Mahadei Kunwar v. Padarath Chaube

Sir Shah Muhammad Sulaiman, C.J, Bennet and Ganga Nath, JJ.:— This, is a plaintiff's appeal, arising out of a suit for recovery of possession, which on account of the importance of the question of law involved in the case has been referred to a Full Bench. Rambaran was the last male owner of 7,295 acres of land which he held at the time of his death. On his death his mother Mst. Sartaji succeeded to the property as a Hindu mother and was entitled to remain in possession of the property for her lifetime and could have made a transfer of it only for legal necessity. On the 14th of April, 1928, she executed a deed of gift of the entire lands in favour of her daughter's son Mahabir, defendant No. 1. The court below has found that Mahabir entered into possession of the property; but it appears that mutation of names was not effected in the lifetime of Mst. Sartaji. She died in October, 1931, and an application for mutation of names was made by Mahabir who was the applicant, which was resisted by the present, appellant Mst. Mahadei Kunwar as the objector. Mahadei Kunwar is sister of Rambaran. On the 1st of February, 1932, a document was filed in the revenue court which was signed by Mahabir and bore the thumb-impression of Mst. Mahadei Kunwar. It was in the form of an application addressed to the court, in which it was prayed that the name of the applicant Mahabir should be recorded in the revenue papers against 5.473 acres out of 7.295 acres, and that the name of the objector should be recorded against 1.822 acres. The compromise further stated that the objector would remain in possession of her property without any power of transfer during her lifetime and that after her death the applicant would be the owner in possession of that property. There was a further provision that the applicant would discharge certain debts of the deceased. The application contained the final prayer that the mutation case should be decided in accordance with the said compromise. The petition of compromise was not registered but was acted upon by the court, which ordered mutation accordingly. The present suit was instituted somewhat promptly on the 3rd of September, 1932, by Mst. Mahadei Kunwar on the ground that the said compromise had been obtained by fraud and that for want of registration it was not binding upon her. The first court decreed her suit, but on appeal the learned Judge has reversed that decree. There is a finding that she failed to prove the fraud alleged by her and there is a further finding that she had understood the compromise and that she had executed it independently and there is also a finding that inasmuch as Mahabir had undertaken to discharge certain debts of Rambaran, the compromise was for consideration and was not unfair. There is however a finding that defendant No. 2 is not a bona fide transferee for value, as he must have come to know of the compromise, although he paid consideration for his transfer from Mahabir under a deed dated the 7th of May, 1932.

Prior to the amendment of the Transfer of Property Act the question of the validity of a family settlement evidenced by an unregistered document was considered by a Full Bench of this Court in Ram Gopal v. Tulshi Ram . In that case it was held that a family settlement could be arrived at orally without any registered document, but that if the arrangement be reduced to writing, then registration was necessary under section 17 of the Registration Act, although the transaction did not amount to a transfer of property. In this connection the observations made by their Lordships of the Privy Council in several cases were quoted and relied upon. In Trigge v. Lavallee (2) it was observed that “A compromise is an agreement to put an end to disputes and to terminate or avoid litigation, and in such cases the consideration which each party receives is the settlement of the dispute; the real consideration is not the sacrifice of a right but the abandonment of a claim.” In Rani Mewa Kuwar v. Rani Hulas Kutuar (3) their Lordships observed: “The compromise is based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is.”

In Khunni Lal v. Gobind Krishna (4) their Lordships remarked that they had no hesitation in adopting the view of this High Court as expressed in Lalla Oudh Beharee Lall v. Ranee Mewa Koonwer (5). Their Lordships then proceeded to point out that in the case before their Lordships Khairati Lal “acquired no right from the daughters of Daulat, for the compromise, to use their Lordships' language in Rani Mewa Kuwar v. Rani Hulas Kuwar , is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is.” In Hiran Bibi v. Sohan Bibi their Lordships again observed: “A compromise of this character is, in no sense of the word an alienation by a limited owner of the family property but is a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent, and by way of compromise, admitted by the other parties.”

On the strength of these authorities the Full Bench held that the pronouncements of their Lordships of the Privy Council were sufficiently clear to put it beyond doubt that in the usual type of family arrangement there is no question of any property (the admitted title to which rests in one of the parties) being transferred to one of the other parties, and there is no transfer of ownership such as is necessary to bring the transaction within the definition of “exchange” in section 118 of the Transfer of Property Act. Of course, there may be a family settlement in which there is some transfer of property as well, along with the settlement of the dispute, which to the extent of such transfer would stand on a different footing.

In the present case the application did not give any indication that Mst. Mahadei Kunwar was conveying any property to Mahabir. It really embodied the agreement between the parties in which the title of the other was acknowledged and recognized and it was prayed that effect be given to such recognition of title.

Section 53A was added by the Transfer of Property (Amendment) Act XX of 1929, and would certainly apply to the present transaction which took place in 1932. But section 53A applies “where any person contracts to transfer for consideration any immovable property by writing signed by him etc.” The main question is whether it can be said that the family settlement with which we have to deal in this case was a contract to transfer immovable property. Section 5 defines “transfer of property” for the purposes of the following sections of the same chapter which includes section 53A as “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons.” On the authority of the Full Bench referred to above, the family settlement in this case could not be regarded as either a transfer of property or even a contract to transfer immovable property. It was merely an acknowledgment of the right of the other party. However unfortunate the result may be, it is very difficult to apply section 53A to such a case. Had there been arty transfer of property or contract to transfer for consideration any immovable property-involved in the case, section 53A would have applied. But it does not apply to the case before us. Thus the defect of the want of registration, held to be fatal by the Full Bench, cannot be cured by the provisions of section 53A.

It is to be noted that along with giving to the amendment of the Transfer of Property Act a retrospective effect by the addition of section 63(a), the legislature has also amended, section 49 of the Indian Registration Act, and has expressly provided inter alia that “an unregistered document affecting immovable property and required by the Registration Act or the Transfer of Property Act to be registered may be received … as evidence of part performance of a contract for the purpose of section 53A of the Transfer of Property Act of 1882” etc. Thus, had the case fallen under section 53A, there would no longer have been any defect. It follows that in cases to which the doctrine of part performance applies, the non-registration of the document would be no bar to the applicability of section 53A or its admissibility in evidence.

We accordingly allow this appeal and setting aside the decree of the lower appellate court restore that of the first court with costs in all courts.