Chattisgarh High Court
Jhunni Bai vs Ram Bharosa Alias Bharosa on 25 April, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 240 of 2009
Judgment Reserved on 28.02.2022
Judgment Delivered on 25.04.2022
Jhunni Bai D/o Bishambhar Aged About 52 Years Wd/o Late
Mannulal, Agriculturist, R/o Village Gurur, Tahsil Gurur, District Durg
Madhya Pradesh In Present Chhattisgarh.
---- Appellant
Versus
1. Ram Bharosa Alias Bharosa S/o Kanwali Ram Bhoi Aged About 55
Years R/o Village Dhanora, Tahsil Gurur, District Durg Madhya
Pradesh At Present Chhattisgarh.
2. Pyari Bai D/o Kanwali Ram Aged About 58 Years Wd/o Ramji, R/o
Tikra Para Ward, Dhamtari, District Dhamtari Madhya Pradesh At
Present Chhattisgarh.
3. Duleshwar Bai D/o Kanwali Ram Aged About 33 Years W/o Janak,
R/o Village Tarenga, Tahsil Baloda Bazar, District Raipur Madhya
Pradesh At Present Chhattisgarh.
4. (Deleted) Dulari Bai As Per Honble Court Order Dated 08-10-2020.
5. Manoj S/o Balbhadra Aged About 35 Years R/o Village Simga, Tahsil
Simga, District Raipur, Madhya Pradesh At Present Chhattisgarh.
6. State Of Madhya Pradesh At Present State Of Chhattisgarh Through
Collector Durg, District Durg Madhya Pradesh At Present
Chhattisgarh.
---- Respondents
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For Appellant : Mr. B.P. Gupta, Advocate For Respondents No. 1 to 5 : None. For the State/Respondent No. 6 : Ms. Ishwari Gritlahre, Panel Lawyer
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. The appellant/defendant No. 2 has filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 27.01.2009 passed by the learned Additional District Judge, 2 (F.T.C.), Balod District - Durg in Civil Appeal No. 08-A/2007, by which learned Additional District Judge, Balod has dismissed the appeal affirming the judgment and decree dated 20.12.1999 passed by the Second Civil Judge Class -2, Balod, District - Durg in Civil Suit No. 229-A/98 by which learned Second Civil Judge Class-2 has allowed the suit in part by declaring that plaintiffs after death of Kachra Bai are entitled to get 1/4 th share in the suit property.
2. The appeal was admitted on 03.07.2020 on the substantial question of law which was further modified on 05.07.2021 and the substantial question of law has been reframed as under :-
(I) Whether both the Courts below were justified in decreeing the suit by holding that documents Ex.-D/1 and D/2 are inadmissible in evidence under the law for want of registration thereby recorded a perverse finding?
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 229-A/98.
4. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Second Civil Judge, Class II, Balod, District - Durg 13.08.1998 for declaration and injunction contending that the suit property situated at village Kharwahi, Tahsil - Gurur bearing Khasra No. 246 area 0.72 R.A. recorded in the name of defendants No. 1 and 2. It has been contended that Plaintiff's father Rambharosa were three brothers namely Kanwali, Bishambhar and Punau. Kachra Bai was wife of Punau. Punau died issue-less on 25.08.1995. Plaintiffs are legal heirs of Kanwali and defendants No. 1 and 2 are legal heirs of Bishambhar. Plaintiffs and defendants No. 1 and 2 are member of the joint Hindu family as such they are governed by Hindu Succession Act, 1956. There was no partition with regard to the suit property, therefore, the suit property is in joint possession of plaintiffs as well as defendants No. 1 and 2. Father of the plaintiffs and defendants No. 1 and 2 have inherited the property from their father and after death of father of the plaintiffs and defendants No. 1 and 2, they have succeeded. Due to death of Punau as he was issueless the property was recorded in the name of Kachra Bai. Kachra Bai also died in the year 1996. Plaintiff left the village for livelihood, but used to come to village for agricultural work.
