SITA RAM BHAMA versus RAMVATAR BHAMA

[2018] 10 S.C.R. 503

SITA RAM BHAMA

RAMVATAR BHAMA

(Civil Appeal No. 3171 of 2018)

MARCH 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Registration Act, 1908 – ss.17 and 49 – Admissibility ofdocument in evidence – Appellant-plaintiff and respondent-defendant after death of their father, recorded memorandum ofsettlement as decided by their father regarding his self-acquiredproperties – Plaintiff claimed that defendant broke open the lockof the house and took possession of the house – Civil suit was filedby the plaintiff for decree of possession and permanent injunctionagainst the defendant – In suit, plaintiff also filed the memorandumof settlement evidencing family settlement – Defendant filedapplication u/Or. XIII, r.3 claiming that memorandum of settlementbeing not properly stamped and not being registered documentwas not admissible in evidence – Trial Court allowed the application– Writ petition filed against the order of trial Court dismissed byHigh Court – On appeal, held: After the death of plaintiff’s father,defendant and their mother as well as sisters became the legal heirsunder Hindu Succession Act inheriting the property being class Iheirs – The memorandum of settlement divided the entire propertybetween plaintiff and defendant which document was also claimedto be signed by their mother as well as sisters – Since, there wasrelinquishment of the rights of other heir of the properties, thememorandum of settlement was compulsorily registrable u/s.17 ofthe Registration Act – Document being not stamped could not havebeen accepted in evidence – Trial Court was right in holding thedocument as inadmissible – Code of Civil Procedure, 1908 –Or. XIII, r.3 – Hindu Succession Act, 1956.

Registration Act, 1908 – s.17 – Unregistered document –Partition Suit – Whether the document which is inadmissible inevidence could be used for any collateral purpose – Held: In suitfor partition, an unregistered document can be relied upon for

CDE

Acollateral purpose i.e. severancy of title, nature of possession ofvarious shares but not for the primary purpose i.e. division of jointproperties by metes and bounds – Further, an unstamped instrumentis not admissible in evidence even for collateral purpose, until thesame is impounded – In instant case, document may be admissiblein evidence for collateral purpose provided the appellant gets theBdocument impounded and pay the stamp duty together with penalty.

Partly allowing the appeal, the Court

HELD: 1. The memorandum of settlement dated 09.09.94was not mere memorandum of family settlement rather familyCsettlement itself. Firstly, on 25.10.1992, the father of the partieswas himself owner of both, the residence and shop being his self-acquired properties. The High Court has rightly held that thesaid document cannot be said to be Will, so that father couldhave made Will in favour of his two sons,plaintiff and defendant.Neither the plaintiff nor defendant had any share in the propertyDon the day when it is said to have been partitioned by their father.After death of their father plaintiff, defendant and their mother aswell as sisters become the legal heirs under Hindu SuccessionAct,1956 inheriting the property being class I heir. The documentdated 09.09.1994 divided the entire property between plaintiffEand defendant which document is also claimed to be signed bytheir mother as well as the sisters. In any view of the matter,there is relinquishment of the rights of other heirs of theproperties, hence, courts below are right in their conclusion thatthere being relinquishment, the document dated 09.09.1994 wascompulsorily registrable under Section 17 of the Registration Act.F[Para 10] [508-D-G]

2. The document dated 09.09.1994 was compulsorilyregistrable. The document also being not stamped could not havebeen accepted in evidence and order of trial court in allowing theapplication of the defendant holding the document as inadmissibleGcannot be faulted. [Para 12] [510-D]

3. There is only one aspect of the matter which needsconsideration, i.e., whether the document dated 09.09.1994 whichwas inadmissible in evidence could have been used for anycollateral purpose. In suit for partition, an unregisteredH

document can be relied upon for collateral purpose i.e. severancyof title, nature of possession of various shares but not for theprimary purpose i.e. division of joint properties by metes andbounds. Further, an unstamped instrument is not admissible inevidence even for collateral purpose, until the same is impounded.In instant case, document dated 09.09.1994 may be admissiblein evidence for collateral purpose provided the appellant get thedocument impounded and pay the stamp duty together withpenalty. [Paras 13 and 15] [510-E-F; 511-E]

Kale and Others v. Deputy Director of Consolidationand Others (1976) 3 SCC 119; Yellapu Uma Maheswariand Another v. Buddha Jagadheeswararao and Others(2015) 16 SCC 787 – relied on.

