THULASIDHARA & ANOTHERversusNARAYANAPPA & OTHERS

212                      [2019]REPORTS
               SUPREME COURT    8 S.C.R. 212                [2019] 8 S.C.R.


A                      THULASIDHARA & ANOTHER
                                        v.
                         NARAYANAPPA & OTHERS
                          (Civil Appeal No.784 of 2010)
B                                 MAY 01, 2019
               [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
             Code of Civil Procedure, 1908: s.100 – Exercise of power
      under, scope – Suit for title and permanent injunction based on
      sale deed – Claim of defendants that suit property fell into share of
C
      husband of defendant no.1 and father of defendant no.2 and 3 by
      way of partition – Trial court dismissed the suit holding that the
      partition deed is admissible in evidence and the plaintiff in collusion
      with PW2 got executed a sham document in his favour – First
      appellate authority upheld the decision of trial court – High Court
D     framed only one substantial question as to whether the appellant
      was the owner and in possession of the suit land as he purchased it
      subsequent to the partition deed – High Court allowed the appeal
      holding that the partition deed required registration and therefore
      was inadmissible in evidence and that both the courts below were
      not justified in holding that the sale deed was only nominal one –
E
      On appeal, held: The jurisdiction of High Court under s.100 after
      the 1976 amendment is confined only with the second appeal
      involving a substantial question of law – In the instant case, no
      substantial question of law was framed – Trial court as well as first
      appellate court, both gave cogent reasons on appreciation of
F     evidence on record more particularly the sale deed and the partition
      deed and held that the plaintiff was not entitled to declaration that
      he became the owner – While interfering with the orders by both
      the courts below, High Court again re-appreciated the entire
      evidence on record, which in exercise of powers under s.100 was
      not permissible – Under the circumstances, High Court committed a
G
      grave/manifest error in quashing and setting aside the findings
      recorded by both the courts below, which were on appreciation of
      evidence on record – Partition.
            Partition: The case of defendants was that husband of
      defendant no.1 and father of defendant no.2 and 3 purchased the
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                                      212
     THULASIDHARA & ANOTHER v. NARAYANAPPA                                 213
                    & OTHERS

suit property on 12.12.1948 under a registered sale deed – Said            A
property was blended into the joint family properties by him –
Thereafter when partition took place said suit property fell into his
share – Plaintiff filed suit for declaration of title on the basis of
sale deed – Trial court and first appellate court held that the said
sale deed was only a nominal sale deed and not an out and out sale
                                                                           B
deed since it was executed as security for loan and never intended
to sell the suit property – High Court allowed the appeal holding
that in view of the registered sale deed executed in favour of the
plaintiff, the plaintiff became the actual owner – On appeal, held:
Father of defendants was not a signatory to the sale deed and
therefore it was not binding on him or his heirs – Even otherwise, in      C
a suit for a declaration on the basis of the registered sale deed, it is
always open for the defendant, who is a stranger to the sale deed,
to raise a plea that the sale deed was void, fictitious, collusive or
not intended to be acted upon and or not binding to him – Partition
deed relied upon by the defendants could be said to be a Palupatti
                                                                           D
which means list of properties partitioned – At the most, it can be
said to be a family arrangement – Therefore, in the facts and
circumstances of the case, the same was not required to be registered
– The execution of this document/ Partition Deed/ Palupatta dated
23.04.1971 was established and proved by examining different
witnesses – Even the plaintiff also categorically admitted that the        E
oral partition took place on 23.04.1971 and he also admitted that
3 to 4 punchayat people were also present – Therefore, the same
even can be used as corroborative evidence as explaining the
arrangement made thereunder and conduct of the parties – So far
as sale deed dated 18.05.1973 executed in favour of the plaintiff
                                                                           F
was concerned, there was serious dispute with respect to
consideration paid by the plaintiff – In the facts and circumstances
of the case, the High Court was not justified in interfering with the
findings recorded by both the courts below – The orders passed by
both the courts below dismissing the suit are restored.
      Disposing of the appeal, the Court                                   G

     HELD: 1. The jurisdiction of the High Court to entertain
Second Appeal under Section 100 of the CPC after the 1976
amendment, is confined only with the Second Appeal involving a
substantial question of law. The existence of ‘a substantial
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214            SUPREME COURT REPORTS                        [2019] 8 S.C.R.


