AI Structured Summary
Not yet generated for this judgment
Judgment
Venuthurumalli Gopala Krishna Rao, J
This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 29.04.2011 in A.S.No.184 of 2006, on the file of the I Additional District Judge, East Godavari at Rajahmundry (“First Appellate Court” for short) reversing the Judgment and decree, dated 07.07.2006 in O.S.No.214 of 1986, on the file of the I Additional Senior Civil Judge, Rajahmundry (“Trial Court” for short).
The appellant herein is the 1st plaintiff and the respondents 1 to 4, 9&10, 5 to 8 herein are the defendants 2 to 11 respectively in O.S.No.214 of 1986.
The plaintiffs initiated action in O.S.No.214 of 1986, on the file of the I Additional Senior Civil Judge, Rajahmundry, with a prayer for partition of the plaint schedule immovable property into 3 equal shares according to bad and good qualities and for allotment of separate possession of one such share to the plaintiffs together with costs and other incidental reliefs.
The learned trial Judge decreed the suit preliminarily. Felt aggrieved of the same, the unsuccessful defendants 2 to 5 & 8 to 11 in the above said suit filed appeal suit before the First Appellate Court. The learned First Appellate Judge allowed the appeal setting aside the decree and judgment passed by the learned trial Judge. Aggrieved thereby, the 1st plaintiff approached this Court by way of second appeal.
For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.
The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.214 of 1986, is as follows:
(i) Originally the plaint schedule property is situated in D.No.9-16-5 (old D.No.6/152) which is an upstairs building in Appanavari Lane, Gunduvari Street, Rajahmundry belonged to one late Appana Subrahmanyam and he had got five sons viz., Subbarao, Veerabhadra Rao, Perraju, Rangarao and Satyanarayana Rao.The eldest son Subbarao went out of the family, separated himself and relinquished his rights in or about the year 1962 and subsequently, he died. The second son Veerabhadrarao died in or about the year 1942 leaving behind him, his wife Chandravathi, who settled her claim for maintenance once for all and went out of the family. So, the other three sons of late Subrahmanyam continued as co-owners in the plaint schedule house property living separately indifferent undivided portions according to convenience without specification and partition of the plaint schedule property. Defendants 6 and 7 are the children of Perraju. Rangarao is the 1st defendant and defendants 2 to 5 are his sons and defendants 8 to 11 are his daughters. The 1st plaintiff is the son and 2nd plaintiff is wife of Satyanarayana Rao, who is youngest son of late Appana Subrahmanyam.Thus, three sons had got 1/3rd share each in the said house. Perraju died in or about the year 1978 and after his death the defendants 6 and 7 became entitled to his share.
(ii) The 1st plaintiff is working as Typist in Government Junior College, Sitanagaram and his mother 2nd plaintiff has been permanently staying in the portion in her occupation in the schedule house and the 1st plaintiff visits her quite often. The 1st defendant, who is enjoying a major portion more than 2/3rd by himself and through his sons and tenants are trying his utmost to evict the plaintiffs by hook or crook from that house. The 1st defendant used to harass the plaintiffs, abusing them and using violence against them and was threatening to evict them forcibly. The 2nd plaintiff gave a telegraphic notice on 03.02.1985 to the 1st defendant warning him against such attempts and calling upon him to refrain from such acts of lawlessness. He gave a belated reply of abandonment. The plaintiffs issued a rejoinder notice on 15.04.1985 stating that the contents of reply notice are false and that 2nd plaintiff has been living in the family house. The house consists of six rooms in the ground floor, five rooms in the first floor and one room in the 2nd floor besides 2 + 2 halls and outhouse in the northern side with one godown, one room in the ground floor and one room in the upstairs. The plaintiffs are in possession and enjoyment of two rooms in the ground floor, two rooms in the 1st floor and one room in the outhouse. The halls are in common enjoyment apart from vasaras and verandahs. The defendant Nos.1 to 5 were forcibly occupying the common halls by putting commercial goods and samans and harassing the plaintiffs which they could not bear it.
