Showing posts with label settlement. Show all posts
Showing posts with label settlement. Show all posts

13 December 2020

Settlement deed executed before police under presure can not be used as admitted fact u/s.58 of Evidence Act

It is not the job of the police authorities to get the matter settled in their offices

    As it is undisputed fact that entire case of the plaintiff for advancing money to defendant was based upon Paper No. 13 Ka-1 executed before S.P. City, Aligarh, no other document was filed, nor the case was proved through oral testimony in regard to advancing of money to defendant. The oral testimony of PW-2 and PW-3 only prove the execution of Paper No. 13 Ka-1 before police authorities, apart from that plaintiff failed to disclose in his plaint the dates on which advance to the tune of Rs.14 lacs was made by him and also as to when Rs.2 lacs was returned by defendant. Plaintiff also did not bring on record his income tax return for the relevant years to prove whether he had disclosed the amount in his return.[Para No.27]

    Argument of learned counsel for the appellant cannot be accepted to the extent that Paper No. 13 Ka was proved by oral testimony of PWs and DWs and lower appellate court could not have decreed the suit against plaintiff on the ground that it was got executed under pressure.[Para No.28]

    It is plaintiff's specific case that Paper No. 13 Ka-1 was got executed before S.P. City, Aligarh on 25.05.2009. Plaintiff himself is a practicing lawyer at Aligarh and the two witnesses, Vinod Kumar Gautam (P.W.-2) and Arun Kumar Gautam (P.W.-3) are also practicing advocates in civil court in Aligarh, thus, it is an admitted case that document was executed before the police authorities, and neither of the police officers were examined as plaintiff witnesses to prove the execution of the said document. Burden of proving the document having been executed in the office of S.P. City, Aligarh was upon the plaintiff, as the defendant had categorically stated in his written statement as well as in cross-examination that the said document was got executed under duress and pressure.[Para No.29]
Settlement deed executed before police under presure can not be used as admitted fact u/s.58 of Evidence Act

    It is strange to note that police station and office of district police officials are becoming center for mediation/ settlement of civil and commercial disputes. It is not the job of the police authorities to get the matter settled in their offices rather, making genuine efforts to curb and control crime in the district.[Para No.30]

    Once the plaintiff had relied upon the document to have been executed before police authorities, onus was upon him to prove that it was executed under free will, and the officer before whom the same was executed should have been produced as one of the witnesses.[Para No.31]

01 August 2020

Oral family-settlement and its memorandum does not require registration

Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a three­Judge Bench of this Court had observed thus: ­ “9. ….. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. …..” (emphasis supplied) In paragraph 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows: ­ “10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
Oral family-settlement and its memorandum does not require registration
(4) It is well­ settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” (emphasis supplied) Again, in paragraph 24, this Court restated that a family arrangement being binding on the parties, clearly operates as an estoppel, so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. In paragraph 35, the Court noted as follows: ­ “35. … We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. …..” And again, in paragraph 36, the Court noted as follows: ­ “36. … Yet having regard to the near relationship which the brother and the son­in­law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one. In the instant case also putting the case of Respondents Nos. 4 and 5 at the highest, the position is that Lachman died leaving a grandson and two daughters. Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement. …” While rejecting the argument regarding inapplicability of principle of estoppel, the Court observed as follows: ­ “38. … Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. …..” (emphasis supplied) And in paragraph 42, the Court observed as follows: ­
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