Jharkhand High Court
Shyamlal Poddar @ Shyam Poddar vs Sukhdeo Mandal on 23 June, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025: JHHC:16513
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 157 of 2019
Shyamlal Poddar @ Shyam Poddar, aged about 80 years son of
Late Narsingh Poddar, resident of village Posta, P.O. Patrodih as
well as village- Karmatanr, P.O. and P.S. Karmatanr, District
Jamtara. ... ... Defendant no.1/Appellant no.1/Appellant
Versus
1. Sukhdeo Mandal, son of Late Budhu Mandal, resident of village
Het Karmatanr, P.O. and P.S. Karmatanr, District Jamtara
... ... Plaintiff/Respondent no.1/Respondent
2. Smt. Thakri Devi wife of late Moti Poddar
3. Kashi Poddar son of Late Moti Poddar,
nos. 2 and 3 are resident of village Posta, P.O. Patrodih, P.S.
Narayanpur, District Jamtara
4. Meena Devi, daughter of late Moti Poddar and wife of Laxmi
Verma, resident of village Karmatanr, P.O. and P.S. Karmatanr,
District Jamtara
5. Asha Devi, daughter of late Moti Poddar and wife of Mohan
Poddar, resident of village Dhakuri, P.O. Tapoban, P.S. Kunda,
District- Deoghar
... ... Proforma Defendant Nos. 2 to 5/ Profmrma
Resp. Nos. 2 to 5/ Proforma Respondents
6. Lilabati Devi aged about 65 years, wife of Shyam Lal Poddar, R/o
village + P.O.+P.S.- Karmatanr, District Jamtara
(Substituted vide order dated 29.09.2022)
6(a) Mahadeo Poddar
6(b) Manoj Kumar Poddar
Both S/o Shyam Lal Poddar r/o Village- Posta, P.O. Patrodih, P.S.
Narayanpur, District Jamtara as well as Village - Karmatanr, P.O. &
P.S.- Karmatanr, District Jamtara
6(c) Usha Devi, w/o Indra Swarnakar, r/o Vill- Kurmipara, Mihijam,
near Shiv Mandir, P.O. & P.S.- Mihijam, District- Jamtara.
6(d) Santoshi Devi Burma, w/o- Shekhar Burma, r/o village -
Joraphatak, Dhanbad (Gandhi Road), P.O. & P.S. - Dhanbad, District-
Dhanbad.
... ... Defendant No.1(a)/Appellant no. 2/Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Amar Kr. Sinha, Advocate
: Mr. Ashutosh Pd. Joshi, Advocate
For the Resp. Nos. 1 to 5 : Mr. Kaushik Sarkhel, Advocate
---
C.A.V. on 04.03.2025 Pronounced on 23.06.2025
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1. This appeal has been filed challenging the judgment and decree
dated 26.02.2019 (decree signed on 06.03.2019) passed by learned
District Judge I, Jamtara dismissing Civil Appeal No.14 of 2017 and
confirming the judgement and decree dated 31.03.2017 (decree signed
on 11.04.2017) passed by learned Civil Judge (Senior Division) I,
Jamtara in Title Suit No.9 of 2009. The appellant was the defendant
no.1 in Title Suit No.9 of 2009.
2. This appeal has been admitted for hearing on the following
substantial questions of law:
i. Whether exhibit -4 was effecting partition and
compulsorily registrable as per section 17 and 49 of
the Registration Act or it was just a memorandum of
earlier partition?
ii. Whether Oral Family Settlement (Exhibit-4) entered
into between the sons with respect to the property
acquired by their father during his lifetime without
making daughters as party to the said deed is binding
upon the parties and whether the finding of the learned
appellate court is perverse and against the mandate of
law?
3. Case of the plaintiff
I. The plaintiff Sukhdeo Mandal filed the suit for declaration of
right, title and interest over the suit properties in his favour and
against the defendant and prayed for delivery of possession over
the suit properties in his favour through the process of the court
and permanent injunction against the defendants restraining
them from disturbing his possession.
II. The land involved in the present case has been described in the
schedule to the plaint as under: -
"In the district of Jamtara, Subdivision Jamtara, Police
Station Jamtara, Out Post-Karmatarn, Anchal Jamtara,
in mouza Karmatarn No. II appertaining to A.K.J. No.
106/4115, plot No. 1206/A area 1/2 decimal and plot No.
1206/2305/A area 1/2 decimal total measuring an area
of 1 decimal of land alongwith one pucca constructed
house shown in red colour in the annexed trace map."
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III. As per the plaint, Narsingh Poddar, Son of Late Raghu Poddar
purchased 2 decimals of land from plot No. 1206 and
1206/2305 of mauza Karmatanr from the descendants of
Khartar Shaw and Ramdhani Shaw by registered deed of sale;
Narsingh Poddar entered into possession of the property in the
year 1997 and constructed house over the property having
transferrable basauri rights. The genealogy has been given in
paragraph 4 of the plaint. Narsingh Poddar had two sons,
namely, Moti Poddar and Shyam Poddar. The proforma
defendants were the descendants/legal heirs of Moti Poddar.
IV. It is the case of the plaintiff that Narsingh Poddar died in the
year 1999 and Moti Poddar died in the year 1987 and thus he
left behind only one son, namely, Shyam Poddar. The wife of
Moti Poddar is Thakuri Devi who was defendant No. 2. It was
the case of the plaintiff that after death of Narsingh Poddar, both
the brothers or their legal heirs had succeeded the property
purchased by Narsingh Poddar. It was his further case that after
death of Moti Poddar, Shyam Poddar had started creating
disturbance and ultimately the aforesaid two decimals property
was amicably divided half and half; northern one decimal of
land was allotted to Shyam Poddar whereas Southern one
decimal of land was allotted to the heirs of Moti Poddar. To
this, a memorandum of partition was created for future
reference on 20.11.2005 only.
V. It is further case of the plaintiff that after death of Moti Poddar,
the widow and the children started living at village Posta, P.S.
Narayanpur and taking advantage of the death of Moti Poddar,
defendant No. 1 Shyam Poddar made up his mind to grab the
entire 2 decimals of land. Upon being informed, the legal heirs
and successors of Moti Poddar took several preventive measures
but they failed. It is alleged in the plaint that the principal
defendant Shyam Poddar had anti-dated several papers to grab
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the entire 2 decimals of land and ultimately several litigations
started between the parties.
VI. The plaintiff's further case is that the proforma defendants i.e.
legal heirs and successors of Moti Poddar being in need of
money sold their allotted one decimal of land towards the
southern side to the plaintiff by a registered deed of sale bearing
No. 493 dated 20.10.2008 and consequently, the plaintiff
became the rightful owner to the extent of one decimal of land
with structure thereon. The principal defendant i.e. Shyam
Poddar started creating trouble and on 25.01.2009, the plaintiff
along with the legal heirs and successors of Moti Poddar (the
proforma defendants) approached the principal defendant
Shyam Poddar to give vacant possession of the purchased land
as described in the schedule but the principal defendant flatly
denied and asked the plaintiff to move the competent court of
law. Consequently, the suit was filed on 25.02.2009.
