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(ii) The Defendants while repelling the Plaintiffs‟ case referred to a document Exhibit „D2‟ dated 06-01-1972, vide which certain clarifications had been made to the Partition Deed Exhibit "P3/D1" dated 12-01-1965. According to them, the contents of Exhibit „D2‟ clarified that during the execution of the Partition Deed no portion of the properties was set aside as "Jiwni" (maintenance) for their mother‟s upkeep during her lifetime. Exhibit „D2‟ accordingly detailed the shares of each of the brothers to be set aside for their mother‟s maintenance, from their respective partitioned shares. In the alternative, to deposit the specified amount of paddy for the same purpose. In the event of failure by any son to give his paddy field or deposit the crop, the land set aside would be handed over to Defendant No.2 by the Panchayat. That, the Plaintiffs‟ father and Defendant No.1 were to expend one share each for the funeral/death rite expenses of their mother, while Defendant No.2 would bear the twice expenses. The Defendants‟ claim that on their mother‟s death in 1975 as the Plaintiffs‟ mother refused to contribute her share of expenses for the funeral/death rite, her land was given to Defendant No.2. The land so given for "Jiwni" by the Plaintiffs‟ mother as revealed by Exhibit „D4‟ was Plot No.237 and bounded as follows;

(ii) It was further contended that in Exhibit „D2‟ the Nepali word "Jimma" translated into English as "Hand over", tantamounts to transfer of the land for the upkeep of their mother during her lifetime and is not to be interpreted as an arrangement of retention of land by the Defendant No.2 for his benefit, even after her passing. Further, Exhibit „D2‟ categorically provided that the Partition Deed Exhibit "P3/D1" would be considered "valid" for which the Nepali word "Sadar" has been employed. Hence, the contents of Exhibit „D2‟ being subject to the contents of Exhibit "P3/D1" are to be read holistically, bearing in mind the objective of its execution, i.e., to provide for the maintenance of their mother. That, in order to consider the real nature of the document one has to look into the recitals thereof and not the title. On this aspect, strength was drawn from B. K. Muniraju vs. State of Karnataka and Others1. It was next contended that mere handing over of Schedule „C‟ land for the maintenance of the Appellants‟ grandmother by their mother cannot be termed as an "exchange" for Schedule „B‟ land as wrongly urged by the Respondents, since both Schedule „B‟ and „C‟ lands belong to the Appellants. That, it would be an incongruous proposition for the Appellants‟ mother to exchange one plot of the Appellants‟ land with another that belonged to them. Drawing strength from Section 54 and Section 118 of the Transfer of Property Act, 1882 (hereinafter, the "TP Act"), it was urged that both provisions are to be read in consonance with each other which demonstrates that no "Exchange" as envisaged by Law has taken place. It was next urged that Section 52 of the Indian (2008) 4 SCC 451 Chabilal Sapkota and Another vs. Narad Mani Sapkota and Another 7 Easements Act, 1882 defines "Licence" and handing over four rows of paddy fields for the maintenance of the Appellants‟ grandmother does not create any rights of ownership for the Respondents on Schedule „C‟ land by claims of exchange but was licence granted by the Appellants‟ mother. That, the Sikkim Registration of Document Rules, 1930, requires registration of document on transfer of immovable property, but Schedule „C‟ land despite claims of possession has not been registered in the name of Respondent No.2. Contending that Exhibit "P3/D1" and Exhibit „D2‟ required no registration reference was made to Nazir Mohamed vs. J. Kamala and Others2 where the Hon‟ble Supreme Court propounded that a family agreement need not be registered. That, accordingly the Appellants are entitled to a declaration that the Respondents have no right, title and interest over the Schedule „C‟ land and a declaration for Schedule „B‟ property in terms of the Prayers made in the Plaint. 7(i). Contesting and repelling the arguments of the Learned Senior Counsel for the Appellants, Learned Counsel for the Respondents contended that the averments in Paragraph 13 of the Plaint referred to only Schedule „A‟ land being handed over to the Respondents and not Schedule „C‟. That, the question of exchange of Schedule „C‟ property only came up later with Exhibit „D2‟ being introduced by the Respondents, thus there is a variance in the pleadings and proof of the Appellants. That, the averments in the Plaint do not specify as to when Schedule „C‟ property was handed over to the Respondents for cultivation nor was it proved, neither is the term "share crop" elucidated by the Appellants. That, Schedule „C‟ property has been in the possession of Respondent No.2 since 1975, who is cultivating it and not Respondent No.1 as wrongly (2020) 19 SCC 57 Chabilal Sapkota and Another vs. Narad Mani Sapkota and Another 8 alleged by the Appellants but the title to the property is not with Respondent No.2 as correctly held by the Learned Trial Court. That, although the issue of "Exchange" was averred in the Written Statement, the Appellants neither denied it nor made an effort to clarify their position by amending their Plaint. That, Section 118 of the TP Act relied on by the Appellants was not applicable at the relevant time as the Act was extended and enforced in Sikkim only on 01-09-1984 whereas the "exchange" took place in 1975. That, the Appellants have failed to approach the Court with clean hands as the Appellants‟ mother is unaware of the Plot numbers that her sons are laying claim to and their Appeal deserves a dismissal. To buttress her submission that the person seeking equity must do equity, reliance was placed on Kishore Samrite vs. State of Uttar Pradesh and Others . Relying upon Bachhaj Nahar vs. Nilima Mandal and Others , it was argued that no amount of evidence can be looked into upon a plea which was never averred in the pleadings and that there is no averment in the Plaint about handing over of Schedule „C‟ land to the Respondents. Learned Counsel however conceded that family agreement needs no registration for which reliance was placed on Ripudaman Singh vs. Tikka Maheshwar Chand5.

