1. This appeal by the defendants, is directed against the judgment and decree dated 23.03.2001 passed by the learned Civil Judge (Sr. Division), Morigaon in Title Appeal No.1/2000, dismissing the appeal preferred by them by upholding the judgment and decree dated 13.12.1999 (decree drawn on 20.12.1999) passed in Title Suit No.29/1994 by the learned Civil Judge (Jr. Division) (now Munsiff), Morigaon, whereby and whereunder the suit of the plaintiffs/ respondents is decreed.
2. The respondent Nos.1 to 5 as plaintiffs instituted the suit for declaration of right, title and interest over the land measuring 3 kathas 5 lechas in Dag No.1111 of periodic patta No.461 of village Barangabari under Mouza-Dandua in the district of Morigaon, more fully described in Schedule-A to the plaint; for confirmation of possession in respect of 1 katha of land, more fully described in Schedule-B to the plaint, which is part of the Schedule-A land and for recovery of khas possession in respect of 1 katha 13 lechas of land, more fully described in Schedule-C to the plaint, which is also the part of the Schedule-A land. The plaintiffs also prayed for issuance of precept to the revenue authority for cancellation of the mutation dated 10.02.1994 granted in favour of the defendant No.1. The case of the plaintiffs as projected in the plaint is that the Schedule-A originally belonging to Gura Kalita alias Bora and Lessa Kalita. After the death of Gura Kalita his share in the property devolved on his three sons, namely, Teen Bora, Gunaram Bora and Deben Bora and on the death of Lessa Kalita, his share in the property devolved on his only son, namely, Dharani Kalita alias Bora and accordingly all of them have been jointly enjoying the land. According to the plaintiffs, while they were in joint possession, the proforma defendants, namely, the successor-in-interest of Teen Bora and Deben Bora, who are the brothers of plaintiffs’ father Gunaram Bora and Dharani Kalita, the successor-in-interest of Lessa Kalita, given up their rights in respect of their shares, which land was under possession of the plaintiffs from before, by virtue of amicable partition amongst the members of the joint family, for which a document dated 14.09.1990 was subsequently executed, which however, was not registered. It is also the case of the plaintiffs that they also given up their rights and possession in respect of 12/13 lechas of land in favour of Dharani Kalita alias Bora, who is staying on the said land by constructing dwelling house. It is also the case of the plaintiff that on or about 02.03.1992 the principal defendants/appellants encroached about 1 katha 13 lechas of land out of the land measuring 3 kathas 5 lechas in the suit Dag and in the year 1993 the principal defendant No.1 constructed a small room and used as “Monikut” (temple), thereby encroached into the suit land and dispossessed the plaintiffs from the said land. The further pleaded case of the plaintiffs is that on 10.02.1994 the Circle Officer, Morigaon mutated the name of the defendant No.1 in the revenue record. The plaintiffs, who are the successor-in-interest of Gunaram Bora, therefore, instituted the suit as aforesaid.
3. The principal defendants/appellants contested the suit by filing the joint written statement contending inter alia that the plaintiffs have no right, title and interest over the suit land and also denying execution of any sale deed by the successor-in-interest of Teen Bora, Deben Bora as well as Dharani Kalita apart from denial of the execution of the deed dated 14.09.1990. According to the defendants, the land originally belonged to one Mila, who had three sons through two wives i.e. Lessa Kalita, Gura Kalita through the first wife and Bogiram Kalita through the second wife, who amicably partitioned the land and consequently the land measuring 1 bigha 1 katha 16 lechas in Dag No.1052 fell in the share of Lessa Kalita and Gura Kalita jointly and the land measuring 3 kathas 5 lechas covered by suit Dag No.1111 fell in the share of Bogiram and they were accordingly enjoying their respective shares separately. It is also the contention of the defendants that Bogiram, about 45 years ago, sold the entire land measuring 3 kathas 5 lechas in suit Dag No.1111 in favour of the principal defendant No.1 for a consideration amount of Rs.90/-, by means of a verbal sell and delivered possession and since then he is possessing the suit land. According to the defendants, Lessa Kalita and the sons of Gunaram Kalita alias Bora during last settlement recorded their names in the revenue records, whereafter the defendant No.1 got the mutation in respect of 1 katha 13 lechas of land (Schedule-C land) out of 3 kathas 5 lechas of land. The defendants, therefore, filed the counter claim for declaration of their right, title and interest over the Schedule-A land and delivery of khas possession in respect of Schedule-B land apart from issuance of precept directing the revenue authority to cancel the mutation dated 01.04.1993 granted in favour of the plaintiffs.