3When the plaintiff No. 1 Rambharosa came to know that Kachra Bai has expired, he went to Revenue Office for deleting the name of Kachra Bai, then he came to know that mutation process is going with regard to suit property before the Tahsildar, Gurur wherein his name was deleted. The plaintiff-Rambharosa raised objection that without his knowledge defendants No. 1 and 2 have deleted his name from revenue record, therefore, he requested that along with name of defendants No. 1 and 2 his name shall also be recorded in the revenue record. The revenue Court has passed the order against the plaintiff Rambharosa on 22.09.1997, against which he preferred an appeal, which has also been rejected. This has caused adverse effect to the interest of the plaintiff, therefore, he has filed the suit. It is further contended that suit property was never divided, therefore, plaintiffs are entitled for ½ share of the suit property. Defendants No. 1 and 2 have illegally taken possession, therefore, it may kindly be declared that they are entitled for ½ share of the suit property.
5. The defendants No. 1 and 2 filed their written statement denying the allegations made in the plaint contending that with regard to the disputed property partition has already been taken place on 20.03.1971 in presence of the Panchayat where father of the plaintiffs had given written consent. The plaintiffs' father had executed an agreement on 13.02.1978 relinquishing his share in favour of the defendants and after selling the share of their property the plaintiffs have no right over the suit property and the suit is not tenable. Since family partition has already been taken place therefore, the plaintiffs are not entitled to get partition of the suit property as their rights have already been extinguished. This fact is within the knowledge of Kanwali and his legal heirs, as such the suit is not tenable. On the basis of this partition deed, 0.47 Ha. of the suit land has also been sold to one Nand Kishore Tiwari by defendants No. 1 and 2 and Late Kachra Bai jointly, as such rest of the property belongs to defendants No. 1 and 2 and Kachra Bai. It has also been contended that plaintiffs have never done agricultural work on the suit property as they are not in possession of the property, whereas, defendants are in possession of the property and doing agricultural work. The 4 plaintiffs are well aware of the fact of the case and they have filed the present suit after lapse of 12 years, they have not challenged the right of the defendants, therefore, on account of principle of adverse possession, their rights have been extinguished, and would pray for dismissal of suit.
6. Defendant No. 3 has filed separate written statement contending that the partition has already been taken place and the plaintiffs have already sold property of their share and have raised false objection before the revenue Court. They have no right over the suit property. Kachra Bai before her death has executed a will in favour of him, as such he is legal heir of Late Kachra Bai, therefore, plaintiffs are not entitled for ½ share of property but defendants 1 and 2 are entitled for ½ of share of the property, and would pray for dismissal of the suit.
7. On the pleadings of the parties, learned trial Court has framed as many as 7 issues.
8. The plaintiffs to substantiate their case have examined Bishambhar as PW/1, Kamal as PW/2, Tulsiram as PW/3, Rambharosa As PW/4 and exhibited documents Certified copy of Sansodhan Panji, as Ex.P/1, Khasra Panchsala of 1977-78 as Ex.P/2 and Order passed by SDO dated 22.06.1995 as Ex.P/3.
9. Defendants to substantiate their case have exhibited documents Ex.D/1 Receipt dated 28.03.1971 and Ex. D/2 Ikrarnama dated 13.02.1978, Ex.D/3 order dated 22.10.1997 of Tahsildar and Ex.D/4 order of SDO dated 22.06.1995 and examined Jhunni Bai as DW/1, Kanhaiya Lal as DW/2.
