Paramjeet Singh, J.@mdashThis regular second appeal by LRs of defendant No. 1 is directed against the judgment and decree dated 22.01.1985 passed by learned Sub Judge 1st Class, Phillaur, whereby the suit for possession filed by the plaintiffs was decreed as well as against the judgment and decree dated 17.11.1987 passed by learned Additional District Judge, Jalandhar, whereby the appeal preferred by defendant No. 1 against the judgment and decree of the Court of first instance, has been dismissed. For convenience sake, reference to parties is being made as per their status in the civil suit.
2. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs Smt. Harbans Kaur w/o. Jharmal Singh and Jasbir Singh, Kulbir Singh minor sons of Jharmal Singh through their mother filed a suit for possession of 1/4th share in the land measuring 124 kanals 10 marlas situated within revenue limits of village Rurka Khurd, Tehsil Phillaur, fully detailed in the headnote of the plaint, against Chanchal Singh father-in-law of Harbans Kaur, grandfather of Jasbir Singh and Kulbir Singh and father of Jharmal Singh. It was alleged in the plaint that Jharmal Singh was of unsound mind and in order to make arrangement for maintenance of plaintiffs, Chanchal Singh effected a family settlement before the Gram Panchayat and the same was recorded in the proceedings book on 19.05.1967 and possession of 1/4th share of the suit land was handed over to the plaintiffs. It is alleged that in spite of settlement before the Panchayat and its incorporation in the proceedings book, Chanchal Singh at the instance of his another son Ajit Singh forcibly took the possession of the property which was given to the plaintiffs. For that reason suit for possession as well as permanent injunction was filed for restraining Chanchal Singh from alienating the suit property.
3. Before the Court of first instance, name of Jharmal Singh was struck off as he was not sued through next friend being of unsound mind.
4. Defendant No. 1 contested the suit and filed written statement through his son Ajit Singh as general power of attorney. It was denied that any settlement has been arrived at between the parties. Actually it is the result of fraud, misrepresentation and undue influence caused by the panchayat. Plaintiffs had no right of maintenance against Chanchal Singh and they were never put in possession of the land in dispute. Jharmal Singh was not of unsound mind.
Court of first instance, on the basis of pleadings of the parties, framed following issues:-
"1. Whether the plaintiffs are owners of the suit property by way of family arrangement? OPP
2. Whether the plaintiffs are entitled to the injunction prayed for? OPP
3. Relief."
5. Parties led their respective evidence. The Court of first instance, after appreciating evidence on record decided issue No. 1 in favour of plaintiffs and decreed the suit of the plaintiffs for joint possession to the extent of 1/4th share in the suit land. Against the judgment and decree of the Court of first instance, appeal preferred by the appellants failed and the judgment and decree of the Court of first instance has been affirmed by the lower appellate Court. Hence, this regular second appeal.
6. I have heard learned counsel for the parties and perused the record.
7. At the time of admission, no substantial question of law was framed, however, during the pendency of the appeal following substantial questions of law have been placed on record:-
"1. Whether in the facts and circumstances of the instant case, the writing Ex. P1 which purported to be a transfer of an immovable property, which required registration, could be admitted in evidence for want of registration?
2. Whether in the facts and circumstances of the instant case the approach of the learned Courts below to hold that the writing Ex. P1 was based on prior oral settlement is not conjectural and contrary to the recital incorporated in document Ex. P1?
3. Whether in the facts and circumstances of the instant case the contesting respondents having failed to produce cogent evidence evidencing the fact that Jharmal Singh was insane, the approach of the learned Courts below in proceeding on such presumption is perverse?
4. Whether in the facts and circumstances of the instant case the approach of the learned Courts below in drawing adverse inference on account of non-examination of Chanchal Singh, when Avtar Singh, son and attorney had appeared as witness, is not illegal and unsustainable?
5. Whether the contesting respondents could claim any pre-existing right in the suit property which was proved to be self acquired property of Chanchal Singh?
6. Whether in the facts and circumstances of the instant case the approach of the learned Courts below in decreeing the suit filed by the plaintiffs/respondents by misreading and misinterpreting the documentary and oral evidence on record is not perverse?"
8. However, at the time of arguments, learned senior counsel for the appellants pressed only first substantial question of law mentioned above.
