B.M. Shyam Prasad, J.
1. The appellants are the legal representatives of the deceased plaintiff, Sri K. Basheer Ahmed in O.S.No.30/1994 on the file of the Additional Civil Judge (Senior Division) and CJM at Shimoga (for short, the 'Learned Civil Court'). Sri K. Basheer Ahmed, has instituted the suit in O.S.No.30/1994 for partition with separate possession of the different immovable properties listed in Schedule A and B of the plaint, and for consequential relief/s. The Learned Civil Court has dismissed the suit by the judgment and decree dated 8.6.2001.
2. Sri K. Basheer Ahmed, the deceased plaintiff has filed this appeal impugning the aforesaid judgment and decree dated 8.6.2001, but his legal heirs have continued the appeal after his demise. The respondents No.1, 2 and 3, who are the brothers Sri. K. Basheer Ahmed, also died during the pendency of the appeal and their legal heirs have been brought on record. Further, the respondents No.9 to 11, who are pendente lite purchasers of certain suit schedule properties, have been impleaded as party-respondents in this appeal vide the order dated 20.10.2008. Sri K. Basheer Ahmed and other parties to the proceedings in O.S.No.30/1994 are referred to as they are arrayed before the learned Civil Court.
3. The plaintiff has filed the suit in O.S.No.30/1994 for partition and separate possession of the different properties listed in the plaint schedule arraying his brothers viz., defendants No.1 to 4, and his sisters viz., defendants No.5 to 8. The plaintiff has asserted that he and the defendants are children of Sri. M.Abdul Khudus and Smt. Tafiza Abi, who died in the years 1983 and 1984 respectively. Sri. M.Abdul Khudus acquired several landed properties such as agricultural lands and vacant sites in Shivamogga described in Schedule A and B of the plaint. The plaintiff is living in Gubbi working as "Pesh Imam" and he moved from the family in the year 1962-63 in search of employment. The defendant No.4 is living in Kumsi Village, Shivamogga. The other defendants are living separately.
4. After the death of Sri M. Abdul Khudus, the plaintiff and defendants succeeded to the schedule properties as tenants-in-common with specific shares. The defendant No.4, who was looking after and managing the schedule properties even during the lifetime of Sri M. Abdul Khudus as his Power of Attorney, continued to look after and manage the schedule properties after the demise of Sri M. Abdul Khudus. The plaintiff and defendant No. 2 executed the Power of Attorney dated 27.8.1987 in favour of the defendant No.4 in utmost good faith and the plaintiff was not aware of the contents of such Power of Attorney as it was drafted on the instructions of the defendant No.4. The plaintiff upon coming to know that the defendant No.4 had acted contrary to the plaintiff's interests, executed and registered the Cancellation Deed dated 3.3.1993 cancelling the power of attorney dated 27.8.1987. The plaintiff caused legal notice dated 6.3.1993 as the defendant No.4 was attempting to get his name entered into the revenue records for the agricultural lands described in schedule - A and also remove standing timber. The cause of action arose in the month of March 1993.
5. The defendant No.2 has filed his written statement in effect adopting the assertions by the plaintiff. However, the defendant No.4, the contesting defendant, has filed separate written statement. The defendant No.4 has admitted the relationship amongst the parties and the following facts and circumstances. Sri M. Abdul Khudus owned the suit schedule properties as of the date of his demise. The plaintiff and defendants have succeeded to the properties left behind by Sri. M. Abdul Khudus as tenants-in-common, and the defendant No.4 was managing the affairs of the suit schedule properties even during the life time of Sri M. Abdul Khudus. However, the defendant No.4 has contended that the plaintiff has suppressed material facts in the plaint.