10. The plaintiff witness PW/1 Bishambhar was cross-examined wherein he has admitted that after the death of Kachra Bai, Sukham and Munni Bai are earning from the suit property and this fact is in the knowledge of Rambharosa. He has also admitted that Nandkishore has purchased the property of the Kanwali's family. PW/2 Kamal has also admitted that after the death of Kachra Bai, Sukham and Munni Bai are earning from the suit property. PW/3 Tulsiram has denied the fact that Sukham and Munni Bai are earning from the suit property. He has said that along with Rambharosa they are earning. He has admitted that before the death of Kachra Bai, Rambharosa was living at Durg-
5Charama, Simga. PW/4 Rambharosa has stated that without his knowledge his name was deleted from the revenue record. He has moved an application before the Tahsildar, Gurur which was dismissed. Against that order appeal was also preferred before the SDO, Balod which was also dismissed. He has also admitted that his father had three brothers namely Kanwali, Bishambhar and Punau. Since, Punau was issueless he has additional rights over the suit property. The witness was cross-examined wherein he has denied that his father has given consent with regard to partition. He has admitted that out of the disputed land he has sold some portion to Nand Kishore and he has also admitted that he has utilised this money at the time of his marriage. He has also denied that after marriage he left the place for employment but he used to visit the village. He has admitted that he has not given any application for partition. Kachra Bai, Sukham Bai and Munni Bai were earning from the suit property but he has never objected as his name was there in the revenue record. He has denied that after partition he has sold the property, that is why he has not objected it. He has admitted that for the last 15 years defendants are earning from the suit property. He has denied that his application for mutation has been rejected on the count that he has already received his share on partition.
11. Defendant No. 1 examined DW/1 Jhunni Bai D/o Bisambhar who has stated that they were earning from the suit property for the last 21 years and 28 years before a family settlement was made, partition was done and Kanwali has mentioned about the family partition which is exhibited as Ex.D/1, the documents were written by the Sarpanch Awadhram. Awadhram expired. But, at the time of documentation Kartikram, Awadhram and other persons were present. She has brought original copy of Ex. D/2 wherein Plaintiffs Bharosa, Pyari Bai, Duleshwar, Bhagwati have executed an agreement of relinquishment of their share in favour of Sukhumat Bai, Munni Bai and Kachra Bai, at that time, Awadhram and Kuntulal Bhoi were also present, but both of them have expired. She has also admitted that Rambharosa has sold 1.15 acres of land to Nandkishore of village Kharwahi. After documentation of Ex.D/2 she along with Sukhmat was doing 6 agricultural work, which was never objected by any person. Rambharosa has demanded his partition only after the death of Kachra Bai. Manoj S/o Balbhadra has also filed an application before Tahsildar, Gurur in which they have participated and their application was rejected which is Exhibited as Ex. D/3. The order was challenged before SDO, Balod which was also rejected, copy of the order is exhibited as Ex. D/4. She has also admitted that Punau Ram expired prior to Kachra Bai and they are issueless. This witness was cross-examined wherein she has denied that there was no partition between Kanwali, Bisambhar and Punau. She has also denied that at the time of documentation of Ex.D/1 Kachra Bai was present. She has denied that Kanwal Ram has not written the relinquishment deed. The dispute with regard to suit property occurred after death of Kachra Bai. Other witness Kanhaiya Lal DW/2 was examined where he has admitted that he was present at the time of partition between the three brothers, but at the time of finalisation he left the place. He has denied that he does not know anything about the partition.
12. Learned trial court appreciating the evidence, material on record has partly allowed the suit filed by the plaintiffs holding that plaintiffs are entitled for ¼th share of the suit property after the death of Kachra Bai as successor. Against that judgment defendant Munni Bai has preferred appeal before the first appellate Court under Section 96 of the CPC contending that the judgment and decree passed by the learned trial Court is against the materials on record, the learned trial Court has committed illegality in not giving due consideration on the documents Ex. D/1 and D/2. The defendants are in possession of the suit property for the last 12 years which was in the knowledge of the plaintiff as such they have acquired the right on principle of adverse possession, still this fact has not been taken into consideration by the learned trial Court, therefore, the judgment and decree deserves to be set aside.
13. Learned first appellate Court vide judgment and decree dated 27.01.2009 dismissed the appeal affirming the judgment and decree passed by the learned trial Court. The first appellate Court has recorded its finding that since the partition has already been 7 done as such subsequent partition cannot be done but the share of Punau which was inherited to Kachra Bai and defendants No. 1 and 2 are jointly doing agricultural operation therefore, principle of adverse possession is not applicable. The finding has also been recorded by the First Appellate Court that as per Section 14 of the Hindu Succession Act after death of her husband Kachra Bai has absolute title over the suit property and she has not waived it, died issueless, therefore, this property cannot be inherited by defendants No. 1 and 2 jointly as they are not the only successors. As per Section 15 and 16 of the Hindu Succession Act, all the legal heirs are entitled to inherit the property, therefore, the trial Court has rightly passed the judgment and decree and dismissed the appeal. Aggrieved by this judgment and decree passed by the first appellate Court, the defendant No. 2 Jhunni Bai has preferred this second appeal.