Case Law Reference

(1976) 3 SCC 119

(2015) 16 SCC 787

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3171of 2018

From the Judgment and Order dated 23.01.2017 of the High Courtof Judicature for Rajasthan at Jodhpur in S. B. Civil Writ PetitionNo. 4810 of 2015.

Ajit Kumar Sinha, Sr. Adv., Yunus Malik, Anish Maheshwari, ZainA. Khan, Samir Malik, Advs. for the Appellant.

H. D. Thanvi, Ms. Preeti Thanvi, Rishi Matoliya, Advs. for theRespondent.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J. 1. The appellant, who was plaintiff inCivil Suit No.4 of 2011, has filed this appeal questioning the judgment ofthe High Court of Judicature for Rajasthan at Jodhpur dated 23.01.2017by which writ petition filed by the appellant against the order dated03.03.2015 of the Additional District Judge has been dismissed.

2. Brief facts of the case which are necessary to be noted fordeciding this appeal are:

AWe shall refer the parties as described in the plaint. Plaintiff andrespondent are real brothers being sons of late Devi Dutt Ji Verma.Plaintiff’s case is that his father Devi Dutt Verma on 25.10.1992 decidedto divide his self-acquired movable and immovable properties betweenplaintiff and defendant. The late father, however, did not execute anysettlement deed. Devi Dutt Verma died on 10.09.1993 and thereafter onB09.09.1994 plaintiff and defendant recorded memorandum of settlementas decided by their father regarding his self-acquired properties. Thememorandum of settlement was signed by mother of the parties as welltwo sisters had signed as witnesses. According to memorandum ofsettlement both residential house as well as shop in the Aguna BazarCwere distributed as decided by their late father.

3. Civil Suit No.5 of 2010 was filed by the plaintiff praying forpartition of the residential house as well as the shop. In the suit anapplication under Order VII Rule 11 of the Civil Procedure Code wasfiled by the defendant, Ramvatar Bhama taking the plea that onD25.10.1992 during the life time of Shri Devi Dutt Verma, the father ofthe plaintiff and defendant, had partitioned the house and the shop.Southern portion of the house came in the share of the plaintiff andnorthern part came in the share of the defendant. In confirmation of theearlier partition dated 25.10.1992 the family settlement dated 09.09.1994was executed which was signed by the plaintiff and defendant alongEwith both the sisters as well as mother. It was pleaded by the defendant,in view of the aforesaid, that there was no cause of action for the plaintiffto file partition suit. Defendant prayed that suit of the plaintiff is liableto be dismissed.4. The trial court vide its order dated 19.01.2011 allowed theFapplication filed by the defendant under Order VII Rule 11 CPC anddismissed the suit for want of cause of action in favour of the plaintiff.The civil court accepted the case of the defendant that the parties whichwere in joint family have been divided, there being nothing joint betweenthe parties, there is no cause of action for the plaintiff for filing the suitGfor partition. The relief for permanent injunction was also held to berelated to the partition.

5. Another Civil Suit No.4 of 2011 was filed by the plaintiff claimingthat after dismissal of the earlier suit of the plaintiff on 19.01.2011,defendant broke open the lock of the house and took possession of the

house. Plaintiff prayed for decree of possession against the defendantas well as decree of permanent injunction. Plaintiff also sought for mesneprofit and expenses.

6. In the suit, plaintiff has filed the document dated 09.09.1994evidencing family settlement which was claimed by the plaintiff asmemorandum of settlement. An application under Order XIII Rule 3CPC and Article 45 and Section 35 of the Indian Stamp Act and Sections17 and 49 of the Indian Registration Act, was filed by the defendantclaiming that document dated 09.09.1994 being not registered documentand being not properly stamped is not admissible in evidence, same maybe rejected. The application was replied by the plaintiff. The trial courtvide its order dated 03.03.2015 allowed the application of the defendantholding that the document dated 09.09.1994 is family settlement deedand relinquishment document which is not admissible as evidence beinginadequately stamped and not being registered. Against the said orderdated 03.03.2015 writ petition was filed by the plaintiff which wasdismissed by the High Court upholding the order of the trial court. TheHigh Court also took the view that so called family settlement takesaway the share of the sisters and mother, therefore, the same wascompulsorily registrable. Aggrieved by the said order, the plaintiff hascome up in this appeal.