(iii) In 1967 the 1st defendant and father of defendant Nos.6 and 7, who was then a tool in the hands of 1st defendant gave a police complaint against the 1st plaintiff and his father with untrue allegations. A case in CC No.17/1967 was filed on the file of I Additional Judicial Magistrate of First Class, Rajahmundry but it was dismissed on merits on contest on 09.05.1967 observing that the 1st defendant herein, who was examined as P.W.1 therein, had begun trying to get a share of the father of 1st plaintiff in the plaint schedule property.
During the pendency of the suit, the 2nd plaintiff died and her only son who is 1st plaintiff has been recognized as the legal representative of the deceased 2nd plaintiff.
The defendant Nos.1 to 5 filed common written statement before the trial Court denying the material averments made in the plaint. The brief averments in the written statement are as follows:
The first son of late Appana Subrahmanyam viz., Subbarao died in the year 1960 and his only son Subrahmaneswara Rao relinquished his rights in the plaint schedule house property under a registered relinquishment deed in the year 1964 and so, the share of Subbarao became extinct. The other three sons of Subrahmanyam, who are the 1st defendant; Perraju, who is the father of defendant Nos.6 and 7 and Satyanarayana Rao, who is the father of 1st plaintiff and husband of 2nd plaintiff, divided the joint family properties movable and immovable on 06.02.1972 by duly executing among themselves a list of partition on the said date which is binding on the plaintiffs and defendant Nos.6 and 7 and it was acted upon since 06.02.1972, that document was executed in triplicate each being the original of the other and each of those three sons were provided one set of that document. As per that partition, the defendant Nos.1 to 5 are the absolute owners of the plaint schedule property and they are in exclusive possession and enjoyment of the same. The plaint schedule house was valued at Rs.60,000/- as on the date of partition. Since the plaint schedule property was incapable of partition into three equal shares and the house therein was an old construction, it was specifically agreed to give that house to the share of the 1st defendant. Perraju and Satyanarana Rao took movables, family gold, silver ware and furniture valued at Rs.40,000/- into two equal shares and thereby they got the movable property worth of Rs.20,000/- each. Further the 1st defendant paid Rs.10,000/- each to both of them in view of their 1/3rd share each in the plaint schedule property. The 1st defendant had discharged the debts of the joint family business as per the terms of the partition list, dated 06.02.1972. Since then, the 1st defendant continued to live in the schedule property in his own right as absolute owner with his family members paying house tax, water tax, electricity charges and other charges payable in respect of the plaint schedule property. The 1st plaintiff is working in Government Junior College, Sitanagaram and constructed a house and living therein with his family. He neglected to look after his mother, who is the 2nd plaintiff, since her husband died and the 1st plaintiff abandoned her, she requested the defendant Nos.1 to 5 to allow her to live with them and the 1st defendant took pity on her and allowed her to live in the plaint schedule house along with them. The defendant Nos.1 to 5 are looking after her needs keeping their family position and reputation. The plaintiffs and defendant Nos.6 and 7 knew about the said partition on 06.02.1972 and they have got no right or share in the schedule property.
During the pendency of the suit, the 1st defendant died and so defendants 2 to 5 who are his sons have been recognized as his legal representatives apart from the defendant Nos.8 and 9 who are his daughters who have been brought on record.
The 6th defendant filed written statement before the trial Court denying the material averments made in the plaint. The brief averments in the written statement are as follows:
The defendant Nos.6 and 7 together are entitled to 1/3rd share in the plaint schedule property and that the alleged partition deed, dated 06.02.1972 is rank forged one and fabricated with forged signatures and it being an unregistered document not admissible in evidence.
The 7th defendant filed written statement before the trial Court denying the material averments made in the plaint. The brief averments in the written statement are as follows:
She is entitled to ½ share in the 1/3rd share belonging to her father viz., Perraju in the plaint schedule property and she has no objection for passing a preliminary decree as prayed for in the plaint.
