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2018 DIGILAW 973 (CAL)

Sefalika Patra v. Bonbehari Jana

2018-12-17

BIBEK CHAUDHURI

body2018
JUDGMENT : BIBEK CHAUDHURI, J. 1. This revisional application is directed against order No.275 dated 21st September, 2016 and order No.278 dated 22nd November, 2016 passed by the learned Civil Judge (Junior Division) Additional Court, Tamluk in Title Suit No.88 of 2007. 2. Predecessor-In-Interest of the present plaintiffs/petitioners filed a suit for declaration of title, recovery of possession and permanent injunction against the substituted defendants/opposite parties. It is contended by the plaintiffs/petitioners that one Madhab Chandra Bhuniya was the original owner of the suit property. Said Madhab Chandra Bhuniya had two wives, namely, Haripriya and Promoda. Out of wedlock between Madhab Chandra and Haripriya a son, named Troilokyo was born who, however died during the lifetime of his parents. The second wife of said Madhab Chandra gave birth to two daughters named Rashmoni and Phulmoni. Marriages of both Rashmoni and Phulmoni were solemnized with one Dhrubo Charan Jana. The present plaintiffs/petitioners are the heirs and legal representatives of Phulmoni and Dhrubo, while the defendants/opposite parties are the heirs of the said Dhrubo and Rashmoni. The plaintiffs/petitioners claimed the suit property through the process of inheritance and succession from their predecessor-in-interest. It is also pleaded in the plaint that the defendants/opposite parties have no right, title and interest over the suit property. 3. The defendants/opposite parties disputed the said contention of the plaintiffs/petitioners by filing Written Statement. It is the specific case of the defendants/opposite parties that the predecessor-in-interest of the plaintiffs/petitioners, namely, Phulmani Jana illegally asserted her right over the suit property claiming moiety share. In order to settle the dispute between the petitioners and opposite parties, a village salish was held on different dates in the month of May, 1985 and the joint property was amicably partitioned between its co-sharers on the basis of a deed of settlement, viz, ‘Roydad’. 4. The trial of the said suit commenced and on 21st September, 2016. One Sunil Kumar Roy was examined and cross examined on behalf of the defendants/opposite parties as DW-5. On that date, the opposite parties filed an application for marking the said document, viz, ‘Roydad’ or deed of amicable settlement as exhibit. The said petition dated 21st September, 2016 was disposed of by the learned Trial Judge by his order No.278 dated 22nd November, 2016 and the original Roydad (deed of amicable family settlement which was marked “Z” for identification) was marked as exhibit-Z1 with objection. 5. The said petition dated 21st September, 2016 was disposed of by the learned Trial Judge by his order No.278 dated 22nd November, 2016 and the original Roydad (deed of amicable family settlement which was marked “Z” for identification) was marked as exhibit-Z1 with objection. 5. Assailing the said order, the present revisional application is filed. 6. Mr. Bagchi, learned advocate for the petitioners at the outset draws my attention to the copy of Roydad (annexure C1) to the revisional application and submits that the trial court failed to consider the nature of the aforesaid document and marked the same as exhibit. Refering to the recital of the aforesaid document, he submits that the said document is practically a deed of family settlement/partition at the intervention of local villagers, allegedly executed by and between the parties. He further submits that the purported document is not registered and cannot be admitted in evidence in view of the bar created under Section 49 of the Registration Act. He further submits that the document which is unregistered is inadmissible in evidence even for collateral purposes. In support of his contention, Mr. Bagchi refers to a decion of the Madras High Court in the case of S. Thirumalai vs. S. Govindarajan (Died) and others reported in, (2017) 1 ICC 707 (Mad). 7. Mr. Bagchi, learned advocate for the petitioners further contends that the trial court failed to draw the distinction between unregistered document and a document which was neither registered nor stamped. As per Section 35 of the Indian Stamp Act, no instrument chargeable with duty shall be admitted in evidence for any purpose by any authority or shall be acted upon, registered or authenticated by any person or by any public officer, unless such instrument is duly stamped. However, an instrument can be admitted in evidence on payment of the duty together with penalty. In the instant case, the purported document, viz Roydad is in the nature of amicable partition of joint property by and between the co-sharers in presence of local panchyat members and villagers. The said document described respective shares of the co-sharers and also amicably partitioned the joint family property amongst the co-sharers. Therefore, the said document was required to be registered on payment of proper stamp duty. 8. Mr. Bagchi next refers to a decision of the Supreme Court in the case of Yellapu Uma Maheswari & Anr. The said document described respective shares of the co-sharers and also amicably partitioned the joint family property amongst the co-sharers. Therefore, the said document was required to be registered on payment of proper stamp duty. 8. Mr. Bagchi next refers to a decision of the Supreme Court in the case of Yellapu Uma Maheswari & Anr. vs. Buddha Jagadheeswararao & Ors reported in, (2016) 1 ICC 1 (S.C). In the aforesaid decision, it is held by the Supreme Court that nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document, but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. It is further observed by the Apex Court in the aforesaid decision that where there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. 