SECOND APPEAL 229 of 2002 on 23 August 1982

1. RAM ASHISH SINGH son of late Deo Nandan Singh

2. Sudhir Kumar (Minor) son of Ram Ashish Singh, represented underguardianship of his natural father and guardian who has no adverse interestand residing with him.

3. Bhola Son of Narendra Pd. Singh

4. Sri Kaushal Kishore Singh son of late Ram Khelawan Singh, all respondentNos. 1 to 4 are residing at village-Jagdishpur, P.O.n Powama, P.S. Masaurhi,District-Patna.

... ... Respondent/s

======================================================Appearance : For the Appellant/s: Mr. J.S. Arora, Senior Advocate Mr. Manohar Pd. Singh, AdvocateFor the Respondent/s: Mr. Kamal Nayan Chaubey, Senior Advocate with Mr. Shailendra Kumar Singh, Advocate Mrs. Renu Jha, Advocate ======================================================

CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGHCAV JUDGMENTDate : 04-07-2018

The appellant, in the present appeal under Section 100of the Code of Civil Procedure assails the judgment and decreedated 18.02.2002, passed by learned VIth Additional DistrictJudge, Patna in T.A. No. 162 of 1996, whereby he hasconfirmed the judgment and decree dated 07.09.1996, passed bylearned Munsif Ist, Patna, in T.S. No. 38 of 1990.

2. The appellant was defendant No.1 before the trialCourt. The suit was filed by Respondent No.1 and othersseeking a declaration of their title over the Schedule II of the plaint and also for a declaration that the deed of gift dated12.08.1991, executed by Ash Kuer (Defendant No.4) in favourof the appellant was fraudulent, illegal, null and void,inoperative, ineffective, unauthorized and not binding on theplaintiff and the defendant and that the appellant had notacquired title and possession over the aforesaid gifted propertyon the basis of the said gift deed dated 12.08.1991.

3. The suit property has been described in Schedule IIof the plaint as follows:- “Schedule-II

Agricultural lands measuring 80 (Eighty) decimalssituated at Mauya Karai, P.S. Masaurohi Distt. Patna describedbelow:-

4. For the purpose of clarity, the parties are beingdescribed in the present judgment and order as per their positionbefore the trial court.

Case of the Plaintiff

5. According to the plaintiff’s case, one Munsi Singh

had three sons, namely, Shyam Nandan Singh, DeonandanSingh and Girija Nandan Singh and a daughter ChandrakaliDevi. Ash Kuer (Defendant No.4) (since deceased) was wife ofDeonandan Singh, who predeceased her husband. DeonandanSingh and Ash Kuer had three sons, namely, Ram KhelawanSingh, Ram Ashish Singh and Narendar Prasad Singh and twodaughters, namely, Urmila Devi and Sita Devi. Sons of MunsiSingh had inherited ancestral properties and the property asdescribed in Schedule II, which Munsi Singh had purchased inthe name of his wife Ash Kuer (defendant No.4) between 1941to 1958 , having total area of 2.33 acres. The said 2.33 acres ofland was joint family property and in 1982 there had beenpartition among sons of Munsi Singh through deed of partitiondated 23.08.1982 being Ext.4/a. Further, it was the case of theplaintiff that Deonandan Singh, his wife and his three sons hadappointed three punchas for partition of their properties on13.12.1987 (ext.2) and there had been partition vide Ext.4 dated14.12.1987, with the intervention of the punchas in whichSchedule II property along with other properties were allotted tothe plaintiffs and certain other properties were separatelyallotted to his brother Narendra Prasad Singh (defendant No.1(appellant herein)). A memorandum of partition was accordingly prepared on 14.12.1987, which was duly signed bythe parties and the punchas. Ash Kuer (defendant No.4) has puther LTI on the memorandum of partition so prepared, whichwas duly acted upon, based on which the plaintiff came in actualphysical and cultivating possession of Schedule II land and assuch they were exclusive owners and possessors thereof. As thedefendants caused obstructions and attempted to take forciblepossession over the Schedule II land, the same gave theplaintiffs cause of action leading to filing of the suit. Ittranspires that after filing of the suit, the plaintiff had filed apetition for temporary injunction for restraining the defendantno.4 from transferring the suit property described in Schedule II,whereupon the trial Court had passed an order dated08.08.1991, restraining the defendant No. 4 from alienating,selling and encumbering the suit land. It appears that defendantNo.4, (since deceased), however, executed gift deed dated12.08.1991, despite the injunction order dated 08.08.1991, infavour of defendant no.1. A petition was filed thereafter forinitiation of contempt proceeding under Order 39 Rule 2A of theCode of Civil Procedure, 1908 for prosecution of defendant no.4but was subsequently dropped in view of the death of the saiddefendant No.4. The plaintiff had sought amendment in the plaint for challenging the deed of gift dated 12.08.1991executed by defendant No.4 in favour of defendant No.1, whichwas allowed.

