Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO................OF 2018
(ARISING OUT OF SLP(C)NO.11067 OF 2017)
SITA RAM BHAMA … PETITIONER
VERSUS
RAMVATAR BHAMA … RESPONDENT
J U D G M E N T
ASHOK BHUSHAN, J.
The appellant, who was plaintiff in Civil Suit No.4 of
2011, has filed this appeal questioning the judgment of the
High Court of Judicature for Rajasthan at Jodhpur dated
23.01.2017 by which writ petition filed by the appellant
against the order dated 03.03.2015 of the Additional District
Judge has been dismissed.
2. Brief facts of the case which are necessary to be noted
for deciding this appeal are:
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2018.03.24
12:51:51 IST
Reason:
We shall refer the parties as described in the plaint.
Plaintiff and respondent are real brothers being sons of late
2
Devi Dutt Ji Verma. Plaintiff's case is that his father Devi
Dutt Verma on 25.10.1992 decided to divide his selfacquired
movable and immovable properties between plaintiff and
defendant. The late father, however, did not execute any
settlement deed. Devi Dutt Verma died on 10.09.1993 and
thereafter on 09.09.1994 plaintiff and defendant recorded a
memorandum of settlement as decided by their father regarding
his selfacquired properties. The memorandum of settlement was
signed by mother of the parties as well two sisters had signed
as witnesses. According to memorandum of settlement both
residential house as well as shop in the Aguna Bazar were
distributed as decided by their late father.
3. A Civil Suit No.5 of 2010 was filed by the plaintiff
praying for partition of the residential house as well as the
shop. In the suit an application under Order VII Rule 11 of
the Civil Procedure Code was filed by the defendant, Ramvatar
Bhama taking the plea that on 25.10.1992 during the life time
of Shri Devi Dutt Verma, the father of the plaintiff and
defendant, had partitioned the house and the shop. Southern
portion of the house came in the share of the plaintiff and
northern part came in the share of the defendant. In
confirmation of the earlier partition dated 25.10.1992 the
3
family settlement dated 09.09.1994 was executed which was
signed by the plaintiff and defendant along with both the
sisters as well as mother. It was pleaded by the defendant,
in view of the aforesaid, that there was no cause of action
for the plaintiff to file a partition suit. Defendant prayed
that suit of the plaintiff is liable to be dismissed.
4. The trial court vide its order dated 19.01.2011 allowed
the application filed by the defendant under Order VII Rule 11
CPC and dismissed the suit for want of cause of action in
favour of the plaintiff. The civil court accepted the case of
the defendant that the parties which were in joint family have
been divided, there being nothing joint between the parties,
there is no cause of action for the plaintiff for filing the
suit for partition. The relief for permanent injunction was
also held to be related to the partition.
5. Another Civil Suit No.4 of 2011 was filed by the
plaintiff claiming that after dismissal of the earlier suit of
the plaintiff on 19.01.2011, defendant broke open the lock of
the house and took possession of the house. Plaintiff prayed
for decree of possession against the defendant as well as
decree of permanent injunction. Plaintiff also sought for
4
mesne profit and expenses.
6. In the suit, plaintiff has filed the document dated
09.09.1994 evidencing family settlement which was claimed by
the plaintiff as memorandum of settlement. An application
under Order XIII Rule 3 CPC and Article 45 and Section 35 of
the Indian Stamp Act and Sections 17 and 49 of the Indian
Registration Act, was filed by the defendant claiming that
document dated 09.09.1994 being not a registered document and
being not properly stamped is not admissible in evidence, same
may be rejected. The application was replied by the plaintiff.
The trial court vide its order dated 03.03.2015 allowed the
application of the defendant holding that the document dated
09.09.1994 is a family settlement deed and a relinquishment
document which is not admissible as evidence being
inadequately stamped and not being registered. Against the
said order dated 03.03.2015 writ petition was filed by the
plaintiff which was dismissed by the High Court upholding the
order of the trial court. The High Court also took the view
that so called family settlement takes away the share of the
sisters and mother, therefore, the same was compulsorily
registrable. Aggrieved by the said order, the plaintiff has
come up in this appeal.
