Sunday, 17 November 2019

Whether mother can transfer her exclusive property to sons by partition deed?

 The suit property is the property which was given to Renubai. It is also not in dispute that, it was given in lieu of maintenance to her for lifetime prior to 1956. Under those circumstances, by virtue of Section 14(1) of Hindu Succession Act, 1956, she had become exclusive owner of the said property, i.e. in other words, it was her absolute property. It cannot be disputed that, after it had become her absolute property, she had every right to dispose of the said land as per her wish. The defendants No. 1 and 2 have come with a case that, Renubai had executed a partition deed on 17-05-1962 i.e. Exhibit 61 and by virtue of that document they have become owner of 1/2 portion each. Here the said document Exhibit 61 is a unregistered document. It is also executed on deficit stamp. No doubt it appears that, the defendants have deposited the deficit stamp with penalty as contemplated under the then, Section 33 of Bombay Stamp Act, 1958. Now the question is whether after payment of deficit stamp duty (impounding of document) whether that document can be said to be admissible and whether defendants No. 1 and 2 can get any kind of benefit or title from that document. The first and the foremost fact that is required to be borne in mind that when Renubai became absolute owner of the suit property by virtue of Section 14 of the Hindu Succession Act, defendants No. 1 and 2 cannot be said to be her co-sharers. Therefore, when she was transferring the title to them, it could not have been as 'Vatni Patra' or partition deed. Defendants No. 1 and 2 had no existing right in the suit property along with Renubai so that she can partition the said land. By that document she was creating right or title in favour of defendants No. 1 and 2, and therefore, that document was a compulsorily registrable document as contemplated under Section 17 of the Indian Registration Act. Admittedly the value of the suit property even at the time when Exhibit 61 was executed was more than Rs. 100/-, and therefore irrespective of the nomenclature, it was a compulsorily registrable document. Though one of the defect in respect of that document was tried to be cured by defendants No. 1 and 2 by paying the penalty as well as requisite stamp duty, yet the said document cannot be said to be admissible for 'any purpose'. Transfer of title can be made by exclusive owner either by sale-deed or gift-deed, mortgage-deed etc.. For partition, the other party should also have title or share in that property. When as aforesaid Renubai was creating right or share of defendants No. 1 and 2 in the said property, then such document becomes 'inadmissible', when it is unregistered under Section 17 of the Indian Registration Act. Section 35 of Bombay Stamp Act prohibits use of such document even for collateral purpose. It cannot be used for "collateral purposes" also under Section 49 of the Registration Act. In Avinash Kumar Chauhan Versus Vijay Krishna Mishra, reported in MANU/SC/8502/2008 : AIR 2009 SC 1489, wherein it has been observed that,

"The Parliament has, in Section 35 of the Stamp Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions."

"The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act."

"The plea that the document was admissible for collateral purpose would not be tenable. Section 35 of the Act rules out applicability of provisions of Section 49 of Registration Act. As it is categorically provided therein that a document of this nature viz. unregistered sale deed shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purpose."

No doubt in the above cited case, it was an unregistered deed of sell but here in this case as aforesaid though it was styled as 'Vatni Patra', in fact it could not have been partition deed as the defendants No. 1 and 2 were not the co-sharers with Renubai. Defendants No. 1 and 2 cannot take dual stands by contending at one place that Renubai had become exclusive owner by virtue of Section 14 of the Hindu Succession Act and then at the another breath they can say that she was entitled to execute partition deed.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 173 of 2003

Decided On: 08.04.2019

Manikrao Vs. Gangabai and Ors.

