(SIC)shmibai and Others vs Bhoja and Others

Manoher Pershad, J.—Lakshimbai & Sakku Bai filed a suit against Bhoja and Ors. for possession of house and live annas four pics share in the lands bearing survey Nos. 68. 72, 73, 74 and 75, and for a declaration of ''shikmidari''. It is alleged in the plaint that the suit property is the Plaintiffs'' ancestral property and they were in possession till 1352 Fasli. Defendant No. 5 is the ''pattedar'' and ''hissedar'' and in possession to the extent of five annas four pies. Originally, the Plaintiffs'' grand-father Rama was in possession of the suit property. After him, his son Satwa remained in possession. After Satwa''s death Plaintiffs'' mother Yeshodhabai came into possession and after her the Plaintiffs remained in possession; the Defendants 1 to 4 who have no right, have dispossessed the Plaintiffs on 15th Azur 1352 Fasli and hence the Plaintiffs are entitled to a decree.

Defendants Nos. 1 to 4 in their written statements admitted that Defendant No. 5 is the pattodar of the land but denied that Plaintiff''s or Defendant No. 5 have any claim to the suit properly and are in possession. It was further alleged that Defendants Nos. 1 to 4 and Plaintiffs'' ancestors were members of a joint and undivided Hindu family. Though Plaintiffs had no right in the suit property, but as, they had mortgaged the suit property to Nevarthy and Dada, the Defendants, in order to avoid litigation, agreed to give the amount of the mortgage to the mortgagees and the Plaintiffs in their turn agreed that they would have no claim in the suit property. Accordingly, Plaintiffs executed separate ''Ekrarnamas'' in favour of Defendants Nos. 1 to 4 and on the basis of this agreement, the Defendants got possession of the suit lands and Defendant No. 1''s name has been entered as a ''shikmidar'' in the revenue records. Plaintiff''s in reply to the written statements denied having executed the ''Ekrarnamas and having agreed to transfer the ''shikmidari''.

Both the parties led evidence. On the evidence, the trial court decreed the Plaintiffs'' suit to the extent of possession of lands and declaration of ''shikmidari'' and dismissed the suit to the extent of possession of the house, having held that the ''Ekrarnamas'' relied upon by the Defendants, not being registered, are inadmissible in evidence and that Defendants have failed to establish that Plaintiffs'' ancestors and the Defendants were members of a joint & undivided Hindu family. Against 1 his judgment both parties went in appeal. The appellate Court dismissed the Plaintiffs'' suit to the excitant of possession of the lands .and declaration of ''shikmidari but decreed the suit to the extent of possession of the house, against which are these appeals on behalf of the parties. The object of the Plaintiff''s appeal is that their suit should be decreed in toto while the object of the Defendants'' appeal is that the decree to the extent of possession of the house should also be set aside.

In both these appeals we heard the arguments of the learned Advocates on behalf of the parties. I would first fake up the appeal of the Plaintiffs which relates to the possession of the lands and ''shikmidari''.

On behalf of the Plaintiffs it is urged that there is no evidence on record that Plaintiffs ancestors and Defendants Nos. 1 to 4 (SIC) members of a joint and undivided Hindu family and that the ''Ekrarnamas'' being inadmissible In evidence, Defendants cannot claim any right to the property. The second contention is that Plaintiffs are the owners and were in possession till 1352 Fasli and have been wrongfully dispossessed.

On behalf of the Respondents, it is replied that it is established that Defendants Nos. 1 to 4 and Plaintiffs ancestors were member of a Joint and undivided Hindu family. As (SIC) the question of. registration of the ''(SIC) it is contended that in the first place, (SIC) ton! is not necessary and if at all it is held that the ''Ekrarnamas'' require registration, then in that case also Plaintiffs'' suit for possession Of the suit lands cannot be decreed as Defendants are in possession of the properly in part performance of the contract and they are entitled to the benefit of Section 53-A, Transfer of Property Act. It is further contended that ''Shikmidari'' goes with the lands and when Plaintiff No. 2 has transferred the lands and ''shikmidari by executing an ''Ekrarnamn'' and Defendant No. 1''s name has been registered as a ''shikmidar Plaintiffs cannot get a decree either for the ''shikmidari'' or for the possession of the lands.

In order to appreciate the arguments of the parties, a reference to the evidence is necessary. But before discussing the evidence I would like to mention some of the admitted facts. It is admitted in the case that Saklutbai, Defendant No. 5 is the ''pattedar'' of (he lands, and Rama was the ''shikmidar'' to the extent of five annas four pies, ft is further admitted that Rama was in possession and after him Satwa, his son became the ''shikmidar'' and remained in possession to the extent of five annas four pies. Plaintiffs'' case is that in the five annas four pies share of Rama, Defendants have no right. Defendants'' contention is that they and Rama and Satwa were members of a joint and undivided Hindu family, and after Satwa''s death they, as survivors, became entitled to the full share and Plaintiffs are unified only to maintenance.

