Attar Singh v. Mahinder Singh

Defendant 3 Chattar Singh to collect rent from the tenants occupying the plaintiff’s share of Property No. 185 and to transmit the rent so collected to the plaintiff,

(xi) Defendant 3 complied with the said request till sometime in 2010, whereafter Defendant 3 stopped forwarding the rent collected from the plaintiff’s tenants to the plaintiff and

(xii) Property No. 169 was occupied by Defendant 4 Dev Raj except for two rooms, of which Defendant 3 had the key. th December 2011, the plaintiff approached the defendants to partition the suit properties by metes and bounds, but the defendants refused, whereupon the plaintiff instituted the aforesaid suit against them.

7. The Written Statement 7.[1] Defendants 2 to 4 filed a common written statement by way of response to the suit. They contended that, on 10th July 1997, the suit properties stood partitioned between the parties by an oral family settlement, which was reduced to writing. As per the said family settlement, Property No. 169 was divided between Defendant 1 Hukam Singh and Defendant 3 Chattar Singh and Property no. 185 was divided between the plaintiff Mahinder Singh and Defendant 2 Attar Singh. As such, the plaintiff’s assertion that the suit properties were open for partition was categorically denied. 7.[2] The written statement further contended that the plaintiff and Defendants 2 and 3 had jointly purchased a property at Palam on 24th July 1979. Subsequently, in 2006, the plaintiff and Defendant 3 exchanged their respective properties, with the plaintiff relinquishing his share in Property No. 185 in favour of Defendant 3 and Defendant 3 relinquishing his share in the Palam property in favour of the plaintiff. As such, it was contended that the plaintiff had no surviving right in Property No. 185 and Defendant 3 had no surviving right in the Palam property. The plaintiff’s contention that he constructed a two storeyed structure on Property No. 185 was also denied. 7.[3] Property No. 169, it was asserted, was in the common occupation of Defendants 1 and 3, as per the family settlement dated 10th July 1997. Defendant 3 Chattar Singh claimed to have relinquished his right in Property No. 169 in favour of the children of Defendant 1, i.e. Defendant 4 Hem Raj, Yogesh and Aarti vide an Iqrarnama dated 13th February 2005. In any event, in view of the family settlement dated 10th July 1997, which was alleged to have partitioned Property No. 169 between Defendants 1 and 3, it was stated that the plaintiff had no right in the said property. 7.[4] The written statement also alleged the suit to be liable to be dismissed for mis-joinder and non-joinder of parties. It was stated that the plaintiff had wrongly impleaded Defendant 1 Hukam Singh despite being aware of the fact that Hukam Singh was untraceable since 1998. Also, the legal heirs of Hukam Singh were also alleged to be necessary parties to the suit, of whom the plaintiff had impleaded only Dev Raj as Defendant 4.

8. No replication was filed.

9. During the pendency of the present appeal, the learned ADJ, vide order dated 29th November 2019, decreed the suit, directing the suit properties to be auctioned in execution and the sale proceeds divided among the parties as per their respective shares in accordance with the impugned preliminary decree dated 27th Proceedings thus far February 2019. The final judgement and decree have not been challenged.

10. Issues 10.[1] On 15th

2016. As such, Issue 1 does not survive for consideration.

11. Evidence 11.[1] Plaintiff’s Evidence 11.1.[1] The plaintiff led the evidence of two witnesses, namely, Mahinder Singh, the plaintiff, as PW-1 and Naveen Sharma, Assistant Officer, Shalimar Bagh, District Office, Tata Power Delhi Distribution Ltd, as PW-2. 11.1.2PW-1 Mahinder Singh, tendered his affidavit dated 21st February 2013 (Ex. PW-1/A) by way of evidence, which he testified in his examination-in-chief on 21st February 2013. 11.1.3The affidavit-in-evidence of the plaintiff, as PW-1, set out all the assertions in the plaint and testified, further, that

(i) the family settlement dated 10th July 1997 was indeed executed as per the wishes of Ami Chand, but was of no evidentiary or legal value, as it was unregistered,

(ii) the plaintiff purchased the share of Defendant 3 in the

(iii) Defendant 3, however, dishonestly failed to execute the sale documents, in respect of his share in Palam property, in favour of the plaintiff,

