TaxTMI 
TaxTMI 
2021 (10) TMI 1478
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....r brother of the appellants. The respondent instituted the present Suit (O.S. No.39 of 2001) seeking declaration of title over the plaint schedule property and for eviction of the appellants who are the defendants and consequential perpetual injunction is also sought against the appellants. 4. It is not in dispute that there was a partition between the appellants, the respondent and their other siblings. The partition list is marked as Exhbit-A8 in the suit. It is dated 17.11.1980. The plaint schedule properties are a part of F-Schedule in the Deed of partition allotted to the respondent. The case of the respondent is based on the said partition deed allotting F-schedule to him. It is, inter alia, his case in the suit as amended by order dated 19.12.2012 that he was in hospital as in patient for treatment of his liver ailment. The appellants allegedly obtained his signatures on papers and made up the alleged settlement dated 15.4.1986 and the alleged receipt dated 08.12.1983 (The documents which are in controversy). It is his further case that appellants are in occupation of the property with his permission. On refusal of the appellants to vacate and after exchange of notices, t....
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.... that in the absence of registration and not being stamped the documents were inadmissible. 7. We heard the learned counsel for the parties. We heard Shri M. Vijay Bhaskar, learned Counsel on behalf of the appellants and also Shri Venkateshwar Rao, learned Counsel on behalf of the respondent. 8. It is submitted by the appellants that the Family settlement Khararunama dated 15.04.1986 was prepared in triplicate. The respondent also obtained one of the triplicate copies. In his examination the respondent admitted his signature in the said 'Khararunama' and the same has been marked as B1 to B3. It is further submitted that the respondent as PW1 has admitted his signature on the receipt dated 08.12.1993 marked as (B4). B9 to B11 are stated to be admission of signature on the Khararunama dated 15.04.1986 upon the respondent being confronted with the Khararunama. It is pointed out that High Court erred in not considering the family settlement Khararunama and receipt dated 08.12.1993 in accordance with well-established principles relating to the law of family settlement /family arrangement. Reliance is placed on the judgment of this court in Subraya M.N. v. Vittala M.N. [(2016) 8 SC....
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....ee of us subsequent to 17-11-1980. We are enjoying the properties as per the following changes as per the advice of the elders. The Nadava way which was originally fell jointly to three of us is being enjoyed by Nos.1 and 2 of us since no. 3 of us gave away his undivided 1/3rd in favour of Nos. 1 and 2 of us. Likewise, Nos. 1 and 2 of us have been enjoying said Nadava way with an understanding to enjoy Nadava way likewise if any further floors are raised over ground floor. The undivided ½ share house portion which originally fallen to share of No. 3 of us which was subsequently mutually divided among Nos. 2 and 3 of us was given away by No.3 of us to No.2 of us and accordingly No.2 of us has been in enjoyment of the entire house portion. No.3 of us is enjoying with absolute rights the shop room which was fallen to his share with an understanding that No.3 of us can raise constructions over the said shop room within the measurements of shop room. We have been enjoying with an understanding that eastern wall of above said shop shall be joint between Nos.2 and 3 of us and western wall shall be joint for all the three of us and northern wall shall be joint between Nos.2....
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.... by the revenue officer. Section 49 of the Registration Act reads as follows: "49. Effect of non-registration of documents required to be registered.-No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] .." 14. There is a long line of judgments of this court dealing with the question as to whether a family arrangement is compulsorily registrable. We need only refer to the case of Kale v. Dy. Director of Consolidation [AIR 1976 SC 807]. This C....
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....ived at between the brothers which is the family arrangement, and it was a mere record of the past transaction and therefore by itself it did not create or extinguish any right over immovable property. Resultantly, the document did not attract Section 17(1)(b) of the Registration Act. In other words, it is contended that even if there is relinquishment of rights by the family member, since the document is only a record of what had already happened in the past, the law did not mandate registration. 16. It is to be noted that in this regard emphasis is placed by the appellants on the decision of this Court in Subraya M.N. v. Vittala M.N. (supra). Therein, in regard to the dispute to plaint items 1 and 2 properties, there was D22 resolution passed by the village panchayat signed by the Panchayat Dar, plaintiffs 3 and 4 and defendant. It was, inter alia, mentioned therein that the defendant, in whose favour the plaintiffs 3 and 4 relinquished the rights, had paid Rs.15,000/- each to the said plaintiffs. Dealing with the impact of Section 17 and 49 of the Registration Act this Court, inter alia, held: "16. Even though recitals in Ext. D-22 are to the effect of relinquishment....
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....Ext. D-4 dated 23-4-1971." 18. In the said case plaintiff had admitted the oral partition and the unregistered document dated 23.04.1971 to which he was the signatory, was accepted as the list of properties in the partition. 19. In Ram charan v. Girja Nandini [AIR 1966 SC 292], this Court was dealing with a case of a compromise decree and this Court went on to hold that it was a family arrangement. It went on to hold as follows: ".. For as the Privy Council pointed out in Mst. Hiran Bibi's case, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden 46 Ind App 72 (AIR 1918 PC 196), that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say affection." (Emphasis supplied) ....
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....the father of the parties on 25-10-1992 which was recorded as memorandum of family settlement on 9-9- 1994. There are more than one reasons due to which we are of the view that the document dated 9-9-1994 was not mere memorandum of family settlement, rather a family settlement itself. Firstly, on 25-10-1992, the father of the parties was himself owner of both, the residence and shop being self- acquired properties of Devi Dutt Verma. The High Court has rightly held that the said document cannot be said to be a will, so that the father could have made the will in favour of his two sons, the plaintiff and the defendant. Neither the plaintiff nor the defendant had any share in the property on the day when it is said to have been partitioned by Devi Dutt Verma. Devi Dutt Verma died on 10-9-1993. After his death, the plaintiff, the defendant and their mother as well as sisters become the legal heirs under the Hindu Succession Act, 1956 inheriting the property being a Class I heir. The document dated 9-9-1994 divided the entire property between the plaintiff and the defendant which document is also claimed to be signed by their mother as well as the sisters. In any view of the matter, th....
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....st whether vested or contingent to" (See also Kanjee & Moolji Bros, v. Shanmugham Pillai, 56 Mad. 169 : (A. I. R. 1932 Mad. 734), where the view of Spencer J. was accepted)." 25. Section 49(c) of Registration Act prohibits the admitting of compulsorily registrable documents which are unregistered as evidence of any transaction affecting immovable property unless it has been registered. In the very same Judgment, we notice the following discussion: "The other consequence of non-registration is to prohibit the document from being received not "in" evidence, but "as" evidence of any transaction affecting such property. The emphasis on the word "as" was, in my opinion, rightly laid by Venkatasubba Rao J. in Saraswathamma v. Paddayya, 46 Mad. 349 : (A. I. R. 1923 Mad. 297), where the learned Judge observed: "What is prohibited by the section is receiving a document as evidence of a transaction, not merely receiving it in evidence, i.e., as a piece of evidence having a bearing on the question to be ultimately decided." In other words, the prohibition is to prevent a person from establishing by the use of the document in evidence a "transaction, affecting Imm....
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....ith the following facts. The widow of a Hindu upon the death of her husband came by possession of the plaint schedule properties. She even got the property mutated. A gift was made by her. The reversioners thereafter approached her and an unregistered document was entered into with her wherein she purported to acknowledge that she had only a life estate. Thereafter the suit came to be filed. The widow set up the case of adverse possession. On the other hand, the plaintiffs placed reliance on the unregistered document and relied upon the judgment of the N. Varada Pillai (supra). This Court repelled the case of the plaintiffs and held as follows in Kirpal Kaur (supra): "15. We cannot agree that on the authority of Varatha Pillai's case (1918) 46 I.A. 285, the agreement of February 6, 1932, can be admitted in evidence in the case in hand to show the nature of Harnam Kaur's possession of the lands subsequent to its date. In Varatha Pillai's case (1918) 46 I.A. 285, Duraisani had got into possession only after the petition and claimed to retain possession only under the gift mentioned in it. The petition was therefore admissible in evidence to show the nature of her possession.....
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....IR 1929 PC 269 (Z 22) the collateral purpose to which the document is put should be nothing else than an evasion of the statute and render almost nugatory the hitherto well-established rule relating to the limited uses to which an unregistered partition deed can be put to." (Emphasis supplied) 31. In Roshan Singh and Others v. Zile Singh and Others [AIR 1988 SC 881], the question arose whether Exhibit P12 in the said case was an instrument of partition and therefore inadmissible for want of registration under Section 49 of the Registration Act or whether it was merely a memorandum of family arrangement. This Court after referring to the document held as follows: "8. According to the plain terms of the document Exh. P-12, it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected. The opening words of the document Exh. P-12 are: 'Today after discussion it has been mutually agreed and decided that....' What follows is a list of properties allotted to the respective parties. From these words, it is quite obvious that the document....
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....ion lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla's Registration Act, 8th Edn., pp. 54-57." (Emphasis supplied) Thereafter, the Court also approved of the use of the said document for a collateral transaction and observed as follows: "11. Even otherwise, the document Exh. P 12 can be looked into under the proviso to Section 49 which allows documents which would otherwise be excluded, to be used as evidence of 'any collateral transaction not required to be effected by a registered instrument'. In Varada Pillai v. Jeevarathnammal, (1919) 46 Ind App 285 : AIR 1919 PC 44 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift 'because no legal title passed' but to prove that the done thereafter held in her own right. We find no reason why the same rule should not be made applicable to a case like the present." 32. In SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. Private Ltd.[ (2011) 14 SCC 66], the question ar....
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....on 49(1)(a) of the Registration Act. 34. As far as Section 49(1)(c) of the Registration Act is concerned, it provides for the other consequence of a compulsorily registrable document not being so registered. That is, under Section 49(1)(a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights in immovable property by way of creation, declaration, assignment, limiting or extinguishment. Section 49(1)(c) in effect, reinforces and safeguards against the dilution of the mandate of Section 49(1)(a). Thus, it prevents an unregistered document being used 'as' evidence of the transaction, which 'affects' immovable property. If the Khararunama by itself, does not 'affect' immovable property, as already explained, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property. However, being let in evidence, being different from being used as evidence of the transaction is pertinent [See Muruga Mudallar (supra)]. Thus, the transaction or the past transactions cannot be proved by using the Khararu....