C. T. Sankaranarayanan Nair v. Achuthen Nair — 1981 DIGILAW 315 (KER)

JUDGMENT G. Viswanatha Iyer, J. 1. Feeling aggrieved at the rejection of his claim for partition of all except four items in the plaint B schedule the plaintiff has come up with this appeal. The plaint B schedule contained 34 items. The lower court has found that items 8, 13, 20 and 33 were obtained by the plaintiff's grand mother's tavazhi on partition of the main tarwad. A decree for partition and allotment of the plaintiff's 1/31 share has been granted by the lower court. Item 34 has been found to be the self acquisition of the first defendant. So the plaintiff's claim for partition of it has been denied. The rest of the B schedule items have been found to be acquisitions in the name of the plaintiff's grandmother by her husband and as such held to be tavazhi properties. But the plaintiff's claim for partition over them has been denied to him on the sole ground that he relinquished his claim over them by a registered surrender deed dated 2-6-1952. Pending suit the plaintiff's mother the fifth defendant died and the first defendant, a brother of the plaintiff propounded a will Ext. B14 under which he is made the sole legatee. In this appeal the plaintiff challenges the correctness of the decision of the lower court in respect of the last three points. 2. In the nature of this case it is better to deal with the plaintiff's case regarding his claim for partition of the properties acquired in the name of the grandmother over which his claim for partition has been denied. The only ground on which it has been denied is that he has surrendered his claim over them as per Ext. B1 dated 2-6-1952. The plaintiff - appellant admits that he executed that document and received Rs. 1,500/- to continue his studies. But according to him it does not legally amount to a surrender of his claim over them for more than one reason. Firstly he contends that this document was brought into existence only as a make - believe to pacify the objection of the fist defendant to spent money from the family to further educate the plaintiff. But this case has not been substantiated by the plaintiff. 3. The second ground of attack on the validity of Ext. Firstly he contends that this document was brought into existence only as a make - believe to pacify the objection of the fist defendant to spent money from the family to further educate the plaintiff. But this case has not been substantiated by the plaintiff. 3. The second ground of attack on the validity of Ext. B1 is that it does not have the effect of affecting the plaintiff's right over these properties; in that Ext. B1 does not contain any description capable of identifying the property dealt with in it as required under S.21 of the Indian Registration Act. In other words there has not been any valid registration as required by the Registration Act so as to extinguish the plaintiff's right in the property. In support of it the appellant's counsel refers to S.17, 21, 22 and 49 of the Registration Act. 4. Before we consider this ground of attack it is necessary to dispose of an objection taken by the respondents' counsel, namely that this ground of attack has not been put forward in the lower court or raised in the memorandum of appeal filed before this Court and so cannot be urged at this stage. It is true that this aspect of the matter has not been urged earlier. But as no new facts are required to be investigated or proved and the appellant's argument is purely based on a reading of Ext. B1 we did feel that this aspect of the matter should be considered and we gave an opportunity to the respondents' counsel to meet this point and both the counsel have addressed arguments on this aspect of the matter. Under O.41 R.2 the appellants court can permit the appellant to urge in support of the appeal any ground not set forth in the memorandum of appeal. Further in deciding the appeal the appellate court is not restricted to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court. The only requirement of law is that before resting its decision the appellate court should give an opportunity to the person affected to contest the case on that ground. Keeping this rule in mind we have heard the arguments of either side in detail and we now proceed to consider the legal effect of Ext. B1 in the light of the Registration Act. 5. Ext. Keeping this rule in mind we have heard the arguments of either side in detail and we now proceed to consider the legal effect of Ext. B1 in the light of the Registration Act. 5. Ext. B1 operates to extinguish the right of the plaintiff for Rs. 1500/- The Registration Act S.17(1)(b) and (c) requires that a non testamentary instrument which operate to extinguish any right, title or interest of the value of one hundred rupees and upwards to or in immovable property should be registered. As per S.21(1) no non testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. Sub-s.