Karnataka High Court
Smt Ismailbee vs Mehtab Saheb on 22 October, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 22ND DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.868/2007
BETWEEN:
SMT. ISMAILBEE W/O. MOHD. KHAJA SAHEB
AGED 60 YEARS, OCC: HOUSEHOLD,
R/O. HIRAPUR, TQ. & DIST. GULBARGA -585 103
.... APPELLANT
(BY SRI AMEET KUMAR DESHPANDE., ADVOCATE)
AND:
MEHTAB SAHEB S/O. SHAIKH GHUDU SAHEB
OCC: BUSINESS,
R/O. HIRAPUR, TQ. & DIST. GULBARGA - 585 103.
... RESPONDENT
(BY SRI R. S. SIDHAPURKER, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING
TO ALLOW THIS APPEAL AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 20.09.2006 PASSED BY
THE LEARNED III ADDL. CIVIL JUDGE (SR.DN.),
GULBARGA IN R.A.NO.58/2006, PARTLY SETTING ASIDE
THE JUDGMENT AND DECREE DATED:04.02.2006
PASSED BY THE LEARNED V ADDL. CIVIL JUDGE (JR.DN).
GULBARGA, IN O.S.NO.44/05, AND TO DECREE THE SUIT
OF THE PLAINTIFF AS PRAYED FOR IN THE PLAINT.
THIS APPEAL HAVING HEARD RESEREVED FOR
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING;
2
JUDGMENT
This appeal by the plaintiff lays challenge to the judgment and decree passed by the First Appellate Court in R.A.No.58/2006 dated 20.09.2006 wherein the First Appellate Court partly allowed the appeal to the extent of grant of perpetual injunction and set-aside the judgment and decree passed in O.S.No.44/2005 dated 04.02.2006 by the V Addl. Civil Judge (Jr. Dn), Gulbarga, in respect of declaration of title over the suit schedule property and dismissed the suit in respect of that prayer.
02. The parties will be referred as plaintiff and defendant as per their respective ranks before the Trial Court in this judgment for convenience.
03. The brief contention of the parties are as under:
3
The plaintiff - appellant instituted a suit for declaration of title and permanent injunction in respect of suit property which is situated in Hirapur village Taluka and District Gulbarga. It is contended that the plaintiff and defendant are the sister and brother. The house bearing No.2-188 measuring 75 feet x 122 feet consisting of 06 rooms was the property of father of plaintiff and defendant. After his death the parties to the suit and another deceased brother of the defendant got partitioned the suit property among themselves. The northern portion of the said house fell to the share of Abdul Hameed. The middle portion was given to defendant and southern portion was given to plaintiff.
They are re-numbered as 2-188/1, 2-188/2, 2-188/3 respectively. Each portion measures 25 feet x 120 feet.
From the date of division, all the parties were in separate possession and enjoyment of their respective shares.4
It is further contended by the plaintiff that subsequently the plaintiff and defendant got exchanged their respective portions wherein House No.2-188/2 was taken by the plaintiff and House No.2-188/3 taken by the defendant. In this regard a memorandum of exchange deed was signed by all the parties on 08.10.1981. Their names were also entered in the Corporation in respect of their property. The plaintiff sold some area in the said property to the extent of 40 feet x 25 feet to one Sharanappa.
It is further the case of the plaintiff that, she intend to construct room, but the defendant started objecting for it. The plaintiff stopped the construction, as she has also no funds. But again on 21.01.2005 when she intended to continue the construction, the defendant objected and denied her title and threatened to dispossess her. Hence, she filed a suit for declaration of her title over the suit property and perpetual 5 injunction against the defendant from interfering her possession over suit property.
04. The defendant filed his written statement contending as under:-
The defendant has admitted that the plaintiff is his sister and there was another brother by name Abdul Hameed. Defendant also admitted that his father had a house consisting of 06 rooms and a open yard. He has also stated that after death of his father, plaintiff and defendant and his another brother made arrangements between themselves for their family needs in respect of said property and same was reduced into writing. But it is denied that there was any partition nor they entered into any partition. It is contended that alleged memorandum of partition deed and exchange deed are illegal and not in accordance with the Mohammaden Personal Law. So, the same is not binding on the defendant. The original memorandum of partition is 6 dated 25.06.1981. The alleged exchange deed and partition deed are not registered document. Further, it is contended that the alienation made by the plaintiff is not through any registered document and will not confer any title on the purchaser. The exchange deed was also prepared under the pressure of the plaintiff and not binding on the defendant. It is contended that defendant has no objection for plaintiff to reside in the suit property during her life time, but cannot claim any title over it. Only under the influence of her another brother Abdul Hameed the plaintiff has filed the suit.
Plaintiff has no lawful title. She ought to have filed a proper suit, but she is not entitled for declaration, unless the property is lawfully settled in her favour as per Muslim Law. With these main contentions, defendant has prayed to dismiss the suit.
05. On the basis of the above pleading the Trial Court framed the following issues:-
7
01. Whether plaintiff proves her lawful ownership and peaceful possession over suit schedule property as on the date of suit?
02. Whether the plaintiff proves the alleged interference of the defendant as averred in the plaint?
03. Whether defendant proves that suit property is worth, exceeding the pecuniary jurisdiction of this Court?
04. What are the reliefs parties are entitled?
05. What order or decree?
06. Thereafter the plaintiff got examined herself as PW.1 and got marked seven documents as Exs.P.1 to P.7. The defendant got examined himself as DW.1 and got marked six documents as Ex.D.1 to 6.
07. After hearing both sides, the Trial Court decreed the suit.8
08. Aggrieved by the same, the defendant preferred an appeal bearing R.A.No.58/2006 before the III Addl. Civil Judge (Sr.Dn), Gulbarga, which came to be allowed partly granting relief of permanent injunction, but set side the judgment and decree for declaration of title granted by the Trial Court and dismissed the suit in respect of that relief.
09. Aggrieved by the same this Regular Second Appeal is filed by the plaintiff on the following grounds:
(a) That the judgment and decree of the First Appellate Court in refusing to grant declaration of title is contrary to law.