Hon'ble Judges/Coram:
Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 210


1. Present appeal has been filed by the original defendants No. 1 and 2 challenging the concurrent findings of both the Courts below. Present respondent No. 1 had filed Regular Civil Suit No. 250 of 1997 before Civil Judge, Junior Division, Gangapur for partition and separate possession. The pedigree given in the plaint para No. 02 is reproduced here for the sake of convenience;


2. Plaintiff is the daughter-in-law of late Renubai who expired on 22-01-1994. Defendants No. 1 and 2 are Renubai's sons and defendants No. 3 and 4 are the sons of Sitabai who was the daughter of Renubai. Defendants No. 5 and 6 are the sons of plaintiff. It is contended that, the suit land bearing Gut No. 78 admeasuring 32 Acres 39 Gunthas situated at village Khadgaon Tal. Gangapur Dist. Aurangabad was the ancestral property of plaintiff and defendants, however it was recorded in the name of Renubai in a family arrangement. Plaintiff's husband Ramrao had expired about 30 years ago prior to the suit. Sitabai also died about 20 years prior to the suit. According to the plaintiff, she has 1/4th share in the suit property, however after demise of Renubai, the defendants No. 1 and 2 have got their names recorded to the revenue record, illegally and without the consent of plaintiff. However, it is stated that, defendants No. 1 and 2 are cultivating the said land and taking income from the same. She had orally initially requested the defendants to partition the land but they refused and therefore she had issued legal notices on two occasions but there was no reply by the defendants and hence she prayed for separation of her share to the extent of 1/4th in the suit land. Consequential prayer of injunction as well as mesne profits was also prayed. By way of amendment defendants No. 5 and 6 have been added as party to the suit.

3. The defendants No. 1 to 3 filed their written statement at Exhibit 21. It is stated that, the suit is bad for non-joinder of necessary parties as the two sons of deceased Ramrao namely Kadu and Kondiram have not been added to the suit. The pedigree given in para No. 2 of the plaint was admitted. Other contents were denied. It has been contended that, though the plaintiff is the relative of deceased Renubai, she cannot be the heir or the successor claiming share in the suit land. It is stated that, Renubai was absolute owner of the suit land as it was her 'Stridhan' as contemplated under Section 14(1) of the Hindu Succession Act 1956. She has made testamentary disposition of the suit land as provided in Section 30 of the Hindu Succession Act by way of executing a partition deed on 17-05-1962 in favour of defendants No. 1 and 2 by actually inducting them in the suit property. A specific plea was taken that, deceased father of defendants No. 1 and 2 Yeshwanta was the legal owner of lands bearing Gut No. 76, 45, 74, 44, 77, 46, 48 and 78 from village Khadgaon, Gut No. 16 of village Singpur and Gut No. 126 from village Golegaon Tal. Gangapur. After his death there was a partition regarding the said lands as well as one big house at Khadgaon between defendants No. 1 and 2 and deceased husband plaintiff (Ramrao) about 50 to 60 years ago. They have given the details of the partition that was effected and it is stated that, the suit property came to the share of Renubai. Thereafter she has become the full owner of the said property and by way of effecting partition deed dated 17-05-1962 she has given the said land to defendants No. 1 and 2. Therefore, they prayed for dismissal of the suit.

4. Taking into consideration the said rival contentions, issues came to be framed. Parties have led oral as well as documentary evidence on record. Taking into consideration the evidence on record, the learned trial Court has dismissed the suit, however it was declared that defendants No. 1 and 2 each are having 1/4th share in the suit land whereas defendants No. 3 to 6 are having 1/8th share each in the suit land. It was also directed that, on payment of requisite Court fees, preliminary decree declared in the rights of defendants should be withdrawn and decree be sent to Collector for effecting partition.

5. The said Judgment and decree was then challenged in Regular Civil Appeal No. 234 of 2001 before learned District Judge, Aurangabad by defendants No. 1 and 2. After hearing both the sides, the said appeal came to be dismissed by learned Additional District Judge, Aurangabad on 03-05-2002. Hence, those defendants No. 1 and 2 have filed the present second appeal.

6. After hearing both the sides this Court has admitted the second appeal on following substantial questions of law on 27-07-2005;

i) Whether it is correct to hold that, the document Exhibit 61 styled as partition deed is not admissible in evidence particularly when it is impounded and accordingly penalty is recovered from the appellants.

ii) That, the learned Courts below have lost the site that the document Exhibit 61 even can be used for the collateral purposes and as such, can be read in evidence.

iii) That, both the learned courts below misconstrued the document Exhibit 61 as in fact it should have been held that, it is the partition memo hence, does not require any registration as per Section 17 of Indian Registration Act.

iv) That the Judgment and decree under appeal is otherwise bad in law and hence, is liable to be quashed and set aside.

