Jharkhand High Court
Shyamlal Poddar vs Sukhdeo Mandal And Ors on 4 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 157 of 2019
Shyamlal Poddar ... ... Appellant
Versus
Sukhdeo Mandal and Ors. ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Amar Kr. Sinha, Advocate
: Mr. Ashutosh Pd. Joshi, Advocate
For the Respondents : Mr. Kaushik Sarkhel, Advocate
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13/04.03.2025 Heard the learned counsel appearing on behalf of the parties.
2. 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.
3. This appeal has been admitted for hearing and following two
substantial questions of law have been framed:
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?"
4. 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 one part 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 another 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-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 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.
5. 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 2 nd
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 could not have claimed 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.
6. He further referred to the impugned judgements and submitted
that the 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 section 49 of the
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.
7. The learned counsel for the respondents-plaintiffs 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 defendants, who are the appellants
before this Court, their specific case was that the property was
belonging to Lilawati devi wife of defendant no.1 and they claimed
the property in favour of Lilawati devi 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
Lilawati Devi or any of the defendants and the defendants were
claiming the property by stating that the property belongs to Lilawati
Devi 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.
8. 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
deed was null and void. Had the sale deed was 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 .
9. 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.
10. Arguments concluded.
11. Judgment is reserved.
(Anubha Rawat Choudhary, J.)
Saurav/
