that the exchange of immoveable properties is required to be
compulsorily registered unless followed by possession and since the
alleged exchange in the instant case was admittedly by way of an oral
transaction, and not by a registered instrument, without being
accompanied or followed by possession, the defendants failed to prove
their case of ownership of suit house on the basis of exchange. The first
substantial question of law is answered accordingly. No interference with
the finding of the first appellate Court on this count is warranted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 74 of 1996
1. Balkrishna s/o Bhagwanji Lohi ... DELETED
VERSUS
Prakash s/o Sheshrao Lohi,
CORAM : S.B.SHUKRE, J.
DATE : JANUARY 10, 2014.
Citation; 2014 (2) ALLMR 785 Bom
This appeal is preferred against the judgment and decree
passed on 15.11.1995 by the 4th Additional District Judge, Nagpur, in
ig
Regular Civil Appeal No. 21 of 1992, thereby reversing the judgment and
decree passed on 20.11.1991 in Special Civil Suit No. 161 of 1985 by the
7th Joint Civil Judge, Sr.Dn., Nagpur.
2.
The appellants are the original defendants and the
respondents are the original plaintiffs. For the sake of convenience, they
are being hereinafter referred to as plaintiffs and defendants in the order
in which they were arrayed as parties to the suit). The facts of the case
are stated briefly in the subsequent paragraphs.
3.
Plaintiffs no. 1 to 3 (respondents 1 to 3) and plaintiff no.4
(respondent no. 4) were respectively the sons and daughter of late
Sheshrao Bhagwan Lohi, the brother of original defendant no.1 (original
appellant no.1) deceased Balkrishna Lohi. Sheshrao and Balkrishna had
one more brother named Narayan. The ancestral properties which had
come into the hands of the brothers were amicably partitioned by them
on 5.4.1951. In this partition, the house No. 100, new House No. 121,
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3
comprising a building of six Mayalis (rafters), five Tasmas (rooms)
situated in Ward No. 24, Peth Budhwar, Katol, District Nagpur, more
particularly described in the Schedule to the plaint (hereinafter referred
to as suit house), came to be allotted to Sheshrao, father of the plaintiffs,
while the other properties were allotted to Balkrushna and Narayan.
After the partition, father of the plaintiffs became the exclusive owners of
ig
the suit house and he continued to be in its undisturbed and peaceful
possession till his death on 21.11.1984. After his death, plaintiffs being
the legal heirs of deceased Sheshrao became the absolute owners of the
suit house. It was submitted on behalf of the plaintiffs that when they
were busy performing the last rites of deceased Sheshrao, on or about
23.11.1984, defendant no.1 Balkrishna forcibly obtained possession of
the suit house. Therefore, notice was issued to him for vacating of the
suit house, but in vain. Ultimately, the appellant filed a suit for recovery
of possession and mesne profits.
4.
The defendants resisted the suit by filing their written
statement. The defendants admitted the inter se relations between
themselves and plaintiffs. They also admitted that Narayan was the third
brother of defendant no.1. They submitted that Sheshrao died on
21.11.1984 not at Katol but at Sonkhamb. They admitted the partition
having taken place by way of family arrangement on 5.4.1951 in which
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4
the suit house came to be allotted to Sheshrao. They submitted that the
house that was allotted in the partition to Sheshrao bearing House No.
100, consisted of two parts, bearing House No. 100A and 100B. It was
also submitted on their behalf that defendant no. 1 was already in
possession of the House No. 100A and Sheshrao was also in possession
of the suit house of Mainabai, which house had been allotted to the share
ig
of defendant no.1 in partition and which was allowed to be retained by
Sheshrao, and in addition to this, he was also given an amount of
Rs.850/. It was further submitted that thereafter House No. 100A was
sold out by defendant no.1 and Sheshrao to one Shivaji Lohi but the
consideration thereof was received by Sheshrao. It was further submitted
that this house No. 100A no longer remained under the ownership of
either the defendant no.1 or the plaintiffs. As regards House No. 100B, it
was submitted that same was purchased by defendant no. 1 from
Sheshrao vide Saledeed dated 13.2.1967. It was further submitted that
the entire house no. 100, at the time of the suit, was out of ownership
and possession of the plaintiffs or their father late Sheshrao and,
therefore, there was no cause of action surviving at that time.
