Madhya Pradesh High Court
Ramesh Chandra vs Sudeep Kumar on 23 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:15586
1 SA-560-2009
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 23rd OF JULY, 2025
SECOND APPEAL No. 560 of 2009
RAMESH CHANDRA (DEAD) TH. L.RS. AND OTHERS
Versus
SUDEEP KUMAR AND OTHERS
Appearance:
Mr. N.K. Gupta - Senior Advocate, assisted by Mr. Saket Sharma -
Advocate for appellants.
Mr. Anmol Khedkar - Advocate for respondents No. 1 to 3.
Mr. Dilip Awasthi - Govt. Advocate for respondent No.4 / State.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against judgment and decree dated 07-10-2009 passed by Additional Judge to the Court of Additional District Judge, Camp Pichhore, District Shivpuri in Civil Appeal No.49-A/2009, thereby setting aside judgment and decree dated 15- 01-2007 passed by Civil Judge, Class II, Khaniyadhana, District Shipvuri in Civil Suit No. 125-A/2003.
2. Present appeal has been filed by plaintiffs who have lost their case from the appellate Court.
3. It is not out of place to mention here that earlier, the Co-ordinate Bench of this Court, by order dated 29-11-2024, had dismissed the appeal on merits. However, said order was recalled by order dated 17-06-2025 passed Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 2 SA-560-2009 in R.P. No. 1492/2024. Therefore, this appeal has been listed for hearing afresh.
4. The facts necessary for disposal of present appeal, in short, are that plaintiffs/appellants filed a suit for declaration of title and permanent injunction on the ground that lands, mentioned in Schedule A and B, were not the self-acquired property of defendant No. 2 - Sukhnandan, but were ancestral property, and accordingly, plaintiffs, as well as defendants No. 3, and 4 have their share right from their birth. Name of defendant No. 2 - Sukhnandan is mentioned in Khasra Khatauni as Bhumiswami. Share of plaintiffs, as well as defendants No. 3 and 4, is known to defendants No. 1, 2, and 3 from the stage when they started understanding things. Even defendant No. 2 was treating the properties mentioned in Schedule A and B as ancestral property. At the time of institution of suit, defendant No. 2 - Sukhnandan was residing with defendants No. 1 and 3, and accordingly, defendants No. 1 and 3 persuaded him in order to grab the entire property. It was further pleaded that defendants No. 1 and 3 are trying their best to grab the entire property in which plaintiffs and defendant No. 4 have share. On 29-04-2001, plaintiffs came to know that defendant No. 3, by pressurizing and winning over defendant No. 2, has got the sale deed executed in favour of defendant No. 1 in respect of property mentioned in Schedule A. As soon as plaintiffs came to know about the execution of sale deed, they immediately approached defendants No. 1 to 3 on 06-05-2001, and enquired from them as to why sale deed has been executed in a clandestine manner. Defendant No. 2 accepted that sale deed has been executed by mistake. However, Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 3 SA-560-2009 defendants No. 1 to 3 have started claiming that entire property, which is mentioned in Schedule A and B, belongs to defendant No. 2, and defendants No. 1 and 2 are also making preparation for alienating the same. It was further pleaded that land, which was sold to defendant No. 1, is a costly land, and after sale of the said land, approach road to the remaining survey numbers, i.e., 1662 and 1663 has also been blocked. The land, which is situated on the back side of the land, which is subject matter of the sale deed, is a very cheap land and is not as costly as the land which has been sold by the sale deed. It was pleaded that plaintiffs, as well as defendants No. 2, 3, and 4, have equal share in the properties mentioned in Schedule A and B appended to the plaint. It was further pleaded that since defendant No. 4 is in government service and is not getting time, therefore, he is not joining plaintiffs, but he is being impleaded as proforma defendant No. 4 and no relief is being claimed against defendant No. 4. Defendant No. 5 / State is also being impleaded as a formal party and no relief is being claimed against defendant No. 5. The land, which is with plaintiffs, does not come within the limit of ceiling, and no proceedings under the Ceiling Act were ever initiated or are pending. By amendment, it was also pleaded that defendant No. 2 has not executed any Will in favour of Meera Devi.