4. Case of the contesting defendant i.e. defendant No.1
The defendant No. 1 Shyam Lal Poddar filed his written
statement before the learned trial Court and the case of the
defendant no. 1 was as under:
a. There was no cause of action for the suit and the suit was
not maintainable. It was the case of the defendant no. 1 that the
plaintiff had a jewelry shop at Karmatanr where defendant no. 3
Kashi Poddar (S/o Moti Poddar) worked under him as his
employee and he got the illegal sale deed executed by the
proforma defendant without any consideration only to commit
mischief.
b. The suit was bad for non-joinder of necessary parties as
all the heirs of Narsingh Poddar- the original owner of suit land,
were not made party. Narsingh Poddar had three daughters
namely Amli Devi, Bhumi Devi and Shanti Devi, the first of
whom died on 01.10.2008 leaving behind her five sons namely
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Amardeep, Raju, Tuntun, Ashok and Pappu and a daughter
Munni Devi. Bhumi Devi died in or about 2000 leaving six sons
namely Tarani, Dhananjay, Nandu, Mahesh, Pancham and
Kamlesh and one daughter Beena Devi. It was asserted that
Shanti Devi was still alive and the plaintiff deliberately omitted
her name and the names of the others and had furnished an
incorrect genealogy. The defendant no.1 further averred that the
actual owner of the suit land was wife of defendant no.1, which
was fully known to the vendors of the plaintiff and also the
plaintiff of the suit, but with ulterior motive she was not made
party in the suit and the suit was liable to be dismissed for
willful non-joinder of necessary parties.
c. It was also case of the defendant no.1 that Narsingh
Poddar did not die in 1999 but he died on 26.05.1998 and left
behind two sons and three daughters as his next heirs. Before
and after the death of Moti Poddar, the proforma defendants
always lived at Posta and they had no occasion to live at
Karmatanr.
d. It was also pleaded on behalf of defendant Shyam Lal
Poddar that the proforma defendants were never the owner of
one decimal of land towards southern side and their alleged sale
of land to the plaintiff was mala fide. As per this defendant, the
proforma defendants contested several cases under sections 144
and 107 of Code of Criminal Procedure with him for the suit
land and got such proceeding drawn up by making false
allegations. It was asserted that in all those cases, the defendant
no. 1 had clearly asserted in his show-cause that the proforma
defendants did not have any right, title, interest in the suit land
nor they were in possession of the same. As per the contesting
defendant, the fact was that the 2 decimals of land was
purchased by Narsingh Poddar who built a tide roof house and
was living on the property with his younger daughter-in-law i.e.,
W/o Shyam Poddar who used to nurse and look after Narsingh
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Poddar at his old age. Out of special love and affection for her,
Narsingh Poddar gifted and transferred the entire two decimals
of land along with house in her favour on 07.12.1995 and the
defendant no. 1(a) (wife of defendant no.1) accepted the sale
gift and entered into possession on 07.12.1995 itself and
continued to reside over the property along with her sons on her
own right. Narsingh Poddar got himself divested of the said
property by such transfer through gift. It was asserted that
Narsingh Poddar had also executed a deed of gift in favour of
defendant no. 1(a) on 07.12.1995 which was certified by Notary
and attested by witnesses and he also sworn an affidavit
confirming the contents of the deed. Defendant no. 1(a) had
undertaken some construction work over the property soon after
the death of Narsingh Poddar but in March 2008, the proforma
defendants started filing cases to stop the construction. So, the
specific case of the defendant No. 1 was that by virtue of gift
defendant no. 1(a) became the absolute owner of the suit land
and she is in exclusive owner of the suit property. Alternatively,
the defendant No. 1 submitted that defendant no. 1(a) had
acquired indefensible perspective title to the entire 2 decimal of
land and remained in peaceful possession for more than 12
years beginning from 07.12.1995 adversely to Narsingh Poddar
and his heirs.
5. Case of the proforma defendants i.e. defendant Nos. 2 to 5
i. The defendant nos. 2, 3, 4 and 5 appeared and filed their
written statement pleading therein that after the sudden demise
of Moti Poddar i.e. husband of defendant no.2, these
defendants became helpless and as such the defendant no.1
Shyam Lal Poddar decided to grab the entire two decimals of
land illegally by practicing fraud and undue influence and as
such he prepared ante-dated forged document.
ii. It was the case of these defendants that on 03.07.2004 a
panchayati was held at Karmatanr in which the panch after
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hearing both parties held equal share of both sets of defendants
and the original panchnama was given to Shyam Lal Poddar
and a photo copy was supplied to the defendant no. 2 Thakri
Devi. In the year 2008, once again the defendant Shayam Lal
Poddar tried to occupy the suit property and on being informed
to the police, a proceeding u/s 144 of Cr. P.C was started
between the defendants inter se, registered as Crl. Misc. Case
No. 145/2008 in which vide order dated 02.06.2008 the
proceeding was dropped with observation that it was a civil
dispute and the parties should knock at the door of civil court
for proper relief.
iii. It was also the case of these defendants that again in the month
of September, 2008, the defendant no.1 Shayam Lal Poddar
started a proceeding u/s 144 of Cr.P.C in which the then SDM
Jamtara was pleased to declare and confirm the possession of
Shyam Lal Poddar over the suit properties. Being aggrieved
and dissatisfied with the aforesaid order, the defendant no.2
Thakuri Devi and her son Kashi Nath Poddar preferred a
Criminal Revision before the Learned Sessions Judge, Jamtara
bearing Crl. Rev. Case no. 26/2008, in which vide order dated
02.01.2009 the learned revisional court was pleased to allow
the revision modifying the order of SDM, Jamtara and the
operative portion of order regarding finding of possession
given by SDM Jamtara was expunged.
6. Case of defendant No. 1(a)
A. Addition of Leelavati Devi, W/o of Defendant No. 1 as
defendant No. 1(a). - The records of the case reveal that upon
filing of written statement by defendant No. 1 who asserted that
the property belonged to his wife, the plaintiff filed a petition to
add her as a party which was allowed vide order dated
10.11.2009 and consequently, wife of defendant no. 1 was made
defendant No. 1(a) and thereafter she filed a separate written
statement.
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B. The defendant no. 1(a) asserted that the suit was bad for non-
joinder of necessary parties, since all the heirs of Narsingh
Poddar had not been made party in this suit. It was also pleaded
that Narsingh Poddar had purchased the suit land in the year
1977 and not in the year 1997 as alleged by the plaintiff, and
constructed a tiled roof house on about 1 decimal of land and
started living there with the defendant no. 1(a), who used to
nurse and look him after in his old age. It was further pleaded
that her husband also assisted in managing the household of
Narsingh Poddar, but the other son and the son's family as well
as the daughters of Narsingh Poddar never cared for welfare and
needs. It was also her case that due to her continuous service to
her father-in-law, the latter developed special affection for her
and on 07.12.1995 he gifted the two decimals of purchased land
and the house standing thereon to her, which she accepted and
entered into possession on the same day. By such gift, Narsingh
Poddar was divested of his right in the land in question and
defendant no. 1(a) started possessing the same as of her own
right and still she was in possession thereof.
C. It was also case of this defendant that on 07.12.1995 Narsingh
Poddar had executed a Written Deed of Gift in her favour,
attested by Notary and supported by witnesses and also an
affidavit sworn by Narsingh Poddar himself. She further
asserted that when she was undertaking some construction work
on the suit land, the proforma defendants tried to stop
construction of the pucca house and septic latrine being made
by her and in that process, they also filed a case u/s 144 of
Cr.P.C for stopping construction, but failed to accomplish
success. The defendant no. 1(a) further averred that she had
acquired a prescriptive title to the entire two decimals of
purchased land of Narsingh Poddar and structures standing
thereon by remaining in continuous possession of the same
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adversely to Narsingh Poddar and subsequently his all the heirs
to their knowledge and knowledge of all other persons.
D. It was further pleaded by her that the sale of one decimal of
land alongwith pucca constructed house by the proforma
defendants in favour of the plaintiff was entirely illegal, void
and fraudulent and no title accrued to the plaintiff by virtue of
the fake sale deed. It was also case of this defendant that under
no circumstances the proforma defendants would sell half of the
properties of Narsingh Poddar, who had died leaving behind
five branches of sons and daughters and each of them had only
1/5th share therein and as such the proforma defendants who
represented only one son of Narsingh Poddar could not have
more than 1/5th share and their fake sale of half share of
Narsingh Poddar's properties did not confer any title to the
extent of half share and plaintiff could not have asked for any
decree for half share.
E. The defendant no. 1(a) further averred that the alleged sale deed
was replete with false averments. It was pleaded that the
plaintiff had brought the sale deed in question in existence with
the mala fide object of grabbing the suit land by his muscle
power being a dada of the locality, who also gained over the
proforma defendants.
