THULASIDHARA & ANOTHER versus NARAYANAPPA & OTHERS on 1 May 2019

SUPREME COURT REPORTS

[2019] 8 S.C.R.

THULASIDHARA & ANOTHER

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v.

NARAYANAPPA & OTHERS

(Civil Appeal No.784 of 2010)

B MAY 01, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Code of Civil Procedure, 1908: s.100 – Exercise of powerunder, scope – Suit for title and permanent injunction based onsale deed – Claim of defendants that suit property fell into share ofChusband of defendant no.1 and father of defendant no.2 and 3 byway of partition – Trial court dismissed the suit holding that thepartition deed is admissible in evidence and the plaintiff in collusionwith PW2 got executed a sham document in his favour – Firstappellate authority upheld the decision of trial court – High CourtDframed only one substantial question as to whether the appellantwas the owner and in possession of the suit land as he purchased itsubsequent to the partition deed – High Court allowed the appealholding that the partition deed required registration and thereforewas inadmissible in evidence and that both the courts below werenot justified in holding that the sale deed was only nominal one –EOn appeal, held: The jurisdiction of High Court under s.100 afterthe 1976 amendment is confined only with the second appealinvolving a substantial question of law – In the instant case, nosubstantial question of law was framed – Trial court as well as firstappellate court, both gave cogent reasons on appreciation ofFevidence on record more particularly the sale deed and the partitiondeed and held that the plaintiff was not entitled to declaration thathe became the owner – While interfering with the orders by boththe courts below, High Court again re-appreciated the entireevidence on record, which in exercise of powers under s.100 wasnot permissible – Under the circumstances, High Court committed aGgrave/manifest error in quashing and setting aside the findingsrecorded by both the courts below, which were on appreciation ofevidence on record – Partition.

Partition: The case of defendants was that husband ofdefendant no.1 and father of defendant no.2 and 3 purchased theH

Conclusion

suit property on 12.12.1948 under a registered sale deed – Saidproperty was blended into the joint family properties by him –Thereafter when partition took place said suit property fell into hisshare – Plaintiff filed suit for declaration of title on the basis ofsale deed – Trial court and first appellate court held that the saidsale deed was only a nominal sale deed and not an out and out saledeed since it was executed as security for loan and never intendedto sell the suit property – High Court allowed the appeal holdingthat in view of the registered sale deed executed in favour of theplaintiff, the plaintiff became the actual owner – On appeal, held:Father of defendants was not a signatory to the sale deed andtherefore it was not binding on him or his heirs – Even otherwise, ina suit for a declaration on the basis of the registered sale deed, it isalways open for the defendant, who is a stranger to the sale deed,to raise a plea that the sale deed was void, fictitious, collusive ornot intended to be acted upon and or not binding to him – Partitiondeed relied upon by the defendants could be said to be a Palupattiwhich means list of properties partitioned – At the most, it can besaid to be a family arrangement – Therefore, in the facts andcircumstances of the case, the same was not required to be registered– The execution of this document/ Partition Deed/ Palupatta dated23.04.1971 was established and proved by examining differentwitnesses – Even the plaintiff also categorically admitted that theoral partition took place on 23.04.1971 and he also admitted that3 to 4 punchayat people were also present – Therefore, the sameeven can be used as corroborative evidence as explaining thearrangement made thereunder and conduct of the parties – So faras sale deed dated 18.05.1973 executed in favour of the plaintiffwas concerned, there was serious dispute with respect toconsideration paid by the plaintiff – In the facts and circumstancesof the case, the High Court was not justified in interfering with thefindings recorded by both the courts below – The orders passed byboth the courts below dismissing the suit are restored.

Disposing of the appeal, the Court

HELD: 1. The jurisdiction of the High Court to entertainSecond Appeal under Section 100 of the CPC after the 1976amendment, is confined only with the Second Appeal involving asubstantial question of law. The existence of ‘a substantial AB

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Aquestion of law’ is a sine qua non for the exercise of the jurisdictionunder Section 100 of the CPC. In the second appeal under Section100 of the CPC, the High Court cannot substitute its own opinionfor that of the First Appellate Court, unless it finds that theconclusions drawn by the lower court were erroneous being;contrary to the mandatory provisions of the applicable law; orBcontrary to the law pronounced by the Apex Court; or based oninadmissible evidence or no evidence. The substantial questionof law framed by the High Court in the instant case, as such,cannot be said to be a substantial question of law at all. The TrialCourt as well as the First Appellate Court, both gave cogentCreasons on appreciation of evidence on record, more particularly,the Sale Deed dated 22.06.1964, document dated 23.04.1971 andsubsequent Sale Deed dated 18.05.1973 and thereafter held thatthe plaintiff is not entitled to the declaration that he has becomethe owner. While interfering with the Judgment and Decreepassed by both the Courts below, the High Court againDre-appreciated the entire evidence on record, which in exerciseof powers under Section 100 of the CPC, is not permissible.[Paras 7.1, 7.2, 7.4, 8] [226-B-E; 227-C-E]

Kondiba Dagadu Kadam v.Savitribai Sopan Gujar,(1999) 3 SCC 722 : [1999] 2 SCR 728 ; Ishwar DassEJain v.Sohan Lal,(2000) 1 SCC 434 : [1999] 5 Suppl.SCR 24 – relied on.