Case of the Defendant

6. Defendant No.1 in his written statement denied theclaim of the plaintiff of purchase of said 2.33 acres of land byDeonandan Singh, father of plaintiff, defendant No.1 in thename of defendant no.4. He asserted that the said property wasacquired by defendant No.4 out of her stridhan and thatdefendant no.4 herself had paid the entire consideration money.He, accordingly, asserted that defendant no.4 always exercisedher independent right, title and interest over the said piece ofland and always treated the same as her self acquired propertyand not a joint family property as alleged in the plaint. Hedenied the factum of family arrangement and asserted that nopunchas were ever appointed and Ext. 4 does not bear thethumb impression either of the said defendant or defendantNo.4. He also asserted that the so-called agreement and awardof punchas were neither registered nor any petition was everfiled in the Court for making the award rule of the court.

Issues before the trial court

7. Based on the rival pleadings to the aforesaid effect, learned trial Court framed altogether seven (7) issues out ofwhich the following two were the core issues and are relevantfor the present adjudication also:-

(v) Whether the arbitration award was

acted upon and was binding on both sides?

(vi) Whether the gift deed dated12.08.1991 executed by Ash Kuer (defendantNo.4) in favour of defendant No.1 wasfraudulent, illegal, null and void, inactive,unauthorized and a nullity in the eye of law?”

Trial Court proceedings and findings

8. The parties adduced their evidence. The deed ofpartition dated 23.08.1982, among the sons of Munsi Singh wasexhibited by the plaintiff as Ext.4/a. It transpires that thoughinitially defendant no.1 had denied the partition deed dated23.08.19822 (Ext.4/a), he admitted in his cross-examination inparagraph 88 of his evidence before the trial Court that hissignature was there over the said Ext. 4/a. Whereas it waspleaded in the written statement by defendant no.1 that AshKuer exercised her exclusive right title over the suit propertypurchased in her name, he admitted in his cross examinationthat the same was being cultivated along with the other properties of the family. On appreciation of the evidenceadduced at the trial, particularly in the light of admission of hisown signature by defendant no.1 over Ext. 4/a, the trial Courtrecorded his finding that Ext.4/a was written and signed on23.08.1982 and the date was wrongly mentioned as 08.08.1982by the Typist. The trial Court was of the view that Ext.4/a beingin the nature of a partition deed, it ought to have been registeredand in the absence of registration, it could not be said to betotally reliable but for limited purpos, the said Ext.4/a could beconsidered.

9. Coming to Ext.4, the alleged memorandum ofpartition of 1987 relied on by the plaintiff, which according tothe plaintiff contained the signature of the defendant no.1 andLTI of defendant No.4 also, the trial Court relying on theevidence of the handwriting and finger print expert, recorded hisconclusive finding of existence of signature of defendant No.1and thumb impression of Ash Kuer (defendant No.4) (ext.4)which was not forged, rather true. The letter appointingpunchas was exhibited as Ext.2.

10. On the basis of the evidence of the handwritingand finger print expert, the trial Court recorded the conclusivefinding that both the Ext.2 and Ext.4, contained the signature of defendant No.1 and Ash Kuer had also put her thumbimpression on Exts. 2 and 4.

11. Considering the plea taken by defendant no.1 inhis written statement that award of punchas having not beenregistered nor having been made rule of the Court could not berelied on, learned trial Court held that the same could not betreated to be an award which was signed by the parties. Thedefendant No.1 had endorsed on the said document as follows:- “स्व. नरन्द्र ललाल प्रसलाद सर बटवलारला वममोजजीव करसवम पचनलामला कर ललखला सर सहजी ह ककल मजबून पढ़कर समझबूझ ललयलायाः 14.12.89”

12. Similar endorsement is made by plaintiff No.1 anddefendant No.3; Ash Kuer had also put her TI on Ext. 4. In thelight of the evidence of the plaintiff, the trial Court concludedthat Ext.4 was not an award, rather a mere memorandum ofpartition which had already taken place on 13.12.1987. In termsof the said memorandum of partition, the trial Court held thatSchedule II land of the plaint was allotted to the plaintiff.