Alternatively, it was submitted by defendant no. 1 that he had become
owner of the suit house by way of adverse possession, as he had been in
possession of the suit house and asserting his ownership thereof
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5
continuously, peacefully and without any interruption since the year
1955. On these grounds, it was urged that the suit of the plaintiffs be
dismissed.
5.
After considering the evidence adduced by the parties on the
issues framed by the trial Court and also hearing both the sides, the trial
Court found that defendant no. 1 proved his case that the suit house was
ig
given to him in exchange for Mainabai's house given to the father of the
plaintiffs and accordingly dismissed the suit by his judgment and order
6.
dated 20.11.1991.
Feeling aggrieved, first appeal was preferred against the said
judgment and decree before the District Court by the plaintiffs. The
learned District Judge, after hearing both the sides, allowed the appeal
and reversed the said judgment and order passed by the trial Court by his
judgment and decree passed on 15.11.1995. This time, it were the
defendants who were not satisfied and, therefore, they have preferred
the present appeal before this Court.
7.
This Court by its order passed on 23.7.1996 had admitted
the appeal on a substantial question of law as mentioned in the order.
The substantial question of law that arises for my consideration is as
follows :
“Whether the exchange of immoveable properties is
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8.
required to be compulsorily registered?”
6
This Court had also framed additional substantial question
of law on 10.10.2013, which is as follows :
9.
ig
“Whether, in the facts and circumstances of the
case, the appellants could claim to retain their
possession alternatively by taking plea of adverse
possession and, if so, whether the finding recorded by
the first appellate Court that the appellants have not
proved their adverse possession, is perverse?”
I have heard Shri Jibhkate, learned counsel for the
appellants/defendants and Shri Masood Shareef, learned counsel for the
plaintiffs/respondents. With their assistance, I have gone through memo
of appeal, impugned judgments and decrees and record of the trial Court.
10.
In the written statement, defendant no. 1 had taken up a
plea that the suit house was divided into two parts, with its one part
bearing house number 100A being in his possession at the time of the
partition and the second part bearing house No.100B having been
purchased by him subsequently from deceased Sheshrao, father of the
plaintiffs. By such a plea, a confusion was tried to be created about the
identity and status of the suit house, but these doubts vanish into thin
air if we take a look at the admissions given by defendant no. 1
Balkrishna in his evidence vide Ex.52. He admits that the suit house was
never divided into two parts, that he and Sheshrao never transferred any
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7
portion of “Six Mayali property” to Shivaji by any saledeed and that
the house which was purchased by him from Sheshrao had nothing to do
with the suit house, which was all in contradiction to the defence taken
by the defendants in their written statement. These admissions would
make it clear that there was only one house bearing House No. 100, and
this is the suit house. As regards the suit house having been allotted to
ig
the share of deceased Sheshrao in the family partition of 1951, it must be
said here, there is no disagreement between the parties. So, it would
have to be seen as to whether the suit house bearing House No. 100, and
as described in the plaint, was ever exchanged by deceased Sheshrao for
the house known as Mainabai's house allotted to the share of defendant
no. 1 Balkrishna.
11.
Shri Jibhkate, learned counsel for defendants, has forcefully
contended that immediately after the partition of joint family properties
by way of family arrangement, there had been exchange of two
properties in between deceased Sheshrao and defendant no. 1 Balkrishna.
In this exchange, he submits, Mainabai's house that had fallen to the
share of defendant no. 1, was exchanged with Sheshrao for the suit
house, which was allotted to Sheshrao. He further submits that this was
done by way of a family arrangement orally and, therefore, no
registration of this transaction was required. He submits that the trial
Court was therefore right in upholding this exchange of properties
between Sheshrao and defendant no. 1 and the first appellate Court
committed a serious error of law in holding that this transaction was
required to be reduced into writing, being equivalent to that of a sale,
attracting requirements of Section 54 of the Transfer of Property Act (for
short T.P Act). He also submits that in any case, the exchange of
properties was on the basis of possession that the respective parties were
already holding and that by exchange the respective parties were only
allowed to retain their possession of the respective properties, and thus an
exchange based upon possession, in accordance with the doctrine of part
performance of the contract, would not require any registration. He
further submits that alternatively the defendants had proved their plea of
perfection of title to the suit house by adverse possession and the first
appellate Court completely ignored the evidence brought on record by the
defendants in this regard, committing thereby perversity in reversing the
judgment and decree of the trial Court.
