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1980 DIGILAW 1115 (ALL)

Bhagwat Prasad v. Raghubir Saran

1980-11-20

I.B.SINGH

body1980
JUDGMENT I.B. Singh, Member. - This is a defendant's second appeal against judgment and decree dated 15.4.1974 passed by learned Additional Commissioner Meerut Division, Meerut, dismissing appeal Nos. 180 and 220 filed by two defendants against judgment and decree dated 29.12.1971 passed by Assistant Collector Ist Class Bulandshahar decreeing plaintiff's suit for division holding his share to be and that of the two defendants to be ? each. 2. Plaintiff Raghubir Saran Filed the suit against Gangadatt defendant No. 1 and Bhagwati Prasad defendant No. 2 for division of holding claiming 13/16 share in the land in suit and alleging 2/16 share of defendant Nos. 1 and 1/16 share of defendant No. 2. 3. The suit was contested by both defendants 1 and 2. They admitted the plaintiff to be co-tenant with them and alleged that the share of the plaintiff and each of the defendants was ?rd of each. 4. A have heard the learned counsel for the parties and have perused the record. 5. I preliminary objection was raised on behalf of plaintiff-respondent that the appeal was time barred as trial court's judgment was not filed and has been filed on 9.8.1974. The application for its copy was moved beyond time on 24.7.1974 and was filed beyond time. 6. An application under section 5 of the Limitation Act has been filed supported with affidavit that due to wrong advice of vakil and that as the Registrar had allowed three weeks time on 20.7.1974 for filing the trial court's judgment which was filed within that time allowed, hence the delay be condoned. 7. Argument has been advanced for and against the condonation of delay. 8. In Shakuntala Devi Jain v. Kuntal Kumari and and others, A.I.R. 1969 (S.C.) page 575. It has been held as follows:- "Section 5 gives the courts a discretion with in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles: the words "Sufficient cause" receiving a construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the applicant. If the appellant makes out sufficient cause for the delay, the court may in its discretion condone the delay in filing an appeal". 9. In G.I.P. Railway Co. If the appellant makes out sufficient cause for the delay, the court may in its discretion condone the delay in filing an appeal". 9. In G.I.P. Railway Co. v. Radhakishan Jaiksan and another, A.I.R. 1926 Nagpur page 57 it has been held as follows:- "Where the memorandum of appeal stated that the copy of judgment would be given afterwards and the appeals were admitted on presentation notice being ordered to issue to the respondent. Held: that it must be taken that the Court dispensed with the copy of judgment." 10. In Smt. Murti Devi v. Maharaj Singh and others, 1978 (Allahabad) A.L.J. NOC page 51 it has been held as follows:- "Where the memo of appeal was filed within time but without copy of the judgment of the trial court and the appellate court recalled its order which stated that the appeal memo was incomplete and admitted the appeal, the appellate court must be deemed to have admitted the appeal after considering the question of delay in filing the copy of the judgment of the trial court and no question of limitation would arise in such case. Where the appellant's explanation that the negligence of the counsel was responsible for delay in filing of the copy of the judgment of the trial court was not controverted by the respondents, there was 'sufficient cause' for condoning the delay in filing the copy". 11. In the present case the memo of appeal along with copy of judgment and decree of the lower appellate court was presented within time and the Registrar had given three weeks' time for filing copy of the judgment of the trial court which was filed within time so granted. The appeal was admitted and notices were issued for hearing of the appeal to the respondents. The appeal was admitted and notices were issued for hearing of the appeal to the respondents. Therefore, in view of the above ruling it will be deemed that either the filing of the copy of the judgment of the trial court was dispensed with or the delay was condoned and at least there is sufficient reason for condoning the delay as appellant was mislead by the order of the Registrar who could not have granted timed beyond limitation and the matter ought to have been brought to the notice of the Board, therefore the application for condoning the delay is based on sufficient reasons supported with affidavit which has been though controverted but not supported with affidavit, hence it is allowed and the delay is condoned. 12. I have heard the learned counsel for the parties on the merits of the appeal and have perused the record. 13. It was argued on behalf of the appellant that both the courts below erred in admitting in to evidence, the partnership deed dated 31.3.1964 which is not admissible in evidence as it is hit by section 17(2) of the Registration Act. Reliance has been placed on Ram Gopal Reddy v. The Additional Custodian Evacuee Property, Hyderabad, A.I.R. 1966 (S.C.) page 1438. Thinsukia Municipal Board and another v. Harikissen Lohia and others, A.I.R. 1957 Assam 10 and U. Zawtipala v. U. Thatdama, A.I.R. 1941 (Rangoon) page 159. 14. It was argued in reply that the partnership deed is on the stamp of Rs. 100/- that no right was created or transferred and only the share of the parties was defined, therefore, Registration Act was not applicable and both the courts below relying on the terms of the partnership deed rightly decided the share of the parties which cannot be interfered with. 15. The disputed land was purchased only by defendant No. 1 Ganga Dutt on 10.5.1959 from Lalman who alone was recorded. He got names of the plaintiff and defendant appellate recorded by conciliation by order of A.C.O. dated 10.9.1963. No share was defined of any party in the partnership deed dated 13.10.1958 or by the A.C.O. The copy of the partnership deed dated 31.3.1964 proved to be Ext. He got names of the plaintiff and defendant appellate recorded by conciliation by order of A.C.O. dated 10.9.1963. No share was defined of any party in the partnership deed dated 13.10.1958 or by the A.C.O. The copy of the partnership deed dated 31.3.1964 proved to be Ext. K-1 makes the parties owners of the business of brick kiln and its land, the goodwill and permit, in proportion of th ?th and ?th respectively and its clause six makes them partners to the extent of that share in the profits and losses. 16. Section 17 (1) (b) of the Indian Registration Act runs as follows:- 17(1)(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". 17. The parties were co-tenants prior to the said partnership deed but their share was not declared and by it their share has been declared in the business, as far as Partnership Act is concerned it is alright but as it declares the shares of the parties is in the immovable property i.e. the land in suit it is required to be registered under the said sub-section of Section 17 of the Registration Act and is not admissible in evidence and is hit by it as has been held in A.I.R. 1941 (Rangoon) page 159 in which by the deed the property was declared dwitantaka property of the other and other persons. In A.I.R. 1957 (Assam) page 10 it was held that the donor and his heir should share the income from the stalls the stipulation amounted to a transfer of interest in the immovable property within S. 17(1)(b) of the Registration Act and being of a value of more than hundred rupees, the deed was compulsorily registrable. The land in dispute is certainly of more than Rs. 100/- in value. There was no sale of it, therefore, section 4 of the Transfer of Property Act was not attracted but as the share of the parties was declared and defined. Section 17(1)(b) is certainly attracted and as it was not registered it is not admissible in evidence and cannot be read into evidence, therefore, it was wrongly admitted in evidence and read into evidence by both the courts below. Section 17(1)(b) is certainly attracted and as it was not registered it is not admissible in evidence and cannot be read into evidence, therefore, it was wrongly admitted in evidence and read into evidence by both the courts below. If this document is brushed aside for the reasons given above the natural share of the parties comes to ?rd each as they are recorded co-tenants without any distinct share and only that share ought to have been declared, therefore, the judgments and decrees passed by both the courts below are liable to be set aside and this appeal is liable to be allowed. 18. In view of the above this appeal is allowed with costs and judgments and decrees passed by both the courts below are hereby set aside and the share of plaintiff and of defendants No. 1 and defendant No. 2 in the disputed land is declared to be ?rd each. A preliminary decree shall be prepared accordingly. Plaintiff shall take steps for preparation of 10ts and F.D.