1. This is defendant's Second Appeal preferred under Section 100 of CPC against the judgment and decree dated 13.04.2007 passed by Additional
District Judge (FTC) Pendraroad District Bilaspur (CG) in Civil Appeal No. 22-A/2003 arising out of judgment and decree dated 27.09.2003 passed
by Civil Judge, Class-II, Pendraroad District Bilaspur in Civil Suit No. 105-A/2002 by which learned District Judge allowed the appeal and held that
appellant and the defendants are the joint owner of the Khasra No. 178, area 1.00 acres, khasra no. 199 area 0.54 acres, khasra no. 200 area 1.05
acers and khasra no. 201 area 0.68 dismissal, total khasra 2, 3.18 acres and has directed the parties to partition the property as per Section 178 of the
land Revenue Code.
2. This second appeal preferred by the defendant was admitted for hearing on 20.11.2019 by formulating the following substantial question of law: -
“Whether First Appellant Court was justified in reversing the judgment and decree of the trial Court holding that plaintiff is also entitled for ½
share in the property mentioned in Schedule 'B' of the plaint, by recording a finding, which is perverse to the record?
3. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 105-A/2002 before the trial Court.
4. Brief facts necessary for disposal of this appeal are that, the plaintiff filed a suit civil suit before the Civil Judge, Class -1 Pendraroad for declaration
of title, mainly contending that the property described in Schedule A and B of the plaint area 6.97 acres total khasra no. 12, and total khasra no. 2,
area 3.18 acres, situated at Village Patangava, PH 28, Revenue circle Pendra, Tahsil Pendra, District Bilaspur is suit property. The plaintiff and the
defendants are Hindus and they are governed by Hindu Succession Act. The genealogy was also mentioned in the plaint. It has further contended that
property mentioned in Schedule B, measuring 3.18 acres has been mutated in the name of defendant No.1 vide order dated 24.01.1980 by playing
fraud in collusion with Revenue Officer. Thereafter the plaintiff has preferred an appeal which is pending before Sub Divisional Officer, Pendraroad.
It has further contended that the plaintiff has gone out for employment since 1974 and he was not aware about the earlier partition and he was under
the impression that since he is in possession of half of the share, after death of his father, plaintiff and defendant names will be recorded in the
revenue record. It has also been contended that Nandu expired prior to three years and Chhotu expired prior to four years. It has been contended that
after death of Bihari, his sons Nandu and Chhotu have inherited the properties. The property was in possession of plaintiff and defendant No.1 as per
their earlier partition. The plaintiff is the sole son of Nandu with his legally wedded wife Bundu Bai. After death of Bundu Bai, neither Nandu was
solemnized second marriage nor defendant no.2 Ramjaniyabai was his wife.
5. It has been further contended that after death of Nandu, the defendant no. 1 and 2 have recorded their names in the revenue record and defendant
no. 2 has inherited the property being widow of Nandu and also applied for partition of the property which is pending before Tahsildar Pendraroad.
The Tahsildar has issued notice then only the fact regarding inclusion of name of defendant no. 2 in Schedule B property has been brought to the
notice of the plaintiff. It has been further contended that when the plaintiff enquired about 10.29 acres of land from the revenue record then it was
revealed to him that property mentioned in Schedule B measuring 3.18 acres, name of defendant No.1 has been recorded on 24.01.1980 whereas
name of plaintiff of being successor of Nandu should have also been recorded. On above factual matrix, the plaintiff has prayed for declaration that
names of plaintiff and defendant no.1 be recorded in the property mentioned in Schedule B of the plaint as joint owner of the property.
