SHYAM NARAYAN PRASAD versus KRISHNA PRASAD AND ORS. on 2 July 2018

36

[2018] 5 S.C.R. 36

SUPREME COURT REPORTS[2018] 5 S.C.R. 36

[2018] 5 S.C.R.

A

SHYAM NARAYAN PRASAD

v.

KRISHNA PRASAD AND ORS.

(Civil Appeal No. 5415 of 2011)

JULY 02, 2018

B

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Hindu Law – Mitakshara law – Property allotted to son inpartition – Whether retains character of coparcenery property –Held: Share which a coparcener obtains on partition of ancestralproperty is ancestral property as regards his male issue – AfterCpartition, the property in the hands of the son will continue to bethe ancestral property and the natural or adopted son of that sonwill take interest in it and is entitled to it by survivorship – On facts,properties acquired by son in the partition although are separateproperty qua other relations but it is a coparcenary property in soDfar as his sons and grandsons are concerned – Plaintiffs being hissons and grandson have a right in the said property – It cannot besaid that the suit filed by the plaintiffs challenging the documentexecuted between their father and uncle was not maintainable.

Deeds and Documents – Exchange deed – Admissibility inEevidence – On facts, two brothers transferred the ownership of theirrespective properties through deed of exchange – One building alsosubject matter of the exchange deed, value of which exceeded Rs.100/- and was not registered – Held: Since the exchange deed hadthe effect of creating and taking away the rights in respect of animmovable property-building, it required registration – Being anFunregistered document, it could not be taken into account to theextent of the transfer of an immovable property – It is inadmissiblein evidence and as such can neither be proved u/s. 91 nor any oralevidence can be given to prove its contents – Thus, the High Courtrightly discarded the exchange deed – Transfer of Property, 1882 –Gss. 118, 54 – Registration Act, 1908 – ss. 17, 49 – Evidence Act,1872 – s. 91.

Dismissing the appeal, the Court

HELD: 1.1 The property inherited by a male Hindu fromhis father, father’s father or father’s father’s father is an ancestral H

property. The essential feature of ancestral property, accordingto Mitakshara Law, is that the sons, grandsons, and greatgrandsons of the person who inherits it, acquire an interest andthe rights attached to such property at the moment of their birth.The share which a coparcener obtains on partition of ancestralproperty is ancestral property as regards his male issue. Afterpartition, the property in the hands of the son will continue to bethe ancestral property and the natural or adopted son of that sonwill take interest in it and is entitled to it by survivorship. Onfacts, the properties acquired by defendant No.2 in the partitionalthough are separate property qua other relations but it is acoparcenary property insofar as his sons and grandsons areconcerned. There is a clear finding by the trial court that theproperties are ancestral properties which have been divided asper the deed of partition. The property which had fallen to theshare of defendant No.2 retained the character of a coparcenaryproperty and the plaintiffs being his sons and grandson have aright in the said property. Hence, it cannot be said that the suitfiled by the plaintiffs was not maintainable. [Paras 12, 16][42-C-D; 44-E-F]

C. Krishna Prasad v. C.I.T, Bangalore [1975] 2 SCR709 : (1975) 1 SCC 160; M. Yogendra and Ors. v.Leelamma N. and Ors. [2009] 12 SCR 38 : (2009) 15SCC 184; Rohit Chauhan v. Surinder Singh and Ors.[2013] 7 SCR 897 : (2013) 9 SCC 419 – referred to.

1.2 The transfer of ownership of their respective propertiesby defendant Nos. 1 and 2 was done through deed of exchange. Itwas contended by defendant No.1 that the exchange was only ofthe businesses. However, a careful perusal of the deed clearlyshows that the RCC building is also a subject matter of the deedof exchange. The value of RCC building exceeds Rs. 100/- whichis not in dispute. It is clear from s. 118 of the Transfer of PropertyAct that where either of the properties in exchange are immovableor one of them is immovable and the value of anyone is Rs.100/-or more, the provision of Section 54 of the TP Act relating to saleof immovable property would apply. The mode of transfer in caseof exchange is the same as in the case of sale. It is thus clear thatin the case of exchange of property of value of Rs. 100/- and AB

C

D

E

F

G

H

[2018] 5 S.C.R.

