Maniram vs Deshraj & Ors.

This second appeal has been filed by the appellant/defendant being aggrieved by the judgment and decree dated 7.12.1990 passed by Second Additional District Judge, Tikamgarh in Civil Appeal No. 10-A/1989 affirming the judgment and decree dated 8.12.1986 passed by Civil Judge Class I, Jatara, District Tikamgarh, in Civil Suit No. 41-A/1984.

The appeal has been admitted on the following substantial questions of law :

(i) Whether the Courts below erred in holding that Mst. Biniabai, widow of Kamta, met a civil death ?

(ii) Whether the Courts below erred in holding that because of unchastity Mst. Biniabai lost her legal rights in the property inherited from her husband ?

After perusal of the entire record and the impugned judgments passed by both the Courts below, this Court finds that substantial question No. (i) has no relevance and it has wrongly been framed earlier, therefore, this Court has considered only substantial question No. (ii).

This  appeal  is  pending  since  1991  and  despite  affording  several opportunities none has appeared on behalf of the respondents, therefore, this judgment is being delivered on the basis of the argument advanced by learned counsel for the appellant and the material available on record.

It is not in dispute that Kamta and Deshraj (respondent No.1/plaintiff) were real brothers. It is also not in dispute that Mst. Biniyabai was a legally wedded wife of Kamta, who died in the year 1947. It is also not in dispute that the registered sale-deed dated 4.6.1981 (Exhibit D-2) is in existence and is in favour of the appellant. It is an admitted fact that except the suit property bearing Khasra No. 111, other land bearing Khasra Nos. 241, 408, 429 and disputed Bada and house, all were ancestral property of respondent No. 1 Deshraj and late Kamta.

Plaintiff/respondent No. 1 filed a civil suit inter alia pleading that he is the real brother of Kamta and Biniyabai (since dead) was his sister-in-law. After death of Kamta in the year 1947, Biniyabai started residing with one Chanchu as his wife. She had executed a relinquishment deed (Exhibit P-26) dated 15.3.1955 in his favour in respect of the properties belonging to her husband Kamta, therefore, she has no right to transfer the properties of Kamta in favour of anyone even then taking the advantage of her old age and illness, the appellant has managed to execute the registered sale-deed in his favour by Biniya Bai, therefore, it was prayed that respondent No. 1 be declared as the owner of the suit property and the disputed sale deed be declared null and void. The possession of the suit property was also claimed.

The appellant/defendant denied the pleadings made by plaintiff/respondent No. 1 in the Plaint and pleaded that Biniya Bai sold the suit property to him with her free consent by executing the registered sale-deed dated 4.6.1981 (Exhibit D-2). The relinquishment deed (Exhibit P-26) is an unregistered and unstamped document, therefore, neither it is valid in the eye of law nor admissible in evidence. He has also pleaded that the suit property was mutated in his favour. He has also paid the rent of the suit property. There is a Rin Pustika in his favour, hence respondent No. 1 has no right to claim title or possession over the suit property.

Both the Courts below held that Biniya Bai had lost her right over the suit property after performing remarriage with Chanchu and execution of relinquishment deed (Exhibit P-26), therefore, she had no right to execute sale-deed in favour the appellant. The Courts below further held that relinquishment deed (Exhibit P-26) has been duly proved by its witnesses Deendayal (PW-2) and Dilip (PW-3). The trial Court has decreed the suit in favour of respondent No. 1 on the basis of relinquishment deed Ex. P-26 and the first appellate Court has affirmed the decree passed by the trial Court.

Being aggrieved by the findings recorded by both the Courts below, this second appeal has been preferred by the appellant/defendant on the ground that Biniya Bai was having absolute right to execute the registered sale-deed dated 4.6.1981 (Exhibit D-2) in his favour. It is submitted that the relinquishment deed (Exhibit P-26) is an unregistered, unstamped document, therefore, neither it is valid in the eye of law nor admissible in evidence. Biniya Bai herself admitted the fact of execution of the registered sale deed in his favour in the written statement. Merely on the basis of relinquishment deed (Exhibit P-26), the Court has no power to grant declaration of title and possession of the suit property, therefore, it is prayed that the impugned judgments and decree passed by the Courts below be set aside.

The only substantial question for consideration in this appeal is "Whether the Courts below erred in holding that because of unchastity Mst. Biniabai lost her legal rights in the property inherited from her husband ?"

