M/S. TARAKNATH AND ANR. versus SUSHIL CHANDRA DEY BY LRS. AND ORS.

Citation: [1996] SUPP. 1 S.C.R. 97 · Decided: 08-04-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

MIS. TARAKNATH AND ANR. 
v. 
SUSHIL CHANDRA DEY BY LRS. AND ORS. 
APRIL 8, 1996 
[K. RAMASWAMY AND G.B. PATIANATK, JJ.] 
Mohammedan Law : 
_ Gift-Relinquishment of right by sisters in the property left by their 
fathei in favour of their brothers-Held, it would be open to sisters to 
relinquish their 1ight by way of gift, even oral, which is valid in personal 
law-Since tenant has been in occupation, it would be constntctive delivery 
of possession--Delivery of physical possession to brothers not warranted. 
Family settlement : 
Property left by Mohammedan father-Held, it would be open to. 
brothers to resolve the prospective dispute by way of family settlement.-lt is 
not necessary that all brothers be presellt at the settlement-One of the 
brothers living abroad can auth01ise other brothers to settle the dispute. 
A 
B 
c 
D 
Registration Act, 1908 
E 
S.17-Registered sale deed-Effect of--One of the brothers selling 
property allotted to him under family arrangement and govemed by Moham-
medan law through registered sale deed-Suit by vendee for declaration of 
title and ejectmenH!eld, sale deed is registered conveyance for valid con-
sideration-Vendee by operation of s.17 gets valid title to property-Pre-exist-
F 
ing light, title and interest in property by ve11dor a11d his brothers stood 
extinguished by operation of law. 
CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 7521 of 
1996. 
From the Judgment and Order dated 24.7.95 of the Assam High 
Court in L.P.A. No 10 of 1993. 
Sunil K. Jain and Jitender K. Bhatia for the Appellants. 
G 
P.K. Goswami, Rajiv Mehta, C.K. Sasi and Kailish Vasdev for the H 
97 
98 
SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R. 
A 
Respondents. 
B 
The following Order of the Court was delivered : 
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. Mi!hibullah. After his 
demise, the property passed on to his widow, five daughters and five sons. 
C 
His widow died in 1971. Subsequently, it would appeat 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 
D 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 
E would operate as a gift by the sisters and delivery of possession is a 
pre-condition. Since possession was not delivered IQ 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 
F 
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 appear-
G ing for the respondents, that from the 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 
H contended that the sisters having not delivered possession of the property 
• 
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TARAKNATH v. S.C. DEY 
99 
to the brothers under the personal law, the gift is not complete. Therefore, A 
the appellant cannot get any valid title. Since the respondent had not 
acknowledged the title of the appellants, there is no estoppel under section 
116 of the Indian Evidence Act. Since the appellants get derived no title, 
it would be open to the respondent to assailthe validi

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