Rajasthan High Court - Jodhpur

Municipal Council, Bhilwara vs Bal Mukand on 21 February, 2023

Bench: Nupur Bhati

[2023/RJJD/005225]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4012/2014

Municipal Council, Bhilwara

----Petitioner Versus Bal Mukand

----Respondent

For Petitioner : Mr. Kailash Nath Joshi Mr. Kapil Joshi For Respondent : Mr. R.S. Saluja Ms. Anmol Saluja

HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

Reserved on 13/02/2023 Pronounced on 21/02/2023

1. This Civil Writ Petition has been preferred claiming for the

following reliefs:-

"It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed and:- a/- By an appropriate writ, order or directions in the nature of certiorari, the impugned Order dated 01.03.2014 (Annex.4) passed by the learned Additional Civil Judge (Jr. Div.), Bhilwara in Civil Original Case No. 21/2009 may kindly be quashed and set-aside.

I/A- Further by an appropriate writ, order or direction, the Hon'ble Court may please to pass an appropriate order to the trial court to reject the above suit on the aforesaid facts and circumstances of the case and settled position of law. b/- Pending the petition, if any order is passed or any action is taken against the petition prejudicial to his interest, the same may kindly be quashed and set-aside. c/- Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.

d/- Costs of the amended writ petition may kindly be awarded to the petitioner.

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2. Brief facts of the case as placed before this Court by the

learned counsel for the petitioner are that the respondent-plaintiff

preferred a suit for permanent injunction, registered as 18/2001,

before the learned Trial Court with regard to property (bunch of

shops) situated at Ward No. 27 near Animal Hospital, Bhilwara

praying that the Municipal Council, Bhilwara shall not interfere

without due process of law in their peaceful possession of the land

in question. And that, during the course of trial, an application

under Order 7 Rule 14 CPC was preferred by the respondent-

plaintiff for taking family settlement as evidence on the record,

which came to be allowed by the learned Court below vide the

impugned order dated 01.03.2014 (at Annex.4)

3. Learned counsel for the petitioner assails the impugned order

on two grounds; that under Section 271 of the Rajasthan

Municipalities Act, 1959 as well as under Section 304 of the

Rajasthan Municipalities Act, 2009, two months notice is

mandatory for filing a suit, and that the family settlement was

incorrectly taken on the record by the learned Court below despite

the same being an unregistered and unstamped document.

For the sake of brevity, the said Sections are reproduced

hereunder:-

271. Suits against Board or Its officers--

(1) No suit shall be instituted against a Board, or against the Chairman, Vice-Chairman, member, officer or servant of a Board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice thereof in writing has been in the

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case of a Board, left at its office and, in the case of the Chairman, Vice-Chairman, member, officer, servant or person, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

(2) No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title, be commenced otherwise than within six months next after the accrual of the cause of action.

(3) Nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding."

304. Suits against Municipality or its officers.-

(1) No suit shall be instituted against a Municipality or against the Chairperson, Vice-Chairperson, member, officer or servant of Municipality or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice thereof in writing has been, in the case of a Municipality, left at its office and, in the case of the Chairperson, Vice-Chairperson, member, officer, servant or person delivered to him or left at his office or place or abode explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.

(2) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise

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than within six months next after the accrual of the causes of action.

(3) Nothing in sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the commencement of the suit or proceeding.

4. Learned counsel for the petitioner further assails the

impugned order and submits that the learned Court below has

erred in placing reliance on the judgment rendered by the Hon'ble

Apex Court in the case of Tek Bahadur Bhujil v. Devi Singh

Bhujil & Ors. AIR 1966 SC 292 as the same does not apply in

the present case.

5. Learned counsel for the petitioner placed reliance; on the

judgment rendered by the Hon'ble Apex Court in the case of

Roshan Singh and Ors. v. Zile Singh and Ors. (Civil Appeal

No. 2185/1987) decided on 24.02.1988 and on the judgment

rendered by this Court in the case of Smt. Jamna Bai v. Tulsi

Ram (Civil Revision Petition No. 632/1996) decided on

25.09.1996.

Relevant portion of the said judgments as relied upon by the

learned counsel is reproduced hereunder:-

In Roshan Singh (supra):-

"It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under s.17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of

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fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, s. 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of s. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla's Registration Act, 8th edn., pp. 54-57."

In Smt. Jamna Bai (supra):-

"It may be stated at the very outset that the document in question was registerable and it ought to have been written on proper stamps. The document is, therefore, neither registered nor written on stamp papers. It cannot be gainsaid that under Section 49 of the Registration Act, a document can be allowed to be admitted in evidence for a collateral purpose or to determine the nature and character of possession and there cannot be any dispute regarding the correctness of this proposition. However, in the present case, the document suffers from second infirmity, namely, it was not written on proper stamps. Hence, provisions of Section 35 of the Stamps

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Act come into play and Section 35 provides that the document cannot be admitted in evidence for any purpose. What is the exact connotation of the words "for any purpose"? This question came for interpretation before Allahabad High Court in Mst. Bibo's case (MANU/UP/0038/1936 : AIR 1937 All 101) and it was held by Allahabad High Court that the phrase undoubtedly implies each and every purpose whatsoever without any exception and it matters little whether the purpose is the main purpose or a collateral one. In Nihal- singh v. Singhraj and others' case (1989 (1) R LR 384) (supra) this Court concurred with the Allahabad High Court's view. In fact, the present case falls squarely within the ratio decidendi of the Nihalsingh's case. In that case also the document in question was neither properly stamped nor registered. The party wanted its reception in evidence for the collateral purpose of proving the nature and character of possession. It was held that such a document cannot be admitted in evidence even for a collateral purpose. I fully agree with this rule."

6. On the other hand, learned counsel for the respondent

opposed the submissions made on behalf of the petitioner and

submitted that the mandate of two months notice as under the old

Act being the Rajasthan Municipalities Act, 1959 and under the

new Act being the Rajasthan Municipalities Act, 2009, is not

attracted in the present case, as it would come under the

exception contained in sub-section (3) of Section 271 of the old

Act / sub-section (3) of Section 304 in the new Act, as the only

relief sought is that of injunction.

7. Learned counsel for the respondent further submitted that

the document in question was a family arrangement, and

therefore, did not require to be registered or stamped. In this

regard, reliance was placed upon the judgment rendered by the

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Hon'ble Apex Court in the case of Hansa Industries Pvt. Ltd. &

Ors. v. Kidarsons Industries Pvt. Ltd. (Civil Appeal No.

1682/1999) decided on 13.10.2006, and by this Court at Jaipur

Bench in the case of Mohan Leelani v. Pevi Bai & Ors. (S.B.

Civil Revision Petition No. 338/1998) decided on 20.09.2000.

Relevant portion of the said judgments as relied upon by the

learned counsel are reproduced hereunder:-

In Hansa Industries Pvt. Ltd. (supra):-

"This Court held that courts have leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The principles were concretized and succinctly reduced to 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 arrangement 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

[2023/RJJD/005225] (8 of 13) [CW-4012/2014]

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) (Section 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."

In Mohan Leelani (supra):-

"It is not disputed that the family settlement does not require any registration. In family settlement parties do agree for creating and taking away certain rights in the property and in the circumstances mentioned, if family members do agree to share the property equally, it canot be said that it is not a family settlement. In my opinion, the trial Court has erred and has not exercised the jurisdiction vested in it by declining to take on record the family settlement."

8. Heard learned counsel for the parties and perused the record

of the case.

9. This Court observes that the relief sought in the suit in

question is that of injunction, and therefore, as rightly contended

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by the learned counsel for the respondent, it would fall under the

exception contained in sub-section (3) of Section 271 of the old

Act i.e. the Act of 1959 as also under sub-section (3) of Section

304 of the new Act i.e. the Act of 2009.

10. This Court further observes that the admission of

unregistered documents, which are compulsorily registrable

documents as under Section 17 of the Registration Act, 1908 into

evidence, may be admitted in accordance with the proviso

contained in Section 49 of the Registration Act, 1908.

For the sake of brevity, the same is reproduced as hereunder:-

49. Effect of non -registration of documents required to be registered:-

...

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (IV of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1887 (I of 1887), or as evidence of any collateral transaction not required to be effected by a registered instrument.

11. The Hon'ble Apex Court in the judgment rendered in the case

of Kale v. Dy. Director of Consolidation 1976 AIR 807 has

settled the law with respect to registration of a family

arrangement/settlement. The same was reiterated by the Hon'ble

Apex Court in the case of Hansa Industries Pvt. Ltd. (supra),

cited on behalf of the petitioner, and again in the recent case of

Korukonda Chalapathi Rao & Anr. v. Korukonda Annapurna

[2023/RJJD/005225] (10 of 13) [CW-4012/2014]

Sampath Kumar (Civil Appeal No. 6141/2021) decided on

01.10.2021.

For the sake of brevity, the relevant portion of the judgment

rendered in the case of Kale v. Dy. Director of Consolidation

(supra) is reproduced hereunder:-

"10. 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 arrangement 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 Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

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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;

12. This Court also observes that with regard to requirement of

stamp duty of a family arrangement/settlement, the Hon'ble Apex

Court in the case of Korukonda Chalapathi Rao & Anr. (supra)

has observed as under:-

"35. 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."

13. This Court also observes that it is not the contention of the

petitioner that the document in question is not a family

arrangement, and the learned Court below vide the impugned

order dated 01.03.2014, has categorically recorded the finding

that the document in question is a family arrangement/settlement.

Furthermore, the said document has not been placed on the

record for a perusal of this Court.

Relevant portion of the impugned order dated 01.03.2014 is

reproduced hereunder:-

" nkSjku lk{; oknh] oknh }kjk ikfjokfjd le>kSrki= fnukWd

16-11-99 dks izn'kZ vafdr djkuk pkgk ftl ij vf/koDrk & izfroknh us vkifRr tkfgj dj rdZ izLrqr fd;k fd mDr

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nLrkost viathd`r gksdj vi;kZIr eqnzakd ij gS ftls lk{; esa xzkg~; ugha ekuk tk ldrkA ;g Hkh rdZ izLrqr fd;k fd mDr nLrkost ds voyksdu ls ;g ikfjokfjd le>kSrk i= izdV u gksdj fjyht & MhM dh JS.kh esa vkrk gS ftldk iathd`r gksuk vko';d gSaA mDr nLrkost ds voyksdu ls izdV gS fd mDr nLrkost le>kSrki= izFkei{kx.k yknwyky] izgyknjk; o d`".k xksiky }kjk oknh ckyeqdan f}rh; i{k ds e/; esa mHk; i{kdkjku ds firk }kjk iwoZ esa fu"ikfnr ckgeh caVokMk dh gh ?kks"k.kk dh xbZ gSA mDr nLrkost esa ek= bl rF; dk vadu gS fd tks tk;nkn cky eqdan [kkrh ds fgLls esa mlds firk LoxhZ; exuhjke dh e`R;q ds i'pkr~ vkbZ gS] mlls izFke i{kx.k dk dksbZ ysuk nsuk ugha gSaA izkFkhZ }kjk mDr izkFkZuki= ds lkFk layXu nLrkostkr lwpuk ds vf/kdkj ds rgr oknh }kjk izkIr fd;s x;s gSA okni= ds voyksdu ls izdV gksrk gS fd oknh us oknxzLr tk;nkn ds laca/k esa izfroknh ds fo:) LFkkbZ fu"ks/kkKk dk vuqrks"k pkgk gSA oknh }kjk izLrqr nLrkostkr oknxzLr tk;nkn ds laca/k esa oknh }kjk dh xbZ dk;Zokgh ds laca/k esa gksuk izdV gksrs gSaA"

14. This Court further observes that the case-laws cited on

behalf of the petitioner do not apply in the facts and

circumstances of the present case.

15. As an upshot of the above discussion and in the given factual

matrix, this Court is disinclined to upset the finding of the learned

Court below.

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16. The present petition is dismissed. Accordingly, the pending

stay application also stands dismissed.

17. No order as to costs.

(DR.NUPUR BHATI),J 74-Sanjay/-