6. The plaintiff and the other sons were pursuing studies at a place called Twonk Village in Rajasthan and only defendant No.4 resided with the parents. After demise of M. Abdul Khudus, and the demise of their mother, Smt. Tafiza Abi, in the year 1984, the plaintiff and defendants agreed to effect partition of the suit schedule properties. They on 28.5.1984, consented for distribution of the schedule properties as per the Shariat Law and for appointment of Janab Moulana Mohammed Siraj-Ul-Haseen Saheb and Janab Mehamood Khan as Arbitrators to decide on the allotment of shares. The aforesaid, in pursuance of the consent by the plaintiff and the defendants to enter reference for arbitration, held deliberations and drew up a settlement deed that was signed by all the parties. As per the settlement deed, the agricultural lands described in schedule A of the plaint were valued at Rs. 1,72,500/-. These agricultural lands were 'given' exclusively to the defendant No. 4 on the condition that the defendant No. 4 shall pay, at the most by the month of September 1984, the said amount of Rs. 1,72,500/-. Sri M.Abdul Khudus owed a sum of Rs. 72,500/- to third parties as of the date of his demise. This sum of Rs. 72,500/- should be paid out of Rs. 1,72,500/- and the balance of Rs. 1,00,000/- should be paid to the plaintiff and the other defendants as required under the Shariat law. Thereafter, the transfer of the agricultural lands should be affected by all the parties in favour of defendant No. 4. As regards the suit schedule B property, the defendant No. 4 is conferred with the power to sell such properties, along with the timber, and distribute the sale proceeds amongst all the legal heirs of Sri M. Abdul Khudus according to Shariat Law. The defendant No.4 accordingly transferred such properties and distributed the proceeds.
7. Further, the plaintiff and the defendants have acted upon the terms of such settlement. When the defendant No.4 filed application before the Tahsildar for change of pahani/mutation for the agricultural lands in his favour, the defendant No.1 objected to the same. Therefore, the Tahsildar registered the proceedings as a dispute in RRT-DIS-CR- No.2685/1986. The plaintiff and defendant No.2 filed Statement in such proceedings unequivocally admitting the terms of settlement. Thereafter, all the parties have filed compromise petition in the proceedings before the Tahsildar on 25.1.1988, and the plaintiff and defendant No.2 have executed and registered the power of attorney dated 25.1.1988 i.e., on the same day when the compromise was filed before the Tahsildar. The plaintiff has presented the plaint to stake a false claim suppressing this material and indisputable facts.
8. The Learned Civil Court, based on the aforesaid pleadings, framed the following Issues: (i) whether the plaintiff proves that he has got right in respect of suit properties, (ii) whether the plaintiff is entitled for 7/24th share in the suit properties, (iii) whether the defendant No.4 proves that the properties have been settled in his favour by the arbitrators, (iv) whether the suit properties have been properly described in the plaint, (v) whether the suit is bad for mis-joinder of parties and want of cause of action, and (vi) whether the plaintiff is entitled for any relief.
9. The plaintiff examined himself as PW.1 and marked Exhibits P.1 to P.17 (a). The defendant No.1 and defendant No.2 examined themselves as DW.1 and DW.2 respectively, and they supported the case of the plaintiff - PW.1. The defendant No.4 examined himself as DW.3. The Exhibits D.1 to D.6 were confronted to PW.1 and were marked on PW.1 admitting these documents. Further, the defendant No. 4 - DW.3 marked Exhibits D.7 to D14.
10. The Learned Civil Court has reasoned that Issue No.3, which requires the defendant No.4 to establish that the suit schedule properties were settled in his favour by the arbitrators as asserted by him, would be the primary issue for decision in view of the admitted relationship and the un-controverted fact that the plaintiff and defendants succeeded to the properties described in the plaint schedules upon the demise of Sri M. Abdul Khudus as tenants-in-common. The learned Civil Court has opined that if the defendant No.4 could not discharge the burden in terms of Issue No.3, the plaintiff consequentially would be entitled to 1/7th share in the suit schedule properties because of the admitted facts. The Learned Civil Court, on appreciation of the evidence by the plaintiff - PW.1, has concluded that the plaintiff admitted the appointment of arbitrators, the decision of the arbitrators and the settlement in terms of the decision of the arbitrators. Further, the plaintiff has admitted the terms as decided by the arbitrators and reduced in writing vide the Settlement Deed - Ex.D.2 [translation copy Ex.D.2(b)]. The admitted terms of settlement are that the defendant No. 4 is allotted the agricultural lands viz., schedule A properties valued at Rs. 1,72,500/-, the loan repayable by Sri M. Abdul Khudus as of the date of his demise is Rs. 1,72,500/-, the defendant No.4 should discharge the loan outstanding and pay the other legal heirs the balance of Rs. 1,00,000/-.