(iv) the assertion of Defendant 3 that, in 2006, the plaintiff and Defendant 3 had exchanged their shares in Property NO. 185 and the Palam property was incorrect and was, accordingly, denied,

(v) the consequent assertion that the plaintiff had, therefore, relinquished his share in Property No. 185 in favour of Defendant 3 and was left with no surviving right in the said property, was also, therefore, incorrect and denied and

(vi) the Iqrarnama dated 13th

11.1.[4] PW-1 was cross-examined on 25 February 2005, whereunder Defendant 3 claimed to have relinquished his right in Property No. 169 in favour of the children of Defendant 1 was of no value, as it was unregistered and was, even otherwise, not binding on the plaintiff as he was not a party thereto. th April 2013. In his crossexamination, he admitted ignorance of the identities of the tenants residing in Plot No. 185, but claimed to have visited the property and interacted with them. While reasserting his claim that Defendant 3 Chattar Singh had transmitted to the plaintiff the rent collected in respect of the plaintiff’s share in Property no. 185 till two years prior to institution of the suit, he admitted not having placed on record any document to support the said assertion. He also acknowledged the documents which were shown to him and exhibited as PW-1/D-1 to be the family settlement, whereunder the suit properties were partitioned. He also admitted joint purchase of the Palam property by himself, Defendant 2 Attar Singh and Defendant 3 Chattar Singh. However, he denied having exchanged his share in Property No. 185 in lieu of the share of Defendant 3 in the Palam property. He, however, acknowledged that he had not placed any documentary proof on record relating to payment of ₹ 1.[2] lakhs to Defendant 3 Chattar Singh for purchasing his share in Palam property or of having raised any construction in his share in Property No. 185. He claimed ignorance of whether the children of Defendant 1 Hukam Singh were residing in Property No. 169. He acknowledged not having seen Hukam Singh since 1996. 11.1.[5] PW-2 Naveen Sharma, an Officer from District Office, Tata Power Delhi Distribution Ltd, brought the records relating to the electricity connection in Property No. 185. However, this has not been made subject matter of dispute before this Court. 11.[2] Defendants’ Evidence 11.2.1Defendants 4 and 3 tendered evidence as DW-1 and DW-2 respectively. 11.2.2Defendant 4 filed his affidavit in evidence dated 15th July 2013, which he proved in his examination-in-chief on 24th July 2013. 11.2.3In his affidavit by way of evidence, Defendant 4, deposing as DW-1, asserted execution of the family settlement on 10th July 1997 and its reduction into writing, whereunder Property No. 169 was divided between the plaintiff Mahinder Singh and Defendant 2 Attar Singh. The affidavit further deposed that Defendant 2 Attar Singh, Defendant 3 Chattar Singh and the plaintiff Mahinder Singh had purchased the Palam property on 24th July 1979 and that, in 2006, Defendant 3 Chattar Singh and the plaintiff exchanged their respective shares in the Palam property and Property No. 185 with each other. Consequently, asserted Defendant 4 (as DW-1), the plaintiff was left with no prevailing interest in Plot No. 185 and Defendant 3 Chattar Singh was left with no prevailing interest in the Palam property. The affidavit further asserted that, on 13th February 2005, Defendant 3 Chattar Singh relinquished his right in Property No. 169 in favour of Defendant 4 and the other two sons of Hukam Singh, namely, Hem Raj and Yogesh. 11.2.4Defendant 4, as DW-1, was cross-examined on 24th July 2013. In his cross-examination, he reasserted the family settlement dated 10th July 1997 (Ex. PW-1/D-1), stating that it had been executed in his presence, though it did not bear his signature. He pleaded ignorance as to whether the family settlement was registered. He further asserted that Property No. 169 was divided by giving the ground floor to Defendant 3 Chattar Singh and the first floor to Defendant 1 Hukam Singh. He, however, admitted the fact that construction in Property No. 185 was erected by Defendant 2 Attar Singh and the plaintiff Mahinder Singh in 1997-1998 and that the constructed portion was occupied by the tenants. In conclusion, he denied the suggestion that there had been no partition of the suit properties or that the plaintiff Mahinder Singh was entitled to 1/4th share therein. 11.2.5Defendant 2 Chattar Singh also filed his affidavit dated 8th August 2013 (Ex. DW-2/A) by way of evidence, which he proved in his examination-in-chief on 30th August 2013. The affidavit reiterated the contents of the written statement and further denied the assertion of the plaintiff that he had purchased the share of Defendant 3 in the Palam property. Rather, the affidavit reasserted the position that there had been an exchange, between the plaintiff and Defendant 3, of their respective shares in Property No. 185 and in the Palam property, following which the plaintiff had no surviving interest in Property NO. 185. 11.2.6Defendant 3, as DW-2, was cross-examined on 30th August

