with reference to their status

before the trial court.

4. In this matter, the plaintiff filed the suit for

recovery of possession as well as injunction. According to

the plaintiff, the father of the plaintiff and the defendant,

by name George Areeparambil owned 10 cents of land on

the strength of a Sale Deed No.1181/1984 of S.R.O, Kochi.

Out of the same, 3 cents forming its eastern portion was

settled in favour of the plaintiff as per the Settlement

Deed No.1683/1995 of S.R.O, Kochi, and the same is

plaint A schedule property. According to the plaintiff, the

plaintiff and his family have been residing in the house

constructed by the plaintiff in plaint A schedule property

from 1996 onwards. The remaining extent out of 10 cents

i.e. 7 cents of land along with the family house were given

to the defendant by virtue of a Settlement Deed

No.3029/1998 of S.R.O, Kochi, and the same is plaint B

schedule property. According to the plaintiff, there is a

pathway for the ingress and egress towards plaint A

schedule property provided by the father along the

northern portion of plaint B schedule property in east-

west direction to reach the corporation road west. The

father of the plaintiff and defendant died in the year 2005

and thereafter the defendant expressed dissatisfaction

regarding the use of the said pathway. Thereafter, the

defendant obstructed the pathway on 13.09.2011. Later, a

complaint was lodged and accordingly the defendant

consented to shift the pathway from north of the plaint B

schedule property towards the southern portion of the

plaint B schedule property and the plaintiff agreed for the

same. The said pathway is shown as plaint C schedule

pathway. The defendant constructed compound wall

separating the plaint C schedule pathway from the

remaining property of the plaint B schedule property. It

was contended that after providing plaint C schedule

pathway, the defendant demanded portion of land out of

plaint A schedule property, though he had no right to do

so. The plaintiff claimed right of easement by necessity

over plaint C schedule pathway.

5. The defendant appeared and filed written

statement. The contention inter alia is that the present

corporation road on the western side of B schedule

property was originally a 'thodu'. It is only in the year

2003 - 2004, the corporation had laid concrete slabs over

the north canal and concreted the pathway. It was

contended that later dispute arose between the plaintiff

and Chakkalakkal family regarding access towards plaint

A schedule property available through their property.

Pursuant to the dispute with the Chakkalakkal family, the

plaintiff approached C.I. of Police, Palluruthy and

preferred a complaint against the defendant. The

defendant was summoned before the police and matter

was referred for counseling and conciliation to Janamythri

Police. Then through mediation, a settlement was arrived

at, in which the defendant agreed to provide a pathway

having a width of 6 links and a length of 70 links along

the southern boundary of the plaint schedule property

and in return the plaintiff agreed to provide a strip of land

along the northern side of plaint A schedule property.

Accordingly, the property was measured and sketch was

prepared with the help of Village Officer, Rameswaram.

Thereafter, the defendant left 6 links wide pathway

coming an extent of 420 sq.links along the southern

boundary of the plaint B schedule property as pathway to

the plaintiff by demolishing latrine and toilet situated at

that place. The plaintiff also left 420 sq.links of land on

the northern side of his property to the defendant and

thereafter the defendant constructed a boundary wall

along the northern and eastern boundary of the plaint A

schedule property and also on the northern side of 6 links

wide pathway provided to the plaintiff. The defendant also

put up a gate on the western end of the pathway and

enclosed the pathway to his exclusive possession. The

plaintiff did not have any right of easement through plaint

B schedule property since the same was given on

exchange.

6. The trial court recorded evidence and tried the

matter after addressing rival contentions. PWs 1 and 2

examined and Exts.A1 to A4 marked on the side of the

plaintiff. DWs 1 and 2 examined and Exts.B1 to B3

marked on the side of the defendant. Exts.C1 and C2

series were marked as court exhibits. Ext.X1 also were

marked.

7. Finally, the trial court granted decree in favour

of the plaintiff, mainly holding that, if at all there was

exchange of the properties that should have been by a

registered document as provided under Section 118 of

the Transfer of Property Act, 1882 (hereinafter referred

to as the "T.P. Act" for short) and under Section 54 of the

T.P. Act.

8. Though, appeal was filed before the Appellate

Court, vide A.S.No.5/2019, the learned Sub Judge

confirmed the finding of the trial court and dismissed the

appeal.

