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Madhya Pradesh High Court · body

2018 DIGILAW 263 (MP)

Akash Shukla v. State of M. P.

2018-03-07

S.C.SHARMA

body2018
ORDER 1. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Miscellaneous Petition No. 511/2018 are narrated hereunder. 2. The petitioner before this Court has filed filed present petition being aggrieved by order dated 10.4.2017 (Annex.P-8) passed by the Tahsildar, Tahsil Sanwer, Distt. Indore and the order passed by the Board of Revenue dated 2.11.2017 (Annex.P-9). 3. Learned counsel for the petitioner has argued before this Court that the petitioner and his father are the owners of land situated in Village Jakhia, Tahsil Sanwer, District Indore as well as in adjoining villages and there was a family partition which took place between the family members. The petitioner has further stated that the earlier family partition was reduced in writing by the Arbitrator. 4. It has been stated that an application was preferred for setting aside the arbitral award in respect of the arbitration award under section 34 of the Arbitration and Conciliation Act, 1996 and the same was dismissed vide order dated 22.3.2016 and the order dated 22.3.2016 and award dated 15.6.2015 has became finally binding upon the parties. An application was preferred by the family members for mutation and the Tahsildar has rejected the application on the ground that award has not been registered. 5. Learned counsel for the petitioner at the outset has drawn the attention of this Court towards judgment delivered by the apex Court in the case of Mattapalli Chelamayya and another v. Matapalli Venkataratnam and another reported in (1972)3 SCC 799 . Heavy reliance has been placed upon paragraph No. 9 of the aforesaid judgment and the same reads as under:- “9. The contention of the appellant was that the award is a non-testamentary instrument which purports or operates to create and declare right title or interest of the value of more than Rs. 100/- in immovable property and hence it is compulsorily registrable under section 17(1)(b) of the Indian Registration Act. It is submitted that the award not only declares the title of the sharers in immovable property of more than rupees hundred and upwards but also creates a charge in immovable properties of more than that value. This submission is only partly correct. It is submitted that the award not only declares the title of the sharers in immovable property of more than rupees hundred and upwards but also creates a charge in immovable properties of more than that value. This submission is only partly correct. The award so far as it refers to the partition of immovable properties does not purport to create or declare any interest or title in immovable property. That is the view taken by the High Court and we are in agreement with it. We have already referred to the fact that the partition of the immovable properties had been effected by the arbitrators between 26.5.1952 and 30.5.1952 and the award merely refers to this fact in the following terms. : “As per the partition effected by us from 27.5.1952 to 30.5.1952 of the lands, houses and house sites belonging to your joint family and in the possession and enjoyment of your joint family, the lands etc. mentioned in Schedule B (referred to have come to you) and each of you obtained individual and separate possession of the lands that came to his share and you were in enjoyment peacefully and without any disturbance or dispute.” This recital is consistent with the parties own admission about the partition in Ext. A. 2 namely the second arbitration agreement dated 10.10.1954. The partition of the immovable properties had been effected in about the middle of 1952 and the parties were since then in possession of the lands etc. which had been allotted to their share. The recital in the award is no more than a reference to an existing fact and does not support to create or declare, by virtue of the award itself, right title or interest in immovable property. Therefore, as shown in Kashinathsa Yamosa Kabadi, etc. v. Narsingsa Bhaskarsa Kabadi, etc. award cannot be regarded as compulsorily registrable on the ground that it embodies a partition. So far as the charge is concerned it is created for the first time by the award and it is not disputed that the transaction of the charge would require to be registered. On taking an account of the funds and collections of the family the arbitrators came to the conclusion that Chelamayya had received Rs. 14,050.7.3 in excess of his share and Narainamurthy had received Rs. 8,926.3.6 in excess of his share. On taking an account of the funds and collections of the family the arbitrators came to the conclusion that Chelamayya had received Rs. 14,050.7.3 in excess of his share and Narainamurthy had received Rs. 8,926.3.6 in excess of his share. The arbitrators directed that they should make good the amount which came to Rs. 22,009.7.9. This amount was distributed by the arbitrator between Venkataratnam and Venkataswamy the former getting Rs. 8,268,11.0 and the latter Rs. 14,708.15.9 and then the arbitrators directed as follows : “We decided that for the amounts to Venkataratnam and Venkataswamy Chelamayya and Narainamurty should pay interest from 30.8.1955 till the date of award at 0.8.0 per cent per mensem. It is decided that the amounts noted above have to be paid on the basis of the first charge on immovable properties that came to both and on the basis of the personal liability.” It will be thus seen that Chelamayya and Narainamurty i.e. the present appellants were made liable to pay certain amounts personally to the plaintiffs-respondents along with interest and this amount was made a charge on the immovable properties in the possession of Chelamayya and Narainmurty.” 