Orissa High Court
Unknown vs Sunasir Sahu on 15 February, 2019
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.53 of 1998 and S.A. No.51 of 1998
S.A. No.53 of 1998
From the judgment and decree dated 21.10.1997 and 6.11.97
respectively passed by Sri B.K. Nayak, learned Additional District
Judge, Bolangir in T.A. No.70/3/34 of 1991-93-96 confirming the
judgment and decree dated 5.8.1991 and 19.8.1991 respectively
passed by Sri R.K. Nanda, learned Munsif, Bolangir in T.S. No.92 of
1980.
Sadhu @ Sadhu Charan Sahu ................... Appellant
---versus--
Sunasir Sahu .................... Respondent
For Appellant : Mr. Budhiram Das, Advocate
For Respondent : None
S.A. No.51 of 1998
From the judgment and decree dated 21.10.1997 and 6.11.97
respectively passed by Sri B.K. Nayak, learned Additional District
Judge, Bolangir in T.A. No.68/2/33 of 1991-93-96 partly confirming
the judgment and decree dated 5.8.1991 and 19.8.1991
respectively passed by Sri R.K. Nanda, learned Munsif, Bolangir in
T.S. No.13/222 of 1980-82.
Sadhu @ Sadhu Charan Sahu ................... Appellant
---versus--
Mst. Sukun Sahu .................... Respondent
For Appellant : Mr. Budhiram Das, Advocate
For Respondent : None
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing :07.02.2019 │ Date of Judgment:15.02.2019
----------------------------------------------------------------------------2
Dr. A.K. Rath, J. Since the common question of facts and law are involved in both the appeals, the same were heard together and are disposed of by this common judgment.
02. Plaintiff-respondent instituted T.S. No.92 of 1980 for declaration of title over 'B' schedule land, recovery of possession and mesne profits. The case of the plaintiff was that schedule 'A' land belonged to Jaysingh Sahu. In a family partition between Jaysingh and his brothers, the same fell to the share of Jaysingh in the year 1954. Tulsa was the first wife of Jaysingh. Jaysingh married to Sukun for the second time in the year 1954. Jaysingh died in the year 1964 leaving behind him two widows, Tulsa and Sukun, who inherited schedule 'A' land and possessed the same jointly as tenants-in-common. After death of Jaysingh, dissentions cropped up between the two widows. There was partition of the schedule 'A' land between them. A memorandum of partition was prepared on 25.4.65 in the presence of the witnesses. Sukun signed on the same and Tulsa put her L.T.I. In the said partition, schedule 'B' land fell to the share of Sukun along with two decimals house property of Jaysingh. After partition, both the widows possessed their respective shares of land. To press her legal necessity, Sukun alienated schedule 'B' land to the plaintiff on 21.5.75 by means of a registered sale deed for a consideration of Rs.4,000/-. Possession was duly delivered to him. In February, 1976, the land was attached in a proceeding under Sec.145 Cr.P.C. initiated at the instance of the defendant, Sadhu Sahu. The defendant had claimed that he is the adopted son of Tulsa on the basis of a document purported to have been executed by Tulsa on 6.4.65. The deed of adoption was a fabricated one. The defendant is not the adopted son of Tulsa. Tulsa died in the year 1968. The proceeding under Sec.145 Cr.P.C. was 3 terminated in favour of the defendant, for which the plaintiff instituted the suit seeking the reliefs mentioned supra.
03. T.S. No.13 of 1982 was instituted by Sukun Sahoo against Sadhu Sahu for declaration of title over 'B-1', 'D' and 'E' properties, confirmation of possession and recovery of possession in the event she is dispossessed during pendency of the suit and mesne profits. The case of the plaintiff was that schedule 'A' land belonged to Jaysingh Sahu. Jaysingh married to Tulsa. Out of their wedlock, a daughter was born. She died. There was no issue. In order to keep up the lineage, Jaysingh married to her in the year 1954 according to caste, custom and usage. Jaysingh died in the year 1964 leaving behind him two widows, Tulsa and Sukun. They possessed schedule 'A' land. They were not pulling on well. On the intervention of the local gentries, both of them were separated. A memorandum of partition was prepared on 25.4.65 allotting specific properties in favour of the two widows. In the partition deed, she put her signature. Tulsa put her L.T.I. In the partition, schedule 'B' land fell to her share. Schedule 'B-1' land fell to the share of Tulsa. Both were in possession of their respective shares. Tulsa died in the year 1968. Thereafter, she is residing in 'D' homestead land, which fell to her share. On 1.5.1975, she alienated schedule 'C' land out of schedule 'B' land to Sunasir Sahu by means of a registered sale deed for a consideration of Rs.4,000/- to press her legal necessity and delivered possession to the vendee. After death of Tulsa, she is in possession of schedule 'E' land, which fell to the share of Tulsa. In November, 1980, the defendant, Sadhu Sahu, with the help of others attempted to dispossess her from schedule 'D' and 'E' properties. On enquiry, she came to know that the defendant got an order in a proceeding under Sec.145 Cr.P.C. against Sunasir Sahu and others. She was not a party in the proceeding. Schedule 'D' and 4 'E' lands were not the subject matter of dispute in the case. After death of Tulsa, the defendant came to possess schedule 'B-1' land except the house standing over schedule 'E' land. She further learnt that the defendant managed to get a document purporting to be a deed of adoption from Tulsa. Tulsa was not in a fit state of mind to execute the deed. The deed is a fabricated one. The defendant is not the adopted son of Tulsa.