A     question of law’ is a sine qua non for the exercise of the jurisdiction
      under Section 100 of the CPC. In the second appeal under Section
      100 of the CPC, the High Court cannot substitute its own opinion
      for that of the First Appellate Court, unless it finds that the
      conclusions drawn by the lower court were erroneous being;
      contrary to the mandatory provisions of the applicable law; or
B
      contrary to the law pronounced by the Apex Court; or based on
      inadmissible evidence or no evidence. The substantial question
      of law framed by the High Court in the instant case, as such,
      cannot be said to be a substantial question of law at all. The Trial
      Court as well as the First Appellate Court, both gave cogent
C     reasons on appreciation of evidence on record, more particularly,
      the Sale Deed dated 22.06.1964, document dated 23.04.1971 and
      subsequent Sale Deed dated 18.05.1973 and thereafter held that
      the plaintiff is not entitled to the declaration that he has become
      the owner. While interfering with the Judgment and Decree
      passed by both the Courts below, the High Court again
D
      re-appreciated the entire evidence on record, which in exercise
      of powers under Section 100 of the CPC, is not permissible.
      [Paras 7.1, 7.2, 7.4, 8] [226-B-E; 227-C-E]
            Kondiba Dagadu Kadam v. Savitribai Sopan Gujar,
            (1999) 3 SCC 722 : [1999] 2 SCR 728 ; Ishwar Dass
E           Jain v. Sohan Lal, (2000) 1 SCC 434 : [1999] 5 Suppl.
            SCR 24 – relied on.
             2. Admittedly, the father of defendant no. 2 and 3 was not a
      signatory to the registered Sale Deed dated 22.06.1964 (Exhibit
      P1). Therefore, as such, the said Sale Deed did not bind the father
F     of defendant no. 2 and 3. The entire evidence on record shows
      that the suit property was initially purchased by the father of
      defendant no. 2 and 3 in the year 1948 and thereafter, due to
      some internal family problems with respect to said suit property,
      it was the father of defendant no. 2 and 3 who threw the same
G     property into the joint family property in the year 1952 and then
      executed the Sale Deed in favour of his father stating that it
      belongs to joint family property. The entire evidence on record
      show that even the Sale Deed (Exhibit P1) was not acted upon.
      In the cross-examination, the original plaintiff specifically admitted

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     THULASIDHARA & ANOTHER v. NARAYANAPPA                              215
                    & OTHERS

that in the year 1965-66, when the father sold away the said suit       A
schedule property, there was no partition between the brothers
at that time. In the circumstances, the registered Sale Deed
(Exhibit P1), by which the suit property was sold to ‘S’ would not
bind the father of defendant no. 2 and 3. It was a registered Sale
Deed which was not acted upon.          Even otherwise, it is always
                                                                        B
open for the defendant, who is a stranger to the Sale Deed, to
raise a plea that the Sale Deed was void, fictitious, collusive or
not intended to be acted upon and or not binding to him. In the
facts and circumstances of the case, without even challenging
the Sale Deed (Exhibit P1) by way of independent proceedings,
in a suit filed by the plaintiff seeking a declaration that he has      C
become the owner pursuant to the registered Sale Deed, it is
always open for the defendant, who is stranger to the Sale Deed,
to raise a plea that either the Sale Deed is not binding to him or
the same was without consideration or it was a nominal Sale Deed
or void or fictitious, for that matter, collusive and not intended to
                                                                        D
be acted upon. [Paras 9.1, 9.2] [228-F-H; 229-A-D, F-G]
      Vidhyadhar v. Manikrao and Another (1999) 3 SCC
      573 : [1999] 1 SCR 1168 – relied on.
       3.1 So far as the finding recorded by the High Court that
as Partition Deed dated 23.04.1971 (Exhibit D4) was unregistered        E
though required registration under the provisions of the
Registration Act and, therefore, the same is not admissible in
evidence is concerned, it is required to be noted that as such
Exhibit D4 can be said to be a Palupatti which means list of
properties partitioned. At the most, it can be said to be a family
arrangement. Therefore, in the facts and circumstances of the           F
case, the same was not required to be registered. Deed dated
23.04.1971, under which the suit property had gone /devolved in
favour of the father of defendant no. 2 and 3 was reduced in writing
before the Panchayat and Panchas, and the same was signed by
the village people/panchayat people and all the members of the          G
family including even the plaintiff. Though the plaintiff disputed
that the partition was not reduced in writing in the form of
document Exhibit D4, on considering the entire evidence on
record and even the deposition of plaintiff (cross-examination),