4. The plaintiffs/respondents submitted the written statement against the counter claim of the defendant Nos.1 to 5 contending that initially the land was recorded in the name of Gura Kalita and thereafter in the name of Lessa Kalita, his brother along with the names of Teen, Gunaram and Deben, the sons of Gura Kalita. It has also been stated that Bogiram though is also a son of Mila through the second wife, his name, has neither been recorded in the revenue record nor did he seek any mutation claiming any share in the land covered by suit patta during his lifetime. The case of the defendants that the land measuring 3 kathas 5 lechas covered by suit Dag No.1111 fell in the share of Bogiram Bora was also denied contending that Bogiram Bora is enjoying other land in the said Dag No.1111. The oral sale by Bogiram as contended by the defendants accompanied by delivery of possession, in respect of the Schedule-A, has also been denied. The proforma defendants, namely, the successor-in-interest of Teen Bora, Deben Bora, Lessa Bora and Bogiram Bora did not contest the suit by filing any written statement.
5. The Trial Court on the basis of the pleadings of the parties framed the following issues for consideration and decision:-
1) Whether there is a cause of action for the suit?
2) Whether the suit is maintainable in its present form?
3) Whether the suit is bad for non-joinder of and misjoinder of parties?
4) Whether the plaintiffs have right, title and interest over suit land
5) Whether the defendants have any right, title and interest over suit land as claimed by way of counter claim?
6) Whether the plaintiffs are entitled to get a decree as prayed for?
7) To what other relief/reliefs the parties are entitled?
6. The Trial Court upon appreciation of the evidences on record decreed the suit of the plaintiffs/ respondents declaring the right, title and interest in favour of Schedule-A and recovery of khas possession in respect of Schedule-C land and directing issuance of precept to the revenue authority for correction of revenue records accordingly, by holding that the land measuring 3 kathas 5 lechas covered by suit Dag No.1111 fell in the share of Gunaram Bora, predecessor-in-interest of the plaintiffs, as the successor-in-interest of Teen Bora, Deben Bora and also Dharani Kalita gave up their possession in respect of the suit land by means of the family settlement. The Trial Court has also accepted the plaintiffs’ case that Bogiram Bora, the son of Mila through the second wife gave up his share in the property and went to forest reserve for settlement, placing reliance on the oral evidence as well as Ext.-9 document dated 14.09.1990, in which sons of Bogiram, namely Dombar Bora and Gorsing Bora were also parties. The Trial Court further held that the fact of amicable partition between the parties and that the land measuring 1 katha 12½ lechas initially fell in the share of Gunaram Bora and Lessa Bora is also evident from the Ext.-9 apart from subsequent giving up possession by Teen Bora, Deben Bora and Dharani Kalita, son of Lessa Kalita in favour of the sons of Gunaram Bora, the present plaintiffs, in respect of 3 kathas 5 lechas covered by suit Dag No.1111. The claim of the defendants that there was an oral sale by Bogiram has not been believed. Being aggrieved the defendant Nos.1 to 5/present appellants preferred Title Appeal No.1/2000 in the Court of the learned Civil Judge (Sr. Division), Morigaon, which has been dismissed by the impugned judgment and decree dated 22.03.2001. Hence the appeal.
7. The second appeal was admitted for hearing vide order dated 22.08.2001 on the following substantial questions of law:-
1) Whether the Courts below ere legally justified in declaring right, title and interest of the plaintiffs in the ‘C’ schedule land of the plaint without a decree declaring such right, the learned courts below are legally justified in declaring that the plaintiffs are entitled to khas possession of ‘C’ schedule land of the plaint by evicting the defendants.
2) Whether the courts below acted illegally and beyond jurisdiction in passing the decree as the plaintiffs failed to pray for specific relief in the plaint as provided in Order 7 Rule 7 of the Code of Civil Procedure, and whether the Courts below failed to appreciate that the suit is barred under Section 34 of the Specific Relief Act, 1963.
3) Whether the courts below committed error of law as well as facts and were not justified in holding that by virtue of Exts.-1, 2, 3, 4, 5, 7 and 9 the plaintiffs/ respondents acquired right to claim the suit land and rejecting the counter claim of the defendants/ appellants and whether the courts below committed grave error of law in relying on proved, inadmissible and unregistered Deed of Relinquishment (Ext.-9).
8. I have heard Mr. P.C. Deka, learned Sr. counsel for the appellants and Mr. A.C. Sarma, learned counsel appearing for the respondents.
