Smt.Laxmibai W/O Lingappa Mankur vs Vaijinath S/O Late Veershettappa ... on 23 August, 2010

[Cites 9, Cited by 1]

Karnataka High Court

Smt.Laxmibai W/O Lingappa Mankur vs Vaijinath S/O Late Veershettappa ... on 23 August, 2010

petitioners are the plaintiffs before the trial A and they have ﬁled a suit for declaration of 2 ovt§'neI'Ship of the suit property and injunction. The suit '3 is contested by the defendants. The defendants land 2 have ﬁled their written statement. Defendants'8f":t.o'v.6 however, have ﬁled a petition under Order of the Code of Civil Procedure, ajongwiih The said petition is pending corI.sid.eratior1v_..A"

having been proceeded witl1.'ragainVst--« V who is the contesting "party;taT'rrieinVo1'andnni"'of'VVpartition dated 25.05.1988 was in evidence by the Cbjections were raised for and the trial Court tovﬂmark the document in evidence. _The filed an application in I.A.Nc..VlI tpermissslon to mark the document, on . C°'the"'groiind"that even' an unregistered document can be eﬁtidence for a collateral purpose. That appi.ication,evvas contested. The trial Court by the order has dismissed the application. It is e._'ttiat vvhich is challenged in the present writ petition. S

3. The learned Counsel for the petitioners contends, while reiterating the above seq':iencjep:\"v,Qf events, that by the impugned order s1.ibstaIz.'t.:i"a.lr has been caused. The triai Co'urt"has._ oVerlor;l{:e'd:7'the circumstance that even an unre<fis'tered nier11vora1'i.du1n*--.V of partition was admissible--va.tci'n, evicience-for".collatera1 purposes. On an interpre*t'atio--n2 Vo'I"'.._SectioVn of the Indian Registration referred to as the 'Registration:]'Actii_ ﬁnding of the trial question was not a is.-Hiniproper and that, on an overall"readingg:'ofA~.tth'e_:':p"document, it is possible to constr-u.e the idpoculment as a memorandum of partition. . d'ii:iise to these contentions that reliance is placed Counsel for the petitioners on the foilowi.n_g ju dgments:

A Vlt"'Kuberappa and Ors. Vs. T.C.Gopal and Ors.

"reported in AIR 2009 (5) Kar R 510 S.Kaiadevi Vs. V.R.Sornasundaram & Ors.

S Reported in AIR 2010(2) Kar R 758

3. Nani Bai Vs. Gita Bai Kom Rama Gunge inAIR 1958 (SC) 706 '' .;.

4. Padma Vithoba Chakkayya Vs. .. "= reported in AIR 1963 (SC) E702" pp .

5. Mattapalli Chelampayyat -

Venkataratnarn reportedin AIR 1y972:E:V.S(:!::}Y"1.H.l.H2.':£ --. C'

6. Darshan Singh Vs. Singhh in AIR 1988 (SC) 881 . > 'C it 2 A it

7. Mahadeva Vs. City Corporation _reported in A Kar 2 17

8. G'.:3l'iBis\$}arappa reported in 2004' A'

9. Vs. Development Consultant in 2008 TLPRE797

4. other hand, the learned Counsel _pforptiiieip_responc¥'ent.._.wou1d seek to justify the impugned Vikporderp reliance on the decision in Hallera Others Vs. Tarihalli Karibasappa 7,20 10(4)"Kar.L.J.124.