12.
Shri Masood Shareef, learned counsel for the plaintiffs, has
submitted that it is well settled law that exchange of properties of the
value of Rs.100/ and upwards requires compulsory registration and in
this case there being an admitted position about the alleged transaction of
exchange being oral, no fault could be found with the finding recorded by
the first appellate Court that the defendants failed to prove exchange of
suit house for Mainabai's house. He further submits that in the instant
case there had occurred a partition of the ancestral properties in the year
1951 itself whereby the parties to the partition, which was in the nature
of family settlement, were put into separate possession of the properties
allotted to them, and thereafter there was severance in status of jointness
and commonness. Therefore, he submits, there could not have been any
exchange of properties subsequently by way of family arrangement. He
also submits that in order that mutual transfer of interests in property is
valid in law, there has to be undivided interests of all the persons in the
properties and they must hold these properties as tenants in common. If
their interests in the properties are separated, any mutual transfer of
properties in between them would be in reality an exchange under
Section 118 of T.P
. Act requiring its compulsory registration, so submits
Shri Masood Shareef. He further submits that in any case, in the instant
case, there has been no evidence brought on record to prove that the
exchange was accompanied by delivery of possession or that it was on the
basis that respective parties were already in possession and allowed to
retain their possession of the respective properties and, therefore, the
doctrine of part performance would have no application to the facts of the
instant case. He further submits that the plea of exchange of properties
is based upon the admission of title of other person and, therefore, it is a
plea inconsistent with plea of adverse possession, which is essentially
rooted in open denial of the title of another. According to him, it is well
settled that adverse possession cannot be proved in a case where a plea
inconsistent with the plea of adverse possession is simultaneously taken.
Therefore, he submits that the appeal deserves to be dismissed.
Learned counsel for the defendants has referred to me the
following cases :
13.
Kale & ors. v. Dy. Director of Consolidation & ors.
AIR 1976 SC 807.
(ii) Roshan Singh & ors. v. Zile Singh & ors.
AIR 1988 SC 881.
(i) Bhagwan Kaur & ors. v. Ranjit Singh & anr.
AIR 1990 P
. & H. 89.
(iv) (iii) Dada Vaku Nikam v. Bahiru Hingu
AIR 1927 Bom. 627.
(v) State of West Bengal v. The Dalhousie Institute Society
AIR 1970 SC 1778.
The principle that emerges from the decisions in Kale & ors.
and Roshan Singh (supra) is that a partition by way of a family
arrangement does not require any registration and it can be even oral.
Registration would be necessary only if the terms of the family
arrangement are reduced into writing. However, a writing which merely
recites that there has in time past been a partition, is not a declaration
of will constituting or severing ownership, but a mere statement of fact
and it does not require registration.
14.
In the case of State of West Bengal v. The Dalhousie Institute
Society (supra) the Hon'ble apex Court has held that in order to perfect
title by adverse possession, it must be established that party taking the
plea is in open, continuous and uninterrupted possession and enjoyment
of the site for at least such a period as prescribed under Articles 64 and
65 of the Limitation Act, 1963.
15.
In the case of Bhagwan Kaur (supra), the learned Single
Judge of Punjab & Haryana High Court has taken a view that when
exchange is followed by delivery of possession, Section 54 of T.P Act
.
would not be applicable and thus registration of the exchange made
orally would not be necessary.
In the case of Dada (supra) it has been
held by the Division Bench of this Court that where in pursuance of an
oral agreement, there has been an actual exchange of land and the
parties have remained in possession ever since that date without there
being any question raised, the doctrine of part performance applies and,
therefore, bar under Section 54 of T.P
. Act is in reality removed. So, these
two cases indicate that an oral agreement whereby there is an actual
exchange of two immoveable properties between the parties followed by
16.
delivery of possession, does not require any registration.