(b) That the defendant admitted the ownership of the plaintiff.
(c) That the title of the plaintiff relates to the division held among the parties to the suit.9
(d) That the First Appellate Court has not properly appreciated the oral and documentary evidence.
(e) Even without there being exchange deed Ex.P.1, the plaintiff is entitled for declaration.
With these main grounds the appellant prayed to set aside the impugned judgment by allowing the appeal.
10. While admitting the appeal the following substantial question of law was framed on 20.04.2009;
"Whether the lower appellate Court was justified in overlooking the evidence available on record and Ex.P.1 having been admitted in evidence could be negated by the appellate Court as the same has been admitted without objection?"10
11. Heard Sri. Ameet Kumar Deshpande, learned counsel for the appellant and Sri. R. S. Sidhapurkar, learned counsel for the respondent.
12. Sri. Ameet Kumar Deshpande, learned counsel for the appellant argued that, earlier partition took place between plaintiff, defendant and another brother, as per the memorandum of settlement. Even defendant in his cross-examination at Page No.6 has clearly admitted the plaintiff case. The transaction mentioned in Ex.P.1 memorandum of exchange deed is acted upon and possession of the plaintiff is also admitted. The family members have made transactions and sold part of the property which fell to their share. In the year 1981 the exchange deed was signed by the parties. It is only a family settlement and it does not require registration. The learned counsel further argued that the said document can be admitted in the evidence under Section 49 of the Registration Act as transactions 11 is acted upon and admitted. The learned counsel further argued that the First Appellate Court is not justified in declining the relief of declaration. In support of his contention the learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Subraya M.N. V. Vittala M.N. & others reported in AIR 2016 Supreme Court 3236. He also relied another decision of the Hon'ble Supreme Court in the case of Ravinder Kaur Grewal & others V. Manjit Kaur & others reported in 2020 SCC OnLine SC 612.
13. Per contra, Sri. R. S. Sidhapurkar, learned counsel for the respondent argued that as per the Muslim Personal law during partition the son get double the share to that of daughter. The mother of the plaintiff was alive, she has got 1/8th fixed share in her husband's property as per Mohammeden Law. Therefore, simply some arrangement is made for residing, cannot construed as either partition or 12 relinquishment. Further he argued that if Ex.P.1 - memorandum of exchange deed is perused it is crystal clear that it is not a family arrangement, but it is exchange deed, which requires compulsorily registration. He further contended that if page No.3 of the said Ex.P.1 - document is perused then it is crystal clear that the title passed under the said document which is not permissible without that document - exchange deed being registered under the Registration Act. The transfer of title as per the said document is in "presentia". The said document is not properly stamped. The declaratory decree cannot be granted only on the basis of such unregistered and insufficiently stamped document. The document cannot be treated as a family arrangement, as it is made after the alleged memorandum of partition. The document itself reveals that, it is an exchange of property by way of instrument. The defendant only admitted the possession of the plaintiff. According to defendant the plaintiff being his 13 sister can reside in the suit house till her life time, but she cannot claim exclusive title, as she has no such right or title over the suit property. Even her share is to be determined as per the provisions of Muslim Personal Law wherein the shares are fixed as per the table provided under Mohamedden law regarding shares. The learned counsel further argued that the principles stated in the decisions relied upon by the learned counsel for the appellant are not applicable to the facts and issues and the nature of the document involved in this suit as the said decision are based on memorandum of family partition-settlement deed. With these main arguments, he prayed to dismiss the appeal.
14. I have carefully perused the pleadings, evidence, judgment and decree of the Trial Court and the First Appellate Court and also the contents of appeal memo.
14
15. The undisputed contentions are that, the parties to the suit are Mohameddens. They are governed by Muslim Personal Law in respect of the devolution of shares after the death of their father. Admittedly, the suit property was originally belong to father of the plaintiff and defendant. There was one more brother. He is not party to this suit or to the memorandum of exchange deed - Ex.P.1. The mother of the plaintiff was alive on the date of memorandum of partition agreement. It is the case of plaintiff that there was a memorandum of partition. Herself being a sister and her two brothers have divided the said property in three equal shares. The said property is given separate numbers as 2-188/1, 2-188/2 and 1-188/3. From the date of division they are in separate possession and enjoyment of their respective shares, each measuring 25 feet x 120 feet. Thereafter the plaintiff and defendant exchanged their respective share portion between 15 themselves through memorandum of exchange deed dated 08.10.1981 which is Ex.P.1.
16. The Trial Court while answering Issues No.4 and 5 held that "on the basis of discussion made supra in Issues No.1 to 3 the plaintiff has failed to place documents of title and Ex.P.1 being not proved since it is unregistered. But still held that as per Ex.P.2 to Ex.P.7 the plaintiff has derived the title through inheritance". Ex.P.2 to Ex.P.7 are admittedly the property register card, tonch map of city survey Gulbarga, special notice issued by the Corporation, intimation issued by the Corporation regarding payment of tax, tax paid receipts and plan for the construction of House No.2-188/2. None of these documents establishes title to the plaintiff.
17. The First Appellate Court came to a conclusion that Ex.P.1 the exchange deed is styled as a memorandum of exchange, wherein the share allotted to 16 the defendant was exchanged with a share allotted to the plaintiff, thereby there is actual transfer of immovable property between the parties under the said document. The First Appellate Court further held that it being unregistered document is rightly discarded by the Trial Court while considering the title, but on the basis of revenue documents and tax paid receipt and intimation of the corporation upheld the title of the plaintiff, which is incorrect. The First Appellate Court relied on the decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh vs Keshav Ram and others reported in ILR 1998 KAR Page 1, wherein it is held that "Entry in a Revenue record or Papers by no stretch of imagination can form basis for declaration of title". When Ex.P.1 is discarded, there is no other evidence to show the title of the plaintiff over the suit property. Simply, on the basis of the alleged admission of the defendant, the title of the plaintiff over the suit property was declared by the Trial 17 Court and same is set-aside by the First Appellate Court.