5. Defendants No. 1 to 3 filed their written statement and pleaded that plaintiffs have not impleaded their sons as party, whereas they are necessary party. Thus, it was pleaded that suit suffers from non-joinder of necessary party. It was further pleaded that plaintiffs have not given clear description of the disputed property in the plaint. It was pleaded that entire property, Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 4 SA-560-2009 mentioned in Schedule A and B, is the self acquired property of Sukhnandan and it is not an ancestral property. It was further pleaded that Sukhnandan is residing with defendants No. 1 and 3. It was pleaded that Sukhnandan had executed a sale deed in favour of respondent No. 1 in respect of Survey No. 1661, area 4 biswa, and Survey No. 1662, area 6 biswa, total 10 biswa of land, out of his own volition, and from the date of execution of sale deed, defendant No.1 has become the owner and in possession of property in dispute. Sale deed, which was executed by defendant No. 2, was within the knowledge of plaintiffs. It was denied that sale deed was the outcome of coercion, pressure, or undue influence on Sukhnandan. It was denied that all the brothers have equal share in the property. In nutshell, it was the case of defendants No. 1 to 3 that Sukhnandan had voluntarily executed a sale deed in favour of defendant No. 1, and contention that property in dispute is the ancestral property was denied. It was also contended by defendants No. 1 to 3 that on 13-02-1983, in order to avoid controversy amongst the children, a partition was done, and on the basis of that partition, even otherwise, Sukhnandan had every right to deal with the property mentioned in Schedule A and B. It is the case of defendants No. 1 to 3 that prior to 13-02-1983, family of plaintiffs, defendants No. 3 and 4, and Sukhnandan was Joint Hindu Family, and certain properties were purchased in the name of plaintiffs as well as defendants No.3 and 4 out of the proceeds of Joint Hindu Family property. On 13-02-1983, partition of Joint Hindu Family property had taken place. Five equal shares were prepared by panchanamas. Details of properties, which went to the share of different persons, were mentioned in Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 5 SA-560-2009 paragraph 17 of the written statement. It was pleaded that land, which was sold by Sukhnandan, had fallen to his share in the partition dated 13-02- 1983, and accordingly, Sukhnandan had also alienated 10 biswa of land out of his share to defendant No. 1, and remaining land has been bequeathed by him in favour of his daughter-in-law, i.e., wife of defendant No. 3. Accordingly, it was prayed that suit be dismissed.
6. It appears that during pendency of the suit, defendant No. 1, Sudeep Kumar, alienated the property, and accordingly, an application under Order 1 Rule 10 read with Order 6 Rule 17 CPC was filed seeking impleadment of Indrasen and Satyendra, who were the subsequent purchasers. By order dated 12-10-2006, application was allowed, and subsequent purchasers, namely, Indrasen and Satyendra, were impleaded as defendants No. 1(a) and 1(b) respectively.
7. Indrasen and Satyendra also filed their written statement and also submitted that property in dispute is the self-acquired property of Sukhnandan, and plaintiffs have no right or share in the property. It was further pleaded that 2000 sq. ft. of land, forming part of Survey No. 1661 min and Survey No. 1662 min, were purchased by defendants No. 1(a) and 1(b) by registered sale deed dated 29-10-2001, and they have also got the possession. Similarly, 0.08 hectares of land, forming part of same survey numbers, was purchased by them by registered sale deed dated 07-04-2004 for a consideration amount of Rs.16,000/-, and names of defendants No. 1(a) and 1(b) have also been recorded in the revenue records. A separate suit has also been filed by plaintiffs against defendants No. 1(a) and 1(b), which is Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 6 SA-560-2009 pending.
8. Trial Court, after framing issues and recording evidence, decreed the suit, and it was held that a partition deed dated 13.02.1983, Exhibit D-1, is a partition in presenti, and since it is an unregistered document, therefore, it cannot be relied upon. It is further held that property in dispute was the ancestral property of Sukhnandan, and therefore, he had no right or title to alienate the same to defendant No. 1.
9. Being aggrieved by judgment and decree passed by the trial Court, respondents No. 1, 1(a), 1(b), 2(a), and 3 filed an appeal, which was registered as Civil Appeal No. 49-A/2009. Said appeal was allowed by Additional Judge to the Court of Additional District Judge, Camp Pichhore, District Shivpuri by judgment and decree dated 07-10-2009, and judgment and decree passed by the trial Court was set aside, and it was held that Sukhnandan was the owner of property in dispute, and property was not the ancestral property.