9. Mr. Deka, learned Sr. counsel for the appellants/main defendants has contended that though aforesaid three substantial questions of law were formulated at the time of admission of the appeal, the substantial question of law No.3 is relevant for the purpose of the present appeal, i.e. whether by virtue of Ext.-9 unregistered deed, the plaintiffs could acquire the right, title and interest in respect of Schedule-A land and as such in the present appeal the other substantial questions of law as formulated vide order dated 22.08.2001 need not be gone into. In view of such submission, this appeal is confined to the substantial question of law No.3 as formulated by the aforesaid order.
10. Referring to the Ext.-9 deed, which is admittedly an unregistered document, it has been submitted that since by the said document Dharani Kalita alias Bora, son of Lessa Bora apart from Dombaru Bora and Gorsing Bora, both are sons of Bogiram Bora, relinquished their rights in respect of the land measuring 3 kathas 5 lechas (Schedule-A) in favour of the plaintiffs, who are sons of Gunaram Bora, who is the brother of Teen Bora, Deben Bora, Dharani Kalita alias Bora and Bogiram Bora, the said document cannot confer any right, title and interest on the plaintiffs, as the said document is not registered, though compulsorily registerable under Section 17(1)(b) of the Registration Act, 1908. The learned Sr. counsel referring to the provisions contained in Section 49 of the said Act submits that Ext.-9 document cannot have effect on any immovable property and the said document cannot be received as evidence of any transaction affecting such property. The learned Sr. counsel, therefore, submits that the declaration of right, title and interest in respect of Schedule-A land and recovery of khas possession in respect of Schedule-C land, in favour of the plaintiffs by virtue of Ext.-9 document, by both the Courts below, is contrary to the provisions of the Registration Act. Mr. Deka also submits that it is evident from Ext.-9 document that by virtue of the said document, the successor-in-interest of Lessa Kalita and Bogiram Bora has given up their rights in respect of Schedule-A land in favour of the plaintiffs, apart from transferring their rights by way of sale for Rs.15,000/-, which document cannot also be regarded as sale deed being not registered as required under Section 54 of the Transfer of Property Act read with Section 17(1)(b) of the Registration Act. According to the learned Sr. counsel even if it is treated as the family partition, the same has to be registered. The learned Sr. counsel in support of his contention has placed reliance on the decisions of the Apex Court in Tek Bahadur Bhujil Vs. Debi Singh Bhujil & ors. reported in AIR 1966 SC 292; in Annaimuthu Thevar Vs. Alagammal & ors. reported in (2005)6 SCC 202 as well as in Sneh Gupta Vs. Devi Sarup & ors. reported in (2009)6 SCC 194.
11. Mr. Sarma, learned counsel appearing for the respondents, on the other hand, supporting the judgments and decrees passed by the Courts below, has submitted that it is evident from the Ext.-9 document that there was an oral family arrangement arrived at amongst the heirs of Gura Kalita alias Bora and Lessa Kalita alias Bora, by virtue of which land measuring 3 kathas 5 lechas (Schedule-A) fell in the share of the predecessor-in-interest of the plaintiffs, which was only recorded in the Ext.-9 memorandum indicating what had been agreed to between the parties and as such the said document is not compulsorily registerable under Section 17 of the Registration Act, the same having not been a document of family arrangement for the purpose of using the same as a proof of what they had agreed. The learned counsel, therefore, submits that even though the document is titled as “Abandonment of Share-cum-Sale Deed”, the same is nothing but a writing recording the family arrangement arrived at orally amongst the parties. It has also been submitted that as the family arrangement can be arrived at orally and the proforma defendants, who are the heirs of Lessa Bora, Teen Bora and Deben Bora as well as Bogiram Bora did not contest the case of the plaintiffs and thereby accepted what the plaintiffs have stated in the plaint, no illegality has been committed by the Courts below in decreeing the suit of the plaintiffs. The learned counsel in support of his contention has also placed reliance on the Apex Court decision in Tek Bahadur Bhujil (supra) as well as in Kale & ors. Vs. Deputy Commissioner of Consolidation & ors. reported in (1976)3 SCC 119.
12. I have considered the submissions of the learned counsel for the parties and also perused the records including the judgments and decrees passed by the Courts below.
13. It emerges from the pleadings of the parties as well as the evidences adduced that certain land originally belonged to Mila, who had two wives. Gura Kalita alias Bora and Lessa Kalita were the sons of Mila through the first wife and Bogiram Kalita alias Bora was the son of Mila through the second wife. After the death of Gura Kalita the entire property devolved on his three sons, namely, Teen Bora [predecessor in-interest of the proforma defendant Nos.1(a) and 1(b)], Gunaram Bora (predecessor-in-interest of the plaintiffs) and Deben Bora [predecessor-in-interest of proforma defendant No.2(a) to 2(g)]. Similarly, after the death of Lessa Kalita the property devolved on the proforma defendant No.3. The proforma defendant Nos.4 to 7 inherited the property after the death of Bogiram Bora, who was the son of Mila through the second wife.