In the case of Smt. Kasturi Devi vs. Deputy Director of Consolidation and others reported in (1976) AIR (SC) 2595, a Full Bench of the Supreme Court has observed as under:-

A large number of authorities have been cited in support of this view. We find ourselves entirely in agreement with this view. Our attention has not been invited to any text of the Hindu Law under which a mother could be divested of her interest in the property either on the ground of unchastity or re-marriage. We feel that the application of bar of inheritance to the Hindu widow is based on the special and peculiar, sacred and spiritual relationship of the wife and the husband. After the marriage, the wife becomes an absolute partner and an integral part of her husband "and the principle on which she is excluded from inheritance on re-marriage is that when she relinquishes her link with her husband even though he is dead and enters a new family, she is not entitled to retain the property inherited by her. The same, however, cannot be said of a mother.

The mother is in an absolutely different position and that is why the Hindu Law did not provide that even the mother would be disinherited if the remarried.

In these circumstances we are satisfied that the view of the Deputy Director of Consolidation is legally erroneous. The High Court erred in not interfering with it even though a pure question of law was involved and has failed to exercise jurisdiction vested in it by law. As the case is a very old one and does not require any further investigation, we do not propose to remand the case to the High court.

For these reasons therefore, the appeal is allowed, the orders of the High Court and the Deputy Director of consolidation are set aside, and the order of the Settlement Officer directing the mutation of the name of Kasturi is restored. In the circumstances of this case, there will be no order as to costs.

In the present case also, there is absolutely no material available on record to prove that Biniya Bai performed remarriage with Chanchu. In the statements, neither respondent No. 1/plaintiff Deshraj nor his witnesses Deendayal (PW-2) and Dilip (PW-3) have stated that Biniya Bai performed remarriage with Chanchu or she was residing with him as his wife or keep. On the contrary, Maniram (DW-1) denied that Biniya Bai was residing with Chanchu as his wife. His statement has been corroborated by Suka (DW-2) and Nandu (DW-3). They stated that Biniya Bai never resided with Chanchu as his wife. No cogent evidence has been adduced by respondent No. 1 to prove that Biniya Bai performed remarriage with Chanchu, who happened to be his nephew, therefore, he has failed to establish that Biniya Bai has performed remarriage.

Further, it has been pleaded that Biniya Bai executed a relinquishment deed (ExhibitP-26) in favour of respondent No. 1. This document was executed in the year 1955. Since 1956 till the trial of the suit, respondent No. 1 kept silence and has not taken care to impound the document legally. The said relinquishment deed is an unregistered and unstamped document, which not admissible in evidence, therefore, it cannot be relied upon as held in the case of Yellapu Uma Maheswari and others vs. Buddha Jagadheeswararao and others reported in (2015) AIR (SCW) 6184, whereby a Division Bench of the Supreme Court has observed as under:-

Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered Under Section 17 of the Act.

It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act, Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(i)(b) of the Registration Act and hence are compulsorily registerable 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 Exhibits B 21 and B 22 are not admissible in evidence for the purpose of proving primary purpose of partition.

Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappareddigari Pedda Muthylareddy Vs. Chinnappareddigari Venkatareddy and others has held that 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 Appellants/Defendants 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 Exhibits B-21 and B -22 for collateral purpose subject to proof and relevance.

Similar view has been taken by the Supreme Court in the case of Sita Ram Bhama Vs. Ramvatar Bhama reported in (2018) 15 SCC 130.

In the opinion of this Court, such type of unregistered document for which registration is compulsory, cannot be relied for the primary purpose to prove the relinquishment of right of the executor. It is settled principle under Section 17 of the Registration Act that unregistered document would not confer any power or right to a person in whose favour it had been executed. The High Court of Chhattisgarh in the case of Dayalrum Sunderlal Sahu and others vs. Guhariram Phaguaram Sahu and others - AIR 2019 (NOC) 338 Chh, referring the judgment of the Supreme Court in the case of Sita Ram Bhama vs. Ramvatar Bhama - (2018) 15 SCC 130 has observed as under:-

"........non registered documents required to be registered, declaration of title sought on the ground of relinquishment of right by defendant in the suit property by executing relinquishment deed, relinquishment deed being unregistered one cannot be relied on the same is required to be registered. Party is not entitled for declaration of title on the basis of such kind of document."