6. The defendants No. 1 and 2 have filed their written statement contending that in the genealogy which has been mentioned in the plaint name of
Ramjaniyabai has not been disclosed whereas Ramjaniyabai was the widow of Nandu and name of Shanku Bai who was sister of Nandu has also not
been disclosed, though she was necessary party to the case. It has been contended that Shanku Bai has expired leaving behind her legal
representatives namely Bhaiyalal, Tularam, Tulsidas, Chamelibai, Gulabiyabai and Kamlabai, they are the necessary party but they have not arrayed
as party to the case, therefore, the suit is not maintainable. It is denied that after death of Nandu and Chhotu the whole property will be succeeded by
plaintiff and defendant No.1. In fact, Nandu has done second marriage with defendant No. 2 as per the custom and she was residing with Nandu as
his wife. After death of Nandu, defendant No. 2 has performed the last ritual of Nandu and thereafter she was residing in the house of Nandu as his
widow. It has also been contended that the appellant and defendants belonged to Mahra caste where second marriage is permissible through Chudi
system.
7. It is also contended that after death of husband, the wife is entitled to get property of her husband. The plaintiff deliberately concealed this fact that
defendant No.2 is widow of Nandu. It has also been denied that mutation has been done fraudulently. It has been contended that Chhotu and Nandu in
their lifetime have given property mentioned in Schedule B to defendant No.1 voluntarily and have also given their consent to record the name of
defendant No.1 and since then the defendant No.1 is holding the property mentioned in Scheduled B as owner of the property. He has taken loan
against that property for construction of well. It has also contended that Nandu had filed a Revenue Case before Tahsildar Pendraroad which was
dismissed on 24.01.1980, therefore, order passed on 24.01.1980 is final and binding on the parties. It has also been contended that Nandu had made an
attempt to remove the defendant No.1 from the property mentioned in Schedule B of the plaint in the year 1984. But the defendant no.1 on the basis
of adverse possession has acquired the property as mentioned in Schedule B, as such the plaintiff has no title over the suit property mentioned
Schedule B of the plaint and would pray for dismissal of the suit.
8. On the pleadings of the parties, learned trial Court has framed as many as eight issues.
9. The plaintiff to substantiate his stand has examined Shyamlal (PW-1), Makhan Lal (PW-2), Ramjiyavan (Ex.P-3) and exhibited documents B-1
Kistbandi (Ex.P-1), B-1 Kistbandi (Ex.P-2), Certified copy of mutation slip (Ex.P-3). The defendant exhibited the document dated 28.08.1984 (Ex.D-
1) and examined witnesses namely Tarachand (DW-1), Ramjaniyabai (DW-2), Amritlal (DW-3), Jhadiram (DW-4).
10. Shyamlal (PW-1) in his examination in chief has stated that the property mentioned in Schedule A and B belonged to Bihari. Bihari died in the year
1955 and after the death of Bihari, the property was divided by Nandu and Chhotu. Shanku Bai was the sister of Nandu and she left her house prior to
45 years and there is no information about Shanku Bai. After death of Nandu and Chhotu, the entire property was inherited by plaintiff and
Tarachand. They were occupied the land as per the partition taken place between their fathers. He has stated in his examination-in-chef that Buddhu
Bai was the legally wedded wife of his father and he is the only son. After death of her mother, his father has not performed second marriage. He has
stated that after death of his father, Ramjaniyabai fraudulently mutated her name in the property mentioned in Schedule B with him. When he enquired
about the fact then it is revealed that on 24.01.80 defendant No. 2 has recorded her name. He reiterated the same averment in the affidavit which has
been mentioned in the plaint. This witness was cross examined by the defendants, where he has admitted that Ramjaniyabai was residing in her house
and was looking after her house and she was the servant of his father. He has also admitted that after death of his father Ramjaniyabai has
participated in the last rituals of his father. He has admitted that he was not aware about the fact of second marriage with Ramjaniyabai as Chhudi
marriage by his father or with the consent of his mother Brinda Bai. He has admitted that Tarachand has installed the pump and constructed the well
after obtaining loan from the bank.
