SITA RAM BHAMAversusRAMVATAR BHAMA

                       [2018] 10 S.C.R. 503                             503


                       SITA RAM BHAMA                                   A
                                 v.
                      RAMVATAR BHAMA
                  (Civil Appeal No. 3171 of 2018)
                         MARCH 23, 2018                                 B
         [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Registration Act, 1908 – ss.17 and 49 – Admissibility of
document in evidence – Appellant-plaintiff and respondent-
defendant after death of their father, recorded a memorandum of
                                                                        C
settlement as decided by their father regarding his self-acquired
properties – Plaintiff claimed that defendant broke open the lock
of the house and took possession of the house – Civil suit was filed
by the plaintiff for decree of possession and permanent injunction
against the defendant – In suit, plaintiff also filed the memorandum
of settlement evidencing family settlement – Defendant filed            D
application u/Or. XIII, r.3 claiming that memorandum of settlement
being not properly stamped and not being a registered document
was not admissible in evidence – Trial Court allowed the application
– Writ petition filed against the order of trial Court dismissed by
High Court – On appeal, held: After the death of plaintiff ’s father,
                                                                        E
defendant and their mother as well as sisters became the legal heirs
under Hindu Succession Act inheriting the property being class I
heirs – The memorandum of settlement divided the entire property
between plaintiff and defendant which document was also claimed
to be signed by their mother as well as sisters – Since, there was
relinquishment of the rights of other heir of the properties, the       F
memorandum of settlement was compulsorily registrable u/s.17 of
the Registration Act – Document being not stamped could not have
been accepted in evidence – Trial Court was right in holding the
document as inadmissible – Code of Civil Procedure, 1908 –
Or. XIII, r.3 – Hindu Succession Act, 1956.
                                                                        G
      Registration Act, 1908 – s.17 – Unregistered document –
Partition Suit – Whether the document which is inadmissible in
evidence could be used for any collateral purpose – Held: In a suit
for partition, an unregistered document can be relied upon for
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                                  503
504            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     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 – Further, an unstamped instrument
      is not admissible in evidence even for collateral purpose, until the
      same is impounded – In instant case, document may be admissible
      in evidence for collateral purpose provided the appellant gets the
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      document impounded and pay the stamp duty together with penalty.
            Partly allowing the appeal, the Court
            HELD: 1. The memorandum of settlement dated 09.09.94
      was not mere memorandum of family settlement rather a family
C     settlement itself. Firstly, on 25.10.1992, the father of the parties
      was himself owner of both, the residence and shop being his self-
      acquired properties. The High Court has rightly held that the
      said document cannot be said to be a Will, so that father could
      have made Will in favour of his two sons,plaintiff and defendant.
      Neither the plaintiff nor defendant had any share in the property
D     on the day when it is said to have been partitioned by their father.
      After death of their father plaintiff, defendant and their mother as
      well as sisters become the legal heirs under Hindu Succession
      Act,1956 inheriting the property being a class I heir. The document
      dated 09.09.1994 divided the entire property between plaintiff
E     and defendant which document is also claimed to be signed by
      their mother as well as the sisters. In any view of the matter,
      there is relinquishment of the rights of other heirs of the
      properties, hence, courts below are right in their conclusion that
      there being relinquishment, the document dated 09.09.1994 was
      compulsorily registrable under Section 17 of the Registration Act.
F     [Para 10] [508-D-G]
            2. The document dated 09.09.1994 was compulsorily
      registrable. The document also being not stamped could not have
      been accepted in evidence and order of trial court in allowing the
      application of the defendant holding the document as inadmissible
G     cannot be faulted. [Para 12] [510-D]
            3. There is only one aspect of the matter which needs
      consideration, i.e., whether the document dated 09.09.1994 which
      was inadmissible in evidence could have been used for any
      collateral purpose. In a suit for partition, an unregistered
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           SITA RAM BHAMA v. RAMVATAR BHAMA                                  505