The first question which is crucial is whether the family was joint. The burden of proof was on the Defendants. They produced two witnesses''; D. W. 1 Madhu and D. W. 2, Kanaiyalal. D. W. 1, has said nothing about the family being joint. Of course, D. W. 2, has simply said that the family was joint, D. W. 2 is not related to the parties. He has not disclosed any source of his knowledge. In the absence of that, it is very difficult to hold on his solitary statement that Defendants were members of a joint family along with Rama and Satwa.

On behalf of the Defendants it is urged that P. W. 1, Gopalrao, the Patwari, has admitted in his cross-examination that Defendants and Plaintiffs'' ancestors were members of a joint and undivided Hindu family, and that they were in possession. I am very reluctant to believe his statement. Plaintiffs all along have alleged that the Patwari was against them & was responsible for the wrong entries in the revenue records. The way P. W. 1 has deposed supports the contention of the Plaintiffs. He has admitted that after the death of Satwa he made a report that his ''virasat'' may be sanctioned in the name of. his wife. If as he says, the Defendants were members of a joint and undivided Hindu family, he could not have made such a report. He has tried to explain this by saying that he made the report because Satwa''s wife came weeping to him. He further admits that after the death of Yeshodhabai, he again made a report for the ''virasat'' to be sanctioned in the name of Sakkubai, on the same ground that she came weeping. I fail to (SIC how a responsible person like him would do such a thing if really the Defendants were members of the joint family. I am, therefore, not inclined to believe his statement. The (SIC) in the revenue records also negative the consecution of a joint family. In view of this, I cannot agree with the contention of the Defendants that they and the ancestors of the Plaintiffs were members of a joint family.

On behalf of the'' Defendants it is urged that in the ''Ekrarnamas'' the joint family is (SIC) I cannot accept this contention either since the ''Ekrarnamas'' have not been registered and this fact cannot be proved.

It is contended next that even if the existence of a joint family is held not to be proved, the Plaintiffs'' suit cannot be decreed, having regard to the provisions of Section 53-A, Transfer of Property Act, as Defendants have paid the amount of the mortgage and in pursuance of the ''Ekrarnamas'' they have come into possession and Defendant No. 1''s name has been entered in the ''Shikmidari'' register, as a ''shikmidar''. The Plaintiffs'' allegation is that the ''Ekrarnamas'' require registration and as they are not registered, they are inadmissible in evidence. The trial court has held that the ''Ekrarnamas'' are inadmissible in evidence as they are not registered. The appellate court has held that ''Ekrarnamas'' are proved and (SIC) them admissible in evidence. So far as the execution of the ''Ekrarnamas'' is concerned, J. am of opinion that the evidence is sufficient to hold that execution is proved. The question now remains, whether they require registration. As these ''Ekrarnamas'' create a right in property and by these ''Ekrarnamas the rights of the Plaintiffs have been extinguished, they require registration according'' to Section 17 (I.) (b), Registration Act, and as they are not registered, they are not admissible in evidence. Defendants rely on Section 53-A, Transfer of Property Act.

For the Plaintiffs, it is contended that Section 53-A, Transfer of Property Act, does not apply to the facts of this case as in the present case there is neither a transfer of any immovable property for consideration nor a contract for such a transfer. Following up this contention, it is urged that at the most the ''Ekrarnamas'' can be said to be ''a family arrangement'' and family arrangements as such cannot be deemed to be a transfer of Immovable property. Reliance is placed on the cases of - Mt. Mahadei Kunwar Vs. Padarath Chaube and Another and - Tulshi Ram and Another Vs. Gobind Singh, .

In order to appreciate the arguments of the parties, a reference to Section 53-A of the Transfer of Property Act is necessary. That section enjoins that:

"Where any person contracts to transfer for consideration any Immovable property and the transferee has, in part performance of the contract, taken possession of the property or any part thereof and he done some act in furtherance of the contract then notwithstanding that the contract, though required to be registered, has not (SIC) registered, or where there is an instruct-(SIC)it of transfer, that the transfer has not (SIC) completed in the manner prescribed (SIC) by the law for the time being in (SIC) the transferor or any person claiming (SIC) him shall be debarred from enforcing (SIC)inst the transferee and persons claiming (SIC)er him any right in respect of the pro-(SIC) of which the transferee has taken or (SIC)tinued in possession, other than a right (SIC)ressly provided by the terms of the con(SIC)follows from this that there should be (SIC) of Immovable property for consider-(SIC)or a contract to transfer, and further in (SIC)performance of the contract, possession of (SIC)property has been taken or some overt act (SIC) donate in furtherance of the contract, the Defendants would have to establish (SIC)here was a transfer and that they came (SIC)possession in part performance of the(SIC)I would first take up the question whe-(SIC) he transaction in question amounts to a (SIC) On behalf of the Defendants, it is (SIC)that the Plaintiffs have abandoned their (SIC), in Other words, amounts to a re-(SIC) of their right, and relinquishment (SIC) amounts to a transfer, and as such (SIC) of part performance applies. In to appreciate this point, I have to con-(SIC) the meaning of ''transfer'' as defined with (SIC) to the word ''convey''. This word in (SIC) Law in its narrow and more usual (SIC)refers to the transfer of an estate in (SIC)but it sometimes is used in the wider (SIC)to include any form of an assurance (SIC) The definition laid down in Section 205 (SIC) of the Law of Property Act is (SIC) includes a mortgage, charge, (SIC)assent, vesting declaration, vesting in-(SIC) disclaimer, release and any other (SIC)ranee of property or any interest therein (SIC) instrument except a will (SIC) it would follow from this that relinquish (SIC) also a transfer. When it comes within (SIC) of a transfer, there is no reason (SIC) he principle of part performance should (SIC)applied.