11. Makhanlal (PW-2) has also reiterated the same averments made in the plaint and in the cross examination, he has stated that he was not aware
that Bhaiyalal, Tularam, Tulsidas, Chamelibai, Gulabiyabai and Kamlabai were the legal heirs of Shanku Bai. He has admitted that there was partition
between Nandu and Chhotu. He has admitted that Tarachand had installed the pump on the land which was recorded in his name. He has also
admitted that Ramjaniyabai was residing with Nandu. He has stated that name of Ramjaniyabai was recorded in the revenue record after death of
Nandu. He has also admitted that Bundu Bai was surviving at that time Ramjaniyabai was residing with Nandu. He has also admitted that after death
of Bundu Bai, Ramjaniyabai was residing with Nandu in his house but he was not aware on which status she was residing with Nandu.
12. Ramjiyavan (PW-3) was examined before the trial Court and in the cross examination, he has admitted that partition between Nandu and Chhotu
were done in presence of Panchayat. He has also admitted that Ramjaniyabai was residing with Nandu. He also admitted that Ramjaniyabai was
living with Nandu last 15-20 years. He has admitted that Ramjaniyabai was living with Nandu at that time Bundu Bai was surviving. Even after death
of Bundu Bai, Ramjaniyabai was residing with Nandu.
13. Tarachand was examined as (DW-1), He has reiterated the stand taken by him in written statement filed before the trial Court, in his examination-
in-chief and his cross examination, this witness has stated that 6.97 dismissal and 3.18 dismissal lands were situated in village Patganva were recorded
in the name of his forefather Bihari. He has also admitted that after death of Bihari, Nandu and Chhotu were occupied the said land. He has also
admitted that after death of Nandu and Chhotu, he and plaintiff Shyamlal occupied the said land. He has stated that Ramjaniyabai was living with
Nandu as his wife. He has stated that he was not aware about the partition between Nandu and Chhotu has done. Since he was taking care of
Shyamlal’s father, therefore, his father and Shyamlal’s father have given the land situated at village Pantangava and got mutation his name
when the plaintiff was in service. He has stated that documentation was done in the year 1980. He has admitted in the cross-examination, that 3.18
dismissal land is an ancestral property. He has admitted that he has taken loan from the bank but he has not filed any documents regarding loan taken
from the said property.
14. Ramjaniyabai was examined as (DW-2), this witness has supported the case of the defendants No.1 and submit that the plaintiff father Nandu and
Chhotu have voluntarily mutated the name of Tarachand with her consent and since then she was in possession of the said land. She was cross-
examined before the trial Court wherein she has stated that her first marriage was solemnized with Lamna and Lamna has done second marriage,
therefore, she did second marriage with Nandu. She has admitted that she knows about Shanku Bai, later she expired. She has denied that she was
residing in the house of Nandu as his servant and she was living as his wife. She has admitted that after death of Nandu, Shyamlal has banished her
from the house of Nandu.
15. Amritlal (DW-3) this witness has supported the case of the defendants and stated that in their community Chudi marriage is acceptable and after
death of her husband, in their society the wife who has done Chudi marriage is entitled to get the right and in the village so many persons have given
the right who opted for Chudi Marriage. Jhaduram (DW-4) has stated that Ramjhaniyabai was the wife of Nandu and she performed the last ritual of
her husband. This witness was cross examined wherein he has admitted that Chhotu and Nandu have done partition in the property. He admitted that
Shyamlal and Tarachand occupied the land as per the partition.