12
There can be no dispute about the above referred principles
of law and it would have to be seen whether defendants have proved
their case as regards exchange by family arrangement and alternatively
perfection of title by adverse possession in accordance with the principles
In the instant case, admittedly, there was a family settlement
17.
of law laid down in the above referred cases.
between Sheshrao and two brothers – namely defendant no. 1 Balkrishna
and Narayan, whereby the ancestral properties were partitioned in
between them and the suit house was allotted to Sheshrao and
Mainabai's house was allotted to defendant no. 1 Balkrishna. After this
partition, the brothers held the properties allotted to them separately and
there was severance in joint status of the properties. In law, whenever
severance in the unity and jointness of the properties occurs after the
partition in whatever manner, the properties become separate properties
of the parties, and lose their character as ancestral properties. In this
regard, I am supported by the view taken by the learned Single Judge of
this Court in the case of Subhadrabai w/o KachariKhandagale v.
Balwanta Narayan Jadhav – 2005(1) Mh.L.J. 891, referred to me by the
learned counsel for the plaintiffs, wherein the learned Judge has held
that once the property is separated by whatever means and methods such
property cannot be said to be ancestral property. In the instant case, as
per the own case of defendants, exchange of properties had taken place
after the partition of properties in the year 1951. So, at the time of
exchange, the properties were held separately by Sheshrao and defendant
no.1 and, therefore, principles applicable to transfer of interests by oral
agreement or family arrangement, cannot be applied, unless it is proved
by evidence that such transfer was followed by delivery of possession, and
that is not the case here, as would be seen from the findings recorded by
me in subsequent paragraphs. Such a mutual transfer of separate
interests valued at Rs.100/ and upwards has to be made, it being an
exchange under Section 118 of T.P
. Act, in the manner provided for the
transfer of such property by sale under Section 54 of T.P
. Act. In other
words, it can be made only by a registered instrument.
18.
The concept of oral family arrangement for transfer of
interests in properties held jointly or in common not requiring any
registration is valid in law. The Hon'ble apex Court has laid down in the
aforestated cases of Kale & ors. and Roshan Singh that the transfer of
properties held jointly or in common by oral family arrangement does
not require any registration. This principle applies to only those
properties which are joint family properties or where the properties are
held in common and there is no separation of individual interests in the
properties. As long as coowners or coparceners have common undivided
interests in the properties, oral family arrangement for division or
distribution of interests or even relinquishment of interest in favour of
person not having antecedent title without registration is good in law.
But, once the partition is effected, whether by way of family
arrangement or deed of a partition, there occurs severance in jointness of
ig
the properties and the properties allotted to the parties in partition
become separate properties of the coparceners or coowners, or the
persons in whose favour interests have been relinquished, and thereafter
if any mutual transfer of properties takes place, it would fall within the
scope of Section 118 of T.P
. Act and would qualify itself to be called an
exchange as defined under said Section. The reason being that the term
`ownership' used in the said section means, in its ordinary and natural
sense, ownership to the exclusion of ownership of another. If it were not
so, the section would not have employed the expression “when two
persons mutually transfer the ownership of one thing for the ownership of
another” to define exchange. The words “transfer of ownership of one
thing for the ownership of another” themselves indicate that what is
contemplated by the section is mutual transfer of two separate and
mutually exclusive properties. In case of joint family property or property
held in joint tenancy, each coparcener or coowner has some interest in
the entire property and which is undivided with and not exclusive of the
interests of the other coparceners or coowners. In partition, there
occurs giving away of some undivided interest by one for that of
another's some undivided interest and, therefore, it cannot be called an
exchange under Section 118 of T.P Act, although it is a transfer of
.
The view so taken by me receives support from the decision
19.
property within the meaning of Section 5 of that Act.
rendered in the case of Ganu v. Shankar – 1969 Mh.L.J. 379, referred to
me by the learned counsel for the plaintiffs. The learned Single Judge of
this Court has held therein that partition and exchange are two different
concepts and a right of partition is an incident of property held in joint
tenancy or tenancy in common which by virtue of Section 2(b) of T.P
. Act
is not affected by that Act and partition of such property can, by virtue of
sections 2(b) and 9 of the T.P
. Act, be made orally. The learned Judge has
further held that this is true not only of partition between members of
joint Hindu family but also of partition between coowners where
property is held in joint tenancy or tenancy in common. Thus, transfer of
properties by way of oral family arrangement is possible only in respect
of the properties which are held as joint family properties or held in joint
tenancy. But, when there is a mutual transfer of separate properties by
way of exchange, the provision of Section 118 of T.P Act would be
20.
applicable.
