RADHEY SARAN NIGAM Vs. JYOTI SHRIVASTAVA

JUDGEMENT

(1.) THIS is an appeal against order dated 27.2.1997 passed by Additional District Judge, Narsinghpur in Civil Suit No. 3 -A of 1995. This appeal is filed by the defendants No. 1, 2, 3, 4, and 7 against the respondents no. 1, 2, 3, and 4 who are the plaintiffs and the other defendants -respondents No. 5, 6 and 7. It appears that another appeal has been filed on behalf of the defendant No.4 registered as Misc. Appeal No. 585 of 1997 on 8.5.1997 and therefore, it would be proper to hold that the subsequent appeal filed on behalf of the appellant No.4 on 13.10.1997 was not proper. Consequently it would be deemed as that the appellant no.4 had not filed Misc. Appeal No.1334 of 1997. However, this would not affect Misc. Appeal No. 585 of 1997 and the disposal of Misc. Appeal No. 1334 of 1997 shall govern the disposal of Misc. Appeal No.585 of 1997. The respondents No. 1, 2, 3 and 4 filed a suit for declaration and parmanent injunction against the appellants and the respondents no. 5, 6 and 7 in respect of suit property. The respondents no. 1 to 4 prayed that it be declared that the respondents No. 1,2,3 and 4 and the appellant No.1 are the co -owners of the suit land and the other appellants no. 3, 4 & 5 and respondents no. 6 and 7 had no right and title to the suit land. It was further prayed that the sale -deed executed by the appellants No. 2, 3 and 4 and respondents no.5 and 6 in favour of the respondent no.7 is illegal and void. It was further claimed that a permanent injunction be issued by the Court in favour of the respondents No. 1 to 4 against the appellants and respondents no. 5, 6 and 7 restraining them from making any construction or investment over the suit land. It was further prayed that the aforesaid persons be restrained from transferring the suit land to any other person. Shortly stated, the case of the respondents no.1 to 4 was that Smt. Chanda Bai was the owner of the suit land. She was the mother of Guru Saran Nigam, Gyan Saran Nigam and Radhey Saran Nigam. Guru Saran Nigam was the original plaintiff No.1 who died during the pendency of the suit. His name was deleted and in his place Smt. Jyoti Shrivastava has been brought on record. The respondent no.3 is son of respondent Guru Saran Nigam and respondent no.4 is son of Gyan Saran Nigam. They are plaintiffs. It was claimed by the plaintiffs against the respondents No. 1, 2, 3, and 4 that Smt. Chanda Bai was the owner of agricultural land Khasra No. 101 area 2.991 Hactares and Khasra No. 212/1 area 3.056 Hectares situate in village Kandeli, Tehsil and District Narsinghpur. She had succeeded to aforesaid estate after the death of her father. Consequently her three living sons namely Guru Saran Nigam, Gyan Saran Nigam and Radhey Saran Nigam succeeded by her property by operation of law and their names were accordingly mutated.