5
7. Shri Ajit Kumar Sinha, learned senior counsel, appearing
for the appellant submits that document dated 09.09.1994 is
only a memorandum of partition which took place on 25.10.1992
when father of the parties had partitioned the house and the
shop. The memorandum of family settlement is not compulsorily
registrable. The document itself being not a family settlement
rather only a memorandum ought to have been accepted by the
trial court. He further submits that in the earlier suit filed
by the plaintiff being Suit No.5 of 2010, the suit was
dismissed under Order VII Rule 11 CPC on the plea of the
defendant that the partition has already taken place between
the parties as claimed by the plaintiff, hence, no cause of
action has arisen for filing a suit for partition. He submits
that partition effected by the father of the parties on
25.10.1992 which was subsequently recorded on 09.09.1994
having already been accepted, it is not open for trial court
to reject the document dated 09.09.1994 for being taken in
evidence. It is submitted that by order of the court below the
plaintiff has become remedyless.
8. Learned counsel for the respondent refuting the
submission of the learned counsel for the appellant contends
that the trial court as well as the High Court has rightly
6
come to the conclusion that document dated 09.09.1994 was
compulsorily registrable. It being neither registered nor duly
stamped has rightly been rejected by the trial court from
being taken in evidence. He submits that the High Court has
rightly dismissed the writ petition filed by the plaintiff.
9. We have considered the submissions of the parties and
perused the records.
10. The only question which needs to be considered in the
present case is as to whether document dated 09.09.1994 could
have been accepted by the trial court in evidence or trial
court has rightly held the said document inadmissible. The
plaintiff claimed the document dated 09.09.1994 as memorandum
of family settlement. Plaintiff's case is that earlier
partition took place in the life time of the father of the
parties on 25.10.1992 which was recorded as memorandum of
family settlement on 09.09.1994. There are more than one
reasons due to which we are of the view that the document
dated 09.09.1994 was not mere memorandum of family settlement
rather a family settlement itself. Firstly, on 25.10.1992, the
father of the parties was himself owner of both, the residence
and shop being selfacquired properties of Devi Dutt Verma.
The High Court has rightly held that the said document cannot
be said to be a Will, so that father could have made Will in
7
favour of his two sons, plaintiff and defendant. Neither the
plaintiff nor defendant had any share in the property on the
day when it is said to have been partitioned by Devi Dutt
Verma. Devi Dutt Verma died on 10.09.1993. After his death
plaintiff, defendant and their mother as well as sisters
become the legal heirs under Hindu Succession Act, 1955
inheriting the property being a class I heir. The document
dated 09.09.1994 divided the entire property between plaintiff
and defendant which document is also claimed to be signed by
their mother as well as the sisters. In any view of the
matter, there is relinquishment of the rights of other heirs
of the properties, hence, courts below are right in their
conclusion that there being relinquishment, the document dated
09.09.1994 was compulsorily registrable under Section 17 of
the Registration Act.
11. Pertaining to family settlement, a memorandum of family
settlement and its necessity of registration, the law has been
settled by this Court. It is sufficient to refer to the
judgment of this Court in Kale and others vs. Deputy Director
of Consolidation and others, (1976) 3 SCC 119. T he
propositions with regard to family settlement, its
registration were laid down by this Court in paragraphs 10 and
11:
8
“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 17(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
9
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.”
12. We are, thus, in full agreement with the view taken by
the trial court as well as the High Court that the document
dated 09.09.1994 was compulsorily registrable. The document
also being not stamped could not have been accepted in
evidence and order of trial court allowing the application
under Order XII Rule 3 CPC and the reasons given by the trial
court in allowing the application of the defendant holding
the document as inadmissible cannot be faulted.
