Rajasthan High Court - Jodhpur

Smt. Chandrkala Dadhich vs Shri Harish Joshi ... on 17 May, 2023

Bench: Nupur Bhati

[2023/RJJD/015824]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2695/2021

1. Smt. Chandrkala Dadhich W/o Shri Vishnu Dutt Dadhich D/o Late Shri Nareshwar Lal Joshi, Aged About 67 Years, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.). Presently R/o Gau-Shala Road, Near Police Station, Gulabpura, Tehsil Hurda, District Bhilwara (Raj.).

2. Smt. Rajani W/o Shri Durgesh Kothari D/o Late Nareshwar Lal Joshi, Aged About 45 Years, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.). Presently R/o A-490, Panchwati, Bhilwara (Raj.).

----Petitioners Versus

1. Shri Harish Joshi S/o Late Shri Nareshwar Lal Joshi, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.).

2. Shri Vishawnath Joshi S/o Late Shri Nareshwar Lal Joshi, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.). Presently R/o 82 -A, Greater Veshali Nagar, Indore (M.p.)

3. Smt. Sita Joshi W/o Late Shri Satish Joshi, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.).

4. Shri Rajesh Joshi S/o Late Shri Satish Joshi, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.).

5. Smt. Meena Sharma D/o Late Shri Nareshwar Lal Joshi, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.). Presently R/o 3 - Ch - 42, Vigyan Nagar, Kota (Raj.).

6. Smt. Madhu Sharma W/o Shri Hitendra Sharma D/o Late Shri Nareshwar Lal Joshi, R/o Joshi Nikunj, Near Session Court, Bhopalganj, Bhilwara (Raj.). Presently R/o Sahyog Colony, Hospital Road, Alirajpur (M.p.).

                                                                    ----Respondents


For Petitioner(s)            :     Mr. Usman Ghani
For Respondent(s)            :     Mr. Rakesh Arora with
                                   Mr. Naresh Singh




 [2023/RJJD/015824]                  (2 of 11)                    [CW-2695/2021]


               HON'BLE DR. JUSTICE NUPUR BHATI

                                     Order

17/05/2023

(1) The present writ petition has been filed under Articles 226

and 227 of the Constitution of India with the following prayers:-

"(a) Writ petition may kindly be allowed with cost; and

(b) Impugned order passed by learned trial Court (Additional District Judge No.1, Bhilwara) dated 19.01.2021 (Annexure P/7) passed in Civil Suit No.19/2015 (Smt. Chandralekha & Anr. Vs. Harish Joshi & Ors.) may kindly be quashed and set aside; and

(c) Application dated 01.06.2019 (Annexure P/5) may kindly be allowed as prayed and Document in question, may kindly be ordered to be removed from record;

(d) During the pendency of this writ petition further proceedings in Civil Suit No.19/2015 C.O. (Smt. Chandralaka & Anr. Vs. Harish Joshi & Ors.) pending before learned Trial Court (Additional District Judge No.1, Bhilwara) may kindly be stayed;

(e) Any other appropriate writ, order or direction, which is considered just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner."

(2) The facts apropos to the case are that the petitioners-

plaintiffs filed a suit on 07.04.2015 before the learned Additional

District Judge No.1, Bhilwara (hereinafter referred to as 'the

learned Court below') for partition and perpetual injunction

contending therein that Shri Nareshwar Lal Joshi [father of

plaintiffs-petitioners and defendants-respondents Nos.1 and 2 and

one Satish Joshi (deceased) whose legal representatives are

respondents Nos.3 to 6] was having a house situated near Session

Court, Bhilwara (hereinafter referred to as 'the suit premises').

[2023/RJJD/015824] (3 of 11) [CW-2695/2021]

Shri Nareshwar Lal Joshi purchased the suit premises by

registered sale-deed on 19.10.1946 and thereafter constructed a

house thereon. Shri Nareshwar Lal Joshi expired in the year 1998

and his wife expired in the year 2014. It is contended that the

plaintiffs-petitioners are the legal heirs of Shri Nareshwar Lal Joshi

and are having equal share in the suit property but in spite of the

demand, the suit property was not partitioned, therefore, the suit

was filed for partition by metes and bounds.

(3) The defendants-respondents filed their written statement

while denying the allegations made in the plaint. It is averred that

the suit premises were purchased by Shri Nareshwar Lal Joshi and

on 21.11.1982, he partitioned the said proprty in three parts in

favour of respondents Nos.1 and 2 and Shri Satish Joshi, whose

share now vests in favour of respondents Nos.3 to 6.

