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2020 DIGILAW 547 (TS)

Vinay Singh v. Ramesh Singh

2020-07-10

M.S.RAMACHANDRA RAO

body2020
JUDGMENT M.S.Ramachandra Rao, J. - This Revision is filed under Article 227 of the Constitution of India challenging the order dt.21.01.2010 in O.S.No.380 of 2012 of the IX Additional Chief Judge, City Civil Court, Hyderabad. 2. In the said Docket Order, the said Court had held that a document dt.21.4.1997 styled as "Deed of declaration of partition between coowners" executed by the 1st respondent/plaintiff in the said suit and which was tendered in cross-examination and confronted to P.W.1, is inadmissible in evidence for want of registration, and that it is a compulsorily registerable document under Section 17 of the Registration Act, 1908. 3. The Court below in the impugned order had mentioned that the recitals in the document show that there is division of shares and allotment of shares, that there is a reference also to relinquishment of interest of the parties therein in the properties allotted to each party, that it does not record past events or understandings, and is therefore compulsorily registerable; and because it is not registered, it is inadmissible in evidence. 4. The learned counsel for the petitioners/defendants 1 to 3 contended that the Court below erred in taking the view that this document dt.21.04.1997 cannot be admitted in evidence, that the said document is sufficiently stamped and deserved to be marked in evidence; that it was executed by the 1st respondent himself who had denied it in his crossexamination; and it did not require registration. He also contended that the said document had been marked in several proceedings without any objection regarding its non-registration and it cannot be now objected to. 5. Cross-Examination of P.W.1/1st respondent/plaintiff is filed in the material papers filed with the Revision which indicates that he was confronted with the certified copy of the said document, but he denied his signature and thumb impression on it. 6. On 24.04.2020, notice was ordered to the respondents and in IA No.1 of 2020 interim stay was granted of further proceedings in the suit. 7. I.A.No.2 of 2020 is filed by the 1st respondent to vacate this order. 8. It is contended by the 1st respondent that the above document, if carefully perused, though styled as "Deed of declaration of partition between co-owners" and though in the nature of an affidavit, is in fact was a deed of release and relinquishment along with allotment of shares to various members of the family. 8. It is contended by the 1st respondent that the above document, if carefully perused, though styled as "Deed of declaration of partition between co-owners" and though in the nature of an affidavit, is in fact was a deed of release and relinquishment along with allotment of shares to various members of the family. It is contended that a document of such a nature requires registration and because it is unregistered, it cannot be admitted in evidence. It is contended that even if this document had been marked in another suit, that fact would be irrelevant in deciding the admissibility of this document in the instant suit. It is further contended that PW1 had in fact not signed the said document and he is the absolute owner of the suit schedule property and the impugned order did not warrant any interference. 9. I have noted the contentions of both sides. 10. The recitals in the document dt.21.04.1997 are as under: " Deed of declaration of partition between co-owners I, RAMESH SINGH, S/o. Late Chotan Singh Hazari, Aged 45 years, Occupation: Business, R/o. H.No.14-10-1287, Puranapul, Hyderabad, DO HEREBY SOLEMNLY STATE AND DECLARE AS FOLLOWS :- 1. WHEREAS, a Plot bearing M.C.H.No.14-10-1287, Extent 227.32 Sq.Yards situated at Puranapool, Hyderabad was originally purchased by my uncle Sri GANESH SINGH HAZARI in the name of this Executant, the Executant herein was minor of having 16 years of age at the time of Purchase of abovesaid Plot in the year 1968 i.e., on 9-1-1968, from one Sri IQRAR ALI SHAH, S/o. TASAVVUR ALI "VENDOR" vide document No.32/68 on the file of the Sub-Registrar, Doodh-bowli, Hyderabad. 