Therefore, taking into consideration the above said order the scope of the second appeal is limited to the above said substantial questions of law only.

7. Heard learned advocate Mr. Rajendra Deshmukh With Mr. Amol Joshi, representing appellants, Senior Counsel Mr. R.N. Dhorde, instructed by Mr. H.P. Kshirsagar, representing respondent No. 1 and advocate Mr. C.T. Jadhav, for respondent No. 4, 5-A to 5-D.

8. It has been submitted on behalf of appellants that, though the suit was for declaration and partition filed by the plaintiff was dismissed, yet the shares of the defendants were declared by the learned trial Court on the basis of Judgment of Mysore High Court in Abdul Rahiman Vs. M.L. Narasimhia, reported in MANU/KA/0018/1950 : AIR 1950 Mysore 60. Therefore, the question is also arising as to whether a partition decree can be impressed on those parties who do not want their share to be separated. The defendants No. 1 and 2 have come with a specific case that, there was a partition amongst the heirs left by Yeshwanta and in that partition the suit property was given to Renubai. They had filed Exhibit 61, the partition deed dated 17-05-1962, to support their contention. Renubai herself had effected the partition, however the mutation entry was applied for after her death. Both the Courts below have failed to consider that, Exhibit 61 was a memorandum of partition and it was not the partition deed. The said document could have also been considered as testamentary disposition by Renubai. In fact there was no cause of action for any party to claim partition. Plaintiff did not approach the appellate Court against the dismissal of her suit. Therefore, as regards her, the decree has achieved finality, therefore the lower Court went wrong in carving out the shares of the defendants. Defendants No. 5 and 6 have also not prayed for partition and separate possession, after they were added as party. It ought to have been simple dismissal of the suit, when none of the defendants were intending to get their shares separated. When Exhibit 61 was a memorandum of partition, it was not required to be registered as per Section 17 of the Indian Registration Act. Further both the Courts below have failed to consider that, though Exhibit 61 was impounded and the penalty was also recovered from the appellants, merely it was not registered, it would not have deprived the defendants from putting it to the collateral use. The said document clearly shows that, Renubai had partitioned the said land and given it in favour of the defendants No. 1 and 2.

9. The learned advocate appearing for the appellants submitted that, no such direction regarding carving out the shares of the defendants have been given in case of Abdul Rahiman Vs. M.L. Narasimhia, reported in MANU/KA/0018/1950 : AIR 1950 Mysore 60. The observation made that,

"A decree for partition amounts to a joint declaration of the rights of the persons interested in the property of which partition is sought and it must be taken that a decree in such suits is a decree, when properly drawn up, in favour of each share-holder, whether a plaintiff or a defendant in the suit. A defendant who is entitled to half a share in the suit property is therefore entitled to claim also the share in the profits."

were made taking into consideration the situation involved in that matter and it was not as a position of law.

10. Per contra, the learned Senior Counsel Mr. R.N. Dhorde instructed by Mr. H.P. Kshirsagar for respondent No. 1 submitted that, when the substantial question of law was not framed by the High Court, the case was remanded by Hon'ble Supreme Court in, Chandramohan Ramchandra Patil Versus Bapu Koyappa Patil (Dead) Through Lrs., reported in MANU/SC/0141/2003 : 2003 AIR (SC) 1754. It is stated that, in this case no substantial question of law were framed in specific words. Further each party to the suit for partition is like plaintiff and therefore the shares have been carved out. Since there is a concurrent finding, this Court should not interfere in the said decision.

