9911796707
TMI Blog1947 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... on and grandson respectively of Girja Datt, joined in the application as being members of a joint Hindu family with Girja Datt. The appellants filed a written statement in the Court of the Special Judge on 21st May 1936, and in the list of properties attached to this written statement they also showed the ten annas share of the properties left by Baleshwar Datt which had been entered in the name of Girja Datt. . Gangotri Datt, the respondent, objected to the list and, on 22nd May 1937, he filed a claim Under Section 11, Encumbered Estates Act, alleging that he was the owner of this property and that it was consequently not liable to attachment sale or mortgage for the satisfaction of the debts of Girja Datt. He based his claim upon a will which, he alleged, Baleshwar Datt Singh had executed on 17th March 1933. 4. He pleaded that he was not bound by the award upon which the mutation Court had acted for a large number of reasons which he gave in detail in his written statement of claim. They may briefly be summarised as follows : (a) That he was induced to refer the case to arbitration by reason of undue pressure and coercion ; (b) That, in any case, he had revoked his agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil suit lie as alleged? 7. At the request of the appellants, issue 6 was treated as a preliminary issue and the learned Special Judge decided that there was no res judicata nor was a civil suit barred. Girja Datt brought the matter up in appeal to this Court and on 14th December 1941, a Bench of which one of us was a member, held that neither Section 11, Civil P.C., nor Section 207, U. P. Land Revenue Act, barred the claim of Gangotri Datt under the Encumbered Estates Act: vide Girja Dat Singh v. Gangotri Dat Singh . 8. The case was ,then again taken up by the Special Judge and he held: (1) That the will was proved to have been duly and intelligently executed and attested; (2) That there was no reliable evidence to support the allegation that Babu Gur Charan Lal exercised any undue influence; (3) That Bhaiya Baleshwar Datt was neither an idiot nor feeble-minded; (4) That there was no conspiracy between Babu Gur Charan Lal, Tribhuwan and Gangotri to cause Baleshwar Datt to execute a will; (5) That in the mutation Court there was a bona fide dispute as to succession and there was room for a family settlement; but the award in the present case was not a family settlement; (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate contended that due attestation and execution of the will upon which Gangotri Datt relied had not been established. While, however, in the trial Court, emphasis was laid upon the alleged exercise of undue influence by Babu Gur Charan Lal, in this Court the connection of that gentleman with the will was only relied upon to create a suspicion as to the attestation of the will and to challenge the credibility of the attesting witnesses. The plea that, at the time of the execution of the will, Bhaiya Baleshwar Datt was an idiot, incapable of understanding what he was doing, was not reiterated. 14. It was also contended that the award conclusively determined the rights of the parties and must be upheld even in civil litigation, though unregistered because an order of the Court is exempt from registration by reason of Section 17(2)(vi), Registration Act, and the award had been incorporated in an order of Court. It was further contended that the reference to arbitration and the award amounted to a family settlement and must be upheld on that ground too. 15. On the other hand, the learned advocate for the respondent urged that the findings of the trial Court on the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undergone a change and, on 1st December 1915, he executed another will (Ex. A-35). This will, after reciting, among other things, that the testator was not pleased with his nearest relation, Girja Datt, proceeded to dispose of the property in favour of his wife, Mt. Gulab Kuar, and the sons of Sita Kuar. The reason given by the testator for the execution of this will is his desire to avoid disputes and to prevent his properties falling into the hands of such a person as the executant never likes that he should get it. 19. After the execution of his second will the testator's wife died and the respondent Gangotri Datt, a distant relation, became a member of his household when quite young--at the age of about 10 or 12 years. A.W. 3 Jageshwar Singh, Girja Datt's own witness, would place the date of this event somewhere in 1928. The appellant's case is that Gangotri was only employed as a cook or sirwar whilst the respondent contends that he was brought up by Baleshwar as a son. 20. The above statement of the facts of the case makes it clear that, at the advanced age of about sixty years, Baleshwar Datt found himself a lonely old man without wife or children or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years of whom no one could be certain. Further the effect of such a proceeding would not be to deprive Girja Datt of anything but to deprive the sons of Sita Kuar. Thus even if it is assumed, though it is not proved, that Babu Gur Charan Lal was hostile to Girja Datt that would be no reason for him to create an heir of Baleshwar Datt to the loss of his legatees under the will of 1915. 