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2017 DIGILAW 1251 (ORI)

Bhramarbar Ray v. Bishnu Charan Routray

2017-11-03

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 01. This is a plaintiff’s appeal against reversing judgment. The suit was for partition along with a prayer under Sec.4 of the Partition Act. 02. The case of the plaintiff is that the suit land is the ancestral property of the plaintiff and defendant nos.1 to 7. The residential house of the parties stands over the same. The suit properties were not partitioned amongst the co-sharers by metes and bounds. The parties possessed the suit land according to their convenience. Defendant nos.5 and 7 had transferred the suit schedule land to the defendant no.8 by means of a registered sale deed dated 4.11.1981 without his consent. Defendant no.8 was a stranger to the family. With this factual scenario, the suit was instituted seeking the reliefs mentioned supra. 03. The contesting defendant no.8 filed written statement stating therein that there was a partition between the plaintiff and his co-sharers much prior to his purchase. In the partition, plot no.1042 fell to the share of defendant nos.5 to 7. The plaintiff and other co-sharers have no right, title and interest over the suit plot. The suit land is not liable to be partitioned. The plaintiff is not entitled to re-purchase the said land under Sec.4 of the Partition Act. It is apt to state here that defendant no.8 died during pendency of the suit, whereafter his legal heirs have been substituted as defendant nos.8(a) to 8(d). They adopted the written statement filed by the defendant no.8. The other defendants were set ex-parte. 04. On the interse pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court held that the suit property is the ancestral property of the plaintiff. There was no partition between the co-sharers. Held so, it decreed the suit. Feeling aggrieved, the defendant no.8 filed T.A. No.24 of 1988 before the learned Second Additional District Judge, Cuttack. Learned lower appellate court placing reliance on the unregistered partition deed, Ext.E, record of right, Ext.F, rent receipts, Ext.K & K/1, and the evidence on record and pleadings held that there was a prior partition between the parties. The sale deed is valid. Held so, it allowed the appeal. 05. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the memorandum of appeal. The sale deed is valid. Held so, it allowed the appeal. 05. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the memorandum of appeal. The same are: “(ii) Whether Ext.E (unregistered partition deed) is admissible in evidence to prove partition ? (iii) Whether the validity of Exhibit-E can be accepted in view of Registered partition deed Ext.1 which was executed on 23.6.70 ?” 06. Heard Miss Soumya Mishra, learned counsel for the appellant and Mr. D.P. Mohanty, learned counsel for the respondents. 07. Miss Mishra, learned counsel for the appellant submits that the suit schedule property is the ancestral property of the plaintiff. There was no partition between the co-sharers. Learned lower appellate court committed a manifest illegality and impropriety in placing reliance on the unregistered partition deed, Ext.E and held that there was a partition between the parties. She further submits that the unregistered partition deed can be relied upon by the collateral purpose. There is no evidence on record that the suit schedule property was partitioned between the co-sharers by metes and bounds. She relies on a decision of the apex Court in the case of S. Kaladevi vs. V.R. Somasundaram and others, (2010) 5 SCC 401 . 08. Per contra, Mr. D.P. Mohanty, learned counsel for the respondents submits that the suit schedule property was partitioned between the co-sharers. Thereafter the co-sharers, namely, defendant nos.5 and 7 alienated the suit schedule property in favour of the defendant no.8. The alienation was for legal necessity. There is no perversity in the finding of the learned lower appellate court. 09. In S. Kaladevi (supra), the apex Court held: “10. Section 17 of the 1908 Act is a disabling section. The documents defined in clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs.100 and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non-registration. 11. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus: “49. Accordingly, sale of immovable property of the value of Rs.100 and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non-registration. 11. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus: “49. Effect of non-registration of documents required to be registered.—No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall— (a) Affect any immovable property comprised therein, or (b) Confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.” 12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as evidence of any collateral transaction not required to be effected by registered document. Such an unregistered sale deed can also be admitted in evidence as evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. 13. Recently, in K.B. Saha and Sons (P) Ltd. v. Development Consultant Ltd. this Court noticed (SCC pp.576-77, para 33) the following statement of Mulla in his Indian Registration Act (7th Edn., at p.189): “The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner’s Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.” This Court then culled out the following principles: (K.B. Saha case, SCC p.577, para 334) “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.” 10. In the instant case, the learned lower appellate court has not solely relied upon the unregistered partition deed, Ext.E. The learned lower appellate court placed reliance on the record of right, Ext.F, rent receipts, Ext.K & K/1 and on a threadbare analysis of the evidence on record and pleadings came to hold that there was a partition of the suit schedule property. There is no perversity or illegality in the finding of the learned lower appellate court. The substantial questions of law are answered accordingly. 11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the appeal is dismissed. No costs.