11. He also pointed out that, though at the time of admission ground Nos. i, ii, iii and iv were considered as substantial questions of law, still at the final decision this Court may come to a conclusion that no substantial questions of law are arising. The substantial questions of law ground Nos. i, ii and iii were around document Exhibit 61. Perusal of document Exhibit 61 would show that, it is named as 'Vatni Patra' i.e. partition deed. But at one breath when it has come on record that the suit property was given to Renubai towards her maintenance then after the Hindu Succession Act, 1956 it had become her exclusive property by virtue of Section 14 of the said Act. Therefore, when she was transferring that property to somebody else then there would ought to have been a proper document, duly stamped and registered. Exhibit 61 cannot be treated as partition deed nor even as memorandum of partition because defendants No. 1 and 2 cannot be said to be the coparceners or co-sharers in the suit property. That document also cannot be taken as 'Will' because it is signed by others also. Therefore, if we brush aside Exhibit 61, then the decision that was given by the learned trial Court and upheld by the first appellate Court was the correct view. The learned Advocate for respondent No. 4 and 5A to 5D has supported the submissions made by learned senior counsel representing respondent No. 1.

12. Since the first three substantial questions of law relate to Exhibit 61, they are taken up for discussion together. Further, though substantial questions of law are revolving around Exhibit 61, however it is necessary to consider the background. As aforesaid the relationship between the parties is not denied. The fact is also on record that, as regards the ancestral properties are concerned, there was a partition between defendant No. 1, 2 and the husband of the plaintiff. Plaintiff in her cross-examination has clearly admitted that, whatever land had come to the share of her husband, she is cultivating the same. The suit property is the property which was given to Renubai. It is also not in dispute that, it was given in lieu of maintenance to her for lifetime prior to 1956. Under those circumstances, by virtue of Section 14(1) of Hindu Succession Act, 1956, she had become exclusive owner of the said property, i.e. in other words, it was her absolute property. It cannot be disputed that, after it had become her absolute property, she had every right to dispose of the said land as per her wish. The defendants No. 1 and 2 have come with a case that, Renubai had executed a partition deed on 17-05-1962 i.e. Exhibit 61 and by virtue of that document they have become owner of 1/2 portion each. Here the said document Exhibit 61 is a unregistered document. It is also executed on deficit stamp. No doubt it appears that, the defendants have deposited the deficit stamp with penalty as contemplated under the then, Section 33 of Bombay Stamp Act, 1958. Now the question is whether after payment of deficit stamp duty (impounding of document) whether that document can be said to be admissible and whether defendants No. 1 and 2 can get any kind of benefit or title from that document. The first and the foremost fact that is required to be borne in mind that when Renubai became absolute owner of the suit property by virtue of Section 14 of the Hindu Succession Act, defendants No. 1 and 2 cannot be said to be her co-sharers. Therefore, when she was transferring the title to them, it could not have been as 'Vatni Patra' or partition deed. Defendants No. 1 and 2 had no existing right in the suit property along with Renubai so that she can partition the said land. By that document she was creating right or title in favour of defendants No. 1 and 2, and therefore, that document was a compulsorily registrable document as contemplated under Section 17 of the Indian Registration Act. Admittedly the value of the suit property even at the time when Exhibit 61 was executed was more than Rs. 100/-, and therefore irrespective of the nomenclature, it was a compulsorily registrable document. Though one of the defect in respect of that document was tried to be cured by defendants No. 1 and 2 by paying the penalty as well as requisite stamp duty, yet the said document cannot be said to be admissible for 'any purpose'. Transfer of title can be made by exclusive owner either by sale-deed or gift-deed, mortgage-deed etc.. For partition, the other party should also have title or share in that property. When as aforesaid Renubai was creating right or share of defendants No. 1 and 2 in the said property, then such document becomes 'inadmissible', when it is unregistered under Section 17 of the Indian Registration Act. Section 35 of Bombay Stamp Act prohibits use of such document even for collateral purpose. It cannot be used for "collateral purposes" also under Section 49 of the Registration Act. In Avinash Kumar Chauhan Versus Vijay Krishna Mishra, reported in MANU/SC/8502/2008 : AIR 2009 SC 1489, wherein it has been observed that,

"The Parliament has, in Section 35 of the Stamp Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions."