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216            SUPREME COURT REPORTS                      [2019] 8 S.C.R.


A     he has specifically admitted that the oral partition had taken place
      in the year 1971. He has also admitted that he has got the share
      which tallies with document dated 23.04.1971 (Exhibit D4).
      [Paras 9.3, 9.4][230-G-H; 231-A-D]
            3.2 So far as the Sale Deed dated 18.05.1973 (Exhibit P2)
B     executed by ‘S’ in favour of the plaintiff was concerned, there
      was a categorically finding by both the courts below that the same
      document was sham. In the cross-examination, the plaintiff stated
      that he paid Rs. 3000 to 4000 to ‘S’ and the said property was
      purchased by him in the year 1973. However, in the document,
      the sale consideration is stated to be Rs.200/-. Therefore, there
C     was serious dispute with respect to consideration paid by the
      plaintiff and received by the ‘S’ . In the facts and circumstances
      of the case, the High Court was not justified in interfering with
      the findings recorded by both the Courts below.
      [Paras 9.6, 10] [232-E-G]
D           Kale and Others v. Deputy Director of Consolidation
            and Others (1976) 3 SCC 119 : [1976] 3 SCR 202 ;
            Kaliaperumal v. Rajagopal and Another (2009) 4 SCC
            193 ; S. Shanmugam Pillai and Others v. K. Shanmugam
            Pillai and Others (1973) 2 SCC 312 : [1973] 1 SCR
E           570 – relied on
            Roshan Singh and Others v. Zile Singh and Others
            (2018) 14 SCC 814 – referred to
                             Case Law Reference

F           [1976] 3 SCR 202           relied on       Para 5.4
            (2018) 14 SCC 814          referred to     Para 5.5
            (2009) 4 SCC 193           relied on       Para 5.10
            [1999] 1 SCR 1168          relied on       Para 9.2
G           [1999] 2 SCR 728           relied on       Para 7.2
            [1999] 5 Suppl. SCR 24     relied on       Para 7.3
            [1973] 1 SCR 570           relied on       Para 9.4


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       THULASIDHARA & ANOTHER v. NARAYANAPPA                                  217
                      & OTHERS