7. On the basis of pleadings of the parties, the learned trial court
framed the following issues for consideration: -
(1) Is the suit as framed maintainable?
(2) Is there any cause of action for the suit?
(3) Is the suit bad for non-joinder of necessary
parties?
(4) Has the plaintiff right, title and interest over the
suit properties?
(5) Is the deed of gift executed by Narsingh Poddar
in favour of the wife of Shyam Poddar is valid
and effective?
(6) Are the plaintiffs entitled to the reliefs claimed?
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(7) Has Lilavati Devi acquired right, title and
interest on the basis of adverse possession
against Narsingh Poddar and others?
Findings of the trial Court
8. Before the learned trial Court, the plaintiff examined altogether
11 witnesses in support of his case. PW-1 Sukhdev Mandal, PW-2
Shankar Sao, PW-3 Md. Sultan, PW-4 Subeshwar Mandal, PW-5
Ghafoor Mian, PW-6 Pramod Kumar Sah, PW-7 Jai Prakash
Ambastha, PW-8 Dhananjay Biswas, PW-9 Mahendra Mandal, PW-
10 Sattar Mian @ Ahamad Hussan and PW-11 Pradeep Mandal. The
plaintiff also adduced some documents which were marked exhibits as
under:
(i) Deed of Sale dated 20.10.2008 - Ext. -1
(ii) Original Trace Map dated 20.10.2008 - Ext. -2
(iii) Signature of Dhananjay Biswas on the Sale Deed - Ext. 3
(iv) Signature of Mahendra Mandal on the Sale Deed-Ext.3/1
(v) Signature of Ahamad Hussain on the sale Deed - Ext. 3/2
(vi) Letter of direction for mutual oral partition of family -Ext- 4
(vii) Certified Copy of voter list of Shyam lal Poddar - Ext. -5
(viii) Certified Copy of Voter List of Lila Devi - Ext. -5/1
(ix) Certified Copy of order dated 02.01.2009 of Crl. Rev. No
26/2008 - Ext. 6
9. On behalf of the contesting defendant, seven witnesses namely
DW-1 Tulsi Das, DW-2 Tarni Poddar, DW-3 Shyam Lal Poddar
(defendant no. 1 himself), DW-4 Lilawati Devi, DW-5 Pancham @
Panchanand Poddar, DW-6 Baidyalal Turi and DW-7 Pawan Kumar
Poddar were examined. The defendant exhibited following
documents:
(i) Deed of gift dtd. 07.12.1995 - Ext. A
(ii) Signature of Lila Devi on the deed of gift - Ext. A/1
(iii) Signature of Narsingh Poddar on the deed of gift -
Ext. A/2
(iv) Affidavit of Narsingh Poddar sworn on 07.12.1995 -
Ext. B
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(v) Rent Receipt No. 533010 - Ext. C
(vi) Rent Receipt No. 1735101 - Ext. C/1
(vii) Rent Receipt No. 1939210 - Ext. C/2
10. The learned trial Court first considered issue no. (4) i.e. as to
whether the plaintiff had right, title and interest over the suit
properties. After considering the evidences, in particular deed of sale
executed on 20th October 2008 (exhibit- 1), the learned Court found
the exhibit-1 to be a valid piece of document showing transfer of the
suit land in favour of the plaintiff and thus creating right, title and
interest in his favour. The learned trial court recorded that the
registered sale deed was not specifically challenged by the contesting
defendants nor any counter claim was filed and on the strength of the
registered deed which was not challenged, the issue was decided in
favour of the plaintiff. The findings are as follows:-
"In the course of trial the deed of sale executed on 20th
October 2008 by Thakari Devi, Kashi Poddar and Meena
Devi have been proved as Ext.-1 without objection.
Although the contesting defendants have challenged the
execution of this deed in the course of trial, they have
admitted at the time of their cross-examination that they
have never challenged the same in any court of law nor
prayed for its cancellation. Besides, neither they have
alleged that the heirs of Moti Poddar had got no title to
the properties sold by them nor they have filed any
counter claim.
In view of the above the sale deed prove vide Ext. 1 is
found to be a valid piece of document showing transfer of
the suit land in favour of the plaintiff and thus creating
right, title and interest in his favour. Thus, this issue is
decided in favour of the plaintiff and against the
defendants."
11. The issue no. 5 was also decided against the defendant no. 1
and 1(a) as the gift deed was an unregistered document. The findings
are as follows:-
"The Deed of Gift has been proved as Ext.A by the
defendant no.1. This document is an unregistered
instrument. It reflects that stamp for this deed was
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purchased two months ago prior to its registration in
December 1995. DW4 Lilawati Devi has admitted in
para 13 of her cross-examination that the deed of gift
was prepared in registry office. Further para 23 of her
cross- examination shows that her father-in-law died in
the year 1998 and in para 24 that prior to that he was
bed-ridden for the last 5-6 years and was not in a
position to attend nature's call. This piece of evidence
creates physical impossibility regarding presence of the
executant of the deed proved vide Ext. A, and said to be
executed in the year 1995. The trace map annexed
thereto further creates suspicion and doubts regarding
the genuineness of this document. Needless to say that no
immovable property can be transferred through an
unregistered instrument.
In view of the above this issue is decided in
favour of the plaintiff and against the defendants."
12. Thus, issue no. 5 was decided in favour of the plaintiff and
against the contesting defendants.
13. While deciding issue no. 7, the learned trial Court held as
under:
"As per para-12 of the written statement of defendant
Lilavati Devi she is in peaceful continuous possession of
the 2 decimals of land, but as per the plaintiff the death
of Narsingh Poddar had occurred in the year 1999,
which is slightly contracted by defendant no. 1 of para-9
of W.S. Be that as it may, in both the cases, which refutes
the claim of adverse position made by her from the year
1995. She herself has admitted in para-14, 16 and 17
about having no knowledge about the sating aside of
the order of 144 of Cr. P.C passed in her favour and
also about issuance of rent receipt and mutation of that
land. Besides the document proved vide Ext. 5 and Ext.
5/1 clearly establish that her husband and she are the
enrolled voters of village Posta, even till the year 2014.
In that view of matter the plea of adverse position
taken by her is found to be shattered. Needless to say
that it is established law that to claim adverse position
there must a denial of title of the owner and for a
possession to be adverse it has to be actual, open,
notorious, exclusive and continuous. In the instant
suit the possession of Lilavati is found to be neither
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against the true owner nor continuous.
In view of these discussions this issue is decided in
favour of the plaintiff and against the defendants."
14. With regard to issue no. 3 i.e., as to whether the suit was bad
for non-joinder of necessary parties, the learned trial Court held in
paragraph 16 of its judgment as under:
"16. Issue No. (3) i.e. "Is the suit bad for non- joinder of
necessary parties?" The contesting defendant Shaymlal
Poddar taken the plea that suit is bad for non-joinder of
necessary parties as all the heirs of Narsingh Poddar , the
original owner of the suit land has not been made party. He
has pleaded that Narshinhg Poddar had three daughters,
Amli Devi, Bomi Devi and Shanti Devi but the plaintiff had
deliberately omitted their names.
The other contesting defendant Lilavati Devi
has pleaded similarly in para-4 of her W.S that all the heirs
of Narsingh Poddar have not been made in the party in the
suit, although the W.S filed by her does not mention the
names of the heirs of Narsingh Poddar, in absence of
whom, the suit is bad for non-joinder.
On consideration of the pleading of the parties
and taking into consideration the facts of this suit, this court
finds that Leelavati Devi has already been made a party in
this suit vide order dtd 10/11/2009 and the pleading of the
defendant regarding the non- joinder of a few others i.e.,
the three daughters of Narsingh Poddar is not tenable,
since they are not necessary parties, this issues has become
redundant. Hence, it stands decided in favour of the
plaintiff."