16. The trial Court has allowed the suit filed by the plaintiff and granted decree directing that the property situated at village Patangava, PH. 28,
Revenue Circle bearing khasra 12, area 6.97 acres described in Schedule A of the plaint, plaintiff and defendant No.1 have joint ownership, but he has
denied that the claim of the plaintiff so far as property mentioned in Schedule B is concerned. Against that, the plaintiff has filed first appeal,
challenging the decree so far as his share in Schedule B property by filing Appeal under Section 96 CPC before the learned Additional District Judge,
Pendraroad. Learned Additional District Judge, Pendraroad, after appreciating the evidence and material on record has recorded its finding that
property mentioned in Schedule A and B is a joint family property but the property mentioned in Schedule B partition has not been granted. Learned
first appellate Court while deciding this issue has recorded the finding that defendant No.1 has given oral statement that the property has been given to
him on partition but has not filed any document to substance his averments. He has also stated that with the consent of the family members his name
has been recorded in the property but no document has been submitted to substance his averments. Learned First appellate Court has also recorded a
finding that if property valued more than Rs. 100/-then the transfer cannot be done without registered document as per section 54 of the Transfer of
Property Act, considering the facts the learned Trial Court has also recorded a finding that name recorded in the revenue record does not give any
title to the property, therefore, for getting the title of the property some legal document is very necessary and in this case no document has been filed
to establish that how the title has been transferred in the name of defendant no.1, as such, learned first appellate Court has allowed the appeal and set
aside the findings recorded by the trial Court that the property mentioned in Schedule B belonged to defendant no.1 only has granted decree of
declaration that the property mentioned in Schedule B, khasra no. 178, area 1.00 acres, khasra no. 199 area, 0.45 dismissal, khasra no. 200 area 1.05
acres, khasra no. 201 area 0.66 dismissal total khasra no. 2 area 3.18 acres of lands are joint property of plaintiff and defendant No.1 and directed for
partition of account as per provision of section 178 of Chhattisgarh Land Revenue Code. Against that judgment and decree the defendant has
preferred Second Appeal under Section 100 CPC before this Court which was admitted by this Court on 20.11.2019.
17. Learned counsel for the appellant would submit that the findings recorded by the learned First Appellate Court that in absence of any right of
transfer in favour of the property by Nandu and Chhotu in the year 1980 is perverse finding and contrary to the law. He would rely in the matter of
Thamma Venkata Subbamma (Dead) By vs Thamma Rattamma & Ors 1987 (3) SCC 294 and would submit that the gift or relinquishment of share
of joint hindu family property comprising the donor brother and brother son and daughter is valid, therefore, with the consent of the Nandu and Chhotu
the property recorded in the name of defendant No.1 is just and proper and learned Appellate Court should have not allowed the appeal. He would
further refer to paragraph 17 of the report which states as follows:-
17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a
stranger with the prior consent of all other coparceners, Such a gift would be quite legal and valid.
18. Learned counsel for the appellant would further refer to the judgment of the Coordinate Bench of this High Court in the matter of Shyam Lal and
others vs. Mansuram Since Dead through Legal Heirs decided on 06.10.2018 in Second Appeal No.1486 of 1999 and submit that the Appellate Court
has absolutely unjustified in dismissing the finding recorded by the trial Court as the learned trial Court after appreciating the evidence and material on
record has given a finding that names of defendant No.1 has been recorded in the revenue record with the consent of Nandu and Chhotu, therefore,
this well reasoned findings should have not been set aside by the learned First Appellate Court without any cogent evidence brought on record
whereas the plaintiff has not brought any document to rebut the said contention raised by defendant No.1. He would prayed that well reasoned
findings recorded by the trial Court has been set aside by the First Appellate Court which is perversity, illegality as such substantial question of law
framed by this Court be answered in favour of the appellant.
19. During pendency of the appeal, respondent No. 1 has expired; therefore, his legal representatives, respondent No. 1 (A) and 1(C) have been
arrayed as party to the case. Learned counsel for respondent No. 1 (A) and 1(C) would submit that the finding recorded by the learned First
Appellate Court is legal and justified, does not warrant any interference by this Court and the appeal is deserved to be dismissed with cost.
