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2002 DIGILAW 786 (KER)

Krishnan Namboodiri v. Unni Maya @ Uma Devi

2002-12-03

R.BHASKARAN

body2002
Judgment :- 1. This Second Appeal is filed by the first defendant in a suit for partition. After his death, pending the Second Appeal, his legal heirs have come on record. The plaint schedule property admittedly belonged to Nangu Neeli Antharjanam. The plaintiff and defendants 1 to 3 are the children of Nangu Neeli Antharjanam. The plaintiff claimed/4th right as the legal heir of Nangu Neeli Antharjanam. The contention of the 1st defendant, who is the son of Nangu Neeli Antharjanam, was that the plaintiff had executed a release deed surrendering of her rights to the first defendant. It is also contended that all other sisters had executed similar release deeds and the first defendant is the sole owner of the property. The only difference in the case of the plaintiff is that the document was not registered, though signed by the plaintiff. The plaintiff has also executed a power-of-attorney and that power-of-attorney was registered. The power-of-attorney could not present the document for registration. 2. In the trial Court, the contention of the 1st defendant was that after the execution of Exts.B1 and B2, the 1st defendant was acting as exclusive owner of the property. Therefore the rights of the plaintiff is barred by adverse possession and limitation. The trial Court found that Exts.B1 and B2 were signed by the plaintiff. But the trial Court also found that the 1st defendant could not establish adverse possession by any acceptable evidence. The trial Court therefore granted a decree for partition of 1/4th right to the plaintiff in the plaint schedule property. It was also found that she is entitled for mesne profits. 3. Aggrieved by the judgment of the trial Court, the 1st defendant filed A.S. No.223 of 1985 before the Sub Court, Kozhikode. The same was heard along with A.S. No.222 of 1985 which was filed by the third defendant who had also claimed the share as the plaintiff and whose contentions were found against as her document was registered. Before the lower appellate Court, the 1st defendant filed an application for amendment of the written statement to incorporate a plea to the effect that he is entitled to protection under S.53A of the Transfer of Property Act. The lower appellate Court dismissed the application for amendment and the appeal filed by the third defendant as well as the appeal filed by the 1st defendant. The lower appellate Court dismissed the application for amendment and the appeal filed by the third defendant as well as the appeal filed by the 1st defendant. The contention of the plaintiff that her name is Uma Devi and not Unni Maya and the document was executed by Unni Maya was found against by the lower appellate Court also. The lower appellate Court found that since Ext.B1 was not registered and it was required to be registered under law, no rights passed to the 1st defendant under that document. The plea of ouster and adverse possession by the 1st defendant was also found against. 4. The lower appellate Court considered I.A. No.314 of 1988 and rejected the same finding that nothing prevented the 1st defendant to take up such a plea in the original written statement itself. The lower appellate Court found that in order to get the benefit of S.53A it should be shown that the 1st defendant is willing to perform his part of the contract. By including the name of the plaintiff in Ext.B3 assignment executed by the third defendant in favour of the 1st defendant, the first defendant has treated Ext.B1 as not subsisting. The lower appellate Court also expressed surprise as the power-of-attorney was executed and registered from the house by the plaintiff and the document was not registered instead of registering the power-of-attorney. The plaintiff could have got registered the document itself since it was a house registration. Therefore, it was thought that there was something more to be completed and that was why the plaintiff did not get the document registered in her house. 5. In the second appeal, the learned Counsel for the appellants contended that the unregistered sale deed can be treated as an agreement to sell and the possession obtained under such document can be preserved under S.53A of the Transfer of Property Act. It was also contended that at any rate the 1st defendant has perfected his title by adverse possession and limitation as the plaintiff was not getting any profit from the plaint schedule property eversince 1960 when Ext.B1 was executed. The learned counsel for the respondent on the other hand pointed out that the defence under S.53A of the Transfer of Property Act cannot be made along with a defence by way of adverse possession and limitation. The learned counsel for the respondent on the other hand pointed out that the defence under S.53A of the Transfer of Property Act cannot be made along with a defence by way of adverse possession and limitation. He also contended that Ext.B1 is a document required to be registered and in the absence of registration no rights passed to the 1st defendant and hence the plaintiff was entitled to get a decree for partition. 