# Amar Nath Kapoor & Ors v. Krishna Gopal Kapoor & Ors - **Citation:** (2016) 5 ILRA 159 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-25 - **Bench:** Sudhir Agarwal, Rakesh Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-nath-kapoor-ors-v-krishna-gopal-kapoor-ors-43790 - **Pages:** 28 ## Text _Characters 0–39,880 of 81,995. This is a partial read: ask again with offset=39880 for what follows._ 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 159 Whether relief can be granted beyond pleadings and relief prayed:- 25. There is yet another ground on which these applications deserve to be rejected. As already noted in preceding paragraphs of this judgment, whatever relief was sought by the appellant was granted by this court by judgment dated 29.03.2008. The relief attempted to be sought by means of the above noted three applications namely modification, recall and review applications, cannot be even entertained in the absence of any manifest error in the order dated 29.03.2008, on the settled legal proposition that a relief not founded on the pleadings, can not be granted. This view is well supported by the judgments of Hon'ble Supreme Court in State of Orrisa Vs. Mamta Mohanty, 2011 (3) SCC 436 (para-55), Trojan and Co. Vs. Nagappa Chettiar, AIR 1953 SC 235, Ishwar Dutt Vs. Collector (LA), 2005 (7) SCC 190 and State of Maharashtra Vs. Hindustan Construction Co. Ltd., 2010 (4) SCC 518. Applicability of amended Section 23(2):- 26. In the case of Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc. (1989) 2 SCC 754 (paras-32, 33 and 34), Constitution Bench of Hon'ble Supreme Court considered the provisions of Section 23 and Section 11 of the Act and Section 30(2) of the Amending Act, 1984 and held that the enhanced solatium of 30% shall, by virtue of Section 30(2) shall apply only to the award by the Collector or by the court made between 30.04.1982 and 24.09.1984. In the present set of facts admittedly the award by the S.L.A.O. was made on 08.03.1977 and by the court on 27.02.1982 which is prior to the cut off dates. Thus even on merit the judgment dated 29.03.2008 passed by this court in the present appeal awarding solatium @ 15% does not suffer from any error. 27. In view of the above discussions, all the above noted applications filed by the applicant/ appellant, are dismissed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.05.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE RAKESH SRIVASTAVA, J. First Appeal No.- 629 Of 2005 & First Appeal No.- 177 Of 2006 Amar Nath Kapoor & Ors. ...Appellants Versus Krishna Gopal Kapoor & Ors. ...Respondents 160 INDIAN LAW REPORTS ALLAHABAD SERIES Councel For Appellants: S.D. Singh, A.K. Singh, Ajay Kumar Singh, R.S. Prasad, Ravi Kant, R.R. Mansingh Councel For Respondents: B.D. Shukla, Atul Kumar Srivastava, K.M. Asthana, Radhey Shyam, Rajesh Trivedi Held:- Award dated 27.05.1979 is admissible; suit for specific performance maintainable; compound interest payable on last installment. Case Laws Discussed:- Kale vs. Deputy Director of Consolidation (1976) Lachhman Dass vs. Ram Lal (1989) Sardar Singh vs. Krishna Devi (1995) Bhoop Singh vs. Ram Singh Major (1996) Kashinathsa vs. Narsingsa (1961) (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Both these appeals are connected involving common questions of facts and law and therefore have been heard together and are being decided by this common judgment. 2. First Appeal No. 629 of 2005 was filed before this Court under Section 96 of Code of Civil Procedure (hereinafter to referred as "CPC") and First Appeal No. 177 of 2006 has been registered after its transfer from the Court of VIIth Additional District Judge, Kanpur Nagar pursuant to this Court's order dated 21.11.2005. 3. First Appeal No. 629 of 2005 (hereinafter to referred as "Appeal-II") is a plaintiff's appeal arisen from the same judgment dated 30th of May, 2005 and decree dated 05.07.2005 passed by Sri B.P. Saxena, Additional Chief Metropolitan Magistrate - IV/Additional Civil Judge (Senior Division), Kanpur Nagar in Original Suit No. 1300 of 1994 (hereinafter to referred as "Suit-2") whereby suit has been dismissed. 