The defendant Nos.8 and 9 filed written statement before the trial Court denying the material averments made in the plaint and the same was adopted by the defendant Nos.10 and 11. The brief averments in the written statement are as follows:
The 1st defendant had executed a Will on 23.10.1994 in a sound and disposing state of mind and died on 09.12.1994. The schedule property exclusively belonged to him and his sons, who are defendant Nos.2 to 5. The 1st defendant had got 1/5th share therein. By virtue of the Will executed by 1st defendant, defendant Nos.2 to 5 and 8 to 11 became entitled to the undivided 1/5th share in the schedule house. The defendant Nos.8 to 11 have claimed 1/8th share each out of 1/5th share of the deceased 1st defendant in the plaint schedule property.
On the basis of above pleadings, the learned trial Judge framed the following issues for trial:
(1) Whether the plaintiffs and defendant Nos.6 and 7 have no rights or share in the plaint schedule property as pleaded by defendant Nos.1 to 5?
(2) Whether the plaintiffs are not entitled to partition and separate possession of 1/3rd share?
(3) Whether the partition list, dated 06.02.1972 between 1st defendant, late Perraju and 1st plaintiff’s father Satyanarayana Rao is true, valid and binding on plaintiffs and whether it was given effect to?
(4) Whether the alleged partition list is true, valid and enforceable under law?
(5) Whether 1st defendant is the absolute owner of the plaint schedule property?
(6) Whether 2nd plaintiff is living in the plaint schedule house at the courtesy and permission of1st defendant or in her own right as a sharer?
(7) Whether the plaintiffs are in possession and enjoyment of specific partition of two rooms in ground floor and two rooms in 1st floor as contended by the plaintiffs?
(8) Whether the valuation and court fee paid are incorrect?
(9) To what relief?
The trial Court further framed the following additional issue:
Whether the Will, dated 29.10.1994 is true?
During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 to P.W.5 were examined and Exs.A.1 to A.24, Ex.X1 and Ex.X2 were marked. On behalf of the defendants, D.W.1 to D.W.5were examined and Ex.B.1 to Ex.B.7 were marked.
The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit preliminarily. Felt aggrieved thereby, the unsuccessful defendant Nos.2 to 5 and 8 to 11 filed the appeal suit in A.S.No.184 of 2006wherein, the following points came up for consideration:
(1) Whether there is a division in status as between the 1st defendant Ranga Rao and his two brothers of the co-parceners and the properties were divided by metes and bounds and the 1st defendant is in possession of the suit schedule property?
(2) Whether the father of plaintiff Satyanarayana Rao, 1st defendant and their brother Perraju, father of defendant Nos.6 and 7 were living in different undivided portions in the schedule house without specification till the death of Perraju in 1978 and thereafter the 6th defendant is lived in the portion of Perraju?
(3) Whether the list of partition, dated 06.02.1972 is true and binding on the plaintiffs and defendant Nos.6 and 7?
(4) Whether the plaintiffs are entitled for partition of the plaint schedule property?
The learned First Appellate Judge after hearing the arguments, answered the points, as above, against the 1st plaintiff and allowed the appeal setting aside the decree and judgment passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful 1st plaintiff in O.S.No.214 of 1986 filed the present second appeal before this Court.
On hearing both sides counsel at the time of admission of the appeal, on 04.06.2019, this Court framed the following substantial questions of law:
(1) Whether the First Appellate Court was correct in holding that the admissibility of Ex.B2 cannot be questioned as the said document was received in evidence in the trial Court without any objection?
(2) Whether the document Ex.B2 requires registration or not?
(3) Whether the interpretation of the Court of Ex.B2 and its contents is perverse and is opposite to law?
(4) Whether the First Appellate Court failed to see that the lack of registration of a document is not a curable defect unlike deficit stamp duty which can be paid and thus cured?
(5) Whether the First Appellate Court was right in comparing the signatures of Ex.B2 with other documents by itself?
(6) Whether it has failed to notice that the signatures which are being compared are not contemporaneous?
(7) Whether the judgment and decree passed by the First Appellate Court is perverse and contrary to law?