14. While admitting the appeal this Court has framed afore stated substantial question of law on 05.07.2021. Even after admitting the appeal, this Court has directed for issuance of notice to the respondents. In pursuance of order, notice was served to respondents No. 2 and 3. Respondent No. 4 and Respondent No. 5 unserved as expired. The appellant moved an application for deleting the name of Respondent No. 5 which was allowed by this Court on 04.01.2021. Notice to respondent No. 1 was unserved as he had left the village, therefore, the notice was effected through paper publication vide order dated 04.01.2021 and in pursuance of the order appellant has got published notice in Dainikbhaskar on 06.01.2021 directing the respondent No. 1 to appear on 11.02.2021, despite this service of notice respondents No. 1, 2 and 3 have chosen not to appear before this Court.
15. Learned counsel for the defendant No. 2 would submit that both the Courts below have not appreciated the evidence, materials on record while treating Ex.D1 and Ex.D2 to be inadmissible in evidence ignoring the settled position of law, provisions of the Registration Act and Section 6 of the Transfer of Property Act. This is apparent mistake of law as such substantial question of law framed by this court deserves to be answered in favour of the defendants. He would further submit that since through Ex.D1 8 and Ex.D2 the plaintiffs have waived their right, therefore, they have no right over the share of the property and the learned court below should have dismissed the suit filed by the plaintiffs.
16. The controversy raised in this appeal move around the Section 17 of the Registration Act,1908 which provides which document requires compulsory registration and whether Ex.D1 and. Ex.D2 fall in this category or not, therefore, it is expedient for this court to extract the Section 17 of the Act which reads as under:-
Section 17 in The Registration Act, 1908
17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to
--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture 9 issued by any such Company; or
(v) Any document other than the documents specified in sub-
section (1A)] 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
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding; or
(vii) any grant of immovable property by Government; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."
For better understanding Ex. D1 Receipt and Ex. D2 Agreement are extracted below:-
"रससीद मम कवलसी व. छछोटट जजातति कहजार गजाम धनछोरजा थजान-गगुरूर तिह वजा जजलजा-दगगु र कजा तनवजाससी हह ह जछो तक हमजारर तकसजानसी जमसीन गजाम खखैरवजाहसी मम हखै जजससे हम तिसीनछो भजाई बटवजारजा आज तदनजाहक २८/3/७१ कछो हह ए हखै जजससे पजापांच पजापांचचों नसे जछो भसी जमसीन मजापां कछो तदयसे हम उसमम मसेरजा तकससी प्रकजार कछो बटवजारजा नहहीं हखै मम अपनसे मजापां कजा जमसीन कजा बटवजारजा तिगुरन्ति लसे जलयजा जजासे भसी जमसीन मजापां कसे पजास हखै उस जमसीन कछो दछोनछो भजाई तवसम्भर व बहह कचरजा मजापां कसे बसीति जजानसे पर दछो तहस्सजा मम बटवजारजा हछोवसेगजा इसमम मम तिथजा मसेरसे सपांतिजान तकससी प्रकजार कजा उजर करमगसे तिछो पपांचजायति व अदजालति मम झटठजा मजानसे जजावमगसे इसजलए यह रससीद पजापांच पजापांचचों कसे सजानसे हछोश हवजाश तिथजा तबनजा नशजा पजानसी खजायसे जलख तदयजा तक सनद रहम वक्त पर कजाम आवम ।
