juvenile= bail on the basis of the report of the Radiologist that the age of the appellant at that time was between 15½ - 17½ years. - there is an application submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident. In such application, he has given his date of birth as 30.12.1961 which would make him of 21 years of age on the date of the incident i.e. 20.7.1982. The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not available or are not found to be reliable and trustworthy. Since there is a document signed by the appellant much before the date of occurrence, therefore, we are of the opinion that the appellant cannot be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence.; appreciation of Evidence = merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness cannot be disregarded qua the present appellant. Still further, it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality of evidence which is relevant in criminal trial and not the quantity. Therefore, non-examination of Girendra Singh cannot be said to be of any consequence.

juvenile=  bail on the basis of the report of the Radiologist that the age of the appellant at that time was between 15½ - 17½ years. - there is an application submitted by the  appellant himself for obtaining an Arms Licence prior to the date  of the incident. In such application, he has given his date of birth  as 30.12.1961 which would make him of 21 years of age on the  date of the incident i.e. 20.7.1982. The Court is not precluded  from taking into consideration any other relevant and trustworthy  material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not  available or are not found to be reliable and trustworthy. Since  there is a document signed by the appellant much before the date  of occurrence, therefore, we are of the opinion that the appellant   cannot be treated to be juvenile on the date of incident as he was  more than 21 years of age as per his application submitted to obtain the Arms Licence.;    

appreciation of Evidence = merely because a prosecution witness was not believed  in respect of another accused, the testimony of the said witness  cannot be disregarded qua the present appellant. Still further, it is  not necessary for the prosecution to examine all the witnesses  who might have witnessed the occurrence. It is the quality of evidence which is relevant in criminal trial and not the quantity.  Therefore, non-examination of Girendra Singh cannot be said to be  of any consequence.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 175 OF 2021

(ARISING OUT OF SLP (CRIMINAL) NO. 2898 OF 2020)

RAM VIJAY SINGH .....APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

Leave granted.

1. The present appeal has been preferred against the order dated

22.4.2020 passed by the High Court of Judicature at Allahabad.

Vide the said order, the appeal filed by the appellant against his

conviction for an offence under Section 302 read with Section 34

of the Indian Penal Code, 18601

 was dismissed.

2. Before this Court, the appellant filed an application for bail, inter

alia, on the ground that he was juvenile on the date of incident i.e.

1 For short, the ‘IPC’

1

20.7.1982. In support of plea of juvenility, the appellant relied

upon family register maintained by the Panchayat, Aadhaar Card

and an order passed by the High Court in the year 1982. In the

said order, the High Court had granted bail on the basis of the

report of the Radiologist that the age of the appellant at that time

was between 15½ - 17½ years. The appellant has further stated

that he had moved criminal miscellaneous application raising a

claim of him being a juvenile at the time of commission of offence

before the High Court but the said application was not decided and

the appeal has been dismissed on merits.

3. Keeping in view the said assertion raised by the appellant, this

Court passed the following order on 20.7.2020:

“Having heard Shri Pranav Sachdeva, learned counsel

for the petitioner, for some time, we are of the view

that the miscellaneous application that was filed in

2015 raising the claim of the petitioner’s juvenility at

the time of the office which has still not been decided,

be decided within a period of four weeks from today by

the High Court and if possible, judgment on the same

be delivered within two weeks thereafter.

Adjourned.

Liberty to mention.”

4. It is thereafter, the High Court had sought the report of the Medical Board. Such Medical Board consisting of five doctors comprised

of (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M.

and Associated Hospitals, Lucknow, (2) Dr. Mausami Singh, Addi2

tional Professor, Forensic Medicine & Texicology, (3) Dr. Garima Sehgal, Associate Professor, Department of Anatomy, (4) Prof. Pavitra

Rastogi, Department of Periodontology, King George’s Medical University and (5) Dr. Sukriti Kumar, Assistant Professor, Department

of Radiodiagnosis, KGMU, UP, Lucknow. The Medical Board, in its

report submitted on 8.9.2020 to the High Court opined that the

age of the appellant is between 40-55 years. The State and the informant objected to the report. Further, there was also a mention

of a single barrel gun granted to the appellant on 24.7.1982, a

couple of days after the occurrence of the incident. However, the

High Court on the basis of the medical report submitted its order

to this Court stating that the appellant was juvenile on the date of

commission of the offence. The conclusions drawn by the High

Court reads thus:

“43. We were impressed by aforesaid submission at the

first flush particularly in the light of observations made in

Mukarrab & Ors. v. State of Uttar Pradesh

2 wherein the

Court rejected the age determination report prepared by All

India Institute of Medical Sciences (AIIMS) New Delhi, but

upon deeper scrutiny, we do not find any force in this

submission. The facts in Mukarrab's case were very

clinching which is not the case here. In the present case,

except for the fact that accused-appellant was issued a gun

license on 24.7.1982 which is after the date of occurrence

i.e. 20.7.1982, nothing else has been brought on record.

The same may create a suspicion. But suspicion howsoever

strong cannot take the place of proof. Perusal of the

objections filed by informant does not indicate the grounds

on which the member of the Medical Board is sought to be

examined and secondly, no such material has been

2 (2017) 2 SCC 210

3

appended along with the objections filed by informant on

the basis of which prima facie we could feel satisfied to

summon a member of Medical Board. We accordingly,

negate the submission urged by learned counsel for

informant to summon a member of Medical Board for crossexamination.

44. Having dealt with the conflicting claims of the parties,

the swinging circumstances of the case and the law as laid

down Mukarrab and Others (Supra), we find that the

medical report dated 18.9.2020 is worthy of acceptance,

wherein the age of accused-appellant-2 Ram Vijai Singh has

been determined as 40-55 years on date. The occurrence

took place on 20.7.1982 i.e. 38 years ago. When age of

accused-appellant-2 Ram Vijai Singh is determined on all

hypothetical calculations i.e. (55-38=17 years) (40-38= 2

years) and taking the average of difference between

maximum and minimum age i.e. 48-38 = 10 years, then the

age of accused-appellant-2 Ram Vijai Singh falls below 17

years.”

5. This Court on 13.1.2021 directed the learned Advocate appearing

for the State to produce all original documents with regard to the

Gun Licence in question. In pursuance of the said direction, the

State filed an application submitted on behalf of the appellant to

seek the Arms Licence. In Column 2 of the application, the appellant has provided his date of birth as 30.12.1961. Such application

was filed on or around 21.12.1981 wherein a police report was

submitted on 28.3.1982 stating that no criminal case was registered against the appellant. It is on that basis, the application for

Arms Licence was processed and the Area Magistrate approved

the grant of Licence. The Arms Licence was hence granted on

24.7.1982, that is after the date of incident.

4

6. With this factual background, the question of juvenility of the appellant as on the date of incident, i.e., 20.7.1982 is required to be

examined.

7. There is no dispute that the plea of juvenility can be raised at any

stage even after finality of the proceedings before this Court. In

the present case, the appellant has raised the plea of juvenility before the High Court vide Criminal Miscellaneous Application No.

382916 of 2015. This Court in a judgment reported as Abuzar

Hossain alias Gulam Hossain v. State of West Bengal

3 held

as under:

“39.1. A claim of juvenility may be raised at any stage

even after the final disposal of the case. It may be

raised for the first time before this Court as well after

the final disposal of the case. The delay in raising the

claim of juvenility cannot be a ground for rejection of

such claim. The claim of juvenility can be raised in

appeal even if not pressed before the trial court and

can be raised for the first time before this Court though

not pressed before the trial court and in the appeal

court.”

8. Section 7-A of the Juvenile Justice (Care and Protection of Children)

Act, 20004

 contemplated that whenever a claim of juvenility is

raised before any Court, the Court shall make an inquiry and take

such evidence as may be necessary. In terms of the provisions of

the 2000 Act, the Juvenile Justice (Care and Protection of Children)

3 (2012) 10 SCC 489

4 For short, the ‘2000 Act’

5

Rules, 20075

 have been framed. Rule 12 of the Rules contemplates a procedure to be followed for determination of age. The

2000 Act has been repealed by the Juvenile Justice (Care and Protection of Children) Act, 20156

. Section 9(2) of the Act is the analogous provision to Section 7-A of the 2000 Act. The procedure for

determining the age is now part of Section 94 of the Act which was

earlier part of Rule 12 of the Rules. Section 94 of the Act reads

thus:

“Section 94. Presumption and determination of age

(1) Where, it is obvious to the Committee or the Board,

based on the appearance of the person brought before it

under any of the provisions of this Act (other than for the

purpose of giving evidence) that the said person is a child,

the Committee or the Board shall record such observation

stating the age of the child as nearly as may be and

proceed with the inquiry under section 14 or section 36, as

the case may be, without waiting for further confirmation of

the age.

(2) In case, the Committee or the Board has reasonable

grounds for doubt regarding whether the person brought

before it is a child or not, the Committee or the Board, as

the case may be, shall undertake the process of age

determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the concerned

examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(iii) and only in the absence of (I) and (ii) above, age shall

5 For short, the ‘Rules’

6 For short, the ‘Act’

6

be determined by an ossification test or any other latest

medical age determination test conducted on the orders of

the Committee or the Board:

Provided such age determination test conducted on the

order of the Committee or the Board shall be completed

within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be

the age of person so brought before it shall, for the purpose

of this Act, be deemed to be true age of that person.”

9. The judgment in Abuzar Hossain considered Section 7-A of the

Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the

Rules shows that in the absence of documents as mentioned in

clause (i), (ii) or (iii), the medical opinion will be sought from a duly

constituted Medical Board, which will declare the age of the juvenile or child. It was further provided that in case wherein the exact

assessment of the age cannot be done, the Court or the Juvenile

Justice Board, if considered necessary, give benefit to the child or

juvenile by considering his/her age on lower side within the margin

of one year. However, it is to be noted that Section 94 of the Act

does not have any corresponding provision of giving benefit of

margin of age.

10. Admittedly, in the present case, there is no Date of Birth Certificate from the school or matriculation or equivalent certificate or a

Birth Certificate given by a Corporation or Municipal Authority or

7

Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine the age by an ossification test or any other latest medical

age determination test conducted on the orders of the Committee

or the Board comes into play.

11. Mr. Gopal Sankaranarayanan, learned senior counsel appeared on

behalf of the appellant, argued that the accused was given bail by

the High Court keeping in view his age as 15½ - 17½ years in the

year 1982. Therefore, the appellant has to be treated as a juvenile

in the light of the said order. It was contended that even considering the maximum age as 55 years as per the Medical Report now

submitted, the appellant would still be less than 18 years on the

date of incident. It was also argued that procedure as contained in

Rule 12(3)(b) of the Rules is now part of Section 94 of the Act.

Therefore, once the statute has provided ossification test as the

basis of determining juvenility, the findings of such ossification

test cannot be ignored.

12. Mr. Goel, on the contrary, argued that procedure as provided under Rule 12(3)(b) of the Rules is not materially different from that

contained in the Statute. In fact, the discretion given to the Court

to lower the age by one year in the Rules has been omitted. He

further relied upon a judgment of this Court in Mukarrab wherein

it has been held that the Courts have observed that the evidence

8

afforded by radiological examination is a useful guiding factor for

determining the age of a person but the evidence is not of a

conclusive and incontrovertible nature and is subject to a margin

of error. Medical evidence as to the age of a person though a very

useful guiding factor is not conclusive and has to be considered

along with other circumstances. It was further held that the ossification test cannot be regarded as conclusive when the appellants

have crossed the age of thirty years which is an important factor

to be taken into account as age cannot be determined with precision. It was held as under:

“26. Having regard to the circumstances of this case, a

blind and mechanical view regarding the age of a

person cannot be adopted solely on the basis of the

medical opinion by the radiological examination. At p.

31 of Modi's Textbook of Medical Jurisprudence and

Toxicology, 20th Edn., it has been stated as follows:

“In ascertaining the age of young persons radiograms

of any of the main joints of the upper or the lower

extremity of both sides of the body should be taken, an

opinion should be given according to the following

Table, but it must be remembered that too much

reliance should not be placed on this Table as it merely

indicates an average and is likely to vary in individual

cases even of the same province owing to the

eccentricities of development.”

Courts have taken judicial notice of this fact and have

always held that the evidence afforded by radiological

examination is no doubt a useful guiding factor for

determining the age of a person but the evidence is not

of a conclusive and incontrovertible nature and it is

subject to a margin of error. Medical evidence as to the

age of a person though a very useful guiding factor is

not conclusive and has to be considered along with

9

other circumstances.

27. In a recent judgment, State of M.P. v. Anoop

Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], it

was held that the ossification test is not the sole criteria

for age determination. Following Babloo Pasi [Babloo

Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3

SCC (Cri) 266] and Anoop Singh cases [State of

M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC

(Cri) 208], we hold that ossification test cannot be

regarded as conclusive when it comes to ascertaining

the age of a person. More so, the appellants herein

have certainly crossed the age of thirty years which is

an important factor to be taken into account as age

cannot be determined with precision. In fact in the

medical report of the appellants, it is stated that there

was no indication for dental x-rays since both the

accused were beyond 25 years of age.

28. At this juncture, we may usefully refer to an article

“A study of wrist ossification for age estimation in

paediatric group in Central Rajasthan”, which reads as

under:

“There are various criteria for age determination of an

individual, of which eruption of teeth and ossification

activities of bones are important. Nevertheless age can

usually be assessed more accurately in younger age

group by dentition and ossification along with

epiphyseal fusion.

[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill

Livingstone Edinburgh London Melbourne and New York:

1996; 341-342];

A careful examination of teeth and ossification at wrist

joint provide valuable data for age estimation in

children.

[Ref.: Parikh C.K. Parikh's Textbook of Medical

Jurisprudence and Toxicology, 5th Edn., Mumbai MedicoLegal Centre Colaba: 1990; 44-45];

10

***

Variations in the appearance of centre of ossification at

wrist joint shows influence of race, climate, diet and

regional factors. Ossification centres for the distal ends

of radius and ulna consistent with present study vide

article “A study of wrist ossification for age estimation

in paediatric group in Central Rajasthan” by Dr

Ashutosh Srivastav, Senior Demonstrator and a team of

other doctors, Journal of Indian Academy of Forensic

Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973].

29. In the present case, their physical, dental and

radiological examinations were carried out. Radiological

examination of skull (AP and lateral view), sternum (AP

and lateral view) and sacrum (lateral view) was advised

and performed. As per the medical report, there was no

indication for dental x-rays since both the accused were

much beyond 25 years of age. Therefore, the age

determination based on ossification test though may be

useful is not conclusive. An x-ray ossification test can

by no means be so infallible and accurate a test as to

indicate the correct number of years and days of a

person's life.”

13. We do not find any merit in the arguments advanced by the appellant. The medical report in support of the bail order is not available. Such order granting bail cannot be conclusive determination

of age of the appellant. It was an interim order of bail pending

trial but in the absence of a medical report, it cannot be conclusively held that the appellant was juvenile on the date of the incident.

14. We find that the procedure prescribed in Rule 12 is not materially

different than the provisions of Section 94 of the Act to determine

11

the age of the person. There are minor variations as the Rule 12(3)

(a)(i) and (ii) have been clubbed together with slight change in the

language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules. The importance

of ossification test has not undergone change with the enactment

of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules.

15. As per the Scheme of the Act, when it is obvious to the Committee

or the Board, based on the appearance of the person, that the said

person is a child, the Board or Committee shall record

observations stating the age of the Child as nearly as may be

without waiting for further confirmation of the age. Therefore, the

first attempt to determine the age is by assessing the physical

appearance of the person when brought before the Board or the

Committee. It is only in case of doubt, the process of age

determination by seeking evidence becomes necessary. At that

stage, when a person is around 18 years of age, the ossification

test can be said to be relevant for determining the approximate

age of a person in conflict with law. However, when the person is

around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao

12

Khotkar v. Kailash Kushanrao Gorantyal and Ors.

7

 held, in

the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the

ossification test cannot yield trustworthy and reliable results, such

test cannot be made a basis to determine the age of the person

concerned on the date of incident. Therefore, in the absence of

any reliable trustworthy medical evidence to find out age of the

appellant, the ossification test conducted in year 2020 when the

appellant was 55 years of age cannot be conclusive to declare him

as a juvenile on the date of the incident.

16. Apart from the said fact, there is an application submitted by the

appellant himself for obtaining an Arms Licence prior to the date

of the incident. In such application, he has given his date of birth

as 30.12.1961 which would make him of 21 years of age on the

date of the incident i.e. 20.7.1982. The Court is not precluded

from taking into consideration any other relevant and trustworthy

material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not

available or are not found to be reliable and trustworthy. Since

there is a document signed by the appellant much before the date

of occurrence, therefore, we are of the opinion that the appellant

7 (2020) 7 SCC 1

13

cannot be treated to be juvenile on the date of incident as he was

more than 21 years of age as per his application submitted to obtain the Arms Licence.

17. On merits, the argument of the appellant was that Girendra Singh,

the brother of the deceased, was not examined by prosecution

though as per Ram Naresh Singh (PW-1), he was walking few steps

behind the deceased. It was further argued that as per PW-1 Ram

Naresh Singh, Dhruv Singh had used Barchhi as lathi, though the

first version was that Dhruv had used Barchhi. The argument was

that Ram Naresh Singh (PW-1) has been disbelieved qua the role

of Dhruv Singh and hence cannot be relied upon in determining

the role of the appellant.

18. We do not find any merit in the arguments raised by the learned

counsel for the appellant. A part statement of a witness can be believed even though some part of the statement may not be relied

upon by the court. The maxim Falsus in Uno, Falsus in Omnibus is

not the rule applied by the courts in India. This Court recently in a

judgment reported as Ilangovan v. State of T.N.

8 held that

Indian courts have always been reluctant to apply the principle as

it is only a rule of caution. It was held as under:-

“11. The counsel for the appellant lastly argued that once

the witnesses had been disbelieved with respect to the coaccused, their testimonies with respect to the present

8 (2020)10 SCC 533

14

accused must also be discarded. The counsel is, in effect,

relying on the legal maxim “falsus in uno, falsus in

omnibus”, which Indian courts have always been reluctant

to apply. A three-Judge Bench of this Court, as far back as in

1957, in Nisar Ali v. State of U.P. [Nisar Ali v. State of U.P.,

AIR 1957 SC 366 : 1957 Cri LJ 550] held on this point as

follows: (AIR p. 368, paras 9-10)

“9. It was next contended that the witnesses had falsely

implicated Qudrat Ullah and because of that the court

should have rejected the testimony of these witnesses as

against the appellant also. The well-known maxim falsus in

uno, falsus in omnibus was relied upon by the appellant.

The argument raised was that because the witnesses who

had also deposed against Qudrat Ullah by saying that he

had handed over the knife to the appellant had not been

believed by the courts below as against him, the High Court

should not have accepted the evidence of these witnesses

to convict the appellant. This maxim has not received

general acceptance in different jurisdictions in India nor has

this maxim come to occupy the status of a rule of law. It is

merely a rule of caution. All that it amounts to is that in

such cases the testimony may be disregarded and not that

it must be disregarded. One American author has stated:

‘… the maxim is in itself worthless; first in point of validity

… and secondly, in point of utility because it merely tells

the jury what they may do in any event, not what they must

do or must not do, and therefore, it is a superfluous form of

words. It is also in practice pernicious….’ [Wigmore on

Evidence, Vol. III, Para 1008]

10. The doctrine merely involves the question of weight of

evidence which a court may apply in a given set of

circumstances but it is not what may be called “a

mandatory rule of evidence”.”

(emphasis supplied)

This principle has been consistently followed by this Court,

most recently in Rohtas v. State of Haryana [Rohtas v. State

of Haryana, (2019) 10 SCC 554 : (2020) 1 SCC (Cri) 47] and

needs no reiteration.”