9. Coming to the instant case, it is contended by Mr. Bagchi, learned advocate for the petitioners that the purported document is nothing but a deed of partition between the co-sharers at the intervention of local villagers. Therefore, the said document is compulsorily registrable. When the document is not registered, it becomes inadmissible in evidence. 10. Mr. Adhikari, learned advocate for the opposite parties, on the other hand, strenuously argues that the purported document is neither a deed of amicable family settlement, nor a deed of partition. A close scrutiny of the contents of the document would suggest that it is an award made by private arbitrators in respect of joint family property. Even if the said award is not registered, it is conclusive between the parties. An award declaring the specific share of the cosharers in respect of the joint family property, does not create any new right, title or interest in the co-sharer/co-sharers. Therefore, the award is not compulsorily registrable. In support of his contention, he relies upon a decision of the Hon’ble Supreme Court in the case of Sardar Singh vs. Krishna Devi (Smt.) and another reported in, (1994) 4 SCC 18 . 11. Therefore, the award is not compulsorily registrable. In support of his contention, he relies upon a decision of the Hon’ble Supreme Court in the case of Sardar Singh vs. Krishna Devi (Smt.) and another reported in, (1994) 4 SCC 18 . 11. It is further submitted by Mr. Adhikari, learned advocate for the opposite parties that the learned trial judge rightly considered that the opposite parties proved execution of the said Roydad when the signatories of the said document proved their signatures and the said signatures were marked exhibits. The purported document did not create any new right, title or interest of the partiesin-lis. It only declares the shares of the parties. In view of such position the said document is not compulsorily registrable and the learned trial judge did not commit any error or exceed his jurisdiction in admitting the said document in evidence by marking the same as exhibits. 12. Having heard the submission made by the learned advocates for the petitioners and the opposite parties and on perusal of the impugned order, copies of amended plaint and written statement annexed with the supplementary affidavit filed by the petitioners, copy of the document in question and other documents filed with the affidavit in opposition filed by the opposite parties, it reveals that the learned advocate for the petitioners has assailed the impugned order on twofold grounds. First, he contends that purported document dated 27th July, 1985 being essentially a deed of partition allegedly executed by and between the co-sharers in presence of some villagers as settlers of the dispute, is compulsorily registrable and that the said document being not a registered document is not admissible in evidence under Section 17 read with Section 49 of the Indian Registration Act. Secondly, the said document being not properly stamped is not admissible in evidence under Section 35 of the Indian Stamp Act. 13. Learned counsel for the opposite parties, on the other hand contends that the trial court has rightly come to the conclusion that the said document, viz, Roydad or the deed of amicable family settlement was not compulsorily registrable. Therefore preconditions of Section 17 read with Section 49 of the Registration Act and/or Section 35 of the Indian Stamp Act are not required to be satisfied before admitting the said document in evidence. 14. Therefore preconditions of Section 17 read with Section 49 of the Registration Act and/or Section 35 of the Indian Stamp Act are not required to be satisfied before admitting the said document in evidence. 