13. Based on such finding, the trial Court held that theplaintiffs got their perfect title over the Schedule II land.

14. Coming to the challenge by the plaintiffs to thegift deed dated 12.08.1991 executed by the defendant No.4, thetrial Court held that the gift deed was executed despite the order of status-quo granted by the Court. The trial Court held that thedefendant No.4 executed the gift deed on 12.08.1981 in favourof defendant No.1, breaching the order of status-quo granted bythe Court. The trial Court, in view of the findings in respect ofExts. 4/a and 4 and also in view of the execution of the deed ofgift during the operation of the status-quo order, held the giftdeed dated 12.08.1991 executed by defendant No.4 in favour ofdefendant No.1 to be fraudulent, null and void andunauthorzed. The trial Court decided this issue also in favour ofthe plaintiffs and decreed the suit.

Findings of the Appellate Court

15. Defendant No.1 preferred an appeal against thejudgment and decree of the trial Court giving rise to TitleAppeal No. 162 of 1996, which came to be registered in the fileof the Court of 6[th] Additional District Judge, Patna for finaladjudication. The learned appellate Court on carefulappreciation of the stand of the parties in their pleadings andthe evidence adduced at the trial, was in respect of land ofSchedule II of the plaint which was being claimed by thedefendant to be self acquired land of Ash Kuer, the mother ofplaintiff No.1 and defendant No.1. Learned first appellateCourt, upon detailed appreciation of the evidence recorded its

finding that the acquisitions were made in the joint family in thename of the female members of the joint family from the jointfamily fund and the same were treated as joint family property.Learned appellate Court noticed the evidence of D.W.4 inparagraph 6 wherein he had deposed that after the death ofShyam Nandan Singh, partition had taken place between sons ofShyam Nandan Singh (Ambika Singh) on the one hand andhusband of Ash Kuer, namely, Deonandan Singh. The firstappellate Court affirming the finding recorded by the trial Court,held that all the relevant pieces of evidence went to show that inthe family partition, by way of family arrangement, the disputedland as described in Schedule II of the plaint along with otherland were allotted in the share of the plaintiffs and since then theland mentioned in Schedule II of the plaint came in exclusivepossession of the plaintiffs and other members of the familyhad got no concern with the same.

16. On the question of the requirement of registrationof Ext.4, the learned appellate Court below held that theseparation had taken place on 13.12.1987 and all the jointfamily property including the purchased property waspartitioned amicably in three parts, under the said arrangement,as disclosed in Ext.4, which was memorandum of partition dated 14.12.1987. It was not an award of punchas and was,therefore, not required to be registered and could be used forcollateral purpose.

Concurrent findings

17. There are, thus, concurrent findings of factrecorded by the two Courts below on following three aspects:-

(i) The Ext.4 dated 14.12.1987, was not an awardmade by punchas rather it was memorandum of partition basedon amicable family arrangement made on 13.12.1987 itself and,therefore, it did not require any registration.

(ii) The appointment of punchas through Punchnama marked as Ext.2 contained the signature of the plaintiffs,defendant No.1 and LTI of defendant no.1 as well as DeonandanSingh, their father. It also contained LTI of defendant No.4, AshKuer. Ext.4 dated 14.12.1987 too, contained the signature of theplaintiffs, defendant no.1 and LTI of defendant No.4.

(iii) The property which was purchased in the name ofAsh Kuer was purchased out of joint family fund and the jointfamily had been making purchases of properties in the names ofthe females of the family.

Developments in the present Second Appeal

17. In the aforesaid background, the present second appeal has been preferred by defendant No.1. The secondappeal was earlier taken up by this Court on 28.02.2014, whenthis Court, after having found that no substantial question of lawwas arising consideration in this appeal, had dismissed theappeal under Order 41 Rule 11 of the Code of Civil Procedure.The appellant had thereafter, moved to the Supreme Court byfiling Special Leave Petition giving rise to Special Leave toAppeal CC 18557 of 2014. The Supreme Court, disposed of thesaid SLP No. 18557 of 2014 in following terms:- “Heard learned counsel for thepetitioner.

It is submitted by the learned counselfor the petitioner that the High Court has nottaken into consideration the ground No. 8 raisedin the Memorandum of Appeal which is really asubstantial question of law, for an award passedby the Arbitrator dividing the propertiesbetween the parties is required to be registeredunder the law.

Regard being had to the aforesaidsubmission, we grant liberty to the petitioner tofile an application for review within a period offour weeks hence, which shall be dealt with onmerits and not be thrown at the threshold on theground of limitation.

If the petitioner is visited with anyadverse order, liberty is granted to him to challenge the order passed in review, as well asthe order impugned herein.The special leave petition is disposedof accordingly.”

