https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=460928 https://www.taxtmi.com/caselaws?id=460928 Coparcenary property or not - admissible evidence of exchange deed - benefit of Section 53A of the Transfer of Property Act, 1882 - Application of Section 53A of the T.P Act. Whether the property allotted to defendant No. 2 in the partition dated 31.07.1987 retained the character of a coparcenary property? - HELD THAT:- Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31.07.1987. It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of defendant No. 2 who is the father of plaintiff Nos. 1 to 3 and grandfather of plaintiff No. 4. Certain properties had fallen to the share of the first defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. There are no ground to disagree with this finding of the courts below. It is settled that the property inherited by a male Hindu from his father, father s father or father s father s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Therefore, the properties acquired by defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of defendant No. 2 retained the character of a coparcenary property and the plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the plaintiffs was not maintainable. Whether the exchange deed at Exhibit P2 is admissible in evidence or not? - HELD THAT:- The transfer of ownership of their respective properties by defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by defendant No. 1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange - It is clear from Section 118 of the TP Act that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs. 100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2. Application of Section 53A of the T.P Act - HELD THAT:- It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act. Conclusion - i) The properties acquired in partition retain their ancestral character concerning male descendants. ii) The High Court s decision upheld, confirming the ancestral nature of the property, the inadmissibility of the unregistered exchange deed, and the inapplicability of Section 53A to the appellant. Appeal dismissed. Case-Laws Indian Laws Mon, 02 Jul 2018 00:00:00 +0530