2. WHEREAS my uncle Sri GANESH SINGH HAZARI obtained Municipal Permission in my name and constructed 8 (eight) mulgies at the ground floor and two (2) Residential Portions i.e., 1st & 2nd floors. The Mulgies (Shops) are having M.C.H.Nos.14-10-1287/8, 9, 10, 11, 12, 13, 14, 15 & 16. Whereas the 1st & 2nd floor residential portions are numbered as 12-10-1287/12/1, 2, 3, 4, 5, 6 & 7. WHEREAS the entire expenditure of construction and purchase of the said plot was financed by my uncle Sri GANESH SINGH HAZARI. 3. The Mulgies (Shops) are having M.C.H.Nos.14-10-1287/8, 9, 10, 11, 12, 13, 14, 15 & 16. Whereas the 1st & 2nd floor residential portions are numbered as 12-10-1287/12/1, 2, 3, 4, 5, 6 & 7. WHEREAS the entire expenditure of construction and purchase of the said plot was financed by my uncle Sri GANESH SINGH HAZARI. 3. AND WHEREAS the parties below stated are sons & grandsons of late FATEH SINGH (Executant's Grandfather) by virtue of bloodrelation, all are residing in H.No.14-10-1287, Puranapul, Hyderabad, mutually agreed to divide the properties comprising (8) Mulgies and (2) Residential portions amongst themselves in order to avoid any future dispute with regard to the said properties and whereas the parties have agreed to enjoy the properties as absolute owners of their allotted portions, more specifically described in Schedule below. SCHEDULE 1. Mulgi No.14-10-1287/8 & " 14-10-1287/9 Fallen to the share of T.VINAY SINGH & T. VARUN SINGH, Sons of T.Sunder Lal. 2. " 14-10-1287/10 & " 14-10-1287/11 GANESH SINGH Son of LATE FATEH SINGH. House 14-10-1287/12 (Ground floor) House 14-10-1287/12/1 (First floor) House 14-10-1287/12/2 (First floor) House 14-10-1287/12/3 (First floor) House 14-10-1287/12/4 (Second floor) House 14-10-1287/12/5 (Second floor) House 14-10-1287/12/6 (Second floor) AND House 14-10-1287/12/7 (Second floor) 3. Mulgi No.14-10-1287/13 Fallen to the share of Sri T. T. RILESH SINGH S/o. RAMESH SINGH. 4. Mulgi No.14-10-1287/14 Master T.DINESH SINGH S/o. RAMESH SINGH, aged 16 years, (minor) 5. Mulgi No.14-10-1287/15 Master T.ROHIT SINGH S/o. T. ANAND SINGH, Aged 10 years, Minor 6. Mulgi No.14-10-1287/16 Master T.RISHABH SINGH S/o. T. KAMAL SINGH, Aged 6 years, (minor) AND WHEREAS the aforesaid Parties have taken possession of their assigned properties. NOW THIS DEED WITNESSETH AS FOLLOWS:- 1) That in consideration of the right, title and interest made in accordance with the aforesaid terms of this deed and in accordance, release and relinquish their interest in the properties allotted to each party. 2) That the original documents shall remain with Sri GANESH SINGH HAZARI. 3) That the parties have agreed to pay property taxes of their share to the M.C.H. IN WITNESS WHEREOF I affixed my signature on this indenture on Monday, the 21st day of April, 1997 in the presence of the following witnesses......." 11. It is signed by Ramesh Singh, as it's executant and a thumb impression also appears on each of the 3 sheets on which the above recitals are drafted and is attested by 2 witnesses. It is signed by Ramesh Singh, as it's executant and a thumb impression also appears on each of the 3 sheets on which the above recitals are drafted and is attested by 2 witnesses. 12. Of course, he has now taken a plea that the signature on the said document does not belong to him and that plea would have to be gone into by the Court below during trial. 13. However, subject to the said aspect to be decided during trial, we have to consider whether the view taken by the court below is correct or not. 14. It is settled law that the nomenclature given to a document is not conclusive and it's admissibility has to be considered on the basis of it's recitals and not with reference to pleadings of the parties. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787 the Supreme Court has held: "15. It is well settled that the 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 " 15. Therefore merely because the Document dt.21.4.1997 is described therein with a cause title "Deed of declaration of partition between coowners", it cannot be straight away held to be a 'partition deed'. 