2. Admittedly, the father of defendant no. 2 and 3 was not asignatory to the registered Sale Deed dated 22.06.1964 (ExhibitP1). Therefore, as such, the said Sale Deed did not bind the fatherFof defendant no. 2 and 3. The entire evidence on record showsthat the suit property was initially purchased by the father ofdefendant no. 2 and 3 in the year 1948 and thereafter, due tosome internal family problems with respect to said suit property,it was the father of defendant no. 2 and 3 who threw the sameGproperty into the joint family property in the year 1952 and thenexecuted the Sale Deed in favour of his father stating that itbelongs to joint family property. The entire evidence on recordshow that even the Sale Deed (Exhibit P1) was not acted upon.In the cross-examination, the original plaintiff specifically admitted H

that in the year 1965-66, when the father sold away the said suitschedule property, there was no partition between the brothersat that time. In the circumstances, the registered Sale Deed(Exhibit P1), by which the suit property was sold to ‘S’ would notbind the father of defendant no. 2 and 3. It was a registered SaleDeed which was not acted upon. Even otherwise, it is alwaysopen for the defendant, who is a stranger to the Sale Deed, toraise a plea that the Sale Deed was void, fictitious, collusive ornot intended to be acted upon and or not binding to him. In thefacts and circumstances of the case, without even challengingthe Sale Deed (Exhibit P1) by way of independent proceedings,in a suit filed by the plaintiff seeking a declaration that he hasbecome the owner pursuant to the registered Sale Deed, it isalways open for the defendant, who is stranger to the Sale Deed,to raise a plea that either the Sale Deed is not binding to him orthe same was without consideration or it was a nominal Sale Deedor void or fictitious, for that matter, collusive and not intended tobe acted upon. [Paras 9.1, 9.2] [228-F-H; 229-A-D, F-G]

Vidhyadhar v. Manikrao and Another (1999) 3 SCC573 : [1999] 1 SCR 1168 – relied on.

3.1 So far as the finding recorded by the High Court thatas Partition Deed dated 23.04.1971 (Exhibit D4) was unregisteredthough required registration under the provisions of theRegistration Act and, therefore, the same is not admissible inevidence is concerned, it is required to be noted that as suchExhibit D4 can be said to be a Palupatti which means list ofproperties partitioned. At the most, it can be said to be a familyarrangement. Therefore, in the facts and circumstances of thecase, the same was not required to be registered. Deed dated23.04.1971, under which the suit property had gone /devolved infavour of the father of defendant no. 2 and 3 was reduced in writingbefore the Panchayat and Panchas, and the same was signed bythe village people/panchayat people and all the members of thefamily including even the plaintiff. Though the plaintiff disputedthat the partition was not reduced in writing in the form ofdocument Exhibit D4, on considering the entire evidence onrecord and even the deposition of plaintiff (cross-examination), AB

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Ahe has specifically admitted that the oral partition had taken placein the year 1971. He has also admitted that he has got the sharewhich tallies with document dated 23.04.1971 (Exhibit D4).[Paras 9.3, 9.4][230-G-H; 231-A-D]

3.2 So far as the Sale Deed dated 18.05.1973 (Exhibit P2)Bexecuted by ‘S’ in favour of the plaintiff was concerned, therewas a categorically finding by both the courts below that the samedocument was sham. In the cross-examination, the plaintiff statedthat he paid Rs. 3000 to 4000 to ‘S’ and the said property waspurchased by him in the year 1973. However, in the document,the sale consideration is stated to be Rs.200/-. Therefore, thereCwas serious dispute with respect to consideration paid by theplaintiff and received by the ‘S’ . In the facts and circumstancesof the case, the High Court was not justified in interfering withthe findings recorded by both the Courts below.[Paras 9.6, 10] [232-E-G]

DKale and Others v. Deputy Director of Consolidationand Others(1976) 3 SCC 119 : [1976] 3 SCR 202 ;Kaliaperumal v. Rajagopal and Another(2009) 4 SCC193 ; S. Shanmugam Pillai and Others v. K. ShanmugamPillai and Others (1973) 2 SCC 312 : [1973] 1 SCRE570 – relied on Roshan Singh and Others v. Zile Singh and Others(2018) 14 SCC 814 – referred to H

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 784 of

From the Judgment and Order dated 25.07.2007 of the HighCourt of Karnataka at Bangalore in Regular Second Appeal No.1033of 2001

Ms. Kiran Suri, Sr. Adv., Ms. Aishwarya Kumari, S. J. Amith,Ms. Ritika Gambhir Kohli, Dr. (Mrs.) Vipin Gupta, Advs. for theAppellants.

Ms. K. V. Bharathi Upadhyaya, Advs. for the Respondents.

The Judgment of the Court was delivered by M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with theimpugned Judgment and Order passed by the High Court of Karnatakaat Bengaluru dated 25.07.2007 passed in Regular Second Appeal No.1033of 2001, by which, in exercise of powers under Section 100 of the CPC,the High Court has allowed the said appeal preferred by the respondentherein-original plaintiff and has quashed and set aside the Judgment andDecree passed by both the Courts below dismissing the suit, andconsequently decreeing the suit, original defendants have preferred thepresent appeal.