18. As is evident, ground No.VIII taken in the secondappeal was brought to the notice of the Supreme Court tocontend that a substantial question of law arose in the secondappeal to the effect that an award passed by the arbitratordividing the properties between the parties is required to beregistered under law or made rule of the court. Ground No.VIIItaken in the second appeal reads thus:- “(VIII) For that alleged AWARD by purchase as alleged was not registered normade rule of the Court nor filed alongwithplaint and was filed after commencement oftrial even then the Courts below held that it isnot the award but the memorandum of partition(Ext.4) which is illegal.”

19. In the light of the Supreme Court’s order in SLPNo.18557 of 2014, the appellant filed review application beforethis Court seeking review of the judgment and order dated28.02.2014, whereby the second appeal was dismissed. This Court, in view of the observations of the Supreme Court,allowed the prayer for review with following observationparagraph 6:- “6. After considering thesubmissions as well as the materials onrecord including the judgment and orderpassed in the second appeal under review,it is manifest that the plaintiffs filed thesuit for declaration of title over the suitland and also for declaration that the deedof gift dated 12.08.1991 in favour of thedefendant no.1 was illegal, null and voidand not binding upon the plaintiffs.Admittedly the suit property was initiallythe part of the joint family property of theplaintiff and the defendants and it was thecase of the plaintiffs that the suit propertywas allotted exclusively to the plaintiffno.1 in partition. In support of the said factthe plaintiff adduced evidence and relied upon the document ( Exhibit-4)evidencing the allotment of the suitproperty to plaintiff no.1. The contestingdefendant however denied the genuinenessof the said document (Exhibit-4) and alsoassailed the same on the ground that thesaid document being an award of partitionof the family properties, was not registerednor made the rule of the Court. Both the

Courts below, however, have recorded thefinding that the said document( Exhibit-4)was not a partition deed or award, ratherit was a memorandum of the partitionrecording the fact of partition which hadtaken place between the parties a daybefore. It is, thus, evident thatinterpretation of the said document(Exhibit-4) either as memorandum ofpartition or award of partition was one ofthe crucial issues which arose in the suitbetween the parties. Though both thecourts below have considered the saidissue and interpreted the said document asonly a memorandum of partition but inview of the observations of the ApexCourt as aforementioned and afterconsidering the submissions, this Court isinclined to allow the prayer for review ofthe judgment and order as prayed by thepetitioner.”

20. The order dismissing the second appeal havingbeen recalled by order dated 22.06.2016, passed in Civil ReviewNo. 425 of 2014, the second appeal was thereafter, again placedfor hearing under Order 41 Rule 11 of the Code of CivilProcedure. This Court formulated following substantialquestions of law while admitting the appeal, by order dated 05.10.2016:- “The substantial question of law is arising for consideration in this appealis as to whether the document of partition(Ext.4) has been rightly interpreted to be only a memo of partition and not an award of partition of the family propertiesbetween the parties by both the courtsbelow.”

21. At the time of hearing of the second appeal, learned Senior Counsel appearing on behalf of the appellant suggested additional substantial questions of law, which arose in the present second appeal and following additional substantialquestions of law were framed by order of this Court dated 10.10.2017:- “I. Whether both the Courts below have not committed jurisdictional error by not appreciating that admittedly theproperties in suit were acquired by AshKunwar Devi, original defendant no.4 (sincedeceased) and all sale in that regard stood in her name, and hence the properties were herStridhan which could not have been treated as a part of the joint family property, there was complete lack of unity of title and unity of possession and those properties could nothave been treated as blended in the jointfamily property also.

II. Whether both the Courts below

have not committed jurisdictional error bynot appreciating that the suit and the reliefsought therein regarding plaintiffs title andnon-title of the defendants ( which includedefendant no.4) was barred u/s 4 of theBenami Transactions (Prohibition) Act,1988.

III. Whether both the courts belowhave not committed jurisdictional error bynot appreciating that the documents ofpartition Ext.4 was necessarily required to beregistered as per Section 17 of theRegistration Act and since the document wasnot registered hence the same was not liableto be taken into consideration by a Court oflaw, in regard to any immovable propertycomprised therein, nor as an evidence of anytransaction affecting such property.”

