TaxTMI 
TaxTMI 
2018 (7) TMI 2364
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....t). For the sake of convenience, parties are referred to by the ranking in the trial court. 3. The plaintiffs filed the aforesaid suit against the defendants for a declaration that the document dated 30.1.1990 (Exhibit P2) executed between defendant Nos. 1 and 2 is invalid and for certain other reliefs. According to them, the family property was partitioned on 31.7.1987 between Gopalji and his five sons, namely, Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh Kumar. In the partition Gopalji has retained some of the properties for his personal use till his death. Laxmi Prasad got his share of property along with half portion of existing two-storey RCC building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is being run. Shyam Narayan Prasad was allotted a shoe shop at Manihari which is run on a rented premises owned by Gouri Shankar Prasad. He was also allotted other properties in the partition. 4. After the partition, the sons of Gopalji were put in possession of their share of the properties. However, Laxmi Prasad (defendant No. 2) in collusion with his brother Shyam Narayan Prasad (defendant No. 1) execu....
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....d decree of the District Judge and restored the judgment and decree of the trial court. 9. The contention of the learned counsel for the appellant/defendant No. 1 is that the entire property of Gopalji was the self acquired property and he has divided the property amongst his five sons by a deed of partition dated 1.3.1988. According to the deed of settlement dated 30.1.1990 between defendant Nos. 1 and 2, only the businesses were transferred and not the buildings. Therefore, the sons and the grandson of defendant No. 2 have no right to seek cancellation of the said deed. There is no exchange of immovable property as contended by the plaintiffs. Therefore, the settlement deed does not require registration. The parties have acted upon the said agreement. In the circumstances, possession of the appellant is protected under Section 53A of the Transfer of Property Act, 1882 (for short 'the T.P. Act'). 10. On the other hand, learned advocate appearing for the respondent Nos. 1 to 4/plaintiffs submits that the subject matter of the deed of settlement dated 30.1.1990 is a joint family property. The recitals of this document clearly show that there is a transfer of im....
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....rmed Hindu undivided family up to October 30, 1958, when there was a partition between Krishnaswami Naidu and his two sons. A question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of undivided family even though no other person besides him is a member of the family. It was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. It was held as under: "The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessi....
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....le surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding." (emphasis supplied) 16. 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 c....
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.... property or conferring such power, Unless it has been registered:" 20. 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. 21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It was held thus: "......Section 17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property......Two propositions must therefore flow: (1....