In the case of Nivrutti Kushaba Binnar v. Sakhubai w/o
Keru Jorvar – 2009(3) Mh.L.J. 737, referred to me by the learned
counsel for the plaintiffs, the learned Single Judge of this Court has
observed in paragraph 29 that an exchange of property as contemplated
under Section 118 of T.P
. Act must be effected by a registered instrument.
The learned Judge has further held that a plain reading of Section 118 of
the Act would indicate that such a transfer would be valid only when it is
effected as if it is a sale as contemplated under Section 54 of the said Act,
if the value of the immoveable property is Rs.100/ and upwards. In the
case of Ram Kristo Mandal & anr. v. Dhankisto Mandal reported in AIR
1969 SC 204, Hon'ble supreme Court has held that a transfer of property
in completion of exchange as contemplated by Section 118 of T.P
. Act
can be made only in the manner provided for the transfer of such
property by sale.
21.
I have already held that when the properties are held
separately and there has been severance in their unity and jointness,
there cannot be mutual transfer of such properties by way of oral
transaction of family settlement for, it would amount to an exchange
within the meaning of the term defined under Section 118 of T.P
. Act. In
the instant case, there is clear evidence available on record showing that
partition of the ancestral properties took place in the year 1951 wherein
the properties to the partition by way of family arrangement were put in
separate possession of the parties to the partition. In this partition, the
suit house was allotted to Sheshrao and Mainabai's house was allotted to
defendant no. 1 Balkrishna. The defendants do not dispute these facts.
Therefore, after the partition there was separation of interests in the
ancestral properties and these properties became separate properties of
parties to the partition, and their ownership of these properties was in
exclusion to the ownership of each other. So, for exchanging such
properties, it would be necessary to fulfill requirements of Section 118 of
T.P
. Act or in other words exchange of these properties would be valid in
law if it is effected by a registered instrument. In the instant case,
admittedly the exchange of properties was on the basis of an oral
transaction and, therefore, it must be held that there was no exchange of
suit house for Mainabai's house, effective and valid in law.
22.
Consequently. I do not find any illegality in the finding
recorded by the first appellate Court that the defendants failed to prove
that they became owner of the suit house by way of exchange of
Mainabai's house for that of the suit house in a family arrangement
between Sheshrao and defendant no. 1. It is seen that the trial Court has
not at all considered the fact that since there had been change in
character of the properties following partition, with Sheshrao and
defendant no. 1, holding them to the exclusion of another, there could
not have been oral exchange by way of family arrangement of these
properties. Therefore, the finding recorded by the trial Court in this
regard cannot be sustained in law.
Learned counsel for the defendants has submitted that since
23.
in the exchange of properties, Sheshrao and defendant no. 1 Balkrishna
were allowed to retain possession of the properties exchanged, they being
already in possession of these properties, the exchange did not require
any registration, as held in the cases of Bhagwan Kaur and Dada (supra).
The principle laid down in the said cases of Bhagwan Kaur
24.
and Dada (supra) has been stated by me earlier and even on its basis, I
do not think that the claim of the defendants that the suit house was
received by them in exchange for Mainabai's house given to Sheshrao can
be said to have been established in this case. The reason is that to seek
any application of this principle of law, the defendants would be required
to prove that they were in possession of the suit house at the time when
the oral exchange took place. The evidence brought on record by them
shows the position to be otherwise. The evidence of defendant no. 1
Balkrishna (Ex.52) is relevant in this regard. He has stated in paragraph
2 that in the year 1954 there was exchange of properties between himself
and Sheshrao on the basis of an oral agreement. He also states that in
addition to giving of house of Mainabai to Sheshrao, he had paid
Rs.850/ to Sheshrao. This would show that basically this transaction
was not purely that of an exchange, as defined under Section 118 of T.P
.