(2.) IT is further alleged in the plaint that subsequently the three brothers Guru Saran Nigam, Gyan Saran Nigam and Radhey Saran Nigam decided that they shall develop aforesaid land and construct a residential colony and an educational institution. It was further agreed by the three brothers that the names of sons of all the co -owners shall be mutated and they shall be given equal shares in accordcance with a family settlement dated 1.8.1988. It was agreed that in order to meet development cost khasra No. 101 area 2.991 Hectares shall be sold to meet the expenses of development cost upon khasra No. 212/1. It was further alleged that pursuant to the settlement -deed, names of the appellants No.1 to 4 and the respondents No.5 and 6 were mutated alongwith the other owners. However, the appellants No. 1 to 4 and the respondent no.5 executed slae -deed in favour of the respondent No.7 without the consent of the respondent no.1 to 4. According to the plaintiffs execution of the sale -deed was totally illegal because the consent of Guru Saran Nigam and Gyan Saran Nigam who are the true owners alongwith Radhey Saran Nigam was not obtained. It was further alleged that the appellants No.1 to 4 and the respondent no.5 had no authority to sell specific portion of the land by the alleged sale -deed dated 30.8.1990. It was further stated that the aforesaid sale -deed was in violation of the family settlement dated 1.8.1988 and consequently it was cancelled by the respondents No.1 to 4 by the written notice 15.10.1990. The respondents No.1 to 4 further claimed on these facts that declaration and permanent injunction as indicated above be granted to them. After filing of the written statement, the respondents No.1 to 4 amended the plaint and denied that Smt. Chand Bai had executed the Will dated 9.7.1982 in favour of Radhey Saran Nigam. It was claimed that this Will was false and fabricated as Smt. Chanda Bai was an literate lady and was able to sign the will. It was further claimed that after death of Smt. Chanda Bai this Will was not brought into light for a period of nine years and therefore the respondent no. 1 could not claim ownership on the basis of alleged Will which was a forged doument. It appears that appellant No.1 Radhey Saran Nigam and his son appellant No.2 Anand Kumar Nigam filed written statement to the effect that Chanda Bai was living with Radhey Saran Nigam who used to look after her during her life time after the death of Devi Prasad Nigam, her husband and the father of Radhey Saran Nigam, Guru Saran Nigam and Gyan Saran Nigam. Guru Saran Nigam and Gyan Saran Nigam were living separately and were in service. Consequently Smt. Chanda Bai had executed a registered power of attorney in favour of appellant No.1 Radhey Saran Nigam. She also executed a Will dated 7.8.1982 in favour of Radhey Saran Nigam and got it registered. However, Radhey Saran Nigam had full love and affection for his two brothers Guru Saran Nigam and Gyan Saran Nigam. He wanted to perpetuate the memory of his mother Smt. Chand Bai and wanted to construct a colony and an ecucational institution in her name. Therefore, instead of pressing his exclusive right under the Will, Radhey Saran Nigam agreed to execute the deed of family settlement dated 1.8.1988 for developing a colony. It was further pleaded that at that time there was amity peace and good among the three brothers and their three sons and accordingly all the brothers executed a power of attorney in favour of appellant no.2 Anand Kumar Nigam. The three brothers and their sons were shown as owners of the suit property by amending the entry in the revenue records and entering the names of sons of the three brothers. Subsequently the mutation entry was changed on account of cancellation notice dated 15.10.1990. Thereafter, on the basis of a registered Will dated 7.8.1982, the name of appellant No.1 Radhey Saran Nigam was entered into revenue records. It was further alleged that after execution of the family arrnagement dated 1.8.1988, agreements dated 6.10.1987 and 25.10.1989 were executed with the consent of the respondents No.1 to 4. Khasra No. 101 was sold for Rs. 1,90,000/ -. This amount was not adequate for the development of the khasra No.212/1 and therefore, the appellant No.2 Anand Kumar Nigam had also sold his own house for development of Chanda Nagar Colony in the name of Chanda Bai. It was further alleged that the possession of the suit land was always with the appellant no.1 and appellant no.2 and not with the respondents No.1 to 4. Respondent No.6 Prem Kumar Nigam also claimed that the interlocutory application be dismissed on the ground that the possession was never with the respondents No.1 to 4. The appellant No.5 which was arrayed as the defendant no.7 had claimed that it is a housing society and had purchased the suit property on 30.8.1990 after paying full consideration. It has spent its money for the development of the plots and got a layout sanctioned for colonisation. It was also claimed that the members of the society were delivered possession of the land after development and they have paid the necessary consideration mentioned in the sale -deed executed in their favour by the appellant no.5. Under these circumstances the respondents No. 1 to 4 could not claim any permanent injunction as the appellant No.5 was the bonfide purchaser for value. Respondent No.7 State Government also filed a reply asserting that the Court fee paid was inadequate. It was also stated that the appellant No. 1 was recorded as the owner of the suit property in the revenue papers, it was further stated that the licence of coloniser was granted by the State Government to the respondent no.6 as well as the appellant No.1 and consequently third parties have purchased the plots pursuant to the scheme for colonisation. In case permanent injunction is granted then the innocent purchasers are likely to be affected. The grant of injunction is therefore, opposed even by the State Government as the injunction was likely to affect the innocent persons and loss in revenue to the State Government.