इकरजारनजामजा चटतपां क हम दछोनचों पक्ष कजा शजातमलजाति खजातिजा क्रमजापांक ५२, गजाम खखैरवजाहसी, 10 प०ह०नपां० ४६, तिहससील बजालछोद, जजलजा दगगु र पर चलजा आ रहजा हखै । यद्यतप खजातिजा शजातमलजाति हखै तकन्तिगु खजातिसे पर हम लछोग आपससी बटवजारजा हछोकर अपनसे अपनसे तहस्ससे बजापांटसे पर कजातबज थसे । उक्त खजातिसे पर खसरजा नपां० ६६ मम कसेवल रकबजा १-१३७ हसेक्टजारसे भटतम लगजानसी ३-६२ मम ससे हम लछोगचों कछो खसरजा नपां० ६६ कछो टगु ० रकबजा 0-४२५ हसेक्टजारसे भटतम लगजानसी १-३१ पखैससे आपससी बटवजारजा ससे प्रजाप्त हह ई थसी । हम लछोगचों नसे अपनसे तहस्ससे बजापांटसे ककी उक्त भटतम रकबजा 0-४२५ हसेक्टजारसे कछो नजाबजाजलग नन्दतकशछोर वल्द नजारजायण प्रसजाद बजाम्हण, सजातकन खखैरवजाहसी, तिहससील बजालछोद, जजलजा दगगु र कसे पजास मगुबजलग २,५ 00) रू० दछो हजजार पजापांच ससौ रूपयचों मम बजररयसे रजजस्टट सी शगुदजा बखैनजामजा तदनजापांक १३/२/१६७८ कसे हर हमसेशजा कसे जलयसे बसेच तदयसे और मजावजजा ककी कगुल चगुकतिसी रकम हम लछोगचों नसे प्रजाप्त करकसे अपनसे तनजसी व्यय मम लजायसे हम । खजातिजा शजातमलजाति हछोनसे ससे इकरजार पजानसे वजालचों नसे हमजारसी आवश्यकतिजा कछो दसेखतिसे हह ए हमम सहमति दसेतिसे हह ए सपांबपांजधति बखैनजामजा मम हस्तिजाक्षर रजजस्टट सी कजायजारलय मम कर तदयसे हम । अब गजाम खखैरवजाहसी, प०ह०नपां० ४६, तिहससील बजालछोद, जजलजा दगगु र सस्थति शजातमलजाति खजातिजा क्रमजापांक ५२ पर हमजारसे बजापांटजा तहस्ससे ककी कगुछ भसी जमसीन बचति नहहीं हखै और उक्त खजातिजा पर अब जछो कगु छ भसी जमसीन बचति हखै, वह इकरजार पजानसे वजालचों कसे तहस्ससे बजापांटसे ककी हखै तिथजा उस पर हमजारजा कगु छ भसी अपांश वछो तहस्सजा नहहीं पहह पांचतिजा हखै । इकरजार पजानसे वजालसे उक्त खजातिजा ससे हमजारजा नजाम कटवजा दसेवसे और खजातिसे पर कसेवल अपनजा हसी नजाम रखवजायसे तिथजा अपनसे इच्छजानगुसजार तिफससील सम्पजत्ति कजा उपयछोग वछो उपभछोग करसे । हमम कछोई आपजत्ति नहहीं हखै । यतद बजाद इकरजारनजामजा कसे हम लछोग स्वतितः यजा हमजारसे सन्तिजान गछोत्रज कसे अथवजा अन्य कछोई भसी व्यतक्त तकससी भसी प्रकजार ससे आपजत्ति, उजर यजा दजावजा वगखैरह करमगसे तिछो नजाजजायज वजा अनगुतचति हछोगजा । हर हजालति मम तिफससील बचति भटतम पर पटणर स्वजातमत्व वजा अजधकजार इकरजार पजानसे वजालचों कजा हसी हखै और हछोगजा । अस्तिगु अतितः इकरजारनजामजा हमनसे अपनसे स्वस्थ्य मसस्तिष्क प्रसन्न तचति ससे जलख तदयसे कसे प्रमजाण रहसे ।"
17. Learned counsel for the defendant No. 2 would submit that from bare perusal of Ex.D1 it is an unregistered family arrangement and there was corroborative evidence explaining the nature of arrangement arrived at between the parties as mentioned in Ex.D2. he would further submit that conduct of the plaintiffs' father in receiving the money from defendants' father and family in lieu of relinquishment of their interest in family property would clearly show that plaintiffs' father in furtherance of family partition has republished his share through Ikrarnama Ex.D/2. It has been further submitted that oral evidence was also brought on record to this effect, as such it is clearly established that plaintiffs' father has relinquished his share. The learned appellate Court as well as the trial Court have committed material illegality in not giving any consideration to Ex.D1 and Ex.D2. He would further submit 11 that Learned trial Court despite recording a finding with regard to issue No. 3 "D;k oknh x.k ,oa muds firk }kjk okn Hkwfe dk gd NksM+ laca/kh bdjkj ukek izfroknh dza0 1 ,oa 2 ds i{k esa fu"ikfnr fd;k x;k Fkk \ ;fn gka rks izHkkoA that has given a finding that the joint Hindu family property has already been partitioned and plaintiffs have already sold their share but it has not been proved that