04. The defendant in both the suits filed separate written statement taking the similar plea. The case of the defendant was that Jaysingh was the absolute owner of schedule 'A' land. He challenged the status of Sukun. According to him, Tulsa was the only wife of Jaysingh. Jaysingh had never married to Sukun. Sukun was the mistress of Jaysingh. During his life time, Jaysingh had expressed intention before his natural father to adopt him as his son. The adoption could not take place. After death of Jaysingh in the year 1964, Tulsa succeeded schedule 'A' land. On 6.4.65, Tulsa adopted him. She executed a deed of adoption, which was registered on 7.4.65. He is the adopted son of Tulsa. Both of them were in possession of schedule 'A' land. After death of Tulsa, he is in possession of the land. Since Sukun was not the wife of Jaysingh, there was no question of partition of schedule 'A' land between Sukun and Tulsa. Sukun had no right, title and interest over schedule 'A' land. She was not competent to sell the land to Sunasir Sahu. No consideration was passed. The deed is a fictitious one. Neither Sukun, nor Sunasir ever possessed any part of schedule 'A' land. Alternatively, the defendant pleaded that he had acquired title by way of adverse possession.
05. Both the suits were clubbed together and heard analogously. Stemming on the pleadings of the parties, learned trial 5 court struck nine issues. Parties led evidence, oral and documentary. Learned trial court came to hold that Sukun was the legally married wife of Jaysingh. There was partition between Sukun and Tulsa. Schedule 'B' land fell to the share of Sukun. Schedule 'B- 1' land fell to the share of Tulsa. Defendant is the adopted son of Tulsa and as such succeeded to schedule 'B-1' land. Sukun sold schedule 'C' land to Sunasir for a valid consideration. The sale is valid. The defendant had no right, title and interest over the same. It negatived the plea of adverse possession and decreed T.S. No.92/80. T.S. No.13/82 was partly decreed only in respect of schedule 'D' and 'E' house properties over which the plaintiff's title was declared. Sukun's claim in respect of schedule 'B-1' property except schedule 'E', a portion thereof, was rejected. Felt aggrieved, the defendant filed two appeals before the learned District Judge, Bolangir, which was subsequently transferred to the court of learned Additional District Judge, Bolangir and re-numbered as T.A. No.68/2/33 of 1991-93-96 and T.A. No.70/3/34 of 1991-93-96. Learned lower appellate court dismissed T.A. No.70/3/34 of 1991- 93-96 and thereby confirmed the judgment and decree passed in T.S. No.92/80 and allowed T.A. No. 68/2/33 of 1991-93-96 in part to the extent that the defendant and not the Sukun has title over schedule 'E' land. The trial court's judgment in T.S. No.13/82 in respect of Sukun's title over schedule 'E' land was reversed.
06. The second appeal was admitted on the substantial questions of law enumerated in ground nos.1, 2 and 3 of the appeal memo. The same are:
"1. Whether the finding of the courts below that Sukun married to Jaysingh in 1954 is based on any acceptable evidence and if such finding is perverse and based on mere surmises ?
2. Whether the finding that after the death of Jaysingh, two widows succeeded to his properties and any of them 6 cannot be diverted by subsequent adoption of the defendant is legally sustainable in view of the concurrent finding that the defendant is the adopted son of Tulsa ?
3. Whether Ext.3 is a deed of partition of merely a deed of acknowledging previous partition and if due execution of such a document by Tulsa who was an illiterate pardanashin lady has been proved at all ?"
07. Heard Mr. Budhiram Das, learned Advocate, on behalf of Mr. N.C. Pati, learned Advocate for the appellant. None appeared for the respondent.
08. Mr. Das, learned Advocate for the appellant, submitted that the property originally a joint family property of Jaysingh Sahu. In a partition, schedule 'A' land fell to the share of Jaysingh. Jaysingh married to Tulsa. Jaysingh died in the year 1964. Thereafter Tulsa became the owner of the suit property. Jaysingh had not married to Sukun. Thus the question of partition between Tulsa and Sukun does not arise at all. The deed of partition is an unregistered one. The same can be used for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy. The unregistered partition deed cannot be relied upon for collateral purpose. The findings of the courts below that after death of Jaysingh, the two widows succeeded to the properties and there was partition between Tulsa and Sukun are perverse. The defendant is the adopted son of Tulsa. Tulsa was an illiterate and pardanashin lady. She had not duly executed the sale deed. The courts below have not scanned the evidence of the parties and the MSROR while arriving at a conclusion that there was previous partition. To buttress the submission, he relied on the decision of the apex Court in the case of Sita Ram Bhama v. Ramvatar Bhama, AIR 2018 SC 3057.
709. Before adverting to the contentions raised by the counsel for the appellant, it is apt to refer the decision of the apex Court in the case of Sita Ram Bhama. The question arose before the apex Court as to whether the document dated 09.09.1994 could have been accepted by the trial court in evidence or trial court has rightly held the said document inadmissible. The apex Court held:
"10. The only question which needs to be considered in the present case is as to whether document dated 09.09.1994 could have been accepted by the trial court in evidence or trial court has rightly held the said document inadmissible. The plaintiff claimed the document dated 09.09.1994 as memorandum of family settlement. Plaintiff's case is that earlier partition took place in the life time of the father of the parties on 25.10.1992 which was recorded as memorandum of family settlement on 09.09.1994. There are more than one reasons due to which we are of the view that the document dated 09.09.1994 was not mere memorandum of family settlement rather a family settlement itself. Firstly, on 25.10.1992, the father of the parties was himself owner of both, the residence and shop being self-acquired properties of Devit Dutt Verma. The High Court has rightly held that the said document cannot be said to be a Will, so that father could have made Will in favour of his two sons, plaintiff and defendant. Neither the plaintiff nor defendant had any share in the property on the day when it is said to have been partitioned by Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993. After his death plaintiff, defendant and their mother as well as sisters become the legal heirs under Hindu Succession Act, 1955 inheriting the property being a class I heir. The document dated 09.09.1994 divided the entire property between plaintiff and defendant which document is also claimed to be signed by their mother as well as the sisters. In any view of the matter, there is relinquishment of the rights of other heirs of the properties, hence, courts below are right in their conclusion that there being relinquishment, the document dated 09.09.1994 was compulsory registrable under Section 17 of the Registration Act.
11. Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been settled by this Court. It is sufficient to refer to the judgment of this Court in Kale and others v. Deputy Director of Consolidation and others, (1976) 3 SCC 119 : (AIR 1976 SC
807). The propositions with regard to family settlement, its registration were laid down by this Court in paragraphs 10 and 11:
8"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:
(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 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 find 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.
11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy 9 Council and other High Courts, which we shall discuss presently."
xxx xxx xxx
13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. 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. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of this Court in Yallapu Uma Maheswari and another v. Buddha Jagadheeswararao and others, (2015) 16 SCC 787 : (2015 AIR SCW 6184 para 17), is appropriate. In the above case also admissibility of documents Ext.B-21 dated 05.06.1975 a deed of memorandum and Ext.B-22 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1 plaintiff and appellant No.1 defendant came for consideration. Objection was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case, this Court held 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. This Court after considering both the documents, B-21 and B-22 held that they require registration. In paragraph 15 following was held:
"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 11 Exts.B-21 and B-22 are not 10 admissible in evidence for the purpose of proving primary purpose of partition."
14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided appellant defendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 of the following has been laid down:
"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 Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy (AIR 1969 AP 242) 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.
17. Accordingly, the civil appeal is partly allowed holding that Exts.B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy."
10. There is no quarrel over the proposition of law. In the instant case, the courts below on scanning of the evidence on record and pleadings held that Tulsa and Sukun are the widows of Jaysingh Sahu. After death of Jaysingh Sahu, there was partition of the properties between them by metes and bounds, which has been reduced to writing on 25.4.65. The deed was signed by Sukun and Tulsa put her L.T.I. in presence of the witnesses. Even if Ext.3 is 11 kept out of consideration, the conclusion arrived at the courts below that there was partition between Tulsa and Sukun cannot be faulted with. These are essentially findings of fact. There is no perversity in the said finding. The substantial questions of law are answered accordingly.
11. In the ultimate analysis, the appeals fail and the same are dismissed. There shall be no order as to costs.
.....................................
Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 15th February, 2019/Basanta