10. Challenging the judgment and decree passed by the appellate Court, it is submitted by counsel for appellants/plaintiffs that the appellate Court has reversed the judgment passed by the trial Court without assigning any reason. Appellate Court has not considered the fact that partition deed dated 13-02-1983, Exhibit D-1, is a partition in presenti, and therefore, it requires registration. In absence of registration, said document was not admissible in law. It is further submitted that according to Laxminarayan (DW-1), property was given to Sukhnandan on Patta, but submitted that Patta has not been produced. Even, there was no pleading in the written Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 7 SA-560-2009 statement that Sukhnandan had ever got any Patta. It is submitted that in fact Sukhnandan had got the property through her aunt, namely, Chhoti Dulaiya, and therefore, property in dispute was an ancestral property. It is further submitted that trial Court has wrongly declined the prayer of plaintiffs to cross-examine their own witness Sitasaran (PW-2), who had turned hostile in cross-examination. It is submitted that when Sitasaran started supporting defendants in cross-examination, then a prayer was made by plaintiffs to cross-examine their own witness, but said prayer was declined by the trial Court by holding that there is no provision to declare such a witness hostile because Sitasaran had not said contrary to what was stated in the affidavit. It is further submitted that even defendants themselves had given a suggestion to Ramesh Chandra (PW-1) that land was earlier in the name of Chhoti Dulaiya and Chhoti Dulaiya was the aunt of Sukhnandan. It is submitted that although said suggestion was also accepted by Ramesh Chandra (PW-1), but once the suggestion was given by defendants themselves, therefore, said suggestion indicates that defendants had also admitted that land originally belonged to Chhoti Dulaiya, and property was inherited by Sukhnandan from Chhoti Dulaiya, who was her aunt. By referring to Exhibit D-10, which is the Khasra Panchasala of the year 1950, it is submitted that Chhoti Dulaiya was recorded as owner, and name of Sukhnandan was mentioned as Krishak. Thus, it is submitted that land in dispute was never the self-acquired property of Sukhnandan, but he had inherited the same from her aunt Chhoti Dulaiya. Furthermore, it is submitted that although defendants had claimed that property in dispute was the self-acquired property of Sukhnandan, but the Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 8 SA-560-2009 source of title of Sukhnandan has not been pointed out by defendants. Learned Senior Counsel for appellants further submitted that in the sale deed, Exhibit ..., it was specifically admitted by Sukhnandan that property in dispute is an ancestral property. However, after institution of the civil suit, a correction deed was got executed on 20-06-2001 by claiming that property in dispute is the self-acquired property. It is further submitted that none of the attesting witnesses of the sale deed were examined, and even Pradeep Kumar, who according to Laxminarayan (DW-1), was present at the time of execution of sale deed also did not enter in the witness box, and Laxminarayan (DW-1) has specifically admitted that he was not present at the time of execution of sale deed. It is further submitted that Laxminarayan has also admitted that draft of sale deed was got prepared by Sukhnandan himself, and therefore, execution of correction deed at a subsequent stage, i.e., after institution of civil suit, was nothing but an attempt to wriggle out of the admission which was made in the sale deed to the effect "that property in dispute is an ancestral property". Thus, it is submitted that appellate Court committed a material illegality by holding that property in dispute was self- acquired property of Sukhnandan.
11. Per contra, appeal is vehemently opposed by counsel for respondents. It is submitted that partition deed dated 13-02-1983 was an acknowledgment of partition. It is submitted that the use of word 'today' in the partition deed would mean that partition was agreed upon between the parties on the same day, and said agreement was reduced in writing. It is submitted that if the partition takes place even a minute prior to execution of Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 9 SA-560-2009 partition deed, even then partition deed has to be treated as an acknowledgment of partition and not a partition deed. Therefore, it is submitted that partition deed dated 13-02-1983, Exhibit D-1, was not required to be registered under Section 17 of the Registration Act. It is further submitted by counsel for respondents that appellate Court has not given any finding with regard to the admissibility of partition deed, Exhibit D-1, therefore, plaintiffs/appellants cannot assail the authenticity and genuineness of partition deed. It is further submitted that appellate Court has taken note of multiple admissions, which were made by plaintiffs themselves, and therefore, reasoning assigned by the appellate Court cannot be said to be contrary to record. It is further submitted that it is true that Sitasaran (PW-2) was not permitted to be cross-examined by plaintiffs, but merely because Sitasaran had spoken something against plaintiffs in his cross-examination, under such circumstances, the trial Court has rightly refused the prayer of plaintiffs to cross-examine Sitasaran (PW-2).
12. Heard learned counsel for parties.
13. This appeal was admitted on following substantial questions of law:-
"(i) Whether on facts and in circumstances of the case, first appellate Court was justified in reversing the judgment and decree of the trial Court on premises of exhibit D/1, a family arrangement reduced into writing but not registered in view of judgment of Supreme Court in the case of Tak Bahadur Bhujil Vs. Debi Singh Bhujil and others, AIR 1966 SC 292? and
(ii) Whether on facts and in circumstances of the case, first appellate Court was justified holding the suit property as self-acquired property by defendant, Sukhnandan?"
