-1RSA No.

29 of 1988
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.29 of 1988 (O&M)
Date of decision: 11.02.2014
Avtar Singh (since dead) through LRs and others
....Appellants
Versus
Jasbir Singh and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1)
2)
3)

Whether Reporters of the local papers may be allowed to see

the judgment ?
Yes
To be referred to the Reporters or not ?
Yes
Whether the judgment should be reported in the Digest ? Yes

Present: - Mr. Arun Jain, Sr. Advocate, with

Mr. Arjun Veer Sharma, Advocate, for the appellants.
Mr. M.L. Sarin, Sr. Advocate, with
Mr. Rohit Kapoor, Advocate, for the respondents.
*****

PARAMJEET SINGH, J.
This regular second appeal by LRs of defendant No.1 is
directed against the judgment and decree dated 22.01.1985 passed by
learned Sub Judge Ist Class, Phillaur, whereby the suit for possession
filed by the plaintiffs was decreed as well as against the judgment and
decree dated 17.11.1987 passed by learned Additional District Judge,
Jalandhar, whereby the appeal preferred by defendant No.1 against the
judgment and decree of the Court of first instance, has been dismissed.
For convenience sake, reference to parties is being made as per
their status in the civil suit.
The detailed facts of the case are already recapitulated in the
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-2RSA No.29 of 1988

judgments of the Courts below and are not required to be reproduced.
However, the facts relevant for disposal of this second appeal are to the
effect that plaintiffs Smt. Harbans Kaur w/o Jharmal Singh and Jasbir
Singh, Kulbir Singh minor sons of Jharmal Singh through their mother
filed a suit for possession of 1/4th share in the land measuring 124 kanals
10 marlas situated within revenue limits of village Rurka Khurd, Tehsil
Phillaur, fully detailed in the headnote of the plaint, against Chanchal
Singh father-in-law of Harbans Kaur, grandfather of Jasbir Singh and
Kulbir Singh and father of Jharmal Singh. It was alleged in the plaint
that Jharmal Singh was of unsound mind and in order to make
arrangement for maintenance of plaintiffs, Chanchal Singh effected a
family settlement before the Gram Panchayat and the same was recorded
in the proceedings book on 19.05.1967 and possession of 1/4th share of
the suit land was handed over to the plaintiffs. It is alleged that in spite
of settlement before the Panchayat and its incorporation in the
proceedings book, Chanchal Singh at the instance of his another son Ajit
Singh forcibly took the possession of the property which was given to
the plaintiffs. For that reason suit for possession as well as permanent
injunction was filed for restraining Chanchal Singh from alienating the
suit property.
Before the Court of first instance, name of Jharmal Singh was
struck off as he was not sued through next friend being of unsound mind.
Defendant No.1 contested the suit and filed written statement
through his son Ajit Singh as general power of attorney. It was denied

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-3RSA No.29 of 1988

that any settlement has been arrived at between the parties. Actually it is
the result of fraud, misrepresentation and undue influence caused by the
panchayat.

Plaintiffs had no right of maintenance against Chanchal

Singh and they were never put in possession of the land in dispute.
Jharmal Singh was not of unsound mind.
Court of first instance, on the basis of pleadings of the parties,
framed following issues: 1.

Whether the plaintiffs are owners of the suit property

by way of family arrangement? OPP

2.

Whether the plaintiffs are entitled to the injunction

prayed for? OPP

3.

Relief.

Parties led their respective evidence.

The Court of first

instance, after appreciating evidence on record decided issue No.1 in

favour of plaintiffs and decreed the suit of the plaintiffs for joint
possession to the extent of 1/4th share in the suit land. Against the
judgment and decree of the Court of first instance, appeal preferred by
the appellants failed and the judgment and decree of the Court of first
instance has been affirmed by the lower appellate Court. Hence, this
regular second appeal.
I have heard learned counsel for the parties and perused the
record.
At the time of admission, no substantial question of law was
framed, however, during the pendency of the appeal following
substantial questions of law have been placed on record: -

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-4RSA No.29 of 1988

1.

Whether in the facts and circumstances of the

instant case, the writing Ex.P1 which purported to
be a transfer of an immovable property, which
required registration, could be admitted in
evidence for want of registration?

2.

Whether in the facts and circumstances of the

instant case the approach of the learned Courts
below to hold that the writing Ex.P1 was based on
prior oral settlement is not conjectural and
contrary to the recital incorporated in document
Ex.P1?

3.

Whether in the facts and circumstances of the

instant case the contesting respondents having
failed to produce cogent evidence evidencing the
fact that Jharmal Singh was insane, the approach
of the learned Courts below in proceeding on such
presumption is perverse?

4.

Whether in the facts and circumstances of the

instant case the approach of the learned Courts
below in drawing adverse inference on account of
non-examination of Chanchal Singh, when Avtar
Singh, son and attorney had appeared as witness,
is not illegal and unsustainable?

5.

Whether the contesting respondents could claim

any pre-existing right in the suit property which
was proved to be self acquired property of
Chanchal Singh?

6.

Whether in the facts and circumstances of the

instant case the approach of the learned Courts
below in decreeing
plaintiffs/respondents

the suit filed by the

by

misreading

and

misinterpreting the documentary and oral evidence

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-5RSA No.29 of 1988

on record is not perverse?
However, at the time of arguments, learned senior counsel for
the appellants pressed only first substantial question of law mentioned
above.
Learned senior counsel for the appellants vehemently
contended that 1/4th share in land measuring 124 kanals 10 marlas has
been allegedly transferred by writing Ex.P1. Since the property of value
of more than Rs.100/- has been transferred, the document was required
to be registered; as such the same is not admissible in evidence for want
of registration. The findings of both the Courts below on this score are
not sustainable. It was further contended that the plaintiffs have no right
or title in the property. Jharmal Singh has not been proved to be of
unsound mind and merely for the reason that his name was struck off
before the Court of first instance, it cannot be presumed that he was of
unsound mind.
The contentions raised by learned senior counsel for the
appellants have been vehemently opposed by learned senior counsel for
the respondents. It was contended by learned senior counsel for the
respondents that the document in question, whereby settlement was
effected, was executed before the Gram Panchayat. Gram Panchayat is a
body of elected people from the village as per provisions of the Punjab
Gram Panchayat Act, 1952 as well as the present Act of 1994 i.e. Punjab
Panchayati Raj Act. The main object of these Acts is development and
encouragement of Panchayats as emphasised in our Constitution where a

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-6RSA No.29 of 1988

specific directive is given for this purpose in Article 40. Administrative
and judicial powers of the Gram Panchayats are in the larger interest of
the entire social needs of the village community. Entrustment of such
functions is legal and valid. Panchayat is a village level administration
which also has the judicial powers and such a writing before the august
body of the village is required to be respected. Any writing before the
Gram Panchayat or in the proceedings book of the Panchayat is a
valuable piece of evidence and its sanctity should be protected. The
proceedings book wherein the proceedings of family settlement between
the plaintiffs and Chanchal Singh have been recorded must be given due
weightage and such document is not required to be registered.
I have considered the contentions raised by learned counsel for
the parties.
Before I proceed to deal with matter on merit, it would be
appropriate to reproduce the translation of the entire proceedings
recorded in the proceedings book dated 19.05.1967 of the Gram
Panchayat, which read as under: (1) Jharmal Singh eldest son of Chanchal Singh was under
medical treatment for a mental ailment for quite sometime and
Chanchal Singh and father of Harbans Kaur made a statement
before Panchayat Bhairon Majara about the writing
regarding division of property for maintenance of Harbans
Kaur and her son Jasbir Singh and after hearing and
accepting the same as correct which is reproduced below: I, Chanchal Singh son of Jawala Singh, caste Jat,
am resident of Rurka Khurad, Tehsil Phillaur

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-7RSA No.29 of 1988

District Jalandhar, that my elder son Jharmal Singh
is under treatment till today due to a mental defect.
Since Jharmal Singh is married and has got a son
also and his wife Harbans Kaur alongwith the son
lives with her parents. Today in accordance with
the decision of the Panchayat of the village I decide
that out of my entire property 1/4th share shall be
owned by the male generation of my son Jharmal
Singh so that arrangement for maintenance of
Harbans Kaur wife of Jharmal Singh and my
grandson Jasbir Singh aged 6 years could be
ensured and I am parting this writing so that in case
of need it can serve the purpose. I shall get the
aforesaid writing acted upon in the revenue
documents. Smt. Harbans Kaur shall have the right
to get her land cultivated from anybody she likes. I
shall have no objection. In case at any time my sons
hesitate to maintain me from the remaining 3/4th
share in the land then I shall be entitled to my share
from every 1/4th share so as to be the 5th equal
shareholder and nobody will have any objection
thereto.
The said writing has been thumb marked by Chanchal Singh
and attested by several other persons, Sarpanch and Panches and father
of Harbans Kaur.
In view of above writing and the arguments addressed by
learned senior counsel for the parties, following substantial questions of
law require consideration: 1. Whether the settlement made by Chanchal Singh before

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-8RSA No.29 of 1988

the Panchayat is a family settlement between the parties
and is valid in the eyes of law whereby right in the
property has been given to Jharmal Singh and his
family?
2.

Whether impugned writing recorded in the proceedings

book of Panchayat requires registration?

There is a categorical finding on record that Jharmal Singh

was of unsound mind and he was got admitted in the Mental Hospital,
Amritsar. Thereafter, Chanchal Singh grandfather of plaintiffs No.1 and
2, father-in-law of plaintiff No.3 and father of Jharmal Singh, keeping in
view the well-being of the family of Jharmal Singh had given 1/4th share
in the land to the plaintiffs and it appears that Chanchal Singh was a
visionary. However, under the pressure of his sons, Chanchal Singh may
have thought of resiling from the settlement. It would be appropriate to
refer here that Chanchal Singh did not step into the witness box rather
his attorney Ajit Singh, one of his sons, appeared; meaning thereby that
best evidence has been withheld. It appears that Ajit Singh pressurized
Chanchal Singh and hence he denied the family settlement.

Had

Chanchal Singh appeared in the witness box, he would have stated truth.
The perusal of the pleadings of the parties clearly indicates
that the property given by Chanchal Singh to Jharmal Singh, who was
under mental illness, and to his family was his self-acquired property. It
is not the case of the defendants that it was ancestral coparcenary Hindu
joint family property. When person is mentally disable then he can be
treated as a dependent and as per provisions of the Hindu Adoptions and

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-9RSA No.29 of 1988

Maintenance Act, a guardian specifically the father being natural
guardian is bound to maintain such person and his family. The reference
can be made to Section 21 of the Hindu Adoptions and Maintenance Act,
wherein the dependents have been defined. The son who is a minor or
who is unable to maintain himself and his family will be treated as
dependent. Under Section 19 of the Hindu Adoptions and Maintenance
Act, a widowed daughter-in-law is also entitled to maintenance and
under Section 20 the children and the aged persons have right to
maintenance.

The settlement before Gram Panchayat was an

arrangement for maintenance and welfare of Jharmal Singh and his

family.

Chanchal Singh being a visionary father, father-in-law and

grandfather had made arrangement by way of this settlement.

Panchayati Raj Act is an Act where an elected body of the
village perform certain acts.

Panchayati Raj institution has been in

existence in the country for a sufficiently long period but at initial stages
Panchayats were conferred with the status of dignity of viable people's
body at village under the Constitution. Panchayat is a smallest cell of
democracy which seeks to educate people to manage their own affairs.
This is done in a democratic manner. Gram Panchayat has been even
conferred powers under the provisions of the Act of 1952 as well as
1994 with respect to civil, revenue and judicial functions. Under Section
57 of the latest Act of 1994, Gram Panchayat when trying suit shall be
deemed to be a civil Court or revenue Court, as the case may be.
Panchayats created under the statutory provisions act according to the

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-10RSA No.29 of 1988

principles of justice, equity and good conscious and keeping in view the
ground realities they take decisions.
In this case, Chanchal Singh appeared before the Gram
Panchayat and respectables and the decision was taken as a result of
which writing dated 19.05.1967 was recorded in the Panchayat
proceedings book.

It has a legal sanctity as under Section 7 Gram

Panchayat is vested with power and jurisdiction of an Adalati Panchayat.

Under Rule 7 of the Punjab Panchayati Raj Rules, 1965, Panchayat
maintains various records which include proceedings book. Anything
written in these records is a valuable piece of evidence as it was written
in the presence of elected representatives of the village. Admission
before the village Panchayat clearly indicates that there was a family
settlement between the parties.

The question which arises here is

whether a document by way of which a father/grandfather gives to his

son/grandson some property in the peculiar circumstances out of his selfacquired property by way of family settlement before village elected
Panchayat, is required to be registered. Under the Mitakshara concept of
Hindu Law, partition of both the self-acquired as well as the coparcenary
joint Hindu Family property is permissible. In my opinion when father
is giving his self-acquired property to a son and his family during his
lifetime there is nothing wrong in that act which would come in the way
of his making such family settlement, so far as his self-acquired property
is concerned.

I am of the view that a transaction before a Gram

Panchayat by which a father gives some property out of his self-acquired

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-11RSA No.29 of 1988

property, making a special provision for the son who is mentally ill,
incapable of managing himself or his family independently with ordinary
prudence and requires supervision, care, control for his own welfare and
his family is a valid family settlement. Mental deficiency carries with it
a prognosis of continuing incompetence. In view of this, the family
settlement recorded in the proceedings book of Gram Panchayat before
Gram Panchayat and respectables of the village cannot possibly be
regarded as one of the five transactions mentioned in the Transfer of
Property Act i.e. sale, gift, mortgage, exchange and lease for more than
one year, which require registration. So I hold that family settlement
recorded in the proceedings book of the Gram Panchayat is not required
to be registered as this is a record which is maintained by the Gram
Panchayat under the statutory provisions.
In view of above, I do not find any illegality or perversity in
the judgments and decrees passed by both the Courts below.

The

substantial questions of law framed by this Court stand answered

accordingly.
No other point has been raised.
Dismissed.
No order as to costs.
Before parting with judgment, it would be appropriate to
mention that no provision has been brought to my notice by learned
counsel for the parties that if husband is insane or of unsound mind, the
daughter-in-law who is not having any source of maintenance can claim

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-12RSA No.29 of 1988

maintenance for herself. When she has to maintain her mentally ill
husband her condition is worse than being widowed daughter-in-law. In
such a situation, the wife should be deemed to be dependent upon the
father-in-law and entitled to maintenance as provided under Section 19
of the Hindu Adoptions and Maintenance Act. Specific amendment is
required to be made in this regard in the Hindu Adoptions and
Maintenance Act.
Copy of this order be sent to the Union Ministry of Law &
Justice and Law Commission of India for taking appropriate measurers
for amendment in the Act.

(Paramjeet Singh)
Judge
February 11, 2014
R.S.

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