(2), (3) and (4) provide for the nature of the description and the territorial division in which they are situate. S.22(1) empowers the Government to make a rule requiring that the lands for the purpose of S.21 shall be described with references to Government map or survey and S.22(2) states that "Save as otherwise provided by any rule made under sub-s.(1), failure to comply with the provisions of S.21, sub-s.(2) or sub-s.(3) shall not disentitle a document to be registered if the descriptions of the property to which it relates is sufficient to identify that property." As early as 1933 the Government of Madras by G. O. Ms. No. 53 Law (Registration) dated 24-4-1933 issued a Notification under S.22(1). The material clauses in the Notification read "(a) Every non testamentary document presented for registration and relating to land shall, if the land comprises one or more entire survey fields or sub divisions specify the number of each field or sub division as given in the Government village map. (b) if the land has no separate number assigned to it in the Government village map, the document shall specify the number assigned in such village map to the survey field or sub division in which the land is situated, together with such description of the land as is sufficient for its identification. (b) if the land has no separate number assigned to it in the Government village map, the document shall specify the number assigned in such village map to the survey field or sub division in which the land is situated, together with such description of the land as is sufficient for its identification. (c) Failure to comply with the provisions of this rule shall disentitle a document to be registered." The primary object of registration as stated by Pigot, J. in Baij Nath Tewari v. Sheo Sahoy Bhagut (ILR 18 Calcutta 556) are two fold, namely (1) to provide a conclusive guarantee of the genuineness of the instrument and (2) to provide a record from which persons who may desire to enter into dealings will respect to the property affected by the instrument may be able to obtain information as to the title. It is for the second object that the provisions of S.21 have been framed. S.49 provides that no document required by S.17 or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein, or be received in evidence of any transaction affecting such property unless it has been registered. Registered means validly registered in accordance with the provisions of the Registration Act. Merely putting the deed on the register is not enough. What is required is not de facto registration. It must be registered according to the requirements of the Act. The registration should be lawful. The question for consideration here is whether Ext. B1 has been lawfully registered. 6. Ext. B1 does not contain any description of the properties either as required by the notification or by any other description which is normally followed in describing immovable properties. Either the place where the immovable properties are situate, Survey field covering the properties or the boundaries, Amsom or Village or Taluk or the District where they are situate are not mentioned anywhere in the document. It is not necessary that it should be shown in a separate schedule, even if the description is given in the body of the document so as to identify the property the requirement of the law may be satisfied. But S.21 requires that the description of the property in the document should be sufficient to identify it. It is not necessary that it should be shown in a separate schedule, even if the description is given in the body of the document so as to identify the property the requirement of the law may be satisfied. But S.21 requires that the description of the property in the document should be sufficient to identify it. Section does not provide for an enquiry at that stage or later by the Registrar to ascertain what the property dealt with is. Under S.3 of the Transfer of Property Act registration of a document is deemed to be notice to all of the disposition contained therein. It stands to reason that the description in the document should be such that any person making a search of the registry should be able to ascertain the property dealt with. Therefore in order that the document dealing with immovable property should be registered, the property dealt with should be capable of ascertainment on the materials available before the Registrar. The requirement of S.21 does not contemplate ascertainment later on by an enquiry as to what the party has intended by the document. The respondents' counsel tried to make out that the descriptions in the document are sufficient to identify the property dealt with. In support of this aspect the respondents' counsel referred to the decisions in Narasimha Narayanavaru v. Ramalingama Rao ( 1900 (10) MLJ 104 ) and Parashrampant v. Rama Yellappa (ILR 34 Bombay 202) wherein the description as "my property" or "my family property" were held to