REPORTABLE

       IN THE SUPREME COURT OF INDIA

           CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL NO. 784 OF 2010

Thulasidhara & Another                 ..Appellants

            Versus

Narayanappa & Others                                      ..Respondents

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

Judgment and Order passed by the High Court of Karnataka at

Bengaluru dated 25.07.2007 passed in Regular Second Appeal

No.1033 of 2001, by which, in exercise of powers under Section

100  of the  CPC, the  High  Court  has  allowed the said  appeal

preferred by the respondent herein­original plaintiff and has

quashed and set aside the Judgment and Decree passed by both

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the Courts below dismissing the suit, and consequently decreeing

the suit, original defendants have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are

as under :

That the respondent herein­original plaintiff

(hereinafter referred to  as the ‘original  plaintiff’) instituted  the

suit in the Court of Munsiff and JMFC at Gubbi (learned Civil

Judge, Junior  Division,  Gubbi) being  Original Suit  No.141 of

1984 praying for the Judgment and Decree in his favour to the

effect that he be  declared  as the owner of the suit schedule

property and also for permanent  injunction restraining the

appellants herein­original defendants (hereinafter referred to as

the ‘original defendants’) from interfering with his peaceful

possession and enjoyment of the suit schedule property. It was

the case on behalf of the original plaintiff that he has become an

owner of the suit property having purchased the same under a

registered Sale Deed and therefore the defendants have no right

whatsoever to interfere with his peaceful possession and

enjoyment of the suit schedule property. The suit was resisted by

the defendants by filing the written statement. It was the case on

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behalf  of the  defendants that  husband of  defendant  no.1  and

father of defendant nos. 2 and 3 i.e. A. N. Krishnappa (deceased),

purchased the suit  property on 12.12.1948 under a registered

Sale Deed for a consideration of Rs.400/­. That the suit property

was blended into the joint family properties by him. That

thereafter the partition between the sons of deceased Nanjappa

was recorded on 23.04.1971 and the suit property fell into the

share of the deceased A. N. Krishnappa. It was also the case on

behalf of the defendants that they are enjoying the possession of

the suit property. It was also the case on behalf of the defendants

that no Sale Deed has been executed by the defendants in favour

of the  plaintiff  and the alleged Sale  Deed  is fabricated by  the

plaintiff.

2.1  That the learned Trial Court framed the following

issues:

“(i)  Does the plaintiff  prove his title  to the suit schedule property?

(ii) Whether the plaintiff proves his lawful possession of the suit schedule property on the date of suit?

(iii)  Does  the plaintiff  prove  the  interference by the defendants to his possession of the suit property?”

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2.2 That both the parties led evidence, both, oral as well as

documentary. That after considering the submissions made on

behalf of the rival parties and on appreciation of evidence,

learned Trial Court held that there was a partition between family

on 23.4.1971 and for that the learned Trial Court observed and

held that Exhibit D4(Partition Deed dated 23.04.1971) is

admissible in evidence. The learned Trial Court also observed and

held that the suit property was available at the time of partition.

The learned Trial Court also observed and held that Exhibit P1

(the Sale Deed relied upon by the original plaintiff) was only a

nominal Sale  Deed and  not an out and out sale deed since

Exhibit P1 was executed as security for loan and never intended

to sell the suit property. The learned Trial Court also observed

and held that the suit property was purchased by late

Krishnappa for a sum of Rs.400/­ in 1948 and thereafter it is

stated to have been sold at Rs.200/­ after 16 years i.e. in 1964,

which is highly improbable. The learned Trial Court also gave a

specific finding that there was a concealment of material facts in

the suit,  which shows  mala  fide  intention of the plaintiff.  The

learned Trial Court also held that plaintiff, in collusion with PW2,

has got executed a sham document in his favour. By holding so

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and recording above findings, the learned Trial Court dismissed

the suit.  

2.3 The First Appellate Court dismissed the appeal

preferred by the original  plaintiff  and confirmed the Judgment

and Decree passed by the learned Trial Court dismissing the suit.

While dismissing the appeal, the  learned First Appellate Court

observed that Exhibit D4 cannot be said to be a Partition Deed

and can be said to be only a list of properties partitioned and

does not create or extinguish any right in the immovable property

and therefore not a compulsorily registrable document and

therefore Exhibit D4 is admissible in evidence.    

3. Feeling aggrieved and dissatisfied with the Judgment

and Decree passed by the learned Trial Court confirmed by the

First Appellate Court, the original plaintiff filed a Regular Second

Appeal No.1033 of 2001 before the High Court. The High Court

framed only one substantial question of law  which reads as

under :  

“Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973,  that  is,  subsequent to the date 23.4.1971 when Ex.D1 – Partition deed – Palupatti is alleged to have come into existence?”

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3.1 That by the impugned Judgment and Order, the High

Court has allowed the said appeal and has interfered with the

findings of facts recorded by both the Courts below and

consequently  has  decreed the suit  by holding  that  Exhibit  D4

required registration and therefore the same was inadmissible in

evidence.   The High Court further observed and held that both

the Courts  below are not justified  in holding  that  document ­

Exhibit P1 was only a nominal sale deed and that the same was

not acted upon.

3.2 Feeling aggrieved and dissatisfied with the impugned

Judgment and Order passed by the High Court, original

defendants have preferred the present appeal.

4. Ms. Kiran Suri, learned Senior Advocate has appeared

on behalf  of the  appellants­original  defendants  and Ms.  K.  V.

Bharathi Upadhyaya, learned Advocate has appeared on behalf of

the respondent­original plaintiff and wife and son of the original

plaintiff (newly added respondents), who are permitted to be

impleaded as respondents by this Court.

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5. Ms. Kiran Suri, learned Senior Advocate appearing on

behalf of the original defendants has vehemently submitted that

the High Court has exceeded in its jurisdiction under Section 100

of the CPC by interfering with the concurrent findings of facts

recorded by both the Courts below.  

5.1 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that in fact substantial question of law framed by the High Court

as such cannot be said to be a substantial question of law at all

and the same can be said to be a question of fact. It is submitted

that therefore the High Court has committed a grave error and/or

has exceeded in its jurisdiction by entering into the question of

fact and thereby by interfering with the concurrent findings of

facts recorded by the Courts below.

5.2 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that High Court has committed a serious error in holding that

Exhibit D4 requires registration, whereas, both the courts below

clearly recorded that Exhibit D4 does not require any

registration.

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5.3 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that High Court has committed a grave error in observing and

holding that as Exhibit D4 was an unregistered document and

therefore the same was not admissible in evidence.

5.4 It is vehemently submitted by Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that assuming that Exhibit D4 requires registration and the same

was unregistered, in that case also, the same document can be

used and considered for collateral purpose. It is submitted that

even otherwise and as held by this Court in the case of Kale and

Others v.  Deputy Director  of  Consolidation and Others  (1976) 3

SCC  119 even if the family settlement  was not registered, it

would operate as a complete estoppel against the original plaintiff

who was party to such family settlement.   It is submitted that

therefore, the High Court has committed a grave error of law in

not giving effect to the Doctrine of Estoppel.

5.5 Relying upon the decision of this Court in the case of

Subraya M.N. v. Vittala M.N. and Others  (2016) 8 SCC 705, Ms.

Kiran Suri, learned Senior Advocate appearing on behalf of the

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original  defendants has vehemently  submitted  that  as held by

this Court in the aforesaid decision, when family

arrangement/settlement is orally made, no registration is

required and that  would be admissible in evidence, however,

when reduced in writing, registration is essential, without which

it was not admissible in evidence. It is submitted that however it

is further observed and held by this Court in the aforesaid

decision that even without registration, written document of

family arrangement/settlement can be used as corroborative

evidence  as  explaining the  arrangement  made  thereunder  and

conduct of the parties. It is submitted that it is further observed

and held by this Court in the aforesaid decision that unregistered

document of family  arrangement can be used as corroborative

piece of  evidence  for explaining the nature of

settlement/arrangement arrived at between the parties, conduct

of plaintiff members in receiving money from the defendant

members of the family in  lieu of relinquishing their  interest in

certain family properties. It is submitted that in the present case,

document D4 dated 23.04.1971 was in fact acted upon by all the

parties including the plaintiff and therefore assuming that

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document D4 required registration, in that case also, the same

can be used as corroborative evidence.  

5.6 It is submitted by Ms. Kiran Suri, learned Senior

Advocate appearing on behalf of the original defendants that as

such document D4 cannot be said to be a Partition Deed and it

can be said to be a document containing list of properties allotted

to parties and therefore the same was not required to be

registered. It is  submitted  that, therefore, the  High Court  has

committed a grave error in holding that as Exhibit D4 was an

unregistered document, the same was inadmissible in evidence.

In support of her above submissions, she has heavily relied upon

the  decisions  of this  Court in the case  of  Roshan  Singh  and

Others v. Zile Singh and Others (2018) 14 SCC 814.

5.7 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that the High Court has committed a serious error in holding that

the suit property was not available for partition in the year 1971

with the joint family in the year 1971.   It is submitted that by

holding so, the High Court has not at all considered the fact that

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Exhibit P1, a Sale  Deed relied upon by the plaintiff, was a

nominal Sale Deed and everybody understood.

5.8 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that the High Court has committed a grave error in interfering

with the  findings of  the Courts below that Exhibit  P1 exhibits

only as a security and is not a document for sale.

5.9 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that High Court has committed a grave error in interfering with

the findings of facts recorded by both the courts below that

Exhibit P1 was not acted upon. It is further submitted that both

the Courts below clearly recorded in their respective findings that

the possession remained with the defendants and the

consideration for the sale Exhibit P1 was inadequate and

therefore no title passed on.

5.10 It is submitted by Ms. Kiran Suri, learned Senior

Advocate appearing on behalf of the appellants­original

defendants that as observed and held by this Court in the case of

Kaliaperumal v.  Rajagopal  and Another  (2009) 4 SCC 193 that

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though on registration of Sale Deed under the Registration Act,

1908, title will normally pass to the purchaser from the date of

the execution of the Sale Deed, true test is the intention of the

parties. It  is  submitted  that it is  held  by this  Court that the

registration is prima facie proof of intention of transfer of

property,  but not a proof  of  operative transfer.  It is submitted

that it is further  observed and held by this  Court that  where

recitals are insufficient or ambiguous, circumstances and

conduct of parties can be looked  into, subject  to provisions of

Section 92 of the Evidence Act.

5.11 It is further submitted by  Ms. Kiran Suri, learned

Senior Advocate appearing on behalf of the original defendants

that the High Court has committed a very serious error in setting

aside the findings of facts recorded by both the Courts below that

Exhibit P1 was a nominal Sale Deed. It is vehemently submitted

by Ms.  Kiran Suri that in the facts  and circumstances  of the

case, the High Court has committed a grave error in giving much

emphasis on Exhibit P1 being registered Sale  Deed, without

considering the surrounding circumstances and the intention of

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the parties which are brought/borne out from the conduct of the

parties.  

5.12 Now, so far as not praying to set aside the Sale Deed

(Exhibit P1) by the defendants by filing a suit is concerned,

relying upon the decision of this Court in the case of Vidhyadhar

v.  Manikrao  and  Another  (1999)  3  SCC  573, it is vehemently

submitted that  in a suit filed by the plaintiff for a declaration to

declare him an owner on the basis of the Sale Deed, the

defendant who is a stranger to the Sale Deed can raise a plea

that the Sale Deed was void, fictitious, collusive or not intended

to be acted upon and/or not binding to him. It is submitted that

as held by this Court  in the aforesaid decision, defendant can

raise any legitimate plea available to him under the law to defeat

the suit of the plaintiff. It is submitted that therefore non­filing of

the suit by the defendant to set aside the Sale Deed (Exhibit P1)

and/or not specifically praying to quash and set aside the Sale

Deed (Exhibit P1), would not defeat the case of the defendant and

the same cannot go against the defendant.  

5.13 Making above submissions and relying upon the

decisions of this Court, it is prayed to allow the present appeal

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and quash and set aside the  impugned Judgement and Order

passed by the  High  Court and restoring the Judgement and

Decree passed by the learned Trial Court dismissing the suit.  

6. Present  appeal is vehemently  opposed  by  Ms.  K.  V.

Bharathi  Upadhyaya, learned  Advocate  appearing  on behalf  of

the newly added respondents (wife and son of the original

plaintiff).

6.1 It is vehemently submitted by  Ms. K. V. Bharathi,

learned Advocate appearing on behalf of the contesting

respondents that in the facts and circumstances of the case, the

High Court has rightly decreed the suit and has rightly held that

the  original  plaintiff is  entitled to the  declaration  that  he had

become the owner of the suit property under the registered Sale

Deed.

6.2 It is vehemently submitted by  Ms. K. V. Bharathi,

learned Advocate appearing on behalf of the contesting

respondents that on appreciation of evidence and having found

that there was a registered Sale Deed in favour of the original

plaintiff, the High Court has rightly interfered with the findings

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recorded  by  both the  Courts  below  as the said findings  were

perverse.  

6.3 It is further submitted by learned Advocate appearing

on behalf of the contesting respondents that as such, the High

Court had framed the substantial question of law and thereafter

had answered the substantial question of law framed and

therefore the  High  Court has  not exceeded in its jurisdiction

permissible under the law, and more particularly, has exercised

the Jurisdiction within the parameters of Section 100 of the CPC.

6.4 It is further submitted by Ms. K. V. Bharathi, learned

Advocate appearing on behalf of the contesting respondents that

as such, there was a registered Sale Deed in favour of the original

plaintiff,  on payment of the sale  consideration and  in  fact  the

same was acted upon and the possession was handed over

pursuant to and under the registered Sale Deed and, therefore,

the  High Court  has  rightly  held that the  original  plaintiff  has

become the absolute owner pursuant to the registered Sale Deed

dated 22.06.1964 (Exhibit P1).

6.5 It is further submitted by Ms. K. V. Bharathi, learned

Advocate appearing on behalf of the contesting respondents that

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in  fact  by registered Sale Deed dated 22.06.1964  (Exhibit  P1),

which was also signed by the plaintiff along with two brothers

and their father Nanjappa, the suit property in question, was sold

in favour of Siddalingappa. Therefore, Siddalingappa became the

absolute owner and thereafter the plaintiff  purchased the suit

property from the above Siddalingappa under registered Sale

Deed dated 18.05.1973 (Exhibit P2). It is submitted therefore, the

plaintiff  became the absolute owner of the suit property under

the registered Sale Deed dated 18.05.1973 (Exhibit P2).

6.6 It is further submitted by learned Advocate appearing

on behalf of the contesting respondents that the registered Sale

Deed dated 22.06.1964 (Exhibit P1) cannot be said to be a

nominal Sale Deed as held by the High Court.

6.7 It is further submitted by Ms. K. V. Bharathi, learned

Advocate appearing on behalf of the contesting respondents that

in any case, nobody challenged either the registered Sale Deed

dated 22.06.1964 (Exhibit P1) or the subsequent registered Sale

Deed dated 18.05.1973 (Exhibit P2). It is submitted that none of

the defendants challenged the aforesaid two registered Sale

Deeds. It is submitted therefore, in absence of any challenge, in

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respect of the aforesaid Sale Deeds, more particularly, the Sale

Deed dated 18.05.1973 (Exhibit P2) and considering Section 54

of the Transfer of Property Act, the original plaintiff has become

the absolute owner pursuant to the registered Sale Deed(s).

6.8 It is further submitted by Ms. K. V. Bharathi, learned

Advocate appearing on behalf of the contesting respondents that

the so­called  Partition  Deed  dated  23.04.1971 (Exhibit  D4) is

rightly held to be not admissible in evidence as the same was

unregistered. It is further submitted that Exhibit D4 cannot be

said to  be a list of property  partitioned. It is submitted that

Exhibit D4 is a Partition Deed and therefore the same was

required to be registered. It is submitted that as the same was

unregistered, as rightly held by the High Court, the same was not

admissible in evidence. It is submitted, therefore, the High Court

has rightly not considered the so­called Partition  Deed  dated

23.04.1971 (Exhibit D4).

6.9 It is further submitted by learned Advocate appearing

on behalf of the contesting respondents that even otherwise and

in view of the earlier Sale Deed dated 22.06.1964 (Exhibit P1), by

which the suit property was sold by the plaintiff along with his

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two brothers and his father Nanjappa in favour of Siddalingappa,

at the time of alleged partition dated 23.04.1971, the suit

property  was not available for partition. It is submitted that

therefore,  even otherwise,  at the  time of  so­called partition on

23.04.1971, as the property was already sold, the same could not

have been subjected to partition and therefore the Krishnappa

could not have acquired any interest in the suit property

pursuant to the alleged Partition Deed dated 23.04.1971.

6.10 Making above submissions it is prayed to dismiss the

present appeal.

7. Heard  learned Advocates  appearing  on behalf  of the

respective parties at length.

7.1 At the outset, it is  required to be noted that by the

impugned Judgment and  Order, in a Second Appeal and in

exercise of the powers under Section 100 of the CPC, the High

Court has set aside the findings of  facts recorded by both the

Courts below. The learned Trial Court dismissed the suit and the

same came to be confirmed by the learned First Appellate Court.

While allowing the second appeal,  the High Court framed only

one substantial question of law which reads as under :

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“Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973,  that  is,  subsequent to the date 23.4.1971 when Ex.D1 – Partition deed – Palupatti is alleged to have come into existence?”

No other substantial question of law was framed. We

are  afraid that the  aforesaid can  be said to  be  a substantial

question of law at all. It cannot be disputed and even as per the

law laid down  by this Court in the catena of decisions, the

jurisdiction of the High Court to entertain Second Appeal under

Section 100 of the CPC after the 1976 amendment, is confined

only with the Second Appeal involving a substantial question of

law. The existence of ‘a substantial question of law’ is a sine qua

non  for the exercise of the jurisdiction under Section 100 of the

CPC.

7.2 As  observed  and  held by this  Court in the case of

Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC

722, in the Second Appeal under Section 100 of the CPC, the

High Court cannot substitute its own opinion for that of the First

Appellate Court, unless it  finds that the conclusions drawn by

the lower Court were erroneous being :

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(i) Contrary to the mandatory provisions of the applicable

law;                               OR  

(ii) Contrary to the law as pronounced by the Apex Court; OR

(iii)  Based on in­admissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision

that if First  Appellate  Court  has exercised its  discretion in a

judicial manner, its decision cannot be recorded as suffering from

an error either of  law or of procedure requiring interference in

Second Appeal. It is further observed that the Trial Court could

have decided differently is not a question of law justifying

interference in Second Appeal.  

7.3 When a substantial question of law can be said to have

arisen, has been dealt with and considered by this Court in the

case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the

aforesaid decision, this Court has specifically observed and held :

“Under Section 100 CPC, after the 1976 amendment, it is essential for the  High  Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in

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which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible  evidence  which  if it  was  omitted,  an opposite  conclusion was possible. In either  of the above situations, a substantial question of law can arise.”

7.4 Considering the law  laid  down by  this  Court in the

aforesaid decisions and even considering Section 100 of the CPC,

the substantial question of law framed by the High Court in the

present case, as such, cannot be said to be a substantial

question of law at all.

8. Having gone through the findings recorded by the Trial

Court as well as the First Appellate Court, it appears that both,

the Trial Court as well as the First Appellate Court, gave cogent

reasons on appreciation of evidence on record, more particularly,

the Sale  Deed dated 22.06.1964  (Exhibit  P1),  document dated

23.04.1971 (Exhibit D4) and subsequent Sale Deed dated

18.05.1973 (Exhibit P2) and thereafter held that the plaintiff is

not  entitled  to  the declaration that he has become the owner.

While interfering with the Judgment and Decree passed by both

the  Courts below, it appears that the  High  Court has again

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reappreciated the entire evidence on record, which in exercise of

powers under Section 100 of the CPC, is not permissible. Under

the circumstances, the High Court has committed a

grave/manifest error in quashing and setting aside the findings

recorded by both the Courts below, which were on appreciation of

evidence on record. The High Court has exceeded in its

jurisdiction while exercising the powers under Section 100 of the

CPC.

9. Even otherwise, on merits also, the impugned

Judgment and  Order passed by the  High  Court allowing the

appeal and consequently decreeing the suit, is not sustainable. It

was the case on behalf of the original plaintiff that the suit

property  was sold by registered Sale  Deed dated 22.06.1964

(Exhibit P1) by the plaintiff, along with his two brothers and their

father Nanjappa in favour of one Siddalingappa from whom the

plaintiff subsequently purchased the suit property under the

registered Sale Deed dated 18.05.1973 (Exhibit P2). On the other

hand, it was specific case on behalf of the defendants that the

Sale Deed dated 22.06.1964 was a nominal Sale Deed and was

never acted upon and as such was not to be acted upon at all. It

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was also the case on behalf of the defendants that thereafter in

the year 1971, the partition took place and the same was reduced

in writing by document dated 23.04.1971 (Exhibit D4) and under

the same document, it was recorded that the suit property had

gone in favour of Krishnappa. Plaintiff denied that any partition

was reduced in writing, more particularly, in the form of Exhibit

D4 dated 23.04.1971. The High Court has observed and held that

in view of the registered  Sale  Deed  executed in favour  of the

plaintiff, the  plaintiff  has  become  the  actual owner.  The  High

Court has allowed the appeal and subsequently has decreed the

suits mainly on the ground that :

(i) That the registered Sale Deed dated 22.06.1964 (Exhibit P1)

was an out and out Sale Deed and the same was not a nominal

Sale Deed;

(ii) That the defendants have never challenged the registered Sale

Deed  dated  22.06.1964  (Exhibit  P1)  and even  the  subsequent

registered Sale Deed dated 18.05.1973 (Exhibit P2).

(iii) Exhibit D4­Partition Deed dated 23.04.1971 purports to

convey interest in the immovable property in favour of

Krishnappa and that therefore the same  was required to be

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registered  and  as such it  was  an  unregistered  document  and

therefore having regard to the provisions of the Registration Act,

the same is not admissible in evidence and therefore the same

cannot be looked into.

9.1 Now so far as the registered Sale Deed (Exhibit P1) is

concerned, it  is an admitted position that Krishnappa is not a

signatory to the said Sale Deed. Therefore, as such, the said Sale

Deed does not bind Krishnappa. Even in the cross­examination,

the original plaintiff has admitted that Exhibit P1 was not signed

by Krishnappa.   He has also admitted that his other brothers

Rangappa  and  Govindaiah  also  did  not sign.  From  the entire

evidence on record, it appears that the suit property was initially

purchased by Krishnappa in the year 1948 and thereafter, due to

some internal family problems with respect to said suit property,

it was the Krishnappa who thrown the same property into the

joint family property in the year 1952 and Krishnappa executed

the Sale  Deed  in  favour of  his father Nanjappa stating that it

belongs to joint family  property.  From  the entire evidence  on

record, it appears that even the Sale Deed (Exhibit P1) was not

acted upon. Between 1964 to 1971, even the name of

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Siddalingappa was not mutated/recorded in the revenue record.

Both the Courts below considered in detail the aforesaid aspect

which has been upset by the High Court. It is  required to be

noted that  even  in the  cross­examination  the  original  plaintiff

was not sure about the sale consideration received from

Siddalingappa as a remuneration in view of the registered Sale

Deed dated 22.06.1964 (Exhibit P1). Even otherwise, even

according to the plaintiff and even considering the material on

record, as the suit land was a joint family property and/or was in

the name of Nanjappa, all the brothers had an equal share and

therefore the same could not have been sold by Nanjappa,

plaintiff and other two brothers only and without consent of other

brothers including Krishnappa unless the property was

partitioned. In the  cross­examination the  original  plaintiff  has

specifically admitted that in the year 1965­66, when the father

sold away the said suit schedule property, there was no partition

between the  brothers at that time. In the circumstances, the

registered Sale Deed dated 22.06.1964 (Exhibit P1), by which the

suit property was sold to Siddalingappa, cannot bind

Krishnappa. It was a registered Sale Deed which was not acted

upon. Even the plaintiff  and Siddalingappa tried to mutate the

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name of Siddalingappa in the year 1973, which was the subject

matter of the Revenue Authority.

9.2 Now so far as the submission on behalf of the plaintiff

that as the registered Sale Deed dated 22.06.1964 (Exhibit   P1)

was  not challenged  by the  defendant  by  way  of suit or even

counter claim and therefore thereafter it  was not open for the

defendants to challenge the same is concerned, at the outset, it is

required to be noted and as observed hereinabove, Krishnappa

was not a signatory to the said document/Sale Deed and

therefore it cannot bind him or his heirs. Even otherwise and as

held by this Court in the case of  Vidhyadhar  (supra), in a suit

filed by the plaintiff for a declaration on the basis of the

registered Sale Deed, it is always open for the defendant, who is a

stranger to the Sale Deed, to raise a plea that the Sale Deed was

void, fictitious, collusive or not intended to be acted upon and or

not binding to him. In the aforesaid decision, it is observed and

held by this Court that a person, in his capacity as a defendant,

can raise any legitimate plea available to him under the law to

defeat the suit of the plaintiff. In paragraph 21 this Court has

observed and held as under :

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“21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff.  This  would also  include  the  plea  that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord­tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is  not  possessed of  any other  property  so  that that person, namely, the transferee, may institute  eviction proceedings on the  ground of his genuine need and thus evict the tenant who could  not  have  been otherwise  evicted. In this situation, the  deed  by  which  the  property  was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted  upon. It  would  be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed  was fictitious and collusive in nature. We, therefore, cannot  subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram [(1905) 32 IA 113 : ILR 27 All 271] in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.”

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Therefore, in the facts and circumstances of the case, we are of

the opinion that without even challenging the Sale Deed (Exhibit

P1) by way of behalf of independent proceedings, in a suit filed by

the plaintiff seeking a declaration that he has become the owner

pursuant to the registered Sale Deed, it is always open for the

defendant, who is stranger to the Sale Deed, to raise a plea that

either the  Sale  Deed is  not  binding to  him  or the same  was

without consideration or it was a nominal Sale Deed or void or

fictitious, for that matter, collusive and not intended to be acted

upon.

9.3 Now so far as the finding recorded by the High Court

that  as  the  Partition Deed dated 23.04.1971  (Exhibit  D4)  was

unregistered though required registration under the Provisions of

the Registration Act and therefore the same is not admissible in

evidence is concerned,  it is  required to be noted that as such

Exhibit D4 can be said to be a Palupatti as has been described as

Palupatti.  Palupatti  means list of  properties partitioned. At the

most, it can be said to be a family arrangement. Therefore, in the

facts and circumstances of the case, the same was not required

to be registered.

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9.4 It is required to be noted that the deed dated

23.04.1971, under which the suit property had gone /devolved in

favour of the Krishnappa,  was reduced in  writing before the

Panchayat and Panchas, and the same was signed by the village

people/panchayat people and all the  members of the family

including even the plaintiff.   Though the plaintiff disputed that

the partition was not reduced in writing in the form of document

Exhibit  D4,  on  considering the  entire  evidence  on  record  and

even the deposition of plaintiff (cross­examination), he has

specifically admitted that the oral partition had taken place in the

year 1971. He has also admitted that he has got the share which

tellies with the document dated 23.04.1971 (Exhibit D4).

Execution of the document/ Partition  Deed/ Palupatta dated

23.04.1971 has been established and proved by examining

different witnesses. The High Court has refused to look into the

said document and/or consider document dated 23.04.1971

(Exhibit D4) solely on the ground that it requires registration and

therefore as it is unregistered, the same cannot be looked into.

However, as observed by this Court in the case of  Kale  (Supra)

that such a family settlement, though not registered, would

operate  as  a complete estoppel  against the  parties to such  a

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family settlement. In the aforesaid decision, this Court

considered its earlier decision in the case of S. Shanmugam Pillai

and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312

in which it was observed as under:

“13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in  order to render  justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

As observed by this Court in T.V.R. Subbu Chetty’s Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go  back  on that  agreement  when reversion actually falls open.”

9.5 As  held  by this  Court in the case  of  Subraya  M.N.

(Supra) even without registration a written document of  family

settlement/family arrangement can be used as corroborative

evidence  as  explaining the  arrangement  made  thereunder  and

conduct of the parties. In the present case, as observed

hereinabove, even the  plaintiff has  also categorically admitted

that the oral partition had taken place on 23.04.1971 and he also

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admitted that 3 to 4 punchayat people were also present.

However, according to him, the same was not reduced in writing.

Therefore, even accepting the case of plaintiff that there was an

oral  partition  on  23.04.1971, the  document  Exhibit  D4  dated

23.04.1971, to which he is also the signatory and all other family

members  are  signatory, can be  said to  be  a list  of  properties

partitioned. Everybody got right/share as per the oral

partition/partition. Therefore, the same even can be used as

corroborative evidence as explaining the arrangement made

thereunder and   conduct of the parties. Therefore, in the facts

and circumstances of the case, the High Court has committed a

grave/manifest error in not looking into and/or not considering

the document Exhibit D4 dated 23.04.1971.

9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2)

executed by Siddalingappa in favour of the plaintiff is concerned,

as there was a categorically finding by both the Courts below that

the same document was sham. It is required to be noted that in

the cross­examination, the plaintiff has stated that he paid

Rs.  3000 to 4000 to Siddalingappa and the said property was

purchased by him in the year 1973. However, in the document,

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the sale consideration is stated to be Rs.200/­. Even PW2

Siddalingappa has stated that he purchased the suit  schedule

property for Rs.200/­ and he sold the suit schedule property to

the plaintiff for Rs.600/­ Therefore, it is a serious dispute with

respect to consideration paid by the plaintiff and received by the

Siddalingappa.

10. In the aforesaid facts and circumstances of the case,

the High Court was not justified in interfering with the findings

recorded by both the Courts below. For the reasons stated above,

the  impugned Judgment and Order passed by the High Court

cannot be sustained and the same deserves to be quashed and

set aside and is accordingly quashed and set aside. The

Judgment and Order passed by both the Courts below dismissing

the suit, are hereby restored and consequently the suit filed by

the original plaintiff is dismissed.  No costs.

……………………………….J. [L. NAGESWARA RAO]

NEW DELHI, ……………………………….J. MAY 1, 2019.         [M.R. SHAH]    

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