Jami Vijayalakshmi And Others vs Jami Ashok
2023 Latest Caselaw 1165 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 CMP NO. 43 OF 2023
                 Jami Vijayalakshmi and others          ....      Petitioners
                                    Mr. Goutam Mukharji, Senior Advocate
                                        along with Mr. S.D. Ray, Advocate
                                         -versus-
                 Jami Ashok                             ....     Opp. Party



                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        03.02.2023

 1.         1.      This matter is taken up through hybrid mode.

2. Judgment dated 28th November, 2022 (Annexure-3) passed by learned District Judge, Koraput at Jeypore in Review Petition No.1 of 2022 is under challenge in this CMP.

3. Mr. Mukharji, learned Senior Advocate appearing for the Petitioners submits that the Review Applicants are Petitioners in this CMP. C.S. No.64 of 2018 was filed by the Petitioners seeking declaration of family settlement deed dated 26th March, 2010 to be valid and binding on the parties to the suit, declaration of their right, title, interest and possession over 'B' schedule property as per the said family settlement deed and for a declaration that the Defendants-Opposite Parties had no valid title and interest or possession over 'B' suit schedule land as well as for permanent injunction. The suit was dismissed vide judgment and decree dated 30th November, 2018 (Annexure-1). The Petitioners being aggrieved, filed RFA No. 14 of 2020 assailing the said judgment and decree, which was also

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dismissed vide judgment dated 5th April, 2022 (Annexure-2). Defendants have also admitted that there was a family settlement between the parties, which was reduced to writing on 26th March, 2010 (Ext.1). In spite of the same, learned Appellate Court committed an error apparent on the face of the record holding that the said document requires registration under Section 71 of the Registration Act, 1908. Although the Petitioners cited decision in support of their case to the effect that acknowledgement of family settlement is not required to be registered, but learned District Judge failed to appreciate the same. As it was an error apparent on the face of the record, the Petitioners filed Review Petition No.1 of 2022 for review of the judgment passed in the appeal and vide judgment 28th November, 2022 (Annexure-3), the review petition was dismissed.

4. Mr. Mukharji, learned Senior Advocate appearing for the Petitioners relied upon the decision in the case of Korukonda Chalapathi Rao and others -v- Korukonda Annapurna Sampath Kumar, reported in 2021 SCC Online SC 847, wherein it has been held at paragraphs-16, 35 and 37 as under:

"16. In the facts of this case, the contention of the appellants is that the Kharurunama dated 15.04.1986 merely sets out the arrangement arrived at between the brothers which is the family arrangement and it was a mere record of the past transaction and therefore by itself it did not create or extinguish any right over immovable property. Resultantly, the document did not attract Section 17(1)(b) of the Registration Act. In other words, it is contended that even if there is relinquishment of rights by the family member, since the document is

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only a record of what had already happened in the past, the law did not mandate registration.

35. If we apply the test as to whether the Khararunama in this case by itself 'affects', i.e., by itself creates, declares, limits or extinguishes rights in the immovable properties in question or whether it merely refers to what the appellants alleged were past transactions which have been entered into by the parties, then, going by the words used in the document, they indicate that the words are intended to refer to the arrangements allegedly which the parties made in the past. The document does not purport to by itself create, declare, assign, extinguish or limit right in properties. Thus, the Khararunama may not attract Section 49(1)(a) of the Registration Act.

37. As far as stamp duty goes, on our finding regarding the nature of the document, viz., Khararunama, being record of the alleged transactions, it may not require to be stamped. We notice the following conclusion of the Division Bench of the Madras High Court in A.C. Lakshmipathy and others v. A.M. Chakrapani Reddiar and others:........."

5. He also produces a copy of Ext.1 for appreciation of the Court and submits that the recitals of document clearly indicate that there was a previous family arrangement and it was only reduced to writing therein. Thus, in view of the ratio decided in the case of Korukonda Chalapathi Rao (supra), Ext.1 is not required to be registered. This being an error apparent on the face of the record committed by learned District Judge while adjudicating the appeal, the same is available to be reviewed under Section 114 of the C.P.C. Learned District Judge failed to appreciate the same and dismissed the review petition. Hence, this CMP has been filed.

