Following substantial question of law arose for consideration of the Court as to whether the Courts below erred in law in not exhibiting the document styled as 'Deed of relinquishment without consideration' for want of registration and, if yes, whether the proceedings to be remitted to the trial Judge?
The document in question was deed of relinquishment without consideration. Courts below had held that the said document required registration and since it was not registered, it was not admissible in evidence.
It was observed that vide said document in question, two real brothers acknowledged that they mutually effected partition of the ancestral property number of years back and one of them having received the allotted share had also sold the land of his share.
In fact the document in question was more in form of an acknowledgment of something which had taken place years back and on the basis thereof the declaring party concerned did not wanted to exercise any right over the property mentioned in the document. The document in question did not lead to creation or extinguishing of right/title/interest in the property.
In the instant matter, the Court held that such document does not require registration under section 17(1) (b) of the Registration Act and the Courts below erred in law by rejecting or ignoring the said document and accordingly the matter was remanded back.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 450/ 2013
Bhaurao s/o Harichand Sahare
VERSUS
Santosh s/o Jairam Sahare
CORAM: A.B.CHAUDHARI, J
.
DATED: 1st July, 2014.
Admit. The instant Second Appeal is taken up for final
1.
disposal with the consent of the rival parties.
2.
The following substantial question of law arises for
my consideration, after hearing the learned counsel for rival
parties:
Whether the Courts below erred
in law in not exhibiting the
document styled as 'Deed of
relinquishment without consideration’
dated 30th March. 1992 filed along with
list Exh.61 in RCS No. 128/2009 for
want of registration and, if yes, whether
the proceedings are required to be
remitted to the trial Judge?
3
Heard learned counsel for the rival parties for quite
3.
..Yes.
some time. Perused the deed of relinquishment without
consideration dated 30th March 1992. Both the Courts below have
held that the said document required registration and since it
was not registered, it was not admissible and was not exhibited.
As a result it was not proved and remained a unproved
documents with the list Exh.61.
4.
I have gone through the document carefully. What I
find from the said document is that Dadu @ Jairam Sahare
and Harichand Sahare, the real brothers, stated in the document
that they had ancestral property at Mouza Jabbartola and
Mouza Khairbodi. Both of them had mutually effected partition
number of years before and accordingly Dadu @ Jairam having
received the allotted share, also sold the land of his share. It is also
stated that 0.20R area of land out of Gut No. 648, 0.81R of
Mouza Khairbodi was sold to one Patiram Chaudhari. It is further
stated that therefore, he has no right/title over the lands
described in the document executed by him in any manner.
Therefore, though Talathi record shows the names of the two
brothers jointly in respect of the said lands mentioned in the
document, Dadu @ Jairam has given up his right, title and
interest in those lands in favour of his brotherHarichand. It is
further declared that, therefore, Harichand would be the exclusive
owner of the agricultural land described and accordingly the
entries should be corrected/deleted/modified solely in the name
of Harichand Sahara for which Dadu @ Jairam had no objection.
Section 17(1) (b) of the Registration Act, 1908 reads thus:
“17(1):
The following documents shall be
registered, if the property to which they relate is
situate in a district in which, and if they have been
executed on or after the date on which, Act XVI of
1864, or the Indian Registration Act, 1866, or the
Indian Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or comes
into force, namely,
......
(b) other nontestamentary instruments which
(a)
purport or operate to create, declare, assign, limit
or extinguish, whether in present or in future, any
right, title or interest, whether vested or
contingent, of the value of one hundred rupees and
...............
........”
(c)
upwards, to or in immovable property;
Undoubtedly, a superficial reading of the said document shows
that it declares, creates and extinguishes the right, title and
interest and also vests in relation to immovable property value of
which is above Rs. 100/. The document, in fact, records a very
material fact that years before both the brothers made oral
partition of their ancestral property and took their respective
shares and not only that Dadu @ Jairam even sold his share. That
was why he did not want to exercise any right over the
property mentioned in the document as he acknowledged that the
property was of Harichand. Therefore, it is not that by this
very document right/title/interest was created or extinguished.
But the recitals which I have quoted earlier, clearly show that the
right, title and interest vesting or extinguishment was all done
in the previous or past years and the mention thereof only is
found in the present documents by way of acknowledgment of
past event of partition which was acted upon or the notes. It is
thus clear that the present document does not itself inherently
divest, vest, extinguish any right, title or interest in any of the
parties and, therefore, in the light of the decision of the Supreme
Court in the case of Roshan Singh vs. Zile Singh : AIR 1988 SC
881 and other catena of decisions following the said decision,
the Courts below have committed an error in treating the said
document as the one requiring registration under section 17(1)
(b) of the Registration Act. It would be apt to quote the following
paragraphs from the decision in Roshan Singh (supra):
“13.