15

19. Therefore, merely because a prosecution witness was not believed

in respect of another accused, the testimony of the said witness

cannot be disregarded qua the present appellant. Still further, it is

not necessary for the prosecution to examine all the witnesses

who might have witnessed the occurrence. It is the quality of evidence which is relevant in criminal trial and not the quantity.

Therefore, non-examination of Girendra Singh cannot be said to be

of any consequence.

20. The other accused, who was convicted apart from the appellant is

Shiv Vijay Singh, was armed with an axe. Dr. Shyam Mohan

Krishna (PW-4) has conducted the postmortem examination and

reported the following injuries:

“1. Contusion 4 cm. x 2 cm. on back of left ear on

temporal region.

2. Contusion 4 cm. x 1 cm. on left side below Inj. no. 1

oblique.

3. Lacerated wound 3 cm. x 1 cm. x bone deep placed on

back near occipital region on back of left ear.

4. Contusion 2 cm. x 1 cm. on left side of frontal region of

scalp above left Eye brow.

5. Contusion 2 cm. x 2 cm. on middle of left Eye brow.

6. Contusion 4 cm. x 2 cm. at chin.

16

7. Contusion 6 cm. x 2 cm. on left side of neck, oblique in

middle.

8. Contusion 5 cm. x 2 cm. on apex of left shoulder.

9. Incised wound 6 cm. x 2 cm. bone deep on left cheek

upper part oblique.

10. Incised wound 4 cm. x 2 cm. bone deep placed on left

cheek below Inj. no. 9.

11. Abrasion left side of chest lower part ant. aspect 5 cm.

x 4 cm.

12. Contusion 3 cm. x 1 cm. on left axilla on anterior

axillary fold.

13. Contusion 8 cm. x 2 cm. on left upper arm on lateral

aspect oblique.

14. Incised wound 5 cm. x 2 cm. on dorsum of left wrist in

middle.

15. Abrasion 10 cm. x 8 cm. on back left side upper part.

16. Contusion 6 cm. x 2 cm. oblique on left side of chest

lower part near Inj. no. 11.”

21. The oral evidence along with the statement of Dr. Shyam Mohan

Krishna (PW-4) suggest that the injuries on the head of the deceased were caused by a blunt weapon. The blunt weapon as deposed by the eyewitness is the lathi in the hands of the present

17

appellant. Lathi may be common article with the villagers but the

use of lathi as a weapon of offence is a finding of fact recorded by

the Courts below.

22. As per the postmortem report, the deceased suffered multiple injuries which shows attack by more than one person. The nature of

injuries also shows that hard and blunt object as well as sharp

edged weapons were used to inflict injuries. It is the appellant

who was armed with Lathi whereas the other convicted accused

Shiv Vijay Singh was armed with Axe. The incised wound suffered

by the deceased was possible with an Axe. As per the report,

there are sufficient number of injuries caused by an Axe and Lathi

on the person of the deceased.

23. However, the learned trial court as well as the High Court had

appreciated the entire evidence to return a finding of guilt against

the appellant.

24. Therefore, we do not find any merit in the present appeal. The

same is hereby dismissed.

.............................................J.

(ROHINTON FALI NARIMAN)

18

.............................................J.

(HEMANT GUPTA)

.............................................J.

(B.R. GAVAI)

NEW DELHI;

FEBRUARY 25, 2021.

19

fee fixation by the Admission and Fee Regulatory Committee for MBBS students in private self-financing medical colleges in the State of Kerala.=The delay that is caused in finalizing the fee in medical colleges is beneficial neither to the institutions nor the students. Therefore, we direct the Committee to expeditiously reconsider the proposals of the private selffinancing colleges for fee fixation from 2017-18 onwards. Needless to mention that fee for earlier years also needs to be finalized in case it has not been done in respect of any college. It can direct the managements to furnish any information that is required for the purpose of arriving at a decision that the fee proposed by the managements is neither excessive nor exploitative in nature. A reasonable opportunity should be given to the managements of private self-financing colleges in respect of their proposals for fee fixation. The entire exercise shall be completed within a period of three months from today.

fee fixation by the Admission and Fee Regulatory Committee for MBBS students in private self-financing medical colleges in the State of Kerala.=The delay that is caused in finalizing the fee in medical colleges is beneficial neither to the institutions nor the students. Therefore, we direct the Committee to expeditiously reconsider the proposals of the private selffinancing colleges for fee fixation from 2017-18 onwards. Needless to mention that fee for earlier years also needs to be finalized in case it has not been done in respect of any college. It can direct the managements to furnish any information that is required for the purpose of arriving at a decision that the fee proposed by the managements is neither excessive nor exploitative in nature. A reasonable opportunity should be given to the managements of private self-financing colleges in respect of their proposals for fee fixation. The entire exercise shall be completed within a period of three months from today.

 Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 Civil Appeal Nos . 606 - 616 of2021

Najiya Neermunda & Anr. Etc. ... Appellant(s)

Versus

Kunhitharuvai Memorial Charitable Trust & Ors. Etc.

…. Respondent (s)

WITH

 Civil Appeal Nos . 617-634 of2021

 Civil Appeal No . 635 of2021

 Civil Appeal No . 636 of2021

 Civil Appeal No . 637 of2021

 Civil Appeal No . 666 of2021

 Civil Appeal No . 679 of2021

J U D G M E N T

L. NAGESWARA RAO, J.

1. The controversy in these Appeals pertains to fee

fixation by the Admission and Fee Regulatory Committee for

MBBS students in private self-financing medical colleges in

the State of Kerala.

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2. Pursuant to the judgement of this Court in P.A.

Inamdar & Ors. v. State of Maharashtra & Ors.

1

, the

State of Kerala enacted Kerala Professional Colleges or

Institutions (Prohibition of Capitation Fee, Regulation of

Admission, Fixation of Non-Exploitative Fee and Other

Measures to Ensure Equity and Excellence in Professional

Education) Act, 2006. The Rules framed under the said Act

came into force w.e.f. 2006. The said Act was replaced by

Kerala Medical Education (Regulation and Control of

Admission to Private Medical Educational Institutions) Act,

2017 (hereinafter referred to as “the 2017 Act”). Certain

provisions of the 2017 Act were challenged by way of Writ

Petitions filed in the High Court of Kerala. The fixation of

admission fee for all the medical colleges in the State of

Kerala provisionally at Rs. 5 Lakh by the Admission and Fee

Regulatory Committee was also subject matter of challenge

in the said Writ Petitions. Section 8 of the 2017 Act

delineates the powers and functions of the Admission and

Fee Regulatory Committee (hereinafter referred to as “the

Committee”) constituted under Section 3 of the 2017 Act.

Section 8(1)(a) provides that the Committee can direct a

private aided or unaided medical institution to furnish the

required information along with necessary material for

1 (2005) 6 SCC 537

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enabling the Committee to determine the fee that may be

charged by the institution in respect of each medical course.

Section 11 of the 2017 Act mentions the factors that are to

be taken into account by the Committee for determination of

the fee to be charged by a private aided or unaided medical

institution. The challenge to Sections 8(1)(a) and Section 11

of the 2017 Act was rejected by the High Court in its

judgment dated 02.11.2017. However, the High Court held

that fixation of fee provisionally was ultra vires the 2017 Act.

After examining the law laid down by this Court in T.M.A. Pai

Foundation & Ors. v. State of Karnataka & Ors.

2

,

Islamic Academy of Education v. State of Karnataka &

Ors.

3

, P.A. Inamdar (supra) and Modern Dental College

& Research Centre & Ors. v. State of Madhya Pradesh

& Ors.

4

 with respect to fixation of fee for professional

courses in unaided medical colleges, the High Court of Kerala

held that the institutions shall propose the fee structure and

the scrutiny by the Committee shall only be for the purpose

of ensuring that such fee is not exploitative and that the

institutions are not indulging in profiteering or collecting

capitation fee. According to the High Court, the Committee

can formulate a policy of directing the colleges to submit

2 (2002) 8 SCC 481

3 (2003) 6 SCC 697

4 (2016) 7 SCC 353

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audited accounts of previous years for the purpose of

ascertaining that there is no profiteering by the institutions in

fixing the fee. The High Court made it clear that the

Committee cannot go into the desirability or appropriateness

of the expenses incurred by the institution as per its own

notions and standards. While disposing of the Writ Petitions,

the High Court fixed a time schedule for finalizing the fee to

be paid by students as it would be detrimental to the

interests of both students and the institutions to keep the

finalization of fee pending for a long time.

3. Consequent upon the judgment dated 02.11.2017 of

the High Court, the Committee fixed fee for the MBBS course

for the years 2017-18 and 2018-19 for private medical

colleges. Dissatisfied with the fee fixed by the Committee,

the managements of private self-financing medical colleges

again approached the High Court by filing Writ Petitions

which were heard and disposed of by the High Court on

28.02.2019. The principal contentions of the managements

before the High Court were that the Committee acted in

excess of its jurisdiction in fixing fee for the years 2017-18

and 2018-19 and that all the members of the Committee

were not parties to the order of fee fixation. Considering the

first point of the Committee acting in excess of the

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jurisdiction vested in it by the 2017 Act, the High Court was

of the opinion that the Committee was empowered to ensure

that the fee fixed by the institutions was reasonable. The

contention of the managements that the proposal made by

them in respect of the fee to be collected from the students

has to be accepted by the Committee which does not have

the power to disallow any expenditure, was not accepted by

the High Court. That the Committee lacked the power to fix

a fee different from the one proposed by the managements

was also rejected by the High Court. After carefully

considering the judgments of this Court relating to fee

fixation and the judgments of the High Court on the same

point, a Division Bench of the High Court of Kerala in its

judgment dated 28.02.2019 observed that the Committee

has the power to examine whether the fee proposed by the

managements of private self-financing medical colleges was

not excessive and non-exploitative, apart from considering

that the surplus proposed was reasonable and was being

ploughed back into the institution. The managements of

private self-financing medical colleges were directed to

cooperate with the Committee by furnishing all the

accounting details as directed by the Committee. It is

important to note that the High Court observed that the

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Committee has the power to examine the material furnished

by the institutions for eliminating impermissible ingredients

so as to arrive at a reasonable fee that can be charged by

the management. As all members of the Committee were

not present during the decision-making process of fixation of

fee, the High Court set aside the order passed by the

Committee. The Committee was directed to pass fresh

orders for fixing the fee in accordance with law at the

earliest. The Committee issued fresh orders in July, 2019 in

respect of fixation of fee for MBBS Course for the years 2017-

18 and 2018-19. Proceeding on the premise that the orders

passed earlier fixing the fee were set aside by the High Court

for lack of quorum, the Committee did not re-examine the

proposals made by the managements earlier. The

Committee reiterated the fee that was fixed for the medical

colleges in its earlier orders. The managements of private

self-financing colleges approached the High Court of Kerala

by filing Writ Petitions challenging the orders passed by the

Committee by which the fee fixed for the years 2017-18 and

2018-19 had been repeated again. By an order dated

14.01.2020, the High Court directed the managements of

private self-financing colleges to provide a statement,

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accompanied with an affidavit and a list of documents within

a period of 3 weeks from the date of the order, relating to:

a. The cost of land and building with date of acquisition

of land and construction of building,

b. Listed value of infrastructure,

c. List of equipment, its value and approximate life,

d. The salary and allowances paid to the teaching and

non-teaching staff,

e. The expenditure on administration and maintenance

of the medical educational institution,

f. Any other expenditure, and

g. Surplus for future development.

4. Prima facie, the High Court was convinced that the

Committee did not reconsider the matter after the judgment

of the High Court dated 28.02.2019. The High Court was

convinced that the orders passed by the Committee fixing

fee for the years 2017-18 and 2018-19 suffered from the vice

of non-application of mind. The order dated 14.01.2020 was

subject matter of challenge in the SLPs filed in this Court

which were disposed of on 06.03.2020 with a request to the

High Court to decide the Writ Petitions. The High Court was

also given the liberty to decide whether it can itself decide

the fee.

5. On 19.05.2020, the High Court disposed of the Writ

Petitions in which orders passed by the Committee were

assailed. After examining the orders passed by the

Committee, the High Court was of the opinion that there was

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no fresh consideration for fixation of fee in spite of directions

issued by the Division Bench of the High Court in its

judgment dated 28.02.2019. The High Court was not

satisfied with the hearing that was given to the

managements with an interval of 15 minutes. The failure on

the part of the Committee in not reconsidering the matter of

fee fixation was found fault with by the High Court. The High

Court found it inappropriate to fix the fee by itself and

remanded the matter back to the Committee to re-examine

the proposals of the managements of private self-financing

colleges and to pass suitable orders. The High Court gave a

specific direction to the Committee to examine whether the

estimate of the expenditure provided by the institutions are

in accordance with the audited balance sheets and in the

absence of audited balance sheets, in accordance with the

provisional profit and loss accounts to be furnished by the

managements. The High Court directed the Committee to

examine the audited balance sheets only for the purpose of

considering whether the expenditure that is shown by the

managements should be excluded or not. The Committee

was directed to arrive at a decision regarding fixation of fee

without being influenced by its earlier orders. A fair

opportunity was directed to be given to the managements of

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private self-financing medical colleges. The State of Kerala

and the students of private self-financing medical colleges

have challenged the judgment dated 19.05.2020 by filing

these Appeals.

6. We have heard Mr. Jaideep Gupta and Mr. Paramjit

Singh Patwalia, learned Senior Counsel appearing on behalf

of the State of Kerala, Mr. P.S. Narasimha, learned Senior

Counsel, Mr. Raghenth Basant and Mr. Wills Mathew, learned

counsel appearing on behalf of the students, Mr. Dushyant

Dave and Mr. Shyam Divan, learned Senior Counsel

appearing on behalf of the managements of private selffinancing colleges. The main contention of the State of

Kerala is that the earlier orders of fee fixation for the years

2017-18 and 2018-19 have been upheld by the High Court in

its judgment dated 28.02.2019. The matter was remanded

back by the High Court only because the orders were passed

without quorum. It was argued on behalf of the State that

the managements of private self-financing colleges were

given an opportunity to furnish additional material, if any,

which was not availed of. There was no necessity for

reconsideration of fee fixation for the years 2017-18 and

2018-19 with which no fault was found by the High Court by

its judgment dated 28.02.2019. The State of Kerala is also

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aggrieved by the direction given by the High Court in the

impugned judgment restricting the powers of the Committee

in exercise of its jurisdiction to fix the fee. The directions

given by the High Court are contrary to Section 11 of the

2017 Act, which refers to factors that have to be taken into

account by the Committee for fee fixation. On behalf of the

students, a submission was made that the fee fixed by the

Committee is appropriate and should not be interfered with.

A fervent appeal was made on behalf of the students that

any revision of fee would impose financial burden on the

students and their families. Relying upon the judgments of

this Court, it was argued on behalf of the students that the

fee charged by the private self-financing colleges should be

reasonable.

7. The managements of private self-financing colleges

stressed on the fact that they have a right guaranteed under

Article 19 (1)(g) of the Constitution of India which can be

curtailed only by reasonable restrictions. They have a right

to establish and administer an institution without any undue

interference. The case canvassed on behalf of the

managements is that the power of the Committee is

restricted to scrutinize the proposals made by them for

charging the fee. No doubt, the managements should not be

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permitted to charge excessive fee but reasonable surplus is

permitted under Section 11 of the 2017 Act. Expenditure

involved in running an institution along with reasonable profit

is permitted by the statute. There is no error committed by

the High Court in directing the audited accounts to be

considered for fee fixation. Reference has been made to

higher fee fixed for a Deemed University in Kerala and by

other States to argue that the fee for the years 2017-18 and

2018-19 shall be fixed at par with those institutions. The

submission of the management is that there should have

been a de novo consideration after remand by the High Court

on 28.02.2019. They have complained about the hearing

that was given to them after the remand, wherein 19 private

self-financing colleges were directed to be present before the

Committee with an interval of 15 minutes, which is wholly

unreasonable. The stand of the managements is that the

fixation of fee for students pursuing medical courses 2017-18

onwards should not be delayed any further.

8. Fixation of fee payable by students pursing their

medical courses in the State of Kerala since 2017-18 has not

been finalized till date. One college complains of nonfinalization of fee from the year 2016-17. The students are

continuing their education after remitting a provisional fee.

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Sections 8 and 11 of the 2017 Act which provide for the

powers and functions of the Committee and the factors to be

taken into account for fixation of fee have been upheld by

the High Court. The exercise undertaken by the Committee

for finalizing the fee payable by the students for the years

2017-18 and 2018-19 was examined by the High Court at the

behest of the managements. The High Court by its judgment

dated 28.02.2019 remanded the matter back to the

Committee directing that fresh orders be passed. The State

contends that the remand was for a limited purpose as the

fee fixation by the Committee was set aside only because it

lacked quorum and not otherwise. On the other hand, the

managements insisted that the Committee had to reexamine the matter on remand by the High Court. If the

remand was only on a technical ground of lack of quorum,

the High Court would have mentioned it in its judgment

dated 28.02.2019. The stand taken by the managements

was accepted by the High Court in the impugned judgment.

The High Court was of the firm opinion that the Committee

ought to have considered the matter de novo and fixed the

fee after giving an opportunity to the managements and

after considering the proposals again. A close scrutiny of the

judgement dated 28.02.2019 would not indicate that the

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remand was only for the purpose of curing the defect of lack

of quorum. The High Court in its judgment dated 28.02.2019

considered the submissions of the managements that the

Committee acted in excess of its jurisdiction conferred by

Section 8 of the 2017 Act. The additional point raised by the

managements that the fee was fixed without regard to the

factors mentioned in Section 11 of the Act was also

considered by the High Court in its judgment dated

28.02.2019. Moreover, the fee that was fixed by the

Committee was not approved by the High Court in its

judgment dated 28.02.2019. Nonetheless, the High Court

held that the Committee should closely scrutinize the fee

suggested by the managements to examine if fee proposed

was not excessive and to eliminate any element of

profiteering or collection of capitation fee. The

managements were directed to co-operate with the

Committee in the matter of fixation of fee. The powers and

functions of the Committee and the factors to be considered

by the Committee for fixation of the fee have been discussed

by the High Court in its judgment dated 28.02.2019, without

finally expressing its mind on the correctness of the fee fixed

by the Committee. In the impugned judgment, the High

Court rejected the contention of the students and the State

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of Kerala and held that the matter was not sent back for

reconsideration only on the ground of lack of quorum. If the

remand was only on this technical issue, the High Court

would have specifically mentioned in the judgment. In any

event, the High Court in the impugned judgment held that it

was incumbent on the Committee to reconsider the proposals

for fee fixation afresh, as the matter was remanded by the

High Court after giving reasonable opportunity of hearing to

the stakeholders. The fee fixation of the Committee is

subject to an appeal as per provisions of the 2017 Act.

Except laying down principles of fee fixation, the High Court

did not examine the merits of any case while remanding the

matter for reconsideration in accordance with law by its

judgment dated 28.02.2019. The Committee shall reexamine the proposals of the Managements of Medical

Colleges for the fixation of fee 2017-18 onwards.

9. The other issue that requires to be considered relates to

the restrictions placed by the High Court in the matter of

fixation of fee by the Committee. We find force in the

submission of Mr. Jaideep Gupta, learned Senior Counsel

appearing on behalf of the State, that no fetter can be placed

on the exercise of power for fee fixation by the Committee,

which shall be in accordance with the factors that are

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mentioned in Section 11 of the 2017 Act. The High Court

committed an error in directing the Committee to take into

account only audited balance sheets, and provisional profit

and loss accounts in the absence of audited balance sheets,

to fix the fee. Though we are in agreement with the

submission made on behalf of the managements that the fee

as proposed by them should be considered by the

Committee, it is no more res integra that the right conferred

on the institutions to fix fee for professional courses is

subject to regulation. It need not be reiterated that unaided

professional institutions have the autonomy to decide on the

fee to be charged, subject to the fee not resulting in

profiteering or collection of capitation fee. Regulation of fee

is within the domain of the Committee which shall ensure

that the fee is non-exploitative and reasonable. There is no

need to repeat the judgments of this Court, especially P.A.

Inamdar & Ors. (supra), which have been copiously referred

to by the High Court in the 3 rounds of litigation to indicate

the principles to be followed for fixation of fee in private

medical colleges. Suffice it to mention that the Committee

shall reconsider the proposals of the managements for fee

fixation 2017-18 onwards by taking into account the factors

mentioned in Section 11 of the 2017 Act and the law laid

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down by this Court in Modern Dental College & Research

Centre (supra). The delay that is caused in finalizing the fee

in medical colleges is beneficial neither to the institutions nor

the students. Therefore, we direct the Committee to

expeditiously reconsider the proposals of the private selffinancing colleges for fee fixation from 2017-18 onwards.

Needless to mention that fee for earlier years also needs to

be finalized in case it has not been done in respect of any

college. It can direct the managements to furnish any

information that is required for the purpose of arriving at a

decision that the fee proposed by the managements is

neither excessive nor exploitative in nature. A reasonable

opportunity should be given to the managements of private

self-financing colleges in respect of their proposals for fee

fixation. The entire exercise shall be completed within a

period of three months from today.

10. For the aforementioned reasons, the Appeals are

disposed of accordingly.

 .....................................J.

 [ L. NAGESWARA RAO ]

.....................................J.

[ S. RAVINDRA BHAT ]

New Delhi,

February 25, 2021.

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Hindu Succession Act, 1956, Section 15- A perusal of Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed. When heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female. In the present case, Smt. Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. We, thus, do not find any merit in the submission of learned counsel for the appellants that the defendants-respondents were strangers to the family.

Hindu Succession Act, 1956, Section 15- A perusal of Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed. When heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.  In the present case, Smt. Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. We, thus, do not find any merit in the submission of learned counsel for the appellants that the defendants-respondents were strangers to the family.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5167 of 2010

KHUSHI RAM & ORS. ...APPELLANT(S)

VERSUS

NAWAL SINGH & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the plaintiffs of

Civil Suit challenging the judgment dated 16.04.2009

of High Court of Punjab & Haryana dismissing the

second appeal filed by the appellant.

2. The brief facts of the case as emerged from the

pleadings of the parties are:

2.1 One Badlu, who was the tenure-holder of

agricultural land situate in Village Garhi

Bajidpur, Tehsil and District Gurgaon, had

two sons Bali Ram and Sher Singh. Sher Singh

1

died in the year 1953 issueless leaving his

widow Smt. Jagno.

2.2 Plaintiffs-appellants are descendents of Bali

Ram. After death of Sher Singh, his widow

inherited share of her late husband, i.e.,

the half of the agricultural property owned

by Badlu. A Civil Suit No.317 of 1991 was

filed by Nawal Singh and two others against

Smt. Jagno in the Court of Sub-Judge, Gurgaon

claiming decree of declaration as owners in

possession of the agricultural land mentioned

in the suit to the extent of half share

situate in Village Garhi Bajidpur. The

plaintiffs claim was that Smt. Jagno, who was

sharer of the half share, has in a family

settlement settled the land in favour of the

plaintiffs, who were the brother’s sons of

Smt. Jagno.

2.3 Smt. Jagno filed a written statement in the

suit admitting the claim of the plaintiffs.

Smt. Jagno also made a statement in the suit

accepting the claim of plaintiffs, the trial

2

court vide its judgment and decree dated

19.08.1991 passed the consent decree in

favour of the plaintiffs declaring the

plaintiffs owners in possession of the half

share in the land.

2.4 The plaintiffs, who were descendents of

brother of husband of Smt. Jagno filed a

Civil Suit No.79 of 1991 in the Court of

Senior Sub-Judge Gurgaon praying for

declaration that the decree passed in Civil

Suit No.317 of 1991 dated 19.08.1991 is

illegal, invalid and without legal necessity.

The plaintiffs also claimed decree of

declaration in their favour declaring them

owners in possession of land in question. In

Suit No.79 of 1991, a joint written statement

was filed by the defendants. Smt. Jagno was

also defendant No.4 in the civil Suit No.79

of 1991. The defendants supported the decree

dated 19.08.1991. The defendants No.1 to 3

claimed land by family settlement out of love

and affection by the defendant No.4, which

3

family settlement was duly affirmed by Civil

Court decree dated 19.08.1991.

2.5 The trial court framed nine issues. Issue

No. 5 being “Whether the decree dated

19.08.1991 passed in civil suit no.317/91

titled Nawal Singh Etc. Vs. Smt. Jagno passed

by Sh. K.B. Aggarwal SJIC, Gurgaon is

illegal, invalid without jurisdiction and

against custom, without legal necessity and

consideration and a result of fraud and undue

influence and is liable to be set aside?

2.6 Issue Nos. 2 to 5 were answered in favour of

defendants. The trial court also rejected

the argument of the plaintiffs that in

absence of registration of decree, no right

or title would pass in favour of the

defendants. Trial court held that

registration is required when fresh rights

are created for the first time by virtue of

decree itself. It was held that in the case

in hand, defendants were having pre-existing

right in the suit property under as in a

4

family settlement defendant No.4 acknowledged

them as owner and surrendered the possession

of the suit property in their favour at the

time of family settlement and the decree

dated 19.08.1991 merely affirms their preexisting rights and hence, does not require

registration.

2.7 The plaintiffs aggrieved by the judgment

filed first appeal before the learned

District Judge, which too was dismissed. The

First Appellate Court held that under Section

14(1) of the Indian Succession Act, a Hindu

female become full owner of the property,

which she acquires before the commencement of

the Act and not as a limited owner. The

First Appellate Court also held that

defendants being near relations of defendant

No.4, they cannot be said to be strangers to

her. First Appellate Court also held that

decree did not require registration. The

findings of the trial court were affirmed by

the First Appellate Court dismissing the

5

appeal. Aggrieved against the judgment of

the First Appellate Court, the plaintiffs

filed R.S.A. No.750 of 2002. Second appeal

was admitted on following question of law:-

“Whether in the absence of any

pre-existing right with the

defendant- respondents 1 to 3,

a decree ( Exhibit P.2)

suffered by Jagno (who is

father's sister of defendantrespondent) required

registration under Section

17(1) of the Indian

Registration Act, 1908?”

2.8 The High Court answered the above question

of law against the plaintiffs and in favour

of the defendants-respondents. The High

Court held that judgment and the decree

rendered in Civil Suit No.317 of 1991 dated

19.08.1991 merely recognise the existing

right which was created by the oral family

settlement. High Court further held that

apart from relationship of Smt. Jagno with

defendants-respondents 1 to 3, she has

developed close affinity, love and affection

for defendant respondent Nos.1 to 3 as per

the findings recorded by the learned Courts

6

below. The High Court dismissed the second

appeal, aggrieved against which judgment,

this appeal has been filed.

3. We have heard Shri Ranbir Singh Yadav, learned

counsel for the appellant and Shri Manoj Swarup,

learned senior counsel for the respondent.

4. Learned counsel for the appellants, Shri Yadav

submits that no family settlement could have been

entered by Smt. Jagno in favour of defendant Nos.1 to

3, they being strangers to the family. A Hindu widow

cannot constitute a Joint Hindu Family with the

descendants of her brother, i.e., her parental side.

Family settlement can take place only between

members, who have antecedent title or pre-existing

right in the property proposed to be settled. Smt.

Jagno could have transferred her absolute share in

favour of the respondents or to any stranger only in

accordance with law by complying with the provisions

of the Transfer of Property Act, 1882, the Indian

Registration Act, 1908 and the Indian Stamp Act,

7

1899. Learned counsel further contends that

registration of compromise decree was compulsory by

virtue of Section 17 of the Indian Registration Act

and the decree dated 19.08.1991 having not been

registered, it did not confer any valid title to the

defendant Nos.1 to 3. All the Courts below committed

error in upholding the decree dated 19.08.1991

whereas the decree being an unregistered decree was

liable to be ignored and declared in operative.

5. Shri Manoj Swarup, learned senior counsel for the

respondents refuting the submissions of the learned

counsel for the appellant contends that defendant

Nos.1 to 3 had pre-existing right in the suit

property, which was clear from the pleadings of Civil

Suit No.317 of 1991. In the above suit, it was

categorically pleaded that family

settlement/arrangement took place about two years

back and since then plaintiffs are owners in

possession of land and defendant No.4 had

relinquished all her rights therein.

8

6. It is submitted that decree passed in the Civil

Suit dated 19.08.1991 only declared the existing

rights of the defendant Nos.1 to 3, which was based

on the family settlement. It is submitted that the

defendant Nos.1 to 3 being brother’s sons of Smt.

Jagno, they were not strangers to Smt. Jagno and

family settlement could have been very well entered

by Smt. Jagno with them. It is submitted that the

expression “family” for the purpose of family

settlement is not to be given any narrow meaning; it

should be given a wide meaning to cover the members,

who are by any means related. It is further

submitted that the decree dated 19.08.1991 did not

require any registration under Section 17 of the

Indian Registration Act, 1908. The decree was passed

with regard to subject matter of the suit property,

it was exempted from registration by virtue of

Section 17(2)(vi) of the Indian Registration Act,

1908. Shri Swarup further contends that the family

settlement could have been made out of love and

affection with regard to which there was ample

pleading in the Civil Suit No.317 of 1991 and out of

9

love and affection defendant No.4, Smt. Jagno could

have very well settled the properties in favour of

defendant Nos.1 to 3, her nephews being brother’s

sons.

7. Learned counsel for the parties have relied on

judgments of this Court for their respective

submissions, which shall be referred to while

considering the submissions in detail.

8. The Civil Suit No.79 of 1991, which gives rise to

this appeal was a suit where following reliefs were

claimed by plaintiffs-appellants:-

“10. That the plaintiffs, therefore, pray

that a decree for declaration to the

effect that the decree in question passed

in Civil Suit No.317 of 1991 dated

19.8.1991 is illegal, invalid, without

legal necessity and consideration on the

grounds stated above in the plaint, and

the same does not convey any title in

favour of the defendants No.1 to 3 and

does not effect any reversionary rights of

the plaintiffs and the plaintiffs are

owners in possession of the land in

question, fully detailed and described in

para no.3 of the plaint above, with

consequential relief of permanent

injunction restraining the defendants

further alienating the land in question to

10

anyone else, may kindly be passed in

favour of the plaintiffs and against the

defendants with costs of this suit.

Any other relief which this Hon’ble Court

may deems fit and proper may also be

granted to the plaintiffs.”

9. There is no dispute between the parties that

Shri Sher Singh, husband of Smt. Jagno had half share

in the agricultural land situate in village Garhi

Bajidpur, which was suit property. Sher Singh died

in 1953. Smt. Jagno after enforcement of the Hindu

Succession Act, 1956 by virtue of Section 14 became

the absolute owner of the half share of the suit

property. The bone of contention between the parties

centres round the decree dated 19.08.1991 passed by

the Sub-Judge in Civil Suit No.317 of 1991 filed by

defendant Nos.1 to 3 against Smt. Jagno seeking

declaration that they are owners in possession of the

suit land. In Civil Suit No.317 of 1991, following

was pleaded in paragraphs 2 and 3:-

“2. That the parties are closely related

to each other, the plaintiffs are nephews

of the deft and constituted a Joint Hindu

Family. The deft Smt. Jagno Devi is the

daughter of Sh. Shib Lal, the grand father

of the plaintiffs.

11

3. That the defendant is living with the

plaintiffs at Village Chakerpur and the

plaintiffs are looking after her in her

old age and the deft has no issue. The

deft is very happy with the services of

the plaintiff rendered to her and out of

love and affection, the deft had allotted

the above mentioned land to the plaintiffs

in equal share in a family settlement

/arrangement, which took place about 2

years back and since then the plaintiffs

are owners in possession of the said land

and the deft had relinquished all rights

therein.”

10. In the aforesaid suit, written statement was

filed by Smt. Jagno admitting the claim of the

defendants. The trial court in its decree dated

19.08.1991 held following in paragraph 2:-

“2. The defendant appeared and filed

written statement admitting in toto the

claim of the plaintiffs. Statements of

the parties were also recorded. In view

of the written statement and statements of

parties, a consent decree in favour of the

plaintiffs and against the defendant is

passed for declaration as prayed for,

leaving the parties to bear their own

costs. Decree sheet be prepared and file

be consigned to the record room.”

11. In this appeal, following two questions arise for

consideration:-

12

(1) Whether the decree dated 19.08.1991 passed in

Civil Suit No.317 of 1991 requires

registration under Section 17 of the Indian

Registration Act, 1908?; and

(2) Whether the defendant Nos.1 to 3 were

strangers to defendant No.4 so as to disable

her to enter into any family arrangement with

defendant Nos.1 to 3?

Question No.(1)

12. There is no dispute that in the earlier Civil

Suit No.317 of 1991 in which consent decree was

passed on 19.08.1991, the subject matter of suit was

the agricultural land situated in Village Garhi,

Bajidpur. Further the suit was decreed on the

written statement filed by Smt. Jagno accepting the

claim of plaintiffs that there was family settlement

between the parties in which the half share in the

land was given to the plaintiffs of Civil Suit No.317

of 1991. The question is as to whether the decree

passed on 19.08.1991 required registration under

13

Section 17 of the Indian Registration Act, 1908.

Sections 17(1) and 17(2)(vi), which are relevant for

the present case, are as follows:-

“17. Documents of which registration is

compulsory.—(l) The following documents

shall be registered, if the property to

which they relate is situate in a district

in which, and if they have been executed

on or after the date on which, Act No. XVI

of 1864, or the Indian Registration Act,

1866, or the Indian Registration Act,

1871, or the Indian Registration Act,

1877, or this Act came or comes into

force, namely:—

(a) instruments of gift of immovable

property;

(b) other non-testamentary instruments

which purport or operate to create,

declare, assign, limit or extinguish,

whether in present or in future, any

right, title or interest, whether vested

or contingent, of the value of one hundred

rupees and upwards, to or in immovable

property;

(c) non-testamentary instruments which

acknowledge the receipt or payment of any

consideration on account of the creation,

declaration, assignment, limitation or

extinction of any such right, title or

interest; and

(d) leases of immovable property from year

to year, or for any term exceeding one

year, or reserving a yearly rent;

(e) non-testamentary instruments

transferring or assigning any decree or

order of a Court or any award when such

decree or order or award purports or

14

operates to create, declare, assign, limit

or extinguish, whether in present or in

future, any right, title or interest,

whether vested or contingent, of the value

of one hundred rupees and upwards, to or

in immovable property:]

Provided that the State Government

may, by order published in the Official

Gazette, exempt from the operation of this

sub-section any lease executed in any

district, or part of a district, the terms

granted by which do not exceed five years

and the annual rents reserved by which do

not exceed fifty rupees.

XXXXXXXXXXXXXXXXXX

(2) Nothing in clauses (b) and (c) of subsection (l) applies to—

(vi) any decree or order of a Court except

a decree or order expressed to be made on

a compromise and comprising immovable

property other than that which is the

subject-matter of the suit or proceeding;

or

XXXXXXXXXXXXXXXX”

13. The submission of the learned counsel for the

appellant is that there was no existing right in the

plaintiffs of Civil Suit No.317 of 1991, hence the

decree dated 19.08.1991 required registration under

Section 17(1)(b) since decree created right in favour

of the plaintiffs. In support of his submission, he

has placed reliance on judgment of this Court in

Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5

15

SCC 709 where this Court held that decree or order

including compromise decree granting new right, title

or interest in praesenti in immovable property of

value of Rs.100 or above is compulsorily registrable.

In paragraphs 17 and 18 of the judgment, following

was laid down:-

“17. It would, therefore, be the duty of

the court to examine in each case whether

the parties have pre-existing right to the

immovable property, or whether under the

order or decree of the court one party

having right, title or interest therein

agreed or suffered to extinguish the same

and created right, title or interest in

praesenti in immovable property of the

value of Rs 100 or upwards in favour of

other party for the first time, either by

compromise or pretended consent. If latter

be the position, the document is

compulsorily registrable.

18. The legal position qua clause (vi)

can, on the basis of the aforesaid

discussion, be summarised as below:

(1) Compromise decree if bona

fide, in the sense that the

compromise is not a device to

obviate payment of stamp duty and

frustrate the law relating to

registration, would not require

registration. In a converse

situation, it would require

registration.

16

(2) If the compromise decree were

to create for the first

time right, title or interest in

immovable property of the value of

Rs 100 or upwards in favour of any

party to the suit the decree or

order would require registration.

(3) If the decree were not to

attract any of the clauses of subsection (1) of Section 17, as was

the position in the aforesaid

Privy Council and this Court's

cases, it is apparent that the

decree would not require

registration.

(4) If the decree were not to

embody the terms of compromise, as

was the position in Lahore case,

benefit from the terms of

compromise cannot be derived, even

if a suit were to be disposed of

because of the compromise in

question.

(5) If the property dealt with by

the decree be not the “subjectmatter of the suit or proceeding”,

clause (vi) of sub-section (2)

would not operate, because of the

amendment of this clause by Act 21

of 1929, which has its origin in

the aforesaid decision of the

Privy Council, according to which

the original clause would have

been attracted, even if it were to

encompass property not litigated.”

14. The decree passed in Bhoop Singh’s case (supra)

17

has been quoted in paragraph 2 of the judgment, which

clearly proved that declaration was granted that

plaintiff will be the owner in possession from today.

In the above case, the suit was decreed on the basis

of compromise though the decree is on the ground that

defendant admitted the claim of the plaintiff in

written statement.

15. Learned counsel for the appellant has further

placed reliance on another judgment of this Court in

Civil Appeal No.890 of 2008 – Mata Deen Vs. Madan Lal

& Ors., in which case also, decree was passed on the

ground of family settlement in favour of the

plaintiffs-defendants. The decree passed was

required to be compulsorily registered under Section

17(2)(vi) of the Registration Act, which having not

been done, the judgment was set aside and the case

was remanded for the consideration of the question of

law. The observation of this Court in the above

judgment is to the following effect:-

“………………………..The second Appellate Court

was required to examine this aspect of the

case. As it is a substantial question of

18

law which fell for consideration under

Section 100 CPC, as could be seen, the

impugned judgment passed by the High Court

is simply concurred with the finding of

fact concurred with by the first Appellate

Court in its judgment in exercise of its

appellate jurisdiction and it had not

adverted to the substantial question of

law with respect to compulsory

registration of a decree in favour of the

first defendant and the consequences for

non registration of a decree under Section

17(2)(vi) of the Act and the law laid down

by this Court in the case of Bhoop Singh

vs. Ram Singh Major & Ors., (1995) 5 SCC

709 is not applied to the case on hand,

which rendered the impugned judgment and

decree bad in law.

In view of the reasons stated supra,

we set aside the impugned judgment and

decree passed by the High Court and remand

the matter to it with a request to

reconsider the matter after framing the

substantial questions of law that would

arise for consideration and hear the

parties and pass appropriate orders in

accordance with law. Since the matter is

of 1995 we request the High Court to

dispose of the matter as expeditiously as

possible but not later than six months

from the date of receipt of a copy of this

Order.

The appeal is disposed of

accordingly.”

16. From the above judgment, it is not clear as to

whether the decree, which was passed on the basis of

19

family settlement, relate to the suit property or the

property which was covered in the decree was not part

of the suit land. The above fact is crucial and it

is yet to be determined in view of the remand by this

Court, hence, the said judgment cannot be said to be

lend any support to the learned counsel for the

appellant.

17. Shri Manoj Swarup, learned counsel for the

respondents has on the other hand placed reliance on

judgment of Som Dev and Ors. Vs. Rati Ram and Anr.,

(2006) 10 SCC 788. The above was a case where decree

was based on an admission recognising pre-existing

rights under family arrangement. This court held

that in the above case, the decree did not require

registration under Section 17(1)(b).

18. This Court in a subsequent judgment in K.

Raghunandan and Ors. Vs. Ali Hussain Sabir and Ors.,

(2008) 13 SCC 102, Court had occasion to interpret

Section 17 and laid down following in paragraphs 23,

24, 25 and 28:-

20

“23. Sub-section (2) of Section 17 of the

Act, however, carves out an exception

therefrom stating that nothing in clauses

(b) and (c) of sub-section (1) of Section

17 would inter alia apply to “any decree

or order of a court except a decree or

order expressed to be made on a compromise

and comprising immovable property other

than that which is the subject-matter of

the suit or proceeding”. Even if the

passage was not the subject-matter of the

suit, indisputably, in terms of the Code

of Civil Procedure (Amendment) Act, 1976,

a compromise decree was permissible.

24. A plain reading of the said provision

clearly shows that a property which is not

the subject-matter of the suit or a

proceeding would come within the purview

of exception contained in clause (vi) of

sub-section (2) of Section 17 of the Act.

If a compromise is entered into in respect

of an immovable property, comprising other

than that which was the subject-matter of

the suit or the proceeding, the same would

require registration. The said provision

was inserted by Act 21 of 1929.

25. The Code of Civil Procedure

(Amendment) Act, 1976 does not and cannot

override the provisions of the Act. The

purported passage being not the subjectmatter of the suit, if sought to be

transferred by the respondent-defendants

in favour of the appellant-plaintiffs or

if by reason thereof they have

relinquished their own rights and

recognised the rights of the appellantplaintiffs, registration thereof was

imperative. The first appellate court held

21

so. The High Court also accepted the said

findings.

28.Bhoop Singh [(1995) 5 SCC 709], inter

alia, lays down: (SCC p. 715, para 18)

“18. (1) Compromise decree if bona

fide, in the sense that the

compromise is not a device to

obviate payment of stamp duty and

frustrate the law relating to

registration, would not require

registration. In a converse

situation, it would require

registration.

(2) If the compromise decree were

to create for the first

time right, title or interest in

immovable property of the value of

Rs 100 or upwards in favour of any

party to the suit the decree or

order would require registration.”

(emphasis in original)

Thus, indisputably, if the consent terms

create a right for the first time as

contradistinguished from recognition of a

right, registration thereof would be

required, if the value of the property is

Rs 100 and upwards.”

19. In the above judgment, the case of Bhoop Singh

was also considered and distinguished. In a recent

judgment delivered by Two Judge Bench of this Court

of which one of us was also member (Ashok Bhushan,

22

J.), the judgment of Bhoop Singh and Som Dev came to

be considered in Mohammade Yusuf & Ors. Vs. Rajkumar

& Ors., 2020(3) SCALE 146. The question arose in the

above case was also non-registration of a decree on

the basis of which the Court has refused to admit the

decree in evidence in a subsequent suit. This Court

had occasion to interpret Section 17 and had also

considered the Bhoop Singh and Som Dev’s case. In

paragraphs 6, 8, 13 and 14 of the judgment, which are

relevant are as follows:-

“6. A compromise decree passed by a Court

would ordinarily be covered by Section

17(1)(b) but sub-section (2) of Section 17

provides for an exception for any decree

or order of a court except a decree or

order expressed to be made on a compromise

and comprising immovable property other

than that which is the subject-matter of

the suit or proceeding. Thus, by virtue of

sub-section (2)(vi) of Section 17 any

decree or order of a court does not

require registration. In sub-clause (vi)

of sub-section (2), one category is

excepted from sub-clause (vi), i.e., a

decree or order expressed to be made on a

compromise and comprising immovable

property other than that which is the

subject-matter of the suit or proceeding.

Thus, by conjointly reading Section 17(1)

(b) and Section 17(2)(vi), it is clear

that a compromise decree comprising

immovable property other than which is the

23

subject-matter of the suit or proceeding

requires registration, although any decree

or order of a court is exempted from

registration by virtue of Section 17(2)

(vi). A copy of the decree passed in Suit

No. 250-A of 1984 has been brought on

record as Annexure P-2, which indicates

that decree dated 4-10-1985 was passed by

the Court for the property, which was

subject-matter of the suit. Thus, the

exclusionary clause in Section 17(2)(vi)

is not applicable and the compromise

decree dated 4-10-1985 was not required to

be registered on plain reading of Section

17(2)(vi). The High Court referred to the

judgment of this Court in Bhoop

Singh Vs. Ram Singh Major and Others,

(1995) 5 SCC 709, in which case, the

provision of Section 17(2)(vi) of the

Registration Act came for consideration.

This Court in the above case while

considering clause (vi) laid down the

following in paras 16, 17 and 18:

“16. We have to view the reach of

clause (vi), which is an exception

to sub-section (1), bearing all

the aforesaid in mind. We would

think that the exception engrafted

is meant to cover that decree or

order of a court, including a

decree or order expressed to be

made on a compromise, which

declares the pre-existing right

and does not by itself create new

right, title or interest in

praesenti in immovable property of

the value of Rs 100 or upwards.

Any other view would find the

mischief of avoidance of

registration, which requires

24

payment of stamp duty, embedded in

the decree or order.

17. It would, therefore, be the

duty of the court to examine in

each case whether the parties have

pre-existing right to the

immovable property, or whether

under the order or decree of the

court one party having right,

title or interest therein agreed

or suffered to extinguish the same

and created right, title or

interest in praesenti in immovable

property of the value of Rs 100 or

upwards in favour of other party

for the first time, either by

compromise or pretended consent.

If latter be the position, the

document is compulsorily

registrable.

18. The legal position qua clause

(vi) can, on the basis of the

aforesaid discussion, be

summarised as below:

(1) Compromise decree if

bona fide, in the sense

that the compromise is

not a device to obviate

payment of stamp duty and

frustrate the law

relating to registration,

would not require

registration. In a

converse situation, it

would require

registration.

(2) If the compromise

decree were to create for

25

the first time right,

title or interest in

immovable property of the

value of Rs 100 or

upwards in favour of any

party to the suit the

decree or order would

require registration.

(3) If the decree were

not to attract any of the

clauses of sub-section

(1) of Section 17, as was

the position in the

aforesaid Privy Council

and this Court's cases,

it is apparent that the

decree would not require

registration.

(4) If the decree were

not to embody the terms

of compromise, as was the

position in Lahore case,

benefit from the terms of

compromise cannot be

derived, even if a suit

were to be disposed of

because of the compromise

in question.

(5) If the property dealt

with by the decree be not

the “subject-matter of

the suit or proceeding”,

clause (vi) of subsection (2) would not

operate, because of the

amendment of this clause

by Act 21 of 1929, which

has its origin in the

aforesaid decision of the

26

Privy Council, according

to which the original

clause would have been

attracted, even if it

were to encompass

property not litigated.”

8. Following the above judgment of Bhoop

Singh (supra), the High Court held that

since the compromise decree dated 4-10-

1985 did not declare any pre-existing

right of the plaintiff, hence it requires

registration. The High Court relied on the

judgment of Gurdwara Sahib Vs. Gram

Panchayat Village Sirthala and another

(supra) and made following observations in

paras 11, 12 and 13:

“11. In the present case, in the

earlier suit CS No. 250-A/1984 the

petitioner had claimed declaration

of title on the plea of adverse

possession and the compromise

decree was passed in the suit. The

very fact that the suit was based

upon the plea of adverse

possession reflects that the

petitioner had no pre-existing

title in the suit property. Till

the suit was decreed, the

petitioner was a mere encroacher,

at the most denying the title of

lawful owner.

12. The Supreme Court in the

matter of Gurdwara Sahib v. Gram

Panchayat Village

Sirthala reported in (2014) 1 SCC

669 has settled that declaratory

decree based on plea of adverse

possession cannot be claimed and

adverse possession can be used

27

only as shield in defence by the

defendant. It has been held that:

“7. In the Second Appeal,

the relief of ownership

by adverse possession is

again denied holding that

such a suit is not

maintainable. There

cannot be any quarrel to

this extent the judgments

of the courts below are

correct and without any

blemish. Even if the

plaintiff is found to be

in adverse possession, it

cannot seek a declaration

to the effect that such

adverse possession has

matured into ownership.

Only if proceedings filed

against the appellant and

appellant is arrayed as

the defendant that it can

use this adverse

possession as a

shield/defence.”

13. The plea of the petitioner

based upon Section 27 of the

Limitation Act is found to be

devoid of any merit since it

relates to the extinction of the

right of the lawful owner after

expiry of the Limitation Act, but

in view of the judgment of the

Supreme Court in Gurdwara

Sahib (supra), the petitioner

cannot claim himself to be the

owner automatically after the

expiry of the said limitation.”

28

13. This Court in Som Dev v. Rati Ram and

Another, (2006) 10 SCC 788 while

explaining Section 17(2)(vi) and Sections

17(1)(b) and (c) held that all decrees and

orders of the Court including compromise

decree subject to the exception as

referred that the properties that are

outside the subject-matter of the suit do

not require registration. In para 18, this

Court laid down the following:

“18. ………………… But with respect, it

must be pointed out that a decree

or order of a court does not

require registration if it is not

based on a compromise on the

ground that clauses (b) and (c) of

Section 17 of the Registration Act

are attracted. Even a decree on a

compromise does not require

registration if it does not take

in property that is not the

subject-matter of the

suit………………..”

14. In the facts of the present case, the

decree dated 4-10-1985 was with regard to

the property, which was the subject-matter

of the suit, hence not covered by

exclusionary clause of Section 17(2)(vi)

and the present case is covered by the

main exception crafted in Section 17(2)

(vi) i.e. “any decree or order of a

court”. When registration of an instrument

as required by Section 17(1)(b) is

specifically excluded by Section 17(2)(vi)

by providing that nothing in clauses (b)

and (c) of sub-section (1) applies to any

decree or order of the court, we are of

the view that the compromise decree dated

4-10-1985 did not require registration and

the learned Civil Judge as well as the

29

High Court erred in holding otherwise. We,

thus, set aside the order of the Civil

Judge dated 7-1-2015 as well as the

judgment of the High Court dated 13-2-

2017. The compromise decree dated 4-10-

1985 is directed to be exhibited by the

trial court. The appeal is allowed

accordingly.”

20. This Court held that since the decree which was

sought to be exhibited was with regard to the

property which was subject matter of suit, hence, was

not covered by exclusionary clause of Section 17(2)

(vi) and decree did not require registration. The

issue in the present case is squarely covered by the

above judgment. We, thus, conclude that in view of

the fact that the consent decree dated 19.08.1991

relate to the subject matter of the suit, hence it

was not required to be registered under Section 17(2)

(vi) and was covered by exclusionary clause. Thus,

we, answer question No.1 that the consent decree

dated 19.08.1991 was not registrable and Courts below

have rightly held that the decree did not require

registration.

Question No.2

30

21. The submission of the learned counsel for the

appellant is that the consent decree was passed in

favour of nephews of Smt. Jagno, who do not belong to

the family of the plaintiffs-appellants. It is

submitted that plaintiffs-appellants belonged to the

family of Badlu, who was the tenure-holder of the

property. It is submitted that the defendantsrespondents belong to family of Smt. Jagno being

brother’s son of Smt. Jagno, i.e., nephews, hence,

they belong to different family and no family

arrangement could have been entered with them.

22. Before we answer the above issue, it is necessary

to find out what is the concept of family with regard

to which a family settlement could be entered. A

Three-Judge bench of this Court in Ram Charan Das Vs.

Girjanandini Devi and Ors., 1965 (3) SCR 841 had

occasion to consider a family settlement regarding

the immovable property, this Court laid down that

every party taking benefit under a family settlement

must be related to one another in some way and have a

possible claim to the property or a claim or even a

31

semblance of a claim. Following was laid down at

page 851:-

“....................In the first place

once it is held that the transaction being

a family settlement is not an alienation,

it cannot amount to the creation of an

interest. For, as the Privy Council

pointed out in Mst. Hiran Bibi case [AIR

1914 (PC) 44] in a family settlement each

party takes a share in the property by

virtue of the independent title which is

admitted to that extent by the other

parties. It is not necessary, as would

appear from the decision in Rangasami

Gounden v. Nachiaopa Gounden [LR 46 I.A.

72] that every party taking benefit under

a family settlement must necessarily be

shown to have, under the law, a claim to a

share in the property. All that is

necessary is that the parties must be

related to one another in some way and

have a possible claim to the property or a

claim or even a semblance of a claim on

some other ground as, say,

affection..................

23. A Three Judge Bench in the celebrated judgment of

this Court in Kale and Ors. Vs. Deputy Director of

Consolidation and Ors., (1976) 3 SCC 119 had

elaborately considered all contours of the family

settlement. This Court laid down that term “family”

has to be understood in a wider sense so as to

32

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. In paragraphs

9 and 10, this Court laid down following:-

“9. Before dealing with the respective

contentions put forward by the parties, we

would like to discuss in general the

effect and value of family arrangements

entered into between the parties with a

view to resolving disputes once for all.

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

for all in order to buy peace of mind and

bring about complete harmony and goodwill

in the family. The family arrangements are

governed by a special equity peculiar to

themselves and would be enforced if

honestly made. In this connection, Kerr in

his valuable treatise Kerr on Fraud at p.

364 makes the following pertinent

observations regarding the nature of the

family arrangement which may be extracted

thus:

“The principles which apply to

the case of ordinary compromise

between strangers do not equally

apply to the case of compromises

in the nature of family

arrangements. Family arrangements

are governed by a special equity

peculiar to themselves, and will

be enforced if honestly made,

33

although they have not been meant

as a compromise, but have

proceeded from an error of all

parties, originating in mistake or

ignorance of fact as to what their

rights actually are, or of the

points on which their rights

actually depend.”

The object of the arrangement is to

protect the family from long-drawn

litigation or perpetual strifes which mar

the unity and solidarity of the family and

create hatred and bad blood between the

various members of the family. Today when

we are striving to build up an egalitarian

society and are trying for a complete

reconstruction of the society, to maintain

.and uphold the unity and homogeneity of

the family which ultimately results in the

unification of the society and, therefore,

of the entire country, is the prime need

of the hour. 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

34

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. The law in England on this point

is almost the same. In Halsbury's Laws of

England, Vol. 17, Third Edition, at pp.

215-216, the following apt observations

regarding the essentials of the family

settlement and the principles governing

the existence of the same are made:

“A family arrangement is an

agreement between members of the

same family, intended to be

generally and reasonably for the

benefit of the family either by

compromising doubtful or disputed

rights or by preserving the family

property or the peace and security

of the family by avoiding

litigation or by saving its

honour.

The agreement may be implied

from a long course of dealing, but

it is more usual to embody or to

effectuate the agreement in a deed

to which the term “family

arrangement” is applied.

Family arrangements are

governed by principles which are

not applicable to dealings between

35

strangers. The court, when

deciding the rights of parties

under family arrangements or

claims to upset such arrangements,

considers what in the broadest

view of the matter is most for the

interest of families, and has

regard to considerations which, in

dealing with transactions between

persons not members of the same

family, would not be taken into

account. Matters which would be

fatal to the validity of similar

transactions between strangers are

not objections to the binding

effect of family arrangements.”

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;

(4) It is well settled that

registration would be necessary

36

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;

37

(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.”

24. After reviewing the earlier decision, this Court

laid down following in paragraph 19:-

“19. Thus it would appear from a

review of the decisions analysed above

that the courts have taken a very liberal

and broad view of the validity of the

family settlement and have always tried to

uphold it and maintain it. The central

idea in the approach made by the courts is

that if by consent of parties a matter has

been settled, it should not be allowed to

be reopened by the parties to the

agreement on frivolous or untenable

grounds.”

25. In the above case, the Kale, with whom the two

sisters of his mother entered into family settlement

was not a legal heir within meaning of U.P. Tenancy

Act, 1939 but the family settlement entered with Kale

was upheld by this Court. Following was laid down in

paragraph 27:-

“27. As regards the first point it appears

to us to be wholly untenable in law. From

the principles enunciated by us and the

38

case law discussed above, it is absolutely

clear that the word “family” cannot be

construed in a narrow sense so as to

confine the parties to the family

arrangement only to persons who have a

legal title to the property. Even so it

cannot be disputed that appellant Kale

being the grandson of Lachman and

therefore a reversioner at the time when

the talks for compromise took place was

undoubtedly a prospective heir and also a

member of the family. Since Respondents 4

and 5 relinquished their claims in favour

of appellant Kale in respect of Khatas

Nos. 5 and 90 the appellant, according to

the authorities mentioned above, would be

deemed to have antecedent title which was

acknowledged by Respondents 4 and 5. Apart

from this there is one more important

consideration which clearly shows that the

family arrangement was undoubtedly a bona

fide settlement of disputes. Under the

family arrangement as referred to in the

mutation petition the Respondents 4 and 5

were given absolute and permanent rights

in the lands in dispute. In 1955 when the

compromise is alleged to have taken place

the Hindu Succession Act, 1956, was not

passed and Respondents 4 & 5 would have

only a limited interest even if they had

got the entire property which would

ultimately pass to appellant Kale after

their death. Respondents 4 & 5 thought

that it would be a good bargain if by

dividing the properties equally they could

retain part of the properties as absolute

owners. At that time they did not know

that the Hindu Succession Act would be

passed a few months later. Finally the

compromise sought to divide the properties

between the children of Lachman, namely,

his two daughters and his daughter's son

appellant Kale in equal shares and was,

therefore, both fair and equitable. In

39

fact if Respondents 4 & 5 would have got

all the lands the total area of which

would be somewhere about 39 acres they

might have to give away a substantial

portion in view of the ceiling law. We

have, therefore, to see the circumstances

prevailing not after the order of the

Assistant Commissioner was passed on the

mutation petition but at the time when the

parties sat down together to iron out

differences. Having regard to the

circumstances indicated above, we cannot

conceive of a more just and equitable

division of the properties than what

appears to have been done by the family

arrangement. In these circumstances,

therefore, it cannot be said that the

family settlement was not bona fide.

Moreover, Respondents 4 and 5 had at no

stage raised the issue before the revenue

courts or even before the High Court that

the settlement was not bona fide. The High

Court as also Respondent 1 have both

proceeded on the footing that the

compromise was against the statutory

provisions of law or that it was not

registered although it should have been

registered under the Registration Act.”

26. Reverting to the facts of the present case,

admittedly, the defendants-respondents were nephews,

i.e., brother’s sons of Smt. Jagno. We need to look

into the Hindu Succession Act, 1956, Section 15,

which deals with the general rules of succession in

the case of female Hindus for properties inherited by

female Hindus, which are devolved in according to

40

Sections 15 and 16. Section 15(1), which is relevant

is as follows:-

“15. General rules of succession in the

case of female Hindus.—(1)The property of

a female Hindu dying intestate shall

devolve according to the rules set out in

section 16,—

(a) firstly, upon the sons and daughters

(including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the

husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the

father; and

(e) lastly, upon the heirs of the mother.”

27. A perusal of Section 15(1)(d) indicates that

heirs of the father are covered in the heirs, who

could succeed. When heirs of father of a female are

included as person who can possibly succeed, it

cannot be held that they are strangers and not the

members of the family qua the female.

28. In the present case, Smt. Jagno, who as a widow

of Sher Singh, who had died in 1953, had succeeded to

half share in the agricultural land and she was the

absolute owner when she entered into settlement. We,

41

thus, do not find any merit in the submission of

learned counsel for the appellants that the

defendants-respondents were strangers to the family.

29. In view of our discussions on above two

questions, we do not find any merit in this appeal.

All the Courts have rightly dismissed the suit of the

plaintiffs-appellants, which need no interference.

This appeal is dismissed. Parties shall bear their

own costs.

......................J.

( ASHOK BHUSHAN )

......................J.

 ( R. SUBHASH REDDY )

New Delhi,

February 22, 2021.

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