Heard Sri A. Radhakrishna, learned counsel for the appellant and heard Sri O. Manohar Reddy, learned Senior Counsel, on behalf of O.M.R. Law firm, appearing for respondent Nos.2 to 5 and 8 to 11.
The law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
In a case of Bhagwan Sharma v. Bani Ghosh AIR 1993 SC 398, the Apex Court held as follows:
“The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.”
In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar AIR 1999 SC 471, the Apex Court held as follows:
“The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.”
18.The undisputed facts of both parties are originally the plaint schedule property, which is situated in D.No.9-16-5 is an upstairs building in Appanavari Lane, Gunduvari Street, Rajahmundry belongs to one late Appana Subrahmanyam and he had got five sons viz., Subbarao, Veerabhadra Rao, Perraju, Rangarao and Satyanarayana Rao. The plaintiffs further pleaded the eldest son Subbarao went out of the family, separated himself and relinquished his rights in or about the year 1962 and subsequently, he died. The second son Veerabhadra Rao died in or about the year 1942 leaving behind him, his wife Chandravathi, who settled her claim for maintenance once for all and went out of the family. The plaintiffs further pleaded the three sons of late Subrahmanyam continued as co-owners in the plaint schedule house property living separately indifferent undivided portions according to convenience without specification and partition of the plaint schedule property. Defendants 6 and 7 are the children of Perraju. Rangarao is the 1st defendant herein and defendants 2 to 5 are his sons and defendants 8 to 11 are his daughters and the 1st plaintiff is the son and 2nd plaintiff is wife of Satyanarayana Rao. It was contended by the defendant Nos.1 to 5 that there was a partition in between three brothers viz., Appana Perraju, Appana Ranga Rao and Appana Satyanarayana Rao and a partition list was prepared on 06.02.1972 and by virtue of that partition list, dated 06.02.1972, father of defendant Nos.2 to 5 and 8 to 11 has got right and title in the plaint schedule and Satyanarayana Rao died and son and wife of Satyanarayana Rao filed a suit for partition against the defendants.
The plaintiffs are disputing Ex.B2 partition deed. The executants of alleged Ex.B2 i.e., three brothers died and they are no more. The father of 1st defendant i.e., Ranga Rao died during the pendency of the suit, Perraju and Satyanarayana Rao died even prior to filing of the suit and two attestors are no more. The only witness to Ex.B2 available is scribe i.e., D.W.2. Since the plaintiffs are disputing Ex.B2 and the contention of the appellant/plaintiff is that Ex.B2 is fabricated document, father of 1st plaintiff and husband of 2nd plaintiff viz., Satyanarayana Rao did not sign on Ex.B2 and it is a created document.
The recitals in Ex.B2 alleged partition list goes to show on 06.02.1972 the three brothers Perraju, Ranga Rao and Satyanarayana Rao executed Ex.B2, it was named as partition list, by virtue of the alleged Ex.B2 document, the 1st defendant got suit schedule building, D.No.6/152 of Rajahmundry and other two brothers got movable properties worth about Rs.20,000/- each and in addition to the aforesaid movable properties, the 1st defendant had given cash of Rs.10,000/- each to two brothers viz., Satyanarayana Rao and Perraju.
As stated supra, attestors and three brothers, who are the executants of alleged Ex.B.2 are no more. The only person who witnessed the alleged partition under Ex.B.2 available is D.W.2. According to 2nd defendant, he was aged about 16 or 17 years by the date of alleged Ex.B.2, therefore, his evidence is no way helpful to prove the genuineness of Ex.B.2. Therefore, the evidence of D.W.2 has to be scrutinized with due care and caution. D.W.2 deposed in his evidence in chief examination itself on oath he is a licensed document writer. He knows 1st defendant, Perraju and Satyanarayana and they approached him for preparing a document and he is the scribe of Ex.B.2. He further deposed that the brothers agreed for partition and he has written Ex.B.2 and Ex.B.2 was prepared in the schedule house property. He admitted in his evidence in cross examination itself that by the date of alleged Ex.B.2, he used to reside at Jonnada village and he has no residence at Rajahmundry and he is residing at Rajahmundry since 1972 i.e., after six years from the date of alleged Ex.B.2 and he had no prior acquaintance with three brothers who are the alleged executants in Ex.B.2 and he had no prior acquaintance with the attestors prior to Ex.B.2 and all the three brothers came there and requested to write Ex.B.2 and they disclosed their names and signed in Ex.B.2 and he believed that they are the same persons.