North - Own paddy field.

South - Kholsa.

Harvest approximately two muris.

The boundary of land set aside from the share of (Sahila) third brother (for clarity Appellants father) is as follows;

East - Own paddy field.

West - Paddy field of Narad.

North - Own dry paddy field.

South - Kholsa.

Harvest approximately two muris.

Within the boundary demarcated by the Panchayat, three pieces of land (paddy fields) are being set aside for mother‟s upkeep/maintenance for her lifetime, because these lands fall in our partition shares we will cultivate it and from the third son by birth one „muri‟, from the fourth son by birth one „muri‟ and the youngest one two „muris‟ would be given to mother. In the event that anyone defaults in payment of shares of paddy for the maintenance the "Panch" can hand over the property demarcated for such maintenance to the brother who is the care giver for mother or else four „muris‟ of paddy will be set aside and all will continue to cultivate their own partitioned fields. The two brothers who were living Chabilal Sapkota and Another vs. Narad Mani Sapkota and Another 15 separately from the mother would bear one share each for the death rites of the mother, while the brother with whom the mother was living would bear the expenses equivalent to two shares. While holding the previous Partition Deed as central and true/accepted no one will interfere in the possession of each other‟s partitioned lands. That, the document is prepared with the consent of all for providing maintenance to mother for her lifetime and all affix signatures in the presence of "Panch". If any brother has any issue/disagreement, the "Panch" would decide the matter on the basis of the said document."

(iv) The document was undisputedly executed for the purpose of setting aside "Jiwni" land for the mother of the brothers mentioned therein. The term "Jiwni" employed in the document according to the Nepali-Nepali-English Dictionary, Bhagyamin Publisher, Complete New Edition 1983 (Reprinted on March 1989), at Page No.224, means "maintenance; property set apart for old age; means of support". The translation of the Nepali word "Jiwni" as reflected above, requires no further elucidation. The document explicitly lays down the area of land along with boundaries that have been set aside by each brother for their mother‟s maintenance during her lifetime. If any brother were to default in the payment of shares of paddy for "Jiwni" then the Panchayat were empowered by the document to give "Jimma"/"custody" of the property demarcated for such maintenance, to the youngest brother with whom their mother was living. It is specified therein that after such property was handed over to the "custody" of the younger brother, the brothers would continue to cultivate their own partitioned properties. The document further lays down details of expenditure to be borne by the brothers in the event of their mother‟s demise.