RUKMANI DEVI Vs. NAND KISHORE

JUDGEMENT

(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.

(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.