2. The facts leading to the present appeal in nutshell are asunder :

That the respondent herein-original plaintiff (hereinafter referredto as the ‘original plaintiff’) instituted the suit in the Court of Munsiffand JMFC at Gubbi (learned Civil Judge, Junior Division, Gubbi) beingOriginal Suit No.141 of 1984 praying for the Judgment and Decree in hisfavour to the effect that he be declared as the owner of the suit scheduleproperty and also for permanent injunction restraining the appellantsherein-original defendants (hereinafter referred to as the ‘originaldefendants’) from interfering with his peaceful possession and enjoymentof the suit schedule property. It was the case on behalf of the originalplaintiff that he has become an owner of the suit property havingpurchased the same under a registered Sale Deed and therefore thedefendants have no right whatsoever to interfere with his peacefulpossession and enjoyment of the suit schedule property. The suit wasresisted by the defendants by filing the written statement. It was the A

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Acase on behalf of the defendants that husband of defendant no.1 andfather of defendant nos. 2 and 3 i.e. A.N. Krishnappa (deceased),purchased the suit property on 12.12.1948 under a registered Sale Deedfor a consideration of Rs.400/-. That the suit property was blended intothe joint family properties by him. That thereafter the partition betweenthe sons of deceased Nanjappa was recorded on 23.04.1971 and theBsuit property fell into the share of the deceased A. N. Krishnappa. Itwas also the case on behalf of the defendants that they are enjoying thepossession of the suit property. It was also the case on behalf of thedefendants that no Sale Deed has been executed by the defendants infavour of the plaintiff and the alleged Sale Deed is fabricated by theCplaintiff.

2.1 That the learned Trial Court framed the following issues:

“(i) Does the plaintiff prove his title to the suit schedule property?

(ii) Whether the plaintiff proves his lawful possession of the suitDschedule property on the date of suit?(iii) Does the plaintiff prove the interference by the defendants tohis possession of the suit property?”

2.2 That both the parties led evidence, both, oral as well asdocumentary. That after considering the submissions made on behalf ofEthe rival parties and on appreciation of evidence, learned Trial Courtheld that there was a partition between family on 23.4.1971 and for thatthe learned Trial Court observed and held that Exhibit D4(Partition Deeddated 23.04.1971) is admissible in evidence. The learned Trial Courtalso observed and held that the suit property was available at the time ofFpartition. The learned Trial Court also observed and held that Exhibit P1(the Sale Deed relied upon by the original plaintiff) was only a nominalSale Deed and not an out and out sale deed since Exhibit P1 was executedas security for loan and never intended to sell the suit property. Thelearned Trial Court also observed and held that the suit property waspurchased by late Krishnappa for a sum of Rs.400/- in 1948 and thereafterGit is stated to have been sold at Rs.200/- after 16 years i.e. in 1964,which is highly improbable. The learned Trial Court also gave a specificfinding that there was a concealment of material facts in the suit, whichshows malafide intention of the plaintiff. The learned Trial Court alsoheld that plaintiff, in collusion with PW2, has got executed a sham H

document in his favour. By holding so and recording above findings, thelearned Trial Court dismissed the suit.

2.3 The First Appellate Court dismissed the appeal preferred bythe original plaintiff and confirmed the Judgment and Decree passed bythe learned Trial Court dismissing the suit. While dismissing the appeal,the learned First Appellate Court observed that Exhibit D4 cannot besaid to be a Partition Deed and can be said to be only a list of propertiespartitioned and does not create or extinguish any right in the immovableproperty and therefore not a compulsorily registrable document andtherefore Exhibit D4 is admissible in evidence.

3. Feeling aggrieved and dissatisfied with the Judgment andDecree passed by the learned Trial Court confirmed by the First AppellateCourt, the original plaintiff filed a Regular Second Appeal No.1033 of2001 before the High Court. The High Court framed only one substantialquestion of law which reads as under :

“Whether the appellant is the owner and in possession of the suitland as he purchased it in the year 1973, that is, subsequent to thedate 23.4.1971 when Ex.D1 – Partition deed – Palupatti is allegedto have come into existence?”

3.1 That by the impugned Judgment and Order, the High Courthas allowed the said appeal and has interfered with the findings of factsrecorded by both the Courts below and consequently has decreed thesuit by holding that Exhibit D4 required registration and therefore thesame was inadmissible in evidence. The High Court further observedand held that both the Courts below are not justified in holding thatdocument - Exhibit P1 was only a nominal sale deed and that the samewas not acted upon.

3.2 Feeling aggrieved and dissatisfied with the impugned Judgmentand Order passed by the High Court, original defendants have preferredthe present appeal.

4. Ms. Kiran Suri, learned Senior Advocate has appeared on behalfof the appellants-original defendants and Ms.K.V. Bharathi Upadhyaya,learned Advocate has appeared on behalf of the respondent-originalplaintiff and wife and son of the original plaintiff (newly addedrespondents), who are permitted to be impleaded as respondents by thisCourt.

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5. Ms. Kiran Suri, learned Senior Advocate appearing on behalfof the original defendants has vehemently submitted that the High Courthas exceeded in its jurisdiction under Section 100 of the CPC by interferingwith the concurrent findings of facts recorded by both the Courts below.

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5.1 It is further submitted by Ms. Kiran Suri, learned SeniorBAdvocate appearing on behalf of the original defendants that in factsubstantial question of law framed by the High Court as such cannot besaid to be a substantial question of law at all and the same can be said tobe a question of fact. It is submitted that therefore the High Court hascommitted a grave error and/or has exceeded in its jurisdiction by enteringinto the question of fact and thereby by interfering with the concurrentCfindings of facts recorded by the Courts below.