The evidence of D.W.2 goes to show that he is native of Jonnada village which is situated at a distance of more than 25 kms. from Rajahmundry and he is utter stranger to both the parties, Rajahmundry is a town in those days in the year 1972 and there was a Sub-Registrar Office located at Rajahmundry and several document writers are available at Rajahmundry. Moreover, the three brothers are not laymen and they used to do business in those days, therefore, securing the document writers at Rajahmundry town is not a big task for them. It is the specific case of D.W.2 that Ex.B.2 is written in the schedule house at Rajahmundry, in such a case, it is not a much difficulty to secure document writers at Rajahmundry. In the written statement itself the defendant Nos.1 to 5 pleaded that it was specifically agreed to give the schedule house to the share of 1st defendant and the 1st plaintiff’s father and father of 6th defendant have taken movable properties like family gold, silver ware and furniture valued at Rs.40,000/- with two equal shares viz., father of the 1st plaintiff and father of 6th defendant, they got movable properties worth Rs.20,000/- each and further 1st defendant paid Rs.10,000/- by way of cash to each of them in lieu of their 1/3rd share each and for leaving the schedule house property exclusively to the share of 1st defendant valued at Rs.60,000/-. But, according to D.W.2, the two brothers have received cash of Rs.10,000/-each in his presence at the time of Ex.B.2 and other properties were not actually partitioned in his presence. For the aforesaid reasons, the presence of D.W.2 at the time of alleged Ex.B2 is highly doubtful.
D.W.3 is the father-in-law of second attestor to Ex.B.2. As per his evidence, Kasturi Manikyarao is his father-in-law and he can identify the writings and signatures of his father-in-law. Ex.B.2 contains the signatures of his father-in-law and his father-in-law died in the month of April, 1992. In cross examination, he admits that he has seen the writing of his father-in-law in the month of January,1982 and his father-in-law introduced the 1st defendant to him in the year 1982 at the time of his marriage and he does not know the contents of Ex.B.2. As per his own evidence, he married the daughter of first attestor of Ex.B.2 by name Manikyarao in the year 1982. Moreover, Ex.B.2 was written on 06.02.1972 and he has no personal knowledge about the contents and he has seen Ex.B.2 on 28.01.1997 on the date of giving evidence. D.W.3 is not an attestor or scribe at best he can identify the signatures of his father-in-law in the alleged Ex.B.2 document. Furthermore, his father-in-law is not a scribe, he is only an attestor to alleged Ex.B.2 document. It clearly goes to show D.W.3 is not having any personal knowledge about Ex.B.2.
