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2013 DIGILAW 303 (KER)

P. v. Kannan VS M. Meenakshi

2013-03-27

N.K.BALAKRISHNAN

body2013
Judgment : 1. This appeal is filed by the 1st defendant. He challenges the preliminary decree passed by the trial court. In was confirmed in appeal. Plaintiffs five in number sought partition of the plaint schedule property into 23 equal shares and to allot to them five such shares. Ext.A1 is the gift deed executed by the original owners in favour of Narayani. Ext.A1 is clear, cogent and convincing that it was executed not only to Narayani but also to her descendents. There is a further stipulation that the property should be enjoyed as a Thavazhy property. That document was executed on 29.4.1935. Hence, there can be no doubt that the property was a Thavazhy property. 2. From the evidence on record it is found that as on 1.12.1976, when Kerala Act 30 of 1976 came into force, there were 23 members in that Thavazhy and so those 23 members are to be treated as co-owners and so each of them is entitled to get 1/23 share. 3. The main contention raised by the appellant herein (1st defendant in the suit) is that when this property was proceeded against by the Bank, for realisation of the amount due to the Bank, the decree amount therein with cost, interest etc was paid by the appellant herein and it was pursuant thereto Ext.A2 sale deed was executed by Narayani in favour of the appellant herein. The executants as well as the appellant herein seem to have thought that the property absolutely belonged to Narayani. But later when the said document was produced before the Bank for availing loan and when the prior documents were verified, it was found by the Bank that the property is a Thavazhy property and that Narayani had no absolute right over the property. The evidence would show that thereafter the appellant herein approached all the other members of the Thavazhy. Out of them five members were stated to have filed affidavits which were marked as Exts.X1 to X5 stating that they had no right over the property and that their rights were transferred to the appellant herein. But by those affidavits right to immovable property cannot be transferred, it was contended. It was contended that on the strength of those affidavits no transfer of interest in immovable property, valued more than Rs.100/- could be created. But by those affidavits right to immovable property cannot be transferred, it was contended. It was contended that on the strength of those affidavits no transfer of interest in immovable property, valued more than Rs.100/- could be created. It was contended that those affidavits were got executed by the parties without properly apprising them of the contents of those affidavits. The genuineness or acceptability of the affidavit is challenged contending that the deponents happened to sign the affidavits without knowing or understanding the contents of the affidavits which were type written in English. It is trite law that no transfer could be effected on the strength of such affidavits. Therefore, the contention raised by the appellant that he had acquired undivided 1/23 share each of those five persons was not accepted by the courts below. 4. The following substantial questions of law have been reframed:- i) Is it mandatory that the relinquishment of a share of a co-owner should be evidenced by a registered document ? ii) Whether the relinquishment or abandonment of interest in a joint family by a co-owner in favour of another co- owner, is a transfer which requires registration of the deed? iii) Whether the courts below went wrong in holding that Exts. X1 to X5 (the affidavits) cannot be treated as deeds of transfer ? iv) Whether the rights of the plaintiff is barred by ouster, adverse possession and limitation ? 5. It is not disputed that including Narayani, fourteen sharers had assigned their right over the property as per Ext.B27. So much so, the appellant would be getting 14/23 shares in the property. It is also stated that the two children of the appellant (D2 and D3) are also entitled to get 1/23 share each. But separate allotment was not made since no separate court fee was paid before the court below. If D2 and D3 go along with D1, certainly those two shares also can be allotted jointly to them along with 14 other shares mentioned above. Of course, that may have to be done at the stage of the final decree subject to the payment of court fee. 6. If D2 and D3 go along with D1, certainly those two shares also can be allotted jointly to them along with 14 other shares mentioned above. Of course, that may have to be done at the stage of the final decree subject to the payment of court fee. 6. The main contention raised by the learned counsel for the appellant is that mutation was effected and basic tax in respect of the said property was/is being paid by the appellant continuously from 1979 and so the right, if any, of the other sharers is lost by ouster, adverse possession and limitation. 7. The learned counsel for the respondents would rely upon Ext.B27 and also Exts.X1 to X5 which were executed in the year 1995, which recognised and accepted the position that the property belonged to the 23 members (members of the Thavazhy) and that they were having right over the plaint schedule property. 