- (1.) BOTH these appeals have come up for the re-consideration in view of the judgment and order dated 21.10.05 passed by the Division Bench in the DB Civil Special Appeal No. 20/86.
(2.) THE factual matrix of these appeals is narrated as under :- 2(i) THE appellants of the S.B. Civil First Appeal No. 56/74 Smt. Rukmani Devi Sampat Devi,(original plaintiffs) filed a civil suit being No. 70/73 (14/68) against Shri Nand Kishore and others, the respondents in the said Appeal, (original defendants) in the Court of Addl. District Judge, Court No.1, Jaipur (hereinafter referred to as the trial court)seeking partition of the properties mentioned in para 4 of the plaint and seeking declaration that the plaintiffs were entitled to the one-fourth share in the said properties, and seeking further prayer that the plaintiffs be put in separate possession of their share in the said properties. It appears that the said plaint was subsequently amended by the plaintiffs for seeking one-fifth share in the said properties. THE properties mentioned in para 4 of the plaint were (a) one building, known as G.N. Bhawar Lal Photographer building, situated on the southern side of the Mirza Ismail Road, Jaipur, worth Rs. 2,50,000/-, (b) one house, facing towards west situated in the lane facing towards south, in Gali Selan, Chowkri Purani Basti, worth Rs. 20,000/-, (c) one house, situated in front of the above mentioned house on the southern side of the Gali Selan, Chowkri Purani Basti worth Rs. 5,000/- and (d) one plot of land, ad-measuring 10 feet x 18 feet situated on the eastern side of the building at M.I. Road, worth Rs. 25,000/-. 2(ii) So far as the relationship between the parties was concerned, the pedigree was given in the plaint itself, from which it appears that the deceased Bhanwar Lal had two sons named, Nand Kishore (defendant No.1) and Ram Kishore (who had pre-deceased the said Bhanwar Lal on 8.10.62), and three daughters named, Munni Devi (defendant No.2), Prem Devi (defendant No.3) and Chhota Bai (who had pre-deceased the said Bhanwar Lal). THE plaintiff No.1 Rukmani Devi happened to be the wife and the plaintiff No.2 Sampat Devi happened to be the daughter of the said deceased son Ram Kishore. THE defendant No.4 Miss Gyanwati and defendant No.5 Miss Chunni Bai happened to be the daughters of the said Chhota Bai (pre-deceased daughter of Bhanwar Lal. 2(iii) As per the case of the plaintiffs the said Bhanwar Lal had constituted the Joint Hindu Family, governed by the Hindu Law of Mitakshara, with his sons. THE said Bhanwar Lal had inherited the suit properties from his father Govind Narain. As per the further case of the plaintiffs, after the death of his younger son Shri Ram Kishore on 8.10.62, the plaintiffs i.e. the widow and the daughter of said Ram Kishore, continued to live jointly with the said Bhanwar Lal and his elder son Nand Kishore. THE said Bhanwar Lal died intestate on 22nd February, 1968, leaving behind the four immovable properties, as mentioned in para 4 of the plaint. After the death of said Bhanwar Lal, his son i.e. the defendant No. 1 Nand Kishore, being the senior member of family, was supervising the family affairs and recovering the rents etc., of the joint family properties, which were described in para 4 of the plaint. It was further case of the plaintiffs that since the defendant No.1 was neither maintaining proper accounts nor paying to the plaintiffs their share in the rent amount collected by him, they had lost confidence in the defendant No.1 and, therefore, had filed the suit for partition as prayed for in the plaint. 2(iv) THE said suit filed by the appellants (original plaintiffs) was resisted by the respondent NO.1 (original defendant No.1) Nand Kishore contending interalia that on 8.6.65 a family settlement was arrived at during the life time of the said Bhanwar Lal, in order to permanently settle the family disputes and that the said settlement was reduced into writing and signed by the said Bhanwar Lal and other members of the family. It was further contended that as per the said settlement, the property described in para 4(c) of the plaint was given to the plaintiffs and the property described in para 4(b) was given to the defendant No.1. As regards the property described in para 4(a), it was decided that out of the rent collected from the said property, the same shall be used for the payment of the taxes, repairs etc., and that the defendant No.1 shall