Same principle is applicable in the present case because Biniya Bai filed written statement before the trial Court, she denied the execution of the relinquishment deed Exhibit P-26 by her in favour of respondent No. 1, in which it is mentioned that she has relinquished her right over the suit property, which is ancestral property of her husband Kamta because she left her matrimonial house after death of her husband Kamta and became wife of one Chinchu. The said relinquishment deed is an unregistered, unstampted document. Under Section 49 of the Registration Act, registration of the such document is essential. The Courts below held that execution of the relinquishment deed Exhibit P-26 by Biniya Bai has been duly proved by the witnesses namely Deendayal (PW-2) and Dilip (PW-3) hence such unregistered document can be used for collateral purpose. This Court does not find the findings recorded by the Courts below justifiable in view of the judgments of the Supreme Court referred hereinabove.

It is pertinent to mention here that it is alleged by respondent No. 1 that the relinquishment deed (Exhibit P-26) has been executed in the year 1955 but thereafter since long (for about 25 years) name of Deshraj/respondent No. 1 has not been recorded in the revenue records as the owner of the property. In the year 1979-80 on the one third part of the disputed property, the name of Biniya Bai was recorded as the owner therefore, adverse inference may be drawn against respondent No. 1 that the relinquishment deed (Exhibit P-26) is an unreliable document and it is not sufficient to create any right in favour of respondent No. 1 Deshraj. Further, respondent No. 1 is the father of one Babulal. After so called execution of the relinquishment deed (Exhibit P-26), he also claimed that Biniya Bai executed a Will (Exhibit D-3) on 30.12.1953 in favour of his son. There is certain procedure to prove the execution of the Will. Under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act, 1925 the attesting witness of the Will is required to be examined who proved that the Will is genuine and executed in his presence by the executor. Respondent No. 1 has failed to examine any of the attesting witness of Will (Exhibit D-3). Otherwise also the revenue Courts disbelieved the Will for nomination in favour of Deshraj.

All these legal aspects have been overlooked by both the Courts below. The Courts also ignored that Kamta husband of Biniya Bai died in the year 1947, at that time Biniya Bai has limited right over the suit property. She could not relinquish her entire right over the suit property in the year 1955 in favour of any of the relative by virtue of Hindu Succession Act, 1956 whereby a woman was having limited right over the share of her husband.

Respondent No. 1 claimed that Biniya Bai was old and physically weak when registered sale-deed dated 4.6.1981 (Exhibit D-2) was executed in favour of the appellant. It is important that Biniya Bai died during the trial. Suit was filed in the year 1981. she herself has not challenged the validity of sale deed dated 4.6.1981 nor she filed any suit against the appellant. The aforesaid sale-deed is a registered document. Nandu (DW-3) and Karim Ali (DW-5) both are witnesses, who were present in the office of Registrar at the time of registration of sale deed (Exhibit D-2). Execution of the sale deed has been duly proved by the appellant's witnesses hence right occurred in favour of the appellant cannot be ignored on the simple presumption that at the time of execution of the sale deed Biniya Bai was old and week, therefore, she was unable to understand the object of execution of registered sale-deed.

The learned Courts below have relied upon the relinquishment deed (Exhibit P-26) and held that when Kamta died, all his brother were separately in possession of their shares over the ancestral property and the property which was sold in favour of Maniram was in possession of Deshraj. Biniya Bai executed an affidavit in favour of Deshraj on 11.9.1982 stating that she has relinquished her right over the suit property in favour of Deshraj and the appellant has fraudulently taken her signatures on the sale deed. Similar statement has been made by her husband Chanchu, they claimed that Biniya Bai lost her right over the suit property to sell it in favour of anyone. All these pleadings are contrary to the pleading made by Biniya Bai in her written statement. Any affidavit executed by her is not sufficient to give relaxation in her favour about the legal provision for execution of relinquishment deed.

This Court is of the considered opinion that both the Courts below have wrongly held that due to unchastity, Smt. Biniya Bai lost her legal right over the suit property inherited from her husband. Sale-deed (Exhibit D-2) is a registered document. Its witnesses have also corroborated the evidence of Maniram. After the death of her husband, by virtue of Hindu Succession Act, 1956, she has right to transfer her share in favour of anyone. As per Exhibit P-5, on the suit property, name of the appellant has been mutated. Exhibit P-6 is the Rin Pustika in his name. Exhibits P-8 and P-8 are Sinchai Parcha. All these documents support the execution of the registered sale-deed in favour of the appellant in regard to the suit property.

Thus, in the considered opinion of this Court, the Courts below have committed error in holding that because of unchastity Mst. Biniya Bai lost her legal rights in the property inherited from her husband. Thus, the substantial question of law is answered in affirmative.

In view of the foregoing discussion, this appeal is hereby allowed. The impugned judgment passed by both the Courts below are hereby set aside