6. After hearing the Counsel on both sides, I am of opinion that the plaintiff is entitled to succeed in the case. In the trial Court, the contention raised was that the plaintiff has already assigned her rights under Ext.B1, and her rights, if any, is barred by adverse possession and limitation. It was only in the lower appellate Court that an application was filed for amendment of the written statement to take up a contention under S.53A of the Transfer of Property Act which application was dismissed by the lower appellate Court. According to the learned Counsel for the appellants, the lower appellate Court should have allowed the application for amendment of written statement and should have further held that the 1st defendant is entitled to the benefit of S.53A of the Transfer of Property Act. 7. It has to be noticed that the 1st defendant was the only son and plaintiff and defendants 2 and 3 were the daughters of Nangu Neeli Antharjanam. The mother died when the children were very young and as a matter of fact they were looked after by the grand-mother. The first defendant, when became major might have started managing the properties. The plaintiff and sisters of the first defendant were given in marriage and therefore the co-ownership property has come to the hands of the first defendant. The only case of the first defendant was that the consideration for Ext.B1, was the expenses for the marriage of the plaintiff which was made by the first defendant. If it was so, there is no explanation why the document was not registered. Therefore, as observed by the lower appellate Court the parties might have intended something more to be done before the power-of-attorney holder presents the document for registration. 8. The learned Counsel also submitted that no registered document need be executed in case of relinquishment of the right and it is not a transfer as such. Therefore, as observed by the lower appellate Court the parties might have intended something more to be done before the power-of-attorney holder presents the document for registration. 8. The learned Counsel also submitted that no registered document need be executed in case of relinquishment of the right and it is not a transfer as such. For that purpose, the learned Counsel relied on the decision of the Division Bench of the Calcutta High Court in Imperial Bank v. Bengal National Bank (AIR 1931 Cal. 223). In that case, the Calcutta High Court held as follows: "The language of S.49 has given rise to considerable difficulty, but I think it safe to think to say that Cls. (a) and (c) have reference to the fact that certain kinds of transfer of immovables can only be effected by written instruments (eg. sale, mortgage other than mortgage by deposit, lease, gift); whereas in other cases (eg. partition, surrender, release) the transaction is not required to be in writing but, if it is in writing, the instrument is required to be registered. Cl. (a), as I think, deals with the former case, Cl.(c) with the latter. In either case the circumstance which subjects the instrument to the requirement of registration is that it purports or operates to create, declare, assign, limit or extinguish a right, title or interest to or in the immovable property. It is this which makes the registration necessary, and if it be not registered, it is this that the instrument is to fail of its effect. The right, title or interest is as a consequence, not created, declared, assigned, limited or extinguished even although no written instrument was necessary. The Registration Act is not to be defeated in such a case by a contention to the effect that as no written instrument was necessary the transaction itself is independent of the written instrument which can be regarded simply as evidence thereof. Cl.(c) makes the instrument inadmissible as evidence of the transaction. Unless therefore there has in fact been a transaction, independent of the written instrument, and capable of proof without the evidence thereof the right, title or interest in question has not been created, declared, assigned, limited or extinguished. Cl.(c) makes the instrument inadmissible as evidence of the transaction. Unless therefore there has in fact been a transaction, independent of the written instrument, and capable of proof without the evidence thereof the right, title or interest in question has not been created, declared, assigned, limited or extinguished. This is the principle which in my judgment must be applied to these debentures so far as they purport or operate to create a right in immovable property." He also relied on the decision of the Bombay High Court in Ramdas v. Prahlad (AIR 1965 Bom. 74) where a similar view has been expressed. In both the above decisions, it can be seen that if as a matter of fact the document was executed it required to be registered also. The decisions are authority only for the purpose of showing that a relinquishment of right can be made even without a written instrument. In this case, the appellant has no case that apart from Exts.B1 and B3 there is any other relinquish-ment made. The learned Counsel also relied on the decision of the Andhra Pradesh High Court in Venku Bai v. Raju Bai (1987 (1) CCC 878 (AP)) where a Single Judge of the High Court has held that a relinquishment of the share of a coparcener in the Joint Family Property need not be evidenced by a document in writing and that it can be inferred even from the circumstances as such an act does not amount to transfer of property. That was a case regarding Joint Family Property and the learned Single Judge has taken the view that there is no element of conveyance if one member of the Joint Family relinquishes his right to another member. According to the learned judge only if the transfer is in favour of a person who has no title to the property that it can amount to a conveyance. It is unnecessary to go into the question whether another view is possible in the matter as in the present case the property is not a Joint Family Property. It is co-ownership property as the plaintiff is claiming as the daughter of the original owner along with other children. 9. It cannot be disputed that if the document requires registration and it is not registered, no rights can be conveyed under that document. It is co-ownership property as the plaintiff is claiming as the daughter of the original owner along with other children. 9. It cannot be disputed that if the document requires registration and it is not registered, no rights can be conveyed under that document. Therefore, the 1st defendant cannot claim any title to the 1/4 right of the plaintiff under Ext.B1. The contention of the learned Counsel for the appellant that it has to be treated as an agreement of sale and the possession of the property by the first defendant has to be protected under S.53A of the Transfer of Property Act cannot be accepted, as no such contention was raised in the trial Court. In fact as held by the Supreme Court such a contention was not maintainable along with the plea of adverse possession and limitation. The Supreme Court in Roop Singh v. Ram Singh ((2000) 3 SCC 708) held as follows: "It is also to be stated that the plea of adverse possession and retaining the possession by operation of S.53A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that the plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land." The same view was taken by the Supreme Court in Mohan Lal v. Mira Abdul Gaffar (AIR 1996 SC 910). In that case, the Supreme Court also held that the person who claims to be in possession under an agreement of sale cannot contend that he has perfected title by adverse possession. That was a suit for recovery of possession on the strength of title. The respondent had filed a suit for specific performance of the agreement and the same was dismissed. It was held that after the dismissal of the suit for specific performance, the respondent was not entitled to retain possession. In this case, the 1st defendant did not take any step to get the document registered pursuant to the execution of the document. 10. It was held that after the dismissal of the suit for specific performance, the respondent was not entitled to retain possession. In this case, the 1st defendant did not take any step to get the document registered pursuant to the execution of the document. 10. The only other contention to be considered is whether the finding of the trial Court as confirmed by the lower appellate Court with regard to the plea of adverse possession is correct or not. The parties are co-owners. If the plaintiff had surrendered whatever right she had by her signature in Ext.B1 document, the first defendant would not have excluded her name in Ext.B3 which was written in 1969 after 10 years of Ext.B1. Therefore, it could not be said that the defendant had treated the plaintiff that she had no right in the property to her knowledge. Even after the refusal of the plaintiff to sign Ext.B3 the first defendant did not take any step to get the document signed and registered. Therefore, the possession as co-owner is deemed to continue until an element of ouster is established. There is neither pleading or proof in this respect. Mere non-participation of income for a long period by itself will not amount to ouster between the co-owners. 11. The appellant had also filed an application for permission to raise an additional question of law contending that by virtue of the provisions of the Nambudiri Act, the plaintiff is not entitled to a share in the plaint schedule properties. When the point was argued, the learned Counsel for the appellant himself fairly conceded that that contention is available only if it is a Joint Family Property and therefore he did not press that application seriously. In the light of the above discussion, the judgment and decree of the lower appellate Court are confirmed and the Second Appeal is dismissed without any order as to costs.