"The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act."

"The plea that the document was admissible for collateral purpose would not be tenable. Section 35 of the Act rules out applicability of provisions of Section 49 of Registration Act. As it is categorically provided therein that a document of this nature viz. unregistered sale deed shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purpose."

No doubt in the above cited case, it was an unregistered deed of sell but here in this case as aforesaid though it was styled as 'Vatni Patra', in fact it could not have been partition deed as the defendants No. 1 and 2 were not the co-sharers with Renubai. Defendants No. 1 and 2 cannot take dual stands by contending at one place that Renubai had become exclusive owner by virtue of Section 14 of the Hindu Succession Act and then at the another breath they can say that she was entitled to execute partition deed.

13. It was also tried to be contended by the appellant that, Exhibit 61 ought to have been considered as a memorandum of partition; but again this submission cannot hold water for the simple reason that, defendants No. 1 and 2 were not the "co-sharers" of Renubai. If Renubai had the intention to give her property only to defendants No. 1 and 2, she could have sold it to them or she could have gifted it or she could have left a Will in their favour. Then again the point has been raised that, Exhibit 61 could have been taken as 'Will' left by Renubai. It can be seen that, defendants have not examined witnesses to the alleged document who can be later on termed as "attesting witness". Further a 'Will' cannot be in the said form as Exhibit 61 is drafted. It is stated to have been executed between defendants No. 1 and 2 on one part and Renubai on the other part. Even the name of husband of the plaintiff was appearing in the said document. A 'Will' will come into effect after death of testator but then in this document it was tried to be contended that she has already parted with the possession of the suit property. Further requirements under Section 68 of the Indian Succession Act have not been fulfilled, and therefore, the said document cannot be considered as 'Will'. Therefore, when we brush aside document Exhibit 61, through which the defendants No. 1 and 2 are claiming ownership over the suit property, then nothing remains in their favour. Hence, I answer the substantial questions of law as under;

i) Yes, it cannot be said to be admissible in evidence.

ii) No.

iii) It cannot be considered as memorandum of partition.

Therefore as regards,

iv) The Judgment and decree under appeal is not at all bad in law and it cannot be quashed and set aside.

14. One more aspect which was tried to be highlighted by the learned advocate for the appellant is that, though the suit was filed by Gangubai, she was not held to be entitled to get any share and she was claiming partition from defendants No. 1 and 2. Though defendants No. 5 and 6 who are the sons of Gangubai were added subsequently, they had not claimed any share in the suit land. Then under such circumstance when defendants No. 1 and 2 do not want to be separated or their relations to be severed and also when the suit is dismissed the learned trial Court ought not to have gone ahead with declaration of shares of the defendants. It is to be noted that, the claim of the plaintiff was negatived on a different ground that she being the daughter-in-law of Renubai cannot inherit the property directly. Plaintiff was the widow of predeceased son of Renubai and therefore when there are members from Class-I heir, she will not get share. But then the defendants No. 5 and 6 who are the sons of predeceased son along with the sons i.e. defendants No. 1 and 2 under Section 15 and 16 of the Hindu Succession Act, though defendants No. 5 and 6 were not claiming share for themselves only because they have stated that, that should be given to their mother. it cannot be stated that, the learned trial Court went wrong in carving out the shares of all the defendants. The shares of each sharer have been declared. Defendants No. 5 and 6 may get their share separated. If defendants No. 1 and 2 do not want to get their share separated and separate possession to be handed over to them; then they may keep it joint among themselves.

15. Since all the substantial questions of law have been dealt with, the ratio laid down in, Chandramohan Ramchandra Patil Versus Bapu Koyappa Patil (Dead) Through Lrs., reported in MANU/SC/0141/2003 : (2003) 3 Supreme Court Cases 552, may not be applicable here. For the aforesaid reasons, the second appeal stands dismissed. Under the circumstance, parties to be bear their own costs of the proceedings. Decree be drawn accordingly.


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