14. Heard the Learned Counsel for the parties.
(i) Whether on facts and in circumstances of the case, first appellate Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 10 SA-560-2009 Court was justified in reversing the judgment and decree of the trial Court on premises of exhibit D/1, a family arrangement reduced into writing but not registered in view of judgment of Supreme Court in the case of Tek Bahadur Bhujil Vs. Debi Singh Bhujil and others, reported in AIR 1966 SC 292 ?
15. The defendants/respondents have relied upon partition deed dated 13-02-1983, Exhibit D-1 to claim that partition had taken place and the land in dispute had gone to the share of Sukhnandan, therefore, he had every right or title to alienate the property as per his wishes.
16. The partition deed dated 13-02-1983, Exhibit D-1 reads as under
:
"िलखतम प रवार बटवारा आज दनांक १३-०२-८३ िमती . फागुन सुद १ स. २०३९ को ी सुख न दनजी वड़सेया के आपसी प रवार का बटवारा अचल व चल स प संपूण जायदाद का साथ राजी खुशी रजामंद के जसम िन निलखत ह सा संप न हु आ अचल संप का बटवारा ी रमेशच द जी को अथाई के पास का मकान जोिगयन क तरफ क पूर दोमं जला दुकान एवं ीराम गोपाल वड़सेया के पास का वारा खुली जगह िमला व खेती क जमीन जो रमेशच द जी के नाम ाम एसारा रतवास एवं शंकरपुर मे एवं सं पूण उ ह ं के ह से म रह ी वालकृ ण जी को ी गो व दास जी व राजाराम जी के बीच का पूरा दोमं जला मकान तथा अटा रया पर का उसारा मययारपाने के िमला खेती क जमीन ाम एसरा म जो इनके जो वयम के ह से म एवं इनके ह से म ह रह ी धनीराम जी को ी रामचरणलाल बड़कुल के पास का पूरा मकान जगह ी सीताराम वड़सेया के पास क जगह ी मु नालाल जी के पास क सड़क क दुकान तथा पांच हजार पया िमले खेती क जमीन ाम एसारा क जो इनके नाम वयम के एवं इनके ह से म रह ी ल मीनारायण जी का वाड़ा रज चौक के पास तथा उसके साथ पीछे क अयर क ची िमली खेती क जगह जो ाम एसारा म इनके नाम वयम क है वह इनके ह से म रह ी सुखन दनजी को खेती क जमीन जो ाम बामौर कलॉ म वयम के नाम से है केवल मरा हया क नीचे क प टया जो ी १०८ महादे वजी के म दर को है उसको छोड़कर स पूण जमीन इनके वयम के नामक इनके ह से मे रह रहने के िलये जवतक यह रहे गे रज के पास वाले वाड़े म दो कमरा इनको रहने के िलये रहग इनके जीवन पय त इनका अिधकार रहे गा वाद म यह कमरा ल मीनारायाण के ह रहे ग बस टे ड पर तालाब के बॉध के पास ी रामदास नोगरइया क च क के पास क जगह एवं वलैयावारा (वार ) जगह पर सव उ सभी पांचो के संजात रह जन पर सबका समान अिधकार रहे गा उपरो ानुसार चल स प का बटवारा होकर सबने अपना २ ह सा ा कया।"Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54
NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 11 SA-560-2009
17. Thus, it is clear that on 13-02-1983, a partition took place and it was reduced in writing. It is submitted by Counsel for respondent, that even in those cases, where the partition has taken place just one minute before preparing the partition deed, still it would be an acknowledgement of partition and is not required to be registered under Section 17 of Registration Act. Accordingly, the Counsel for respondent was requested to point out precedents to show that if partition has taken place just prior and on the same day of execution of partition deed, then said partition deed shall be considered as an acknowledgment of previous family settlement. However, it is fairly conceded by Shri Khedkar that he has no judgment in his favour to support the aforesaid contention.
18. The Supreme Court in the case of Tek Bahadur Bhujil (supra) has held as under :
"13. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess..........."