20. I have heard learned counsel for the parties and record of the Court below with utmost satisfaction.
21. From the facts, it is quite vivid that the suit property is an ancestral property and it is also not in dispute that plaintiff and defendant No.1 are the
successors of Nandu and Chhotu. The defendant No.1 has taken a defence that with the consent of father of the plaintiff, name of original defendants
have been recorded in the year 1980 and on that basis he has taken loan from the bank. But from the record, it is quite clear that no document was
filed before the trial Court to establish that the consent was given in writing and only on the oral evidence, it cannot be taken into consideration with
regard to transfer of property in favour of defendant no.1. Learned First Appellate Court has also been taken note of the fact that the property valued
more than Rs. 100/- then right of the transfer cannot be done without documentation as per Section 5 of the Transfer of the Property Act. This
section provides that any act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or it
himself] and one or more other living persons; and “to transfer property†is to perform such act. The Section 17 of the Registration Act 1908 also
provides that document of which registration is compulsory. In the present facts of the case, through alleged oral consent the name of the defendant
no.1 has been recorded. Since the plaintiff’s father has assigned or extinguish his right or title, coupled with the fact that property is valued more
than Rs. 100 then registration is must but in the present case, this documentation and their registration is missing. Section 17 and section 49 of the
Registration Act is reproduced below.;-
22. Section 17 of the Registration Act as follows:-
17. Documents of which registration is compulsory.â€"(1) The following documents shall be registered, if the property to which they relate is
situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866,
or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:â€" (a) instruments of gift of
immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present
or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c)
non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year,
or reserving a yearly rent; 1 [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such
decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the 2 [State Government]
may, by order published in the 3 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a
district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. 4 [(1A) The
documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act,
1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws
(Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for
the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies toâ€" (i) any composition deed; or (ii) any
instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable
property; or (iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to
or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has
mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit
of the holders of such debentures; or 1. Ins. by Act 21 of 1929, s. 10. 2. Subs. by the A.O. 1950, for “Provincial Governmentâ€. 3. Subs. by the
A.O. 1937, for “Local Official Gazetteâ€. 4. Ins. by Act 48 of 2001, s. 3 (w.e.f. 24-9-2001).11 8 (iv) any endorsement upon or transfer of any
debenture issued by any such Company; or (v) 1 [any document other than the documents specified in sub-section (1A)] not itself creating, declaring,
assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely
creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi)
any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than
that which is the subject-matter of the suit or proceeding]; or (vii) any grant of immovable property by 3 [Government]; or (viii) any instrument of
partition made by a Revenue-Officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act,
1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing
the repayment of a loan made under that Act; or 4 [(xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any
property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] (xi) any endorsement on a mortgage-deed
acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage
when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public
auction by a Civil or Revenue-Officer. 5 [Explanation.â€"A document purporting or operating to effect a contract for the sale of immovable property
shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of
any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872,
and not conferred by a will, shall also be registered.
23. Section 49 of the Registration Act as follows:-
Effect of non-registration of documents required to be registered.â€"No document required by section 17 1 [or by any provision of the Transfer of
Property Act, 1882 (4 of 1882)], to be registered shallâ€" (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 1 [Provided that an
unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may
be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 2 , 3 *** or as
evidence of any collateral transaction not required to be effected by registered instrument.
24. Hon'ble Supreme Court has also examined the issue of transfer of right of property if sale consideration is more than Rs. 100/- in case of Shyam
Narayan Prasad vs Krishna Prasad and Others (2018) 7 SCC 646 relevant paragraphs 20 to 22 are extracted below:-
20. 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 Section 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 under Section 17 of the Registration Act. 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.
21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It
was held thus:
“……Section 17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to
create or declare some right in immovable property……Two propositions must therefore flow:
(1) A partition may be affected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a
division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in
evidence. Secondary evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872.â€
22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required under Section 91
the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 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 the
Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 the
Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit
P2.
25. That the findings recorded by the learned First Appellate Court the property mentioned in Schedule B is a joint property and plaintiff and defendant
No.1 are the joint owner is not liable to be interfered by this Court as it is a finding of fact.
26. In the result, the substantial question of law framed by this court is answered against the appellant. This Court finds that there is no illegality or
perversity in the judgment and decree passed by the learned First Appellate Court, therefore, the second appeal filed by the defendant deserves to be
and is hereby dismissed.
27. A decree be drawn up accordingly.
28. No order as to costs.