9. The learned counsel for the appellant/defendant

mainly argued on the submission that as part of a family

settlement entered into between the plaintiff and the

defendant, plaint C schedule pathway was given to the

plaintiff and in exchange of plaint C schedule pathway,

plaint E schedule property form part of plaint A schedule

property was given to the defendant. The learned counsel

given much emphasis to the evidence of DWs 2 and 3 to

substantiate the family settlement, along with the

evidence of DW1. It is also argued that the oral family

settlement would not require registration. It is submitted

that the trial court as well as the Appellate Court wrongly

appreciated the legal position as regards to the legal

effect of a family settlement and its impact, while

granting decree in favour of the plaintiff. The learned

counsel for the defendant placed Three Bench decision of

the Apex Court reported in [1976 KHC 809 : 1976 (3)

SCC 119 : AIR 1976 SC 807 : 1976 (3) SCR 202]

Kale v. Deputy Director of Consolidation, wherein the

Apex Court considered many earlier decisions and finally

held as under:

"In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangements may be even oral in which case no registration is necessary; (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 immovable properties and therefore does not fall within the mischief of S.17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the

parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owners, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same."

10. The learned counsel for the defendant also

placed decision of the Apex Court reported in [2006

KHC 626 : 2006 (4) SCC 658 : AIR 2006 SC 2488 :

JT 2006 (4) SC 251] Hari Shankar Singhania and

others v. Gaur Hari Singhania and others, wherein

the Apex Court after referring the decision in Kale's case

(supra) held in paragraph No.67 as under:

"67. Conclusion: better late than never We have already referred to the concept of family arrangement and settlement. The parties are members of three different groups and are leading business people. We, therefore, advise the parties instead of litigating in the court they may as well concentrate on their business and, at the same time, settle the disputes amicably which, in our opinion, is essential for maintaining

peace and harmony in the family. Even though the parties with a good intention have entered into the deed of dissolution and to divide the properties in equal measure in 1987, the attitude and conduct of the parties has changed, unfortunately in a different direction. Therefore, it is the duty of the court that such an arrangement and the terms thereof should be given effect to in letter and spirit. The appellants and the respondents are the members of the family descending from a common ancestor. At least now, they must sink their disputes and differences, settle and resolve their conflicting claims once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family."

11. Latest Three Bench Decision of the Apex Court

reported in [2022 KHC 6090 : 2022 (2) KHC SN 8 :

2022 KHC OnLine 6090 : 2022 (2) SCALE 405 :

2022 (1) KLT OnLine 1158 : 2022 (3) SCC 757 :

2022 SCC OnLine SC 95] Arumuga Velaiah K. v. P.R.

Ramaswamy and another, also has been placed to

substantiate the point raised by the learned counsel for

the defendant. In paragraph No.22 of the said decision,

the Apex Court held as under:

"We shall now consider the citations relied upon by the respondents:

a) Kale and Others v. Deputy Director of consolidation, (1976) 3 SCC 119, is a case which had a checkered history in which a discussion on the effect and value of family arrangements entered into between the parties with a view to resolve disputes once and for all, came up for consideration. It was observed that in the case of a family settlement, usually there would be an agreement which is implied from a long course of dealing, but such an agreement would be embodied or effectuated in a deed to which the term "family arrangement" is applied.

Such a family arrangement is not applicable to dealings between strangers but is in the context of maintaining the interest and peace of the members of the family. In paragraph 10 of the said judgment, this Court has adumbrated on the essentials of a family settlement which could be usefully extracted as under:

"10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be

reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangements may be even oral in which case no registration is necessary, (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 immovable properties and therefore does not fall within the mischief of S.17(2) (sic) (S.17(1)

(b)?) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.

Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

After reviewing several judgments of this Court, the Privy Council and other High Courts, this Court in paragraph 20 indicated the following propositions:

"We would, therefore return the reference

with a statement of the following general propositions:

(1) A family arrangement can be made orally.

(2) If made orally, there being no document, no question of registration arises.

(3) If though it could have been made orally, it was in fact reduced to the form of a "document" registration (when the value is Rs. 100 and upwards) is necessary.

(4) Whether the terms have been "reduced to the form of a document" is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.