7. Shri Ajit Kumar Sinha, learned senior counsel, appearing forthe appellant submits that document dated 09.09.1994 is only amemorandum of partition which took place on 25.10.1992 when fatherof the parties had partitioned the house and the shop. The memorandumof family settlement is not compulsorily registrable. The document itselfbeing not family settlement rather only memorandum ought to havebeen accepted by the trial court. He further submits that in the earliersuit filed by the plaintiff being Suit No.5 of 2010, the suit was dismissedunder Order VII Rule 11 CPC on the plea of the defendant that thepartition has already taken place between the parties as claimed by theplaintiff, hence, no cause of action has arisen for filing suit for partition.He submits that partition effected by the father of the parties on25.10.1992 which was subsequently recorded on 09.09.1994 havingalready been accepted, it is not open for trial court to reject the documentdated 09.09.1994 for being taken in evidence. It is submitted that byorder of the court below the plaintiff has become remedy-less.

A8. Learned counsel for the respondent refuting the submission ofthe learned counsel for the appellant contends that the trial court as wellas the High Court has rightly come to the conclusion that documentdated 09.09.1994 was compulsorily registrable. It being neither registerednor duly stamped has rightly been rejected by the trial court from beingtaken in evidence. He submits that the High Court has rightly dismissedBthe writ petition filed by the plaintiff.

9. We have considered the submissions of the parties and perusedthe records.

10. The only question which needs to be considered in the presentCcase is as to whether document dated 09.09.1994 could have beenaccepted by the trial court in evidence or trial court has rightly held thesaid document inadmissible. The plaintiff claimed the document dated09.09.1994 as memorandum of family settlement. Plaintiff’s case is thatearlier partition took place in the life time of the father of the parties on25.10.1992 which was recorded as memorandum of family settlementDon 09.09.1994. There are more than one reasons due to which we are ofthe view that the document dated 09.09.1994 was not mere memorandumof family settlement rather family settlement itself. Firstly, on25.10.1992, the father of the parties was himself owner of both, theresidence and shop being self-acquired properties of Devi Dutt Verma.EThe High Court has rightly held that the said document cannot be saidto be Will, so that father could have made Will in favour of his twosons, plaintiff and defendant. Neither the plaintiff nor defendant had anyshare in the property on the day when it is said to have been partitionedby Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993. After hisdeath plaintiff, defendant and their mother as well as sisters become theFlegal heirs under Hindu Succession Act, 1955 inheriting the propertybeing class I heir. The document dated 09.09.1994 divided the entireproperty between plaintiff and defendant which document is also claimedto be signed by their mother as well as the sisters. In any view of thematter, there is relinquishment of the rights of other heirs of the properties,Ghence, courts below are right in their conclusion that there beingrelinquishment, the document dated 09.09.1994 was compulsorilyregistrable under Section 17 of the Registration Act.

11. Pertaining to family settlement, memorandum of familysettlement 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 Kaleand others vs. Deputy Director of Consolidation and others, (1976)3 SCC 119. The propositions with regard to family settlement, itsregistration were laid down by this Court in paragraphs 10 and 11:

“10. In other words to put the binding effect and theessentials of family settlement in concretised form, thematter may be reduced into the form of the followingpropositions:

(1) The family settlement must be bona fide one so as toresolve family disputes and rival claims by fair and equitabledivision or allotment of properties between the variousmembers of the family;

(2) The said settlement must be voluntary and should notbe induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in whichcase no registration is necessary;

(4) It is well settled that registration would be necessaryonly if the terms of the family arrangement are reduced intowriting. Here also, distinction should be made between adocument containing the terms and recitals of familyarrangement made under the document and merememorandum prepared after the family arrangement hadalready been made either for the purpose of the record or forinformation of the court for making necessary mutation. Insuch case the memorandum itself does not create orextinguish any rights in immovable properties and thereforedoes not fall within the mischief of Section 17(2) of theRegistration Act and is, therefore, not compulsorilyregistrable;

(5) The members who may be parties to the familyarrangement must have some antecedent title, claim or interesteven possible claim in the property which is acknowledgedby the parties to the settlement. Even if one of the parties tothe settlement has no title but under the arrangement the otherparty relinquishes all its claims or titles in favour of such aperson and acknowledges him to be the sole owner, then the

antecedent title must be assumed and the family arrangementwill be upheld and the courts will find no difficulty in givingassent to the same;

(6) Even if bona fide disputes, present or possible, whichmay not involve legal claims are settled by bona fide familyBarrangement which is fair and equitable the familyarrangement is final and binding on the parties to thesettlement.

11. The principles indicated above have been clearlyenunciated and adroitly adumbrated in long course ofCdecisions of this Court as also those of the Privy Council andother High Courts, which we shall discuss presently.”