Aabove, it can be made only by a registered instrument. In theinstant case, the exchange deed has not been registered. [Paras17, 18][44-B-C; 45-G-H]

1.3 Section 17(i)(b) of the Registration Act mandates thatany document which has the effect of creating and taking awayBthe rights in respect of an immovable property must be registeredand s. 49 of the Registration Act imposes bar on the admissibilityof an unregistered document and deals with the documents thatare required to be registered u/s. 17. Since, the deed of exchangehas the effect of creating and taking away the rights in respect ofan immovable property, namely, RCC building, it requiresCregistration under Section 17. Since the deed of exchange hasnot been registered, it cannot be taken into account to the extentof the transfer of an immovable property. The best evidence ofthe contents of the document is the document itself and asrequired under Section 91 of the Evidence Act the documentDitself has to be produced to prove its contents. But having regardto Section 49 of the Registration Act, any document which is notregistered as required under law, would be inadmissible inevidence and cannot, therefore, be produced and proved underSection 91. Since the deed is an unregistered document, it isinadmissible in evidence and as such it can neither be provedEunder Section 91 nor any oral evidence can be given to prove itscontents. Therefore, the High Court rightly discarded theexchange deed. [Paras 20, 22][45-G-H; 46-A, E-F]

1.4 The defendant who intends to avail the benefit of thisprovision must plead that he has taken possession of the propertyFin part performance of the contract. Perusal of the writtenstatement of the first defendant shows that he has not raised sucha plea. Pleadings are meant to give to each side, intimation of thecase of the other, so that, it may be met to enable courts todetermine what is really at issue between the parties. No reliefGcan be granted to a party without the pleadings. Therefore, it isnot open for the appellant to claim the benefit available underSection 53A of the T.P. Act. [Para 23][46-G-H; 47-A]

Roshan Singh & Ors. v. Zile Singh & Ors. [1988] 2SCR 1106 – referred to.

H

A

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5415of 2011.

From the Judgment and Order dated 15.05.2006 of the High Courtof Sikkim in Regular Second Appeal No. 1 of 2005.

C

K. V. Mohan, A. K. Yadav, Kedar Nath Tripathy, Advs. for theAppellant.

Tanmaya Agarwal, Vineet Kumar, Chander Shekhar Ashri, Advs.for the Respondents.

D

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. Defendant No.1, Shyam NarayanPrasad is the appellant before us. In this appeal he has questioned thelegality and correctness of the judgment and decree dated 15.5.2006passed by the High Court of Sikkim in RSA No.1 of 2005.

E

2. One Gopalji Prasad is the common male ancestor of the parties.The appellant and Laxmi Prasad, 5[th] respondent herein, are the sons ofGopalji Prasad. Respondent Nos. 1 to 3 are the sons of Laxmi Prasadand respondent No.4 is the son of the 1[st] respondent. Respondent Nos.1to 4 are the plaintiffs in the suit, being Civil Suit No.10 of 2001, and theappellant and respondent Nos.5 and 6 are the defendants. No relief hasbeen claimed against respondent No.6 (defendant No.3 in the suit). Forthe sake of convenience, parties are referred to by the ranking in thetrial court.

F

3. The plaintiffs filed the aforesaid suit against the defendants fora declaration that the document dated 30.1.1990 (Exhibit P2) executedbetween defendant Nos. 1 and 2 is invalid and for certain other reliefs.According to them, the family property was partitioned on 31.7.1987between Gopalji and his five sons, namely, Laxmi Prasad, AyodhyaPrasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh Kumar.In the partition Gopalji has retained some of the properties for his personal G

H

Ause till his death. Laxmi Prasad got his share of property along with halfportion of existing two-storey RCC building situated at Singtam Bazar,East Sikkim, wherein presently a liquor shop is being run. Shyam NarayanPrasad was allotted a shoe shop at Manihari which is run on a rentedpremises owned by Gouri Shankar Prasad. He was also allotted otherproperties in the partition.B

4. After the partition, the sons of Gopalji were put in possession oftheir share of the properties. However, Laxmi Prasad (defendant No.2)in collusion with his brother Shyam Narayan Prasad (defendant No.1)executed an agreement dated 30.1.1990 exchanging the liquor shop atSingtam Bazar, East Sikkim with the shoe shop at Manihari. It is theirCcontention that since the property is an ancestral property, they alsohave a share in the property which had fallen to the share of defendantNo.2 and that he has no legal right to exchange the property with defendantNo.1. It was further contented that the deed of exchange dated 30.1.1990entered into between defendant Nos.1 and 2 is in relation to an immovableDproperty. Since the said document has not been registered, it has nolegal effect.