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 784 of                  A
2010
      From the Judgment and Order dated 25.07.2007 of the High
Court of Karnataka at Bangalore in Regular Second Appeal No.1033
of 2001
      Ms. Kiran Suri, Sr. Adv., Ms. Aishwarya Kumari, S. J. Amith,            B
Ms. Ritika Gambhir Kohli, Dr. (Mrs.) Vipin Gupta, Advs. for the
Appellants.
       Ms. K. V. Bharathi Upadhyaya, Advs. for the Respondents.
       The Judgment of the Court was delivered by                             C
      M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the
impugned Judgment and Order passed by the High Court of Karnataka
at Bengaluru dated 25.07.2007 passed in Regular Second Appeal No.1033
of 2001, by which, in exercise of powers under Section 100 of the CPC,
the High Court has allowed the said appeal preferred by the respondent        D
herein-original plaintiff and has quashed and set aside the Judgment and
Decree passed by both the Courts below dismissing the suit, and
consequently decreeing the suit, original defendants have preferred the
present appeal.
      2. The facts leading to the present appeal in nutshell are as
                                                                              E
under :
       That the respondent herein-original plaintiff (hereinafter referred
to as the ‘original plaintiff’) instituted the suit in the Court of Munsiff
and JMFC at Gubbi (learned Civil Judge, Junior Division, Gubbi) being
Original Suit No.141 of 1984 praying for the Judgment and Decree in his
                                                                              F
favour to the effect that he be declared as the owner of the suit schedule
property and also for permanent injunction restraining the appellants
herein-original defendants (hereinafter referred to as the ‘original
defendants’) from interfering with his peaceful possession and enjoyment
of the suit schedule property. It was the case on behalf of the original
plaintiff that he has become an owner of the suit property having             G
purchased the same under a registered Sale Deed and therefore the
defendants have no right whatsoever to interfere with his peaceful
possession and enjoyment of the suit schedule property. The suit was
resisted by the defendants by filing the written statement. It was the
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218            SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A     case on behalf of the defendants that husband of defendant no.1 and
      father of defendant nos. 2 and 3 i.e. A.N. Krishnappa (deceased),
      purchased the suit property on 12.12.1948 under a registered Sale Deed
      for a consideration of Rs.400/-. That the suit property was blended into
      the joint family properties by him. That thereafter the partition between
      the sons of deceased Nanjappa was recorded on 23.04.1971 and the
B
      suit property fell into the share of the deceased A. N. Krishnappa. It
      was also the case on behalf of the defendants that they are enjoying the
      possession of the suit property. It was also the case on behalf of the
      defendants that no Sale Deed has been executed by the defendants in
      favour of the plaintiff and the alleged Sale Deed is fabricated by the
C     plaintiff.
            2.1 That the learned Trial Court framed the following issues:
            “(i) Does the plaintiff prove his title to the suit schedule property?
            (ii) Whether the plaintiff proves his lawful possession of the suit
D           schedule property on the date of suit?
            (iii) Does the plaintiff prove the interference by the defendants to
            his possession of the suit property?”
              2.2 That both the parties led evidence, both, oral as well as
      documentary. That after considering the submissions made on behalf of
E     the rival parties and on appreciation of evidence, learned Trial Court
      held that there was a partition between family on 23.4.1971 and for that
      the learned Trial Court observed and held that Exhibit D4(Partition Deed
      dated 23.04.1971) is admissible in evidence. The learned Trial Court
      also observed and held that the suit property was available at the time of
F     partition. The learned Trial Court also observed and held that Exhibit P1
      (the Sale Deed relied upon by the original plaintiff) was only a nominal
      Sale Deed and not an out and out sale deed since Exhibit P1 was executed
      as security for loan and never intended to sell the suit property. The
      learned Trial Court also observed and held that the suit property was
      purchased by late Krishnappa for a sum of Rs.400/- in 1948 and thereafter
G     it is stated to have been sold at Rs.200/- after 16 years i.e. in 1964,
      which is highly improbable. The learned Trial Court also gave a specific
      finding that there was a concealment of material facts in the suit, which
      shows malafide intention of the plaintiff. The learned Trial Court also
      held that plaintiff, in collusion with PW2, has got executed a sham
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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                   219
               & OTHERS [M.R. SHAH, J.]