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6. Considering the submission made by Mr. Mukharji, learned Senior Advocate appearing for the Petitioners and on perusal of the record, it appears that C.S. No.64 of 2018 filed by the Petitioners was dismissed holding that Ext.1 is required to be registered, which was confirmed by learned Appellate Court in RFA No.14 of 2020. While disposing of the appeal, learned Appellate Court held as under:

"6. ............. In the present case, the oral evidence of the Plaintiff No.3, the only witness examined by the Plaintiffs, supported by Ext.1, i.e. "Declaration Confirming Family Settlement" substantiates the claim of the Plaintiffs that, on the basis of the settlement dated 26.3.2010 relating to Schedule-'A' property they got Schedule-'B' property and the defendant got Schedule- 'C' property as their shares. The defendant has also admitted the execution of Ext.1 and himself to be a consenting signatory to the said document being the General Power of Attorney Holder for his parents. However, the fact remains that, Ext.1 has no evidentiary value with regard to the partition of the Schedule-'A' property by metes and bounds as claimed by the Plaintiffs in their pleading. From the above mentioned decision of the Hon'ble Apex Court and that of the Hon'ble High Court of Orissa, it is clear that, once a family settlement is reduced to writing and the value of the property exceeds rupees one hundred, the same requires registration. As Ext.1 is not a registered instrument, but only a notarized one, it is not admissible in evidence with regard to the Plaintiffs' claim of partition of the Schedule-'A' property between the parties by metes and bounds. The prayer of the Plaintiffs to declare the Family Settlement Deed dated 26.3.2010 to be valid and binding on both parties is therefore not acceptable in the eye of law. When the very document on the basis of which the Plaintiffs have claimed their title over Schedule-'B' property is found to be not admissible under law, it cannot be said that the Plaintiffs have exclusive right, title and interest over Schedule-'B' property. So even if the defendant has neither challenged the evidence of the Plaintiff No.3 nor

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adduced any evidence in support of his plea that, he has still some share in Schedule-'B' property, and during hearing of the appeal also the learned counsel for the Respondent has categorically consented to the prayer of the Appellant submitting that the present appeal be allowed, I am of the opinion that the position of law still cannot be ignored. The learned Trial Court is right in holding the Family Settlement Deed dated 26.3.2010 (Ext.1) to be not valid and binding on the parties and thus the Plaintiffs have no right, title, interest and possession over Schedule-'B' property. The impugned judgment of the learned Trial Court, in my opinion, therefore requires no interference."

7. Thus, it appears that the contention raised in the review petition was also argued before learned appellate Court. Considering the same, the RFA was dismissed rejecting the plea of the Petitioners and thereby confirming the judgment and decree passed in the suit. Since the very finding touches the merit of the claim of the Petitioners, which was negatived, the same is not available for review under Section 114 C.P.C. read with Order XLVII Rule 1 C.P.C., as it will amount to sit over the judgment of the appellate Court on merit. Learned District Judge while discussing the contentions raised by learned counsel for the parties, came a categorical finding that the findings of the Court do not run contrary to the observation made by the Hon'ble Apex Court in K. Arumuga Velaiah -v- P.R. Ramasamy and another, reported in 2022 (I) CLR (SC) 753. It also appears that learned District Judge has discussed in detail the contention raised by learned counsel for the Petitioners and dismissed the review petition by a reasoned judgment. Thus, learned District Judge, Koraput at Jeypore has committed no error in dismissing the review petition, as there is no error

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apparent on the face of the record, as submitted by Mr. Mukharji, learned Senior Advocate appearing for the Petitioners.

8. Accordingly, the CMP being devoid of any merit stands dismissed.

Urgent certified copy of this order be granted on proper application.

                                         (K.R. Mohapatra)
bks                                            Judge