2013. In his cross-examination, DW-2 admitted the fact that the family settlement (Ex. PW-1/D-1) was unregistered. He also deposed that no partition wall has been erected after 10th July 1997, partitioning either of the suit properties. He further asserted that constructions in both portions of Property No. 185 of the plaintiff Mahinder Singh and of Defendant 2 had been made by him and that he was collecting rent from the tenants of the suit properties and paying the rent so collected to the plaintiff and Defendant 2. He denied the assertion, in the plaint, that Ami Chand had given Property no. 185 equally to the plaintiff Mahinder Singh and Defendant 2 Attar Singh during his life time. He also acknowledged that he had transmitted the rent collected from the plaintiff’s portion in Property No. 185 to the plaintiff till 2005. He volunteered that the plaintiff Mahinder Singh had not, till that date, repaid, to Defendant 3, the money invested by Defendant 3 in constructing the plaintiff’s share of Property No. 185. He denied the suggestion that no such construction had been made by him. 11.2.[7] Defendant 3, as DW-2, further acknowledged that there was no written agreement of relinquishment by the plaintiff, of his share in Property No. 185, in favour of Defendant 3 or of relinquishment by Defendant 3 of his share in the Palam property in favour of the plaintiff. He denied the suggestion that the plaintiff had, in March 2006, purchased the share of Defendant 3 in the Palam property for an amount of ₹ 1.[2] lakhs or that he had received any such amount from the plaintiff. 11.2.8Apropos Property No. 169, however, Defendant 3 admitted that there was no registered document, whereby Defendant 3 had relinquished his share in Property No. 169 in favour of the sons of Hukam Singh. He denied the suggestion that he had not sold his share in the said property in their favour. He reasserted his contention that there had been an exchange of the respective shares of the plaintiff and of himself in Property No. 185 and in the Palam property, with each other, in 2006. He denied the plaintiff’s assertion that he was entitled to 1/4th share in the suit properties.

12. The Impugned Judgement 12.[1] Consequent to concluding of evidence and completion of arguments, the learned ADJ vide the impugned judgment dated 27th February 2019, passed a preliminary decree, partitioning the suit properties amongst the plaintiff and Defendants 1 to 3, holding each of them entitled to 1/4th share in the suit properties. 12.[2] The impugned order holds the partition of the suit properties by the family settlement dated 10th July 1997 to be of no legal force or value as the document was unregistered. The learned ADJ has held that, under the Registration Act, 1908, every document partitioning immovable property was required to be registered. For the same reason, the plea of Defendant 3, to the effect that the plaintiff had relinquished his share in Property No. 185 was also rejected, as every document of relinquishment of immovable property was also required to be registered under the Registration Act. The learned ADJ notes that it was admitted by Defendant 3 as well as Defendant 4, in the evidence recorded before him, that the family settlement dated 10th July 1997 was not registered. He also holds that, as Defendant 1 was untraceable since 1996, he could not have been a party to the family settlement in 1997. 12.[3] For both these reasons, the learned ADJ has refused to take cognizance of the alleged family settlement dated 10th July 1997. 12.[4] Issue 2 was, therefore, decided against the defendants and in favour of the plaintiff. 12.[5] The learned ADJ further rejects the plea of mis-joinder and nonjoinder of parties, holding that under Order I Rule 9 of the CPC, no suit could be defeated because either of mis-joinder or non-joinder of parties. That apart, he holds that, in a partition suit, in which Defendant 1 had an interest in the suit properties, the legal heirs of Defendant 1 were not required to be impleaded until a competent court declared Defendant 1 to be dead. 12.[6] Following the aforesaid, the learned ADJ has held the plaintiff’s right to 1/4th Rival Stands before this Court share in the suit properties to be unassailable and has, accordingly, passed the impugned judgment, which is under challenge in the present appeal.