5. Defendant No.1 has filed the written statement stating that thesuit properties are not ancestral properties. He has denied the contentionof the plaintiffs that the document dated 30.1.1990 is not a valid document.EIt was further contended that the said document has already been giveneffect from the date of its execution.

6. Defendant No. 2 has filed the written statement contendingthat for the alleged exchange deed, defendant No. 1 had approachedhim for exchanging only the business of liquor shop at Sikkim with thatFof shoe shop at Gangtok for convenience and that he had signed thedocument in good faith believing that the exchange deed was only forthe two businesses, and further, admitted that exchange deed was madeand executed behind the back of the plaintiffs.

7. On the basis of the pleadings of the parties, the trial court hasGframed relevant issues. Parties have led evidence in support of theirrespective contentions. On appreciation of the materials on record, thetrial court had come to the conclusion that the property in question is anancestral property and that the plaintiffs being the sons and grandson ofdefendant No.2, they have also equal share in the property allotted tohim in the partition. The suit was accordingly decreed.

H

8. The first defendant challenged the said judgment and decreeby filing an Appeal No.2 of 2003 before the District Judge, Sub-Division-II, Sikkim at Gangtok. The District Judge by judgment and decree dated19.11.2004 allowed the appeal, set aside the judgment and decree of thetrial court and dismissed the suit. The plaintiffs filed a Second AppealNo.1 of 2005 challenging the judgment and decree of the District Judgebefore the High Court. The High Court has set aside the judgment anddecree of the District Judge and restored the judgment and decree ofthe trial court.

9. The contention of the learned counsel for the appellant/defendant No.1 is that the entire property of Gopalji was the self acquiredproperty and he has divided the property amongst his five sons by adeed of partition dated 1.3.1988. According to the deed of settlementdated 30.1.1990 between defendant Nos. 1 and 2, only the businesseswere transferred and not the buildings. Therefore, the sons and thegrandson of defendant No.2 have no right to seek cancellation of thesaid deed. There is no exchange of immovable property as contendedby the plaintiffs. Therefore, the settlement deed does not requireregistration. The parties have acted upon the said agreement. In thecircumstances, possession of the appellant is protected under Section53A of the Transfer of Property Act, 1882 (for short ‘the T.P. Act’).

10. On the other hand, learned advocate appearing for therespondent Nos. 1 to 4/plaintiffs submits that the subject matter of thedeed of settlement dated 30.1.1990 is a joint family property. The recitalsof this document clearly show that there is a transfer of immovableproperty. The plaintiffs, being the lineal descendants of defendant No.2,are the members of the copercenary. They have a right and interestover the property in question. The settlement deed dated 30.1.1990 hasnot been registered. Hence, it is inadmissible in evidence. DefendantNo.1 has not pleaded in his written statement that he has taken thepossession of the property in part performance of the contract. Therefore,it is not open for him to claim the benefit of Section 53A of the T.P. Act.Learned counsel prays for dismissal of the appeal.

11. Having regard to the contentions urged, the first question forconsideration is whether the property allotted to defendant No.2 in thepartition dated 31.07.1987 retained the character of a coparcenaryproperty. Admittedly, Gopalji Prasad and his five sons partitioned theproperty by a deed of partition dated 31.07.1987. It is clear from the A

B

CD

EF

G

H

Amaterials on record that Gopalji Prasad retained certain properties in thepartition. Certain properties had fallen to the share of defendant No.2who is the father of plaintiff Nos. 1 to 3 and grandfather of plaintiff No.4. Certain properties had fallen to the share of the first defendant. Thetrial court has held that the properties are ancestral properties. TheHigh Court has confirmed the finding of the trial court. We do not findBany ground to disagree with this finding of the courts below.

12. It is settled that the property inherited by a male Hindu fromhis father, father’s father or father’s father’s father is an ancestralproperty. The essential feature of ancestral property, according toMitakshara Law, is that the sons, grandsons, and great grandsons of theCperson who inherits it, acquire an interest and the rights attached to suchproperty at the moment of their birth. The share which a coparcenerobtains on partition of ancestral property is ancestral property as regardshis male issue. After partition, the property in the hands of the son willcontinue to be the ancestral property and the natural or adopted son ofDthat son will take interest in it and is entitled to it by survivorship.