18. It is settled principles of law that when a person who comes to the Court seeking a discretionary relief of declaration of title over immovable property, he or she must produce legally admissible evidence to establish his/her title over the said property. It is also settled principle of law that plaintiff has to stand or fall on his own feet he cannot take weakness of the defendant. The title suit cannot be decreed only on the basis of so called admission of the opposite party. The said title has to be proved independently and that right and title shall be established by clear evidence to declare the title of the party over immovable property. In this regard there is a decision of the Hon'ble Supreme Court of India reported in (2014) 2 SCC 269 in the case of Union of India and others vs Vasavi Cooperative Housing Society Limited and others, wherein it is held at Para Nos.15, 16, 17, 19 and 21 as under:- 18
"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabilises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration.
17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira observed that (AIR p.37, para 20) "20.........in a suit [for declaration] if the plaintiffs are to succeed they must do so on the strength of their own title."19
19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of plaintiff's own title, the plaintiff must be non-suited.
21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. of the City of Bangalore v. M. Papaiah this Court held that: (SCC p.615, para 5) "5. .... it is firmly established that revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law."
In Guru Amarjit Singh v. Rattan Chand this Court has held that: (SCC p.352, para 2) "2. .......that the entries in Jamabandi are not proof of title". In State of H.P. v. Keshav Ram this Court held that: (SCC p.259, para 5) "5. ........an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs."
20
19. It is borne out from the records and evidence in this case that there was already a memorandum of partition between the plaintiff and defendant in respect of the suit schedule property. Of course that deed is not produced before the Court. But it is evident that the said agreement or memorandum of partition or a family arrangement is also an unregistered one. The plaintiff claims under the said memorandum of partition or family arrangement that the property had fallen to her share and she was in exclusively possession of the same as owner. Under the principles of Mohammeden Law a person acquires a share in the property only after the death of their father. Succession opens only on the death of propositor in the family. The shares of son, daughter, mother and wife are all fixed as per the table of sharers provided under the principles of Mohammeden law. Be that as it may.
21
20. Now, the said memorandum of exchange deed - Ex.P.1, if carefully perused, it is evident that it is not a family arrangement, but it is an exchange deed in which the immovable property is exchanged between the parties. Because, according to plaintiff as per earlier memorandum of partition, prior to this Ex.P.1 - deed, the property was divided and each sharers were in possession and enjoyment of their respective shares as a owners. The subsequent memorandum of exchange deed at Ex.P.1 cannot be a family arrangement of recording subsequent partition, as there was no property available for partition according to the plaintiff and one of the brother to whom a share was allotted through earlier memorandum of partition is not a party to this Ex.P.1.
21. It is settled principle of law that nomenclature given to the document is not decisive factor but the nature and substance of the transaction 22 has to be determined with reference to the terms of the documents. 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.
22. Therefore, it is necessary to refer the nature, substance and the terms of the document to determine its admissibility. The said Ex.P.1 reads as under:-
"MEMORANDUM OF EXCHANGE (Second Set) This Memorandum of Exchange is executed on this the 18th day of October 1981 at Village Hirapur, Taluka and District Gulbarga by and among, between (1) Mehatab Sab S/o Shaikh Ghudu Saheb, aged about 30 years, occupation Coolie, R/o Village Hirapur, Taluka and District Gulbarga, and (2) Ismail Bi W/o Mohammed Khaja Saheb and D/o Shaikh Ghudu Saheb, aged about 40 years, occupation House-hold, Resident of Village Hirapur, Taluka and District Gulbarga, on the following terms and conditions as under:-23
1) Whereas the Executant No.1 is the real brother of the Executant No.2 besides both the Executants have another brother by name Abdul Hameed S/o Shaikh Ghudu Saheb, Resident of village Hirapur. The Executants hereto have their aged Widow mother Mehabub Bi W/o Shaikh Ghudu Saheb, aged 70 years, residing in Village Hirapur Taluka Gulbarga.
2) And Whereas the only Ancestral Property of the family of the Executants hereto consisting of a house bearing Panchayat No.2-188, consisting of 6 rooms and open Court-yard in all measuring 75' North-South and 112' East- West, was partitioned among the Executants hereto and their another brother Abdul Hameed, by a Memorandum of Partition dated 25th June 1981 executed and signed before the District Notary Gulbarga, into 3 Equal shares. Accordingly the Executants and their another brother are in occupation and enjoyment of their respective shares. 24
3) And whereas the Executants hereto, for the convenience adjustment and for the personal reasons, have agreed to exchange of their respective shares of the property fallen to their share under the said Memorandum of Partition, in favour of one another.
4) And whereas the share allotted to the First Executant, stands now exchanged in favour of the Second Executant described in more detailed in Red Colour in the annexed plan. The said share now exchanged in favour of the 2nd Executant measures 25½' x 112' open space and 2 rooms in all measuring 25' and 11½' with the 2 doors, described in the red colour, the boundaries of which are as under:
East: 5' wide lane and thereafter house of Burhanuddin S/o Abdul Kareem Sab Kotwal.
West: 24' wide road and thereafter house of
Kashiraya
North: House-portion and the Open Yard fallen
to the share of Abdul Hameed,
bearing Panchayat No.2-188/1,
measuring 25' x 112'.
25
South: House portion and the open space fallen
to the Share and now exchanged in
favour of the Executant No.1, bearing Panchayat No.2-188/3, measuring 25' x 112' Note: The share exchanged in favour of Executant No.1, bears the Panchayat No.2-188/3
5) And whereas the share allotted to the Second Executant stands now exchanged in favour of the 1st Executant described in more detail in Yellow colour in annexed plan. The said share now exchanged in favour of First Executant measures 25' x 112' open space and Two rooms measuring 25' x 11½' with one door, described in the yellow colour, the boundaries of which are as under:
East : 5' wide lane and thereafter, House of Burhanuddin S/o Abdul Kareem Saheb Kotwal.
West : 25' wide road
North: The share fallen and now exchanged in
favour of the Second Execuntant,
bearing Panchayat No.2-188/2,
measuring 25' x 112'
South: Open space and the Govt. Latrine.