5.2 It is further submitted by Ms. Kiran Suri, learned SeniorAdvocate appearing on behalf of the original defendants that High Courthas committed a serious error in holding that Exhibit D4 requiresregistration, whereas, both the courts below clearly recorded that ExhibitDD4 does not require any registration.

5.3 It is further submitted by Ms. Kiran Suri, learned SeniorAdvocate appearing on behalf of the original defendants that High Courthas committed a grave error in observing and holding that as Exhibit D4was an unregistered document and therefore the same was not admissibleEin evidence.

5.4 It is vehemently submitted by Ms. Kiran Suri, learned SeniorAdvocate appearing on behalf of the original defendants that assumingthat Exhibit D4 requires registration and the same was unregistered, inthat case also, the same document can be used and considered forFcollateral purpose. It is submitted that even otherwise and as held by thisCourt in the case of Kale and Others v. Deputy Director ofConsolidation and Others (1976) 3 SCC 119 even if the familysettlement was not registered, it would operate as a complete estoppelagainst the original plaintiff who was party to such family settlement. ItGis submitted that therefore, the High Court has committed a grave errorof law in not giving effect to the Doctrine of Estoppel.

5.5 Relying upon the decision of this Court in the case of SubrayaM.N. v. Vittala M.N. and Others (2016) 8 SCC 705, Ms. Kiran Suri,learned Senior Advocate appearing on behalf of the original defendants H

has vehemently submitted that as held by this Court in the aforesaiddecision, when family arrangement/settlement is orally made, noregistration is required and that would be admissible in evidence, however,when reduced in writing, registration is essential, without which it wasnot admissible in evidence. It is submitted that however it is furtherobserved and held by this Court in the aforesaid decision that even withoutregistration, written document of family arrangement/settlement can beused as corroborative evidence as explaining the arrangement madethereunder and conduct of the parties. It is submitted that it is furtherobserved and held by this Court in the aforesaid decision that unregistereddocument of family arrangement can be used as corroborative piece ofevidence for explaining the nature of settlement/arrangement arrived atbetween the parties, conduct of plaintiff members in receiving moneyfrom the defendant members of the family in lieu of relinquishing theirinterest in certain family properties. It is submitted that in the presentcase, document D4 dated 23.04.1971 was in fact acted upon by all theparties including the plaintiff and therefore assuming that document D4required registration, in that case also, the same can be used ascorroborative evidence.

5.6 It is submitted by Ms. Kiran Suri, learned Senior Advocateappearing on behalf of the original defendants that as such documentD4 cannot be said to be a Partition Deed and it can be said to be adocument containing list of properties allotted to parties and thereforethe same was not required to be registered. It is submitted that,therefore,the High Court has committed a grave error in holding that as Exhibit D4was an unregistered document, the same was inadmissible in evidence.In support of her above submissions, she has heavily relied upon thedecisions of this Court in the case of Roshan Singh and Others v. ZileSingh and Others (2018) 14 SCC 814.

5.7 It is further submitted by Ms. Kiran Suri, learned SeniorAdvocate appearing on behalf of the original defendants that the HighCourt has committed a serious error in holding that the suit property wasnot available for partition in the year 1971 with the joint family in theyear 1971. It is submitted that by holding so, the High Court has not atall considered the fact that Exhibit P1, a Sale Deed relied upon by theplaintiff, was a nominal Sale Deed and everybody understood.

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A5.8 It is further submitted by Ms. Kiran Suri, learned SeniorAdvocate appearing on behalf of the original defendants that the HighCourt has committed a grave error in interfering with the findings of theCourts below that Exhibit P1 exhibits only as a security and is not adocument for sale.B5.9 It is further submitted by Ms. Kiran Suri, learned Senior A

B5.9 It is further submitted by Ms. Kiran Suri, learned SeniorAdvocate appearing on behalf of the original defendants that High Courthas committed a grave error in interfering with the findings of factsrecorded by both the courts below that Exhibit P1 was not acted upon. Itis further submitted that both the Courts below clearly recorded in theirrespective findings that the possession remained with the defendantsCand the consideration for the sale Exhibit P1 was inadequate and thereforeno title passed on.

5.10 It is submitted by Ms. Kiran Suri, learned Senior Advocateappearing on behalf of the appellants-original defendants that as observedand held by this Court in the case of Kaliaperumal v. Rajagopal andDAnother (2009) 4 SCC 193 that though on registration of Sale Deedunder the Registration Act, 1908, title will normally pass to the purchaserfrom the date of the execution of the Sale Deed, true test is the intentionof the parties. It is submitted that it is held by this Court that the registrationis prima facie proof of intention of transfer of property, but not a proof ofEoperative transfer. It is submitted that it is further observed and held bythis Court that where recitals are insufficient or ambiguous, circumstancesand conduct of parties can be looked into, subject to provisions of Section92 of the Evidence Act.

5.11 It is further submitted by Ms. Kiran Suri, learned SeniorFAdvocate appearing on behalf of the original defendantsthat the HighCourt has committed a very serious error in setting aside the findings offacts recorded by both the Courts below that Exhibit P1 was a nominalSale Deed. It is vehemently submitted by Ms. Kiran Suri that in thefacts and circumstances of the case, the High Court has committed agrave error in giving much emphasis on Exhibit P1 being registered SaleGDeed, without considering the surrounding circumstances and the intentionof the parties which are brought/borne out from the conduct of the parties.