(3.) THE learned trial Judge was required to pass an order on the question of grant of temporary injunction during the pendency of the suit on the aforesaid rival contentions of the parties. It appears that the lower appellate Court was of the view that the family arrangement after death of Chanda Bai was executed by the three brothers Radhey Saran Nigam, Guru Saran Nigam and Gyan Saran Nigam. It was agreed that a colony and educational institution shall be developed. It was also agreed that the sons of the three brothers will get equal share in the suit property. It was found by the learned trial Judge that since the names of three brothers were mutated immediately after the death of Smt. Chanda Bai, appellant No.1 Radhey Saran Nigam did not claim any exclusive right in the suit property by virtue of the Will dated 7.8.1982 alleged to have been executed by Chanda Bai prior to her death. It appears that the learnd trial Judge has doubted the authenticity of the -Will dated 7.8.1982 as this Will was not pressed by the respondent No.1 immediately after the death of Chanda Bai. It was held that prima -facie there were suspicious circumstances regarding the execution of the Will and therefore, the trial Court declined to hold that the appellant No.1 alone was the true owner of the suit property by virtue of the Will. The trial Court also found that after the death of Chanda Bai, the property inherited by her through her husband would go to the heirs of the husband and therefore, the contention of the respondents No.1 to 4 that after the death of Chanda Bai her daughters or the heirs of her daughters would not get the shares in the suit property was not held to be correct. It was further held by the trial Court that the suit was maintainable and was not barred by limitation. The trial Court held that the suit was maintainable despite the fact that the daughters of Smt. Chanda Bai were not made parties to the suit and further that the purchasers from the respondent no.7 were also held to be necessary parties. This was so held that was a suit for declaration alone. It was further held that the sale -deed was not according to the family settelment. However, in paragraph 24, the learned trial Judge found that the appellant No.1 could not rely upon the family settlement because he was not ready and willing to act upon it after issuance of notice dated 15.10.1990. He got his name mutated on the basis of Will and appellant No.2 Anand Kumar Nigam had sold Khasra No.212/1 in the capacity of holder of power of attorney of appellant no.1 Radhey Saran Nigam. It was also held that the sale -deed was invalid because it was not binding upon the co -owners though they were present at the time of the execution of the sale -deed by appellant no.2 Anand Kumar Nigam in favour of the appellant No.5. It was held that the appellant No.5 Society was not bonafide purchaser of the land and had purchased the suit land without permission from the other true owners. The learned trial Judge found prima -facie case in favour of the respondent No. 1 to 4 and granted temporary injunction holding that the balance of convenience was in their favour and they shall suffer irreparable injury if the appellants and other defendants -respondents No.5 and 6 are not restrained from selling khasras No. 212/1 and 101 during the pendency of the suit It was further directed that so far as khasra No. 101 is concerned, the appellant No.5 shall not make any construction over the suit land. In this appeal it has been urged on behalf of the appellants that there is no case for grant of temporary injunction. Learned counsel for the appellants argued that there was a family settlement between the parties and apparently appellant no.1 Radhey Saran Nigam who had registered Will in his favour did not press it in the interest of amicable settlement between the three brothers and their sons for developing a colony in the name of Chanda Bai. It was argued that the dispute was a subsequent development and the respondents No.1 to 4 could not resile from settlement. In case they are permitted to resile from it, the appellant No. 1 is as well entitled to press the Will. It is urged vehemently that prima facie it appears to be a good and valid document. It was urged that a registered Will in itself lends authenticity to the document and this document was executed during the life -time of Chanda Bai. She expired on 20.5.1985. It was also argued that the facts of this case speak for themselves. The appellant No.1 had a weapon in his hand in the shape of registered will. He was made full owner of the total property in the suit. If he was greedy then he would have pressed the will and would not have entered into family arrangement granting' equal share to everyone concerned. The conduct of the appellant No.1 showed that the family arrangement was entered