document in his favour. By holding so and recording above findings, the       A
learned Trial Court dismissed the suit.
       2.3 The First Appellate Court dismissed the appeal preferred by
the original plaintiff and confirmed the Judgment and Decree passed by
the learned Trial Court dismissing the suit. While dismissing the appeal,
the learned First Appellate Court observed that Exhibit D4 cannot be          B
said to be a Partition Deed and can be said to be only a list of properties
partitioned and does not create or extinguish any right in the immovable
property and therefore not a compulsorily registrable document and
therefore Exhibit D4 is admissible in evidence.
      3. Feeling aggrieved and dissatisfied with the Judgment and             C
Decree passed by the learned Trial Court confirmed by the First Appellate
Court, the original plaintiff filed a Regular Second Appeal No.1033 of
2001 before the High Court. The High Court framed only one substantial
question of law which reads as under :
      “Whether the appellant is the owner and in possession of the suit       D
      land as he purchased it in the year 1973, that is, subsequent to the
      date 23.4.1971 when Ex.D1 – Partition deed – Palupatti is alleged
      to have come into existence?”
       3.1 That by the impugned Judgment and Order, the High Court
has allowed the said appeal and has interfered with the findings of facts     E
recorded by both the Courts below and consequently has decreed the
suit by holding that Exhibit D4 required registration and therefore the
same was inadmissible in evidence. The High Court further observed
and held that both the Courts below are not justified in holding that
document - Exhibit P1 was only a nominal sale deed and that the same
was not acted upon.                                                           F
      3.2 Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court, original defendants have preferred
the present appeal.
       4. Ms. Kiran Suri, learned Senior Advocate has appeared on behalf
                                                                              G
of the appellants-original defendants and Ms.K.V. Bharathi Upadhyaya,
learned Advocate has appeared on behalf of the respondent-original
plaintiff and wife and son of the original plaintiff (newly added
respondents), who are permitted to be impleaded as respondents by this
Court.
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220             SUPREME COURT REPORTS                           [2019] 8 S.C.R.


A            5. Ms. Kiran Suri, learned Senior Advocate appearing on behalf
      of the original defendants has vehemently submitted that the High Court
      has exceeded in its jurisdiction under Section 100 of the CPC by interfering
      with the concurrent findings of facts recorded by both the Courts below.
             5.1 It is further submitted by Ms. Kiran Suri, learned Senior
B     Advocate appearing on behalf of the original defendants that in fact
      substantial question of law framed by the High Court as such cannot be
      said to be a substantial question of law at all and the same can be said to
      be a question of fact. It is submitted that therefore the High Court has
      committed a grave error and/or has exceeded in its jurisdiction by entering
      into the question of fact and thereby by interfering with the concurrent
C     findings of facts recorded by the Courts below.
             5.2 It is further submitted by Ms. Kiran Suri, learned Senior
      Advocate appearing on behalf of the original defendants that High Court
      has committed a serious error in holding that Exhibit D4 requires
      registration, whereas, both the courts below clearly recorded that Exhibit
D     D4 does not require any registration.
             5.3 It is further submitted by Ms. Kiran Suri, learned Senior
      Advocate appearing on behalf of the original defendants that High Court
      has committed a grave error in observing and holding that as Exhibit D4
      was an unregistered document and therefore the same was not admissible
E     in evidence.
             5.4 It is vehemently submitted by Ms. Kiran Suri, learned Senior
      Advocate appearing on behalf of the original defendants that assuming
      that Exhibit D4 requires registration and the same was unregistered, in
      that case also, the same document can be used and considered for
F     collateral purpose. It is submitted that even otherwise and as held by this
      Court in the case of Kale and Others v. Deputy Director of
      Consolidation and Others (1976) 3 SCC 119 even if the family
      settlement was not registered, it would operate as a complete estoppel
      against the original plaintiff who was party to such family settlement. It
G     is submitted that therefore, the High Court has committed a grave error
      of law in not giving effect to the Doctrine of Estoppel.
            5.5 Relying upon the decision of this Court in the case of Subraya
      M.N. v. Vittala M.N. and Others (2016) 8 SCC 705, Ms. Kiran Suri,
      learned Senior Advocate appearing on behalf of the original defendants
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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                   221
               & OTHERS [M.R. SHAH, J.]

has vehemently submitted that as held by this Court in the aforesaid          A
decision, when family arrangement/settlement is orally made, no
registration is required and that would be admissible in evidence, however,
when reduced in writing, registration is essential, without which it was
not admissible in evidence. It is submitted that however it is further
observed and held by this Court in the aforesaid decision that even without
                                                                              B
registration, written document of family arrangement/settlement can be
used as corroborative evidence as explaining the arrangement made
thereunder and conduct of the parties. It is submitted that it is further
observed and held by this Court in the aforesaid decision that unregistered
document of family arrangement can be used as corroborative piece of
evidence for explaining the nature of settlement/arrangement arrived at       C
between the parties, conduct of plaintiff members in receiving money
from the defendant members of the family in lieu of relinquishing their
interest in certain family properties. It is submitted that in the present
case, document D4 dated 23.04.1971 was in fact acted upon by all the
parties including the plaintiff and therefore assuming that document D4
                                                                              D
required registration, in that case also, the same can be used as
corroborative evidence.
      5.6 It is submitted by Ms. Kiran Suri, learned Senior Advocate
appearing on behalf of the original defendants that as such document
D4 cannot be said to be a Partition Deed and it can be said to be a
document containing list of properties allotted to parties and therefore      E
the same was not required to be registered. It is submitted that,therefore,
the High Court has committed a grave error in holding that as Exhibit D4
was an unregistered document, the same was inadmissible in evidence.
In support of her above submissions, she has heavily relied upon the
decisions of this Court in the case of Roshan Singh and Others v. Zile        F
Singh and Others (2018) 14 SCC 814.
       5.7 It is further submitted by Ms. Kiran Suri, learned Senior
Advocate appearing on behalf of the original defendants that the High
Court has committed a serious error in holding that the suit property was
not available for partition in the year 1971 with the joint family in the     G
year 1971. It is submitted that by holding so, the High Court has not at
all considered the fact that Exhibit P1, a Sale Deed relied upon by the
plaintiff, was a nominal Sale Deed and everybody understood.


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222              SUPREME COURT REPORTS                               [2019] 8 S.C.R.


A           5.8 It is further submitted by Ms. Kiran Suri, learned Senior
      Advocate appearing on behalf of the original defendants that the High
      Court has committed a grave error in interfering with the findings of the
      Courts below that Exhibit P1 exhibits only as a security and is not a
      document for sale.
B            5.9 It is further submitted by Ms. Kiran Suri, learned Senior
      Advocate appearing on behalf of the original defendants that High Court
      has committed a grave error in interfering with the findings of facts
      recorded by both the courts below that Exhibit P1 was not acted upon. It
      is further submitted that both the Courts below clearly recorded in their
      respective findings that the possession remained with the defendants
C     and the consideration for the sale Exhibit P1 was inadequate and therefore
      no title passed on.
             5.10 It is submitted by Ms. Kiran Suri, learned Senior Advocate
      appearing on behalf of the appellants-original defendants that as observed
      and held by this Court in the case of Kaliaperumal v. Rajagopal and
D     Another (2009) 4 SCC 193 that though on registration of Sale Deed
      under the Registration Act, 1908, title will normally pass to the purchaser
      from the date of the execution of the Sale Deed, true test is the intention
      of the parties. It is submitted that it is held by this Court that the registration
      is prima facie proof of intention of transfer of property, but not a proof of
E     operative transfer. It is submitted that it is further observed and held by
      this Court that where recitals are insufficient or ambiguous, circumstances
      and conduct of parties can be looked into, subject to provisions of Section
      92 of the Evidence Act.
             5.11 It is further submitted by Ms. Kiran Suri, learned Senior
F     Advocate appearing on behalf of the original defendantsthat the High
      Court has committed a very serious error in setting aside the findings of
      facts recorded by both the Courts below that Exhibit P1 was a nominal
      Sale Deed. It is vehemently submitted by Ms. Kiran Suri that in the
      facts and circumstances of the case, the High Court has committed a
      grave error in giving much emphasis on Exhibit P1 being registered Sale
G     Deed, without considering the surrounding circumstances and the intention
      of the parties which are brought/borne out from the conduct of the parties.
             5.12 Now, so far as not praying to set aside the Sale Deed(Exhibit
      P1) by the defendantsby filing a suit is concerned, relying upon the decision

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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                      223
               & OTHERS [M.R. SHAH, J.]

of this Court in the case of Vidhyadhar v. Manikrao and Another(1999)            A
3 SCC 573, it is vehemently submitted thatin a suit filed by the plaintiff
for a declaration to declare him an owner on the basis of the Sale Deed,
thedefendant who is a stranger to the Sale Deed can raise a plea that
the Sale Deedwas void, fictitious, collusive or not intended to be acted
uponand/or not binding to him. It is submitted that as held by this Court in
                                                                                 B
the aforesaid decision, defendant can raise any legitimate plea available
to him under the law to defeat the suit of the plaintiff. It is submitted that
therefore non-filing of the suit by the defendant to set aside the Sale
Deed(Exhibit P1) and/or not specifically praying to quash and set aside
the Sale Deed(Exhibit P1), would not defeat the case of the defendant
and the same cannot go against the defendant.                                    C
       5.13 Making above submissions and relying upon the decisions of
this Court, it is prayed to allow the present appeal and quash and set
aside the impugned Judgement and Order passed by the High Court and
restoring the Judgement and Decree passed by the learned Trial Court
dismissing the suit.                                                             D
      6. Present appeal is vehemently opposed by Ms. K. V. Bharathi
Upadhyaya, learned Advocate appearing on behalf of the newly added
respondents (wife and son of the original plaintiff).
       6.1 It is vehemently submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that in the           E
facts and circumstances of the case, the High Court has rightly decreed
the suit and has rightly held that the original plaintiff is entitled to the
declaration that he had become the owner of the suit property under the
registered Sale Deed.
       6.2 It is vehemently submitted by Ms. K. V. Bharathi, learned             F
Advocate appearing on behalf of the contesting respondents that on
appreciation of evidence and having found that there was a registered
Sale Deed in favour of the original plaintiff, the High Court has rightly
interfered with the findings recorded by both the Courts below as the
said findings were perverse.                                                     G
       6.3 It is further submitted by learned Advocate appearing on behalf
of the contesting respondents that as such, the High Court had framed
the substantial question of law and thereafter had answered the
substantial question of law framed and therefore the High Court has not
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224             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A     exceeded in its jurisdiction permissible under the law, and more particularly,
      has exercised the Jurisdiction within the parameters of Section 100 of
      the CPC.
             6.4 It is further submitted by Ms. K. V. Bharathi, learned Advocate
      appearing on behalf of the contesting respondentsthat as such, there
B     was a registered Sale Deed in favour of the original plaintiff, on payment
      of the saleconsideration and in fact the same was acted upon and the
      possession was handed over pursuant to and under the registered Sale
      Deed and, therefore, the High Court has rightly held that the original
      plaintiff has become the absolute owner pursuant to the registered Sale
      Deed dated 22.06.1964 (Exhibit P1).
C
             6.5 It is further submitted by Ms. K. V. Bharathi, learned Advocate
      appearing on behalf of the contesting respondents that in fact by
      registered Sale Deed dated 22.06.1964 (Exhibit P1), which was also
      signed by the plaintiff along with two brothers and their father Nanjappa,
      the suit property in question, was sold in favour of Siddalingappa.
D     Therefore, Siddalingappa became the absolute owner and thereafter the
      plaintiff purchased the suit property from the above Siddalingappa under
      registered Sale Deed dated 18.05.1973 (Exhibit P2). It is submitted
      therefore, the plaintiff became the absolute owner of the suit property
      under the registered Sale Deed dated 18.05.1973 (Exhibit P2).
E           6.6 It is further submitted by learned Advocate appearing on
      behalf of the contesting respondents that the registered Sale Deed dated
      22.06.1964 (Exhibit P1) cannot be said to be a nominal Sale Deed as
      held by the High Court.
             6.7 It is further submitted by Ms. K. V. Bharathi, learned Advocate
F     appearing on behalf of the contesting respondents that in any case,
      nobody challenged either the registered Sale Deed dated 22.06.1964
      (Exhibit P1) or the subsequent registered Sale Deed dated 18.05.1973
      (Exhibit P2). It is submitted that none of the defendants challenged the
      aforesaid two registered Sale Deeds. It is submitted therefore, in absence
G     of any challenge, in respect of the aforesaid Sale Deeds, more particularly,
      the Sale Deeddated 18.05.1973 (Exhibit P2) and considering Section 54
      of the Transfer of Property Act, the original plaintiff has become the
      absolute owner pursuant to the registered Sale Deed(s).
            6.8 It is further submitted by Ms. K. V. Bharathi, learned Advocate
      appearing on behalf of the contesting respondents that the so-called
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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                      225
               & OTHERS [M.R. SHAH, J.]