4. First Appeal No. 177 of 2006 (hereinafter to referred as "Appeal-I") has also arisen from the same judgment dated 30th of May, 2005 and decree dated 05.07.2005 passed by the same Judge namely Sri B.P. Saxena, Additional Chief Metropolitan Magistrate - IV/Additional Civil Judge (Senior Division), Kanpur Nagar in Original Suit No. 714 of 1994 (hereinafter to referred as "Suit1") decreeing aforesaid suit and directing defendant appellants to execute sale deed of their share in favour of plaintiff-respondents in terms of award dated 27.05.1979 after receiving remaining consideration as stated in the award, along with ten per cent interest from the date of award, till execution of sale deed. This is, therefore, defendant's appeal. 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 161 5. Plaintiffs and defendants belong to a family of common ancestor, late Chhutkan Lal Kapoor, who had two sons namely late Sidha Gopal Kapoor and Manoo Lal Kapoor. Amar Nath Kapoor is son of late Manoo Lal Kapoor and Krishna Gopal Kapoor is son of Sidha Gopal Kapoor. To understand the relationship, family tree is given as under:- Chhutkan Lal Kapoor Chhutkan Lal Kapoor Siddha Gopal Kapoor Mannu Lal Kapoor (Smt. Shyamo Bibi -wife) Krishna Gopal Kapoor (Smt. Usha Rani - wife) Amar Nath Kapoor (Smt. Indrani Kapoor - wife) Naveen Kapoor Sharad Kapoor Praveen Kapoor Om Nath Kapoor Suit - 1 6. Krishna Gopal Kapoor, his wife Smt. Usha Rani Kapoor and three sons, Navin Kapoor, Sharad Kapoor and Praveen Kapoor instituted Suit-1 in the Court of Second Civil Judge, Kanpur impleading Shri Amar Nath Kapoor, his mother Smt. Shyamo Bibi, wife Smt. Indrani Kapoor and son Om Nath Kapoor as defendants. Suit was instituted for specific performance directing defendants to execute sale deed in favour of plaintiffs in respect to their half share in House No. 7/24, Tilak Nagar, Kanpur, boundaries whereof were mentioned at the bottom of plaint dated 22nd April, 1983. 7. The plaint case set up is that defendants constitute Hindu Undivided Family (hereinafterto referred as "HUF") of which defendant -1, Amar Nath Kapoor was Karta and manager. The defendants along with Sri Sidha Gopal Kapoor purchased House No. 7/24, Tilak Nagar, Kanpur from one Rai Sahab Lala Dhanpal Chandra, son of Lala Karorimal (Rtd. Principal from Government Technical Institute, Lucknow) who, then, was residing at Sita Niwas, Char Bagh, Lucknow, through sale deed dated 14th of August, 1946, registered in the office of Sub Registrar on 26th of August, 1946. For the aforesaid purchase, requisite funds were made available from HUF funds. 8. Since the date of purchase, defendants and Sri Siddha Gopal Kapoor and his family members are and were in joint possession and ownership of the said property. Defendants being in need of money for expansion of their business, decided to sell their undivided half share in the 162 INDIAN LAW REPORTS ALLAHABAD SERIES disputed property, hence, entered into a "contract for sale" dated 07.02.1979 with one Jagdish Prasad Gupta, son of Gopi Kishan Gupta, and Urmila Devi wife of Vishwa Nath Gupta, resident of 25/79, Birhana Road, Kanpur. Defendants agreed to transfer and convey their half undivided share in disputed property to prospective vendees for a good and valuable consideration. Contract for sale dated 12.02.1979 was registered in the office of Sub Registrar, Kanpur on 27.03.1979. Subsequently, prospective vendees backed out for the reason that vendors could not take steps for division of disputed property by metes and bounds. A cancellation deed dated 24.09.1979 was executed and registered in the office of Sub Registrar, Kanpur. 9. Later on, a dispute of share between appellants and family of Siddha Gopal Kapoor was referred for arbitration and mediation of one M.M. Thapar wherein on 27.05.1979 it was decided before Mediator that defendants shall transfer and convey their undivided half share in the disputed property to plaintiffs. The sale consideration agreed between the parties was Rs.4,16,000/-, out of which Rs.3, 24, 875/- was paid in the following manner:- A. Rs. 1,00,000/- by Cheque No. 083783 Dt. 13.06.1979drawn on OBC Ltd., The Mall, Kanpur by Sri Sidh Co. in favour of Amar Nath Kapoor. B. Rs.1,00,000/- through entries passed in the name of Amar Nath Kapoor HUF in the account book of M/s. Beni Prasad & Co., Amritsar on 15.06.1979. C. Rs.1,24,875/- through entries passed in the name of Amar Nath Kapoor in the account book of M/s. Beni Prasad & Co., Amritsar on 30.06.1980 including interest of Rs.16,875/-. 