into with a bonafide motive on his part to develop a colony in the memory of his revered mother. It was further argued that the family settlement should ordinarily be deemed to be binding upon all the parties concerned. The disputed rights of the members of the family are settled and the result is reduced into a document so that there will be no future trouble. Such a document is made for drowning existing or likely dispute for ever and the Courts are always inclined to enforce a family arrangement despite the fact that it may not appear to have strictly followed the lines on which partition is legally done. It was also argued that such a family arrangement would not require registration and was admissible in evidence. As such it did not create, limit, assign or extinguish any right in the immoveable property and therefore, the Court is entitled to look into it. It was further argued that the parties had agreed to authorise appellant No.2 Anand Kumar Nigam to execute the sale -deed in favour of the appellant no.5 and he had done so. There was no objection on the part of the respondents No. 1 to 4 but now they have changed their minds and with a view to harass the appellants and the respondents No.5 and 6, they have filed this suit. In other words, it Was claimed that there was no prima facie case in favour of the respondents No.1 to 4 for grant of temporary injunction. A number of authorities were cited by the learned counsel for the appellants and it would be appropriate to refer to them during the course of discussion. The counsel for the respondents No.1 to 4 on the other hand argued that the facts of this case do disclose that the appellants No.1 to 4 did not adhere to the family arrangement made by the parties and consequently equitable principle is in their favour. It was also argued that the family arrangement did require a registration and the Court is not entitled to look into it even for collateral purpose. The learned counsel for the respondents No.1 to 4 has also cited a number of authorities which shall be considered during the course of discussion. Having heard the counsel for the parties, this Court must decide if there is a prima -facie case in favour of the respondents No.1 to 4 for grant of temporary injunction. The learned trial Judge in his judgment has not dealt with the issue involved in the case adequately and consequently it is necessary to consider the case of the respondents No.1 to 4 for grant of temporary injunction in somewhat detailed manner. A first thing that comes to the mind what is the nature of the Will dated 9.7.1982 ? It may be noted that this will was executed by Chanda Bai prior to three years of her death. At that time undisputedly Chanda Bai was aged about 92 years. The Will bears the thumb mark of Chanda Bai. She has not signed the Will dated 9.7.1982 before the Sub -Registrar. Therefore, a question arises if she could sign why she did put her thumb mark on the Will ? In the Will itself there is a recital to the fact that the testator is unable to move and sign on account of fact that she had become too old prima -facie this be a reason for not signing the Will. It has not been disputed before me that Chanda Bai used to read and write when she was young but it argued that it is not possible at the old age of 92 years. She may not be in a position to sign the document. The Indian Succession Act also does not require that the testator should sign the Will. It would always be a question of fact if a particular testator was in a position to sign the Will or not. Howerver, in this particular case the Will was registered before the Sub -Registrar and her signature appears to have been officially authenticated on 7th August, 1982 and this Court on the basis of speculation cannot say that prima -facie the registered Will is inoperative on the suspicion that it might have been a forged Will and somebody else had appeared before the Sub -Registrar instead of Chanda Bai. In the opinion of this Court this inference cannot be drawn at this stage. On the other hand the formality of registration of Will lends it greater assurance in favour of the beneficiery of the Will. It is apparent that the appellant No. 1 was living with his mother and he was looking after her whereas the other brothers Guru Saran Nigam and Gyan Saran Nigam were not living with her. The appellant No.1 was looking after her and there is every possibility that the appellant No. 1 developed great affinity with his mother on account of close proximity. Looking to the common course of events it can be inferred that she might be more affectionately inclined towards the appellant No.1 than the two brothers who were living apart. The possibility of desire to give the suit land to the appellant no.1 solely cannot be ruled out. The preponderance of probability appears to be in his favour.