be sufficient description of the property dealt with for the purpose of the Registration Act. These decisions came up for consideration in Seetharama Raju v. M/s. L.G.G.A. Dept. (AIR 1963 Madras 1). That court specifically overruled the dictum in Narasimha Narayanavaru v. Ramalingama Rao ( 1900 (10) MLJ 104 ) and also refused to follow the ratio of the Bombay decision in Parashrampant v. Rama Yellappa (ILR 34 Bombay 202). The Madras High Court gave the reasoning thus "The decisions in the above cases are sought to be supported on the familiar rule of logic as well as law applied in the construction of documents which is expressed in the Latin maxim "certum set quod certum redd protest" (that is sufficiently certain which can be made certain). The Madras High Court gave the reasoning thus "The decisions in the above cases are sought to be supported on the familiar rule of logic as well as law applied in the construction of documents which is expressed in the Latin maxim "certum set quod certum redd protest" (that is sufficiently certain which can be made certain). But that rule cannot fully be adopted in the application of S.21 of the Act for to do so would amount to this namely, that the property disposed of could be left to be ascertained later by an enquiry." To the same effect is the decision of the Travancore High Court in Raman Pillai v. Parameswaran (5 TLT 40). In the latter case also the two decisions cited by the respondents' counsel were considered and refused to be followed. In the Travancore case a Sammatham deed where there was no description of the immovable property but only a statement "all rights possessed by our branches" was held to be not a sufficient description of the immovable property for the purpose of registration. 7. Moreover the Registrar also has not understood Ext. B1 as one relating to immovable property for he has not registered this in Book No. 1 but in Book No. 4. No doubt that is not a decisive one for if he has made a mistake in entering it in a wrong book that will be treated only as a defect of procedure not vitiating the document. But the aspect to be remembered here is only that the Registrar also has not understood it to be a document relating to any immovable property. 8. When S.21 provides that a document shall not be accepted for registration unless the description of the immovable property intended to be dealt with is sufficient to identify it and when the rule issued under S.22(1) read with S.22(2) provides that failure to comply with the provisions of the rule shall disentitle a document to be registered, the matter is clearly one of jurisdiction of the Registrar. When a Statute prohibits the acceptance for registration unless the requirements of the Statute are complied with that prohibition is a prohibition to the Registrar and is one relating to his jurisdiction. This prohibition against acceptance for registration is made emphatic by the rule issued under S.22(1) read with S.22(2). When a Statute prohibits the acceptance for registration unless the requirements of the Statute are complied with that prohibition is a prohibition to the Registrar and is one relating to his jurisdiction. This prohibition against acceptance for registration is made emphatic by the rule issued under S.22(1) read with S.22(2). These two provisions disentitle a document to be registered if the requirement of the Statute is not satisfied. The Registrar is told not to accept it and the document is also disqualified for registration. The Statute disqualifies a document and bars its acceptance for registration. So this is clearly a matter of jurisdiction and that would affect the validity of the registration even though there is a de facto registration. It is different from a matter of procedure. There is always a distinction between an error of jurisdiction and an error of procedure. In the latter case it may not invalidate the document but the lack of jurisdiction will. The distinction between a defect in the procedures of the Registrar and lack of jurisdiction is fundamental goes to the root of the matter and this cannot be cured by resort to S.87 of the Registration Act. The Privy Council had occasion to highlight the distinction between a defect of procedure and the defect of jurisdiction in registering a document. In the latter case the registration was found to be invalid - see Dottie Koran v. Lachmi Prasad Sinha (1930 (58) Indian Appeals 58). To the same effect is the decision in Mujib - un - Nissa v. Abdul Rahim (ILR 23 Allahabad 233 (PC)). This case is similar to one where a document presented for registration by a person not entitled to it or where the Registrar has lack of territorial jurisdiction or where the said document is presented out of time. If the above three instances go to the jurisdiction, the non compliance of S.21, 22 and the Rules framed under S.21(1) will make the registration one without jurisdiction. In the light of the above principle of law and the terms of Ext. B1 there is no compliance with S.21 and 22(2) of the Registration Act. Hence there is no valid registration. 