23. Next we find that in Ex. A-37, which is a power of attorney executed by Baleshwar Datt in 1932, the will in favour of Gangotri is recited and he is then appointed an agent but special powers are conferred upon him. These special powers included practically all the powers of a landlord and they were not conferred upon any other agent appointed either under the same document or under the previous power, Ex. 52. They would be appropriate if Gangotri were treated as the son of the house, then about 22 years of age, about to enter upon the management of an estate which would one day be his but they would be wholly inappropriate if they were conferred upon a cook or a sirwar. 24. It was suggested that this power was not really required but was the result of the machinations of Babu Gur Charan Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h he made before the will came into operation and there is no suggestion that Babu Gur Charan Lal ever tried to obtain any deed of transfer in favour of any nominee of his after the death of Baleshwar. Babu Gur Charan Lal, being a lawyer, must have been well aware that he could not sue for possession of any property in the circumstances alleged: he would, therefore, have safeguarded his position by getting a document executed by Gangotri in favour of some nominee of his before he allowed any of the witnesses under his influence to be produced. Yet it is not even alleged that he did this. Further the connection of Babu Gur Charan Lal with the will was never sought to be concealed: it was apparent on the face of the document since it was in the handwriting of his clerk who signed it as the scribe. 28. On the other hand, it is quite natural that Babu Gur Charan Lal should have interested himself in the will. It is agreed that he occupied the position of a standing counsel for Baleshwar Datt, who would naturally approach him to prepare a draft of the will. As things stand in this part of the country it would be quite natural for the client to seek the advice of his lawyer in the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e house of Babu Gur Charan Lal. This statement might well be true and thus it happened when the will came to be signed and attested later on a different coloured ink, resembling that used by the scribe, was available and was used. This would, of course, mean that the attesting witnesses are not telling the truth when they give the reasons why the will was not signed and attested at Gonda but it has repeatedly been laid down that the maxim falsus in uno, falsus in omnibus does not apply to conditions prevalent in India. It is only if the witness is found to be wholly untrustworthy that no part of his evidence can be accepted. 31. In the present Case we do not find that the witnesses to prove attestation can be classed a set of wholly untrustworthy witnesses. The witnesses support their allegation of due attestation: it is admitted that the will bears their signatures as attesting witnesses and that the signature of the executant is also genuine; it is further proved by Hasinuddin that all the three were present at one place and that Ex. A-23, which was written at about the same time, was duly executed and attested; in these circumstances there is no reason to suppose that O.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, Criminal P.C., demanding security to the extent of ₹ 20,000 each from Girja Datt and Gangotri Datt and ₹ 12,000 from Tribhuwan Datt. Securities were offered on the same day but enquiries were ordered as to their sufficiency. The file of the mutation case was sent to the arbitrators and reached them on 17-11-1933; vide Exs. A-15 and A-13. On the same day, Tribhuwan and Gangotri applied that fresh securities which they were filing should be accepted and they were accepted: vide Exs. A-8 and A-9. On 18-11-1983, Gangotri applied stating that he had been coerced into agreeing to the arbitration and praying that the reference be withdrawn: vide Ex. A-10. This the Court refused to allow and its order was upheld up to the Board of Revenue : vide Exs. 55, 54, 60 and 45. The arbitration, therefore, proceeded and the arbitrators gave their award on 17-1-1933: Ex. A-20. This award was immediately challenged by Gangotri on the same grounds on which he challenges it now: vide Ex. 34 and the mutation Court enquired into the matter, recorded evidence and upheld the award: vide Exs. 36 to 40, 70, 96, 46, 68 and 97; the Deputy Commissioner, however, stated that it is possible and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 17(2)(vi), Registration Act, and, secondly he contends that the reference to arbitration and award amount to a family settlement and so do not require registration. We shall deal with the second point first. 