9. Learned senior counsel for the appellants vehemently contended that 1/4th share in land measuring 124 kanals 10 marlas has been allegedly transferred by writing Ex. P1. Since the property of value of more than Rs. 100/- has been transferred, the document was required to be registered; as such the same is not admissible in evidence for want of registration. The findings of both the Courts below on this score are not sustainable. It was further contended that the plaintiffs have no right or title in the property. Jharmal Singh has not been proved to be of unsound mind and merely for the reason that his name was struck off before the Court of first instance, it cannot be presumed that he was of unsound mind.
10. The contentions raised by learned senior counsel for the appellants have been vehemently opposed by learned senior counsel for the respondents. It was contended by learned senior counsel for the respondents that the document in question, whereby settlement was effected, was executed before the Gram Panchayat. Gram Panchayat is a body of elected people from the village as per provisions of the Punjab Gram Panchayat Act, 1952 as well as the present Act of 1994 i.e. Punjab Panchayati Raj Act. The main object of these Acts is development and encouragement of Panchayats as emphasised in our Constitution where a specific directive is given for this purpose in Article 40. Administrative and judicial powers of the Gram Panchayats are in the larger interest of the entire social needs of the village community. Entrustment of such functions is legal and valid. Panchayat is a village level administration which also has the judicial powers and such a writing before the august body of the village is required to be respected. Any writing before the Gram Panchayat or in the proceedings book of the Panchayat is a valuable piece of evidence and its sanctity should be protected. The proceedings book wherein the proceedings of family settlement between the plaintiffs and Chanchal Singh have been recorded must be given due weightage and such document is not required to be registered.
11. I have considered the contentions raised by learned counsel for the parties.
12. Before I proceed to deal with matter on merit, it would be appropriate to reproduce the translation of the entire proceedings recorded in the proceedings book dated 19.05.1967 of the Gram Panchayat, which read as under:-
"(1) Jharmal Singh eldest son of Chanchal Singh was under medical treatment for a mental ailment for quite sometime and Chanchal Singh and father of Harbans Kaur made a statement before Panchayat Bhairon Majara about the writing regarding division of property for maintenance of Harbans Kaur and her son Jasbir Singh and after hearing and accepting the same as correct which is reproduced below:-
I, Chanchal Singh son of Jawala Singh, caste Jat, am resident of Rurka Khurad, Tehsil Phillaur District Jalandhar, that my elder son Jharmal Singh is under treatment till today due to a mental defect. Since Jharmal Singh is married and has got a son also and his wife Harbans Kaur alongwith the son lives with her parents. Today in accordance with the decision of the Panchayat of the village I decide that out of my entire property 1/4th share shall be owned by the male generation of my son Jharmal Singh so that arrangement for maintenance of Harbans Kaur wife of Jharmal Singh and my grand-son Jasbir Singh aged 6 years could be ensured and I am parting this writing so that in case of need it can serve the purpose. I shall get the aforesaid writing acted upon in the revenue documents. Smt. Harbans Kaur shall have the right to get her land cultivated from anybody she likes. I shall have no objection. In case at any time my sons hesitate to maintain me from the remaining 3/4th share in the land then I shall be entitled to my share from every 1/4th share so as to be the 5th equal shareholder and nobody will have any objection thereto."
13. The said writing has been thumb marked by Chanchal Singh and attested by several other persons, Sarpanch and Panches and father of Harbans Kaur.
14. In view of above writing and the arguments addressed by learned senior counsel for the parties, following substantial questions of law require consideration:-
"1. Whether the settlement made by Chanchal Singh before the Panchayat is a family settlement between the parties and is valid in the eyes of law whereby right in the property has been given to Jharmal Singh and his family?
2. Whether impugned writing recorded in the proceedings book of Panchayat requires registration?
15. There is a categorical finding on record that Jharmal Singh was of unsound mind and he was got admitted in the Mental Hospital, Amritsar. Thereafter, Chanchal Singh grandfather of plaintiffs No. 1 and 2, father-in-law of plaintiff No. 3 and father of Jharmal Singh, keeping in view the well-being of the family of Jharmal Singh had given 1/4th share in the land to the plaintiffs and it appears that Chanchal Singh was a visionary. However, under the pressure of his sons, Chanchal Singh may have thought of resiling from the settlement. It would be appropriate to refer here that Chanchal Singh did not step into the witness box rather his attorney Ajit Singh, one of his sons, appeared; meaning thereby that best evidence has been withheld. It appears that Ajit Singh pressurized Chanchal Singh and hence he denied the family settlement. Had Chanchal Singh appeared in the witness box, he would have stated truth.