19. The Supreme Court in the case of Siromani and others Vs. Hemkumar and others, reported in 1968 SC 1299, has held as under :
"4. The first question to be considered in this appeal is whether the deed Ex. D-4 dated December 27, 1943 is admissible in evidence. On behalf of the appellants Mr Gupte put forward the argument that the document is inadmissible in evidence as it effected the partition of the properties of the value of more than Rs 100 and it was not registered. It was argued that Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 12 SA-560-2009 there was allotment of specific properties to individual coparceners in this document and its registration was therefore compulsory under Section 17(1)(b) of the Registration Act. In our opinion, the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenary and there was no partition of the properties by metes and bounds. It is not possible to accept this argument as correct. The relevant portion of Ex. D-4 is to the following effect:
"For the partition of our joint land in MauzaTilgi and Supa and house and utensils etc. and Dhan, movable and immovable property, amongst us three brothers, the Panchas have been appointed. The partition and distribution effected by the under mentioned Panchas will be acceptable to us and also the undermentioned conditions will also have to be accepted by us.
1. Out of lease land in MauzaTilgi and MauzaSupa totalling 123 acres, Hem Kumar's share including Jethosi will be 51 acres that is 51 shares and Dinmani's 39 acres that is 39 shares and minor Shiromani's whose guardian is SmtSobhagwati 33 acres that is 33 shares. The three of them will be in possession of the same. Out of 123 acres of land, the land near MungaTikraGara Para will be given to Dinmani and minor Shiromani through guardian SmtSobhagwati for building a house instead of the old house. For building of the house in MungaTikra the three brothers will give Rs 60. Out of the 'MittiKhatu' and Gobarkhatu, there is in the house, after deducting Hemkumar's tenth share will be divided into three equal shares amongst the three brothers and they will take it so. They will also divide the buried Khatu into their shares.
* * *
5. That out of the old house the house on the side of the village the length of which is 30 haath and the stone used in it and the house on the side of 'Patav' the length of which is 30 haath, is given to Hem Kumar in his share and as Jethosi and the Bamboo, wood etc. used in the other house is given to the two brothers Dinmani and Shiromani. Besides the house and Kotha there is old and new wood and 3 new doors. All this is given to Dinmani and Shiromani."
With regard to ryoti lands, para 1 definitely states that Hemkumar is allotted 51 acres, Dinmani 39 and Siromani 33 acres. With regard to the joint family house there is partition between the three brothers by metes and bounds and specific shares are given to each. In view of the recitals in Ex. D-4 we are of opinion that there is allotment of specific properties to individual coparceners and the document therefore falls within the mischief of Section 17(1)(b) of the Registration Act. It follows that Ex. D-4 is not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property has ceased to be joint property. Of course, the document is admissible to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the date of the instrument dated December 27, 1943 (See the decision of Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 13 SA-560-2009 this Court in Nanni Bai v. Gita Bai."
20. The Supreme Court in the case of Yellapur Uma Maheshwari Vs. Buddha Jagadheeswara rao, reported in (2015) 16 SCC 787 , has held as under :
"11. Now the issues that fall for consideration are:
11.1. (i) Whether the courts below were right in holding that Exts.
B-21 and B-22 are not admissible in evidence as they are compulsorily registrable documents?
11.2. (ii) Whether Exts. B-21 and B-22 are admissible in evidence for collateral purpose?
12. Before we go into the merits of the matter, we deem it appropriate to extract the relevant provisions of the Registration Act, 1908:
12.1.Section 17 of the Registration Act, 1908 "17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act 16 of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(f) any decree or order or award or a copy thereof passed by a civil court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under Section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 14 SA-560-2009 or contingent of the value of one hundred rupees and upwards to or in immovable property; and
(g) agreement of sale of immovable property of the value of one hundred rupees and upwards:
Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub- section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees." 12.2.Section 49 of the Registration Act, 1908 "49. Effect of non-registration of documents required to be registered.--No document required by Section 17 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:
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 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
13. Section 17(1)(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 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 Act.
14. Coming to the facts on hand, Defendant 1 wanted to mark Exts. B-21 and B-22; according to her, these two documents are agreement and a memorandum which were unregistered and unstamped documents and do not require registration. We have seen Exts. B-21 and B-22 which are placed before us. Ext. B-22, dated 4-6-1975 as per the recitals, is an agreement between Respondent 1-plaintiff, Appellant 1-Defendant 1 and late Mahalakshamma. Clause 1 of the agreement speaks about relinquishment of rights of Mahalakshamma in favour of Respondent 1- plaintiff and Appellant 1-Defendant 1 and Clause 4 specifies that the life estate of Mahalakshamma is devolved upon Respondent 1-plaintiff and Appellant 1-Defendant 1 equally. It is further specified that the stock amount of Rs 50,000 in the shop was given to Mahalakshamma and left over amount will be divided between Respondent 1-plaintiff and Appellant 1-Defendant 1 and further, it was agreed upon that Mahalakshamma was entitled to reside in the house where she was residing. She was at liberty to reside in the house of Respondent 1-plaintiff and Respondent 1-plaintiff and Appellant 1-Defendant 1 shall not raise any dispute over this. Coming to Ext. B-21, dated 5-6-1975, which is an agreement between Mahalakshamma, Respondent 1-plaintiff and Appellant 1-Defendant 1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties to the agreement. It is stated in the memorandum, Ext.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 15 SA-560-2009 B-22, that each of them having partitioned the properties by good and bad qualities, have been enjoying the respective properties that fell to their shares; in proof thereof, the deed of memorandum is executed. Taking us through the recitals of these two documents, the learned Senior Counsel tried to impress upon this Court, particularly through the last few lines from Ext. B-21, that these documents are only evidencing the past transaction of partition that has taken place but through these documents no rights in immovable property have accrued to the parties as envisaged under Section 17 of the Registration Act and which makes these documents out of the purview of Section 49 of the Registration Act.