15. While deciding issue nos. 1, 2 and 6, the learned trial Court
held as under:
"17. Now the issue no. (2) i.e. "Is there any cause of
action for the suit?" is taken for discussion.
As per para 21 of the plaint the cause of action for the
suit arose on and from 25.01.2009, a Sunday, when the
defendant no. 1 refused the give vacant possession of the
suit properties to the plaintiff. Vide para-17 of the plaint the
plaintiff has alleged that on 25.01.2009 he had approached
the principal defendant Shyam Lal Poddar alongwith the
proforma defendant to give vacant possession of the suit
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land and structure as per schedule but he flatly denied and
suggested him to move the competent court of law.
The plaintiff examined as PW1 has supported his
pleading in regard with this issue in para 13 of his
affidavited examination-in-chief which shows that there is
cause of action for the suit in his favour. Hence, this issue is
decided in favour of the plaintiff and against the
defendants.
18. Since the core issues have been decided in favour of the
plaintiff and against the defendants the remaining two
issues no. (1) and (6), which are related to maintainability
of the suit and entitlement of the reliefs claimed by the
plaintiff are decided in favour of the plaintiff and against
the defendants."
16. After giving the aforesaid findings, the learned trial Court
decreed the suit in favour of the plaintiff and against the defendants.
The defendants were directed to give delivery of possession to the
plaintiff within 30 days failing which he was at liberty for recovery of
possession through the process of the court.
Findings of the 1st appellate Court
17. The contesting defendants were appellants before the learned 1st
appellate Court. The learned appellate Court framed following points
for determination: -
"A. Whether the learned lower court has wrongly decided
the issue that plaintiff has got right, title and interest over
the suit property without considering the fact of all the legal
heirs of Late Narsingh Poddar and the fact of alleged
partition between Shyamlal Poddar and the legal heirs of
Motilal Poddar?
B. Whether the impugned judgment and decree of the
learned Trial Court are justified and it calls for any
interference?"
18. The learned 1st appellate Court considered the aforesaid points
jointly as both were related to each other. After discussing the
arguments of the parties, the learned 1st appellate court recorded its
findings at paragraph 12 as under: -
"12. Both points are related with each other, hence, they
are taken jointly for discussion. I have perused the
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pleadings and evidences available on record and
considered the submissions of learned counsels for the
parties. It is admitted fact that two decimals land from Plot
No. 1206 and 1206/2305 of Mouza Karmatanr was
purchased by one Narsingh Poddar, S/o Late Raghu
Poddar of village Posta. It is also admitted fact that said
Narsingh Poddar died in the year 1999 leaving behind the
legal heirs of his one son Motilal Poddar, who are
Proforma Defendants and another son Shyamlal Poddar,
who is Contesting Defendant and Appellant here. It
appears that the case of plaintiff is that the Proforma
Defendants, who are the legal heirs of said Motilal Poddar
were allotted the half share in the said purchased land of
Narsingh Poddar and they have sold the one decimal of
land to the plaintiff through registered Sale Deed No. 493
dated 20.10.2008. It is further case of plaintiff that after the
death of Narsingh Poddar, his son Shyamlal Poddar and
the legal heirs of the another son Motilal Poddar succeeded
the purchased portion and the said land was amicably
divided half and half by them in equal share and 1 decimals
of southern side land and structure was allotted to the legal
heirs of Moti Poddar and in this respect, Memorandum of
Partition was created on 20.11.2005, which has been
proved as Ext. 4. Further case of plaintiff is that the legal
heirs of Moti Poddar are the Proforma Defendants and they
have sold the said 1 decimal land and structure thereon
allotted to them in Southern side to the plaintiff through
registered Sale Deed and the said Sale Deed has not been
challenged till date by the contesting defendants and thus
plaintiff has got right and title over the suit land. On the
other hand, contesting Defendant Shyamlal Poddar has
pleaded that the entire two decimals lands purchased by his
father, has been gifted to his wife Lilabati Devi by his father
in the year 1995 through a Notary Affidavit and he and his
wife Lilabati Devi are in possession over the suit land and
his wife Lilabati Devi has perfected her title over the suit
land by way of adverse possession also. He has further
pleaded that the plaintiff has suppressed the fact by not
impleading the three daughters of the said Narsingh
Poddar as the two sons of Narsingh Poddar exclusively
never succeeded to the purchased portion of the land and
these three daughters were necessary party and these
daughters were the legal heirs of Narsingh Poddar but
plaintiff has shown that the alleged plot was divided in
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equal share between the heirs of Motilal Poddar and Shyam
Poddar. Contesting defendants have pleaded that the
alleged partition document is forged and spurious and
proforma defendants have no right to sell 1 decimal land to
plaintiff and the alleged Sale Deed does not confer the title
to the plaintiff, as the contesting defendants, who are
husband and wife and the legal heirs of Narsingh Poddar,
are in possession over the same and the said contesting
defendant Lilabati Devi has obtained the suit land by way
of Gift Deed and also perfected her title by way of adverse
possession.
In view of pleadings of both the sides and evidences, it is
apparent that plaintiff/respondent has purchased one
decimal land of the aforesaid Plot No. 1206 and
1206/2305 of Mouza Karmatanr through registered Sale
Deed (Ext. 1) from the legal heirs of Motilal Poddar, the
son of Narsingh Poddar. The said legal heirs of Motilal
Poddar have been made party as proforma Defendant and
they have also filed their written statement, in which they
have admitted the execution of Sale Deed (Ext. 1) of the suit
property in favour of plaintiff and they have not objected
the claim of plaintiff in their written statement. The plaintiff
and his witnesses have also proved the execution of Sale
Deed of the suit property in favour of plaintiff. The plaintiff
has brought a document as "Parvarik Apsi Mokhik
Batwara Ka Nideshan Patra" between the legal heirs of
Moti Poddar and Shyam Poddar, which have been proved
as Ext. 4. Although it does not bear the signature of scribe
but P.W. 11 Pradeep Mandal has stated that his father had
written the said Batwara Patra and P.W.6 has also proved
the creation of the said Batwara Patra and even the
Contesting Defendant Shyamlal Poddar, who has
examined himself as D.W.3, has also admitted in para 31
that his paternal house is in village Posta and during the
lifetime of Narsingh Poddar, he and his brother Motilal
got separated and the entire properties were divided by his
father in two equal shares. It further appears that
contesting Defendant Shyamlal Poddar has not
challenged his signature over the alleged Deed of
Partition. It further appears that contesting defendants
Shyamlal Poddar and his wife have claimed the entire two
decimals of lands, purchased by the said Narsingh Poddar,
on the basis of a gift deed alleged to be sworn before
Notary. These contesting defendant Shyamlal Poddar has
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admitted in para 5 of his W.S. that the daughters of
Narsingh Poddar namely Amli Devi died on 0.10.2008 and
Bhumi Devi died on or about 2000, which shows that they
were died prior to filing of this suit and these contesting
defendants have nowhere stated that these daughters have
ever claimed any right in the suit land rather these
defendants have claimed the said two decimals of lands
including suit land to be their own. The plaintiff has
purchased 1 decimal land and since the contesting
defendants had obstructed in taking possession, he has filed
the suit against contesting defendants for declaration of his
right, title and recovery of possession. Certainly it is a
declaratory suit and not a Partition Suit and further it
appears that daughters of said Narsingh Poddar or their
heirs have never claimed any title and even contesting
defendants have examined D.W. 5, who is the son of alleged
daughter Bhumi Devi and in spite of having knowledge of
the suit,, he has not claimed any right, title over the suit
land rather he has stated that his maternal uncle Shyamal
Poddar and his wife had obtained the suit land on the basis
of gift and by way of adverse possession. It appears that the
contesting defendants have claimed the suit land on the
basis of unregistered Deed of Gift alleged to be executed by
Narsingh Poddar in the year 1995 and the said Lilavati
Devi entered into possession and continued to reside there
but the said Deed of Gift, which has been marked as Ext. A,
is an unregistered instrument and on perusal it appears that
stamp for this deed was purchased two months prior to its
alleged creation on 07.12.1995. At the same time, it also
cannot be denied that the said Narsingh Poddar was
bedridden for the last 5-6 years and he was not in position
to attend nature's call and he died in the year 1998, hence,
his physical presence at the time of executing the said Deed,
creates serious doubt about the execution and preparation
of Ext. A and moreover this is an unregistered instrument,
which cannot create right and title in favour of contesting
defendants. Further the alternative plea of adverse
possession by contesting defendant Lilavati Devi is also not
tenable, as in order to establish the claim of adverse
possession, there must be a denial of title of the owner and
for a possession to be adverse, it has to be actual, open,
notorious, exclusive and continuous but here in this case, it
is admitted fact that the Proforma Defendants contested
several cases u/s 144 and 107 Cr. P.C. with contesting
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defendant in the year 2008 for the suit properties, which
clearly reveal that Defendant Lilavati Devi had no peaceful
continuous possession and it cannot be said in the facts and
circumstances of the case that she has perfected her title
over the suit land by way of adverse possession. Further it
also appears that contesting defendant has pleaded the
ownership over suit properties by way of alleged Gift Deed
as well as of adverse possession. The plea of ownership and
acquisition of rights by adverse possession are mutually
destructive and are inconsistent with each other and the
Defendants/Appellants have not established their defence of
ownership as well as acquisition of right by way of adverse
possession with support of cogent and reliable evidences.