16. The words "I, RAMESH SINGH, S/o. Late Chotan Singh Hazari, Aged 45 years, Occupation: Business, R/o. H.No.14-10-1287, Puranapul, Hyderabad, DO HEREBY SOLEMNLY STATE AND DECLARE AS FOLLOWS" before para 1 in the said deed dt.21.4.1997 shows that it is in the format of an affidavit and it is signed by Ramesh Singh on each sheet as executant. There is no signature of anybody else as 'executant'. The attesters who signed it cannot be termed as 'executants'. 17. It is settled law that affidavits which are in the form of a declaration do not require registration. 18. There is no signature of anybody else as 'executant'. The attesters who signed it cannot be termed as 'executants'. 17. It is settled law that affidavits which are in the form of a declaration do not require registration. 18. Under Section 17(1)(b) of the Registration Act,1908, 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, requires registration. 19. In the first two paragraphs in the deed dt.21.4.1997, the recitals indicate that a plot of land was purchased in the name of the 1st respondent by Sri Ganesh Singh Hazari, the husband of the 3rd petitioner, who is an uncle of the 1st respondent. It further states that at the time of the said purchase on 09.01.1968, the 1st respondent was only a minor; that Sri Ganesh Singh Hazari obtained Municipal Permission in the name of the 1st respondent and constructed two (2) residential portions, first and second floors, and eight (8) mulgies in the ground floor; and that the entire expenditure of construction and purchase of the plot was made by Sri Ganesh Singh Hazari. 20. These recitals prima facie indicate that on account of the family relationship between Sri Ganesh Singh Hazari and the 1st respondent, the property was purchased and developed by Sri Ganesh Singh Hazari with his own funds though in the name of the 1st respondent. 21. The 1st respondent, having made this admission in the said document, impliedly admits that he had actually no title to the property, though he is it's ostensible owner; and that he was only a 'name lender' to the transaction of purchase of the plot and to the structures erected in it by his uncle Sri Ganesh Singh Hazari. 22. Therefore, there is no question of the 1st respondent 'relinquishing' any interest in the property which is referred to in the said document. because as per his own admission he never had such right, title or interest. 23. It is merely a unilateral declaration by the 1st respondent of certain facts and in so far as the he is concerned, it merely spells out the factual position. 24. because as per his own admission he never had such right, title or interest. 23. It is merely a unilateral declaration by the 1st respondent of certain facts and in so far as the he is concerned, it merely spells out the factual position. 24. Next it is the characteristic of a partition deed that the co-owners have to be parties to the said deed to admit/accept the shares allotted to themselves and to other co-owners. 25. This element is absent in the document dt.21.04.1997. It is signed only by Ramesh Singh, the sole executant and none of the persons mentioned in the schedule have signed it. 26. So it cannot be termed as a 'partition deed' by simply looking at the description at the top of the deed and the fact that it refers to (a) division of certain properties among the persons mentioned in the schedule and (b) in clause (1) also states that there is release and relinquishment of their interest in the properties allotted to others. 27. The Court below seems to have ignored these aspects all together and erroneously came to the conclusion that the document dt.21.04.1997 is a 'partition deed' which is compulsorily registerable under Section 17(1)(b) of the Registration Act, 1908. 28. In this view of the matter, the impugned order cannot be sustained. 29. Accordingly, The Civil Revision Petition is allowed; the impugned order passed by the Court below is set aside; and it is held that the document dt.21.4.1997 does not require registration; and the Court below is directed to admit the said document dt.21.4.1997 in evidence since admittedly it bears proper stamp duty as per the provisions of the Indian Stamp Act, 1899. No costs. 30. Pending miscellaneous petitions, if any, in this Civil Revision Petition shall stand closed.