11. However, the learned Civil Court has concluded that there is inconsistency in the evidence as regards the payment of the amount of Rs. 1,00,000/- to the plaintiff and the other defendants. On the one hand, the Defendant No.4-DW.3 has contended that he has paid different amounts to the plaintiff and the other defendants in terms of the settlement; insofar as the plaintiff, the defendant No.4 has specifically stated that the amount payable to the plaintiff has been entirely paid, and therefore, the plaintiff has executed receipts vide Exs.D.9 and D.3 and the power of attorney as per Ex.D.10. On the other hand, plaintiff - PW.1 (and defendant No.1 - DW.1 and defendant No.6 - DW.2) have asserted that the plaintiff did not pay the amounts as required in terms of the settlement. But, it is held by the learned Civil Court that the defendant No.4 has established that the undisputed terms of settlement deed are acted upon by all, including the plaintiff; that this is established inter alia by the fact that the plaintiff and the other defendants, accepting the terms of the settlement, have given consent for transfer of katha for the agricultural lands in favour of the defendant No.4 in the proceedings before the Tahsildar in RRT-DIS-CR No.2685/1986 and executed separate powers of attorney marked in evidence. As such, the plaintiff cannot resile from the terms of the settlement. Further, it is held that the plaintiff having kept quite for over a period of ten years between 1984 (the year of settlement) and 1994 (the year of the suit) cannot be permitted to seek partition. Thus, the Learned Civil Court has found issue No.3 in favour of the plaintiff, and dismissed the suit holding that the plaintiff is estopped from seeking partition.
12. The learned Counsel for the appellant, supported by the learned Counsel for the defendant Nos.1, 2, and 3 (who are represented by their respective legal heirs) and defendant Nos.5 to 8, contended that the terms of the settlement flow from Ex.D.2(b) - settlement deed - which is in effect a decision of the arbitrators in a private arbitration. This award affects the interest of the parties in immovable properties i.e., the suit schedule properties which are admittedly more than Rs. 100/- in value. Therefore, EX.D-2(b) should have been compulsorily registered under section 17(1) of the Indian Registration Act, 1908. Indisputably, this settlement Deed - Ex.D2(b) is not registered. As such, the Learned Civil Court should not have relied upon Ex.D.2(b), or the terms flowing therefrom howsoever to hold in favour of the defendant No.4. The defendant without relying upon Ex.D2 can neither establish the terms of settlement nor that the terms of settlement have been acted upon. The learned Counsel relied upon the decisions of the Hon'ble Supreme Court in Sathish Kumar and others v. Surinder Kumar and others reported in AIR 1970 SC 833 and Ratan Lal Sharma v. Purushottam Harit reported in AIR 1974 SC 1066 in support of their contention.
13. The learned Counsel for defendant No.4 refuted these arguments contending that the plaintiff, defendant No.1 and defendant No.6, who have examined themselves in support of the claim, have admitted the terms of settlement. The evidence on record, as rightly appreciated by the learned Civil Court, establishes that the plaintiff and the defendants have acted upon the terms of such settlement. The plaintiff is not able to establish that it was agreed inter se between the plaintiff and defendants that they would be entitled to seek partition in the event the defendant No. 4 reneged on the term to pay Rs. 1,00,000/- to the plaintiff and the other defendants. The suit is instituted in the year 1994 i.e., after ten years from the date of settlement, but the delay is not explained. The alleged cause of action is that the defendant No.4 has not paid a sum of Rs. 1,00,000/- to the plaintiff and the other defendants and is alienating the timber and denying plaintiff's right in the schedule properties. Therefore, as rightly concluded by the learned Civil Court, the plaintiff cannot seek partition of the suit schedule properties, and the plaintiff, at the most, could have only asked enforcement of the terms.