relinquishment agreement has been executed. The learned trial Court has not given any reason why the relinquishment agreement has not been proved despite ample evidence brought on record. This is perverse finding of the trial Court. He would further submit that the learned first appellate court while examining the validity of the Ex.D1 and Ex. D2 has recorded a finding that Ex.D2 is not registered document, this finding is incorrect application of law as from the bare perusal of Ex. D/1 it is evident that it cannot be construed as document containing term of recital of family arrangement but only memorandum of family arrangement. He would rely upon judgment of Hon'ble Supreme Court in case of Ravinder Kaur Grewal and Others vs. Manjit Kaur and Others 1. He would further relied on the judgment of Hon'ble Supreme Court in case of K. Arumuga Velaiah vs. P.R. Ramasamy and Others decided on 27.01.2022 in Civil Appeal No. 2564 of 2012 and would submit that the judgment passed by the learned trial Court and affirmed by the appellate Court deserves to be set aside.
18. Hon'ble Supreme Court in case of K. Arumuga Velaiah (supra) has held as under :-
"18. The following undisputed facts may be noted:-
(a) The relationship between the parties is not in dispute.
Periyaiya Servai through his first wife had begotten the first defendant, P.R. Ramaswamy and through his second wife had two sons, namely, P.R. Kasilingam second defendant and late Marimuthu. The appellantplaintiff is the son of P.R. Kasilingam.
(b) Appellant has also claimed that his grandfather Periyaiya Servai had executed a will in his favour and therefore he had onefourth share in the suit property.
(c) It is also not in dispute that O.S. No. 347 of 1991 was filed on the file of the District Munsiff Court, Devakottai by 1 (2020) 9 SCC 706 12 Periyaiya Servai for declaration of title and permanent injunction, wherein all the suit properties had been shown as joint family properties. Against the dismissal of the said suit a preliminary decree was passed granting onefourth share to the plaintiff therein in A.S. No. 37 of 1993 preferred against the dismissal of the suit.
(d) In A.S. No. 37 of 1993 it was held that the suit properties were joint family properties and in the year 1964 there was a partition between the members of the joint family. The said judgment was not assailed by any of the parties.
(e) However, the appellant herein instituted a fresh suit being O.S. No. 101 of 2004 on the file of the District Munsiff Court, Devakottai which was dismissed, against which A.S. No. 38/2005 was filed before the Subordinate Judge, Devakottai wherein it was observed that the finding given in A.S. No. 37 of 1993 to the effect that there was a partition in the family in the year 1964, had attained finality.
(f) Aggrieved by the dismissal of the appeal, second appeal being S.A. No. 92 of 2007 was filed before the Madurai Bench of the Madras High Court, which has also dismissed the same by the impugned judgment.
24. Having regard to the aforesaid provisions of law it can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under Section 17 (2) (v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration under section 17 (2)
(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence vide Ranjangam Iyer v. Ranjangam Iyer, AIR 1922 PC 266."