13. The present appeal 13.[1] The appellant contends, in the appeal, that the impugned order errs in failing to take stock of the partition of the suit properties by the July 1997, the purchase of the Palam property by the plaintiff, Defendant 2 Attar Singh (Appellant 1 before me) and Defendant 3 Chattar Singh and of the subsequent relinquishment, by the plaintiff, of his share in Property No. 185 in 2006, or the relinquishment, by Defendant 3 Chattar Singh, of his share in Property No. 169 in favour of the sons of Defendant 1 Hukam Singh on 13th February 2005. The appeal also questions the correctness of the finding, in the impugned judgment, that the family settlement dated 10th July 1997 or the Iqrarnama dated 13th February 2005 were required to be registered under the Registration Act and that, in the absence of such registration, they were of no evidentiary value. In so holding, contends the appeal, the learned ADJ failed to notice that the family settlement and the Iqrarnama were duly acted upon by the parties. Besides, the factum of partition of the properties on 10th July 1997, asserts the appeal, was admitted by the plaintiff in cross-examination. 13.[2] It is also alleged that the suit of the plaintiff was liable to be dismissed on the ground of misjoinder and non-joinder of parties. 13.[3] Arguments were advanced at the Bar by Mr Himanshu Thakur and Mr Surinder Jain, learned Counsel for Appellant 1 (Defendant 2) and Respondent 1 (the plaintiff) respectively. Written submissions were also filed by the respondent. 13.[4] Mr Thakur contends that the learned ADJ erred in failing to accord due credence to the family settlement dated 10th July 1997. He draws attention to the cross-examination of the plaintiff as PW-1 to contend that the execution of the family settlement was admitted. That being so, Mr Thakur contends that, even if it was unregistered, it was binding on the parties. 13.[5] Mr. Jain contends, per contra, that, as the family settlement was not acted upon by his client, who is not in possession of the properties which, as per the said family settlement, devolved on his client, the family settlement was not binding on the plaintiff. 13.[6] In his written submissions filed on behalf of the plaintiff- Respondent 1, Mr Jain contends, at the outset, that as the final decree, dated 29th November 2019, passed in the suit, has not been challenged by the appellant, the present appeal has become infructuous and is liable to be dismissed as such. 13.[7] Mr. Jain has, on merits, commended for acceptance the finding, in the impugned order, that, as the family partition dated 10th July 1997 was unregistered, it has no value in the eyes of law. Nor, he submits, was the said partition ever acted upon, contrary to what the appellants contend. 13.[8] As such, submits Mr Jain, the learned ADJ was perfectly justified in directing partition of the suit properties equally among the plaintiff and Defendants 1 to 3. Analysis

14. Points for Determination 14.[1] It is important to note, at the very outset, that the plaintiff- Respondent 1 does not dispute

(i) the execution of the family settlement on 10th July 1997, as desired by Ami Chand, and the partition of the suit properties thereby, or

(ii) the purchase of the Palam property jointly by the plaintiff and Defendants 2 and 3. However, the plaintiff has not accepted the execution of the Iqrarnama dated 13th 14.[2] The impugned judgment proceeds on the premise that the partition effected on 10 February 2005. th July 1997, vide the family settlement, was of no legal consequence, as it was unregistered. Ergo, the learned ADJ has not proceeded to examine the rival contentions with respect to the relinquishment, by the plaintiff, of his share in Property No. 185, or with respect to the Iqrarnama dated 13th February 2005. 14.[3] The following points, therefore, arise for determination, without prejudice to one another:

(i) Has the present appeal become infructuous as a consequence of the passing of the final decree dated 29th November 2019 which has not been challenged?

(ii) Was the family settlement dated 10th July 1997 of no legal consequence, for want of registration? If not, what was the consequence thereof?