13. In C. Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC160, this Court was considering a similar question. In the said case, C.Krishna Prasad, the appellant along with his father Krishnaswami Naiduand brother C. Krishna Kumar formed Hindu undivided family up toEOctober 30, 1958, when there was a partition between KrishnaswamiNaidu and his two sons. A question arose as to whether an unmarriedmale Hindu on partition of a joint Hindu family can be assessed in thestatus of undivided family even though no other person besides him is amember of the family. It was held that the share which a coparcenerobtains on partition is ancestral property as regards male issue. It wasFheld as under:

“The share which a coparcener obtains on partition ofancestral property is ancestral property as regards his maleissue. They take an interest in it by birth, whether they arein existence at the time of partition or are bornsubsequently. Such share, however, is ancestral propertyonly as regards his male issue. As regards other relations, itis separate property, and if the coparcener dies without leavingmale issue, it passes to his heirs by succession (see p. 272 ofMulla’s Principles of Hindu Law, 14th Ed.). A person who forthe time being is the sole surviving coparcener is entitled to dispose G

H

of the coparcenary property as if it were his separate property.He may sell or mortgage the property without legal necessity orhe may make a gift of it. If a son is subsequently born to him oradopted by him, the alienation, whether it is by way of sale,mortgage or gift, will nevertheless stand, for a son cannot objectto alienations made by his father before he was born or begotten”.

14. In M. Yogendra and Ors. v. Leelamma N. and Ors. 2009(15) SCC 184, it was held as under:

“It is now well settled in view of several decisions of thisCourt that the property in the hands of a sole coparcenerallotted to him in partition shall be his separate propertyfor the same shall revive only when a son is born to him. Itis one thing to say that the property remains a coparcenaryproperty but it is another thing to say that it revives. The distinctionbetween the two is absolutely clear and unambiguous. In the caseof former any sale or alienation which has been done by the solesurvivor coparcener shall be valid whereas in the case of acoparcener any alienation made by the karta would be valid.”

15. In Rohit Chauhan v. Surinder Singh and Ors. 2013 (9)SCC 419, a contention was raised by the defendant No. 1 that afterpartition of the joint Hindu family property, the land allotted to the shareof defendant No. 2 became his self acquired property and he wascompetent to transfer the property in the manner he desired. It washeld that the property which defendant No. 2 got by virtue of partitiondecree amongst his father and brothers was although separate propertyqua other relations but it attained the characteristics of coparcenaryproperty the moment a son was born to defendant No. 2. It was heldthus:

“A person, who for the time being is the sole surviving coparceneras in the present case Gulab Singh was, before the birth of theplaintiff, was entitled to dispose of the coparcenary property as ifit were his separate property. Gulab Singh, till the birth of plaintiffRohit Chauhan, was competent to sell, mortgage and deal withthe property as his property in the manner he liked. Had he doneso before the birth of plaintiff, Rohit Chauhan, he was not AB

C

D

EF

GH

Acompetent to object to the alienation made by his father before hewas born or begotten. But, in the present case, it is an admittedposition that the property which Defendant 2 got on partitionwas an ancestral property and till the birth of the plaintiffhe was the sole surviving coparcener but the momentplaintiff was born, he got a share in the father’s propertyBand became a coparcener. As observed earlier, in view of thesettled legal position, the property in the hands of Defendant 2allotted to him in partition was a separate property till the birth ofthe plaintiff and, therefore, after his birth Defendant 2 could havealienated the property only as karta for legal necessity. It isCnobody’s case that Defendant 2 executed the sale deeds and releasedeed as karta for any legal necessity. Hence, the sale deeds andthe release deed executed by Gulab Singh to the extent of entirecoparcenary property are illegal, null and void. However, in respectof the property which would have fallen in the share of GulabSingh at the time of execution of sale deeds and release deed, theDparties can work out their remedies in appropriate proceeding.”

16. Therefore, the properties acquired by defendant No.2 in thepartition dated 31.07.1987 although are separate property qua otherErelations but it is a coparcenary property insofar as his sons and grandsonsare concerned. In the instant case, there is a clear finding by the trialcourt that the properties are ancestral properties which have been dividedas per the deed of partition dated 31.07.1987. The property which hadfallen to the share of defendant No.2 retained the character of acoparcenary property and the plaintiffs being his sons and grandson haveFa right in the said property. Hence, it cannot be said that the suit filed bythe plaintiffs was not maintainable.