16. The perusal of the pleadings of the parties clearly indicates that the property given by Chanchal Singh to Jharmal Singh, who was under mental illness, and to his family was his self-acquired property. It is not the case of the defendants that it was ancestral coparcenary Hindu joint family property. When person is mentally disable then he can be treated as a dependent and as per provisions of the Hindu Adoptions and Maintenance Act, a guardian specifically the father being natural guardian is bound to maintain such person and his family. The reference can be made to Section 21 of the Hindu Adoptions and Maintenance Act, wherein the dependents have been defined. The son who is a minor or who is unable to maintain himself and his family will be treated as dependent. Under Section 19 of the Hindu Adoptions and Maintenance Act, a widowed daughter-in-law is also entitled to maintenance and under Section 20 the children and the aged persons have right to maintenance. The settlement before Gram Panchayat was an arrangement for maintenance and welfare of Jharmal Singh and his family. Chanchal Singh being a visionary father, father-in-law and grandfather had made arrangement by way of this settlement.
17. Panchayati Raj Act is an Act where an elected body of the village perform certain acts. Panchayati Raj institution has been in existence in the country for a sufficiently long period but at initial stages Panchayats were conferred with the status of dignity of viable people''s body at village under the Constitution. Panchayat is a smallest cell of democracy which seeks to educate people to manage their own affairs. This is done in a democratic manner. Gram Panchayat has been even conferred powers under the provisions of the Act of 1952 as well as 1994 with respect to civil, revenue and judicial functions. Under Section 57 of the latest Act of 1994, Gram Panchayat when trying suit shall be deemed to be a civil Court or revenue Court, as the case may be. Panchayats created under the statutory provisions act according to the principles of justice, equity and good conscious and keeping in view the ground realities they take decisions.
18. In this case, Chanchal Singh appeared before the Gram Panchayat and respectables and the decision was taken as a result of which writing dated 19.05.1967 was recorded in the Panchayat proceedings book. It has a legal sanctity as under Section 7 Gram Panchayat is vested with power and jurisdiction of an Adalati Panchayat. Under Rule 7 of the Punjab Panchayati Raj Rules, 1965, Panchayat maintains various records which include proceedings book. Anything written in these records is a valuable piece of evidence as it was written in the presence of elected representatives of the village. Admission before the village Panchayat clearly indicates that there was a family settlement between the parties. The question which arises here is whether a document by way of which a father/grandfather gives to his son/grandson some property in the peculiar circumstances out of his self acquired property by way of family settlement before village elected Panchayat, is required to be registered. Under the Mitakshara concept of Hindu Law, partition of both the self-acquired as well as the coparcenary joint Hindu Family property is permissible. In my opinion when father is giving his self-acquired property to a son and his family during his lifetime there is nothing wrong in that act which would come in the way of his making such family settlement, so far as his self-acquired property is concerned. I am of the view that a transaction before a Gram Panchayat by which a father gives some property out of his self-acquired property, making a special provision for the son who is mentally ill, incapable of managing himself or his family independently with ordinary prudence and requires supervision, care, control for his own welfare and his family is a valid family settlement. Mental deficiency carries with it a prognosis of continuing incompetence. In view of this, the family settlement recorded in the proceedings book of Gram Panchayat before Gram Panchayat and respectables of the village cannot possibly be regarded as one of the five transactions mentioned in the Transfer of Property Act i.e. sale, gift, mortgage, exchange and lease for more than one year, which require registration. So I hold that family settlement recorded in the proceedings book of the Gram Panchayat is not required to be registered as this is a record which is maintained by the Gram Panchayat under the statutory provisions.
19. In view of above, I do not find any illegality or perversity in the judgments and decrees passed by both the Courts below. The substantial questions of law framed by this Court stand answered accordingly.
No other point has been raised.
Dismissed.
No order as to costs.
20. Before parting with judgment, it would be appropriate to mention that no provision has been brought to my notice by learned counsel for the parties that if husband is insane or of unsound mind, the daughter-in-law who is not having any source of maintenance can claim maintenance for herself. When she has to maintain her mentally ill husband her condition is worse than being widowed daughter-in-law. In such a situation, the wife should be deemed to be dependent upon the father-in-law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act. Specific amendment is required to be made in this regard in the Hindu Adoptions and Maintenance Act. Copy of this order be sent to the Union Ministry of Law & Justice and Law Commission of India for taking appropriate measurers for amendment in the Act.
