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PETITIONER: M/S. TARAKNATH & ANR.

       Vs.

RESPONDENT: SUSHIL CHANDRA DEY BY LRS.& ORS.

DATE OF JUDGMENT:       08/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (4) 697        JT 1996 (5)   272  1996 SCALE  (4)332

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard learned  counsel  on  both  sides.  This appeal by  special leave  arises from the judgment and order dated 24.7.1995 made in L.P.A. No.10/93 of the High Court of Guwahati.  The   admitted  facts   are  that   the  property originally belonged  to one  Syed Md.  Mahibullah After  his demise, the  property passed  on to his widow five daughters and five  sons.   His widow  died in  1971. Subsequently, it would appear that the sisters have relinquished their rights in the  properties in  favour of  their five brothers. It is the case  of the appellant that at a family settlement among the brothers  on December  6, 1977,  the suit  property  was allotted to  Syed Baitul Alam who had sold the said property under registered  sale deed  to the  appellant on  August 6, 1979. He  laid the suit for declaration of his title and for ejectment of  the respondent.  The trial  Court decreed  the suit. On  first appeal,  the learned  single Judge confirmed the decree.  The Division Bench in the above L.P.A. reversed the decree  and dismissed  the suit. The Division Bench came to the  conclusion that relinquishment of the property would operate as  a gift by the sisters and delivery of possession is a  pre-condition. Since  possession was  not delivered to the brothers,  the gift  by the sisters is not valid in law. As regards  the family  settlement between the brothers, the Division Bench  has held  that since  there  is  no  dispute pending or  prospective, between  the brothers,  the  family settlement  is   not  valid   in  law  and,  therefore,  the appellants cannot  derive any title from one of the brothers to whom  the property  had fallen  to his  share through the said settlement. Consequently, the sale to the appellants on August 6,  1979 is not also valid. On that premise, the suit came to be dismissed.      It is  contended by  Mr. P.K.  Goswami, learned  Senior counsel  appearing   for  the  respondents,  that  from  the

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evidence it  is clear even assuming that the dispute between the brothers  has not  been properly  existing, since one of the brothers  who is  admittedly staying  in London  did not participate to settle the dispute and even in the plaint his address was  of Guwahati  while he was staying in London, it is not a bona fide settlement. It is also contended that the sisters   having not delivered possession of the property to the brothers  under  the  personal  law,  the  gift  is  not complete. Therefore,  the appellant  cannot  get  any  valid title. Since  the respondent have not acknowledged the title of the appellants, there is no estoppel under section 116 of the Indian  Evidence Act. Since the appellant get derived no title it  would be  open to  the respondent  to  assail  the validity of  the sale.  The High Court, therefore, was right in dismissing the suit.      Having regard  to the  contention the  question arises: whether the  High Court  was correct in law in upsetting the judgment of  the learned single Judge and the trial Court in dismissing the  suit? It  is true  that there  is no  actual delivery of the possession pursuant to the gift said to have been made  by five  sisters in  favour or five brothers. The property admittedly  belonged to  father Syed Md. Mahibullah who died  in 1954.  Thereby all  the  brothers  and  sisters become owners  to  the  extent  of  their  shares  they  had succeeded to  the property.  Thus all of them are co-owners. It would be open to the sisters to relinquish their right by way of  gift, even  oral, which  is valid  in personal  law. Since the  tenant  has  been  in  occupation,  it  would  be constructive delivery  of the  possession. Delivery  of  the physical possession  to the  brothers, in the circumstances, is not  warranted.   As regards the family settlement of the brothers, it  would open  to the  brothers  to  resolve  the prospective  dispute   by  way  of  family  settlement.  The brothers having  agreed for the settlement, though they have been impleaded  as party-respondents  to the suit, they have not challenged the family settlement nor have they contested the  validity   thereof.  It   is  not   necessary,  in  the circumstances, that  all the  brothers  be  present  at  the settlement.  One  of  the  brothers  living  in  London  can authorize his  other brothers  to settle  the dispute and he was a  consenting party to it. Under those circumstances, we are of the view that the brothers obviously had a settlement pursuant to  which the demised property has been allotted to the share  of Syed  Baitul Alam who had sold the property to the appellant  under the sale deed dated August 6, 1979. The sale   deed   is   a   registered   conveyance   for   valid consideration. Under  those circumstances,  by operation  of section 17 of the Registration Act, the appellant gets valid title to  the property.  The pre-existing  right, title  and interest in  the  property  of  Syed  Baitul  Alam  and  his brothers  stood   extinguished  by  operation  of  the  law. Thereby, the  appellants get  valid title  to the  property. Since the  respondent was continuing as a tenant, obviously, he is  bound by  the title  since the suit has been laid for eviction of  the respondent  and  decree  for  eviction  was rightly granted.      The appeal  is accordingly  allowed. The  order of  the Division Bench  is set  aside and  the order  of the learned single Judge  stands restored. Six months time from today is granted to  the respondents to vacate the premises on filing usual undertaking within four weeks from today. No costs.