On the other hand, plaintiff/respondent has proved that he
had acquired the suit land by way of registered Deed (Ext.
1) executed by the legal heirs of Motilal Poddar and his
registered Deed of Sale regarding suit properties is still in
existence and thus he holds a better title over the suit
land than the contesting defendants and the learned
lower court has rightly appreciated all the issues and has
rightly decreed the suit of plaintiff directing the contesting
defendants to give delivery of possession to the plaintiff and
considering entire facts and circumstances of the case, I do
not find any illegally and infirmity in the impugned
judgment and decree and the same are liable to be
sustained."
Arguments on behalf of the appellant (defendant no.1)
19. The learned counsel for the appellant has placed Exhibit - 4 and
submitted that Exhibit - 4 is the family settlement as claimed by the
plaintiff and as per Exhibit - 4 which is dated 20.11.2005, Exhibit-4 is
between wife, son and daughter of late Moti Poddar on the one hand
and Shyam Poddar on the other. He has submitted that Moti Poddar
and Shyam Poddar were the sons of Narsingh Poddar, in whose name
the property was standing. He has further submitted that the document
dated 20.11.2005 (exhibit-4) reveals that there was a settlement
between the legal heirs of Moti Poddar on one hand and Shyam
Poddar on the other and the said document reveals that the document
by itself is a document of partition and not a memorandum of
partition. He has further submitted that the partition deed [the so-
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called family settlement] was compulsorily registrable and
consequently the same could not have been admitted in evidence. He
has further submitted that on account of non-registration of the
document of family settlement which was essentially a deed of
partition between the legal heirs of Moti Poddar and Shyam Poddar,
the first substantial question of law is fit to be answered in favour of
the appellant and against the respondents.
20. He has further submitted that in the said partition, the daughters
of Narsingh Poddar have not been made party, and therefore, on
account of non-joinder of the daughters to the deed of partition, the 2nd
substantial question of law is also fit to be answered in favour of the
appellant. He has further submitted that if these two issues are decided
in favour of the appellant, then the natural consequence would be the
sale deed executed by the legal heirs of Moti Poddar in favour of the
plaintiff in the year 2008 would be null and void and consequently the
plaintiff cannot claim any right, title, interest and possession with
respect to the property. He has submitted that there is no need to
separately challenge the said sale deed and adverse inference has been
drawn by the learned courts for not challenging the said sale deed.
21. He further referred to the impugned judgements and submitted
that the contesting defendants were claiming the property by referring
to a gift deed executed by Narsingh Poddar during his lifetime in
favour of wife of Shyam Poddar but the said gift deed has been
disbelieved by both the courts and there is no substantial question of
law in connection with the gift deed, but irrespective of the gift deed,
Shyam Poddar, the defendant no.1, was legal heir and successor of the
property belonging to Narsingh Poddar and the daughters having not
been made party to the family arrangement or settlement, the case of
the plaintiff based on the sale deed executed in 2008 by the legal heirs
and successors of Moti Poddar is of no consequence. He has relied
upon the judgement passed by Hon'ble Supreme Court reported in
(2015) 16 SCC 787 (Yellapu Uma Maheshwari and Anr. Vs. Buddha
Jagadheeswararao and Ors.) (paragraph 12.2) and section 49 of the
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Registration Act, 1908 which deals with the effect of non-registration
of documents and also the judgement reported in (2018) 15 SCC 130
(Sita Ram Bhama Vs. Ramvatar Bhama) (paragraph 14) to submit
that the document of partition was inadmissible in evidence and could
be looked into for collateral purpose.
Arguments of the Respondents
22. The learned counsel for the respondent - plaintiff has submitted
that on the face of Exhibit 4, it is relating to oral partition and the
decision arrived thereto and it is a recital of the oral partition which
has already taken place, and therefore, it was not compulsorily
registrable. He submits that both the courts have rightly referred to
Exhibit 4. The learned counsel has further submitted that as per the
written statement filed by the defendant, who is the appellant before
this Court, his specific case was that the property was belonging to his
wife namely, defendant no. 1(a) and he claimed the property in favour
of defendant no. 1(a) on the basis of a gift deed which was disbelieved
by both the courts and no substantial question of law in that
connection has been framed, and therefore, finding in connection with
the gift deed has already become final. He has submitted that the
plaintiff was claiming the property on the basis of registered sale deed
of the year 2008 which was never challenged by defendant no. 1(a) or
any of the defendants and the defendants were claiming the property
by stating that the property belongs to defendant no. 1(a) by virtue of
gift deed. He has also submitted that the case of the defendants as set
up in the written statement has been disbelieved.
23. The learned counsel has submitted that the present suit is not
the partition suit so as to ensure that all the legal heirs and successors
of Narsingh Poddar were required to be made party and the plaintiff
had only claimed a declaratory suit on the basis of a registered sale
deed which was executed by the legal heirs of Moti Poddar, who
claimed to have exclusive possession over the property on the basis of
oral partition recorded duly on 20.11.2005 and otherwise also they had
the right over the property and therefore it cannot be said that the sale
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deed was null and void. Had the sale deed been challenged, then under
such circumstances, the legality and validity of Exhibit - 4 was
required to be examined and under such circumstances, the right of the
daughters also could have been adjudicated upon, but in a case where
the sale deed has not been challenged, there is no question of
adjudication of the right of the daughters and the sale deed by no
stretch of imagination can be said to be void ab initio.
24. The learned counsel has relied upon the judgement passed by
Hon'ble Supreme Court reported in 1963 SCC Online SC 197 (Tek
Bahadur Bhujil Vs. Debt Singh Bhujil and Ors.) (paragraph 13) to
submit that family arrangement can be arrived orally and its terms
may be put in writing and such a written instrument will not be
compulsorily registrable under Section 17 of the Registration Act and
therefore it is submitted that reliance on Exhibit 4 was not hit by
section 49 of the Registration Act. The learned counsel has also relied
upon the judgement passed by the Hon'ble Supreme Court reported in
(2020) 9 SCC 706 (Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur
and Ors.) (paragraph 17) and submitted that this judgement stands on
similar facts as that of the facts involved in the present case.
Findings of this Court
25. The suit was filed for declaration of right, title and interest with
respect to Schedule-A property on the strength of deed of sale dated
20.10.2008 (Exhibit-1) executed by the proforma defendants in favour
of the plaintiff. The proforma defendants were representing the legal
heirs and successors of the Moti Poddar S/o Late Narsingh Poddar and
the principal defendants/contesting defendants were defendant no. 1
and 1(a) i.e., Shyam Poddar, son of Narsingh Poddar and the wife of
Shyam Poddar respectively.
