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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5415 OF 2011

SHYAM NARAYAN PRASAD … APPELLANT  

VERSUS

KRISHNA PRASAD AND ORS. … RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1. Defendant No.1, Shyam Narayan Prasad is the appellant before us.  In this

appeal he has questioned the legality and correctness of the judgment and decree

dated 15.5.2006 passed by the High Court of Sikkim in RSA No.1 of 2005.

2. One  Gopalji  Prasad  is  the  common  male  ancestor  of  the  parties.  The

appellant and Laxmi Prasad, 5th respondent herein, are the sons of Gopalji Prasad.

Respondent Nos. 1 to 3 are the sons of Laxmi Prasad and respondent No.4 is the

son of the 1st respondent.  Respondent Nos.1 to 4 are the plaintiffs in the suit, being

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Civil Suit No.10 of 2001, and the appellant and respondent Nos.5 and 6 are the

defendants.   No relief has been claimed against respondent No.6 (defendant No.3

in the suit).  For the sake of convenience, parties are referred to by the ranking in

the trial court.   

3. The plaintiffs filed the aforesaid suit against the defendants for a declaration

that the document dated 30.1.1990 (Exhibit P2) executed between defendant Nos.

1 and 2 is invalid and for certain other reliefs.   According to them, the family

property was partitioned on 31.7.1987 between Gopalji and his five sons, namely,

Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and

Suresh Kumar.  In the partition Gopalji has retained some of the properties for his

personal use till his death.  Laxmi Prasad got his share of property along with half

portion  of  existing  two-storey  RCC  building  situated  at  Singtam  Bazar,  East

Sikkim, wherein presently a liquor shop is being run.  Shyam Narayan Prasad was

allotted a shoe shop at Manihari which is run on a rented premises owned by Gouri

Shankar Prasad. He was also allotted other properties in the partition.

4. After the partition, the sons of Gopalji were put in possession of their share

of the properties.  However, Laxmi Prasad (defendant No.2) in collusion with his

brother  Shyam Narayan  Prasad  (defendant  No.1)  executed  an  agreement  dated

30.1.1990 exchanging the liquor shop at Singtam Bazar, East Sikkim with the shoe

shop  at  Manihari.  It  is  their  contention  that  since  the  property  is  an  ancestral

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property, they also have a share in the property which had fallen to the share of

defendant  No.2  and  that  he  has  no  legal  right  to  exchange  the  property  with

defendant No.1. It was further contented that the deed of exchange dated 30.1.1990

entered  into  between  defendant  Nos.1  and  2  is  in  relation  to  an  immovable

property.  Since the said document has not been registered, it has no legal effect.

5. Defendant No.1 has filed the written statement stating that the suit properties

are not ancestral properties.  He has denied the contention of the plaintiffs that the

document dated 30.1.1990 is not a valid document.  It was further contended that

the said document has already been given effect from the date of its execution.  

6. Defendant  No.  2  has  filed  the  written  statement  contending  that  for  the

alleged exchange deed, defendant No. 1 had approached him for exchanging only

the  business  of  liquor  shop  at  Sikkim with  that  of  shoe  shop  at  Gangtok  for

convenience and that he had signed the document in good faith believing that the

exchange  deed  was  only  for  the  two  businesses,  and  further,  admitted  that

exchange deed was made and executed behind the back of the plaintiffs.

7. On  the  basis  of  the  pleadings  of  the  parties,  the  trial  court  has  framed

relevant  issues.   Parties  have  led  evidence  in  support  of  their  respective

contentions.  On appreciation of the materials on record, the trial court had come to

the conclusion that the property in question is an ancestral property and that the

plaintiffs being the sons and grandson of defendant No.2, they have also equal

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share in the property allotted to him in the partition.  The suit  was accordingly

decreed.   

8. The first  defendant challenged the said judgment and decree by filing an

Appeal  No.2  of  2003  before  the  District  Judge,  Sub-Division-II,  Sikkim  at

Gangtok. The District Judge by judgment and decree dated 19.11.2004 allowed the

appeal, set aside the judgment and decree of the trial court and dismissed the suit.

The plaintiffs filed a Second Appeal No.1 of 2005 challenging the judgment and

decree of the District Judge before the High Court.  The High Court has set aside

the judgment and decree of the District Judge and restored the judgment and decree

of the trial court.

9. The contention of the learned counsel for the appellant/defendant No.1 is

that  the  entire  property  of  Gopalji  was  the  self  acquired  property  and  he  has

divided the property amongst his five sons by a deed of partition dated 1.3.1988.

According to the deed of settlement dated 30.1.1990 between defendant Nos. 1 and

2, only the businesses were transferred and not the buildings. Therefore, the sons

and the grandson of defendant No.2 have no right to seek cancellation of the said

deed. There is no exchange of immovable property as contended by the plaintiffs.

Therefore, the settlement deed does not require registration. The parties have acted

upon the said agreement.   In  the circumstances,  possession of  the  appellant  is

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protected under Section 53A of the Transfer of Property Act, 1882 (for short ‘the

T.P. Act’).

10. On the other hand, learned advocate appearing for the respondent Nos. 1 to

4/plaintiffs  submits  that  the  subject  matter  of  the  deed  of  settlement  dated

30.1.1990 is a joint family property.  The recitals of this document clearly show

that  there  is  a  transfer  of  immovable  property.  The  plaintiffs,  being  the  lineal

descendants of defendant No.2, are the members of the copercenary. They have a

right  and  interest  over  the  property  in  question.  The  settlement  deed  dated

30.1.1990  has  not  been  registered.  Hence,  it  is  inadmissible  in  evidence.

Defendant  No.1 has not  pleaded in  his  written statement  that  he has taken the

possession of the property in part performance of the contract.  Therefore, it is not

open for him to claim the benefit of Section 53A of the T.P. Act.  Learned counsel

prays for dismissal of the appeal.  

11. Having regard to the contentions urged, the first question for consideration is

whether the property allotted to defendant No.2 in the partition dated 31.07.1987

retained the character of a coparcenary property. Admittedly, Gopalji Prasad and

his five sons partitioned the property by a deed of partition dated 31.07.1987.  It is

clear from the materials on record that Gopalji Prasad retained certain properties in

the partition.  Certain properties had fallen to the share of defendant No.2 who is

the  father  of  plaintiff  Nos.  1  to  3 and grandfather  of  plaintiff  No.  4.   Certain

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properties had fallen to the share of the first defendant.   The trial court has held

that  the properties are ancestral properties.   The High Court  has confirmed the

finding of the trial court.  We do not find any ground to disagree with this finding

of the courts below.   

12. It  is  settled that  the property inherited by a male Hindu from his  father,

father’s father or father’s father’s father is  an ancestral property.  The essential

feature  of  ancestral  property,  according  to  Mitakshara  Law,  is  that  the  sons,

grandsons, and great grandsons of the person who inherits it, acquire an interest

and the rights attached to such property at the moment of their birth. The share

which a coparcener obtains on partition of ancestral property is ancestral property

as regards his male issue.  After partition, the property in the hands of the son will

continue to be the ancestral property and the natural or adopted son of that son will

take interest in it and is entitled to it by survivorship.  

13. In  C. Krishna Prasad v.  C.I.T, Bangalore, 1975 (1) SCC 160, this Court

was  considering  a  similar  question.   In  the  said  case,  C.  Krishna  Prasad,  the

appellant along with his father Krishnaswami Naidu and brother C. Krishna Kumar

formed Hindu undivided family up to October 30, 1958, when there was a partition

between Krishnaswami Naidu and his two sons. A question arose as to whether an

unmarried male Hindu on partition of a joint Hindu family can be assessed in the

status of undivided family even though no other person besides him is a member of

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the family. It was held that the share which a coparcener obtains on partition is

ancestral property as regards male issue.  It was held as under:

“The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male  issue.  They  take  an  interest  in  it  by  birth, whether they are in existence at the time of partition or  are  born  subsequently.  Such  share,  however,  is ancestral property only as regards his male issue.  As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla’s Principles of Hindu Law, 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the  coparcenary  property  as  if  it  were  his  separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently  born  to  him  or  adopted  by  him,  the alienation, whether it is by way of sale, mortgage or gift, will  nevertheless  stand,  for  a  son  cannot  object  to alienations  made  by  his  father  before  he  was  born  or begotten”.

(emphasis supplied)   14. In M. Yogendra and Ors. v. Leelamma N. and Ors. 2009 (15) SCC 184, it

was held as under:

“It is now well settled in view of several decisions of this  Court  that  the property  in the hands of  a  sole coparcener allotted  to  him in  partition  shall  be  his separate property for the same shall revive only when a son is  born to  him.  It  is  one  thing to  say  that  the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the

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sole  survivor  coparcener  shall  be  valid  whereas  in  the case of  a  coparcener  any alienation made by the karta would be valid.”

(emphasis supplied)

15. In  Rohit Chauhan  v.  Surinder Singh  and  Ors.  2013  (9)  SCC  419,  a

contention was raised by the defendant No. 1 that after partition of the joint Hindu

family property, the land allotted to the share of defendant No. 2 became his self

acquired property and he was competent to transfer the property in the manner he

desired.   It  was held that  the property which defendant No. 2 got  by virtue of

partition decree amongst his father and brothers was although separate property

qua other relations but it attained the characteristics of coparcenary property the

moment a son was born to defendant No. 2.  It was held thus:

“A person, who for the time being is the sole surviving coparcener  as  in  the  present  case  Gulab  Singh  was, before the birth of the plaintiff, was entitled to dispose of the  coparcenary  property  as  if  it  were  his  separate property.  Gulab  Singh,  till  the  birth  of  plaintiff  Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten.  But, in the present  case,  it  is  an  admitted  position  that  the property which Defendant 2 got on partition was an ancestral property and till the birth of the plaintiff he was  the  sole  surviving  coparcener  but  the  moment plaintiff  was  born,  he  got  a  share  in  the  father’s property  and  became  a  coparcener.  As  observed earlier, in view of the settled legal position, the property

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in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the  property  only  as  karta  for  legal  necessity.  It  is nobody’s case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to  the  extent  of  entire  coparcenary  property  are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out  their remedies in appropriate proceeding.”

(emphasis supplied)

16. Therefore, the properties acquired by defendant No.2 in the partition dated

31.07.1987  although  are  separate  property  qua  other  relations  but  it  is  a

coparcenary property insofar  as  his  sons  and grandsons  are  concerned.   In  the

instant  case,  there  is  a  clear  finding  by  the  trial  court  that  the  properties  are

ancestral properties which have been divided as per the deed of partition dated

31.07.1987.  The property which had fallen to the share of defendant No.2 retained

the  character  of  a  coparcenary  property  and  the  plaintiffs  being  his  sons  and

grandson have a right in the said property.  Hence, it cannot be said that the suit

filed by the plaintiffs was not maintainable.   

17. This takes us to the next question as to whether the exchange deed at Exhibit

P2 is admissible in evidence or not.  The transfer of ownership of their respective

properties  by  defendant  Nos.  1  and  2  was  done  through  Exhibit  P2  deed  of

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exchange.  It was contended by defendant No.1 that the exchange was only of the

businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC

building is  also a  subject  matter  of  the deed of  exchange.   The value of  RCC

building exceeds Rs. 100/- which is not in dispute.  Section 118 of the TP Act

defines ‘exchange’ as under:

“118. “Exchange” defined.-When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.

A  transfer  of  property  in  completion  of  an exchange can be made only in manner provided for the transfer of such property by sale”.

18.  It is clear from this provision that where either of the properties in exchange

are immovable or one of them is immovable and the value of anyone is Rs.100/- or

more, the provision of Section 54 of  the TP Act relating to sale of  immovable

property would apply.  The mode of transfer in case of exchange is the same as in

the case of sale.  It is thus clear that in the case of exchange of property of value of

Rs. 100/- and above, it can be made only by a registered instrument.  In the instant

case, the exchange deed at Exhibit P2 has not been registered.  

19. Section  49 of  the Registration  Act,  1908 provides  for  the  effect  of  non-

registration of the document which is as under:

“49.  Effect of non-registration of documents required to be registered.-No document  required  by section 17

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{or  by  any  provision  of  the  Transfer  of  Property  Act, 1882 (4 of 1882)}, to be registered shall-

(a) affect  any  immovable  property  comprised therein, or

(b) confer any power to adopt, or (c) Be received as evidence of any transaction

affecting  such  property  or  conferring  such power,

Unless it has been registered:”

20. Section 17(i)(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 Registration 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 Registration Act.  Since, the

deed of exchange has the effect of creating and taking away the rights in respect of

an  immovable  property,  namely,  RCC  building,  it  requires  registration  under

Section 17.  Since the deed of exchange has not been registered, it cannot be taken

into account to the extent of the transfer of an immovable property.   

21. In  Roshan Singh & Ors.  v.  Zile Singh & Ors.  1988 (2) SCR 1106, this

Court was considering the admissibility of an unregistered partition deed.  It was

held thus:

“……Section  17(i)(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……Two propositions must therefore flow:

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(1)  A  partition  may  be  affected  orally;  but  if  it  is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of  bargain, it will be necessary to register it.  If it be not registered, S.49 of the Act will prevent its being admitted in evidence.  Secondary evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872.”  

(emphasis supplied)

22. It is clear from the above judgment that the best evidence of the contents of

the  document  is  the  document  itself  and  as  required  under  Section  91  of  the

Evidence Act the document itself has to be produced to prove its contents. But

having regard to Section 49 of the Registration Act, any document which is not

registered as required under law, would be inadmissible in evidence and cannot,

therefore, be produced and proved under Section 91 of the Evidence Act.  Since

Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such

it  can  neither  be  proved  under  Section  91  of  the  Evidence  Act  nor  any  oral

evidence can be given to prove its contents. Therefore, the High Court has rightly

discarded the exchange deed at Exhibit P2.

23. The last contention of the learned counsel for the appellant is in relation to

application of Section 53A of the T.P Act.  It is well settled that the defendant who

intends  to  avail  the  benefit  of  this  provision  must  plead  that  he  has  taken

possession of  the property in  part  performance of  the contract.   Perusal  of  the

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written statement of the first defendant shows that he has not raised such a plea.

Pleadings are meant to give to each side, intimation of the case of the other, so that,

it may be met to enable courts to determine what is really at issue between the

parties.  No relief can be granted to a party without the pleadings. Therefore, it is

not  open  for  the  first  defendant/appellant  to  claim  the  benefit  available  under

Section 53A of the T.P. Act.  

24. In the result, this appeal fails and it is accordingly dismissed.  There will be

no order as to costs.   

    …..……………………………...J.      (ABHAY MANOHAR SAPRE)

    …….……………………………J.      (S. ABDUL NAZEER)

New Delhi; July 02, 2018.