14. The substantial questions of law, as noticed above, involved in the present appeal is relating to the interpretation of the Ext.-9 document dated 14.09.1990. Though the said document is titled as “Abandonment of Share-cum-Sale Deed”, the contents of the same reveals recording in writing as a memorandum of what had been agreed upon between the parties in the family arrangement earlier arrived at amongst the heirs of Mila orally, so that there is no hazy notions about it in future. It appears from the Ext.-9 that there was a family arrangement in respect of the landed property left behind by Mila, amongst his heirs and pursuant to such family arrangement land described in Schedule-A, namely, 3 kathas 5 lechas in suit Dag No.1111, was allotted to the father of the plaintiffs, who was in possession since the time of their forefather. In the said document it has also been mentioned that Dharani Bora, son of Lessa Kalita alias Bora and Dombaru Bora and Gorsing Bora both sons of Bogiram Bora, have no right over the suit land and hence the transfer of land on assumption of receipt of Rs.15,000/-. It is apparent from the said document that in fact no consideration amount was paid and as such it is not a sale deed requiring compliance of Section 54 of the Transfer of Property Act read with Section 17(1)(b) of the Registration Act. The evidence as adduced by the plaintiffs also supports the earlier family arrangement made amongst the heirs of Mila and by virtue of such family arrangement, which was oral, the land measuring 3 kathas 5 lechas described in Schedule-A to the plaint was allotted to the predecessor-in-interest of the plaintiffs.
15. The Apex Court in Tek Bahadur Bhujil (supra) has held that the family arrangement can be arrived at orally and its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. Such memorandum need not be prepared for the purpose being used as a document on which future title of the parties to be founded and if such memorandum is prepared as record of what had been agreed upon so that there is no hazy notions about it in future, the same is not required to be registered. On the other hand, it is only when the parties reduced the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. In Kale (supra) the Apex Court following its earlier decision in Tek Bahadur Bhujil (supra) as well as other decisions, in paragraph 10 has held that a family arrangement may even be oral, in which case there is no requirement of registration of such arrangement. It has also been held that the registration would be necessary only if the terms and recitals of a family arrangement made under the document (emphasis added) and as such registration is not necessary when the document is a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation, as by such memorandum itself does not create or extinguish any rights in immovable properties and as such not required to be compulsorily registerable under Section 17(1) of the Registration Act. Paragraph 10 of the said judgment, is reproduced below:-
“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 properties 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 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”
16. There is no dispute to the proposition of law that unregistered deed of title, when the value of the property is more than 100, cannot confer any right or create any interest on such property, as such document is compulsorily registerable under sub-section (1) of Section 17 of the Registration Act and the effect of non-registration is stipulated in Section 49 of the said Act, as held by the Apex Court in Annaimuthu Thevar (supra). Similarly for relinquishment of right by a person over a property, there must be a registered instrument in terms of the provisions of the Registration Act, as held by the Apex Court in Sneh Gupta (supra).
17. As held by the Apex Court in Tek Bahadur Bhujil (supra) and Kale (supra), the family arrangement may even be oral, in which case no registration is necessary. The registration of a memorandum would also not be necessary if the same is prepared, after the family arrangement had already been made, either for the purpose of record or for information of the Court for making necessary mutation. The Ext.-9 document as well as the evidence adduced by the plaintiffs reveal that a family arrangement had already been made and the Ext.-9 is nothing but the memorandum prepared after such family arrangement for the purpose of record and for the purpose of mutation of the names of the plaintiffs, who are the legal heirs of Gunaram Bora. Accordingly the mutation was initially granted in favour of the plaintiffs over the suit land described in Schedule-A. By the said document the family arrangement has not been made. What it has indicated is only the family arrangement which had already been made and as such is not required to be registered under the Registration Act. That apart, the other successors-in-interest of Mila, though parties to the suit, never contested the claim of the plaintiffs in that regard. The contention of the appellants/defendant Nos.1 to 5 that the Ext.-9 document is compulsorily registerable cannot, therefore, be accepted and hence rejected. The defendants also could not prove by adducing any cogent evidence to substantiate the plea of oral transfer of the suit land.
18. In view of the aforesaid discussion, I do not find any merit in the appeal and hence the appeal is dismissed.