17. This takes us to the next question as to whether the exchangedeed at Exhibit P2 is admissible in evidence or not. The transfer ofownership of their respective properties by defendant Nos. 1 and 2 wasGdone through Exhibit P2 deed of exchange. It was contended bydefendant No.1 that the exchange was only of the businesses. However,a careful perusal of Exhibit P2 clearly shows that the RCC building isalso a subject matter of the deed of exchange. The value of RCCbuilding exceeds Rs. 100/- which is not in dispute. Section 118 of the TPHAct defines ‘exchange’ as under:

“118. “Exchange” defined.-When two persons mutually transferthe ownership of one thing for the ownership of another, neitherthing or both things being money only, the transaction is called an“exchange”.

A transfer of property in completion of an exchange can bemade only in manner provided for the transfer of such propertyby sale”.

18. It is clear from this provision that where either of the propertiesin exchange are immovable or one of them is immovable and the valueof anyone is Rs.100/- or more, the provision of Section 54 of the TP Actrelating to sale of immovable property would apply. The mode of transferin case of exchange is the same as in the case of sale. It is thus clearthat in the case of exchange of property of value of Rs. 100/- and above,it can be made only by a registered instrument. In the instant case, theexchange deed at Exhibit P2 has not been registered.

19. Section 49 of the Registration Act, 1908 provides for the effectof non-registration of the document which is as under:

“49. Effect of non-registration of documents required to beregistered.-No document required by section 17 {or by anyprovision of the Transfer of Property Act, 1882 (4 of 1882)}, tobe 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 suchproperty or conferring such power, Unless it has been registered:”

20. Section 17(i)(b) of the Registration Act mandates that anydocument which has the effect of creating and taking away the rights inrespect of an immovable property must be registered and Section 49 ofthe Registration Act imposes bar on the admissibility of an unregistereddocument and deals with the documents that are required to be registeredunder Section 17 of the Registration Act. Since, the deed of exchangehas the effect of creating and taking away the rights in respect of animmovable property, namely, RCC building, it requires registration underSection 17. Since the deed of exchange has not been registered, it A

B

C

DE

F

G

H

Acannot be taken into account to the extent of the transfer of an immovableproperty.

21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2)SCR 1106, this Court was considering the admissibility of anunregistered partition deed. It was held thus:

B

“……Section 17(i)(b) lays down that a document for whichregistration is compulsory should, by its own force, operate orpurport to operate to create or declare some right in immovableproperty……Two propositions must therefore flow:

(1) A partition may be affected orally; but if it is subsequentlyCreduced into a form of a document and that document purportsby itself to effect a division and embodies all the terms ofbargain, it will be necessary to register it. If it be notregistered, S.49 of the Act will prevent its being admittedin evidence. Secondary evidence of the factum of partition willDnot be admissible by reason of S.91 of the Evidence Act, 1872.”

22. It is clear from the above judgment that the best evidence ofthe contents of the document is the document itself and as requiredunder Section 91 of the Evidence Act the document itself has to beEproduced to prove its contents. But having regard to Section 49 of theRegistration Act, any document which is not registered as required underlaw, would be inadmissible in evidence and cannot, therefore, be producedand proved under Section 91 of the Evidence Act. Since Exhibit P2 isan unregistered document, it is inadmissible in evidence and as such itcan neither be proved under Section 91 of the Evidence Act nor any oralFevidence can be given to prove its contents. Therefore, the High Courthas rightly discarded the exchange deed at Exhibit P2.

23. The last contention of the learned counsel for the appellant isin relation to application of Section 53A of the T.P Act. It is well settledthat the defendant who intends to avail the benefit of this provision mustGplead that he has taken possession of the property in part performanceof the contract. Perusal of the written statement of the first defendantshows that he has not raised such a plea. Pleadings are meant to give toeach side, intimation of the case of the other, so that, it may be met toenable courts to determine what is really at issue between the parties.

H

No relief can be granted to a party without the pleadings. Therefore, it isnot open for the first defendant/appellant to claim the benefit availableunder Section 53A of the T.P. Act.

24. In the result, this appeal fails and it is accordingly dismissed.There will be no order as to costs.

Nidhi Jain

Appeal dismissed.

A

B

C

D

E

F

G

H