26. The specific case of the plaintiff was that Narsingh Poddar had
purchased two decimals of land by registered sale deed. He died in the
year 1999 leaving behind Shyam Poddar and heirs of late Moti Poddar
and after the death of Narsingh Poddar, Shyam Poddar and legal heirs
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and successors of Moti Poddar remained in possession of the aforesaid
property of two decimals but Shyam Poddar started creating some
disturbance and the two decimals of property was divided half and
half ; one decimal towards the north was allotted to Shyam Poddar and
remaining one decimal towards the south was allotted to legal heirs
and successors of Moti Poddar and a memorandum of partition to that
effect was created for future reference on 20.11.2005 (exhibit-4).
Thereafter the legal heirs and successors of Moti Poddar started living
in another place and Shyam Poddar tried to grab the entire property
and the legal heirs and successors of Moti Poddar were unable to meet
the litigation expenses and therefore they sold their 1 decimal share to
the plaintiff vide registered deed dated 20.10.2008 (exhibit-1) and
consequently the plaintiff became the rightful owner of the suit
property comprising of 1 decimal. The cause of action arose on
25.01.2009 when the defendant no. 1 namely, Shyam Poddar
(appellant herein) refused to hand over the property to the plaintiff.
27. The defendant no. 1 opposed the prayer and asserted that the
owner of the property is his wife as Narsingh Poddar had gifted the
property to the wife of defendant no. 1 and was in peaceful possession
by constructing a pucca house. It was his further case that Narsingh
Poddar did not die in 1999 but he died on 26.05.1998 leaving behind
his two sons and three daughters. It was asserted that the sale deed
dated 20.10.2008 executed by the proforma defendants in favour of
the plaintiff was an illegal document. It was also his case that
Narsingh Poddar had three daughters namely Amli Devi, Bhumi Devi
and Shanti Devi out of them Amli Devi died on 01.10.2008 leaving
behind her five sons whose name was mentioned and Bhumi Devi
died sometimes in the year 2000 leaving behind his six sons/daughters
whose name was also mentioned and that Shanti Devi was still alive
but the plaintiff deliberately omitted to include her name and the name
of others and had furnished incorrect genealogy.
28. Consequently, defendant no. 1(a) was added as defendant no.
1(a) who claimed the suit property by virtue of a deed of gift said to
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have been executed by Narsingh Poddar on 07.12.1995 which was an
un-registered document and was certified by the Notary and attested
by the witnesses. The principal defendant also claimed that they have
acquired indefeasible prescriptive title to the entire two decimal of
land by remaining in peaceful possession for more than 12 years
beginning from 07.12.1995 adversely to Narsingh Poddar and his
heirs.
29. The proforma defendants who are the legal heirs and successors
of Moti Poddar and were arrayed as defendant nos. 2,3,4 and 5
asserted in their written statement that on 03.07.2004 a Panchayati
was held in which Panch after hearing both the parties held equal
share of both sets of defendants and the original punchnama was given
to defendant no. 1 and a photocopy was supplied to the defendant no.
2 Thakri Devi; in the year 2008 once again the defendant no. 1 tried to
occupy the suit property for which a proceeding under Section 144 of
Cr.P.C. was also initiated and by order dated 02.06.2008, the
proceeding was dropped with an observation that it was a civil
dispute. The defendant no. 1 again started a proceeding under Section
144 Cr.P.C. in which the possession of the defendant no. 1 was
confirmed against which a Criminal Revision was preferred and by
order dated 02.01.2009 the operative portion regarding finding of
possession given by SDJM, Jamtara was expunged.
30. The learned Trial Court while deciding issue no. 5 with regard
to claim of gift by Narsingh Poddar in favour of defendant no. 1(a)
decided the issue in favour of the plaintiff and against the contesting
defendants on the ground that gift deed (Ext. A) was an un-registered
document and on the basis of materials on record it was held that it
was physically impossible for the executant of the gift deed i.e.
Narsingh Poddar to execute the same in the year 1995 as he was bed
ridden. The gift deed was rejected as suspicious document. It was also
observed that no immovable property can be transferred through an
un-registered document. The said finding with regard to the gift deed
has attained finality.
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31. It further transpires that before the learned Trial Court a specific
argument on behalf of the contesting defendants was advanced that the
genealogy given by the plaintiff was not correct as it showed only two
sons but the plaintiff had admitted during his cross examination who
was examined as P.W. 1 that Narsingh Poddar had three daughters
also. However, the plea of non-joinder of necessary party was rejected
by the learned trial court by considering the pleadings and by
observing that defendant no. 1(a) was already made party in the
proceedings. The learned 1st appellate court also rejected the plea of
non-joinder of daughters/their legal heirs as necessary party by
observing that two daughters died prior to filing of the suit and the
contesting defendants had nowhere stated that those daughters had
ever claimed any portion of the suit property. The learned court also
observed that the suit was for a declaratory decree and not a partition
suit and that one of the defendant witnesses D.W-1 was son of one of
the daughters, but he did not claim any right, title or interest over the
suit property and had supported the case of the defendant no.1 and
1(a). This Court finds that the plea of non-joinder of daughters/their
legal heirs as necessary party was rejected without considering the fact
that the entire claim of the plaintiff was rooted in the memorandum of
partition (exhibit-4) followed by registered sale deed of the year 2008
(exhibit-1) executed by the proforma defendants in favour of the
plaintiff and in the memorandum of partition (exhibit-4) also the
daughters/their legal heirs were not parties/signatories.
32. An argument was also advanced by the contesting defendants
while assailing the document of partition (Exhibit-4) that it was an
illegal and inadmissible document which was not proved by the
plaintiff, rather it was filed by Pradeep Mandal P.W. 11. The
admissibility of the said document was seriously disputed. It was also
asserted that the plaintiff never came in possession of the property as
the vendors of the plaintiff (i.e. proforma defendants) did not put the
plaintiff in possession of the suit property, rather the suit property was
in possession of the contesting defendants on which they have
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constructed a house. It was also argued that the contesting defendants
and also the proforma defendants were the legal heirs of the recorded
holder i.e. Narsingh Poddar and therefore in order to claim possession
through the process of the court, the plaintiff must prove that they
have a better title. It was also asserted that the only issue which was to
be decided was whether there was a lawful and valid partition amongst
the legal heirs and successors of Narsingh Poddar; whether the
proforma defendants i.e. legal heirs and successors of Late Moti
Poddar came in possession of the suit premises on the basis of
partition and whether execution of sale deed by proforma defendants
was lawful.
33. The learned Trial Court while considering the point as to
whether the plaintiff had right, title and interest over the suit
properties on the strength of Exhibit-1 [i.e. the Sale deed executed by
the legal heirs and successors of Moti Poddar in favour of the plaintiff
on 20.10.2008] observed that the same was marked as exhibit-1
without objection and the contesting defendants never challenged the
execution of this deed nor the deed was challenged in any court of law
nor any prayer was made for its cancellation nor they alleged that the
legal heirs of Moti Poddar had no title to the properties sold by them
nor they had filed any counter claim and consequently, the learned
trial court decided the issue by holding that the sale deed [exhibit-1]
was a valid document showing transfer of suit land in favour of
plaintiff and thus creating right, title and interest in his favour. The
learned Trial Court ultimately held that the plaintiff was entitled to get
vacant possession of the suit property.
34. The learned Trial Court did not touch upon the core issue as to
whether the legal heirs and successors of Moti Poddar acquired any
exclusive right, title and interest over the suit property by virtue of
partition read with the so called memorandum of partition (exhibit-4)
although the entire case of the plaintiff was based on the averment that
there was a partition between Shyam Poddar and legal heirs of Moti
Poddar and consequently the legal heirs of Moti Poddar acquired title
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over the suit property which was sold to the plaintiff by registered
deed in the year 2008 (exhibit-1) .