10. Defendants handed over possession of half portion of disputed premises which was in their possession to plaintiffs, by vacating the same and handing over keys thereof on 15.06.1979. Defendant-1, Amar Nath Kapoor, who is Karta and manager of HUF addressed a letter Dt.23.04.1980 to the plaintiffs acknowledging and confirming receipt of Rs.1,00,000/- through Cheque No. 083783 Dt.13.06.1979 as first instalment of cash down payment towards sale consideration of aforesaid half share in the disputed property. It was also acknowledged that a letter of authority dated 21.04.1980 enabling defendant-1 to get a sum of Rs.1,00,000/- transferred to his credit from M/s. Beni Prasad & Co., Amritsar was issued and the said amount was second installment towards sale consideration. It was also agreed that whenever plaintiffs would require for transfer of existing electric connection in their name appropriate documents shall be signed by defendants. 11. Defendants applied on 21st December, 1981 before competent authority under Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter to referred as 'Act 1976') for permission. Their application was received in the office of competent authority on 24th December, 1981, but thereafter, it was not pursued by defendants. 12. On 2nd February, 1981 defendant-1 as Karta and manager of HUF, applied to Income Tax Officer, Central Circle-4, Kanpur, for certificate under Section 230 A (1) of Income Tax Act, 1961 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 163 (hereinafter to referred as "Act, 1961") to transfer its half share in disputed property to plaintiffs. Thereafter, necessary certificate under Section 230-A (1) of Act, 1961 was granted by Income Tax Department on 11.02.1981. 13. Plaintiffs through plaintiff-1 gave a letter of authority dated 05.04.1983 to M/s. Ram Mohan Das @ Company, Amritsar to transfer Rs.1,92,556/- for completing entire amount of sale consideration to defendant-1. The said letter of authority was in possession of Mr. N.L. Sahgal, Chief Executive of M/s. Jagatjit Cotton Textile Mills Ltd., Phagwara to be passed on to defendant-1 at the time of registration of sale deed. 14. As per Mediator, plaintiffs were also required to pay interest at the rate of 15 per cent per annum on the sale consideration of Rs.4,16,000/-. Thus, as on 31st of March, 1983, sale consideration along with interest was worked out to Rs.5,17,431/- and the same has been paid in the manner as stated above to defendants. 15. Plaintiffs throughout have been ready and willing to purchase defendants' half share in disputed property and to get sale deed executed in their favour, having paid sale consideration which was received by defendants in the manner aforesaid, but defendants avoided execution of sale deed without any rhyme or reason. On 14th of April, 1983 a draft sale deed was prepared and sent to defendants but they did not return the same and also failed to show their willingness for execution of sale deed. Even after 22nd of April, 1983, plaintiffs continued to pursue defendants to execute sale deed in terms of Mediator's award. It was settled between the parties that defendants shall hold Rs.3,24,875/- as advance till execution of sale deed and on the balance amount, interest shall be payable at the rate of 18 per cent per annum. The said settlement was incorporated in the letter dated 07.01.1984 written by defendants and addressed to plaintiffs. 16. Defendants applied for obtaining permission of Ceiling Authority on 07.01.1984 by duly completing the form, but it could be received on 30th of March, 1988; whereupon plaintiffs approached defendants to execute sale deed, but they did not respond. 17. Subsequently, defendants served a notice dated 17th of August, 1993 claiming Rs.10,40,885/- as balance sale consideration for execution of sale deed. Plaintiffs in their reply to notice sent a bank draft of Rs.3,86,871/- which included balance amount of Rs.1,08,000/- together with interest, agreed at the rate of 18 per cent per annum showing their willingness for execution of sale deed. Defendants returned above bank draft and refused to execute sale deed by their reply dated 29th October, 1993 alleging that plaintiffs have committed breach of terms of contract for sale. Claim of defendants for Rs.10,40,885/- upto 15th June, 1983 is founded on an assumption that interest agreed at the rate of 18 per cent per annum, payable, was compound and not simple. 18. During pendency of suit, defendant-1, Amar Nath Kapoor, died on 26.02.2004 and since his legal heirs were already on record, therefore, suit proceeded with remaining parties. 