39. It has no doubt often been laid down that a compromise or a family settlement, inasmuch as it operates as a recognition of pre-existing title, does not require registration. The latest decision on this point is one of this Court in United Provinces Government v. Church Missionary Trust Association Ltd. London and Allahabad. From this it does not follow, however, that no deed of family settlement requires registration. In the case of family settlements of the ordinary type, the deed only states the rights of the parties as they understand them to be and it does not purport or operate to create, declare, assign, limit or extinguish...any right, title or interest. It is only such documents that have been held to be exempt from registration since they do not come within the purview of Section 17(1)(b), Registration Act. To compromises or settlements which do operate to create, declare, assign, limit or extinguish any right, title or interest, Section 17(1), Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by deposit of documents of title. A comparison of the case in Pranjivandas Mehta v. Chan Ma Phee A.I.R. 1916 P.C. 115 with that in Subramanian v. Lutchman A.I.R. 1923 P.C. 60 will show that, according to this distinction, a document requires registration or not. In the present case the statement in the petition of the respondent did not create any right in the Thakur. It merely acknowledged as a fact that such right was his. 42. The matter came up for consideration by a Full Bench of this Court in Mt. Kalawati v. Sri Krishna and in that case also the distinction was maintained. The compromise, which, it was agreed, operated as a family settlement and had been incorporated by reference in the mutation order, was held not to cause any change of legal relation to property and not to constitute a declaration of will. It was, therefore, held not to require registration. 43. In the case before us, the position is entirely different. Exhibit 59, the agreement to refer and Ex. 46, the mutation order no doubt do not operate to change the relation to the property but Ex. A-20, the award, which is a necessary part of the alleged family settlement, not only operates to change the relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title in civil Courts. These cases are not directly applicable to the present case because we are not dealing with the document embodying the compromise--that is Ex. 59 the reference to arbitration--but with the award given by the arbitrators. 46. The distinction between the two is very great and has always been recognized: vide Assanand Naraindas v. Jodhomal Chengomal A.I.R. 1936 Sind 79, Krishnaji Kondo v. Narayan Anant A.I.R. 1942 Bom. 132. A compromise is a settlement of the disputes between the parties on a purely voluntary basis whilst an award has the same measure of compulsion as a decree of Court; the difference] being that, in the case of an award, it is a decision of a Tribunal selected by the parties them selves. When this very case came before this Court at an earlier stage, Girja Dat Singh v. Gangotri Dat Singh a Bench of this Court, of which one of us was a member, clearly recognised the difference and refused to extend to awards the principles applicable to compromises in matters of registration Further, in the case of compromises the parties are at liberty to decide whatever they please, whilst in the case of arbitrations through the intervention of the Court it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter that the decree or order should be complete in itself, yet a reference to a document in such a manner as to indicate that it was the intention of the Court to give effect to it is sufficient incorporation. At the same time we must not lose sight of the fact that, even when a document does become admissible by being incorporated in a decree, it is not the whole of it that is admissible but only that portion of it upon which the Court bases its decision. Section 17(2)(vi), Registration Act, grants exemption from registration only to the order or decree. Thus it is not the award or other document per se which is admissible in evidence but only sol much of it as may be deemed to be a part of the order or decree. 50. In Pranul Annee v. Lakshmi Annee (99) 26 I.A. 101 some of the parties arrived at a compromise which dealt also with properties not included in the suit and they applied that a decree may be passed in accordance with the razinama. The deed or petition of compromise was not registered. The Court, in giving effect to the terms of the compromise stated that two of the parties had put in a razinamah in respect to items 1, 8, 5, and 7 and a decree has been passed. Subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