35. So far as the 1st substantial question of law is concerned, upon
perusal of Exhibit-4, this court finds that admittedly the same is an un-
registered document. The parties whose names have been mentioned
in Exhibit-4 dated 20.11.2005 are wife of Moti Poddar, his sons and
daughters in first part and Shyam Poddar in the second part. Exhibit-4
refers to some compromise between the parties on 20.11.2005 and the
terms of compromise has been mentioned in exhibit-4. As per the
terms of compromise, the property belonged to Narsingh Poddar; one
of the sons of Narsingh Poddar namely Moti Poddar had suddenly
expired; as long as Narsingh Poddar was alive, the legal heirs of
Narsingh Poddar were jointly possessing the property but after his
death there was dispute in the family and consequently both, Shyam
Poddar and legal heirs and successors of Moti Poddar decided to
divide the property equally and one decimal towards north was given
to the 2nd party and one decimal towards south was given to the 1 st
party; Wife of Moti Poddar could sell the property allotted to the share
of late Moti Poddar.
36. The memorandum of partition does not give any detail of the
date of previous partition nor does it refer to any separate possession
with respect to the share of each brother. This is over and above the
fact that the said document refers to a compromise between the parties
which was arrived on 20.11.2005 and the document (exhibit-4) was to
give effect to the said compromise. Thus, on perusal of Exhibit-4
dated 20.11.2005, this Court finds that the said document by itself is
dividing the share between Shyam Poddar on one hand and legal heirs
and successors of Moti Poddar on the other hand through a
compromise recorded in the document of partition which was said to
be arrived at on 20.11.2005.
37. Considering the nature of Exhibit-4, this court is of the
considered view that the same was compulsorily registrable and no
reliance can be placed on Exhibit-4 to give exclusive title of the suit
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property to the legal heirs of Moti Poddar so as to enable them to
transfer exclusive title of their share of property to the plaintiff.
Admittedly, the vendors of the plaintiff were not in possession of the
property and consequently plaintiff was never handed over the
possession of the property by his vendors. There is no evidence much
less any document showing mutation with respect to the suit property
showing the suit property in exclusive possession of legal heirs of
Moti Poddar arising out of any partition. The sheet anchor of the claim
of the plaintiff was the partition between Shyam Poddar and legal
heirs of Moti Poddar. Exhibit-4 being an unregistered document could
not have been relied upon.
38. In the judgment passed by the Hon'ble Supreme Court in the
case of "Kale Vs. Direction of Consolidation" reported in (1976) 3
SCC 119, the proposition with regard to family settlement through a
memorandum and its necessity of registration has been settled and the
proposition has been laid down in paragraphs 10 and 11 of the said
judgment. In another judgment passed by the Hon'ble Supreme Court
in the case of "Yellapu Uma Maheswari Vs. Buddha
Jagadheeswararao" reported in (2015) 16 SCC 787, it was held that
the nomenclature given to a document is not decisive factor but the
nature and substance of the transaction has to be determined with
reference to the terms of the document and admissibility of a
document is entirely dependent upon the recitals contained in that
document, but not on the basis of the pleadings set-up by the party
who seeks to introduce the document in question. In the said case,
after holding that the document involved in the case was inadmissible
for want of registration, the Court proceeded to consider the question
as to whether the document could be used for any collateral purpose
and the Court accepted the submission of the appellant of that case
that the document can be looked into for collateral purpose provided
the appellant - defendant paid the stamp duty together with penalty
and got the document impounded.
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39. Aforesaid two judgments have been followed by the Hon'ble
Supreme Court in the judgment reported in (2018) 15 SCC 130 (Sita
Ram Bhama Vs. Ramvatar Bhama) wherein the foundational fact
was that the plaintiff and the respondent were real brothers and their
father decided to divide his self-acquired movable and immovable
property between the plaintiff and the defendant. However, the father
did not execute any settlement deed. The father died and thereafter the
plaintiff and the defendant recorded a memorandum of settlement as
decided by their father which was signed by the mother of the parties
and also two sisters had signed as witness. However, a suit was filed
seeking partition of the property and the defendant filed a petition
under Order VII Rule 11 of Code of Civil Procedure taking the plea
that during the lifetime of father, the plaintiff and the defendant had
partitioned the property and southern portion came in the share of the
plaintiff and the northern portion came in the share of the defendant
and in confirmation of the earlier partition the family settlement was
executed which was signed by the plaintiff and the defendant along
with both the sisters and the mother. Thus, it was pleaded that there
was no cause of action to file the partition suit. The trial court allowed
the said petition filed under Order VII Rule 11 of CPC and dismissed
the suit for want of cause of action. Subsequently, another civil suit
was filed by the plaintiff claiming that after dismissal of the earlier
suit of the plaintiff, the defendant broke open the lock of the house
and took possession of the house. The plaintiff prayed for decree of
possession against the defendant. In the suit, the plaintiff filed the
document evidencing family settlement which was claimed by the
plaintiff as a memorandum of settlement. An application was filed by
the defendant under Order 13 Rule 3 of CPC and Article 45 and
section 35 of the Stamp Act and sections 17 and 49 of the Registration
Act, claiming that the memorandum of partition being not a registered
document and not being properly stamped, was not admissible in
evidence. The trial court allowed the application of the defendant
holding that the document of family settlement was not admissible
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being inadequately stamped and not registered. The judgment of the
trial court was upheld by the High Court. The High Court also took
the view that so-called family settlement took away the share of the
sisters and the mother, therefore, the same was compulsorily
registrable. The plaintiff, being aggrieved by the judgment, was in
appeal before the Hon'ble Supreme Court.
40. In paragraph 10 of the judgment, the Hon'ble Supreme Court
observed that the only question needed consideration was as to
whether the document of family settlement could have been accepted
by the trial court in evidence or the trial court had rightly held that
the said document was inadmissible. The Hon'ble Supreme Court
observed that neither the plaintiff nor the defendant had any share in
the property on the date when it was said to have been partitioned by
their father who ultimately died and after his death, the plaintiff, the
defendant and their mother as well as the sisters became the legal heirs
under Hindu Succession Act, 1956 and they inherited the property as
Class-I heir. The document divided the entire property between the
plaintiff and the defendant which was also claimed to have been
signed by their mother as well as sisters. The Hon'ble Supreme Court
observed that there was relinquishment of rights of other heirs of the
property, hence the learned courts were right in their conclusion that
there being relinquishment, the document was compulsorily
registrable under section 17 of the Registration Act. In this context,
the Hon'ble Supreme Court in paragraph 11 of its judgment has
referred to the judgment passed in the case of Kale Vs. Direction of
Consolidation (Supra) and has observed as under:
"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 v. Director of Consolidation. The
propositions with regard to family settlement, its registration
were laid down by this Court in paras 10 and 11:
"10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form,
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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 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
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Council and other High Courts, which we shall discuss
presently." (emphasis in original)
41. The Hon'ble Supreme Court further went on to examine as to
whether the document being unstamped, could be accepted in
evidence for collateral purpose. In that context, the Hon'ble apex
Court referred to the judgment passed in the case of Yellapu Uma
Maheswari (Supra) wherein a reference was made to the Larger
Bench judgment of Hon'ble Andhra Pradesh High Court in the case of
"Chinnappareddigari Peda Mutyala Reddy Vs. Chinnappareddigari
Venkata Reddy" reported in AIR 1969 AP 242 wherein it was held
that whole process of partition contemplates 3 phases i.e., severancy of
status, division of joint property by metes and bounds and nature of
possession of various shares and it was held that in a suit for partition,
an unregistered document can be relied upon for collateral purposes
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. As recorded by the Hon'ble Supreme Court, the Hon'ble
Andhra Pradesh High Court further held that an unstamped instrument
was not admissible in evidence even for collateral purpose, until the
same is impounded. Paragraph 14 of the aforesaid judgment in the
case of Sita Ram Bhama (Supra) is quoted as under:
"14. After holding the said documents as inadmissible, this
Court in Yellapu Uma Maheswari case further proceeded to
consider the question as to whether the documents B-21 and B-
22 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
the appellant-defendant to pay the stamp duty together with
penalty and get the document impounded. In paras 16 and 17,
the following has been laid down: (SCC p. 794)
"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 has held that the
whole process of partition contemplates three phases
i.e. severancy of status, division of joint property by
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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 appellant-
defendant 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. B-21 and
B-22 for collateral purpose subject to proof and
relevance.