164 INDIAN LAW REPORTS ALLAHABAD SERIES 19. On behalf of defendants - 1, 2 and 3, a combined written statement dated 15th April, 1995 was filed stating that Smt. Shyamo Bibi died on 25.05.1986, that is before registration of suit in 1994. It was admitted that disputed house was purchased for valuable consideration by late Sidha Gopal Kapoor and Amar Nath Kapoor, having equal share. The sale consideration was paid from their respective HUF funds. After purchase, defendant-1 along with his branch occupied entire southern portion together with southern lawn, part of servants' quarters, while late Sidha Gopal Kapoor along with his branch entered into occupation of northern portion of premises. Contract for sale dated 7th of February, 1979 was admitted. Court proceedings for partition were not initiated with an intention to have matter settled between parties, amicably, out of Court, which could not be arrived at due to unfair stand on the part of late Sidha Gopal Kapoor and after his death, by plaintiff -1. It is also admitted that for amicable resolution, dispute was referred to Shri M.M. Thapar for mediation. He (Mediator) made award on 27th of May, 1979 working out value of half share in disputed property as Rs.4,16,000/-. Since late Sidha Gopal Kapoor was not in a position to pay entire amount in lump-sum, it was decided to make payment in instalments along with interest accruing on the outstanding amount from time to time. Rs.1,00,000/- was paid on 13.06.1979 by Cheque and further amount of Rs.1,00,000/- and Rs.1,24,875/- was paid through entries in account books of M/s. Beni Prasad & Co., Amritsar, where-after a balance amount of Rs.10,8000/- together with interest agreed at the rate of 15 per cent per annum, compound, w.e.f. 15.06.1979 up to 15.06.1981, was payable so as to complete sale consideration, failing which 18 per cent per annum compound interest was payable on the outstanding amount. Since plaintiffs failed to pay the entire amount as per award of Mediator, Shri Thapar, hence, plaintiffs are not entitled for equitable relief of specific performance. 20. In the additional pleas it is said that suit is barred by limitation; plaintiffs have not come with clean hands, hence are not entitled for discretionary relief of specific performance. 21. There are three replications Dt. 16.07.1996, 26.03.2002 and 29.10.2002 and one additional written statement dated 17.02.1999 which may be referred to as and when the occasion would arise. Suit - 2 22. Suit-2 (O.S. No. 1300 of 1994) was instituted in the Court of Civil Judge, Kanpur Nagar by Amar Nath Kapoor, his wife Indrani Kapoor and son Om Nath Kapoor impleading five defendants namely Sri Krishna Gopal Kapoor , his wife Smt. Usha Rani Kapoor and three sons ― Praveen Kapoor, Naveen Kapoor and Sharad Kapoor. The relief sought is delivery of possession of southern side of disputed premises stating that plaintiffs have a right of resumption of their enjoyment and possession over disputed property and therefore by granting a mandatory injunction, possession of half of share of southern side of disputed property be directed to be handed over to plaintiffs. They also claimed pendente lite and mesne profits at the rate of Rs.1100/- per day. 23. Plaint case in suit-2 is that plaintiff-1 as Karta and manager of his branch and late Sidha Gopal Kapoor as Karta and manager of his branch, jointly purchased disputed premises that's Bungalow No. 7/24, Tilak Nagar, Kanpur and started living therein along with their respective 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 165 branches. Both the branches also had joint business. Sri Sidha Gopal Kapoor died on 07.07.1983. Defendants - 1, 3, 4 and 5 are lineal descendants of late Sidha Gopal Kapoor. They succeeded and inherited all the rights and interest of late Sidha Gopal Kapoor, after his death, on 07.07.1985. Since defendants failed to comply with the directions contained in award dated 27.05.1979 given by Mediator, Shri M.M. Thapar, regarding payment of balance sale consideration, and delivery of possession of disputed house was made by plaintiffs to defendant-1, hence they claimed resumption of possession of disputed house. 24. Trial Court consolidated both the suits. However, issues were framed separately in both the suits as under :- Suit-1 (O.S. No.714/94) 1. क्या वादी भवन सं० 7/24 तिलक नगर कानपुर के आधे भाग का तवकय पत्र प्रतिवादी से तनष्पातदि कराने का अतधकारी है ? Whether the plaintiffs are entitled to get the sale deed executed by the defendants in respect of their half share in premises No. 7/24, Tilak Nagar, Kanpur? 2. क्या वादी अनुबन्ध की शिों का अनुपालन कराने हेिु हमेशा ित्पर रहा है? Whether the plaintiffs all along remained ready and willing to act according to the terms and conditions of the agreement? 