(5) If the terms were not "reduced to the form of a document", registration was not necessary (even though the value is Rs. 100 or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.

(6) If the terms were "reduced to the form of a document" and, though the value was Rs.

100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document."

Ultimately, this Court held that the family arrangement in the nature of a compromise which was considered in that case did not require registration. It was further held that since the existence of the family arrangement was admitted in that case, the same was binding on the principle of estoppel. Also, even if the family arrangement could not be registered it could be used for collateral purpose, i.e. to show the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties, who, having taken benefit under the settlement for seven years, later tried to resile from the settlement."

12. Refuting the contentions raised by the learned

counsel for the defendant, the learned Senior counsel

appearing for the plaintiff submitted that, there is no

family settlement as contended by the plaintiff and on no

stretch of imagination, the arrangement, if any, as

pleaded by the defendant would be held as a family

arrangement or family settlement. If there was any

exchange of properties in between the plaintiff and the

defendant, as contended by the defendant, for which,

registration of conveyance is absolutely necessary, as

found by the trial court as well as the appellate court.

The learned counsel also read out the relevant

paragraphs of the trial court as well as the appellate court

judgments to contend that the trial court and the

appellate court rightly appreciated the rival claims, while

negativing claim of family settlement and granting decree

in favour of the plaintiff, protecting right in use of plaint C

schedule pathway of the plaintiff and directing surrender

of plaint E schedule property of the plaintiff after

removing the plaint D schedule structures therein. The

learned counsel argued that in the decisions placed by the

learned counsel for the defendant, partition of properties

in between sharers by oral arrangement was considered

and the said decisions have no application in the present

case, where the dispute is in relation to a pathway

originally provided through the northern side was shifted

to the southern side.

13. In view of the rival arguments, this appeal is

admitted, raising the following substantial questions of

law:

1. What are the essentials to succeed a claim for

family arrangement or family settlement?

2. Whether a family settlement or family

arrangement made orally would require registration?

14. The learned counsel for the plaintiff and the

learned counsel for the defendant argued at length on the

substantial questions of law.

15. In the instant case, a Commissioner was

deputed and he had filed Exts.C1 and C2 reports and

Ext.C2(a) plan, wherein plaint A, B, C and E schedule

properties were identified. Since, the dispute is with

regard to plaint C and E schedule properties, it is to be

noted that as per Ext.C2(a) plan, the property located as

plaint C schedule is 420 sq.links and the plaint E schedule

property is also 420 sq.links.

16. In this matter, the case of the plaintiff is that,

father of the plaintiff executed Ext.A1 title deed in favour

of the plaintiff and there existed a way towards plaint A

schedule property along the northern portion of B

schedule property (the remaining 7 cents of property) in

east-west direction to reach the corporation road on the

northern side. PW1 given evidence supporting the said

contention and also raising a specific contention that, on

13.9.2011, DW1 obstructed the said way and thereafter,

he preferred a complaint before the police and

accordingly, there was suggestion from the defendant to

shift the pathway from the northern side of the plaint B

schedule property towards the southern portion of the

plaint B schedule property and accordingly, the plaint C

schedule pathway came into existence. The family

settlement and exchange of plaint E schedule for plaint C

shedule was emphatically denied.

17. Per contra, the case of the defendant is that,

there was no way available to the plaint A schedule

property at any point of time and there was no

corporation road on the western side, since the same was

a 'thodu' before 2003 - 2004. Further contention is that,

the way available to the entire extent of 10 cents of

property, is through Chakkalakkal family.

18. In this matter, the learned counsel for the

defendant given emphasis to the evidence of DW1 to DW3

to establish the exchange of plaint C schedule and E

schedule between the plaintiff and the defendant, as part

of family arrangement. DW1, the defendant supported

the case of the defendant. The evidence of DW2, the

corporation councilor, was read in extenso by the learned

counsel for the plaintiff and the defendant. On reading of

evidence of DW2, who, admittedly, was the junior of the

present counsel for the defendant, is that, as part of

settlement, a way, capable of carrying car was provided as

C schedule, in exchange of the same, plaint E schedule

property was given to the defendant. Neither in chief

examination nor in cross examination, DW2, did not state

the date on which the so called settlement was arrived at.