5.12 Now, so far as not praying to set aside the Sale Deed(ExhibitP1) by the defendantsby filing a suit is concerned, relying upon the decision H

of this Court in the case of Vidhyadhar v. Manikrao and Another(1999)3 SCC 573, it is vehemently submitted thatin a suit filed by the plaintifffor a declaration to declare him an owner on the basis of the Sale Deed,thedefendant who is a stranger to the Sale Deed can raise a plea thatthe Sale Deedwas void, fictitious, collusive or not intended to be acteduponand/or not binding to him. It is submitted that as held by this Court inthe aforesaid decision, defendant can raise any legitimate plea availableto him under the law to defeat the suit of the plaintiff. It is submitted thattherefore non-filing of the suit by the defendant to set aside the SaleDeed(Exhibit P1) and/or not specifically praying to quash and set asidethe Sale Deed(Exhibit P1), would not defeat the case of the defendantand the same cannot go against the defendant.

5.13 Making above submissions and relying upon the decisions ofthis Court, it is prayed to allow the present appeal and quash and setaside the impugned Judgement and Order passed by the High Court andrestoring the Judgement and Decree passed by the learned Trial Courtdismissing the suit.

6. Present appeal is vehemently opposed by Ms. K. V. BharathiUpadhyaya, learned Advocate appearing on behalf of the newly addedrespondents (wife and son of the original plaintiff).

6.1 It is vehemently submitted by Ms. K. V. Bharathi, learnedAdvocate appearing on behalf of the contesting respondents that in thefacts and circumstances of the case, the High Court has rightly decreedthe suit and has rightly held that the original plaintiff is entitled to thedeclaration that he had become the owner of the suit property under theregistered Sale Deed.

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6.2 It is vehemently submitted by Ms. K. V. Bharathi, learnedAdvocate appearing on behalf of the contesting respondents that onappreciation of evidence and having found that there was a registeredSale Deed in favour of the original plaintiff, the High Court has rightlyinterfered with the findings recorded by both the Courts below as thesaid findings were perverse.

6.3 It is further submitted by learned Advocate appearing on behalfof the contesting respondents that as such, the High Court had framedthe substantial question of law and thereafter had answered thesubstantial question of law framed and therefore the High Court has not A

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Aexceeded in its jurisdiction permissible under the law, and more particularly,has exercised the Jurisdiction within the parameters of Section 100 ofthe CPC.

6.4 It is further submitted by Ms. K. V. Bharathi, learned Advocateappearing on behalf of the contesting respondentsthat as such, thereBwas a registered Sale Deed in favour of the original plaintiff, on paymentof the saleconsideration and in fact the same was acted upon and thepossession was handed over pursuant to and under the registered SaleDeed and, therefore, the High Court has rightly held that the originalplaintiff has become the absolute owner pursuant to the registered SaleDeed dated 22.06.1964 (Exhibit P1).C

6.5 It is further submitted by Ms. K. V. Bharathi, learned Advocateappearing on behalf of the contesting respondents that in fact byregistered Sale Deed dated 22.06.1964 (Exhibit P1), which was alsosigned by the plaintiff along with two brothers and their father Nanjappa,the suit property in question, was sold in favour of Siddalingappa.DTherefore, Siddalingappa became the absolute owner and thereafter theplaintiff purchased the suit property from the above Siddalingappa underregistered Sale Deed dated 18.05.1973 (Exhibit P2). It is submittedtherefore, the plaintiff became the absolute owner of the suit propertyunder the registered Sale Deed dated 18.05.1973 (Exhibit P2).E

6.6 It is further submitted by learned Advocate appearing onbehalf of the contesting respondents that the registered Sale Deed dated22.06.1964 (Exhibit P1) cannot be said to be a nominal Sale Deed asheld by the High Court.

6.7 It is further submitted by Ms. K. V. Bharathi, learned AdvocateFappearing on behalf of the contesting respondents that in any case,nobody challenged either the registered Sale Deed dated 22.06.1964(Exhibit P1) or the subsequent registered Sale Deed dated 18.05.1973(Exhibit P2). It is submitted that none of the defendants challenged theaforesaid two registered Sale Deeds. It is submitted therefore, in absenceGof any challenge, in respect of the aforesaid Sale Deeds, more particularly,the Sale Deeddated 18.05.1973 (Exhibit P2) and considering Section 54of the Transfer of Property Act, the original plaintiff has become theabsolute owner pursuant to the registered Sale Deed(s).

6.8 It is further submitted by Ms. K. V. Bharathi, learned Advocateappearing on behalf of the contesting respondents that the so-calledH

Partition Deed dated 23.04.1971 (Exhibit D4) is rightly held to be notadmissible in evidence as the same was unregistered. It isfurthersubmitted that Exhibit D4 cannot be said to be a list of property partitioned.It is submitted that Exhibit D4 is a Partition Deed and therefore thesame was required to be registered. It is submitted that as the same wasunregistered, as rightly held by the High Court, the same was notadmissible in evidence. It is submitted, therefore, the High Court hasrightly not considered the so-called Partition Deed dated 23.04.1971(Exhibit D4).

6.9 It is further submitted by learned Advocate appearing onbehalf of the contesting respondents that even otherwise and in view ofthe earlier Sale Deed dated 22.06.1964 (Exhibit P1), by which the suitproperty was sold by the plaintiff along with his two brothers and hisfather Nanjappa in favour of Siddalingappa, at the time of alleged partitiondated 23.04.1971, the suit property was not available for partition. It issubmitted that therefore, even otherwise, at the time of so-called partitionon 23.04.1971,as the property was already sold, the same could not havebeen subjected to partition and therefore the Krishnappa could not haveacquired any interest in the suit property pursuant to the alleged PartitionDeed dated 23.04.1971.

6.10 Making above submissions it is prayed to dismiss the presentappeal.

7. Heard learned Advocates appearing on behalf of the respectiveparties at length.

7.1 At the outset, it is required to be noted that by the impugnedJudgment and Order, in a Second Appeal and in exercise of the powersunder Section 100 of the CPC, the High Court has set aside the findingsof facts recorded by both the Courts below. The learned Trial Courtdismissed the suit and the same came to be confirmed by the learnedFirst Appellate Court. While allowing the second appeal, the High Courtframed only one substantial question of law which reads as under :

“Whether the appellant is the owner and in possession of the suitland as he purchased it in the year 1973, that is, subsequent to thedate 23.4.1971 when Ex.D1 – Partition deed – Palupatti is allegedto have come into existence?”

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ANo other substantial question of law was framed. We are afraidthat the aforesaidcan be said to be a substantial question of law at all. Itcannot be disputed and even as per the law laid down by this Court inthe catena of decisions, the jurisdiction of the High Court to entertainSecond Appeal under Section 100 of the CPC after the 1976 amendment,is confined only with the Second Appeal involving a substantial questionBof law. The existence of ‘a substantial question of law’ is a sine quanon for the exercise of the jurisdiction under Section 100 of the CPC.

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7.2 As observed and held by this Court in the case of KondibaDagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722, in theSecond Appeal under Section 100 of the CPC, the High Court cannotCsubstitute its own opinion for that of the First Appellate Court, unless itfinds that the conclusionsdrawn by the lower Court were erroneousbeing :

(i) Contrary to the mandatory provisions of the applicable law;DOR

(ii) Contrary to the law as pronounced by the Apex Court;OR

(iii) Based on in-admissible evidence or no evidence.

EIt is further observed by this Court in the aforesaid decision that ifFirst Appellate Court has exercised its discretion in a judicial manner, itsdecision cannot be recorded as suffering from an error either of law orof procedure requiring interference in Second Appeal. It is furtherobserved that the Trial Court could have decided differently is not aquestion of law justifying interference in Second Appeal.F

7.3 When a substantial question of law can be said to have arisen,has been dealt with and considered by this Court in the case of IshwarDass Jain v. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision,this Court has specifically observed and held :

G “Under Section 100 CPC, after the 1976 amendment, it is essentialfor the High Court to formulate a substantial question of law andit is not permissible to reverse the judgment of the first appellatecourt without doing so. There are two situations in whichinterference with findings of fact is permissible. The first one is H

when material or relevant evidence is not considered which, ifconsidered, would have led to an opposite conclusion. The secondsituation in which interference with findings of fact is permissibleis where a finding has been arrived at by the appellate court byplacing reliance on inadmissible evidence which if it was omitted,an opposite conclusion was possible. In either of the abovesituations, a substantial question of law can arise.”

7.4 Considering the law laid down by this Court in the aforesaiddecisions and even considering Section 100 of the CPC, the substantialquestion of law framed by the High Court in the present case, as such,cannot be said to be a substantial question of law at all.

8. Having gone through the findings recorded by the Trial Courtas well as the First Appellate Court, it appears that both, the Trial Courtas well as the First Appellate Court, gave cogent reasons on appreciationof evidence on record, more particularly, the Sale Deed dated 22.06.1964(Exhibit P1), document dated 23.04.1971 (Exhibit D4) and subsequentSale Deed dated 18.05.1973 (Exhibit P2) and thereafter held that theplaintiff is not entitled to the declaration that he has become the owner.While interfering with the Judgment and Decree passed by both theCourts below, it appears that the High Court has again reappreciated theentire evidence on record, which in exercise of powers under Section100 of the CPC, is not permissible. Under the circumstances, the HighCourt has committed a grave/manifest error in quashing and setting asidethe findings recorded by both the Courts below, which were onappreciation of evidence on record. The High Court has exceeded in itsjurisdiction while exercising the powers under Section 100 of the CPC.

