Hindu Law – Mitakshara law – Property allotted to son in partition – Whether retains character of coparcenery property – Held: 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 – On facts, properties acquired by son in the partition although are separate property qua other relations but it is a coparcenary property in so far as his sons and grandsons are concerned – Plaintiffs being his sons and grandson have a right in the said property – It cannot be said that the suit filed by the plaintiffs challenging the document executed between their father and uncle was not maintainable. Deeds and Documents – Exchange deed – Admissibility in evidence – On facts, two brothers transferred the ownership of their respective properties through deed of exchange – One building also subject matter of the exchange deed, value of which exceeded Rs. 100/- and was not registered – Held: Since the exchange deed had the effect of creating and taking away the rights in respect of an immovable property-building, it required registration – Being an unregistered document, it could not be taken into account to the extent of the transfer of an immovable property – It is inadmissible in evidence and as such can neither be proved u/s. 91 nor any oral evidence can be given to prove its contents – Thus, the High Court rightly discarded the exchange deed – Transfer of Property, 1882 – ss. 118, 54 – Registration Act, 1908 – ss. 17, 49 – Evidence Act, 1872 – s. 91.
Dismissing the appeal, the Court
HELD: 1.1 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. On facts, the properties acquired by defendant No.2 in the partition although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. 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. 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. [Paras 12, 16][42-CD; 44-E-F]
C. Krishna Prasad v. C.I.T, Bangalore [1975] 2 SCR
709 : (1975) 1 SCC 160; M. Yogendra and Ors. v. Leelamma N. and Ors. [2009] 12 SCR 38 : (2009) 15 SCC 184; Rohit Chauhan v. Surinder Singh and Ors. [2013] 7 SCR 897 : (2013) 9 SCC 419 – referred to.
1.2 The transfer of ownership of their respective properties by defendant Nos. 1 and 2 was done through deed of exchange. It was contended by defendant No.1 that the exchange was only of the businesses. However, a careful perusal of the deed 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. It is clear from s. 118 of the Transfer of Property Act 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 has not been registered. [Paras 17, 18][44-B-C; 45-G-H]
1.3 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 s. 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 u/s. 17. 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. 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. Since the deed is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 nor any oral evidence can be given to prove its contents. Therefore, the High Court rightly discarded the exchange deed. [Paras 20, 22][45-G-H; 46-A, E-F]
1.4 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 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 appellant to claim the benefit available under Section 53A of the T.P. Act. [Para 23][46-G-H; 47-A] Roshan Singh & Ors. v. Zile Singh & Ors. [1988] 2 SCR 1106 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.