3. क्या प्रतिवादी कतिि बकाया धनरातश पर चकवृति ब्याज पाने का अतधकारी है ? Whether the defendants are entitled to compound interest on the alleged balance amount? 4. क्या दावा काल बातधि है ? Whether the suit is barred by time? 5. क्या वाद का मूलयांकन सही नहीं तकया गया है ििा प्रदत्त न्याय शुलक अपयााप्त है ? Whether the suit is not properly valued and the Court fee paid is insufficient? 6. क्या वादी तकसी अन्य उपचार को पाने का अतधकारी है ? Whether the plaintiffs are entitled for any other relief? 7. क्या श्री एम.एम. िापर का तनर्ाय प्रभावशाली नहीं है, जैसा तक प्रतिवादी पत्र की धारा 35अ व 35ब में कहा गया है ? 166 INDIAN LAW REPORTS ALLAHABAD SERIES Whether the award of Shri M.M. Thapar is ineffective as alleged in Para 35A and 35B of the written statement? 8. क्या श्री एम.एम. िापर का तनर्ाय, पंच तनर्ाय नहीं है? यतद हों िो उसका प्रभाव ? Whether the award of Shri M.M. Thapar is not an arbitration award, if yes, then its effect? 9. क्या वादीका वाद अतिररक्त अतभवचनों के पैरा 35सी में वतर्ाि िथ्यों के आधार पर पोषर्ीय नहीं है? Whether the suit is not maintainable as alleged in para 35C of the written statement.? (English Translation by Court) Suit-2 (O.S. No.1300/94) 1. क्या प्रस्िुि वाद सी.पी.सी. की धारा 10 के अन्िगाि स्ितगि होने योग्य हैं ? Whether the suit is liable to be stayed under Section 10 CPC as alleged in para 21 of the written statement? 2 क्या वाद मूलयांकन गलि तकया गया है ििा प्रदत्त न्याय शुलक अपयााप्त है ? Whether the suit is undervalued and the court fee paid is insufficient? 3. क्या वाद तमयाद से वातधि है? Whether the suit is barred by limitation? 4. क्या प्रतिवादीगर् मकान नं0 7/24 में वादी के 1/2 तहस्से के अनुज्ञतप्तधारी िे, यतद हााँ िो क्या वह अनुज्ञतप्त वादी ने तनरस्ि कर तदया ? Whether the defendants were the Vicensee of plaintiffs' half share in premises no. 7/24, Tilak Nagar, Kanpur? If so whether the license had been revoked by the plaintiffs? 5. क्या प्रतिवादीगर् तनधााररि समय के अन्दर सम्पूर्ा तवक्रय प्रतिफल अदा करने में असफल रहें ? Whether the defendants have failed to pay the entire sale consideration within the stipulated time. If so it's effect? 6. क्या वादीगर् तववातदि सम्पतत्त में पुनः अपना कब्जा व उपयोग वापस प्राप्त करने के अतधकारी है ? 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 167 Whether the plaintiffs are entitled to resume enjoyment in upon and over the disputed premises? 7. वादीगर् तकस उपशम के अतधकारी है ? To what relief, if any, the plaintiffs are entitled? 8. क्या प्रतिवादीगर् प्रतिवाद पत्र के पैरा 6 में वतर्ाि आधारों पर तववातदि मकान के तहस्से पर शमसः अनुपालन के कब्जे में है? Whether the defendants are in possession of the portion of the disputed premises in part performance as alleged in para 6 of the written statement? (English Translation by Court) 25. Trial Court considered issues of Suit-1 first. Issues -1 and 2 were answered in favour of plaintiffs Krishna Gopal Kapoor and others. Issue-3 was answered holding that plaintiffs shall be liable to pay 10 per cent annual interest on the remaining amount of consideration for the purposes of getting sale deed executed. Issue-4 relating to limitation was answered in negative. Issues - 7 and 8 were also answered in negative holding, since mediation and award given by M.M. Thapar is admitted to both the parties, therefore, it is effective and operative. Issue-9 was answered in negative holding that the suit is maintainable. 26. Thereafter, issues of Suit-2 were taken. Issue-1 was answered in negative holding that both suits can proceed together. Issue-3 relating to limitation was answered in negative. Issue-4 was also answered in negative holding that both parties were co-owner and in joint possession of disputed property. Issue-5 was answered holding that Mediator's award has partly been executed and a small sum of Rs.1 Lakh and odd was still payable showing that parties have partly discharged their obligations under award. Issue-6 was answered against plaintiff holding that against total sale consideration of Rs.4,16,000/-, he has already received Rs.3,24,875/- and thereafter, handed over possession to defendants. Issue-8 was answered holding that plaintiffs are not in possession and defendants are in possession of the disputed property. 27. Consequently, Suit-1 that is Original Suit No. 714 of 1994 was decreed and Suit-2 that is Original Suit No. 1300 of 1994 was dismissed. 28. Defendants in Suit-1 and plaintiffs in Suit-2 are common and both these appeals have been filed at their instance. 