On its true construction, the document
Exh. P12 as well as the subsequent confirmatory panch
faisla Exh.P1 merely contains the recitals of a past
event, namely, a decision arrived at between the
parties as to the manner in which the parties would
enjoy the distinct items of joint family property in
severalty. What follows in Exh. P12 is a mere list of
properties allotted at a partition and it cannot be
construed to be an instrument of partition and therefore
did not require registration under S.17(1)(b) of the Act.
That apart, the document could always be looked into
for the collateral purpose of proving the nature and
14.
allotted to the members.
character of possession of each item of property
The matter can be viewed from another
angle. The true and intrinsic character of the
memorandum Exh.P12 as later confirmed by the panch
failsa Exh.P1 was to record the settlement of family
arrangement. The parties set up competing claims
to the properties and there was an adjustment of the
rights of the parties. By such an arrangement, it was
intended to set at rest competing claims amongst
various members of the family to secure peace and
amity. The compromise was on the footing that there
was an antecedent title of the parties to the properties
and the settlement acknowledged and defined title of
each of the parties. ......... ...
15.
This view was adopted by the Privy
Council in subsequent decisions and the High Courts
in India. To the same effect is the decision of this Court
in Sau Madho Das v. Mukand Ram,(1955) 2 SCR 22:
(AIR 1955 SC 481). The true principle that emerges
can be stated thus,: If the arrangement of compromise
is one under which a person having an absolute title to
the property transfers his title in some of the items
thereof to the others, the formalities prescribed by law
have to be complied with, since the transferees derive
their respective title through the transferor. If, on the
other hand, the parties set up competing titles and the
differences are resolved by the compromise, there is no
question of one deriving title from the other, and
therefore, the arrangement does not fall within the
mischief of S.17 read with S.49 of the Registration Act
as no interest in property is created or declared by the
document for the first time. As pointed out by this
Court in Sau Madho Das’ case, it is assumed that the
title had always resided in him or her so far as the
property falling to his or her share is concerned and
therefore no conveyance is necessary.
16.
........... The document Exh.P12 does not
effect a partition but merely records the nature of the
arrangement arrived at as regards the division of the
remaining property. A mere agreement to divide
does not require registration. But if the writing itself
effects a division, it must be registered. See : Rajangam
Ayyar v. Rajangam Ayyar, (1923) 69 Ind Cas 123: (AIR
1922 PC 266) and Nani Bai vs. Gita Bai, AIR 1958 SC
706. It is wellsettled that the document though
unregistered can however be looked into for the
limited purpose of establishing a severance in status,
though that severance would ultimately affect the
nature of the possession held by the members of the
separated family as cotenants. The document Exh.
P12 can be used for the limited and collateral purpose
of showing that the subsequent division of the
properties allotted was in pursuance of the original
intention to divide. In any view, the document Edxh.
P12 was a mere list of properties allotted to the shares
of the parties.”
5.
From the submissions made by the rival counsel, it
appears to me that the said document was the fulcrum of the
lis and since I have found that the Courts below have erred in law
in rejecting or ignoring the said document, the only way out now
is to remand the matter (R.C.S.No. 128/2009) to the trial Court
for exhibiting the document and also allowing both the parties to
lead evidence on the said document and related aspect of the
matter and also for crossexamination and for judging the
evidentiary value thereof. That being so, in my opinion, the
ORDER
following order will have to be made. Hence the order:
10
1) Second Appeal No. 450/2013 is partly allowed.
2) The judgment and decree made by the Courts below,
namely (1) dated 31.08.2013 passed by Principal District
Judge, Gondia in Regular Civil Appeal No.177/2012 ; and (2)
judgment and decree dated 24.09.2012 passed by Joint Civil
Judge, Sr.Dn. Gondia in Regular Civil Suit No.128/2009, are set
3)
aside.
The proceedings of R.C.S. No.128/2009 are sent back to
the trial Judge who shall exhibit the document with list Exh.61
and allow the parties to lead their evidence afresh in the Suit
including crossexamination of the witnesses again.
4)
Since the Suit relates to the year 2009, the trial Judge shall
expedite hearing of the Suit and decide the same as early as
possible and, in any case, within a period of one year from the
date of appearance of the parties.
5)
The parties shall appear before the trial Judge on 4 August,
th
2014.
6)
No order as to costs.
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