Note: The share exchanged in favour of Executant No.2, bears the Panchayat No.2-188/2.26
6) And whereas the executants hereto with the mutual consent and the understanding have got exchanged of their shares in favour of one another as described herein the presence of the following witnesses.
7) The parties hereto agrees and undertake to construct the in between Compound Wall of their Shares with the Joint expenses as and when desired without any execuse.
8) And whereas the Second Executant shall have no objection for the executant No.1 to enjoy the share exchanged in his favour as he pleases and the 1st Executant is also at Liberty to sell his share in full or in part. The Second Executant shall Execute such sale deed in favour of the purchaser if she is called upon to do the same, as and when required, and as desired by the Executant No.1 jointly along with him.
9. And whereas the said Exchange having taken place and effected orally in the presence of the witnesses at village Hirapur, this Document has been reduced in writing by getting it typed at Gulbarga.
27NOW THIS MEMORANDUM OF EXCHANGE WITNESSETH as under:-
I. The parties hereto shall be the absolute owner in exclusive possession of their respective share allotted and exchanged in favour of one another by the Virtue of this document and as described in the annexed plan. Henceforth the parties hereto shall enjoy and occupy of their respective shares exchanged in their favour as they pleased without any prejudice to one another and to develop the same or to sell it as they please.
II. The parties hereto shall be entitled to get mutated their names in the Panchayat, Corporation and the City Survey Records of their respective Shares Exchanged in their favour by the Virtue of this Deed.
III. That the shares exchanged by this Deed are free from all encumbrances and liabilities, whatsoever. For all or any encumbrances and liabilities of the past, if any to arise, the parties hereto shall be jointly liable.28
IV. IN WITNESS WHEREOF this Memorandum of Exchange is executed on the above mentioned place and date in the presence of the following witnesses out of free will and consent, without any force, coercion, Fraud or prejudice to one another. The document is executed in Two sets for retaining by each of the two parties."
T.I.(Thumb Impression) T.I.(Thumb Impression)
of Mehatab Saheb of Ismail Bi
Ist Executant Second Executant
WITNESSES :
1. Burnuddin S/o Abdul Kareem (Thumb
R/o Hirapur, Tq. Gulbarga. Impression)
2. Basanna S/o Chandrasha (Sd/-)
Hungunti, R/o Hirapur
3. Mohd. Khajasab S/o Bandagisab (Thumb
R/o Hirapur. Impression)
29
23. So, if the recitals in the said document is perused, it is crystal clear that, it is nothing but a deed of exchange of immovable property. The title and possession of plaintiff with respect to occupation and enjoyment is agreed to be exchanged in favour of the defendant and vice-versa. Under the said document for the first time the right, title and interest is created in the property acquired by an exchange through Ex.P.1 memorandum of exchange deed. Therefore, the said document falls within the category of document stated under Section 118 Chapter VI of Transfer of Property Act, 1882 which states definition of 'exchange' it reads as under:-
"Section - 118. "Exchange" defined . - When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".30
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
24. In view of definition given in the Section, the transaction is a exchange when two persons mutually transfer the ownership of one thing for the ownership of another, provided it is not an exchange of money only. A transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale. A sale should always be for a price, but in case of exchange, the transfer of ownership of one thing is not one of the price paid or promised, but for the transfer of another thing in return. So, a transaction in which consideration for transfer of certain properties or shares is an exchange, the mode of transfer is the same as in the case of sale. Therefore, in case of immovable property, Section 54 of Transfer of Property Act, 1882 as to the registration or delivery of possession apply.
31
25. In view of amendment to Section 49 of the Registration Act, 1908 brought about by an amending Act No.21 of 1929, which by inserting in Section 49 of the Registration Act, the words "or by any provision of Transfer of Property Act, 1882" has made it clear that the document of which registration is necessary under the Transfer of Property Act, 1882, but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered, is not admissible as evidence of any transaction affecting any immovable property comprised therein and not affect any such immovable property, transactions by exchange is required to be effected through registered instruments, if it was to effect any immovable property worth Rs.100/- or more. To appreciate the same it is necessary to refer Section 49 of the Registration Act, 1908 which reads as under:-
32
"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 (3 of 1877), [***] or as evidence of any collateral transaction not required to be effected by registered instrument].33
26. Therefore, in view of this Section, the documents of which registration is required by Transfer of Property Act, 1882, shall be compulsorily required to be registered otherwise such documents shall not affect any immovable property. So, when once the transaction has been reduced to a form of document viz., "exchange deed", then registration is compulsory. Such documents are not admissible as the evidence of any transaction affecting any immovable property comprised therein.
27. Here if Ex.P.1 - memorandum of exchange deed is considered as discussed above, there is a reference to the earlier memorandum of partition dated 25.06.1981. It is also stated that the parties are in enjoyment of their respective shares. The only reasons stated is for convenience and adjustment and for personal reason, they have agreed to exchange the property fallen to their shares under the earlier memorandum of partition. It is clearly mentioned at 34 Para No.4 of the said deed that the said shares now exchanged in favour of the second party mentioned therein and the share of second party stood exchanged to first party. Page No.3 of the said document reveals that, as if it is a sale deed declaring that the parties will be absolute owner and in possession of their respective shares, exchanged in favour of one another by virtue of this document.
28. So, the very contents of the said document clearly indicates that the parties to that document intend to exchange title to their share and possession and claim to be owners of their respective shares exchanged under this document. The document being not registered such a exchange is not permissible under law.
29. Therefore, the contention of the learned counsel for the appellant that the document can be 35 considered as evidence under Section 49 of the Registration Act, 1908 has no legal basis at all. Admittedly, the possession of the plaintiff over the suit property is proved and upheld by both the Courts. So, for the purpose of ascertaining the possession there is no necessity of referring to this document. On the other hand, the defendant has not admitted passing of title or admitted this document as a deed of transfer. It is also evident that there is also criminal cases filed against this defendant by the plaintiff and the daughter of another brother in respect of certain other offences. What is admitted is that, as per the consent between himself and plaintiff, the plaintiff is residing in the middle portion and defendant has admitted that there was a exchange deed. Defendant has also admitted about prior memorandum of partition which is not produced and stated to be unregistered one. 36
30. The principles stated in the decision relied upon by the learned counsel for the appellant in the case of Ravinder Kaur Grewal & others V. Manjit Kaur & others reported in 2020 SCC OnLine SC 612, is in respect of the memorandum of partition among the family members. That decision will not help the plaintiff in any way. In the said decision at Para Nos.16 and 17 it is held as under:-
16. Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made.