(iii) Is the plaintiff entitled to the relief sought in this appeal?

15. Decisions on the points that arises for determination, and the reasons therefore: 15.[1] Re. Point (i) 15.1.[1] The plaintiff (as Respondent 1) contends that, in view of the judgment and decree dated 29th November 2019, which Defendant 2 (Appellant in the present appeal) never chose to challenge, the present appeal has become infructuous and is liable to be dismissed as such. 15.1.[2] Section 97 of the Code of Civil Procedure, 1908 (CPC) proscribes a party, who does not challenge the preliminary decree and chooses merely to challenge the final decree, from questioning the correctness of the preliminary decree in the challenge to the final decree. The situation before us is, however, exactly the opposite. Defendant 2 in the suit has challenged the preliminary decree passed by the learned ADJ, but has not chosen to appeal against the final decree, though the suit was finally decreed even before this appeal was finally heard. How, in such circumstances, does the law pan out? 15.1.[3] The issue is no longer res integra, as a Full Bench of the High Court of Rajasthan has addressed precisely this question in Haridas v. Banshidhar[1]. In paras 14 and 15 of the report in that case[2]

2. The impugned judgment holds the family settlement to be devoid of legal force and effect as it was not registered, as required by Section 17(i)(b)17 read with Section 4918 of the Registration Act. 15.2.[2] This controversy, too, is no longer res integra. In paras 9.[4] and 9.[5] of the report in Thulasidhara v. Narayanappa19 “9.4. It is required to be noted that the deed dated 23-4-1971, under which the suit property had gone/devolved in favour of Krishnappa, was reduced in writing before the panchayat and panchas, and the same was signed by the village people/panchayat people and all the members of the family including even the plaintiff. Though the plaintiff disputed that the partition was not reduced in writing in the form of document Ext. D-4, on considering the entire evidence on record and even the deposition of the plaintiff (cross-examination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got the share which tallies with the document dated 23-4-1971 (Ext. D-4). Execution of the document/partition deed/Palupatta dated 23-4-1971 has been established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23-4- 1971 (Ext. D-4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in Kale v. Director of Consolidation, the Supreme Court holds thus: that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in S. Shanmugam Pillai v. K.

17. Documents of which registration is compulsory.—(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been examined on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely— ***** (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

49. Effect of non-registration of documents required to be registered.—No document required by Section 17 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:

22. As observed by this Court in T.V.R. Subbu Chetty's Family Charities v. M. Raghava Mudaliar case SCC pp. 319 & 321, paras 13 & 22)

15.2.[3] Thus, the position, in law, is that a document partitioning immovable property, even if unregistered, operates as estoppel against the signatories to the document. The plaintiff, as a signatory to the family settlement dated 10, even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23-4-1971 and he also admitted that 3 to 4 panchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of the plaintiff that there was an oral partition on 23-4-1971, the document, Ext. D-4 dated 23-4-1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Ext. D-4 dated 23-4- 1971.” th

AIR 1961 SC 797 (2016) 8 SCC 705: (2016) 4 SCC (Civ) 163 July 1997, whereby the suit properties were divided amongst the plaintiff and Defendants 1 to 3, is estopped from disputing the said document, or questioning its force and effect. The document, therefore, evidences the decision of Ami Chand to partition the suit properties, with Property No 169 going to Defendants 1 and 3, and Property No 185 going to the plaintiff and Defendant 2. The plaintiff, therefore, would have no right in Property No 169, his right being limited to one half of Property No 185. Admittedly, the plaintiff was in possession and ownership of one half of Property No 185, consequent on the devolution of properties in terms of the family settlement dated 10th July 1997. The claim of the plaintiff-Respondent 1, in the suit, for partition of the suit properties among the plaintiff and Defendants 1 to 3 cannot, therefore, sustain. 15.2.[4] Para 9 of Kale20

16. The impugned order dated 27th

C. HARI SHANKAR, J

APRIL 6, 2023 rb February 2019 passed by the learned ADJ is, therefore quashed and set aside. CS 578024/2016 filed by the plaintiff (Respondent 1) stands dismissed. The appeal stands allowed accordingly, with no orders as to costs.