It is seen that the trial Court has rejected the 2 "application primarily on the ground that there was .3 already an order passed earlier, refusing permission to mark the said document. Whereby on a close per-us'ai of the document in question, the Court had concluded that the parties have effected_-partit.io'n: under". the document and have allotted: their_:resp'eetive"

under the Very document ancl__therefor-e, thetésjampep c3ould_ > not be construed as a me'1=r1:or.a_ndumi partition. Therefore, has conclu'ded.p document was cornpulsorily r_egi_strabie" of..:S'ection 17 of the Registration :.the1jefore;'vvwas'VVnot admissible in eVide1;ice.tV Hence that entertaining the application wouVidA:--i:.tanta_':rr1ount to sitting in appeal over ., its (3f\iv"I3 ppdecisi-on; ' rendered earlier. event, the question for consideration by whether the trial Court was justified in refusing"; permission to mark the document in question evidence for want of registration. 2 '7. The learned Counsel for the petitione1f~s___ has sought to place reliance on the several support of the petition.

8. In Nani Bai's case "supra, vvl_1ich'~vvas-~.ya~..V defendants appeal from Courtof one it of the questions arose' iigonsidleiraltion was whether certain would operate, or liiiterest in immovable property I7(l](b] of the Registyjflalilorzei interpretation of the documents', Court has observed that partition in the Mithakshara sense may be severance of

- status of members of a co--parceneIy, that his was once a joint title has become a divided..__'titlel;' though there has been no division of any .l_up-roperties by metes and bounds. Partition may also l What is ordinarily understood by partition among "'co--parceners, who may not be members of a Hindu co- € parcenery. For partition in the former sense, it_--is not necessary that all the members of the joint should agree because, it is a matter of i,ndiVidttal volition. If a co-parcener express-.es'..p his_llV"individua;1 intention in unequivocal languageto separate'~hirnself--., from the rest of the family effec'ts_l_ far' as he is concerned the farnily: By this process, what was a converted into a in the latter sense, of or parcels to indivityjilulal amongst all the c0- parceners Such a partition may be effected' ..,or'a1l'y. But if the parties reduce the a formal document which is = evidence of partition, it has the effect of ldeclaring the exclusive title of the co~parcener to mvvhom a' "particular property is allotted by partition and 'thus, Within the mischief of Section l7(l)[b) of the "Registration Act. But partition in the former sense of ?> deﬁning the shares only, without speciﬁc aliotm-ent of the property has no reference to immovable. Such a transaction only affects the member or the members have _tV"'sepa1'ate'(3 themselves from the rest of change of status from a join'tii,:.1::nernbVer" jteoiparcenery to a separated member in the ancestral property, or it may be brought abouttibj a document does not eviderrojiié and bounds, that is to lattervsense, it does not come Within 17(1](b}. Because, so long therehas in that sense, the interest of tthe" separated member continues to extend over the 1 property as before. Such a transaction does not"purp'ort:or operate to do any of the things referred to .thatV'Section and the Supreme Court concluded, that i"n.soI'ar as the documents, referred to in that case, was T "evidence of partition only in the former sense and S 10 therefore. 'were not compuisorily registrable iinder Section 17 and shall not come within the 7of Section 49. which prohibits the reception of any document effecting imirioifabie 'lproperty it was held that the documents evidence for a limited purpose!"

9. In Mattapaﬂifpivlcase supra. the question that as regards the terms of the provisions of appellants before the Apex to pay certain amounts pers;on..a_lly,u 'to. the respondents, along with interest and wasllmmade a charge on the immovable A possession of the appellants. The Apex Coiirt was' 'dealing with the effect of non-registration of .V:the_.said" award. The Apex Court held that insofar as the .' direction to pay a sum of money by one party to another concerned, it was held that there was no difficulty, 3 1.1 because it creates a personal liability and an award containing such a direction did not require"'-t'o.p.."b.e registered. But the contention that was raisedwlasll since the award creates a chargeulaiso, forvpayinent of that amount, on immovabletpropertie's_,.Athe transaction was to be regard~eud-as one._and'.=unseverable and since a charge: "be registered, the instrument could not for want of registration.':i,ff'he:1A._High': rejected such a contentiorll that it was rightly scope of Section 49 of the the held that since the award was ;ii1ot.reéistered, would be correct to hold that the would affect immovable properties of the l"'iap'p_e1ian;ts,: cannot also be received as evidence of any train--saction':"" affecting the said property as evidence of .,i:the_.4charge. But the Apex Court observed that the _' Section does not indicate that the document cannot be t "received in evidence at all and if under the Evidence Act, 3 12 the document was receivable in evidence for a collateral purpose, Section 49 was no bar and this legal AP "

has been duly recognized by the ainendirgg" V. 1929. which has added a proviso to 'the it Apex Court concluded that the to"pay.a:

money which had been heldiwtiue the' appellants to the respondents create liability for the first time, but the liability.

but the sami-e ' charge which was createld:'llh§e"(l3ourt concluded that the it matters, one being a Dersonajh certain amount and the secogndipan ad-ditiolnalrelief to recover that amount from property of the appellants and that the one transaction. but two severable transac:'tio-ns. That the test would be, whether the transaction evidenced by the particular instrument is .l csingié and indivisible or whether it really evidences two it "transactions which can be severable from each other.

75 14

embodied in a memorandum of partition. It was claimed that the parties had remained in separate exclusive possession of their respective However, a dispute having arisen in 'w it u o ' . - I '.3 ' plaintiffs intention to constructgover portion "o_fi.__on_e » ' item of property, the partials,-ix2vereV"i>_elore learned Single Judge as well__as- Division of the High Court, construed"-ﬁlgei d.ocinI1'é1*i,t",.:'gii\>'hich came in for interpretation, as a arrangement and not inst:_iim_en't ifvof partition requiring registr;ation* l'tit:.ﬁhe:e«£§1-e, held admissible in evidence under to Section 49 of the Act. The Apex 'Courtdona a' close 'interpretation of the content of that, while an instrument of "partitionF2sfhi.cl*1-"'operates or is intended to operate as a decl'arer.--i volition constituting or severing ownership and at-ausing"'..a change of legal relation to the property .' amongst the parties to such a document, would "require registration under Section 17 [].)(b} of the Act.

effected in the year 1955 and the to the two branches were separately mutatevdfinétiftthe revenue records. There was thus the "'..j'jw:destruction of a joint status. All that remained was a partition of the ancestral house and a smaller house 16 document and that document purports itself to effect a division and embodiesVVaLﬁ._V_ the terms of a bargain it will be to register it. If it is not registered'; * 49 of the Act will prevent"it.9.

in evidence. Secondiy, factum of partition-._vvi11V"n.ot" be by reason of Section'§:1~ of the Act, 1872.

(2) Partition 1istsV',_\vh_ich_V records of a previous_1y cbmpieted between the in evidence even :they_j'a.re' unregistered to prove the {matter p¢i.~t1t:.p"n....__ . ~ 11'; '*--II_'1iithatV "case':"hefore the Apex Court, it held there' if was a ~A..__1:3:artition by metes and bounds of 3 19 require registration. Therefore an unregistered document requiring compulsor3?p'l"'»u registration under Section 1'? of the be received in evidence to prove co'glatera'i'fl' transactions which do not reqttire registra'tioi1.. " _ Say for example, status lqiof relationship between th~e_4partieAg;¢,he nature of properties, severance a status, members of the.» all transactions between which do"-not r=equire"registration".

While holding. relied on the following ,Singh's case supra «well the document though unregistered~__canvhowever be looked into for purpose of establishing a inmstatus, thought that severance V"ul.f.-imate1y affect the nature of the pos.sessi;on held by the members of the if separated family as co~tenants. The l " document Ex.P12 can be used for the limited purpose and a collateral purpose of showing that subsequent division of the properties 3' 22 Therefore, in the instant case, the docum-en.twas compulsoriiy register;-:1 End the trial Court:-'was 'rijght"vin ~ .» its view. Hence the petitions are »dismis_Sed';" "

JT/--

Unlock Advanced Research with PRISMAI

Karnataka High Court