8. The learned counsel for the appellant has relied upon the decision of the Bombay High Court in Ramdas Chimna v. Pralhad Deorao and others -AIR 1965 Bombay 74. There it was held: "There is nothing in the Transfer of Property Act or any other law that I am so far aware which requires that a mere extinguishment of an interest in the immovable property shall be in writing. The relinquishment by Bainabai of her interest in the joint family property was merely abandonment of her interest in the joint family property in favour of her two sons. Such a relinquishment or abandonment of interest in the joint family property, even though it consists of immovable properties and is of the value of Rs. 100/-and upwards, can be effected without a written instrument, though if one is executed, it would undoubtedly require registration under Sec. 17 of the Registration Act, Gauri Bal v. Gaya Bai - AIR 1927 Nag. 44". I am not persuaded to accept the said view, in view of the fact that the contention raised by the appellants is that the parties had relinquished their right in respect of the plaint schedule property. There is no case that the value of the said property is less than Rs. 100/-. Therefore, when there is a relinquishment or assignment of their respective share it should be evidenced by a registered document. There is no case that the value of the said property is less than Rs. 100/-. Therefore, when there is a relinquishment or assignment of their respective share it should be evidenced by a registered document. Therefore, the aforesaid decision cannot be relied upon to hold that the relinquishment or assignment of the shares of some of the sharers is to be accepted despite the fact that no such registered document was executed. 9. The decision in Dhan Kaur and others v. Shamsher Singh and Others - AIR 2005 Punjab and Haryana 283 has also been relied upon by the learned counsel or the appellant in support of his submission that if it is a memorandum of oral partition it does not require compulsory registration and it is admissible in evidence without registration. Here, it is not a memorandum evidencing oral partition or arrangement that is pressed into service. But the contention raised by the appellant is that the other sharers had relinquished their right over the property. As has been stated earlier there is no case that the value of the respective sharers is less than Rs.100/-. Therefore, when there is a relinquishment of right over the immovable property, the value of which is more than Rs. 100/-, it should be evidenced by a registered document and if it is not registered the bar under Sec. 49 of the Registration Act would squarely apply. 10. Learned counsel for the appellant has also relied upon a decision in K.K. Puri v. Smt. Krishna Puri & Ors.- AIR 2008 Punjab & Haryana 23 where it was held that the non-registration of document would be of no consequence. There it was held that the affidavit only conveyed the intention of the family to relinquish their rights in favour of their mother and that it was not a document by which itself extinguished or created any right and therefore, non-registration of the document was of no consequence. Here, the position is entirely different. The appellant wanted to content that the five sharers abandoned or relinquished their right over the property as per the affidavits, Exts. X1 to X5. It is not mere intention that has been conveyed but actual conveyance that is sought to be relied upon and established by the appellant. 11. Here, the position is entirely different. The appellant wanted to content that the five sharers abandoned or relinquished their right over the property as per the affidavits, Exts. X1 to X5. It is not mere intention that has been conveyed but actual conveyance that is sought to be relied upon and established by the appellant. 11. The decision in Smt. Champakalata Mohanty v. Atmaranjan Mohapatra - AIR 2011 Orissa 136 has also been relied upon by the learned counsel for the appellant. There it was held that though the lease agreement was compulsorily registrable, though not registered, can be looked into as evidence only for proving the nature and character of possession of the parties. There is no dispute that an unregistered document can be used for proving collateral purpose. Viewed in that angle the unregistered lease agreement can be looked into as evidence of proving the nature and character of possession of the parties. The facts dealt with therein are entirely different. Here the affidavits are not intended to be used only for collateral purpose. Therefore, the decision in Champalaatha Mohanty (cited supra) also is of no help to the appellant. 12. Another decision of the High Court of Andhra Prasdesh reported in Zaheda Begum & Another v. Lal Ahmed Khan and Others - AIR 2010 A.P. 1 has also been relied upon by the learned counsel for the appellant. It is argued by the learned counsel that it was a family settlement which does not create any right in preasenti and so it cannot be treated as inadmissible on the ground that it is not registered. The facts of the case are entirely different. If it is only a family settlement entered into by all the family members depending on the nature of the disposition, even an unregistered document may be admissible but not in a case like the one where the plea is based on the so called relinquishment or abandonment of the interest in the immovable property, the value of which is more than Rs. 100/-. There is no case that there was a family arrangement in which the property was equitably divided between the various sharers so as to achieve an equitable distribution of wealth, instead of concentrating the same in the hands of a few. 13. 