pay Rs. 200/- to the plaintiff No.1 out of the said rent. It was also contended by the defendant No.1 that there was no separate property as described in para 4(d) of the plaint but the same was part of the property mentioned in para 4(a) only and that the said property described in para 4(a) of the plaint was the self acquired property of the said Bhanwar Lal and, therefore, he had exclusive right to dispose of the same. In short, it was contended by the defendant No.1 that in view of the family settlement dated 8.6.65, the properties were already partitioned and the said settlement was also accepted and acted upon by the plaintiffs and, therefore, there was no question of partitioning any properties. 2(v) THE trial court from the pleadings of the parties framed four issues and after appreciating the evidence on record vide the impugned judgment dated 20.11.73, held interalia that the family settlement dated 8.6.65 at Ex. A/1 was arrived at between the parties and also acted upon in respect of the properties mentioned in para 4(b) and 4(c), however, no partition had taken place in respect of the properties described in para 4(a) and 4(d) of the plaint and that both the plaintiffs jointly had 1/5th share in the said properties, and that the defendants Nand Kishore, Munni Devi, Premwati Devi each had 1/5th share and that and Gyanwati Devi and Chunnibai jointly had 1/5th share in the said properties. THE trial court accordingly passed the preliminary decree, granting the parties liberty to apply for the appointment of a commissioner for actual division of the properties by metes and bounds. 2(vi) Being aggrieved by the said judgment and decree passed by the trial court, three appeals were filed. THE SBCFA No. 202/73 was filed by Shri Nand Kishore (original defendant No.1) praying interalia that suit for partition ought to have been dismissed by the trial court. THE SBCFA No. 56/74 was filed by Smt. Rukmani Devi and Sampat Devi (original plaintiffs) praying interalia that the decree passed by the trial court be modified and further be held that the plaintiffs had 6/15th share in all the properties mentioned in para 4 of the plaint. THE SBCFA No. 185/74 was filed by Miss Chunni Bai and Gyanwati (original defendant Nos. 4 and 5) praying interalia that they were entitled to the 1/5th share in the properties described in paras 4(b) and 4(c) of the plaint as well. All the three appeals were heard and decided by the learned Single Judge by common judgment and order dated 27.1.86, whereby the learned Single Judge allowed the First Appeal No. 202/73 and dismissed the First Appeal Nos. 56/74 and 185/74. THE learned Single Judge disposed of the said appeals by holding that the family settlement dated 8.6.65 did not require registration as contemplated under Section 17 of the Registration Act and the same having already been acted upon, nothing remained to be partitioned by the court. 2(vii)THE said judgment of the learned Single Judge having been challenged by the original plaintiffs i.e. Smt. Rukmani Devi and Sampat Devi, before the Division Bench, by filing DB Civil Special Appeal No. 20/86, the Division Bench vide the judgment dated 21.10.05 held that the registration of the family settlement was necessary in view of the law laid down by the Apex Court in case Kale Ors. Vs. Deputy Director of Consolidation Ors., AIR 1976 SC 807. THE Division Bench, therefore, allowed the said appeal and remitted the matter to this court to decide the issues involved in the first appeals afresh, by further observing that the family settlement shall however be ignored while considering the rights of the parties. In view of the above factual matrix submissions have been made by the learned Senior Counsel Mr. R.P. Singh appearing for Smt. Rukmani Devi and Sampat Devi, (who were the original plaintiffs and are the appellants in First Appeal No. 56/74, and the respondents in First Appeal No. 202/73), whereas the submissions have been made by the learned counsel Mr. O.P. Sharma for the original defendant No.1 Nand Kishore, and after his death, for his legal representatives, (who are the appellants in First Appeal No. 202/73 and the respondents in First Appeal No. 56/74). It has been stated by the learned counsels for the parties that the third appeal i.e. the First Appeal No. 185/74 filed by Ms. Chunnibai another (original defendant Nos. 4 and 5) was already dismissed for default and the same has not been restored so far. The said appeal, therefore, stands dismissed as on today. It was sought to be submitted by the learned counsel Mr. O.P. Sharma for the respondents in First Appeal No. 56/74 that the Division Bench had misinterpreted the ratio of the judgment laid down by the Apex Court in the case of Kale (supra) and, therefore, he had already moved a review petition, which was dismissed for default and thereafter restored, and now the same was pending before the Division Bench. At this juncture it is to be noted that except the oral submission of Mr. O.P. Sharma, there is nothing on record that such a review petition is pending before the Division Bench. Though, these appeals are pending, after the remand by the D.B., since 2005, no effort appears to have been made to get the said review petition disposed of. Be that as it may, the fact remains that the said judgment dated 21.10.05 passed by the Division Bench has neither been challenged before the higher forum, nor has been reviewed by the Division Bench so far, and, therefore, the observations made by the Division Bench to the effect that the family settlement in question required registration, and the directions given by the Division Bench to this court to ignore the said family settlement while deciding the rights of the parties afresh, are binding to this court. It is further to be noted that the learned counsel Mr. R.P. Singh had at the outset fairly submitted that though the appellants-plaintiffs had prayed for their 6/15th share in the suit properties, they would have 1/5th share only in the suit properties, in view of the latest decisions of the Hon'ble Supreme Court in case of Ganduri Koteshwaramma Anr. Vs. Chakiriyanadi Anr (2011) 9 SCC 788 and in case of Prema Vs. Nanje Gowda Ors. (2011) 6 SCC 462, and in view of Section 6 of the Hindu Succession Act, 1956 (as amended by 2005 Act). He further submitted that since the family settlement dated 8.6.65 was reduced into writing for the first time and since the rights of the parties were created from the said document for the first time, the said family settlement required registration under Section 17 of the Registration Act, and that having not been registered, the Division Bench has rightly observed to ignore the same while deciding the rights of the parties. According to Mr. Singh all the four properties being the joint family properties, the plaintiffs had 1/5th share in the same and the learned Trial Judge had materially erred in law in passing the preliminary decree only in respect of the two properties described in para 4(a) and 4(d) of the plaint. Mr. Singh has also urged to award mesne profits in view of the application filed by the appellants-plaintiffs under Section 151 of CPC, pending these appeals. However, the learned counsel Mr. O.P. Sharma for the concerned respondents (original defendant No. 1 Nand Kishore and now for his heirs), taking the court to the evidence recorded by the trial court, as also the documentary evidence more particularly the family settlement Ex. A/1, submitted that the plaintiff No. 1 Rukmani Devi was given the property mentioned in para 4(c) of the plaint for her residence after the death of her husband Ram Kishore in the year 1962 and the defendant No.1 Nand Kishore was staying in the property mentioned in para 4(b) of the plaint prior to the said family settlement dated 8.6.65. Hence, the family settlement which had already taken place earlier, was reduced into writing on 8.6.65. Relying upon the observations made by the Apex Court in the said case of Kale (supra), Mr. Sharma submitted that the registration would be necessary only if the terms of the family arrangement were reduced into writing but the same would not be necessary if a mere memorandum was prepared after the family arrangement which had already been made earlier. According to the Mr. Sharma even if the said family settlement Ex. A/1 is to be ignored in view of the observations made by the Division Bench, from the evidence adduced by the parties before the trial court, it was clearly established that the partition of properties as per the family arrangement had already taken place and that having been acted upon prior to 1965, the plaintiffs were estopped from filing suit for partition as nothing remained to be partitioned, as rightly held by the learned Single Judge earlier in the judgment dated 27.1.86, while disposing of the three first appeals. He has relied upon the decisions of the Apex Court in case of Narendra Kante Vs. Anuradha Kante Ors. (2010) 2 SCC, 77, Syndicate Bank Vs. Estate Officer Manager, APIIC Ltd. Anr. (2007)8 SCC 361 and on the decision of this court in case of Gulab Chand Vs. L.Rs. Of Ganpat Lal 1995(1) WLC (Raj.)258. Mr. Sharma also submitted that in absence of any specific prayer in the plaint, the plaintiffs were not entitled to the mesne profits, as now is being urged in the present appeals. In this regard Mr. Sharma has relied upon the decisions of the Apex Court in case of Mohd. Amin Ors. Vs. Vakil Ahmad Ors AIR 1952 SC 358 and in case of R.S. Maddanappa Vs. Chandramma Anr. AIR 1965 SC 1812.
(3.) THOUGH it was vehemently submitted by the learned counsel Mr. Sharma for the concerned respondents that the family settlement Ex. A/1 was already acted upon by the parties and it was only a memorandum of settlement which had already taken place prior to 8.6.65, and did not require registration, the said submission cannot be considered by this court now in view of the specific finding given by the Division Bench in the D.B. Appeal being No. 20/86 to the effect that the document family settlement Ex. A/1 required registration and in view of the specific direction given by the Division Bench while remitting the matter to this court, to ignore the said family settlement while considering the rights of the parties. The next question, therefore, that falls for consideration before this court is as to whether any oral partition or family settlement had taken place prior to or after the execution of the said family settlement Ex. A/1 or not. In this regard if the pleadings of the parties are seen, it appears that the plaintiffs had come out with a specific case that no partition of the joint family properties mentioned in para 4 of the plaint had taken place. The defendant No.1 Nand Kishore who was the only contesting defendant in the suit had also not stated in his written statement as to whether any partition of the properties in question had taken place prior or after 8.6.65. What was pleaded by the said defendant was that a family settlement was arrived at with the consent of all the family members to put an end to the family disputes and that the partition in terms of the family settlement dated 8.6.65 had already taken place. So far as the oral evidence adduced by the parties is concerned, the P.W.1, Rukmani Devi (widow of Ram Kishore) stated in her evidence that no partition had taken place after the death of Shri Govind Narain and that no family settlement dated 8.6.65 was executed or signed by her. In her cross-examination also no such question was put as to whether any oral family settlement or partition had taken place before 8.6.65. The P.W.2, Sampat Devi (daughter of Ram Kishore) had also stated almost the same version as P.W.1. The P.W. 3 Om Prakash, who had allegedly put his signature as witness below the said family settlement Ex. A/1 had also stated that no such family settlement was executed or signed in his presence. The plaintiffs had also examined P.W. 4 Rewati Raman, P.W. 5 Rameshwar and P.W.6 Madan Lal, who happened to be either the relatives or the acquaintance of the family of Bhanwar Lal. They had stated that no partition of the properties had taken place nor any family settlement of the properties of Bhanwar Lal had taken place. So far as the oral evidence adduced by the defendant No.1 is concerned, he had examined himself as D.W.`1 and he had stated interalia that his father Bhanwar Lal had executed a family settlement in the year 1965 which was at Ex. A/1 and that the same was signed by the family members including the plaintiff Smt. Rukmani Devi and Sampat Devi. The said defendant also in his evidence had not stated as to whether any partition or family settlement had taken place prior or after the said family settlement at Ex. A/1. On the contrary he had admitted in his cross-examination that the property situated at M.I. Road was not partitioned. The D.W. 2 Lalit Kishore Sharma had stated in his evidence that the document Ex. A/1 was written in his hand-writings and was signed by the parties. The D.W. 3 Ram Narain and D.W. 4 Krishan Chandra @ Ladu Ram had supported the version of the defendant Nand Kishore that the family settlement Ex. A/1 had taken place in their presence, of course D.W. 4 in his cross-examination had admitted that the property situated at M.I. Road was not partitioned by the said settlement. ;