The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a three Judge Bench of this Court had observed thus: "9. ..... A family arrangement 37 by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes succession is so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ....." (emphasis supplied) In paragraph 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows: "10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: 38
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him 39 to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." (emphasis supplied) Again, in paragraph 24, this Court restated that a family arrangement being binding on the parties, clearly operates as an estoppel, so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. In paragraph 35, the Court noted as follows: "35. ... We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. ....." And again, in paragraph 36, the Court noted as follows: "36. ... Yet having regard to the near relationship which the brother and the soninlaw bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one. In the instant case also putting the case of Respondents Nos. 4 and 5 at the highest, the position is that Lachman died 40 leaving a grandson and two daughters. Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement. ..." While rejecting the argument regarding inapplicability of principle of estoppel, the Court observed as follows:
"38. ... Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. ....." (emphasis supplied) And in paragraph 42, the Court observed as follows:
42. ..... In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against Respondents Nos. 4 and 5.
Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. ..." (emphasis supplied) The view so taken is backed by the consistent exposition in previous decisions8 referred to and duly analysed in the reported judgment. The question formulated by the High Court, in our opinion, stands answered in favour of the appellants (plaintiff), in 8 Lala Khunni Lal vs. Kunwar Gobind Krishna Narain, ILR 33 All 356 Mt. Hiran Bibi vs. Mst. Sohan Bibi, AIR 1914 PC 44 Sahu Madho Das vs. Pandit Mukand Ram, AIR 1955 SC 481 Ram Charan Das vs. Girjanandini Devi, 41 AIR 1966 SC 323 Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292 Maturi Pullaiah vs. Maturi Narasimham, AIR 1966 SC 1836 Krishna Biharilal vs. Gulabchand, (1971) 1 SCC 837 S. Shanmugam Pillai vs. K. Shanmugam Pillai, (1973) 2 SCC 312 Ramgopal vs. Tulshi Ram, AIR 1928 All 641 Sitala Baksh Singh vs. Jang Bahadur Singh, AIR 1933 Oudh 347 Mst. Kalawati vs. Sri Krishna Prasad, AIR 1944 Oudh 49 Bakhtawar vs. Sunder Lal, AIR 1926 All 173 Awadh Narain Singh vs. Narain Mishra, AIR 1962 Pat 400 Ramgouda Annagouda vs. Bhausaheb, AIR 1927 PC 227 Brahmanath Singh vs. Chandrakali Kuer, AIR 1961 Pat 79 Mst. Bibi Aziman vs. Mst. Saleha, AIR 1963 Pat 62 Kanhai Lal vs. Brij Lal, AIR 1918 PC 70 Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145 T.V.R. Subbu Chetty's Family Charities vs. M. Gaghava Mudaliar, AIR 1961 SC Rachbha vs. Mt. Mendha, AIR 1947 All 177 Chief Controlling Revenue Authority vs. Smt. Satyawati Sood, AIR 1972 Delhi 171 (FB) Shyam Sunder vs. Siya Ram, AIR 1973 All 382 light of exposition of this Court in Kale (supra). A priori, we have no hesitation in affirming the conclusion reached by the first appellate Court that the document Exhibit P6 was nothing but a memorandum of a family settlement. The established facts and circumstances clearly establish that a family settlement was arrived at in 1970 and also acted upon by the concerned parties. That finding of fact recorded by the first appellate Court being unexceptionable, it must follow that the document Exhibit P6 was merely a memorandum of a family settlement so arrived 42 at. Resultantly, it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.
17. As regards the decision in Bhoop Singh (supra) and Som Dev & Ors. vs. Rati Ram & Anr. 9, the same dealt with the question of necessity to register any decree or order of a Court 9 (2006) 10 SCC 788 governed by clause
(vi) of Section 17(2) of the Registration Act, 1908 10. In the present case, however, clause
(v) of subSection 2 of Section 17 of the 1908 Act is attracted. Section 17 as applicable when the cause of action arose (prior to amendment of 2001) reads thus: "Part III OF REGISTRABLE DOCUMENTS
17. Documents of which registration is compulsory. (1) xxx xxx xxx (2) Nothing in clauses (b) and (c) of subsection (1) applies to -
(i) xxx xxx xxx
(ii) xxx xxx xxx
(iii) xxx xxx xxx
(iv) xxx xxx xxx 43
(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or ....."
31. In the above said decision the question of law formulated was that whether the document Ex.P.6 i.e., memorandum of family settlement required registration. In that case one of the party raised dispute claiming ½ share in respect of which the plaintiff was accepted and acknowledged to be a exclusive owner and it was decided to prepare a memorandum of settlement incorporating the terms already settled between the parties and again a dispute arose between them and a suit came to be filed. The suit came to be partly decreed. The First Appellate Court modified the judgment declaring the plaintiff as the owner. They preferred second appeal. The judgment of the First Appellate Court was set-aside. The correctness of the said 44 judgment was challenged in the said appeal. Their contention was raised that the parties acted upon settlement which was recorded in the form of Ex.P.6 being a memorandum of family settlement, it was not required to be registered and since it was acted upon it is not open to them to resile from the said arrangement. So, in that circumstances, the Court held that the family arrangement which is acted upon and which has arrived earlier and it was not required to be registered and defendants estopped from contending against it. The Apex Court has also referred the legal position in this regard with reference to its earlier decision in the case of Kale vs Director of Consolidation reported in (1976) 3 SCC 119. It is held that Ex.P.6 is the nothing but family settlement. But in this case there is already a written memorandum of family settlement which was referred in subsequent deed Ex.P.1, wherein the plaintiff contends that she became absolute owner and possessor of her share in the house. Now, through this 45 deed again they intend to exchange the property. As already referred above the recitals in the said exchange deed clearly indicates that it creates first time right, title in the plaintiff which is not permissible in view of Section 118 of the Transfer of Property Act and also Sections 17 and 49 of the Registration Act. When a memorandum of exchange itself create and extinguish any rights in immovable property, it falls within the mischief of Section 17 (2) of the Registration Act, 1908 and requires compulsorily registration.