13. There is only one aspect of the matter which needs
consideration, i.e., whether the document dated 09.09.1994
which was inadmissible in evidence could have been used for
any collateral purpose. In a suit for partition, an
unregistered document can be relied upon for collateral
purpose i.e. severancy of title, nature of possession of
10
various shares but not for the primary purpose i.e. division
of joint properties by metes and bounds. Further, an unstamped
instrument is not admissible in evidence even for collateral
purpose, until the same is impounded. A twoJudge Bench
judgment of this Court in Yellapu Uma Maheswari and another
is
vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787,
appropriate. In the above case also admissibility of documents
Ext. B21 dated 05.06.1975 a deed of memorandum and Ext. B22
dated 04.06.1975 being an agreement between one late
Mahalakshamma, respondent No.1plaintiff and appellant
No.1defendant came for consideration. Objection was taken
regarding admissibility which was upheld both by the High
Court and trial court. Matter was taken up by this Court. In
the above case, this Court held 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. This Court after
considering both the documents, B21 and B22 held that they
require registration. In paragraph 15 following was 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
11
set up by the party who seeks to introduce the
document in question. A thorough reading of
both Exts. B21 and B22 makes it very clear
that there is relinquishment of right in
respect of immovable property through a
document which is compulsorily registrable
document and if the same is not registered, it
becomes an inadmissible document as envisaged
under Section 49 of the Registration Act.
Hence, Exts. B21 and B22 are the documents
which squarely fall within the ambit of Section
17(1)(b) of the Registration Act and hence are
compulsorily registrable documents and the same
are inadmissible in evidence for the purpose of
proving the factum of partition between the
parties. We are of the considered opinion that
Exts. B21 and B22 are not admissible in
evidence for the purpose of proving primary
purpose of partition.”
14. After holding the said documents as inadmissible, this
Court further proceeded to consider the question as to whether
the documents B21 and B22 can be used for any collateral
purpose. In the above context the Court accepted the
submission of the appellant that the documents can be looked
into for collateral purpose provided appellantdefendant to
pay the stamp duty together with penalty and get the document
impounded. In paragraphs 16 and 17 following has been laid
down:
“16. Then the next question that falls for
consideration is whether these can be used for
any collateral purpose. The larger Bench of the
Andhra Pradesh High Court in Chinnappareddigari
Peda Mutyala Reddy v. Chinnappareddigari
(AIR 1969 AP 242)
Venkata Reddy has held that
12
the whole process of partition contemplates
three phases i.e. severancy of status, division
of joint property by metes and bounds and
nature of possession of various shares. In a
suit for partition, an unregistered document
can be relied upon for collateral purpose i.e.
severancy of title, nature of possession of
various shares but not for the primary purpose
i.e. division of joint properties by metes and
bounds. An unstamped instrument is not
admissible in evidence even for collateral
purpose, until the same is impounded. Hence, if
the appellantdefendant want to mark these
documents for collateral purpose it is open for
them to pay the stamp duty together with
penalty and get the document impounded and the
trial court is at liberty to mark Exts. B21
and B22 for collateral purpose subject to
proof and relevance.
17. Accordingly, the civil appeal is partly
allowed holding that Exts. B21 and B22 are
admissible in evidence for collateral purpose
subject to payment of stamp duty, penalty,
proof and relevancy.”
15. Following the law laid down by this Court in the above
case, we are of the opinion that document dated 09.09.1994 may
be admissible in evidence for collateral purpose provided the
appellant get the document impounded and to pay the stamp duty
together with penalty as has been directed in the above case.
16. In the result, this appeal is partly allowed in the
following manner:
The order of the trial court as well as the High Court
holding that the document dated 09.09.1994 required
13
compulsory registration is upheld. Following the aforesaid
view of this Court in Yellapu Uma Maheswari (supra), this
appeal is partly allowed holding that deed dated 09.09.1994 is
admissible in evidence for collateral purpose subject to
payment of stamp duty and penalty.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 23, 2018.