The other important circumstance to doubt the genuineness of Ex.B.2 is the 2nd plaintiff got issued a telegraphic notice under Ex.A.1 to the 1st defendant on 03.02.1985, the same is undisputed by the defendant Nos.1 to 5. The recitals in Ex.A.1 telegraphic notice are 1st defendant and his sons are unlawfully interfering with the possession of the 2nd plaintiff in respect of her 1/3rd share in the schedule property building and they are threatening to forcibly evict her and her family members. The recitals in Ex.A.1 goes to show by the date of 03.02.1985 they are in possession of their 1/3rd share in the plaint schedule property. Ex.A.2 is reply notice, dated 07.03.1985 given to Ex.A.1.The recitals in Ex.A.2 are from the date of legal notice, dated 05.07.1962, the husband of 2nd plaintiff left the family house and starting living in his father-in-law’s house at Amalapuram and thereafter died in the month of November, 1983 and the husband of 2nd plaintiff divided from 1st defendant on 05.07.1962 by virtue of legal notice Ex.B.1and in the said legal notice the husband of 2nd plaintiff asserted notifying his intention to divide from the joint family without sharing any liability of the family business debts and abandoned therewith his rights in the family property. There is no whisper in Ex.A.2 about the alleged partition list, Ex.B.2. It was asserted in Ex.A1 legal notice by the 2nd plaintiff that they are having 1/3rd undivided share in the schedule property house. Ex.A.1 legal notice is said to have been issued in the year 1985, the alleged partition list is drafted on 06.02.1972. The 1st defendant during his lifetime issued reply notice on 07.03.1985 under Ex.A.2 to Ex.A.1 telegraphic notice. If really any partition list was written on 06.02.1972, nothing prevented the 1st defendant to mention about Ex.B.2 alleged partition list which is more important document in Ex.A.2 reply notice. Furthermore, the 2nd plaintiff asserted in Ex.A.1 legal notice in the year 1985 that they are having 1/3rd undivided share in the schedule property house. In such a case, if really any partition list is drafted on 06.02.1972 i.e., 13 years much prior to Ex.A.1 legal notice, certainly, the same will be mentioned in reply notice by 1st defendant. No explanation is offered by the defendant Nos.1 to 5 on the said aspect. The 1st defendant simply narrated in Ex.A.2 that the husband of 2nd plaintiff given up his right by issuing Ex.B.1 legal notice, dated 05.07.1962. Though rejoinder notice is given by the 2nd plaintiff to Ex.A.2 on 15.04.1985, no reply is given by the 1st defendant. In Ex.A.3 also it was reiterated by the 2nd plaintiff that herself and her family members are in possession of portion of the schedule house property and being the co-owners, they are entitled to live in the house. As noticed supra, to deny the contents of Ex.A.3 notice, no reply was given. Ex.A.4 goes to show that counsel for 1st defendant received Ex.A3 notice.
Another important circumstance to disbelieve Ex.B.2 is no single document is filed by the 1st defendant to show that he is in possession of entire plaint schedule house property from the date of Ex.B.2 dated 06.02.1972 and Ex.B.2 is acted upon. Though he pleaded he used to pay th house tax, no single document is filed by the 1st defendant to show that he is paying house tax to Rajahmundry Municipality. Ex.A.5 is the death extract of the deceased Satyanarayana. It shows that Satyanarayana died in the suit house. It was contended by the defendant Nos.1 to 5 that the said Satyanarayana came to Rajahmundry to attend the opening ceremony of Sumangali shop and after attending the function, he proceeded to schedule property house and he died at the schedule property house, but, no cogent evidence is produced by the defendant Nos.1 to 5 to support the said contention. Ex.A.6 is the voter list of Rajahmundry Assembly Constituency for the year 1984 and it contains the name of 2nd plaintiff and also the wife of P.W.1. Ex.A.7 is the copy of voters list. It shows father of P.W.1 applied for entering his name and the names of the plaintiffs and the wife of P.W.1 as voters in the list. Ex.A.7 is not an application presented by Satyanarayana Rao. Ex.A.8 is the Ration Card stands in the name of Satyanarayana Rao. The suit schedule house property door number is also mentioned in the ration card. Ex.A.11 to Ex.A.13 are the letters addressed by the Life Insurance Corporation of India to the 1st plaintiff in which the suit schedule property building is shown as residential address of 1st plaintiff. Ex.A.14 is the identity card of the 1st plaintiff. It contains the suit schedule property house is the residential address of the 1st plaintiff. Ex.A.15 is the order of supply of gas cylinder in favour of 2nd plaintiff, dated 22.01.1972. Ex.A.15 also contains her residential address is in the suit schedule property house. Ex.A.16 is the post card addressed to 1st plaintiff in respect of suit schedule property building address. Ex.A.17 is the certificate of insurance standing in the name of P.W.1, containing address of the suit schedule property building. Ex.A.18 and Ex.A.19 are two cards posted to 1st plaintiff in which also the suit schedule property building address is mentioned. Ex.A.24 demand notice was issued during the pendency of the suit by Rajahmundry Municipality in the name of A. Subba Rao and his brothers, but not in the name of 1st defendant. It clearly goes to show that the name of the 1st defendant is not mutated in municipal records. These circumstances certainly created doubt about the genuineness of Ex.B.2.