19. From the aforestated legal position and material brought on record it is crystal clear that both the courts below have committed illegality in not considering Ex. D/1 and D/2 as if it is document of partition which provide for effective division of property in future, therefore it is not required to be registered under Section 17(2)(V) of the Registration Act. Learned Courts below have also not applied the test which is required to see 13 whether the documents shall be registered if the document itself does not create right of interest over immovable property but merely creates right to obtain other documents when executed creates right to the person claiming relief. Formal document does not require registration, it is admissible in evidence. Ex.D/1 is of the nature of memorandum of understanding, mere agreement for steps to be taken in future for division of property. Therefore, the substantial question of law framed by this Court is answered in favour of the appellant but learned trial Court while allowing the suit on part has taken into consideration that plaintiff had amended its pleading and para 6A has been inserted wherein the plaintiffs have pleaded that in case if the court finds that partition has been taken place then also they are entitled for half of the share which is share of the deceased Kachra Bai as they are also legal representative of Kachra Bai. The defendants have not controverted this averment in the written statement. The learned trial Court while recording a finding that Kachra Bai is widow of Punau and she was inherited half of the property of her husband and as per Section 15 of the Hindu Succession Act property will be inherited by the legal heirs of husband. Since, the plaintiffs and defendants No. 1 and 2 are the legal heirs of the deceased Punau therefore, they are entitled to succeed the property inherited by Kachra Bai in equal shares. As such, the plaintiffs and defendants No. 1 and 2 are entitled to get 1/4 th share of the property. It is pertinent to mention here that even Ex.D1 and D2 do not make recital about the partition of the property inherited by Kachra Bai after her death as she was issue less, therefore, the property inherited by her will be governed by provisions of Section 14 to 16 of the Hindu Succession Act which are extracted below:-
"14. Property of a female Hindu to be her absolute property-
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her 14 marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
15. General rules of succession in the case of female Hindus.--
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),
--
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the husband.
16. Order of succession and manner of distribution among heirs of a female Hindu.--The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:--
Rule 1.--Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.
Rule 2.--If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the 15 share which such son or daughter would have taken if living at the intestate's death.
Rule 3.--The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub- section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."
20. Hon'ble Supreme Court in its recent judgment in case of Arunachala Gounder (Dead) By Lrs vs Ponnusamy in Civil Appeal No. 6659/2011 dated 20.01.2022 has examined the provisions of Section 14, 15 and 16 of the Act. The relevant para is extracted below:-
"75. This Court while analysing the provisions of Sections 15 & 16 of the Act in the case of State of Punjab Vs. Balwant Singh & Ors. 15, has held as under:-
"7. Sub-section (1) of Section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e). As per Sections 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously. Sub- section (2) of Section 15 begins with a non-obstante clause providing that the order of succession is not that prescribed under sub-section (1) of Section 15. It carves out two exceptions to the general order of succes- sion provided under sub-section (1). The first exception relates to the property inherited by a female Hindu from her father or mother. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter), not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the father. The second exception is in relation to the property inherited by a female Hindu from her husband or from her father-in-law. That property shall devolve, in the absence of any son or daughter of the deceased (including the children of the pre-deceased son or daughter) not upon the other heirs referred to under sub-section (1) in the order specified thereunder but upon the heirs of the husband.
8. The process of identifying the heirs of the intestate under sub-section (2) of Section 15 has been explained in Bhajya v. Gopikabai and Anr. [1978] 3 SCR 561. There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the Act. Rule 3 of Section 16 16 provides that "the devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and
(e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death".
76. Again in the case of Bhagat Ram (dead) by LRs. Vs. Teja Singh (dead) by LRs.16, a two-Judge Bench of this Court analysing the provisions of Sections 14, 15 and 16 of the Act reiterating the view taken in the State of Punjab Vs. Balwant Singh & Ors.(Supra), observed as under :-
"The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-Section 2 of Section 15, which gives a special pattern of succession. "
21. From the above discussion and considering the law, it is held that finding recorded by the learned trial Court, affirmed by the appellate court to that extent that plaintiffs and defendants are entitled to get 1/4th share is legal, justified and does not call for interference but it is held that the substantial question of law framed by this court is answered in favour of the appellant. Still the appeal deserves to be dismissed for the reason mentioned in the foregoing paragraphs.
22. Accordingly, the appeal is dismissed.
23. A decree be drawn up accordingly. No order as to costs.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh