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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO................OF 2018 (ARISING OUT OF SLP(C)NO.11067 OF 2017)

SITA RAM BHAMA                       … PETITIONER  

VERSUS

RAMVATAR BHAMA         … RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

The appellant, who was plaintiff in Civil Suit No.4 of

2011, has filed this appeal questioning the judgment of the

High Court of Judicature for Rajasthan at Jodhpur dated

23.01.2017 by which writ petition filed by the appellant

against the order dated 03.03.2015 of the Additional District

Judge has been dismissed.

2. Brief facts of the case which are necessary to be noted

for deciding this appeal are:

We shall refer the parties as described in the plaint.

Plaintiff and respondent are real brothers being sons of late

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Devi Dutt Ji Verma. Plaintiff's case is that his father Devi

Dutt Verma on 25.10.1992 decided to divide his self­acquired

movable and immovable properties between plaintiff and

defendant. The late father, however, did not execute any

settlement deed. Devi Dutt Verma died on 10.09.1993 and

thereafter on 09.09.1994 plaintiff and defendant recorded a

memorandum of settlement as decided by their father regarding

his self­acquired properties. The memorandum of settlement was

signed by mother of the parties as well two sisters had signed

as witnesses. According to memorandum of settlement both

residential house as well as shop in the Aguna Bazar were

distributed as decided by their late father.  

3. A Civil Suit No.5 of 2010 was filed by the plaintiff

praying for partition of the residential house as well as the

shop. In the suit an application under Order VII Rule 11 of

the Civil Procedure Code was filed by the defendant, Ramvatar

Bhama taking the plea that on 25.10.1992 during the life time

of Shri Devi Dutt Verma, the father of the plaintiff and

defendant, had partitioned the house and the shop. Southern

portion of the house came in the share of the plaintiff and

northern part came in the share of the defendant. In

confirmation  of the earlier partition  dated 25.10.1992  the

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family settlement dated 09.09.1994 was executed which was

signed by the plaintiff and defendant along with both the

sisters  as well as mother. It was pleaded by the defendant,

in view of the aforesaid, that there was no cause of action

for the plaintiff to file a partition suit. Defendant prayed

that suit of the plaintiff is liable to be dismissed.

4. The trial court vide its order dated 19.01.2011 allowed

the application filed by the defendant under Order VII Rule 11

CPC and dismissed the suit for want of cause of action in

favour of the plaintiff. The civil court accepted the case of

the defendant that the parties which were in joint family have

been divided, there being nothing joint between the parties,

there is no cause of action for the plaintiff for filing the

suit for partition. The relief for permanent injunction was

also held to be related to the partition.

5. Another Civil Suit No.4 of 2011 was filed by the

plaintiff claiming that after dismissal of the earlier suit of

the plaintiff on 19.01.2011, defendant broke open the lock of

the house and took possession of the house. Plaintiff prayed

for decree of possession against the defendant as well as

decree of permanent injunction. Plaintiff also sought for

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mesne profit and expenses.

6. In the suit, plaintiff has filed the document dated

09.09.1994 evidencing family settlement which was claimed by

the plaintiff as memorandum of settlement. An application

under Order XIII Rule 3 CPC and Article 45 and Section 35 of

the Indian Stamp Act and Sections 17 and 49 of the Indian

Registration Act, was filed by the defendant claiming that

document dated 09.09.1994 being not a registered document and

being not properly stamped is not admissible in evidence, same

may be rejected. The application was replied by the plaintiff.

The trial court vide its order dated 03.03.2015 allowed the

application of the defendant holding that the document dated

09.09.1994 is a family settlement deed and a relinquishment

document which is not admissible as evidence being

inadequately  stamped  and  not  being  registered.  Against  the

said order dated 03.03.2015 writ petition was filed by the

plaintiff which was dismissed by the High Court upholding the

order of the trial court. The High Court also took the view

that so called family settlement takes away the share of the

sisters and mother, therefore, the same was compulsorily

registrable. Aggrieved by the said order, the plaintiff has

come up in this appeal.

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7. Shri Ajit Kumar Sinha, learned senior counsel, appearing

for the appellant submits that document dated 09.09.1994 is

only a memorandum of partition which took place on 25.10.1992

when father of the parties had partitioned the house and the

shop. The memorandum of family settlement is not compulsorily

registrable. The document itself being not a family settlement

rather only a memorandum ought to have been accepted by the

trial court. He further submits that in the earlier suit filed

by the plaintiff being Suit No.5 of 2010, the suit was

dismissed under Order VII Rule 11 CPC on the plea of the

defendant that the partition has already taken place between

the parties as claimed by the plaintiff, hence,  no cause of

action has arisen for filing a suit for partition. He submits

that partition effected by the father of the parties on

25.10.1992 which was subsequently recorded on 09.09.1994

having already been accepted, it is not open for trial court

to reject the document dated 09.09.1994 for being taken in

evidence. It is submitted that by order of the court below the

plaintiff has become remedy­less.

8. Learned counsel for the respondent refuting the

submission of the learned counsel for the appellant contends

that the trial court as well as the High Court has rightly

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come to the conclusion that document dated 09.09.1994 was

compulsorily registrable. It being neither registered nor duly

stamped has rightly been rejected by the trial court from

being taken in evidence. He submits that the High Court has

rightly dismissed the writ petition filed by the plaintiff.

9. We have considered the submissions of the parties and

perused the records.

10. The only question which needs to be considered in the

present case is as to whether document dated 09.09.1994 could

have been accepted by the trial court in evidence or trial

court has rightly held the said document inadmissible. The

plaintiff claimed the document dated 09.09.1994 as memorandum

of family settlement. Plaintiff's case is that earlier

partition took place in the life time of the father of the

parties on 25.10.1992 which was recorded as memorandum of

family settlement on 09.09.1994. There are more than one

reasons due to which we are of the view that the document

dated 09.09.1994 was not mere memorandum of family settlement

rather a family settlement itself. Firstly, on 25.10.1992, the

father of the parties was himself owner of both, the residence

and shop being self­acquired properties of Devi Dutt Verma.

The  High Court has rightly held that the said document cannot

be said to be a Will, so that father could have made Will in

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favour of his two sons, plaintiff and defendant. Neither the

plaintiff nor defendant had any share in the property on the

day when it is said to have been partitioned by Devi Dutt

Verma. Devi Dutt Verma died on 10.09.1993. After his death

plaintiff, defendant and their mother as well as sisters

become the legal heirs under Hindu Succession Act, 1955

inheriting the property being a class I heir. The document

dated 09.09.1994 divided the entire property between plaintiff

and defendant which document is also claimed to be signed by

their mother as well as the sisters. In any view of the

matter, there is relinquishment of the rights of other heirs

of the properties, hence, courts below are right in their

conclusion that there being relinquishment, the document dated

09.09.1994 was compulsorily registrable under Section 17 of

the Registration Act.

11. Pertaining to family settlement, a memorandum of family

settlement and its necessity of registration, the law has been

settled by this Court. It is sufficient to refer to the

judgment of this Court in Kale and others vs. Deputy Director

of Consolidation and others, (1976) 3 SCC 119. The

propositions with regard to family settlement, its

registration were laid down by this Court in paragraphs 10 and

11:

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“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made  under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be

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upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.

11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.”

12. We are, thus, in full agreement with the view taken by

the trial court as well as the High Court that the document

dated 09.09.1994 was compulsorily registrable. The document

also being not stamped could not have been accepted in

evidence and order of trial court allowing the application

under Order XII Rule 3 CPC and the reasons given by the trial

court in allowing the application   of the defendant holding

the document as inadmissible cannot be faulted.

13. There is only one aspect of the matter which needs

consideration, i.e., whether the document dated 09.09.1994

which was inadmissible in evidence could have been used for

any collateral purpose. In a suit for partition, an

unregistered document can be relied upon for collateral

purpose i.e. severancy of title, nature of possession of

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various shares but not for the primary purpose i.e. division

of joint properties by metes and bounds. Further, an unstamped

instrument is not admissible in evidence even for collateral

purpose, until the same is impounded. A two­Judge Bench

judgment of this Court in  Yellapu Uma Maheswari and another

vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, is

appropriate. In the above case also admissibility of documents

Ext. B­21 dated 05.06.1975 a deed of memorandum and Ext. B­22

dated 04.06.1975 being an agreement between one late

Mahalakshamma, respondent No.1­plaintiff and appellant

No.1­defendant came for consideration. Objection was taken

regarding admissibility which was upheld both by the High

Court and trial court. Matter was taken up by this Court. In

the above case, this Court held that the nomenclature given to

the document is not decisive factor but the nature and

substance of the transaction has to be determined with

reference to the terms of the documents. This Court after

considering both the documents, B­21 and B­22 held that they

require registration. In paragraph 15 following was held:

“15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings

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set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B­21 and B­22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B­21 and B­22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B­21 and B­22 are not admissible in evidence for the purpose of proving primary purpose of partition.”

14. After holding the said documents as inadmissible, this

Court further proceeded to consider the question as to whether

the documents B­21 and B­22 can be used for any collateral

purpose. In the above context the Court accepted the

submission of the appellant that the documents can be looked

into for collateral purpose provided appellant­defendant to

pay the stamp duty together with penalty and get the document

impounded. In paragraphs 16 and 17 following has been laid

down:

“16.  Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy  v.  Chinnappareddigari

Venkata Reddy(AIR 1969 AP 242)  has held that

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the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant­defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B­21 and B­22 for collateral purpose subject to proof and relevance.

17.  Accordingly, the civil appeal is partly allowed holding that Exts. B­21 and B­22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy.”

15. Following the law laid down by this Court in the above

case, we are of the opinion that document dated 09.09.1994 may

be admissible in evidence for collateral purpose provided the

appellant get the document impounded and to pay the stamp duty

together with penalty as has been directed in the above case.

16. In the result, this appeal is partly allowed in the

following manner:

The order of the trial court as well as the High Court

holding that the document dated 09.09.1994   required

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compulsory registration is upheld. Following the aforesaid

view of this Court in  Yellapu Uma Maheswari (supra),  this

appeal is partly allowed holding that deed dated 09.09.1994 is

admissible in evidence for collateral purpose subject to

payment of stamp duty and penalty.  

...............................J. ( A.K. SIKRI )

...............................J. ( ASHOK BHUSHAN )

NEW DELHI, MARCH 23, 2018.