32. The learned counsel relied upon another decision of the Apex Court in the case of Subraya M.N. V. Vittala M.N. & others reported in AIR 2016 Supreme Court 3236, wherein at Para Nos.15, 16 and 17 it is held as under:-
"15. Considering the plea of relinquishment of their right by plaintiffs No.3 and 4 in items No.1 and 2, after referring to Ex.D22 resolution and the oral evidence, trial court as well as the 46 High Court held that in the absence of any conveyance deed Exs.D14, D23 and D22, it cannot be established that plaintiffs No. 3 and 4 have forfeited their rights in respect of items No.1 and 2 of the suit scheduled property. Courts below have recorded findings that even though Ex.D14 bears signature of plaintiff No.3, Ex.D23 does not bear the signature of plaintiff No.4. It was further held that those two receipts do not indicate that the amount has been received by plaintiffs No.3 and 4 in lieu of their shares in items No.1 and 2 of the suit scheduled property and mere production of Ex.D14 and Ex.D23 receipts are not helpful to the appellant-defendant to contend that plaintiffs No.3 and 4 have forfeited their rights in respect of their shares in items No. 1 and 2. Even though Exs. D14 and D23 do not contain the survey number, as noticed earlier, Ex.D22 panchayat resolution refers to suit scheduled property items No.1 and 2 in S. No.69/69 measuring 1.00 acre and S.No.69/70 measuring 0.25 acre and that amount of Rs.20,000/- has already been paid by the defendant to plaintiffs No.3 and 4. As pointed out earlier, Ex.D22 resolution is signed by the plaintiffs No.3 and 4 and also by the panchayatdars. In our considered view, the trial court as well as the High Court was not right in brushing aside the oral and documentary evidence adduced by the defendant to prove that plaintiffs No.3 and 4 have relinquished their right in items No.1 and 2 of suit scheduled property.47
16. Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act.
33. Even on perusing facts and principles stated in the above referred decisions it is held that the resolution of the panchayat is taken as family arrangement, though not registered can be used as a peace of evidence explaining the settlement arrived and conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in item Nos.1 and 2 and it is held that, there is a no requirement that family settlement to be reduced in the writing and registered.48
34. Again the facts and the principles stated in that decision cannot be disputed, but the same is not at all applicable to the nature of document relied by the plaintiff to declare title of the suit property in the present suit.
35. Here in the present case there is already a memorandum of partition earlier to this exchange deed wherein the parties divided the property and came in possession of their respective shares. But after some time, only two parties to the earlier memorandum of partition intend to exchange the title and possession of their respective shares. The very document itself indicates that it is a "exchange" deed. There cannot be a memorandum of partition once again and family arrangement excluding one of the parties to the earlier memorandum partition, so as to again create first time right or interest over the suit property which they claim by exchange of ownership and possession of their 49 respective share. Under the guise of family arrangement, one after other, the parties cannot go on creating or extinguishing the rights in the immovable property from time to time among themselves which is against the law. When once the plaintiff claim exclusive title and possession over her property which she stated to have acquired under a earlier family arrangement, then even if she intend to exchange the said property then that must be done as per the provisions contained under the Transfer of Property Act, 1882 and the Registration Act, 1908. Any such exchange of right, title or interest in the immovable property even among the close relatives dehoers the Transfer of Property Act, 1882 and the Registration Act, 1908 cannot be construed as the evidence of title. As already discussed above, the principles stated in decisions referred above are not at all applicable to this case.50
36. In a similar set of facts a question came before the Hon'ble Supreme Court in the decision reported in (2018) 7 Supreme Court Cases 646 in the case of Shyam Narayan Prasad v. Krishna Prasad and others, as to whether the Deed of exchange entered between brothers, exchanging their business shop is admissible in evidence or not as the said agreement was not registered. In that case the appellant and respondent No.5 have inherited some property from their father under partition deed. The appellant got a shoe shop at Manihari as his share and respondent No.5 got ½ share in a RCC building 'liquor shop' at Singtam Bazaar, east Sikkim, apart from other property inherited by them. On 30.01.1990 an agreement was executed exchanging the liquor shop at Singtam Bazaar with shoe shop at Manihari. The said agreement was not a registered agreement. The plaintiff in that suit claimed that suit property is an ancestral property and they have also share in the said 51 property and their father does not have any legal right to exchange with the property and they have also claimed that since the agreement is regarding the immovable property, it is having no value, as it is not registered. There it is contended that the parties have already acted upon the said agreement and wherein possession of the property, thus protected under Section 53(A) of the Transfer of Property Act. It is also contended that the property was self-acquired property of his father and he has divided the property amongst his sons by way of partition. It is further contended that settlement deed transferred only business and not the buildings. The Hon'ble Supreme Court in the said decision considered Section 17 (1) (b) and Section 49 of the Registration Act, 1908 and also the admissibility of unregistered exchange deed between brothers, with reference to Sections 118 and 54 of the Transfer of Property Act, 1882 and Section 91 of the Evidence Act, 52 1872. It is held at Para Nos.17, 18, 19, 20 and 22 as under :-
"17. This takes us to the next question as to whether the exchange deed at Ext. P-2 is admissible in evidence or not. The transfer of ownership of their respective properties by Defendants 1 and 2 was done through Ext. P- 2, deed of exchange. It was contended by Defendant 1 that the exchange was only of the businesses. However, a careful perusal of Ext. P-2 clearly shows that the RCC building is also a subject-matter of the deed of exchange. The value of RCC building exceeds Rs.100/- which is not in dispute. Section 118 of the TP Act defines 'exchange' as under:
"118. "Exchange" defined.- When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale".
18. It is clear from this provision 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. 53 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 Ext. P-2 has not been registered.