document can be relied upon for collateral purpose i.e. severancy            A
of title, nature of possession of various shares but not for the
primary purpose i.e. division of joint properties by metes and
bounds. Further, an unstamped instrument is not admissible in
evidence even for collateral purpose, until the same is impounded.
In instant case, document dated 09.09.1994 may be admissible
                                                                             B
in evidence for collateral purpose provided the appellant get the
document impounded and pay the stamp duty together with
penalty. [Paras 13 and 15] [510-E-F; 511-E]
      Kale and Others v. Deputy Director of Consolidation
      and Others (1976) 3 SCC 119; Yellapu Uma Maheswari
      and Another v. Buddha Jagadheeswararao and Others                      C
      (2015) 16 SCC 787 – relied on.
                        Case Law Reference
(1976) 3 SCC 119                  relied on                Para 11
(2015) 16 SCC 787                 relied on                Para 13           D
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3171
of 2018
      From the Judgment and Order dated 23.01.2017 of the High Court
of Judicature for Rajasthan at Jodhpur in S. B. Civil Writ Petition
                                                                             E
No. 4810 of 2015.
     Ajit Kumar Sinha, Sr. Adv., Yunus Malik, Anish Maheshwari, Zain
A. Khan, Samir Malik, Advs. for the Appellant.
     H. D. Thanvi, Ms. Preeti Thanvi, Rishi Matoliya, Advs. for the
Respondent.                                                                  F
      The Judgment of the Court was delivered by
       ASHOK BHUSHAN, J. 1. The appellant, who was plaintiff in
Civil Suit No.4 of 2011, has filed this appeal questioning the judgment of
the High Court of Judicature for Rajasthan at Jodhpur dated 23.01.2017
by which writ petition filed by the appellant against the order dated        G
03.03.2015 of the Additional District Judge has been dismissed.
      2. Brief facts of the case which are necessary to be noted for
deciding this appeal are:

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506             SUPREME COURT REPORTS                            [2018] 10 S.C.R.


A            We shall refer the parties as described in the plaint. Plaintiff and
      respondent are real brothers being sons of late Devi Dutt Ji Verma.
      Plaintiff’s case is that his father Devi Dutt Verma on 25.10.1992 decided
      to divide his self-acquired movable and immovable properties between
      plaintiff and defendant. The late father, however, did not execute any
      settlement deed. Devi Dutt Verma died on 10.09.1993 and thereafter on
B
      09.09.1994 plaintiff and defendant recorded a memorandum of settlement
      as decided by their father regarding his self-acquired properties. The
      memorandum of settlement was signed by mother of the parties as well
      two sisters had signed as witnesses. According to memorandum of
      settlement both residential house as well as shop in the Aguna Bazar
C     were distributed as decided by their late father.
              3. A Civil Suit No.5 of 2010 was filed by the plaintiff praying for
      partition of the residential house as well as the shop. In the suit an
      application under Order VII Rule 11 of the Civil Procedure Code was
      filed by the defendant, Ramvatar Bhama taking the plea that on
D     25.10.1992 during the life time of Shri Devi Dutt Verma, the father of
      the plaintiff and defendant, had partitioned the house and the shop.
      Southern portion of the house came in the share of the plaintiff and
      northern part came in the share of the defendant. In confirmation of the
      earlier partition dated 25.10.1992 the family settlement dated 09.09.1994
      was executed which was signed by the plaintiff and defendant along
E     with both the sisters as well as mother. It was pleaded by the defendant,
      in view of the aforesaid, that there was no cause of action for the plaintiff
      to file a partition suit. Defendant prayed that suit of the plaintiff is liable
      to be dismissed.
             4. The trial court vide its order dated 19.01.2011 allowed the
F     application filed by the defendant under Order VII Rule 11 CPC and
      dismissed the suit for want of cause of action in favour of the plaintiff.
      The civil court accepted the case of the defendant that the parties which
      were in joint family have been divided, there being nothing joint between
      the parties, there is no cause of action for the plaintiff for filing the suit
G     for partition. The relief for permanent injunction was also held to be
      related to the partition.
             5. Another Civil Suit No.4 of 2011 was filed by the plaintiff claiming
      that after dismissal of the earlier suit of the plaintiff on 19.01.2011,
      defendant broke open the lock of the house and took possession of the
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            SITA RAM BHAMA v. RAMVATAR BHAMA                                       507
                    [ASHOK BHUSHAN, J.]