Act but was also accompanied by a consideration in terms of money and,
therefore, it was a transfer of ownership partly in exchange for a price
and partly in exchange for ownership of one thing for the ownership of
another. Such transaction would also fall within the definition of “sale”
as given under Section 54. Section 118 clearly lays down that it is only
that mutual transfer of ownership of one thing for the ownership of
another, neither thing or both things being money only, which is
exchange. Further, the evidence of defendant no. 1 Balkrishna also does
not show that the exchange was followed by delivery of possession or was
on the basis that parties to the exchange were already in possession of
the properties exchanged. He states in paragraph 2 that he was living in
the suit house since the year 197374. This would show that as per his
own case, he did not start living in the suit house immediately after the
exchange in the year 1954 and that would also imply that no possession
of the suit house was given to him in the exchange. This conclusion is
strengthened by another admission given by him in his cross
examination. In paragraph no. 4, he admits that after partition,
Sheshrao lived in the suit property for 23 years. This admission would
rather finally establish the fact that in the alleged exchange of properties,
there was no handing over of possession of the properties, and that at
that time neither Sheshrao was in possession of Mainabai's house nor
defendant no.1 was in possession of the suit house. Therefore, the
principle of law laid down in the aforestated cases of Dada and Bhagwan
Kaur would have no application to the facts of the instant case.
Accordingly, I find that there was no exchange of suit house for that of
Mainabai's house in between Sheshrao and defendant no. 1 Balkrishna
and that defendants failed to prove their case that they became owner of
the suit house on the basis of exchange of that house for Mainabai's house
given to Sheshrao.
25.
In view of above discussion, I have no hesitation to hold
that the exchange of immoveable properties is required to be
compulsorily registered unless followed by possession and since the
alleged exchange in the instant case was admittedly by way of an oral
transaction, and not by a registered instrument, without being
accompanied or followed by possession, the defendants failed to prove
their case of ownership of suit house on the basis of exchange. The first
substantial question of law is answered accordingly. No interference with
the finding of the first appellate Court on this count is warranted.
As regards the second question, as to whether the
26.
appellants/defendants could claim to retain their possession alternatively
on the basis of plea of adverse possession, I find that it would be
necessary first to discuss the case law referred to me by both the sides in
this regard before an answer is attempted to the question.
The requirements for perfecting title by adverse possession
27.
have been stated in the case of State of West Bengal v. The Dalhousie
Institute Society, supra, referred to me by the learned counsel for
defendants. They would show that by evidence, it must be established
that the possession is open continuous, uninterrupted and adverse to the
real owner for such a period as is prescribed under Articles 64 and 65 of
the Limitation Act. The prescription for such a nature of possession is of
12 years.
28.
In the case of L.N. Aswathama & anr. v. P Prakash –
.
(2009) 13 SCC 229, referred to me by the learned counsel for the
defendants, the Hon'ble apex Court has held that pleas based on title and
adverse possession are mutually inconsistent and, therefore, unless the
party taking the plea of adverse possession denounces title of another and
asserts his own independent hostile adverse possession to the knowledge
of the other person, adverse possession cannot be said to begin to
operate. The Hon'ble apex Court has held that the person possessing the
property must have the requisite animus to possess the property hostile
to the title of the true owner and till that time the period for prescription
will not commence. In other words, long and continuous possession for
more than 12 years by itself does not constitute adverse possession and it
is necessary for the defendants to show his animus possidendi or his
consciously hostile adverse possession to the knowledge of the plaintiffs
and it is only from the date from which he starts asserting his possession
with animus possidendi that the period of prescription necessary for
perfecting title by way of adverse possession would commence.
29.
In the instant case, there is absolutely no evidence led by
the defendants showing that their possession with animus possidendi
began from a particular date. There is no evidence showing that on a
particular date they gave up the plea of exchange and started
denouncing the title of the plaintiffs to the suit house. Plea of ownership
by exchange essentially denotes acceptance of ownership of another and,
therefore, unless it is given up, any intention or animus to possess would
not start. No date or year has been stated by defendants to be the point
of time from which they started occupying the property with requisite
animus possidendi to the knowledge of the plaintiffs. Therefore, it cannot
be said that the defendants have proved their title on the basis of plea of
adverse possession. In the circumstances, I find that the defendants could
not claim to retain their possession by taking plea of adverse possession
alternatively to the plea of exchange of properties. I find no error of law
having been committed by the first appellate Court in this regard also.
The second substantial question of law is, therefore, answered
accordingly.
In view of the above, there is not merit in the appeal and it
30.
deserves to be dismissed. The appeal stands dismissed with costs.
However, time of six months from the date of this order for handing over
of possession of suit property by the appellants/defendants to the
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