14. I have carefully perused the purported document, viz, Roydad executed by and between the predecessor-in-interest of the present petitioners and opposite parties. It is clearly stated in the said document that the predecessor-in-interest of the plaintiffs/petitioners and the defendants/opposite parties, namely, Rashmoni and Phulmoni, both since deceased, wives of one Dhrubo Charan Jana, since deceased inherited the property left by their father Madhab Charan, since deceased in equal share. Moreover, some properties were purchased in the name of Dhrubo Charan, since deceased, husband of the said Rashmoni and Phulmoni. It further stated that some landed property was purchased in the name of opposite party No.4 from the money of opposite party No.1, which he received as dowry at the time of marriage. Some other properties were also purchased in individual names of the petitioners and opposite parties. The said document dated 27th July, 1985 further reveals that the entire property was divided between the petitioners and the opposite parties which was also claimed to be signed by the husband of the original plaintiff and defendant. In any view of the matter, there is relinquishment of the rights of some of the heirs of the properties in favour of others, specially when a joint family property is declared to be divided and held and possessed by one or more co-sharers. 15. Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been well settled by the Supreme Court. In this regard, I may conveniently refer to the judgment of Hon’ble Supreme Court in Kala and others vs. Deputy Director of Consolidation and others reported in, (1976) 3 SCC 119 . 16. The proposition with regard to family settlement and its registration was laid down by the Hon’ble Supreme Court in paragraphs 10 and 11:- “10. In this regard, I may conveniently refer to the judgment of Hon’ble Supreme Court in Kala and others vs. Deputy Director of Consolidation and others reported in, (1976) 3 SCC 119 . 16. The proposition with regard to family settlement and its registration was laid down by the Hon’ble Supreme Court in paragraphs 10 and 11:- “10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 14(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. 11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.” 17. The Hon’ble Apex Court in case of K.P Saha & Sons Pvt. Ltd. vs. Development Consultant Ltd. reported in, (2008) 8 SCC 564 held: 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.” 18. I have already mentioned that Mr. Adhikari, learned advocate for the opposite parties tried to impress upon me placing reliance on the decision of the Supreme Court in the case of Sardar Singh (supra) that the purported document, viz, Roydad is an award made by the private arbitrators in respect of the joint properties of the petitioners and the opposite parties and registration is not necessary for having the document admissible in evidence. Paragraph 12 of the aforesaid citation is relevant for the purpose of this case. “12. It is, thus, well-settled law that the unregistered award per se is not inadmissible in evidence. It is a valid award and not a mere waste paper. It creates the parties. It can be set up as defence as evidence of resolving the disputes and acceptance of it by the parties. If it is a foundation, creating right, title and interest in praesenti or future or extinguishes the right, title or interest in immovable property of the value of Rs.100/- or above it is compulsorily registrable and nonregistration renders it inadmissible in evidence. If it contains a mere declaration of pre-existing right, it is not creating a right, title and interest in praesenti, in which event it is not a compulsorily registrable instrument. It can be looked into as evidence of the conduct of the parties of accepting the award, acting upon it that they have preexisting right, title or interest in the immovable property.” 19. In the instant case, according to the opposite parties the said document, viz, Roydad divided the joint family property according to the shares of its cosharers and directed them to hold and possess well demarcated portions of the suit property according to their shares. Therefore, in my considered view, the said document was compulsorily registrable and non registration render sheet inadmissible in evidence. 20. Next question that automatically falls for consideration is as to whether the said document can be used for any collateral purpose. This question came up for consideration by the Hon’ble Supreme Court in Sita Ram Bhama vs. Ramvatar Bhama (Civil Appeal No....... of 2018 (Arising out of SLP(C)No.11067 of 2017) decided on 23rd March 2018 and it was held that an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if defendants/opposite parties want to mark this document for even collateral purpose, it is open for them to pay the stamp duty together with penalty and get the document impounded. Only then, the trial court can have the liberty to mark the said document as exhibit for collateral purpose subject to proof and relevance. 21. Hence, if defendants/opposite parties want to mark this document for even collateral purpose, it is open for them to pay the stamp duty together with penalty and get the document impounded. Only then, the trial court can have the liberty to mark the said document as exhibit for collateral purpose subject to proof and relevance. 21. In view of the above discussion and reasons recorded hereinabove, I find that the learned trial judge failed to exercise his jurisdiction in accepting the said document, viz, Roydad in evidence by marking it as exhibit. Therefore, the impugned order dated 22nd November, 2016 is set aside. 22. The revisional application is, therefore, allowed. However, there shall be, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.