Though he had given evidence that properties were

measured by the Village Officer and plans were prepared,

he did not know the name of the Village Officer, also, he

did not see the plans so prepared. How far the evidence

of DW2 is acceptable is a vital aspect. As per Exts.C1 and

C2 (a), the width of the plaint C schedule pathway is only

1.2 meter, evidently, not capable of carrying atleast a

small car through the said portion. If so, evidence given

by DW2 in support of the family settlement, by exchange

of property, by providing a road capable of carrying a car,

could not be found. The trial court as well as the appellate

court disbelieved the evidence of DW3, who is none other

than the brother of the defendant, since DW3 given

evidence that he was not in good terms with the plaintiff.

19. It is pointed out by the learned counsel for the

defendant that, in Ext.A4, the title deed of the defendant,

the father did not state existence of a way as contended

by the plaintiff and the same would indicate that the

father never intended to provide a pathway through the

defendant's property at any point of time.

20. Whereas, the learned counsel appearing for the

plaintiff given much emphasis to Ext.A3, a will deed

executed by the father as on 25.11.1997 before the

execution of Ext.A4 as on 24.8.1998, to contend that,

though Ext.A3 become infructuous in view of Ext.A4 and

the title in favour of the defendant, there was recital in

Ext.A3 that, towards the plaint A schedule property, a

pathway was available through the northern side of B

schedule. It is argued further that the second attesting

witness in Ext.A3, none other than the plaintiff, given

evidence in support of Ext.A3 and proved the same. The

learned counsel for the defendant submitted that, as per

Ext.B2 filed before the People's Council for Social Justice,

it was endorsed that the father also participated in the

dispute, when dispute as to pathway was considered.

21. On perusal of Ext.B2, it is noticed that, as on

28.1.2004, George (father of the plaintiff and defendant)

and Sandhyavu, the defendant participated in the

discussion with regard to the price of the property, but no

amicable settlement worked out. Therefore, as per

Ext.B2, George never stated that there was no way

available to plaint A schedule property.

22. In this case, the trial court as well as the

appellate court negatived the contention raised by the

defendant, mainly disbelieving the family arrangement

and also highlighting the necessity of registration of such

exchange. The trial court relied on Section 54 of T.P. Act

and Section 17 of the Registration Act, 1908, to hold that

transfer in case of tangible immovable property of the

value of one hundred rupees and upwards, or in the case

of a reversion or other intangible thing, could be made

only by a registered instrument.

23. Insofar as a family arrangement or a family

settlement is concerned, if it is made orally without there

being any document, the said family arrangement does

not require registration. But, in order to establish a

family arrangement or a family settlement effected orally,

there should be sufficient pleadings to that effect and the

said pleadings should be proved by cogent and convincing

evidence. In the instant case, the case of the plaintiff is

that, the father originally made available a way through

the northern side of the plaint B schedule property and

when the defendant expressed dissatisfaction of using the

said way, by consent, the same was shifted to the

southern side and the same is plaint C schedule pathway.

But the case of the defendant is that, plaint A schedule

property had no way through plaint B schedule and when

Chakkalakkal family denied the way available to plaint A

schedule, as part of family settlement, in exchange of

plaint B schedule property, plaint C schedule pathway was

given.

24. Insofar as the family settlement by exchanging

plaint C and E schedule properties is concerned, the same

is not properly proved and the evidence of the crucial

witness DW2 also is not in support of case put forward by

the defendant, since the width of the plaint C schedule

pathway is only 1.2 meter, not capable of carrying a car,

as deposed by DW2. To summarise, the family

arrangement or settlement is not at all established in this

case to find exchange of plaint C schedule pathway for

plaint E schedule. Contrary to the above, formation of

plaint C schedule way, as contended by the plaintiff, is

established by evidence. Thus, the trial court and the first

appellate court rightly found so and the said verdicts do

not require any interference.

25. Answering the substantial questions of law as

above, it is held that the appeal is liable to fail.

26. In the result, this Regular Second Appeal fails

and is dismissed.

All interlocutory orders stand vacated and all

interlocutory applications pending in this Regular Second

Appeal, stand dismissed.

Registry shall inform this matter to the trial court as

well as the appellate court, forthwith.

Sd/-

A. BADHARUDEEN JUDGE

SK/Bb