14. The conclusion by the learned Civil Court that the plaintiff and the other defendants will be entitled for shares in the suit schedule properties unless the defendant No. 4 establishes that there was a settlement amongst the plaintiff and defendants remains unchallenged. The challenge in the appeal, as is obvious from the canvas, is that the learned Civil Court failed to consider that the terms of settlement asserted by the defendant No.4 cannot be established without relying on Ex.D2, which is inadmissible, and the learned Civil Court has erred in concluding that the defendant No.4 is able to establish that the terms of the settlement have been acted upon. In view of these circumstances, and the rival contentions canvassed in the present appeal by the learned counsel for the parties, the following questions arise for consideration:
[i] Whether the appellant/plaintiff is able to establish that the learned Civil Court has erred in concluding that the defendant No. 4 has established the terms of the settlement amongst the plaintiff and defendants and that such terms of settlement are acted upon.
[ii] Whether the impugned judgment calls for any interference in this appeal.
15. It is undisputed that the plaintiff and the defendants signed consent for the appointment of arbitrators to hold a private arbitration to settle the claims by the plaintiff and defendants in the different properties left behind by Sri Abdul Khudus. Acting in pursuance of such consent, the arbitrators held deliberations and rendered (as recorded in Ex.D.2(b) - which is a translation of the document in Urdu vide Ex.D.2) a 'Verdict' with advice to the parties to eschew differences and establish brotherhood. This Verdict, amongst others, is that the agricultural lands, which are described in Schedule A to the plaint, are given to defendant No.4 for a sale price of Rs. 1,72,500/-. The defendant No.4 should pay the said sale price by the month of September 1984 to any one of the two arbitrators, or their nominee/authorized person. The transfer of title to these agricultural lands in favour of the defendant No.4 will be effected after the payment of the sale price. A sum of Rs. 72,500/-, out of the sale price of Rs. 1,72,500/- should be utitlised for repaying the loan outstanding as of the date of demise of late Abdul Khudus. The two residential properties, which are described in schedule B to the plaint, shall be sold and divided amongst the plaintiff and the defendants as per the Shariat law.
16. The Hon'ble Supreme Court, in the two decisions relied upon by the learned counsel for the appellant viz., Sathish Kumar and others v. Surinder Kumar and others and Ratan Lal Sharma v. Purushottam Harit, has declared that an award when it purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest of the value of hundred rupees and upwards to or in immovable property, would require compulsory registration as mandated under section 17(1) of the Indian Registration Act, 1908. Justice K.S. Hegde, while agreeing with the decision of Justice S.M. Sikri (as his lordship was then) and Justice R.S.Bachawat declared that
"For the purposes of section 17 (1) of the Indian Registration Act, all that we have to see is whether the award in question purport or operate to create or declare or assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. If it does, it is compulsorily registerable".
17. The Hon'ble Supreme Court, even in its latter decision reported in AIR 1989 SC page 1923, while considering the question whether an award requires compulsory registration referring to the aforesaid two decisions, and the aforesaid extract, has held as follows:
"It was incorrect to state that an award which could not be enforced was not an award and the same did not create any right in the property which was the subject matter of the award. An award whether registered or unregistered, according to Justice Hegde, does create rights but those rights could not be enforced until the award is made the decree of the court. The learned judge made it clear that for the purposes of section 17(1)(b) of the Act, all that had to be seen was whether the award in question purported or operated to create or declare, assign, limit or extinguish whether in present or future any right, title or interest whether vested or contingent of the value of Rs. 100/- and upwards in the immovable property. If it does it is compulsorily registerable. A document might validly create rights but those rights might not be enforced for various reasons. The court found that the award in that case created right in immovable property, and it required registration".