17. Accordingly, the civil appeal is partly allowed
holding that Exts. B-21 and B-22 are admissible in
evidence for collateral purpose subject to payment of
stamp duty, penalty, proof and relevancy."
42. Having gone through the aforesaid judgment and considering
the substantial questions of law involved in this case, this Court has
gone through the Exhibit- 4 which has been termed as the
memorandum of family settlement. The perusal of exhibit-4 clearly
reveals that the same was entered into between the legal heirs and
successors of Moti Poddar, son of Late Narsingh Poddar on the one
hand and Shyam Poddar, son of Late Narsingh Poddar on the other,
being the 2nd party. This Court finds that the daughters of Late
Narsingh Poddar and/or their legal heirs have been completely
excluded. They have neither signed as witness nor they are party to the
memorandum of settlement nor the genealogy of Late Narsingh
Poddar has been completely mentioned. The memorandum of partition
(exhibit-4) dated 20.11.2005 is based on compromise entered on
20.11.2005 itself and it incorporates the terms and conditions of
compromise and the said compromise completely excludes the
daughters of the family, although the property was said to have been
acquired by Late Narsingh Poddar -the common ancestor. On the date
of memorandum of partition, the amendment to Hindu Succession Act
had come into force and therefore, the daughters of the family could
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not have been excluded. The family settlement does not reflect
relinquishment of any right by the three daughters/their legal heirs
although they were the necessary party. Merely because the daughters
of the family have not lodged any claim with respect to the property,
that by itself will not validate the memorandum of partition (exhibit-4)
dated 20.11.2005. Further, memorandum of partition (exhibit-4) dated
20.11.2005 by itself is recording the terms of compromise dated
20.11.2005 and through this document only, the property is sought to
be partitioned between the legal heirs and successors of Moti Poddar
on the one hand and Shyam Poddar on the other. Exhibit- 4 is not a
memorandum of earlier partition. Accordingly, this court is of the
considered view that exhibit-4 is not admissible in evidence for want
of registration.
43. This Court finds that both the learned courts have not at all
considered the contents, true impact and import of so-called
memorandum of partition (exhibit-4) dated 20.11.2005 and the learned
courts have also not considered the consequence of its non-registration
and non-inclusion of the daughters of the family in the said
memorandum of partition.
44. So far as 2nd substantial question of law is concerned,
admittedly none of the daughters/their legal heirs were party to the so-
called memorandum of partition (exhibit-4) dated 20.11.2005 which
was recording the terms of compromise dated 20.11.2005 entered into
between Shyam Poddar and legal heirs and successors of Moti Poddar
without including the daughters of Narsingh Poddar - the common
ancestor/their legal heirs. Moreover, the compromise as recorded in
exhibit-4 is dated 20.11.2005 and by this time the amendment in
Hindu Succession Act, dated 09.11.2005 giving coparcenary status to
the daughters of the family had come into force and therefore the
Exhibit-4/compromise having not been joined by other daughters of
the family cannot be said to be a document of recording partition by
metes and bounds nor exhibit-4 can be said to be memorandum of
partition amongst the family members of Narsingh Poddar-the
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common ancestor . The finding of the learned 1st appellate court that
the daughters have not made any claim over the property by itself is
perverse, inasmuch as, out of the 3 daughters, 2 daughters had expired
prior to the so-called memorandum of partition (exhibit-4) and one
daughter was still alive but daughters/her legal heirs were neither
party to the so-called memorandum of partition (exhibit-4) nor party
to the suit. Examination of the son of one of the daughters Bhumi
Devi as D.W. 5 who had not claimed any right and title over the suit
property, but stated that his maternal uncle Shyam Poddar and his wife
had obtained the suit land on the basis of gift and by way of adverse
possession is not sufficient to conclude that the daughters/their legal
heirs have given up their claim over the suit property. The learned
Court recorded that the contesting defendants had nowhere stated that
daughters had ever claimed any right in the suit land, rather the
defendants claimed that the entire land of 2 decimals which included
the suit land of 1 decimal was their property on the basis of gift. Such
finding is also perverse, inasmuch as, it were the daughters/their legal
heirs who could have come forward, if made party to exhibit-4 or to
the suit, to state as to whether they had relinquished their rights over
the property and merely because contesting defendants have not made
any objection on this point, the same has no bearing in the claim/rights
of daughters/their legal heirs.
45. As a consequence of the aforesaid findings, the substantial
questions of law are answered as follows: -
A. With respect to the 1st substantial question of law, it is held that
exhibit- 4 was effecting partition and was compulsorily
registrable as per sections 17 and 49 of the Registration Act and
was inadmissible in evidence. Exhibit- 4 dated 20.11.2005 was
not a memorandum of partition but it records terms and
conditions of compromise dated 20.11.2005 entered into
between legal heirs and successors of Moti Poddar in 1st part
and Shyam Poddar in 2nd part.
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B. So far as 2nd substantial question of law is concerned, the so-
called oral family settlement (exhibit-4) entered into between
legal heirs and successors of Moti Poddar on the one hand and
Shyam Poddar on the other without making daughters as party
to the exhibit-4, was not binding on the parties. The finding of
the learned 1st appellate court is perverse and is against the
mandate of law.
46. Both the substantial questions of law are decided in favour of
the appellant (defendant no.1) and against the respondent nos. 1 to 5
(plaintiff and the proforma defendants).
47. This Court also finds that the entire claim of the plaintiff is
based on a registered deed of sale dated 20.10.2008 executed by the
legal heirs and successors of Moti Poddar although at no point of time,
the exclusive possession of legal heirs and successors of Moti Poddar
with respect to the suit property has been proved. Admittedly, the
plaintiff was never handed over physical possession of the suit
property and the property was in possession of the contesting
defendants i.e. defendant no. 1 and defendant no. 1(a) and further, the
sale deed of the year 2008 (exhibit-1) itself was based on so called
amicable partition in two equal shares between legal heirs of Moti
Poddar on the one hand and Shyam Poddar on the other. Thus, the
entire basis of the title of the vendors of the plaintiff was the amicable
partition recorded in the so-called memorandum of partition (exhibit-
4) which has been held to be inadmissible in evidence and also held to
be not valid in law on account of non-inclusion of the daughters/their
legal heirs. Consequently, neither the proforma defendants (legal heirs
and successors of Moti Poddar) had the exclusive right, title and
possession with respect to the suit property nor the plaintiff acquired
exclusive right, title and interest over the suit property by virtue of
registered sale deed of the year 2008 (exhibit-1).
48. The law is well-settled that the vendor cannot pass any better
title than what he actually possesses. Therefore, the exhibit- 1 which is
a registered sale-deed dated 20.10.2008 executed by the legal heirs
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and successors of Moti Poddar in favour of the plaintiff is in effect
sale of undivided portion of joint family property in which vendors of
the plaintiff also had share and accordingly, the learned courts were
not justified in decreeing the suit and directing the defendant no. 1 and
1(a) to hand over the possession of the suit property to the plaintiff.
Accordingly, the impugned judgement passed by learned District
Judge- I, Jamtara in Civil Appeal No.14 of 2017 upholding the
judgement and decree passed by learned Civil Judge (Senior
Division)- I, Jamtara in Title Suit No.9 of 2009 is hereby set-aside and
the suit is dismissed.
49. This second appeal is accordingly allowed.
50. Pending I.A., if any, stands closed.
51. Let this judgment be communicated to the learned court
concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Pankaj