29. Shri Ashish Kumar Singh, Advocate, has advanced submissions on behalf of appellants and Sri K.M. Asthana has made submissions on behalf of respondents. Both have also filed written submissions which have been taken on record. 30. It is contended that a non-testamentary document i.e. award Dt. 27.05.1979 is not enforcible and therefore, suit for specific performance was/is not maintainable. Award was 168 INDIAN LAW REPORTS ALLAHABAD SERIES compulsorily registrable. Since it was not registered, hence not admissible in evidence and could not have been enforced at all. Trial Court has erred in law in holding that the alleged award is a settlement and therefore, does not require registration. Trial Court also erred in law in holding that award dated 27.05.1979, a non-testamentary document, was an agreement. It is then contended that respondents were not ready and willing to execute sale deed since amount directed to be paid by Mediator was not paid by due date. Delay of more than 12 years in tendering last instalment should have been construed as if respondents were not willing and ready to get sale deed executed. Since property had been passed on to respondents, Trial Court should have directed for resumption of possession to appellants and by not doing so, had erred in law in dismissing suit-2 that is Original Suit No. 1300 of 1994. 31. Shri K.M. Asthana, learned counsel appearing for respondents, on the contrary, argued that it was a case where facts were basically admitted. Alleged award was also an admitted document to both the parties. Since it is a family settlement/agreement between the parties of a special character, the document was also admitted, partly executed and appellants also relied on said document to claim resumption stating that conditions set out in the said document with regard to payment of balance consideration along with interest was flouted, hence it is not open to appellants to challenge that said document/award as inadmissible in evidence. 32. Rival submissions, advanced by both parties have given rise to following points for determination which need adjudication for deciding these appeals: 1. What is the nature of document/award dated 27.05.1979 and whether it was admissible in evidence in any manner or not at all? 2. Whether non-testamentary document/award dated 27.05.1979 was necessarily registrable and if so what is the effect of its non registration? 3. Whether suit for specific performance of non-testamentary document/award dated 27.05.1979 was not maintainable, since the document was not registered? 4. Whether respondents were ready and willing to pay entire consideration and get the sale deed executed justifying a decree of specific performance by Court below? 5. Whether, even otherwise, suit of respondents for a direction for execution of sale deed could have been decreed by Court below or it has erred in law in decreeing Suit-1 and dismissing Suit-2? 6. Whether Trial Court is justified in directing respondents to pay 10% simple interest on unpaid amount so as to oblige appellants to execute sale deed of property in dispute? 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 169 33. We propose to answer issues - 1 to 5 together since they are interconnected. It would be appropriate first to cull out certain admitted facts since both the parties have filed their separate suits which have some common but admitted facts. These common admitted facts are:- (a) House in dispute that's premises No. 7/24, Tilak Nagar, Kanpur was jointly purchased vide sale deed dated 26.08.1946 by fathers of plaintiffs and defendants i.e. Amar Nath Kapoor and Siddha Gopal Kapoor. (b) At that time they were having an HUF wherein Amar Nath Kapoor was Karta and funds for purchase of the house were made available from HUF funds. (c) Both and their heirs had possession and ownership of the said house having equal shares therein. (as a matter of fact, both occupied separate part of house for residence purpose but in law their ownership and possession was joint). (d) With regard to division of property there was a dispute between the parties. For resolution thereof, they (i.e. Siddha Gopal Kapoor and Amar Nath Kapoor) approached Shri M.M. Thapar to function as a Mediator, being common friend of family, and settle the dispute. (e) Terms and conditions of settlement arrived at before mediator were noted in the document dated 27th of May, 1979. (f) Property was valued by Mediator worth Rs.8.32 lacs, half whereof was worked out to