15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in ChinnappareddigariPedaMutyala Reddy v. ChinnappareddigariVenkata Reddy has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance."
21. If the partition deed, Exhibit D-1 is read, then it is clear that this document has been given the title of "Written Family Partition". It is also mentioned that mutual partition of immovable and movable properties of Sukhnandan takes place (संप न हुआ). Thereafter, it was clarified that which Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 16 SA-560-2009 property is given to whom. Thus, Partition deed dated 13-02-1983, Exhibit D-1 was a partition in presenti and not an acknowledgment of partition which had taken place on earlier occasion. Therefore, in the light of Section 17 of Registration Act, its registration was mandatory. Although the unregistered partition deed may be considered for collateral purposes, but not for primary purpose, i.e., division of joint properties by meets and bounds. It is true that partition deed dated 13-02-1983, Exhibit D-1 was signed by all the parties, but in absence of registration, no oral evidence can be relied upon.
22. Further more, a very shocking argument was also made by Counsel for respondent that since, the Appellate Court has also not relied upon this partition deed, Exhibit D-1 and the Trial Court has already held the said document as inadmissible for want of registration, therefore, whether registration of partition deed dated 13-02-1983 Exhibit D-1 was mandatory or not is not necessary to be decided and submitted that partition deed dated 13-02-1983, Exhibit D-1 may be ignored.
23. Thus, it is held that since, the partition deed dated 13-02-1983 Exhibit D-1 was a partition deed in presenti, therefore, registration was mandatory and since, it is an unregistered document, therefore, it is not admissible. Therefore, first Substantial Question of Law is answered in affirmative.
(ii) Whether on facts and in circumstances of the case, first appellate Court was justified holding the suit property as self acquired property by defendant, Sukhnandan?
Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 17 SA-560-2009
24. It is the case of the appellants, that the property in dispute is the ancestral property, whereas it is the case of respondents that the property in dispute was the self-acquired property of Sukhnandan.
25. Before considering the facts of the case, this Court would like to consider that on whom, the burden of proof lies to prove that the property in dispute was an ancestral property?
26. The Supreme Court in the case of Govindbhai Chhotabhai Patel and others vs. Patel Ramanbhai Mathurbhai, reported in AIR 2019 SC 4822 , has held as under :
"21. In view of the undisputed fact, that Ashabhai Patel purchased the property, therefore, he was competent to execute the Will in favour of any person. Since the beneficiary of the Will was his son and in the absence of any intention in the Will, beneficiary would acquire the property as self- acquired property in terms of C.N. Arunachala Mudaliar case. The burden of proof that the property was ancestral was on the plaintiffs alone. It was for them to prove that the Will of Ashabhai intended to convey the property for the benefit of the family so as to be treated as ancestral property. In the absence of any such averment or proof, the property in the hands of Donor has to be treated as self-acquired property. Once the property in the hands of Donor is held to be self-acquired property, he was competent to deal with his property in such a manner he considers as proper including by executing a gift deed in favour of a stranger to the family."
27. The Supreme Court in the case of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and others, reported in (1954) 1 SCC 544 , has held as under :
"14. Apart from the watan lands which are admittedly ancestral, and apart from the purchases made under Exts. D-36, D-61 and D-64 and the houses which we have held to be self-acquisitions, there are certain plots mentioned in Schedule A in which the plaintiff claims a half-share. These are the sites on which the houses have been constructed. The contention of the plaintiff is that they are ancestral properties. The trial court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral, and on that ground, decreed to the plaintiff a half-share in Sl. Nos. 639 and 640. The Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 18 SA-560-2009 High Court reversed this decision observing generally that the evidence relating to the house sites was not clear, "when they were acquired or by whom", and that in the absence of evidence showing that they formed part of the joint family properties, they must be held to be self-acquisitions. With respect, we are unable to agree with this view. While it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self-acquisition to establish it."
28. Now the facts of this case shall be considered in view of the burden to prove that the property was ancestral and not self acquired property of Suknandan.
29. Sukhnandan executed the sale deed in favour of Sudeep Kumar on 26-04-2001. Immediately, after coming to know about the aforesaid sale deed, the plaintiff/appellants filed civil suit on 09-05-2001. It is not out of place to mention here that Rameshchandra (P.W.1) has stated that he has filed sale deed dated 26-04-2001, Aks map, KistbandKhatoni of year 2000- 01, objection to mutation as Exhibit P-1. Although the certified copy of sale deed dated 26-04-2001 is in the record, but it appears that it was not marked as Exhibit. In the said sale deed, it was mentioned by Sukhnandan that " व य भूिम मेर पु तैनी है " . Thereafter, Sukhnandan executed the correction deed on 20-06-2001, Exhibit D-3, thereby mentioning that in sale deed dated 26-04- 2001, it was wrongly mentioned that the property is ancestral but it is a self- acquired property.
30. Thus, it is clear that in sale deed dated 26-04-2001, Sukhnandan had made categorical declaration that the property under sale is an ancestral property and accordingly, civil suit was filed on 09-05-2001. From order sheet dated 10-05-2001, it is clear that a direction was given by the Trial Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 19 SA-560-2009 Court to serve the defendants today itself by special process server apart from service of notice by registered as well as ordinary modes. Thereafter, as per order sheet dated 19-05-2001, it was mentioned by the Trial Court, that the defendants were already served for their appearance on 17-05-2001, but since the Court was on leave, therefore, the reader had adjourned the case for 19-05-2001. Although the defendants had not appeared but it was held that since the case is not fixed for hearing, therefore, defendants cannot be proceeded ex-parte. Thus, it is clear that after the service of notice of suit, the defendants had realised that solemn declaration by Sukhnandan in sale deed dated 26-04-2001, that "the property in dispute is ancestral property"
would cause irreparable loss to them, therefore, on 20-06-2001, Exhibit D-3, a correction deed was executed, thereby mentioning that the solemn declaration made in sale deed dated 26-04-2001 that the property in dispute is ancestral property is wrong, but in fact the property under sale is self- acquired property of Sukhnandan. Thus, the correction deed dated 20-06- 2001, Exhibit D-3 was nothing but an attempt to wriggle out of the ancestral nature of property which was declared by Sukhnandan in sale deed dated 26- 4-2001.
31. Now the next question for consideration is that whether the solemn declaration made by Sukhnandan was a mistake on the part of Sukhnandan or it was a conscious declaration.
32. Laxminarayan (D.W.1) is the father of Sudip Kumar and son of Sukhnandan. In para 2 of his examination in chief, he had stated that the property in dispute was the self-acquired property of Sukhnandan and he had Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586
20 SA-560-2009 partitioned the same amongst himself and his sons on 13-02-1983. Sukhnandan had kept the disputed property for himself and the same was alienated by Sukhnandan by sale deed dated 26-04-2001, but by mistake it was mentioned in the sale deed that the property under sale is ancestral property which was corrected by executing correction deed dated 20-06- 2001. In cross examination, this witness admitted that sale deed was got typed by his father Sukhnandan. He claimed that he was not present at the time of drafting, but clarified that he was informed by his son that sale deed was got drafted by his father Sukhnandan. He also admitted that stamp papers for execution of sale deed were purchased by his father Sukhnandan. He admitted that in the sale deed, it was mentioned that the property is ancestral but clarified that it was written by mistake. He further admitted that as soon as the civil suit was filed, he got the correction deed executed. (The demeanour of this witness was recorded by the Trial Court and it was mentioned that this witness is creating all sorts of hurdles in recording of evidence and accordingly, warning was given to maintain decorum of the Court otherwise, action would be taken against him). He claimed that some part of the land was succeeded by Sukhnandan from Chhoti Dulaiya and some was got by Patta. He denied for want of knowledge that Chhoti Dulaiya was aunt of Sukhnandan, and he had got the property in succession. He admitted that he doesnot know as to when Patta was granted to Sukhnandan and also admitted that he had not seen the Patta. He also admitted that he has not produced the Patta. He also admitted that the name of Sukhnandan was mutated after the name of Chhoti Dulaiya. He was also Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 21 SA-560-2009 unable to show that who had granted Patta to Sukhnandan. He denied that the properties were not partitioned, but claimed that partition was done by his father.