6. His contention is that in the aforesaid case there was an award based upon an earlier partition and the recital in the award was not more than more than a reference to an existing fact and it was not creating or declaring, by virtue of the award itself, right title or interest in immovable property and in those circumstances, the apex Court has held the registration was not necessary. 7. Learned counsel has also placed reliance upon a judgment delivered by the apex Court in the case of Bakhtawar Singh v. Gurdev Singh and another, reported in (1996) 9 SCC 370 . Paragraph No. 4 of the aforesaid judgment reads as under : “4. The ground of sub-letting has not been pressed by learned counsel for the appellant. However, on the ground of non-payment of rent, there has been a considerable debate. Two things emerge prominently. The first one is that the appellant sent undeniably notice Ex. A-4 on 1.1.1986 to the tenant-respondent intimating him that he had become the exclusive landlord of the property demised w.e.f. 23.2.1982 or 1.3.1982, as the case may be, and that, therefore, he was entitled to receive the rent thenceforth. Two things emerge prominently. The first one is that the appellant sent undeniably notice Ex. A-4 on 1.1.1986 to the tenant-respondent intimating him that he had become the exclusive landlord of the property demised w.e.f. 23.2.1982 or 1.3.1982, as the case may be, and that, therefore, he was entitled to receive the rent thenceforth. The respondent-tenant did not respond to that notice controverting or questioning the title of the appellant nor did he controvert that rent uptil a date stood paid to the second respondent. Rather he let this aspect remain for the Court of the Rent Controller asserting that he had paid the rent to the second respondent without specifying the date up to which rent had been paid and when. The memorandum Ex. A-1 recording past partition, put on record before the Rent Controller was not pronounced upon and, was brushed aside by the appellate authority holding that it could not be seen in the absence of registration even though the decision of this Court in Roshan Singh v. Zile Singh stood cited, in which it was held that a subsequent memorandum recording past oral partition as a family settlement was not required to be registered. Memorandum, Ex. A-1 when read, substantially discloses that the shop in dispute stood fallen to the share of the appellant. Besides two brothers of the appellant appeared as AW-2 and AW-5 and supported it. It records the factum of the as but for certainty the brothers had chosen to straighten things w.e.f. 23.2.1982 and the said notice Ex. A-4 to the respondent was to the effect that the appellant was entitled to receive rent w.e.f. 1.3.1982. The Rent Controller did not fully grasp the legal situation in the matter and wrongly denied eviction of the respondent on that score. The appellate authority as also the High Court committed the same error. Thus, we are of the view that the orders of the Courts below are unsustainable and that the appellant should have an order in his favour since rent concededly was neither deposited in the Court of the Rent Controller on the date of the first appearance in order to avoid ejectment, nor a good cause for non-payment pleaded, particularly after having received the notice dated 1.1.1986. The first respondent claims to have kept paying up to date rent to the second respondent even for the period 1.1.19866 to 19.5.1986 when put to notice. Rather in his counter-affidavit before this Court the tenant states that he has till recently paid rent to the second respondent uptil 1.2.1995 disclosing an unusual obstinacy. In these circumstances, instead of remanding the matter and to have the issue raked up again, we allow this appeal, set aside the impugned orders and order ejectment of the respondent. The order, however, shall not be carried out for a period of one year subject to his filing a usual undertaking within four weeks that he shall pay the current rent w.e.f. 1.4.1995 till vacating, failing which the eviction may follow.” 8. It is true that the aforesaid case was in respect of landlord-tenant civil suit but the factum of registration of a family settlement in light of Registration Act, 1908 was looked into and it has been observed that family settlement is not required to be registered as it was based upon the record of past oral partition. 9. In light of the aforesaid judgment delivered by the apex Court, this Court is of the opinion that the impugned orders deserves to be quashed and are accordingly quashed. The respondents are directed to proceed ahead in accordance with law in respect of the mutation proceedings on the application preferred by the petitioner and other family members. 10. With the aforesaid, all the writ petition stand allowed.