9. It cannot be contended that there is difference in the application of S.21 and 22 between a document evidencing a transfer and evidencing the extinguishment of a right. Ext. B1 there is no compliance with S.21 and 22(2) of the Registration Act. Hence there is no valid registration. 9. It cannot be contended that there is difference in the application of S.21 and 22 between a document evidencing a transfer and evidencing the extinguishment of a right. Ext. B1 is a release deed which extinguishes the right of the executant. That will squarely come under S.17(1) of the Act and thereby will attract the statutory compliance for a valid registration. Since this has not been done it is a case where S.49 of the Act will apply. Also there can be no estoppel against a statutory requirement. Consequently the document cannot affect the rights of the plaintiff over the plaint schedule properties. 10. In the light of this conclusion regarding the invalidity of registration it is not strictly necessary to go into the other contentions of the appellant on the legal effect of Ext. B1. Other objections are put forward as an alternate argument and only if in law it is open to the court to embark on an enquiry to find out the property intended to be dealt with under the document for registration. On this alone the alternate arguments is pressed for consideration. The first aspect pressed for consideration is that Ext. B1 is only in the nature of transfer of a spes which is invalid in law. He develops this point by reference to the terms of Ext. B1. It mentions that through the mediation of arbitrators the value of his share over the properties of his grandmother and mother was fixed at Rs. 1,500/- and this only takes in the properties which his grandmother and mother have absolute power of disposal. Since the plaint B schedule properties are not of that character in that they are tavazhi properties over which the grandmother and the plaintiff's mother have no power of disposal the terms of the surrender will amount only to a present transfer of a future right of succession which is prohibited under S.6 of the Transfer of Property Act. Alternatively the appellant contends that if the reference in Ext. B1 should relate to the acquisitions in the name of the mother which in law belong to the tavazhi, Ext. Alternatively the appellant contends that if the reference in Ext. B1 should relate to the acquisitions in the name of the mother which in law belong to the tavazhi, Ext. B1 would amount to a transfer of his share before partition and that is invalid in law in the light of the larger Full Bench decision in Ammalu Amma v. Lakshmy Amma (1966 KLT 32). The respondents' counsel Mr. Warrier answers this contention of the appellant as follows: - The grandmother and mother of the plaintiff have no separate property and the other provisions in Ext. B1 would clearly indicate that the properties referred to in Ext. B1 only relate to the acquisition in the name of the grandmother. Therefore he submits that Ext. B1 is not transfer of a spes, but a surrender of the existing right which is not hit by the majority decision in the above Full Bench case. On considering the various provisions of Ext. B1 we think that the submission of Mr. Warrier regarding the nature of the properties dealt with under Ext. B1 appears to be correct. In Ext. B1 though in the beginning it is mentioned ." and again in another portion" clearly indicate that the reference is to the properties acquired in the name of the grandmother from which in law he has got a share. Legally that will be the case only if the acquisition in the name of the grandmother enures benefit of the tavazhi. So though one would have desired better expression of the intention it can safely be inferred that the reference in Ext. B1 is only to the acquisitions in the name of the grandmother which in law enures the benefit of the tavazhi to which the plaintiff belongs. This inference is further strengthened by the fact that the plaintiff's mother is also a party to Ext. B1 and it is not shown that she has got any separate properties and so a reference to the properties to which she is interested and which she is allowed to deal with and over which the plaintiff's right is surrendered can be only to the tavazhi properties acquired in the name of the grandmother. It follows Ext. B1 does not amount to a transfer of spes. 11. Another argument of the appellant's counsel that Ext. It follows Ext. B1 does not amount to a transfer of spes. 11. Another argument of the appellant's counsel that Ext. B1 will amount to a transfer of an undivided share before partition is equally erroneous in law. It is true that in the light of the Full Bench decision referred to above a member of the marumakkathayam tarwad has no power of disposal over his share until partition. But the terms of Ext. B1 strictly amounts to a surrender or relinquishment of his right in a common property belonging to him and the executes. Such a deed is not hit by the principle of the Full Bench decision. There is a fundamental difference between a transfer or sale and a relinquishment. A sale or transfer presupposes the existence of the property which is sold or transferred. It presupposes the transfer from one person to another of the right in property. On the other hand relinquishment or surrender means the extinction of a right or the destruction of a property and if the property is destroyed or the right is extinguished there is nothing left to transfer or to sell. (See Provident Investment Co. v. I. T. Commissioner, AIR 1954 Bombay 95 at 99). Where more than one person have a property and one of them releases his right or relinquishes his right it does not amount to a transfer of a property to another. The executee in this case has as much right in the property as the executant and the executant relinquishment his right in favour of the other. No doubt this would make the other the sole absolute owner. But in legal parlance it is an extinguishment of a right of the executant only. The decision in Ammalu Amma v. Lakshmy Amma (1966 KLT 32) was a case where a share of an undivided member of a tarwad was attached in execution of a decree against him. Under S.60 of the CPC the property over which the judgment debtor has got a power of disposal alone can be attached and the majority in the Full Bench held that a member of a marumakkathayam tarwad has no such power of disposal. That has no application to the facts of this case. In this case the plaintiff - appellant relinquished his claim over the joint properties, no doubt, for a consideration. That has no application to the facts of this case. In this case the plaintiff - appellant relinquished his claim over the joint properties, no doubt, for a consideration. But that does not make any change in the legal effect of a surrender. 12. The executes in this case are the seniormost members of the tavazhi and though the surrender is eo nomine in favour of these two persons the surrender operates for the benefit of all the members. The eo nomine executes will not thereby get any additional share in case partition takes place thereafter. They will have only an equal right with the remaining members of the tavazhi. This is the effect of Ext. B1. This conclusion of ours is supported by the decision in Subbanna v. Balasubbareddi (AIR 1945 Madras 142) (FB). So the alternate argument of the appellant's counsel must also fall to the ground. However, as we have found that Ext. B1 cannot affect the plaintiff's right over the properties acquired in the name of the grandmother for want of a valid registration the plaintiff is entitled to a share in all the plaint B schedule items 1 to 33. The decree of the lower court limiting the plaintiff's right to partition only over items 8, 13, 22 and 33 is incorrect. 13. The next point pressed for decision by the appellant's counsel is regarding the validity of the will said to have been executed by the mother, the fifth defendant bequeathing all her rights in favour of the first defendant. That will is marked in this case as Ext. B14. No doubt it is registered. But that is not enough to uphold a will. The lower court finds fault with the plaintiff and the third defendant (both of whom had filed objection opposing the will) for not filing an affidavit but only filed a counter to the petition but forward by the first defendant to record him alone as the legal representative of the deceased mother. This omission is of no consequence regarding the proof of the validity of the will. The fifth defendant died in October 1974. The will which is marked as Ext. B14 bears the date 22-5-1974, but registered on 5-8-1974. The fifth defendant was very old at that time. She was practically dependent on others for physical help to attend to her needs. The fifth defendant died in October 1974. The will which is marked as Ext. B14 bears the date 22-5-1974, but registered on 5-8-1974. The fifth defendant was very old at that time. She was practically dependent on others for physical help to attend to her needs. Besides the first defendant she has two other sons, namely the plaintiff and the fourth defendant. Defendants 2 and 3 are her daughters. No reason is given in the will why she thought of disinheriting her other children. It is not anybody's case that she was not affectionate to her other children or was not on good terms with them. So the disposition prima facie looks unnatural and it is for the propounder to remove all suspicion before the court can come to the conclusion that the will is proved. For that purpose the only evidence is that of DWs 1 and 2. DW 1 is the first defendant who is the legatee. DW 2 is one of the attestors, He is on very intimate terms with the first defendant and is a neighbour with reference to the first defendant's wife's house. He would say that the document was registered in a house where the fifth defendant and the first defendant alone were residing. He further says that the fifth defendant signed Ext. B14 while she was staying in this house. He would further say that he arranged for writing the will through a document writer. He would also say that the first defendant did not accompany him to the scribe to prepare Ext. B1 and he gave the details to the document writer for providing Ext. B14. The details were given to him by the defendant a few days before the date shown in Ext. B14. That was 2 or 3 days before the date shown in Ext. B14. No explanation is offered for the time lag between 22-5-1974 shown as the date of execution and 5-8-1974 the date of registration. The signature seen in Ext. B14 would suggest that it is put by the lady at the places marked in pencil and one of the signatures is scored. B14. No explanation is offered for the time lag between 22-5-1974 shown as the date of execution and 5-8-1974 the date of registration. The signature seen in Ext. B14 would suggest that it is put by the lady at the places marked in pencil and one of the signatures is scored. It is very likely that some signed plain paper is being used for writing the will and the failure to examine the scribe and the other attestor create lot of suspicion regarding the proper manner of execution of the will and the disposing power of the attestors at that time. Admittedly she was very ill and she died not in her house but in the house of the first defendant's wife. The witness examined as the attesting witness is also a person very much interested in the first defendant. Even the Sub Registrar is not examined to bring out that he made the fifth defendant understand the terms of the document and obtained her answer on it. As already pointed out nothing is said in the deposition of the first defendant as to why she thought of disinheriting all her other children against whom nothing is brought out in the evidence of any of the witnesses. Therefore we are not satisfied that Ext. B14 has been properly proved to be last will and that the testator was in a sound disposing mind at the time of the execution of the will. It follows that share due to the fifth defendant must go to the plaintiff and defendants 1 to 4. 14. There is a contention that item 34 an acquisition in the name of the first defendant is also a partible item. The first defendant's case is that it is his self acquisition. The document of acquisition is not produced. So the terms of the acquisition are not in evidence. According to the first defendant he has never been in the management and in support of it he would further say that his grandmother and thereafter the fifth defendant the mother till her death were managing the properties. He has produced large number of documents to show that the properties were managed by the deceased Ammalu Amma and the fifth defendant. Even the levy paddy is measured in the name of the fifth defendant as seen from Ext. B27. Ext. He has produced large number of documents to show that the properties were managed by the deceased Ammalu Amma and the fifth defendant. Even the levy paddy is measured in the name of the fifth defendant as seen from Ext. B27. Ext. B28 is the Savings Bank Pass book in the name of the fifth defendant. Exts. B15 to B26 are the revenue receipts and the michavaram receipts in the name of the grandmother and mother. Even in the plaint there is no averment that the first defendant was in management of the properties and that with he income from the tavazhi properties he has acquired this item. According to the plaintiff examined as PW 1 the first defendant was actually in impecunious circumstances and he was requesting the plaintiff for financial help. A presumption can be drawn only if it is shown that the karanavan was in possession and management of the properties and there is a possibility of surplus income after meeting the normal expenses. Such an evidence is wanting in this case. Therefore the lower court is right in coming to the conclusion that the plaintiff has not established that item 34 is an acquisition enuring to the benefit of the tavazhi and that he is entitled to a share in it. In the result the appeal is allowed in the following terms: The plaintiff is entitled to a share over all the B schedule properties except item 34. He is entitled to get his 1/31 share out of them allotted to him separately. He is also entitled to 1/5 X 1/31 share as the heir of his mother the fifth defendant. In effecting the partition to the extent possible allotment in Ext. B29 may not be very much disturbed. At he same time the allotment of the plaintiff's share should be fairly done. He is also entitled to mesne profits, the quantum and the persons liable will be decided in the final decree. In other respects the decree of the lower court will stand. In the circumstances of this case the parties shall bear their costs.