12. We are, thus, in full agreement with the view taken by the trialcourt as well as the High Court that the document dated 09.09.1994 wascompulsorily registrable. The document also being not stamped couldDnot have been accepted in evidence and order of trial court allowing theapplication under Order XII Rule 3 CPC and the reasons given by thetrial court in allowing the application of the defendant holding thedocument as inadmissible cannot be faulted.

13. There is only one aspect of the matter which needsEconsideration, i.e., whether the document dated 09.09.1994 which wasinadmissible in evidence could have been used for any collateral purpose.In suit for partition, an unregistered document can be relied upon forcollateral purpose i.e. severancy of title, nature of possession of variousshares but not for the primary purpose i.e. division of joint properties bymetes and bounds. Further, an unstamped instrument is not admissible inFevidence even for collateral purpose, until the same is impounded. Atwo-Judge Bench judgment of this Court in Yellapu Uma Maheswariand another vs. Buddha Jagadheeswararao and others, (2015) 16SCC 787, is appropriate. In the above case also admissibility of documentsExt. B-21 dated 05.06.1975 deed of memorandum and Ext. B-22 datedG04.06.1975 being an agreement between one late Mahalakshamma,respondent No.1-plaintiff and appellant No.1-defendant came forconsideration. Objection was taken regarding admissibility which wasupheld both by the High Court and trial court. Matter was taken up bythis Court. In the above case, this Court held that the nomenclaturegiven to the document is not decisive factor but the nature and substance

of the transaction has to be determined with reference to the terms ofthe documents. This Court after considering both the documents, B-21and B-22 held that they require registration. In paragraph 15 followingwas held:

“15. It is well settled that the nomenclature given to thedocument is not decisive factor but the nature and substanceof the transaction has to be determined with reference to theterms of the documents and that the admissibility of adocument is entirely dependent upon the recitals containedin that document but not on the basis of the pleadings set upby the party who seeks to introduce the document in question.A thorough reading of both Exts. B-21 and B-22 makes itvery clear that there is relinquishment of right in respect ofimmovable property through document which is compulsorilyregistrable document and if the same is not registered, itbecomes an inadmissible document as envisaged underSection 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit ofSection 17(1)(b) of the Registration Act and hence arecompulsorily registrable documents and the same areinadmissible in evidence for the purpose of proving the factumof partition between the parties. We are of the consideredopinion that Exts. B-21 and B-22 are not admissible inevidence for the purpose of proving primary purpose ofpartition.”

14. After holding the said documents as inadmissible, this Courtfurther proceeded to consider the question as to whether the documentsB-21 and B-22 can be used for any collateral purpose. In the abovecontext the Court accepted the submission of the appellant that thedocuments can be looked into for collateral purpose provided appellant-defendant to pay the stamp duty together with penalty and get thedocument impounded. In paragraphs 16 and 17 following has been laiddown:

“16. Then the next question that falls for considerationis whether these can be used for any collateral purpose.The larger Bench of the Andhra Pradesh High Courtin Chinnappareddigari Peda Mutyala Reddy v.

AChinnappareddigari Venkata Reddy[(AIR 1969 AP 242)] hasheld that the whole process of partition contemplates threephases i.e. severancy of status, division of joint property bymetes and bounds and nature of possession of various shares.In suit for partition, an unregistered document can be reliedupon for collateral purpose i.e. severancy of title, nature ofBpossession of various shares but not for the primary purposei.e. division of joint properties by metes and bounds. Anunstamped instrument is not admissible in evidence even forcollateral purpose, until the same is impounded. Hence, ifthe appellant-defendant want to mark these documents forCcollateral purpose it is open for them to pay the stamp dutytogether with penalty and get the document impounded andthe trial court is at liberty to mark Exts. B-21 and B-22 forcollateral purpose subject to proof and relevance.

17. Accordingly, the civil appeal is partly allowed holdingthat Exts. B-21 and B-22 are admissible in evidence forcollateral purpose subject to payment of stamp duty, penalty,proof and relevancy.”

15. Following the law laid down by this Court in the above case,we are of the opinion that document dated 09.09.1994 may be admissibleEin evidence for collateral purpose provided the appellant get the documentimpounded and to pay the stamp duty together with penalty as has beendirected in the above case.

16. In the result, this appeal is partly allowed in the followingmanner:

The order of the trial court as well as the High Court holding thatthe document dated 09.09.1994 required compulsory registration is upheld.Following the aforesaid view of this Court in Yellapu Uma Maheswari(supra), this appeal is partly allowed holding that deed dated 09.09.1994is admissible in evidence for collateral purpose subject to payment ofGstamp duty and penalty.

Ankit Gyan Appeal partly allowed.