house. Plaintiff prayed for decree of possession against the defendant             A
as well as decree of permanent injunction. Plaintiff also sought for mesne
profit and expenses.
       6. In the suit, plaintiff has filed the document dated 09.09.1994
evidencing family settlement which was claimed by the plaintiff as
memorandum of settlement. An application under Order XIII Rule 3                   B
CPC and Article 45 and Section 35 of the Indian Stamp Act and Sections
17 and 49 of the Indian Registration Act, was filed by the defendant
claiming that document dated 09.09.1994 being not a registered document
and being not properly stamped is not admissible in evidence, same may
be rejected. The application was replied by the plaintiff. The trial court
vide its order dated 03.03.2015 allowed the application of the defendant           C
holding that the document dated 09.09.1994 is a family settlement deed
and a relinquishment document which is not admissible as evidence being
inadequately stamped and not being registered. Against the said order
dated 03.03.2015 writ petition was filed by the plaintiff which was
dismissed by the High Court upholding the order of the trial court. The            D
High Court also took the view that so called family settlement takes
away the share of the sisters and mother, therefore, the same was
compulsorily registrable. Aggrieved by the said order, the plaintiff has
come up in this appeal.
        7. Shri Ajit Kumar Sinha, learned senior counsel, appearing for            E
the appellant submits that document dated 09.09.1994 is only a
memorandum of partition which took place on 25.10.1992 when father
of the parties had partitioned the house and the shop. The memorandum
of family settlement is not compulsorily registrable. The document itself
being not a family settlement rather only a memorandum ought to have
been accepted by the trial court. He further submits that in the earlier           F
suit filed by the plaintiff being Suit No.5 of 2010, the suit was dismissed
under Order VII Rule 11 CPC on the plea of the defendant that the
partition has already taken place between the parties as claimed by the
plaintiff, hence, no cause of action has arisen for filing a suit for partition.
He submits that partition effected by the father of the parties on                 G
25.10.1992 which was subsequently recorded on 09.09.1994 having
already been accepted, it is not open for trial court to reject the document
dated 09.09.1994 for being taken in evidence. It is submitted that by
order of the court below the plaintiff has become remedy-less.

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508             SUPREME COURT REPORTS                            [2018] 10 S.C.R.


A            8. Learned counsel for the respondent refuting the submission of
      the learned counsel for the appellant contends that the trial court as well
      as the High Court has rightly come to the conclusion that document
      dated 09.09.1994 was compulsorily registrable. It being neither registered
      nor duly stamped has rightly been rejected by the trial court from being
      taken in evidence. He submits that the High Court has rightly dismissed
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      the writ petition filed by the plaintiff.
             9. We have considered the submissions of the parties and perused
      the records.
             10. The only question which needs to be considered in the present
C     case is as to whether document dated 09.09.1994 could have been
      accepted by the trial court in evidence or trial court has rightly held the
      said document inadmissible. The plaintiff claimed the document dated
      09.09.1994 as memorandum of family settlement. Plaintiff’s case is that
      earlier partition took place in the life time of the father of the parties on
      25.10.1992 which was recorded as memorandum of family settlement
D     on 09.09.1994. There are more than one reasons due to which we are of
      the view that the document dated 09.09.1994 was not mere memorandum
      of family settlement rather a family settlement itself. Firstly, on
      25.10.1992, the father of the parties was himself owner of both, the
      residence and shop being self-acquired properties of Devi Dutt Verma.
E     The High Court has rightly held that the said document cannot be said
      to be a Will, so that father could have made Will in favour of his two
      sons, plaintiff and defendant. Neither the plaintiff nor defendant had any
      share in the property on the day when it is said to have been partitioned
      by Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993. After his
      death plaintiff, defendant and their mother as well as sisters become the
F     legal heirs under Hindu Succession Act, 1955 inheriting the property
      being a class I heir. The document dated 09.09.1994 divided the entire
      property between plaintiff and defendant which document is also claimed
      to be signed by their mother as well as the sisters. In any view of the
      matter, there is relinquishment of the rights of other heirs of the properties,
G     hence, courts below are right in their conclusion that there being
      relinquishment, the document dated 09.09.1994 was compulsorily
      registrable under Section 17 of the Registration Act.
             11. Pertaining to family settlement, a memorandum of family
      settlement and its necessity of registration, the law has been settled by
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           SITA RAM BHAMA v. RAMVATAR BHAMA                                   509
                   [ASHOK BHUSHAN, J.]

this Court. It is sufficient to refer to the judgment of this Court in Kale   A
and others vs. Deputy Director of Consolidation and others, (1976)
3 SCC 119. The propositions with regard to family settlement, its
registration were laid down by this Court in paragraphs 10 and 11:
          “10. In other words to put the binding effect and the
      essentials of a family settlement in a concretised form, the            B
      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                 C
      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;                                      D
           (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                          E
      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             F
      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
                                                                              G
      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
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510            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           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
B           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
C           decisions of this Court as also those of the Privy Council and
            other High Courts, which we shall discuss presently.”
             12. We are, thus, in full agreement with the view taken by the trial
      court as well as the High Court that the document dated 09.09.1994 was
      compulsorily registrable. The document also being not stamped could
D     not have been accepted in evidence and order of trial court allowing the
      application under Order XII Rule 3 CPC and the reasons given by the
      trial court in allowing the application of the defendant holding the
      document as inadmissible cannot be faulted.
             13. There is only one aspect of the matter which needs
E     consideration, i.e., whether the document dated 09.09.1994 which was
      inadmissible in evidence could have been used for any collateral purpose.
      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. Further, an unstamped instrument is not admissible in
F     evidence even for collateral purpose, until the same is impounded. A
      two-Judge Bench judgment of this Court in Yellapu Uma Maheswari
      and another vs. Buddha Jagadheeswararao and others, (2015) 16
      SCC 787, is appropriate. In the above case also admissibility of documents
      Ext. B-21 dated 05.06.1975 a deed of memorandum and Ext. B-22 dated
G     04.06.1975 being an agreement between one late Mahalakshamma,
      respondent No.1-plaintiff and appellant No.1-defendant came for
      consideration. Objection was taken regarding admissibility which was
      upheld both by the High Court and trial court. Matter was taken up by
      this Court. In the above case, this Court held that the nomenclature
      given to the document is not decisive factor but the nature and substance
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          SITA RAM BHAMA v. RAMVATAR BHAMA                                511
                  [ASHOK BHUSHAN, J.]

of the transaction has to be determined with reference to the terms of    A
the documents. This Court after considering both the documents, B-21
and B-22 held that they require registration. In paragraph 15 following
was held:
      “15. It is well settled that the nomenclature given to the
      document is not decisive factor but the nature and substance        B
      of the transaction has to be determined with reference to the
      terms of the documents and that the 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.
      A thorough reading of both Exts. B-21 and B-22 makes it             C
      very clear that there is relinquishment of right in respect of
      immovable property through a document which is compulsorily
      registrable document and if the same is not registered, it
      becomes an inadmissible document as envisaged under
      Section 49 of the Registration Act. Hence, Exts. B-21 and B-        D
      22 are the documents which squarely fall within the ambit of
      Section 17(1)(b) of the Registration Act and hence are
      compulsorily registrable documents and the same are
      inadmissible in evidence for the purpose of proving the factum
      of partition between the parties. We are of the considered
      opinion that Exts. B-21 and B-22 are not admissible in              E
      evidence for the purpose of proving primary purpose of
      partition.”
      14. After holding the said documents as inadmissible, this Court
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        F
context the Court accepted the submission of the appellant that the
documents can be looked into for collateral purpose provided appellant-
defendant to pay the stamp duty together with penalty and get the
document impounded. In paragraphs 16 and 17 following has been laid
down:                                                                     G
      “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.
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512                SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A            Chinnappareddigari Venkata Reddy (AIR 1969 AP 242) has
             held that the whole process of partition contemplates three
             phases i.e. severancy of status, division of joint property by
             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
B
             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
C            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
D            that Exts. B-21 and B-22 are admissible in evidence for
             collateral purpose subject to payment of stamp duty, penalty,
             proof and relevancy.”
             15. Following the law laid down by this Court in the above case,
      we are of the opinion that document dated 09.09.1994 may be admissible
E     in evidence for collateral purpose provided the appellant get the document
      impounded and to pay the stamp duty together with penalty as has been
      directed in the above case.
           16. In the result, this appeal is partly allowed in the following
      manner:
F            The order of the trial court as well as the High Court holding that
      the document dated 09.09.1994 required compulsory registration is upheld.
      Following the aforesaid view of this Court in Yellapu Uma Maheswari
      (supra), this appeal is partly allowed holding that deed dated 09.09.1994
      is admissible in evidence for collateral purpose subject to payment of
G     stamp duty and penalty.


      Ankit Gyan                                              Appeal partly allowed.




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