100/-. There is no case that there was a family arrangement in which the property was equitably divided between the various sharers so as to achieve an equitable distribution of wealth, instead of concentrating the same in the hands of a few. 13. In was held by the Supreme Court in Mohan Sharma v. Ram Bhadur Thakur - AIR 2006 SC 1690 that family settlements are governed by a special equity and are to be enforced if honestly made because the object of an arrangement is to protect the family from long drawn out litigation and to bring about harmony and good will in the family. The position in this case is entirely different. There was no case for the appellant that there was a family arrangement or that there was an oral partition in which the other sharers relinquished their right in favour of the appellant. 14. It may be true that the appellant had spent money to salvage the property being sold in auction but the respondents would content that it was in lieu of the amount spent by the appellant Narayani had executed the document in favour of the appellant but Narayani had only 1/23 share in the said property and not anything more. When the sharers had released their right in favour of the appellant the plea that there was an oral arrangement and accordingly they abandoned their right cannot be accepted. 15. The decision in John and others v. Alikutty and Others -2009 (2) KHC 647 also has no application to the facts of this case since in that case the property was partitioned through arbitration and acting upon the same there was a settlement award. The facts of the case dealt with herein are entirely different. Here, it is not a case where the parties have acted upon any settlement or award and claimed separate possession of their respective shares. 16. The decision of the Supreme Court in Mohar Singh v. Devi Charan - (1988) 3 SCC 63 has also been very much relied upon by the learned counsel for the appellant. That has been relied upon by the learned counsel to fortify his submission that partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co-sharer or co-sharers. That has been relied upon by the learned counsel to fortify his submission that partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co-sharer or co-sharers. The decision in Hriday Narain Choudhary v. Shyam Kishore Singh and others -2002 AIR SCW 2734 has also no application to the facts of this case. That was a case where an unregistered partition deed was sought to be admitted in evidence. In the aforesaid decision the Apex Court actually concurred with the view taken by the High Court that since the transaction was reduced to writing and since that document was not registered it was held to be inadmissible. 17. The learned counsel for the appellant would submit that even if the document is not registered such a document can be used for collateral purpose. But here it is intended to be used not for collateral purpose but actually for evidencing transfer of the shares held by the respective sharers. That is not permissible under law in view of the inhibition contained in Sec. 49 of the Registration Act. Sri. V.R.K. Kaimal, the learned counsel for the appellant has strained much to canvass for the position that the other sharers were convinced of the fact that the appellant had spent money for salvaging the property from being sold to strangers and it was after realising the said fact, that the other sharers had transferred their share in respect of the properties. It appears that all the parties were under the impression that Narayanani had absolute right over the property and that was why such a document was executed. But later it was revealed that it belonged to the tavazhy consisting of 23 members as on 1-12-1976. Therefore, though the appellant might have spent money to avoid sale of the property, still in view of the fact that the other sharers had not transferred or had not executed any registered surrender deed or relinquishment deed, the contention to the contrary advanced by the learned counsel for the appellant cannot be sustained. 18. It cannot be said that the appellant was keeping possession of the property exercising hostile title adverse to the interest of the other co-owners with intend to exclude the other co-owners. 18. It cannot be said that the appellant was keeping possession of the property exercising hostile title adverse to the interest of the other co-owners with intend to exclude the other co-owners. There is neither specific pleading regarding ouster nor is there any evidence to substantiate the same. To crown it all even in 1995 the defendant/appellant herein purchased the shares of other co-owners accepting the fact that the co-owners were having right over the property. The suit was filed only in 1997. Hence the plea of ouster and adverse possession cannot be sustained. 19. The courts below have thus rightly found that the plaintiffs who are entitled to get 1/23 share each, (total 5/23 sharers) are entitled to get a preliminary decree for partition. It was rightly confirmed by the lower appellate court. All points are answered against the appellant. In the result this Regular Second Appeal is dismissed. No costs.