(SIC)milar discussion had arisen in the case (SIC) Mutyalu v. Veerayya AIR (SIC) 452. This was a case where the (SIC) had given a letter to the Defendant that he had no connection whatever (SIC) said property and that Defendant No. 1 (SIC) enjoy the property. The question (SIC)whether this was a transfer within the (SIC)of Section 53-A, Transfer of Property Act. (SIC)asckhara Aiyar, J. (at present a puisne (SIC) of the Supreme Court) held in that case: (SIC) as the passing of the consideration not a term of the contract, evidence (SIC) to show that it did pass, even though (SIC)contract did not recite it, was not within (SIC);cope of the prohibition in Section 92 of the (SIC)ance Act and oral evidence of the same 1 be admitted under proviso 2 as it was (SIC)n any way inconsistent with the terms a letter, and further there being nothing, (SIC)ie letter which created any confusion or doubt as to what the terms were, the (SIC)ine of part performance was applicable precluded the Plaintiff from recovering (SIC)case of- Mt. Mahadei Kunwar Vs. Padarath Chaube and Another relied upon was a case of family arrangement. In this case, it has been held that in a family arrangement, there is no question of any property (the admitted title of which rests in one of the parties) being transferred to one of the other parties, and there is no transfer of ownership such as is necessary to bring the transaction within the definition of ''Exchange'' in Section 118, Transfer of Property Act. It was further held that the petition did not give any indication of any transfer but it was merely an acknowledgment of the right of the other party. The case of - Tulshi Ram and Another Vs. Gobind Singh, is also a case of a family arrangement. Thus, both the cases relied upon by the Appellant do not help his contention.

The case of - Somepalli Mutyalu Vs. Chittineni Veerayya and Others, , is on all fours with the facts of the present case. In the present case, Defendants'' allegation is that Plaintiffs had mortgaged the property with Nevarthy and Dada and as the Plaintiffs had no right to the property and Defendants were the owners, so in order to save the trouble of litigation it was agreed that Defendants should pay the amount of the mortgage and Plaintiffs should relinquish all their alleged rights in the property. In pursuance of this agreement, Defendants paid the mortgage amount to the mortgagees and got possession of the property end Plaintiffs executed ''Ekrarnamas'' and Plaintiffs transferred the ''shikmidari'' in the name of Defendant No. 1. In other words, Defendants'' case is that in part performance of the contract they have come into possession of the property and Defendant No. 1''s name is entered as a ''shikmidar'' and Plaintiffs have relinquished their rights in the property for the amount of Rs. 2,000/- paid to the mortgagees. We have to see whether the Defendants have established that they came into possession in part performance of the contract. On behalf of the Defendants, reliance is placed on the statement of D. W. 1, D. W. 2 and P. W. 1, and the judgment of the Tehsil. Madhu and Kaniyalal, D. Ws. 1 and 2 respectively, both depose that Defendants paid the amount of the mortgage and Plaintiffs executed the ''Ekrarnamas. P. W. 1 after referring to the revenue records has stalled that Defendants came into possession in 1352 Fasli. The ''Ekrarnamas'' are of 1352 Fasli. From the judgment of the Tehsil dated 13th Dai 1353 Fasli it appears that Defendant No. 1''s name has been registered as a ''shikmidar''. Thus, the fact of the Defendant; coming into possession in 1352 Fasli and the name of Defendant No. 1 being entered as a ''shikmidar'' goes to prove that this was done in pursuance of the contract. This is further supported by the fact that the mortgage deed has been produced from the possession of the Defendants. If there had been no agreement and the Defendants had not paid the mortgage amount, the mortgage deed would not have come into their possession. It can. therefore, be said that Defendants came into. possession of the property in part performance] of the contract and they would be entitled to the benefit of Section 53-A. In the result, Plaintiffs suit for possession of the land and ''shikmidar would be dismissed.

After this, I have to consider the appeal of the Defendants which relates to the house. In this appeal, it is argued that there is absolutely no evidence that the house in question belongs to the Plaintiffs. Shri Zakaulla, Advocats, appearing on behalf of the Plaintiffs could not satisfy us from the record. His only contention is that as they stay in the house it must be treated to be their property. 1 am afraid I cannot accept this contention. When there is no evidence that the house in question is the property of the Plaintiffs, their suit cannot be decreed to that extent. The trial court has held a similar view and I agree with that view. In the result, the Defendants'' appeal would be allowed.

The appeal of the Plaintiff is, therefore, dismissed and the appeal of the Defendants is allowed, and Plaintiffs'' suit is dismissed in toto. Defendants would be entitled to costs throughout. This judgment shall govern the connected appeal.

Siadat Ali Khan, J.

I agree.