19. Section 49 of the Registration Act, 1908 provides for the effect of non- registration of the document which is as under:
"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:"
20. 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 Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered 54 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.
22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required under Section 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Ext. P-2 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 Ext. P-2.
37. The Hon'ble Supreme Court of India in the case of K.B.Saha and sons Private Limited. v. Development Consultant Limited, reported in (2008) 8 Supreme Court Cases 564 has also considered the 55 effect of admissibility of the document which is required by law to be registered and held that, if un-registered, it could not be taken into consideration even for collateral purpose. Relying on its earlier decisions at Para No.34, stated the principles in this regard as under:-.
"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.56
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
38. The learned Single Judge of this Court in the case of MMe. Devikarani Roerich and another v. M/s.
K.T.Plantations Private Limited, Bangalore and another, reported in 1993 (4) Kar. L.J.742 considered the effect of a document required to be registered compulsorily and not registered and at Para Nos.13 & 24 it is held as under:-
13. When a compulsorily registerable document is not registered, it cannot convey any right, title or interest, in view of the provisions of Section 17 of the Act read with Section 49.
Section 49 reads thus:
"No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall ---
(a) affect any immoveable 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:57
Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 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, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument."
Undoubtedly the document involved in the instant case is a Sale Deed. It requires to be registered both under Section 17 and Section 54 of the Transfer of Property Act. If a Sale Deed is not registered in the case of a tangible immoveable property value of which is Rs. 100/- and upwards, it is not recognised as a completed sale deed and does not convey any title. Equitable considerations are entirely foreign to the concept of conveyance of title, in view of the statutory provisions. Application of equity is confined to a limited class of cases such as Section 53-A of the Transfer of Property Act ('the TP Act' for short). Therefore, non-registered sale deed is not permitted to be looked into for the purpose of finding out whether the title has passed to the buyer and whether such a document affects any immoveable properly comprised therein. It is in these circumstances the Privy Council held that the remedy of filing a suit to enforce a right or claim a title in an unregistered document is not available vide James R.R. Skinner v. Robert Hercules Skinner and Others. At page 271 the Privy Council observed that:58
"If an instrument which comes within Section 17 as purporting to create by transfer an interest in immovable property is not registered, it cannot be used in any legal proceedings to bring about indirectly the effect which it would have had if registered. It is not to 'affect' the property and it is not to be received as evidence of any transaction 'affecting' the property.
In the present case the document under consideration, in addition to creating an interest in the immovable property concerned, provides as one of the terms, and therefore as an integral part of the transfer, that the vendor should, if the vendee so requires, execute a registered sale-deed, and it is contended for the respondent 1 that, notwithstanding the non-registration, he can sue upon this agreement, putting the document in evidence as proof of it. Their Lordships are clearly of opinion that this is within the prohibition of the section. They think that an agreement for the sale of immovable property is a transaction 'affecting' the property within the meaning of the section, inasmuch as, if carried out, it will bring about a change of ownership. The intention of the Act is shown by the provisions of Section 17(2)(v), which exempts from registration and therefore frees from the restriction of Section 49, a document which does not itself create an interest in immovable property, but merely creates a right to obtain another document which will do so. In the face of this provision, to allow a document which does itself create such an interest to be used as the foundation of a suit for specific performance appears to 59 their Lordships to be little more than an evasion of the Act."
The consequences of this decision was that even a suit for specific performance of an agreement affecting immoveable property was not maintainable. The legislature stepped in and amended Section 49 by inserting the Proviso to Section 49. By virtue of the said Proviso an exception is carved out of the main Section 49 in the following cases where an unregistered document may be received: (1) As evidence of a contract in a suit for specific performance. (2) As evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act and (3) As evidence of any collateral transactions not required to be effected by the registered instrument, In other words a compulsorily registrable document, if not registered, cannot be looked into at all in any suit, except for the purposes stated in the Proviso to Section 49.
24. The fact whether the first respondent is in actual possession of the property in question may be a collateral purpose but that purpose cannot be sought to be achieved so as to advance other purposes prohibited under Section 49 of the Act. The limited purpose for which the deed could be produced is to prove the character of the possession at the most. That will not solve the question involved in the instant case.
39. The defendant has denied the title of the plaintiff. The contents of the said document also indicates that it is a exchange deed. Further it is 60 unregistered and not sufficiently stamped. Simply, because it is marked as Ex.P.1 it cannot be considered as a evidence and acted upon to confer the title to party. The title will not pass and right is not created or extinguished in a immovable property by oral evidence of the parties. It is the duty of the Trial Court while admitting the document to decide about the stamp duty and admissibility of the document if the said document is insufficiently stamped and requires registration. In fact, the defendant - respondent in the cross- examination of plaintiff - PW.1 suggested that on Ex.P.1 she has not paid proper stamp duty and it is not registered. To that question this appellant - plaintiff answered that she is illiterate and she is unable to read and write. As the said document was prepared by advocate, she has put her thumb impression on the said document. So, it is evident that the defendant has raised the contention of admissibility of the said document due to non-payment of stamp duty and also 61 non registration of the said document in the cross- examination. The defendant has also taken contention in the written statement regarding inadmissibility of Ex.P.1 as it is not registered document, it is illegal and not binding on him. The appellant - plaintiff is under the wrong impression that such exchange agreement itself will create title in the immovable property in her favour.
40. Marking the document in evidence is one thing and the proof, admissibility, evidentiary value of the document and acting upon it is other thing. Simply, because the document is marked as an exhibit without there being any objection by the opposite party, when it is produced in examination-in-chief that will not enure benefit to the party to claim declaration of title in a immovable property or extinguishing title of opposite party in immovable property, when admittedly the immovable property which were exchanged are worth 62 more than Rs.100/- and requires registration. In fact the Trial Court in its judgment while answering Issue Nos.4 and 5 has clearly held that "plaintiff has failed to place document of title as Ex.P.1 being not proved since it being un-registered one". The Trial Court considered the effect of non-registration of said Ex.P.1 and came to the conclusion that it is not a document which conveys title. When admittedly the document on which the party relies require to be compulsory registered and inadmissible for want of registration and insufficiently stamped, it cannot be looked into for any purpose much less for the collateral purpose.
41. The learned Single Judge of this Court in the case of Narasamma vs. Arjun M. Menda, reported in I.L.R.1996 KAR 136, considered the effect of admissibility of the document which is marked without objection as an exhibit it is held that, the duty and 63 responsibility of the Court in examination of the admissibility of document is not absolved simply it is marked. Para Nos.13 & 14 of the said judgment reads as under:-
13. The learned Counsel for the 1st respondent tried to contend that as per the wordings in Order 13, R. 4(1) C.P.C., the action taken by the Court in admitting the document precedes the act of marking the endorsement on the document and therefore the act of marking the endorsement is only a ministerial act, the omission of which is curable. In this regard he brought to my notice the wordings of the said provision which reads as follows:-
"Order 13, R. 4(1):- Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-
xxx xxx xxx"
Even accepting this argument, it may be seen, as pointed out by the learned Counsel for the petitioner, there is nothing on record to show that the Court has applied its mind to the prior act of examining whether the document Ex.P1 is admissible in evidence. The second act namely marking the endorsement under Order 13, Rule 4(1) C.P.C. also has not been made admittedly. It is no doubt true that the defendants did not raise any objections at the time of marking the document in question as Ex.P1. But I do not think it absolves the responsibility placed on the Court in examining the document for admissibility. The 64 facts of the case disclose that according to the plaintiff himself Ex.P1 represented an agreement of sale, a completed contract whereas the defendants have contended that the document indicates only a proposal and is not a completed contract. It is neither necessary nor proper for this Court to express any opinion on this aspect as it may prejudice the case of either party before the Trial Court. But what is important to note is that the admissibility of the document Ex.P1 which is not stamped was a serious question to be considered by the Trial Court at the time of marking the document. There is nothing on record to show that the Trial Court had applied its mind consciously to the question whether the document was admissible or not. By no stretch of imagination could it be said in this case that the document has been admitted in evidence. Therefore, the Decisions relied on, on behalf of the 1st respondent, have no application to the case. On the other hand, the Decisions relied on by the learned Counsel for the petitioners are applicable and they fully support his contention that the document Ex.P1 cannot be said to have been admitted in evidence. Therefore, the impugned order passed by the Trial Court rejecting I.A.XII cannot be sustained. The Revision Petition has to be allowed.
14. Now a question arises as to what is the order that has to be passed in this Revision Petition. I have set out the prayers made in I.A.XII in para 3 above. Obviously none of those prayers can be granted because with regard to prayers (i) and
(ii), the plaintiff cannot be compelled to pay the duty and penalty if such duty and penalty is payable on Ex.P1 under the law. It is for the plaintiff to decide. The prayer (iii) depends upon whether the plaintiff pays the duty or penalty on Ex.P1 if it is payable under law. So, in my 65 opinion, the proper order that could be passed is to keep open the entire question of the admissibility of the document Ex.P1 leaving it to be decided by the Trial Court at the time of the final decision of the suit.
42. The learned Single Judge of this Court in another decision reported in ILR 2003 KAR 3716 in the case of Krishna vs Sanjeev has considered the difference between "marking", "admitting the documents" and "proof of documents during trial of the suit". At Para Nos.11, 12 and 13 it is held as under:-
"11. Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act. Before a document is let in evidence, there should be a judicial determination of question wherever it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.
12. Order 13, Rule 4(1) of the CPC prescribes that there shall be endorsed on every document which has been admitted inevidence in the suit, the number and title of the suit, the name of the person producing the document, the date on which it was produced 66 and a statement of its having been so admitted. The endorsement shall be signed and initialled by the Judge. The document lacking the last requirement cannot be said to be admitted inevidence. The mere fact that the endorsement on the document as required under Order 13 Rule 4 CPC has been made should not in every case be considered sufficient to hold that the document has been admitted. Placing the Judge's initials on a document by a third person by means of a rubber stamp cannot amount to initialling by the Judge.
13. The production of document, admitting the said document produced in evidence marking of said document which is admitted in evidence and proof of such document have distinct connotation in the eye of law. At the time of admitting the document in evidence, it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the Court is under an obligation to decide the said objection. It is after the said objection is decided by the Court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. Thereafter the proof of said document would arise. After the evidence is adduced at the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the Court will decide all these questions in the course of its judgment.67
43. Therefore, in view of the principles stated in the above referred decisions, if the judgments of the Trial Court and the First Appellate Court in the present case are considered, then it is evident that the both the Courts have concurrently held that Ex.P.1 - the memorandum of exchange deed is not a document of title and it is inadmissible as it is not registered as required by law. In view of Section 118 of the Transport of Property Act, 1882 and Section 49 of the Registration Act, 1908, even the said document cannot be considered for a collateral purpose to prove any title.
44. Therefore, simply because Ex.P.1 is marked in the examination-in-chief without objection by opposite party, at the time of marking it, the said document cannot be used and acted upon as a evidence of title to grant declaration of title, as it being not sufficiently stamped and not registered. The said document also cannot be looked into for collateral 68 purpose, in view of proviso to Section 49 of the Registration Act, 1908 and Section 118 of the Transfer of Property Act, 1882.
45. The First Appellate Court considering the possession of the appellant - plaintiff over suit property having been proved, confirmed the decree of the Trial Court regarding grant of decree for permanent injunction and rightly dismissed the relief of declaration of title based on revenue documents. Therefore, viewed from any angle, if the judgment of the First Appellate Court is considered then in my considered view the judgment of the First Appellate Court does not require any interference by this Court. Hence, the substantial question of law raised in this appeal is answered accordingly. The appeal is being devoid of merits and is liable to be dismissed. Accordingly, I proceed to pass the following;
69
ORDER The Regular Second Appeal is hereby dismissed with costs.
The judgment and decree of the First Appellate Court passed in R.A.No.58/2006 dated 20.09.2006 on the file of III Addl. Civil Judge (Sr. Dn.), Gulbarga is hereby confirmed.
Send back the secured records to the concerned Courts.
Sd/-
JUDGE