9. Even otherwise, on merits also, the impugned Judgment andOrder passed by the High Court allowing the appeal and consequentlydecreeing the suit, is not sustainable. It was the case on behalf of theoriginal plaintiff that the suit property was sold by registered Sale Deeddated 22.06.1964 (Exhibit P1) by the plaintiff, along with his two brothersand their father Nanjappa in favour of one Siddalingappa from whomthe plaintiff subsequently purchased the suit property under the registeredSale Deed dated 18.05.1973 (Exhibit P2). On the other hand, it wasspecific case on behalf of the defendants that the Sale Deed dated22.06.1964 was a nominal Sale Deed and was never acted upon and assuch was not to be acted upon at all. It was also the case on behalf of A

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Athe defendants that thereafter in the year 1971, the partition took placeand the same was reduced in writing by document dated 23.04.1971(Exhibit D4) and under the same document, it was recorded that the suitproperty had gone in favour of Krishnappa. Plaintiff denied that anypartition was reduced in writing, more particularly, in the form of ExhibitD4 dated 23.04.1971. The High Court has observed and held that inBview of the registered Sale Deed executed in favour of the plaintiff, theplaintiff has become the actual owner. The High Court has allowed theappeal and subsequently has decreed the suits mainly on the ground that :

(i) That the registered Sale Deed dated 22.06.1964 (Exhibit P1)Cwas an out and out Sale Deed and the same was not a nominal SaleDeed;

(ii) That the defendants have never challenged the registered SaleDeed dated 22.06.1964 (Exhibit P1) and even the subsequent registeredSale Deed dated 18.05.1973 (Exhibit P2).D

(iii) Exhibit D4-Partition Deed dated 23.04.1971 purports to conveyinterest in the immovable property in favour of Krishnappa and thattherefore the same was required to be registered and as such it was anunregistered document and therefore having regard to the provisions ofthe Registration Act, the same is not admissible in evidence and thereforeEthe same cannot be looked into.

9.1 Now so far as the registered Sale Deed (Exhibit P1) isconcerned,it is an admitted position that Krishnappa is not a signatory tothe said Sale Deed. Therefore, as such, the said Sale Deed does notbind Krishnappa. Even in the cross-examination, the original plaintiffFhas admitted that Exhibit P1 was not signed by Krishnappa. He has alsoadmitted that his other brothers Rangappa and Govindaiah also did notsign. From the entire evidence on record, it appears that the suit propertywas initially purchased by Krishnappa in the year 1948 and thereafter,due to some internal family problems with respect to said suit property, itGwas the Krishnappa who thrown the same property into the joint familyproperty in the year 1952 and Krishnappa executed the Sale Deed infavour of his father Nanjappa stating that it belongs to joint familyproperty. From the entire evidence on record, it appears that even theSale Deed (Exhibit P1) was not acted upon. Between 1964 to 1971,even the name of Siddalingappa was not mutated/recorded in the revenue H

record. Both the Courts below considered in detail the aforesaid aspectwhich has been upset by the High Court. It is required to be noted thateven in the cross-examination the original plaintiff was not sure aboutthe sale consideration received from Siddalingappa as a remuneration inview of the registered Sale Deed dated 22.06.1964 (Exhibit P1). Evenotherwise, even according to the plaintiff and even considering thematerial on record,as the suit land was a joint family property and/orwasin the name of Nanjappa, all the brothers had an equal share andtherefore the same could not have been sold by Nanjappa, plaintiff andother two brothers only and without consent of other brothers includingKrishnappa unless the property was partitioned. In the cross-examinationthe original plaintiff has specifically admitted that in the year 1965-66,when the father sold away the said suit schedule property, there was nopartition between the brothers at that time. In the circumstances, theregistered Sale Deed dated 22.06.1964 (Exhibit P1), by which the suitproperty was sold to Siddalingappa, cannot bind Krishnappa. It was aregistered Sale Deed which was not acted upon. Even the plaintiff andSiddalingappa tried to mutate the name of Siddalingappain the year1973,which was the subject matter of the Revenue Authority.

9.2 Now so far as the submission on behalf of the plaintiff that asthe registered Sale Deed dated 22.06.1964 (Exhibit P1)was notchallenged by the defendant by way of suit or even counter claim andtherefore thereafter it was not open for the defendants to challenge thesame is concerned, at the outset, it is required to be noted and as observedhereinabove, Krishnappa was not a signatory to the said document/SaleDeed and therefore it cannot bind him or his heirs.Even otherwise andas held by this Court in the case of Vidhyadhar (supra), in a suit filed bythe plaintiff for a declaration on the basis of the registered Sale Deed, itis always open for the defendant, who is a stranger to the Sale Deed, toraise a plea that the Sale Deed was void, fictitious, collusive or notintended to be acted upon and or not binding to him. In the aforesaiddecision, it is observed and held by this Court that a person, in his capacityas a defendant, can raise any legitimate plea available to him under thelaw to defeat the suit of the plaintiff. In paragraph 21 this Court hasobserved and held as under :

“21. The above decisions appear to be based on the principle thata person in his capacity as a defendant can raise any legitimateplea available to him under law to defeat the suit of the plaintiff.

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AThis would also include the plea that the sale deed by which thetitle to the property was intended to be conveyed to the plaintiffwas void or fictitious or, for that matter, collusive and not intendedto be acted upon. Thus, the whole question would depend uponthe pleadings of the parties, the nature of the suit, the nature ofthe deed, the evidence led by the parties in the suit and otherBattending circumstances. For example, in a landlord-tenant matterwhere the landlord is possessed of many properties and cannotpossibly seek eviction of his tenant for bona fide need from one ofthe properties, the landlord may ostensibly transfer that propertyto a person who is not possessed of any other property so thatCthat person, namely, the transferee, may institute evictionproceedings on the ground of his genuine need and thus evict thetenant who could not have been otherwise evicted. In this situation,the deed by which the property was intended to be transferred,would be a collusive deed representing a sham transaction whichwas never intended to be acted upon. It would be open to theDtenant in his capacity as a defendant to assert, plead and provethat the deed was fictitious and collusive in nature. We, therefore,cannot subscribe to the view expressed by the Privy Council inthe case of Lal Achal Ram [(1905) 32 IA 113 : ILR 27 All 271] inthe broad terms in which it is expressed but do approve the lawElaid down by the Calcutta, Patna and Orissa High Courts as pointedout above.”

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Therefore, in the facts and circumstances of the case, we are ofthe opinion that without even challenging the Sale Deed (Exhibit P1) byway of behalf of independent proceedings, in a suit filed by the plaintiffseeking a declaration that he has become the owner pursuant to theregistered Sale Deed, it is always open for the defendant, who is strangerto the Sale Deed, to raise a plea that either the Sale Deed is not bindingto him or the same was without consideration or it was a nominal SaleDeed or void or fictitious, for that matter, collusive and not intended tobe acted upon.

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9.3 Now so far as the finding recorded by the High Court that asthe Partition Deed dated 23.04.1971 (Exhibit D4) was unregistered thoughrequired registration under the Provisions of the Registration Act andtherefore the same is not admissible in evidence is concerned, it is required H

to be noted that as such Exhibit D4 can be said to be a Palupatti as hasbeen described as Palupatti. Palupatti means list of properties partitioned.At the most, it can be said to be a family arrangement. Therefore, in thefacts and circumstances of the case, the same was not required to beregistered.

9.4 It is required to be noted that the deed dated 23.04.1971, underwhich the suit property had gone /devolved in favour of the Krishnappa,was reduced in writing before the Panchayat and Panchas, and the samewas signed by the village people/panchayat people and all the membersof the family including even the plaintiff. Though the plaintiff disputedthat the partition was not reduced in writing in the form of documentExhibit D4, on considering the entire evidence on record and even thedeposition of plaintiff (cross-examination), he has specifically admittedthat the oral partition had taken place in the year 1971. He has alsoadmitted that he has got the share which tellies with the document dated23.04.1971(ExhibitD4). Execution of the document/ Partition Deed/Palupatta dated 23.04.1971 has been established and proved by examiningdifferent witnesses. The High Court has refused to look into the saiddocument and/or consider document dated 23.04.1971 (Exhibit D4) solelyon the ground that it requires registration and therefore as it is unregistered,the same cannot be looked into. However, as observed by this Court inthe case of Kale (Supra) that such a family settlement, though notregistered, would operate as a complete estoppel against the parties tosuch a family settlement. In the aforesaid decision, this Court consideredits earlier decision in the case of S.Shanmugam Pillai and Others v. K.Shanmugam Pillai and Others (1973) 2 SCC 312 in which it wasobserved as under:

“13. Equitable, principles such as estoppel, election, familysettlement, etc. are not mere technical rules of evidence.Theyhave an important purpose to serve in the administration of justice.The ultimate aim of the law is to secure justice. In the recenttimes in order to render justice between the parties, courts havebeen liberally relying on those principles.We would hesitate tonarrow down their scope.

As observed by this Court in T.V.R. Subbu Chetty’s FamilyCharities case, that if a person having full knowledge of his right as apossible reversioner enters into a transaction which settles his claim as A

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Awell as the claim of the opponents at the relevant time, he cannot bepermitted to go back on that agreement when reversion actually fallsopen.”

9.5 As held by this Court in the case of Subraya M.N. (Supra)even without registration a written document of family settlement/familyBarrangement can be used as corroborative evidence as explaining thearrangement made thereunder and conduct of the parties. In the presentcase, as observed hereinabove, even the plaintiff has also categoricallyadmitted that the oral partition had taken place on 23.04.1971 and healso admitted that 3 to 4 punchayat people were also present. However,according to him, the same was not reduced in writing. Therefore, evenCaccepting the case of plaintiff that there was an oral partition on23.04.1971, the document Exhibit D4 dated 23.04.1971, to which he isalso the signatory and all other family members are signatory, can besaid to be a list of properties partitioned. Everybody got right/share asper the oral partition/partition. Therefore, the same even can be used asDcorroborative evidence as explaining the arrangement made thereunderand conduct of the parties. Therefore, in the facts and circumstances ofthe case, the High Court has committed a grave/manifest error in notlooking into and/or not considering the document Exhibit D4 dated23.04.1971.

E9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2) executedby Siddalingappa in favour of the plaintiff is concerned, as there was acategorically finding by both the Courts below that the same documentwas sham. It is required to be noted that in the cross-examination, theplaintiff has stated that he paidRs. 3000 to 4000 to Siddalingappa and thesaid property was purchased by him in the year 1973. However, in theFdocument, the sale consideration is stated to be Rs.200/-. Even PW2Siddalingappa has stated that he purchased the suit schedule propertyfor Rs.200/- and he sold the suit schedule property to the plaintiff forRs.600/- Therefore, it is a serious dispute with respect to considerationpaid by the plaintiff and received by the Siddalingappa.G

10. In the aforesaid facts and circumstances of the case, the HighCourt was not justified in interfering with the findings recorded by boththe Courts below. For the reasons stated above, the impugned Judgmentand Order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and is accordingly quashed and setaside. The Judgment and Order passed by both the Courts belowdismissing the suit, are hereby restored and consequently the suit filedby the original plaintiff is dismissed. No costs.

Devika Gujral

Appeal disposed of.

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