33. According to Laxminarayan (D.W.1), Sudip Kumar was present at the time of execution of sale deed dated 26-04-2001. But for the reasons best known to the defendants, Sudip Kumar has not been examined. Furthermore, no attesting witness of sale deed dated 26-04-2001 has been examined by the defendant. Thus, whether the solemn declaration made by Sukhnandan in his sale deed dated 26-04-2001 was mistake or not could not be proved by the defendant specifically when he has categorically admitted that correction deed dated 20-06-2001, Exhibit D-3 was executed after the institution of sale deed, and it is also clear from the order dated 19-05-2001 that notices of civil suit were already received by the defendants.
34. Further suggestion was given by the defendants to Ramesh Chandra (P.W.1) that the land in dispute originally belonged by Chhoti Dulaiya who was aunt of Sukhnandan and this suggestion was admitted by Ramesh Chandra (P.W.1). A further suggestion was given to Ramesh Chandra (P.W.1) that Chhoti Dulaiya was the owner of survey nos. 809, 845, 846 and in the revenue records of Samvat 2007, the name of Sukhnandan was recorded as Krishak. It was also suggested that aforesaid survey nos. were renumbered as 985, 1198, 1199, 1200, and 1201, and new number of 1199 is 1661, and survey no. 1198 is 1662. It is not out of place to mention here that by sale deed dated 26-4-2001, survey nos. 1661 min and 1662 min were sold to Sudeep. Thus, it is clear that it is the case of the defendants Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 22 SA-560-2009 themselves that Chhoti Dulaiya was the owner of the property in dispute and Sukhnandan got the said land after death of Chhoti Dulaiya and Chhoti Dulaiya was the aunt of Sukhnandan. Thus, it is clear that Sukhnandan had got the land in succession and therefore, it was rightly mentioned by Sukhnandan in his sale deed dated 26-04-2001 that the property is ancestral property.
35. Under these circumstances, this Court cannot ignore the solemn declaration made by Sukhnandan in his sale deed dated 26-04-2001 that the property in dispute is ancestral property.
36. Thus, it is clear that the plaintiffs had discharged their initial burden that the property in dispute was ancestral property of Sukhnandan and defendants have failed to disprove said fact and have also failed to prove that the property in dispute was the self-acquired property of Sukhnandan. The defendants have also failed to prove that any partition had taken place.
37. Accordingly, second Substantial Question of Law is also answered in negative.
38. No other argument was advanced by Counsel for the parties.
39. Before parting with the judgment, this Court would like to comment upon the manner in which the Civil Appeal was decided by the Appellate Court. The Supreme Court in the case of L.N. Aswathama and Another vs. P. Prakash, reported in (2009) 13 SCC 229 , has held as under :
"7.We find that the High Court did not formulate any points for consideration, nor examine the relevant issues or evidence. It reversed the well considered judgment of the trial court mainly on the ground that khata number of the suit property, given in two of the documents relied on by the plaintiffs did not tally. It overlooked the fact that the trial court had recorded its findings based on other evidence, by excluding the said two Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 23 SA-560-2009 documents from consideration. The High Court also ignored the explanation for the discrepancy, offered by the plaintiffs.
8.The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis of conjectures and surmises or without analyzing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence. The High Court has ignored these well settled principles. In these peculiar circumstances, we have to examine the correctness of the findings recorded by the High Court."
40. In the present case, the First Appellate Court did not consider the evidence at all, and directly jumped to the conclusions to hold that Sukhnandan was the owner of the property and correction deed was not forged document. It was nobody's case that correction deed dated 20-06- 2001, Exhibit D-3 was a forged document. The manner in which the Appellate Court had reversed the findings recorded by the Trial Court cannot be appreciated and it is held that the judgment passed by the Trial Court was reversed on the basis of surmises and conjectures.
41. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that the judgment and decree passed by the Appellate Court cannot be given the stamp of judicial approval and hence, the judgment and decree dated 07-10-2009 passed by Additional Judge to the Court of Additional District Judge, Camp Pichhore, Distt. Ashoknagar in Civil Appeal No. 49-A/2009 is hereby set aside and the Judgment and decree dated 15-01-2007 passed by Civil Judge Class II, Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54 NEUTRAL CITATION NO. 2025:MPHC-GWL:15586 24 SA-560-2009 Khaniyadhana, Distt. Shivpuri in Civil Suit No. 125-A/2003 is hereby restored.
42. Appeal succeeds and is hereby allowed with costs. Advocate Fee is certified.
(G. S. AHLUWALIA) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 29-07-2025 15:44:54