Rs.4.16 lacs. (g) Siddha Gopal Kapoor was supposed to pay Rs.4.16 lacs to Amar Nath Kapoor, whereupon Amar Nath Kapoor was to hand over keys and vacant possession of disputed house, which was in his and his family's possession. (h) Since Siddha Gopal had some difficulty in making payment in one stroke hence Mediator provided mode of payment as under:- (i) Rs. 1 lac by 15.02.1979; (ii) Rs. 1 lac by adjustment in account of Amar Nath Kapoor in the Firm of his choice where both the parties were partner, by 15.06.1979; (iii) On the installments paid, interest at 15% per annum payable up to the date of payment; (iv) Rs. 1.08 lac by 15.06.1980 together with interest at the rate of 15% per annum from 16th of June, 1979 to 15th of June, 1980; 170 INDIAN LAW REPORTS ALLAHABAD SERIES (v) Rs. 1.08 lac by 15th of June, 1981 together with interest at the rate of 15% per annum (payable annually) from 15th of June, 1979 to 15th June, 1981. If the amount is paid earlier, interest was payable only till payment; (i) First three instalments of Rs. 1 lac, Rs. 1 lac and Rs. 1.08 lac along with interest were actually paid as per terms and conditions contained in the document dated 27.05.1979 prepapred by Mediator. (j) Amar Nath Kapoor after having received first two instalments of Rs. 1 lac each i.e. Rs. 2 lacs, and in full confidence and acceptance of settlement, handed over vacant possession of disputed house (the portion where he and his family was residing) to respondents on 15th June, 1979. (k) It also appears that for execution of sale deed permission from Ceiling Authority was necessary, for which Amar Nath Kapoor submitted application on 21st December, 1981, but what happened thereto is not clear. However, another application seeking permission of Ceiling Authority was filed on 7th of January, 1984 and permission was granted on 30th of March, 1988. (l) He also applied to Income-tax Department for grant of certificate under Section 230-A (1) of the Act, 1961, which was granted on 11th February, 1981." 34. Case of appellants is that since fourth instalment was not paid in time along with interest as directed by Mediator vide document/ award dated 27th of May, 1979, respondents were not entitled to file suit for specific performance against appellants and on the contrary, appellants are entitled for resumption of premises, vacant possession whereof was handed over to the respondents. 35. Parties are ad idem in respect of co-ownership of house in dispute, earlier joint possession, later on transfer of possession by appellant to respondents and also a settlement arrived at between parties which was substantially adhered to and acted upon inasmuch as out of four installments, three were paid by respondents; and, appellants after receiving first two installments handed over vacant possession of their share in disputed house to respondents. 36. Learned counsel for appellants has argued that document dated 27.05.1979 prepared by Mediator is an award and has also been named and titled by parties as such, therefore, it was compulsorily registrable and without being registered Court below could not have admitted it in evidence. 37. Learned counsel for respondents, on the contrary, sought to argue that it is a peculiar case where terms and conditions of settlement are not only admitted to parties but the same have been substantially adhered to. In fact plaintiffs in Suit-1, have relied on the said document in support of their prayer for execution of sale deed. Plaintiffs-appellants in Suit-2 are also relying on same document for the purpose of seeking a decree of resumption of possession in disputed house to the extent of their share which they have handed over to respondents. 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 171 38. It is in these circumstances what is needed is to ascertain the true nature of document dated 27.05.1979. 39. We have no manner of doubt that title given by author or the manner in which parties have addressed a document, would not govern its nature but it is to be considered and determined from contents thereof, to arrive at a conclusion as to what is the nature of a document. The parties constituted HUF and have continued to run the same without disclosing as to when initial HUF ceased and new HUF was created. 