Submissions on behalf of the Appellant

22. Mr. J.S. Arora, learned Senior Counsel appearingon behalf of the appellant (defendant No.1) has contended thataccording to the plaintiff himself the arbitrators were appointedvide Ext.2 and through the arbitrators, partition had taken placeby the award, which is ext.4. According to him, in terms of theprovision under the Arbitration Act, 1950, an award made by anarbitrator is necessarily required to be made rule of the Courtand in the absence of the award having been made rule of theCourt by a decree of the Civil Court, the same is not liable to betaken in evidence. He has submitted that the creation of any right in favour of any person with regard to an immovableproperty of more than Rs.100/-, either by an award or any otherdocument or even by a compromise decree was essentiallyrequired to be registered under Section 17 of the IndianRegistration Act, 1908 and in the absence of registration, thesaid document could not be taken into evidence by any Court oflaw, in view of the clear provision under Section 49 of the saidAct. In support of this proposition, he has relied on followingdecisions of Supreme Court’s:-

1. AIR 1974 SC 1066 ( Ratan Lal V. Purshottam)

2. 2015(4) PLJR (SC) 494( Yellapu Uma Maheswari

V. Buddha Jugadheeswararao)

23. Reliance has also been placed on a decision of thisCourt in the case of Dilip Gupta Vs. Debashish Palit reportedin 2005(3) PLJR 623 in this regard. He has also submitted thateven a document of partition, unless it is by way of amemorandum containing only recitals with regard to a partitionhaving taken place in the past and having been acted upon, itwould be necessarily required to be registered. Reliance hasbeen placed on the decision of Supreme Court in the case ofSharad Vasant Kotak V. Ramniklal Mohanlal Chawda ( AIR1998 SC 877).

24. His next contention is that the property in disputewas purchased by Ash Kuer who had paid the considerationmoney as is evident from the recitals of the sale deed and thatthe finding recorded by the Courts below that the propertiespurchased in her name was not self acquired property isperverse. In support of his contention, he has relied on thefollowing two Supreme Court’s decisions:- “1. (1997) 2 SCC 397(Rashmi Kumar V.Mahesh Kumar Bhada).Mahesh Kumar Bhada).

2. (2016) 2 SCC 705 (Krishna Bhattacharjee

V. Sarathi Choudhary)”

25. He has also contended that the property ofstridhan is not liable to be blended in with the joint family, inview of law laid down by the Supreme Court in the case of JaiPrakash Vs. Union of India ( AIR 1997 SC 2237).

26. Relying on another decision of the SupremeCourt in the case of M/S Rishi Trade Centre Vs. Collector of Customs and others (AIR 1997 SC 1786), Mr. Arora contendsthat a property of a lady, even if she is not in actual physicalpossession, but has got the right to possess, will be deemed tobe her stridhan and she would be the owner of the said property,for all purposes. He has then relied on Section 4 of the Benami

Transactions (Prohibitions) Act, 1988 to contend that no suit canbe filed for seeking a relief that the property, even thoughstanding in the name of another, is in fact, the property of theplaintiff. Since the suit was filed in the year 1990, after cominginto force of the said Act, the institution of the suit itself wasbarred in view of the said provision of law. He would contendthat there could not be a partition or partition decree in respectof the property standing in the name of a lady member for thefamily, particularly after the coming into force of BenamiTransactions Prohibitions Act, 1988, in view of the law laiddown by this Court in case of Rameshwar Mistry Vs. BebulalMistry ( AIR 1991 Patna 53).

27. In response to the argument advanced on behalf ofthe plaintiff that a family arrangement is a conclusivearrangement and the right accrued thereof in favour of anyperson shall be absolute, Mr. Arora has submitted that familyarrangement in respect of a partition would be of no effect, if itis in respect of a property, which is not of the family, since thebasic ingredient of partition of a property is that there must beunity of title and unity of possession. In regard to the propertyof a lady family member, being her stridhan, it can never betreated to be property of joint family. He has contended that as per the law as the same stood at the relevant point of time, alady family member was not the coparcener of a joint family.

Submission on behalf of the contesting Respondents

28. Mr. Kamal Nayan Choubey, learned SeniorCounsel, appearing on behalf of the plaintiff-respondents hassubmitted, on the other hand, that family arrangement is anarrangement between members of the same family, intended tobe generally and reasonably for the benefit of the family, eitherby compromising doubtful or disputed rights or by preservingthe family property or the peace and security of the family, byavoiding litigation. He has submitted that the familyarrangement was acted upon by all the parties and it was onlyafter the death of Devnandan Singh, father of the plaintiff anddefendant No.1 that the defendant No.1 started causingdisturbance in respect of lands described in Schedule II, whichthe plaintiff was possessing, by virtue of family arrangementdated 13.12.1987, reduced into writing on 14.12.1987, vidememorandum dated 14.12.1987. He would further contend thatsuit cannot be said to be hit by the Benami TransactionsProhibitions Act, 1988 since the plaintiff was claiming his titleon the basis of family arrangement (Ext.4) and not asbenamidar. He has submitted that Ext.4 cannot be treated to be

an award and the punchas cannot be treated to be arbitratorssince it was only for the purpose of arriving at a familyarrangement, that they were appointed. He contends that theparties to the family arrangement are themselves the executorsof the family arrangement to which the punchas only signed aswitnesses. He has emphatically submitted that Ext.4 cannot betreated to be a deed of partition because the partition had takenplace on 13.12.1987 itself and only the memorandum wasprepared on 14.12.1987. It is his contention, accordingly thatExt.4 did not require registration for the purpose of the samebeing taken as evidence. He has further submitted that thedefendant No.1 is estopped to question the validity of Ext.4, hisbeing a signatory to the said document.

29. Reliance has been placed in support of hissubmission on a decision reported in the case of Martin Cashinand others Vs. Peter J. Cashin and others (AIR 1938 P.C.103). Reliance has also been placed by him on a decision ofthis Court rendered on 01.07.2017 in SA No. 197 of 2013(Punam Devi and others Vs. Jain Narain Rai and others), insupport of this plea.

Discussions

30. Before I proceed to consider rival submissions advanced on behalf of the parties and the materials available onrecord for the purpose of adjudication of the present secondappeal by answering substantial questions of law, I must refer tocertain concurrent findings recorded by the Courts below:-

(I) Ext.4, which is at the core of the controversy wassigned by the plaintiff, defendant no.1 and their father,Deonandan Singh which also bears the thumb impression ofdefendant No.4.

(II) There was a family arrangement with the aid ofthe punchas, arrived at by the family members on 13.12.1987itself, based on which the memorandum dated 13.12.1987 wasprepared.

(III) The punchas were appointed through a documentwhich contained the signatures of the plaintiff and thecontesting defendants as well as the said Deonandan Singh.

The concurrent findings so recorded cannot beassailed since the said findings are based on appreciation ofevidence.

31. Questioning For answering the substantialquestion of law initially framed in the light of the SupremeCourt’s decision the moot question which this court is requiredto consider is as to whether Ext.4 can be treated to be an award or a partition deed which was compulsorily required to be maderule of the court or registered under the Indian Registration Act,1908.

32. There is yet another concurrent finding recordedby the Courts below to the effect that the disputed property waspurchased in the name of defendant no.4 out of joint familyfund. Whether the plea of defendant no.1 that on the groundthat the property being her stridhan could not have been part offamily arrangement(Ext.4) in any view of the matter, is anotheraspect which needs to taken note of and discussed.

33. Mr. Arora, learned Senior Counsel has givenmuch emphasis on his submission that Ext.4 being apparentlyan award given by the Arbitration Tribunal, it was essentiallyrequired to be made rule of the Court by passing of a decree inaccordance with Section 17 of the Arbitration Act. In theabsence of the award having been made rule of the Court bydecree of the Civil Court, Ext.4 could not be taken as evidence,according to him. The said submission deserves to be rejectedsince I am of the view that Ext.4 cannot be treated to be anaward within the meaning of the Arbitration Act, 1940, whichwas required to be made rule of the Court under Section 17 ofthe Arbitration Act. It is true that by written agreement between

the parties, punchas were appointed for effecting partition,which is evident from Ext.2 dated 13.12.1987, making it clearthat the parties would be bound by a decision of the punchas.There is no award prepared by the punchas nor there is anyevidence that any such award was ever prepared. Section 2(b) ofthe Arbitration Act defines award to be an arbitration award.Section 14 of the Arbitration Act makes it mandatory in case ofthe award prepared by the arbitrator that the arbitrator shall signthe award and give notice in writing to the parties of makingand signing thereof. Sub-section (2) of Section 14 thereafter,requires an award to be filed in the Court. In betweenappointment of punchas and making of Ext.4 signed by theplaintiff, there was no award prepared by the punchas appointedby the parties. Ext.4 has been signed by the plaintiff-defendantand their father Deonandan Singh.

34. Mr. Arora has taken this Court to the endorsementmade by the punchas on Ext.4 to the effect that the saiddocument has been prepared on the basis of the decision of thepunchas and, therefore, Ext.4 is an award under the ArbitrationAct. I would reiterate here that there is no decision of thepunchas. On the other hand, it transpires that the familyarrangement was made on 13.12.1987 itself, and, therefore, may be, with the intervention of the punchas facilitating amicablefamily arrangement between the parties. The memorandum ofthe same was prepared on 14.12.1987. Be it noted that there is aconcurrent finding recorded by the Courts below that separationhad taken place on 13.12.1987 when all the joint familyproperties including the disputed property was partitionedamicably. The finding to the effect that the separation had takenplace on 13.12.1987 recorded by the Courts below cannot besaid to be perverse since the findings are based on theappreciation of the evidence. The question whether Ext.4 couldbe treated to be an award under the Arbitration Act will have tobe considered in the background of this crucial fact, which goesto the root of the matter. In my view, there being a finding thatthe partition had taken place or the family arrangement wasarrived at on 13.12.1987 itself, there would be no question ofpreparation of an award in respect of the family arrangement ona subsequent date. I wish to emphasize here that the concurrentfindings recorded by the Courts below to the effect that thepartition had taken place on 13.12.1987, is binding on this Courtin this second appeal in the absence of any perversity shown inrespect of the said finding. As a natural corollary thereof, Ext.4cannot be treated to be an award rather a memorandum of

partition that had taken place on a previous date on 13.12.1987.Merely because there is reference to the opinion of the punchasin Ext.4 dated 14.12.1987, the same cannot alter the finding ofthe courts below that the partition/family arrangement had takenplace on 13.12.1987. In that view of the matter, I answer thefirst substantial question of law accordingly and hold that thedocument of partition (Ext.4) has been rightly interpreted to be amemo of partition and not an award of partition of familyproperties by the punchas. The substantial question of laworiginally formulated by order, dated 15.10.2016 standsanswered accordingly.

35. I will now be coming to the submission made byMr. Arora of the compulsory registration as required underSection 17 of the Registration Act, 1908 for a document to betaken in evidence, in view of Section 49 of the Act to addressthe third substantial question of law formulated vide order,dated 10.10.2017 as the same is integrally connected with thequestion as already answered above. As has already beennoticed, it is the case of the appellant that Ext.4 had the effect ofcreation of right in favour of persons in respect of immovableproperties of more than Rs. 100/- and, therefore, an award orany other document prepared even by compromise, requires registration. There cannot be any dispute over the legalproposition that any agreement or award having consequence ofcreation of rights in favour of any persons with regard to animmovable property worth more than Rs. 100/- would requirecompulsorily registration and if unregistered, the same cannotbe looked into. If Ext.4 could be held to be an award or deed ofpartition, the matter would have been different and registrationof such document would have been compulsory for the same tobe taken in evidence.

36. Mr. Kamal Nayan Choubey, learned SeniorCounsel has, in my opinion, rightly placed reliance on theSupreme Court’s decision in the case of Kale Vs. DeputyDirector, Consolidation (1976) 3 SCR 202). The SupremeCourt held in the said case that even if a family settlement wasnot registered, it would operate as a complete estoppel againstthe respondents. Mr. Choubey is correct in his stand that theappellant is estopped from challenging the validity of Ext.4, hebeing admittedly party to the same.

37. Following observation made by the SupremeCourt in the case of Kale Vs. Deputy Director, Consolidation(supra), is relevant for the present dispute, which is beingreproduced herein below:- “In these circumstances there can be nodoubt that even if the family settlement was notregistered it would operate as a completeestoppel against respondents 4 & 5. RespondentNo.1 as also the High Court, therefore,committed substantial error of law is not givingeffect to the doctrine of estoppel as spelt out bythis Court in so many cases. The learned counselfor the respondents placed reliance upon anumber of authorties in Rachcha V. Mt. Mendha(1) Chief Controlling Revenue Authority V. Smt.Satyawati Sood and others (2) and some otherauthorities, which, in our opinion have nobearing on the issues to be decided in this caseand it is therefore not necessary for us to refer tothe same.

Finally it was contended by therespondents that this Court should not interferebecause there was no error of law in thejudgment of the High Court or that ofRespondent No.1. This argument is only statedto be rejected.

In view of our finding that the familysettlement did not contravene any provision ofthe law but was a legally valid and bindingsettlement in accordance with the law, the viewof Respondent No.1 that it was against theprovisions of the law was clearly wrong on apoint of law and could not be sustained.Similarly, the view of the High Court that the

compromise required registration was alsowrong in view of the clear fact that the mutationpetition filed before the Assistant Commissionerdid not embody the terms of the familyarrangement but was merely in the nature of amemorandum meant for the information of theCourt. The High Court further erred in law innot giving effect to the doctrine of estoppelwhich is always applied whenever any party tothe valid family settlement tries to assail it. TheHigh Court further erred in not considering thefact that even if the family arrangement was notregistered it could be used for a collateralpurpose, namely, for the purpose of showing thenature and character of possession of the partiesin pursuance of the family settlement and alsofor the purpose of applying the rule of estoppelwhich flowed from the conduct of the partieswho having taken benefit under the settlementkeep their mouths shut for full seven years andlater try to resile from the settlement. In ShyamSunder and others Vs. Siya Ram and another (1)it was clearly held by the Allahabad High Courtthat the compromise could have been taken intoconsideration as a piece of evidence even if itwas not registered or for that matter as anevidence of an antecedent title.”

38. In view of the discussions as above, holding the nature of Exhibit-4 to be a memorandum of family arrangementand not a deed of partition, it is held that the same was notrequired to be compulsorily registered under Section 49 of theIndian Registration Act. In any view of the matter, following thedecision in the case of Kale Vs. Deputy Director, Consolidation(supra), it is held that the appellant is estopped from denying thefactum of family arrangement, he being admittedly signatory tothe same. The Supreme Court’s decisions in the case of RatanLal Vs. Purshottam (supra) and in the case of Yellapu UmaMaheswari (supra), will have no application in view of thediscussions as above. I have failed to understand why learnedSenior Counsel has relied on Supreme Court’s decision in caseof Sharad Vasant Kotak (supra), which has no connection at allwith the question involved in the present case. Third additionalsubstantial question of law stands answered accordingly.

39. Discussed the first additional substantial questionof law to the effect that the suit property was acquired byoriginal defendant No.4 which were her stridhan and could notbe treated as part of the joint family property. The manner inwhich the land in dispute was acquired in the name of Ash Kuerhas been discussed in the judgments of the Courts below. Thereis clear finding based on the statement of the plaintiff’s witnesses supported by the defendant’s witnesses that theacquisition was being made in the name of female members ofthe joint family from the joint family fund and the same wastreated as joint family property and was being cultivated likejoint family land. This finding is based on appreciation oftheevidence which cannot be said to be without evidence and,therefore, cannot be treated to be perverse.

40. It is evident from the materials on record that theproperty so acquired in the name of Ash Kuer from the jointfamily fund was treated as joint family property right from thevery beginning and the family arrangement was made betweenthe members of the family for avoiding any future disputes andfor preserving peace and security of the family by avoidinglitigation. The suit property acquired in the name of Ash Kuereven if the said property was to be as stridhan of Ash Kuer, thesame had become part of the hooch pouch of the joint familyproperty and evidently for the purpose of peace in the familyand avoiding future litigation. The family arrangement wasmade on 13.12.1987. However, I find no legal infirmity in theconcurrent findings recorded by the Courts below that the jointfamily fund was the source of the money used for the purchaseof the suit property in the name of Ash Kuer. The same, therefore, has rightly not been held to be stridhan by the courtsbelow.

41. Situated thus, in view of the concurrent findingsrecorded by the Courts below, the suit property could not beconsidered to be the stridhan of Ash Kuer, which was acquiredin her name and the other female members of the family fromthe joint family fund.

42. I now come to the second additional substantialquestion of law pertaining to the stand of the appellant thatclaim of the plaintiff’s title and not the title of the defendantsover the suit property was barred under Section 4 of the BenamiTransaction (Prohibition) Act, 1988. The said submission, in myview, cannot at all be accepted since acquisition of the land inthe name of a member of a family from the joint family propertycannot be regarded as a benami transaction within the meaningof Section 2 of the Benami Transaction (Prohibition) Act, 1988.Benami transaction has been defined under Section 2(a) of theBenami Transaction (Prohibition) Act, 1988 as any transactionin which property is transferred to one person and aconsideration is paid or provided by another person. In thepresent case, the consideration has been found to have beenprovided by the joint family fund which cannot be treated as fund of another person. In my view, therefore, the said provisiondoes not have any application at all in the present facts andcircumstances. This is also to be noted that the plaintiff claimedhis title purely on the basis of the family arrangement and not aabenamidar and, therefore, the suit cannot be said to be hit byBenami Transaction (Prohibition) Act, 1988. The said questionis also answered accordingly.

43. I must observe after having answered thesubstantial questions of law as above, during the pendency ofthe suit before the Court below and during operation of aninterim order passed by the trial Court for maintaining thestatus-quo and restraining the parties from alienating the suitproperty, the defendant No.4 (since deceased) had executed thegift deed in favour of defendant no.1 (the appellant). On theone hand, thus, the appellant questioned the terms of the familyarrangement to which he was found to be party as has alreadybeen noticed above and despite knowing about the interim orderpassed by the trial Court, he became a party to the gift deeddated 12.08.1991.

44. In the aforesaid background, I do not find anymerit in this second appeal, which is, accordingly, dismissed.

45. However, in the facts and circumstances, the parties shall bear their own costs.

(Chakradhari Sharan Singh, J)

arun/-

AFR/NAFRAFRCAV DATE20.11.2017Uploading Date 05.07.2018Transmission DateN/A