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2014 DIGILAW 1387 (BOM)

Bhaurao v. Santosh

2014-07-01

A.B.CHAUDHARI

body2014
ORAL JUDGMENT 1. Admit. The instant Second Appeal is taken up for final disposal with the consent of the rival parties. 2. The following substantial question of law arises for my consideration, after hearing the learned counsel for rival parties : Whether the Courts below erred in law in not exhibiting the document styled as 'Deed of relinquishment without consideration’ dated 30th March, 1992 filed along with list Exh.61 in RCS No. 128/2009 for want of registration and, if yes, whether the proceedings are required to be remitted to the trial Judge? ..Yes. 3. Heard learned counsel for the rival parties for quite some time. Perused the deed of relinquishment without consideration dated 30th March 1992. Both the Courts below have held that the said document required registration and since it was not registered, it was not admissible and was not exhibited. As a result it was not proved and remained a unproved documents with the list Exh.61. 4. I have gone through the document carefully. What I find from the said document is that Dadu @ Jairam Sahare and Harichand Sahare, the real brothers, stated in the document that they had ancestral property at Mouza Jabbartola and Mouza Khairbodi. Both of them had mutually effected partition number of years before and accordingly Dadu @ Jairam having received the allotted share, also sold the land of his share. It is also stated that 0.20R area of land out of Gut No. 648, 0.81R of Mouza Khairbodi was sold to one Patiram Chaudhari. It is further stated that therefore, he has no right/title over the lands described in the document executed by him in any manner. Therefore, though Talathi record shows the names of the two brothers jointly in respect of the said lands mentioned in the document, Dadu @ Jairam has given up his right, title and interest in those lands in favour of his brother Harichand. It is further declared that, therefore, Harichand would be the exclusive owner of the agricultural land described and accordingly the entries should be corrected/deleted/modified solely in the name of Harichand Sahara for which Dadu @ Jairam had no objection. It is further declared that, therefore, Harichand would be the exclusive owner of the agricultural land described and accordingly the entries should be corrected/deleted/modified solely in the name of Harichand Sahara for which Dadu @ Jairam had no objection. Section 17(1) (b) of the Registration Act, 1908 reads thus : “17(1): The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely, (a) ...... (b) other nontestamentary 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; (c) ............... ........” Undoubtedly, a superficial reading of the said document shows that it declares, creates and extinguishes the right, title and interest and also vests in relation to immovable property value of which is above Rs. 100/. The document, in fact, records a very material fact that years before both the brothers made oral partition of their ancestral property and took their respective shares and not only that Dadu @ Jairam even sold his share. That was why he did not want to exercise any right over the property mentioned in the document as he acknowledged that the property was of Harichand. Therefore, it is not that by this very document right/title/interest was created or extinguished. But the recitals which I have quoted earlier, clearly show that the right, title and interest vesting or extinguishment was all done in the previous or past years and the mention thereof only is found in the present documents by way of acknowledgment of past event of partition which was acted upon or the notes. But the recitals which I have quoted earlier, clearly show that the right, title and interest vesting or extinguishment was all done in the previous or past years and the mention thereof only is found in the present documents by way of acknowledgment of past event of partition which was acted upon or the notes. It is thus clear that the present document does not itself inherently divest, vest, extinguish any right, title or interest in any of the parties and, therefore, in the light of the decision of the Supreme Court in the case of Roshan Singh vs. Zile Singh : AIR 1988 SC 881 and other catena of decisions following the said decision, the Courts below have committed an error in treating the said document as the one requiring registration under section 17(1) (b) of the Registration Act. It would be apt to quote the following paragraphs from the decision in Roshan Singh (supra) : “13. On its true construction, the document Exh. P12 as well as the subsequent confirmatory panch faisla Exh.P1 merely contains the recitals of a past event, namely, a decision arrived at between the parties as to the manner in which the parties would enjoy the distinct items of joint family property in severalty. What follows in Exh. P12 is a mere list of properties allotted at a partition and it cannot be construed to be an instrument of partition and therefore did not require registration under S.17(1)(b) of the Act. That apart, the document could always be looked into for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members. 14. The matter can be viewed from another angle. The true and intrinsic character of the memorandum Exh.P12 as later confirmed by the panch failsa Exh.P1 was to record the settlement of family arrangement. The parties set up competing claims to the properties and there was an adjustment of the rights of the parties. By such an arrangement, it was intended to set at rest competing claims amongst various members of the family to secure peace and amity. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. ......... ... 15. By such an arrangement, it was intended to set at rest competing claims amongst various members of the family to secure peace and amity. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. ......... ... 15. This view was adopted by the Privy Council in subsequent decisions and the High Courts in India. To the same effect is the decision of this Court in Sau Madho Das v. Mukand Ram, (1955) 2 SCR 22 : ( AIR 1955 SC 481 ). The true principle that emerges can be stated thus,: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore, the arrangement does not fall within the mischief of S.17 read with S.49 of the Registration Act as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sau Madho Das’ case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. 16. ........... The document Exh.P12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See : Rajangam Ayyar v. Rajangam Ayyar, (1923) 69 Ind Cas 123: (AIR 1922 PC 266) and Nani Bai vs. Gita Bai, AIR 1958 SC 706 . It is wellsettled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as cotenants. The document Exh. It is wellsettled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as cotenants. The document Exh. P12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Edxh. P12 was a mere list of properties allotted to the shares of the parties.” 5. From the submissions made by the rival counsel, it appears to me that the said document was the fulcrum of the lis and since I have found that the Courts below have erred in law in rejecting or ignoring the said document, the only way out now is to remand the matter (R.C.S.No. 128/2009) to the trial Court for exhibiting the document and also allowing both the parties to lead evidence on the said document and related aspect of the matter and also for cross-examination and for judging the evidentiary value thereof. That being so, in my opinion, the following order will have to be made. Hence the order : ORDER 1) Second Appeal No. 450/2013 is partly allowed. 2) The judgment and decree made by the Courts below, namely (1) dated 31.08.2013 passed by Principal District Judge, Gondia in Regular Civil Appeal No.177/2012 ; and (2) judgment and decree dated 24.09.2012 passed by Joint Civil Judge, Sr.Dn. Gondia in Regular Civil Suit No.128/2009, are set aside. 3) The proceedings of R.C.S. No.128/2009 are sent back to the trial Judge who shall exhibit the document with list Exh.61 and allow the parties to lead their evidence afresh in the Suit including crossexamination of the witnesses again. 4) Since the Suit relates to the year 2009, the trial Judge shall expedite hearing of the Suit and decide the same as early as possible and, in any case, within a period of one year from the date of appearance of the parties. 5) The parties shall appear before the trial Judge on 4th August, 2014. 6) No order as to costs.