(4) It is also contended in the written statement that on

24.03.1990, Shri Nareshwar Lal Joshi executed a 'Will'

(Annex.P/3) and partitioned the suit property in four parts ' v', 'c',

'l' and 'n', respectively in favour of Satish Joshi (deceased) i.e. in

favour of respondents Nos.3 to 6, Harish Joshi - respondent No.1,

Vishwanath Joshi - respondent No.2 and Smt. Manjula Joshi (wife

of Shri Nareshwar Lal Joshi). It is submitted that thereafter on

20.08.1992, Shri Nateshwar Lal Joshi executed a memorandum of

family settlement (Annex.P/4) and while accepting the factum of

execution of 'Will', part ' n', given in the share of Smt. Manjula

Joshi, was merged in the rest of the property and the whole

property was given in the share of three brothers, i.e. Satish

Joshi, Harish Joshi and Vishwanath Joshi. It is also averred that

the petitioners-plaintiffs were not having any right or title in the

[2023/RJJD/015824] (4 of 11) [CW-2695/2021]

suit property and thus, the suit property is not entitled to be

partitioned by metes and bounds.

(5) During the cross-examination of petitioner No.1

Chandrakala, the defendants submitted the letter of memorandum

dated 20.08.1992 for exhibiting it as evidence to which the

petitioners-plaintiffs objected and filed an application dated

01.06.2019 (Annex.P/5) under Sections 17 and 49 of the

Registration Act, 1908 on the ground that it is not a registered

document and, therefore, cannot be tendered as evidence. The

respondents-defendants filed reply to the said application and

submitted that the document in question is not required to be

compulsorily registered and thus, can be tendered in evidence.

The Court below dismissed the application aforesaid vide order

dated 19.01.2021 (Annex.P/7). Hence, this petition.

(6) Learned counsel for the petitioner submits that no partition

took place in the year 1982 and since the document in question is

not properly stamped and is an unregistered document, the same

cannot be read in evidence. He further submits that as per the

provisions of Sections 17 and 49 of the Registration Act, 1908 an

unregistered and improperly stamped document cannot be read in

evidence, therefore, learned court below has committed error in

discarding the objections raised by the petitioners and allowing

the document in question to be read in evidence.

(7) Learned counsel for the petitioner further submits that the

document in question is nothing but a transfer of the right in the

immovable property and as per the provisions of Section 17 of the

Registration Act, 1908 such document is required to be registered

compulsorily and thus, cannot be tendered as evidence as per the

[2023/RJJD/015824] (5 of 11) [CW-2695/2021]

provisions of Section 49 of the Registration Act, 1908. The learned

court below, while not considering the provisions of law, has

discarded the objections raised by the petitioner and allowed the

document in question to be read in evidence, which will

prejudically affect the case of the petitioners.

Relevant provisions of Sections 17 and 49 of the Registration

Act, 1908 read as under:-

"17. Documents of which registration is compulsory.-- (1) xxx xxx xxx (2) Nothing in clauses (b) and (c) of subsection (1) applies to -

(i) xxx xxx xxx

(ii) xxx xxx xxx

(iii) xxx xxx xxx

(iv) xxx xxx xxx

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or ....."

49. Effect of non-registration of documents required to be registered.-- No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 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, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."

[2023/RJJD/015824] (6 of 11) [CW-2695/2021]

(8) Learned counsel for the petitioners also submits that letter of

memorandum can only be written in respect to ancestral property

and the suit property is admittedly a self-owned property by Shri

Nareshwar Lal Joshi, which cannot be partitioned by an

unregistered letter of memorandum. Hence also, the document in

question cannot be read in evidence.

(9) Learned counsel for the petitioners further submits that the

partition did not take place in the year 1982 and this fact is

contrary to the Will and the pleadings of the respondents

themselves and no opportunity was given in order to prove that

the document was a valid document before the trial Court.

(10) Learned counsel for the respondents submits that the family

settlement, in light of which the distribution of the property is

being done, is not required to be registered and stamped. He also

submits that where the persons are not having any title in the

property, there also a family settlement has been held to be valid

and here in this case, the respondents' right in the property was

created on 21.11.1982 itself as mentioned in the memorandum of

family arrangement dated 20.08.1992.

(11) Learned counsel for the respondents placed reliance upon

the judgment of Hon'ble Apex court in the case of Ravindra

Kumar Grewal & Ors. Vs. Manjit Kaur & Ors. [AIR 2020(6)

SCW 3799], wherein Hon'ble Apex Court observed as under:-

"19. Considering the above, we have no hesitation in concluding that the High Court committed manifest error in interfering with and in particular reversing the well-

considered decision of the first appellate Court, which had justly concluded that document dated 10.3.1988 executed between the parties was merely a memorandum of settlement, and it did not require registration. It must follow

[2023/RJJD/015824] (7 of 11) [CW-2695/2021]

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 High Court and more so, in a casual manner, as adverted to earlier.

20. Having said that, it is 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. For the completion of record, we may mention that 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.

21. Be that as it may, we deem it appropriate to set aside the impugned judgment and restore the judgment and decree passed by the first appellate Court in favour of the plaintiffs (appellants herein).

22. Accordingly, this appeal is allowed. Impugned judgment and decree of the High Court is set aside. The judgment and decree passed by the first appellate Court is restored in favour of the plaintiff (appellants herein). Decree be drawn up accordingly. There shall be no order as to costs. Pending interlocutory applications, if any, shall stand disposed of."

(12) Heard learned counsel for the parties and perused the

material available on record.

(13) A bare look of the document in question shows the same to

be a memorandum of family settlement having a title " ikfjokfjd

foHkktu dk Lej.k i=". It is a well settled law that the members, who may be parties to the family settlement, must have some

antecedent title, claim or interest, even a possible claim in the

property. In the instant case, the property in dispute was a self-

acquired property of the father of the petitioners-plaintiffs and

respondents-defendants Nos.1 and 2, father-in-law of respondent-

defendant No.3 and grand-father of respondents-defendants Nos.4

[2023/RJJD/015824] (8 of 11) [CW-2695/2021]

to 6 and by way of Will dated 24.03.1990, the deceased, namely,

Shri Nareshwar Lal, transferred the property in the names of his

children and thus, right was created in favour of petitioners and

respondents. The intention of entering into a memorandum of

family settlement is also clear that the deceased Shri Nareshwar

Lal, in order to resolve the family disputes and any rival claims,

had, by a fair and equitable division, settled the property between

his children.

(14) The contention of the learned counsel for the petitioners-

plaintiffs that the memorandum of family settlement itself is

questionable is subject matter of the Court below and the veracity

can be decided at the time of adjudication of the suit itself.

(15) It is crystal clear that Shri Nareshwar Lal executed a Will

dated 24.03.1990 by which the property was distributed and the

details of the property so described was given by way of a map

annexed with the Will. The share, which vested with the mother of

the petitioners and the defendants as per the Will, was to be

distributed as per the description given after the death of their

mother. Though it is well settled that the family settlement is

based on an assumption that there is an antecedent title or some

sort of interest of the parties in the property in dispute and in the

present case, Shri Nareshwar Lal created final rights in the

property in dispute by way of executing a Will dated 24.03.1990

and also on 21.11.1982, as mentioned in the memorandum of

family settlement dated 20.08.1992. Thus, the subsequently made

memorandum of family settlement dated 20.08.1992 is an off-

shoot of the Will dated 24.03.1990 and partition made between

the parties on 21.11.1982, which has been voluntarily entered

[2023/RJJD/015824] (9 of 11) [CW-2695/2021]

between the parties in order to settle existing or future dispute

regarding the property in dispute.

(16) This Court also finds that in the judgment dated 21.1.1976,

rendered by Hon'ble Apex Court in the case of Kale & Ors. Vs.

Deputy director of Consolidation & Ors., has held that:-

"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 in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable proper-ties 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 'It 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 9 owner, then the antecedent title must be assumed and the family arrangement will be up-held and

[2023/RJJD/015824] (10 of 11) [CW-2695/2021]

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.

46. In these circumstances, therefore, the appeal is allowed, the judgment of the High Court is set aside and by a writ of certiorari the order of Respondent No. 1 dated January 22, 1965 is hereby quashed. The order of the Settlement officer dated November 28, 1964 which actually gave effect to the compromise is hereby restored and the Revenue authorities are directed to attest the mutation in the names of the appellant and respondents 4 & 5 in accordance with the family arrangement entered into between the parties referred to in this case. In the peculiar circumstances of the case there will be no order as to costs."

(17) Thus, this Court is of the view that the document in question

is a memorandum of family settlement and is not required to be

registered and stamped. It is also apparent that the document in

question has been voluntarily made and there was no fraud,

coercion or undue influence by any of the parties to the family

settlement. Shri Nareshwar Lal has given away the property by

way of a family settlement dated 20.08.1992 and all the parties

have willfully accepted their share of property, which has been

voluntarily given by their father Shri Nareshwar Lal and the details

of the property have also been mentioned in the document in

question.

(18) In view of the above, I find no illegality or irregularity in the