40. HUF between the parties as long back as 1946 when house in dispute was purchased is admitted. It has not come on record as to when the aforesaid HUF ceased or new or different HUF came into existence. Even when dispute was required to be resolved with mediation of Mr. M.M. Thapar, it does not appear that there was cessation of already continuing HUF. Karta of HUF may change but HUF itself came to an end at any point of time even till 1979, is not a fact pleaded by either party, therefore, there is no reason to hold that HUF between the parties ceased after 1946 at some point of time. 41. In Hindu Law, concept of joint family or HUF has been given great respect and honour. In India and particularly among Hindus, the family bonds are not only very strong but they have given right to a society who believe in a joint family going to the extent of even the concept of village community. 42. In the concept of property, there have been three layers, i.e., Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. Joint family may include within itself members, related to each other, though not having common ancestors and goes beyond family flowing from father himself. 43. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situation in India is totally different. Here joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offspring would ramify in a joint family, like a banian tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs. 44. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the Head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to 172 INDIAN LAW REPORTS ALLAHABAD SERIES have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old." 45. The "joint family" is normally a transition form from "patriarchal family" at the death of common ancestors or Head of house. If the family chose to continue united, the eldest son would be the natural head. The former one is head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. 46. An undivided Hindu family thus is ordinarily joint not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brothers than in case of cousins and farther one go, from the founder of family, the presumption becomes weaker and weaker. 47. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as ordinary household articles which they would enjoy in common. 48. The intention to break joint family by effecting partition in respect of joint family property has always been considered with great respect, where amicably and peacefully, intacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing. 49. In Appovier Vs. Ramasubba Aiyan (1866) 11 MIA 75, Lord Westbury took a view that partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai Vs. Sadashiv Dhundiraj (1916) 43 IA 151. When members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided. 50. At this stage, we may also have a look on the concept of partition by agreement between the family or family arrangement. 51. In Raghubir Vs. Moti (1913) 35 All 41 PC and Anurago Kuer Vs. Darshan Raut, AIR 1938 PC 65, partition by agreement was explained by observing, that, if there be a conversion of joint-tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., the 5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors. 173 subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of separate right. This was also held so in Amrit Rao Vs. Mukundrao (1919) 15 Nag LR 165 PC. 52. If we look into the facts of present case in the light of Privy Council's decision in Raghubir Vs. Moti (supra); Anurago Kuer Vs. Darshan Raut (supra); and, Amrit Rao Vs. Mukundrao (supra), we find that though there was no formal partition between appellants and respondents but admittedly Sidha Gopal Kapoor and his branch were occupying Northern portion of premises while Amarnath Kapoor and his branch were occupying Southern portion of house in dispute. A de facto actual division existed with an oral agreement between parties since long. Appellants also handed over Southern portion of house which they were occupying to respondents. This fact also supports an inference that house in question by oral agreement or settlement between parties was already divided. Parties, therefore, had a practice of having oral family arrangement or agreement or settlement so as to avoid Court cases among them. It was an amicable and happily accepted family arrangement between them. 53. A "family arrangement" also stand and enjoy a respectable and recognised status. It is an agreement arrived by members of family, either by compromise of doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate though it may not partition the estate. Among all the coparceners, now it has been held, that, an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly.