HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW SECOND APPEAL No. - 105 of 2011 …..Appellant(s) Versus …..Respondents(s) Counsel for Appellant(s) : Farooq Ahmad, Afzal Hasan, Amol Kumar, Farooqahmad Counsel for Respondent(s) : Sulabh Kr. Srivastava, Afzal Hasan, Ratnesh Chandra with SECOND APPEAL No. - 106 of 2011 Ram Niwas Patel S/O Faujdar Chaudhary …..Appellant(s) Versus Bhandari Lal Chaudhary S/O Faujdar Chaudhary And Anr. …..Respondents(s) Counsel for Petitioners(s) : Farooq Ahmad, Afzal Hasan, Amol Kumar, Farooqahmad Counsel for Respondent(s) : Sulabh Kr. Srivastava, Ratnesh Chandra RESERVED Court No. 7- HON'BLE JASPREET SINGH, J. Ref:- C.M.A. No. 26 of 2025 1. The instant two second appeals were dismissed for want of prosecution on 25.07.2025. The learned counsel for the appellants have Ram Niwas Patel S/O Faujdar Chaudhary Bhandari Lal Chaudhary S/O Faujdar Chaudhary And Anr. 2 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 moved I.A. No. 26 of 2025 in Second Appeal No. 105 of 2011 and I.A. No. 23 of 2025 in the connected appeal no. 106 of 2011. 2. The Court has considered the aforesaid applications and finds that the applications have been moved within time. The cause shown is sufficient and even otherwise the learned counsel for the respondents does not oppose the application seriously rather the emphasis is that the instant second appeals are of the year 2011 and have yet not been admitted, consequently, they may be heard. 3. In view of the aforesaid, two applications in the two respective second appeals are allowed. The order dated 25.07.2025 is recalled. Both the appeals are restored to its original number Order on merit. 4. The learned counsel for the appellant Sri Amol Kumar has filed a paper-book which is taken on record. 5. These are two second appeals filed by the plaintiff whereby the two suits filed by the appellant bearing R.S. No. 10 of 2000 seeking a decree of cancellation of a sale deed was dismissed and the other suit filed by the appellant bearing No. 211 of 1999 seeking a decree of permanent injunction has also been dismissed. Thereafter, the plaintiffs preferred two regular Civil Appeals under Section 96 C.P.C. and both the appeals bearing No. 21 of 2010 and 14 of 2010 were also dismissed. The second appeal no. 105 of 2011 relates to the Regular Suit No. 10 of 2011 whereby the suit for cancellation of the sale deed was dismissed whereas the connected second appeal bearing No. 106 of 2011 relates to the suit bearing No. 211 of 1999 whereby the suit for permanent injunction was dismissed. 6. Since the issues involved in both the appeals are common, accordingly both the appeals have been taken up together for admission. 7. For the sake of convenience, the Court shall be referring to the parties as they were originally impleaded in the two suits. Learned counsel for 3 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 the appellant has given a brief background of facts which are relevant for proper appreciation of the controversy involved in the two appeals, which are being noticed hereinafter:- 8. The plaintiff Ram Niwas Patel and the defendant no. 1 Bhandari Lal were real brothers and sons of Fauzdar Chaudhary. 9. It was the case of the plaintiff that the disputed property in question belonged to Sri Fauzdar Chaudhary who entered into a family settlement with his three sons namely Ram Niwas Patel (Plaintiffs), Bhandari Lal, the defendant no. 1 and Sri Narendra Kumar Chaudhary. 10. It was stated that in furtherance of the said family settlement, the disputed property came in the share of the plaintiff and since the defendant no.1 namely Bhandari Lal sought to create third party right, hence, Regular Suit No. 211 of 1999 was instituted before the Civil Judge, Senior Division, Balrampur wherein it was prayed that the defendant Bhandari Lal be restrained from alienating the property in question. 11. It was further pointed out that the Trial Court by means of its order dated 14.10.1999 had directed the parties to maintain status-quo, however, despite knowledge of the said order, the defendant Bhandari Lal violated the order passed by the court and executed a registered sale deed dated 15.10.1999 in favour of Smt. Poonam Gulati. 12. It is in the aforesaid backdrop that the plaintiff having come to know about execution of the sale deed in favour of Smt. Poonam Gulati, he instituted a fresh suit bearing R.S. No. 10 of 2000 before the Civil Judge, Senior Division, Balrampur seeking cancellation of the sale deed dated 15.10.1999 wherein Smt. Poonam Gulati was impleaded as defendant no. 2 while Bhandari Lal was impleaded as defendant no. 1. 13. The premise of the suit for cancellation was that the property in question was purchased in the year 1967 by Fauzdar Chaudhary, the father of the plaintiff and the defendant no. 1 and since at that time, the 4 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 defendant no. 1 was merely 12 years of age and did not have any independent source of income, hence, it was an ancestral property and for the said reason, it was made part of a family settlement in terms whereof the defendant Bhandari Lal could not have alienated the same contrary to the terms of the family settlement. 14. It was also urged that the said family settlement had been duly acted upon and the plaintiff had exclusive rights. He had already applied for sanction of a map and in furtherance thereto he had also started constructing the foundation and the constructions had come up to the plinth level, however, the defendant no. 1 at this stage started interfering with the property and despite the injunction order dated 14.10.1999, he executed a sale deed in favour of Smt. Poonam Gulati on 15.10.1999 which was not only in violation of the order passed by the court but also without authority, hence, the deed was to be cancelled. 15. The said suit came to be contested by the defendant no. 1 who filed his written statement and he had taken the defence that the disputed property in question belonged to Sri Narayan Shukla @ Jaideo. He sold the said property to Sri Virendra Kumar Chaudhary and Bhandari Lal Chaudhary by means of registered sale deed 30th October, 1967. 16. It was also urged that both Virendra Kumar Chaudhary and Sri Bhandari Lal Chaudhary had jointly got a map approved from the Nagar Palika Parishad, Balrampur on 24.07.1990 and thereafter Sri Virendra Kumar Chaudhary on his portion raised construction where he is running his shop under the name and Style of Chaudhary Auto Sales. 17. It was further urged, that the defendant, as far as his portion was concerned had laid the foundation up to the plinth level but he could not raise constructions as he was in need of money for the education of his children and for the said reason, he sold his share in the property to Smt. Poonam Gulati by means of sale deed dated 15.10.1999 and as such the sale deed cannot be cancelled. 5 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 18. It was also pleaded that the defendant no. 1 was not aware of the alleged injunction order dated 14.10.1999 passed in R.S. No. 211 of 1999, apart from the fact that there was no valid family settlement rather the alleged document as referred to by the plaintiff is a fraudulent document created only to defeat the rights apart from the fact that it was hit by virtue of Section 17 of the Indian Registration Act. The said family settlement could not be taken note of and the suit was liable to be dismissed. 19. It has been pointed out that the Trial Court in the suit seeking cancellation of the sale deed framed 6 issues, however, the important issues of fact was issue nos. (i) as to whether the plaintiff was entitled to get the sale deed cancelled. 20. As far as the suit bearing No. 211 of 1999 is concerned, upon contest, the Trial Court framed as many as 9 issues, however, the important issues in the said suit was issues nos. (i) and (v), to the effect as to whether the plaintiff i.e. Ram Niwas Patel was the owner in possession of the disputed property and the issue no. (v) was whether the family settlement dated 17.09.1978 was a fictitious document. 21. Upon due contest, the Trial Court by means of judgment and decree dated 20.04.2010 passed in R.S. No. 211 of 1999 dismissed the suit holding that the family settlement was not in accordance with law and no rights could accrue to the plaintiff. For the same reason, the Regular Suit No. 10 of 2000 was also dismissed by the Trial Court vide judgment and decree dated 20.04.2010. 22. The plaintiff being aggrieved preferred two regular civil appeals. Regular Civil Appeal No. 21 of 2010 arose from R.S. No. 211 of 1999 which was a suit relating to injunction whereas regular civil appeal no. 14 of 2010 arose from regular suit no. 10 of 2000 relating to the suit for cancellation of the sale deed. 23. The First Appellate Court also after hearing both the parties by means of judgment and decree dated 03.12.2010 dismissed both the 6 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 appeals and it is in this backdrop that the two second appeals have been preferred before this Court. 24. Sri Amol Kumar, learned counsel for the appellant in both the appeals has primarily urged that at the time of purchase of the said property i.e. on 30th October, 1967, Bhandari Lal was only 12 years of age and did not have any independent source of income as such the property in question belonged to the father of the plaintiff and the defendant, namely Fauzdar Chaudhary. In this view, Sri Fauzdar Chaudhary along with his three sons entered into a family settlement in terms whereof not only the instant property but even the other properties of Fauzdar Chaudhary which were agricultural in nature was made the subject matter of the family settlement dated 17.09.1998 which was duly signed by Fauzdar Chaudhary as well as his three sons including the plaintiff and the defendant no. 1. The said family settlement was duly acted upon and in light thereof the defendant no. 1 did not have the right to sell the property, apart from the fact that in terms of the family settlement, the property vested with the plaintiff and for the said reason, the defendant no. 1 did not have the authority to alienate the same, accordingly, the Trial Court misconstrued the factual status of the family settlement and erred in dismissing the suit on the ground that the family settlement was not registered. 25. It is urged that a family settlement did not require compulsory registration and in the given facts and circumstances where the family settlement was in the nature of a memorandum, the division having been acted upon, did not require any registration, accordingly, the suit has been incorrectly dismissed and the second appeals are fit to be admitted to be heard on merits. 26. It has also been urged that the judgment passed by the First Appellate Court is not in consonance with the Order XLI Rule 31 C.P.C and on this ground alone, the appeal deserves to be admitted. 7 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 27. The learned counsel for the appellants has relied upon a decision of the Apex Court in Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706 and on a decision of this Court in Bhagirath v. Ram Chandra, 2019 SCC OnLine All 4854 . 28. Sri Ratnesh Chandra, learned counsel appearing for the respondents has submitted that first and foremost the said family settlement was fictitious, however, even assuming if the said document was not fictitious but the facts still remain that it was not a memorandum of family settlement rather it was a document by which rights were being created for the first time and in such circumstances, the said document required registration in terms of Section 17 of the Registration Act, 1908. The learned counsel for the respondents has relied upon a decision of the Apex Court in Nafees Ahmad v. Soinuddin, 2025 SCC OnLine SC 826. 29. It was further urged that no evidence was led by the plaintiff to establish that the family settlement had been acted upon, hence, the said document was a waste piece of paper and could not be taken into consideration in light of Section 49 of the Indian Registration Act, hence, the findings recorded by the two courts on this issue, being concurrent findings of fact cannot be said to be perverse, hence, the instant two second appeals are nothing but an abuse of the process of law and as such deserves to be dismissed. 30. The Court has heard the learned counsel for the parties and also perused the material available on record. 31. From the submissions advanced by both the parties, the only issue primarily involved in the instant appeal is regarding the findings returned by the two courts regarding the family settlement being hit by Section 17 of the Indian Registration Act. 32. In this context, if the material on record, including the paper book submitted by learned counsel for the appellant, is seen, it would indicate 8 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 that a family settlement was allegedly entered between the parties dated 17.09.1998 which related to a house as well as several agricultural plots. 33. As per the family settlement, the disputed property in questions was given to Ram Niwas Patel, the plaintiff of the suit and referred to as the third party of the third part in the family settlement. 34. At the outset, it will be relevant to notice the law relating to family settlements which has been laid down by the Apex Court in Ravindra Kaur Garewal (supra). The Apex Court has held that the issue of compulsory registration of a family settlement would depend on whether the document in question creates or transfers for the first time and a right in the immovable property is being created or whether it is a memorandum which only records a pre-existing rights in immovable property or arrangements made or terms already settled between the parties in respect of the immovable properties. 35. This is the distinguishing test and if the said principle is applied in the instant case, it would reveal that admittedly, the properties whether it related to agricultural or house property, which is the subject matter of the instant suit, both were created by Sri Fauzdar Chaudhary. 36. It is also an admitted case that the properties are not ancestral rather they were self created by Sri Fauzdar Chaudhary. As far as the instant two appeals are concerned, it is confined only to house properties which had been purchased by means of a sale deed dated 30th October, 1967. 37. Apparently, since the disputed property was purchased in the year 1967 by Sri Fauzdar Chaudhary, though, in the name of his one son namely Bhandari Lal along with another person Sri Virendra Chaudhary, the fact remains that the property was self-acquired. 38. Now, if the alleged family settlement is seen which was filed before the Trial Court along with the document list bearing Paper No.-Ga-6 dated 18.08.2000, it would indicate that merely a photocopy of the said family settlement was placed on record. However, it will be relevant to 9 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 notice that the original family settlement was filed by the plaintiff along with his document list bearing Paper No. Ga-8/1 in the earlier suit bearing R.S. No. 211 of 1999. 39. From a bare perusal of the said document which has also been brought on record in the paper-book filed by learned counsel for the appellant, it would indicate that it was entered between Sri Fauzdar Chaudhary and his three sons. The said document was notarized and from the bare perusal of the contents, it would reveal that rights were sought to be created for the first time in favour of the sons of Sri Fauzdar Chaudhary by virtue of the said document. 40. It is admitted that the property was created by Sri Fauzdar Chaudhary and as already noticed, it was not an ancestral property which could create any pre-existing right in favour of the sons of Sri Fauzdar Chaudhary. 41. This being the situation, the alleged family settlement could not be treated to be a family settlement between the father and his sons in respect of the property acquired by the father himself. In case if any settlement was arrived at between the father and his three sons (as in the present case relating to the property created by the father), it would amount to a division and transfer of the properties which took place on that given date when the said document was executed. It would amount to transferring certain shares to the respective parties by the father in favour of his sons. 42. Since the said document was creating rights in favour of the sons for the first time, apparently provisions of Section 17 of the Indian Registration Act was squarely attracted. Even otherwise if the said document is treated to be a family settlement, even then it would reveal that the rights were being created for the first time as none of the sons had any pre-existing right. It could not be treated as a memorandum of certain terms arrived at in a family settlement which was recorded for the purpose of record and could be exempt from registration. Thus, the 10 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 decision of Ravindra Kaur Garewal (supra) cited by learned counsel for the appellant does not come to the aid of the appellant rather the dictum of the said case is against the submissions advanced by learned counsel for the appellant. 43. Be that as it may, this Court in Ram Milan v. Kripa Shanker and Others; MANU/UP/2728/2023 wherein after taking note of the decisions of the Apex Court, this Court noticed as under:- “26. The other question which was referred to the Apex Court regarding the family settlement, the Apex Court after relying upon the celebrated decision of the Apex Court in Kale Vs. DDC (supra) held that the propositions laid in Kale Vs. DDC (supra) was still binding and thus the Court is required to take a broad approach while dealing with family settlements, however, what needs to be seen in the said case that the issue was whether the parties could be treated as a family in order to enter into a family settlement and it is in the aforesaid context that the said decision was rendered. 27. In Korukonda (supra), the Apex Court noticing the earlier decisions on the issue of family settlement and requirement of its registration held that in case a document is in the nature of memorandum evidencing a family settlement already entered into and having been prepared as record so that there are no confusion in future, it need not be stand or register, however, where there has been a partition then there may be no scope for invoking the concept of antecedent rights as such then such a document would require registration. ------*****------*****------*****----***** "33. First and foremost, it will be relevant to notice what is a family settlement and how the same is to be construed and for the aforesaid purpose, the decision of the Apex Court in Kale Vs. DDC (supra) would be helpful and the relevant paragraphs of the said decision are being noticed hereinafter for ready reference:- 9??..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, although they have not been meant as a compromise, but have proceeded from 11 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 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 succession is so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. 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 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." 12 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 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 only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." 44. In light of the law laid down by the Apex Court in Ravindra Kaur Garewal (supra) and noticed and followed by this Court in Ram Milan (supra), apparently, the first submission of learned counsel for the appellant does not find favour and this Court is of the clear view that the findings returned by the two courts holding that the family settlement required registration cannot be said to be bad in the eyes of law. 45. In so far as the second submission of learned counsel for the petitioner is that decision of the First Appellate Court fell foul of the provisions of the Order XLI Rule 31 C.P.C., this Court finds that even the provisions of Order XLI Rule 31 C.P.C. does not come to the aid of the appellant, inasmuch as, the First Appellate Court has clearly noticed 13 SECOND APPEAL No. - 105 of 2011 with SECOND APPEAL No. - 106 of 2011 the arguments of the respective parties and identified the issues before it and has given its findings. 46. The learned counsel for the appellant could not point out any submissions which was raised by the appellant and not noticed or decided by the First Appellate Court. Mere non-framing of the points of determination, simplicitor without consequent failure of justice cannot be a ground for setting aside the judgment of the First Appellate Court. 47. This aspect has been clearly noticed by this Court Dalla v. Nanhu 2019 (1) ADJ 246 (LB) and the decision of the Apex Court in Nafees Ahmad (Supra) also reiterates the same proposition as noticed in paragraph 7, 12 and 14 of the said judgment. 48. In view thereof, the decision cited by learned counsel for the appellant in Sri Bhagirath (Supra) does not come to the aid of the appellant, inasmuch as, the coordinate Bench of this Court found that the First Appellate Court had not identified the points for determination nor considered the submissions and merely in a cursory manner has upheld the findings of the Trial Court, which is not the case here. Hence, the said decision does not help the appellants. 49. Thus, for all the aforesaid reasons, this Court does not find that there is any merit in both the second appeals and no substantial question of law arises, accordingly, the two appeals are dismissed at the admission stage and the judgment and decree dated 20.04.2010 passed in Regular Suits no. 211 of 1999 and 10 of 2000 and order dated 03.12.2010 passed in appeals no. 21 of 2010 and 14 of 2010 are affirmed. There shall be no order as to costs. (Jaspreet Singh, J.) September 19, 2025 Asheesh Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench