SHISHPAL Vs. VIKRAM

JUDGEMENT

(1.) Plaintiffs are the appellants. They filed the suit against their paternal uncle Gyani Ram for declaration of their title alleging that they were looking after him and about six months prior to the filing of the suit, Gyani Ram gave the property to them under a Family Settlement. In that suit, Gyani Ram appeared and filed a written statement acknowledging the transfer of the property in favour of the plaintiffs and also got a statement recorded. Thereafter he died before passing of the decree. The grand son of the said Gyani Ram (daughter's son) was impleaded as his legal representative, when the legal representative wanted to file a separate written statement, it was objected to by the plaintiffs on the ground that the legal representative cannot take different plea from that of the original defendant, who died during the pendency of the suit. That objection was upheld by the Trial Court. Nevertheless the Trial Court dismissed the suit on the ground that the question of family settlement does not arise because the plaintiffs have no right, title or interest in the suit property during the life time of Gyani Ram. Aggrieved by the same the plaintiffs preferred an appeal unsuccessfully. Hence the Second Appeal by the plaintiffs.

(2.) It is contended by the learned counsel for the plaintiff-appellants that when the original defendant Gyani Ram admitted the claim of the plaintiffs and when the Court found that the legal representative of Gyani Ram cannot file a separate written statement taking pleas contrary to what had been taken by the original defendant, the suit of the plaintiff ought to have been decreed.

(3.) I am unable to agree with the contention of the learned counsel for the plaintiff-appellants. Admittedly, the suit property belonged to Gyani Ram. During his life time, the plaintiffs have no right in the suit property. There cannot be any Family Settlement. The family Settlement can be made among the members of the family or when there is a dispute among themselves. As held by the Supreme Court in Sahu Madho Das and Ors. v. Mukand Ram and Anr., A.I.R. 1955 S.C. 481 it is well settled that a family settlement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of others as they had previously asserted it to the portions allotted to them respectively. Reference may be made to Maturi Pullaiah v. Maturi Narasimham and Ors., A.I.R. 1966 S.C. 1836 and Kale v. Dy. Director of Consolidation, A.I.R. 1976 S.C. 807. Here there is no dispute in regard to the property. Admittedly it belonged to Gyani Ram exclusively. When Gyani Ram during his life time wanted to give the entire property of his to the plaintiffs, such transfer can only be effected by a gift or Settlement Deed. Under Section 123 of the Transfer of the Property Act, a gift can be made only by a registered document attested by two witnesses. It is not the case of the plaintiffs that there can be an oral gift in the State of Punjab and the provisions of Section 123 of the Transfer of Property Act are not applicable. It has been held in Malkiat Singh v. Gram Panchayat, A.I.R. 1974 P&H 28 that an oral gift is not saved from requirement of validity under the Transfer of Property Act. Under Section 17 of the Registration Act, the right in the immovable property can only be a relinquished or transferred by the original owner by the registered document. Admittedly, there is no regd. document in the instant case. The plaintiffs cannot, therefore, rely upon the alleged admission of Gyani Ram that he transferred his right in favour of the plaintiffs. Since there cannot be any oral transfer of property worth more than Rs. 100/such an admission is not valid in law and it does not create any title, interest or right in the immovable property in favour of the plaintiffs.