It is the specific case of the appellant that a bear reading of Ex.B.2 word by word would undoubtedly made it clear it is a partition deed and not a mere partition list as sought to be contended by the defendants.
It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Partition lists which are mere records of a previously completed partition between the parties.
The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council and Apex Court.
"It is settled that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit of extinguish ..... any right, title or interest' in the property which is admittedly over Rs. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated."
The recitals in Ex.B.2 goes to show that though it is named as partition list, but it is a document of partition, it is not a document of evidencing previous partition. It is not at all the case of defendant Nos.1 to 5 that there was an earlier partition prior to Ex.B.2 and subsequently it was reduced into writing under Ex.B.2. It is well settled that whether a document is a partition deed or it is only a memorandum of partition/family settlement, the recitals as well as the surrounding circumstances of the document are to be looked into. A court of law is expected to dissect the transaction, scrutinize its legal implications and the legal consequences which follow.
The recitals in the alleged Ex.B.2 clearly goes to show the deed of partition was executed in between the family members on the date of document itself, it is not a recording past transaction, therefore, Ex.B2 is compulsorily registerable document.
It is brought to the notice of this Court by the learned Senior Counsel for respondents 1 to 5 once the document is marked by the trial Court after collecting stamp duty and penalty, by the time of marking of the document, no objection was raised by the other side, therefore, the validity of the document cannot be looked into at the second appellate stage. In my view, collection of stamp duty and penalty does not cure the defect of registration, since the alleged Ex.B.2 document is a compulsorily registerable document, though it is named as partition list. On thorough scrutiny of alleged Ex.B.2 document, it is patiently clear that Ex.B.2 is a deed of partition but not a partition list. Furthermore, plaint schedule house property is situated at Rajahmundry Municipality, but no scrap of paper is filed by the defendant Nos.1 to 5 to show that Ex.B.2 is acted upon and they paid house tax to the municipality in respect of the plaint schedule house and that no house tax receipts are filed by defendant Nos.1 to 5. The suit is instituted in the year 1986 and written statement is filed by the defendant Nos.1 to 5 in the year 1987, during the pendency of the suit on 17.08.1999 they have alienated 11.76 sq. meters site to third parties. It amply proves about the conduct of the parties/defendants/1st defendant to the suit. It is well settled that if the family arrangement is stamped, but not registered, it can be looked into for collateral purpose. A person cannot be claimed a right or title to a property under the said document, which is being looked into only for collateral purpose. If the family arrangement is reduced into writing and it purports to create, declare, assign limit or extinguish any right, title, assign or interest of any immovable property, it must be properly stamped and duly registered as per Indian Stamp Act and Indian Registration Act. As to the nature of the transaction under the document, it cannot be decided by merely seeing nomenclature of the document. As stated supra, there are several suspicious circumstances surrounding the execution of alleged Ex.B.2, those are not removed by defendant Nos.1 to 5.
The learned Senior Counsel for the respondent Nos.1 to 5 and 8 to 11 placed a reliance of Ravinder Kaur Grewal and others vs. Manjit Kaur and others (2020) 9 Supreme Court Cases 706 wherein the Apex Court held as follows:
Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale v. Director of Consolidation (1976) 3 SCC 119. In the said reported decision, a three Judge Bench of this Court had observed thus:
“9. ….. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes succession is so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.”
(emphasis supplied)
In a case of Kale (supra) the Apex Court held further as follows:
“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 registerable;
5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”
(emphasis supplied)
In the aforesaid case law, the Full Bench of Apex Court held that it is settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here Ex.B.2 is not a mere memorandum prepared after family arrangement had already been made either for the purpose of record. As held by three Judge Bench of Apex Court “the family settlement must be voluntary and should not be induced by fraud, coercion or undue influence”. In the case on hand, there are several suspicious circumstances surrounded the alleged execution of Ex.B.2, those are not removed by the defendant Nos.1 to 5. Ex.B.2 is not a memorandum of family settlement. As stated supra, the nature of transaction under the document cannot be decided by merely seeing the nomenclature of the document. The recitals in Ex.B.2 goes to show that it is a partition deed and it is a compulsorily registerable document even though the stamp duty and penalty is paid, the defect of registration is not at all cured.
The learned Senior Counsel for the respondent Nos.1 to 5 and 8 to 11 placed a reliance of Kale and others v. Deputy Director of Consolidation and others (1976) 3 Supreme Court Cases 119, wherein the Apex Court held as follows:
As observed by this Court in T.V.R. Subbu Chetty's Family Charities' case (supra), that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.
In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5. RespondentNo.1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha v. Mt. Mendha(AIR 1947 All 177);Chief Controlling Revenue Authority v. Smt. Satyawati Sood(AIR 1972 Delhi 171) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same Finally it was contended by the respondents that this Court should not interfere because there was no error of law in the judgment of the High Court or that of Respondent No.1. This argument is only stat- ed to be rejected.
In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No.1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly, the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court.
In the case on hand, Ex.B.2 is not a deed of compromise and it is a family settlement and it is a deed of partition. Furthermore, Ex.B.2 is not acted upon. Though defendant Nos.1 to 5 alleged to be paid house tax for the schedule house property, no single document is filed by them to show that Ex.B.2 is acted upon and the name of 1st defendant is mutated in the municipal records. Furthermore, Ex.A.24 municipal demand notice issued by Rajahmundry Municipality in the year 2003 shows that the said demand notice for the schedule house property stands in the name of Appana Satyanarayana Rao and his brothers, but not in the name of 1st defendant Ranga Rao. During the pendency of the suit, in the year 1998 the defendant Nos.2 to 5 i.e., sons of 1st defendant issued a notice to the plaintiffs, defendant Nos.6 and 7 to share the mortgage deed which is subject matter of O.S.No.960/1967. The plaintiffs also issued a reply notice, dated 14.02.1998 to that notice by informing the subject matter is pending before a Court of law.
It is well settled that it can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but the Court has to determine whether the said document is mere list of partition or in themselves purport to 'create, declare, assign, limit of extinguish any right, title or interest' in the subject matter of the property which is admittedly over Rs.100 in value.
In the case on hand, as per the own case of the defendant Nos.1 to 5, the subject matter of the property is worth about Rs.60,000/-. It is well settled that though partition amongst the Hindus may be effected orally, but if the parties reduce it in writing to a formal document which is intended to be evidence of partition, it would have effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under Section 17(1)(b) of the Indian Registration Act.
In the case on hand, admittedly, Ex.B.2 is not a partition list, it is a deed of partition. The recitals in Ex.B.2 clearly proves that it is a deed of partition that was happened on the date of document itself but not mere recording past transaction. As to the nature of transaction under the document, it cannot be decided by merely seeing nomenclature of the document. The recitals of the document has to be looked into. The recitals in Ex.B.2 amply proves that it is a deed of partition, but not a partition list and it is not a recording past transaction. As noticed supra, there are several suspicious circumstances surrounding Ex.B.2, those suspicious circumstances are not yet removed by the contesting defendants. On considering the entire material on record, the learned Trial Judge rightly held that the suit schedule property has to be divided into three equal shares and the plaintiffs are entitled one such share in the suit schedule property.
For the aforesaid reasons, I am of the considered view that the learned First Appellate Judge came to a wrong conclusion and set aside the findings arrived by the learned trial Judge and setting aside the judgment of the trial Court, therefore, the judgment of the First Appellate Court is liable to be set aside.
In the result, the Second Appeal is allowed and the Judgment and decree, dated 29.04.2011 in A.S.No.184 of 2006, on the file of the I Additional District Judge, East Godavari at Rajahmundry is hereby set aside. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal.
As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.