18. Therefore, what follows from the aforesaid decisions is that an award when it purports or operates to create or declare, assign, limit or extinguish any right in present or in future of the value of Rs. 100 in any immovable property, to be effective, or to be enforced, will have to be registered as contemplated under section 17(1) of the Indian Registration Act, 1908. The enforcement of an award, which is unregistered, cannot be sought for though certain rights may have been created or declared or assigned in immovable properties of the value of upwards of Rs. 100/-. In view of the express terms of the Settlement Deed-Exhibit D2, inasmuch as it refers to deliberations and rendering of a Verdict, there can be no doubt that Exhibit D2 is an award in a private arbitration; because this Verdict declares that defendant No.4 will be entitled to the agricultural lands subject to payment of monies as provided thereunder, there can be no doubt that Ex. D2 creates right in favour of the defendant No. 4 in immovable properties of the value of more than Rs. 100/-. However, what distinguishes this case is that the defendant No. 4 is not seeking for enforcement of this Verdict/Award. The defendant No.4 is asserting that the plaintiff and the defendants have accepted the terms as rendered in the Verdict/Award and they have also acted upon the same. Therefore, the circumstances relied upon by the defendant No. 4 to establish the accepted terms and that such accepted terms are acted upon, are at a point further in time from such Verdict/Award and to that extent the case of the defendant no. 4 is independent of such Verdict/Award. As such, the decisions relied upon by the learned counsel for the plaintiff and the other defendants will not support their case.
19. In fact, the plaintiff (PW.1), in paragraph 12 of his evidence has accepted that the agricultural lands were valued at Rs. 1,72,000/- and Rs. 72,500/- was ascertained as due as of the date of demise of Abdul Khudus. The defendant No.4 had to pay Rs. 1,00,000/- to the plaintiff and the other defendants apart from discharging the loan of Rs. 72,500/-, and the plaintiff and the other were required to transfer the title to agricultural lands to the defendant No.4 upon receipt of the said sum of Rs. 1,00,000/-. As such, there cannot be any dispute about the terms, and the acceptance thereof. However, as regards the question whether the plaintiff and the defendants have acted upon such terms, the following would be important. The plaintiff- PW.1 has admitted that the Tahsildar registered proceedings
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in RRT-DIS-CR No.2685/1986 on an application by the defendant No.4 for change of katha in his favour and subsequent to the objections by defendant No.1. The plaintiff has also filed objection statement before the Tahsildar vide Ex. D4, accepting that the katha for the agricultural lands was made in the name of defendant No.4 because terms were agreed and accepted, but the plaintiff-PW.1 has not admitted that he has signed the objection statement (Ex.D4). However, the plaintiff has admitted Ex.D.5, which is an affidavit executed by the plaintiff and the other defendants accepting that the katha could be made in favour of defendant No.4. Further, the plaintiff has admitted Ex.D.6- a registered power of attorney executed by the plaintiff, along with another defendant referring to the acceptance of the terms. This is in addition to Ex.D.10- an other power of attorney executed and registered in favour of defendant No.4 referring to Ex.D.2 and authorizing defendant No.4 to deal with the property. The plaintiff has not explained these documents, except for stating that he executed Power of Attorney in good faith without knowing the contents. The plaintiff to succeed in his case as against the execution of the Power of Attorney, which refers to Ex.D2, ought to have pleaded and proved necessary circumstances to substantiate the same. But, the plaintiff has not even referred to the proceedings before the Tahsildar or the other attendant circumstances. The plaintiff has not explained the time lag between the date of demise of Sri. Abdul Khuddus and the date of the suit. 20. The terms of Ex.D.2, being unregistered, would definitely be inadmissible in evidence, but the subsequent conduct as borne out by the affidavits and powers of attorney, the closure of proceedings before the Tahsildar and the subsequent mutation of the katha for the agricultural lands in favour of defendant No.4 establish that the parties have acted upon the terms accepted by them. Therefore, in the considered opinion of this Court, the learned Civil Court has rightly concluded that the plaintiff cannot renege on the terms which are acted upon. Therefore, there is no irregularity or perversity in the impugned judgment. The questions formulated for consideration are answered against the appellant, and the appeal is dismissed.