Partition Deed dated 23.04.1971 (Exhibit D4) is rightly held to be not           A
admissible in evidence as the same was unregistered. It isfurther
submitted that Exhibit D4 cannot be said to be a list of property partitioned.
It is submitted that Exhibit D4 is a Partition Deed and therefore the
same was required to be registered. It is submitted that as the same was
unregistered, as rightly held by the High Court, the same was not
                                                                                 B
admissible in evidence. It is submitted, therefore, the High Court has
rightly not considered the so-called Partition Deed dated 23.04.1971
(Exhibit D4).
       6.9 It is further submitted by learned Advocate appearing on
behalf of the contesting respondents that even otherwise and in view of
the earlier Sale Deed dated 22.06.1964 (Exhibit P1), by which the suit           C
property was sold by the plaintiff along with his two brothers and his
father Nanjappa in favour of Siddalingappa, at the time of alleged partition
dated 23.04.1971, the suit property was not available for partition. It is
submitted that therefore, even otherwise, at the time of so-called partition
on 23.04.1971,as the property was already sold, the same could not have          D
been subjected to partition and therefore the Krishnappa could not have
acquired any interest in the suit property pursuant to the alleged Partition
Deed dated 23.04.1971.
      6.10 Making above submissions it is prayed to dismiss the present
appeal.                                                                          E
       7. Heard learned Advocates appearing on behalf of the respective
parties at length.
       7.1 At the outset, it is required to be noted that by the impugned
Judgment and Order, in a Second Appeal and in exercise of the powers
under Section 100 of the CPC, the High Court has set aside the findings          F
of facts recorded by both the Courts below. The learned Trial Court
dismissed the suit and the same came to be confirmed by the learned
First Appellate Court. While allowing the second appeal, the High Court
framed only one substantial question of law which reads as under :
       “Whether the appellant is the owner and in possession of the suit         G
       land as he purchased it in the year 1973, that is, subsequent to the
       date 23.4.1971 when Ex.D1 – Partition deed – Palupatti is alleged
       to have come into existence?”

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226             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A            No other substantial question of law was framed. We are afraid
      that the aforesaidcan be said to be a substantial question of law at all. It
      cannot be disputed and even as per the law laid down by this Court in
      the catena of decisions, the jurisdiction of the High Court to entertain
      Second Appeal under Section 100 of the CPC after the 1976 amendment,
      is confined only with the Second Appeal involving a substantial question
B
      of law. The existence of ‘a substantial question of law’ is a sine qua
      non for the exercise of the jurisdiction under Section 100 of the CPC.
             7.2 As observed and held by this Court in the case of Kondiba
      Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722, in the
      Second Appeal under Section 100 of the CPC, the High Court cannot
C     substitute its own opinion for that of the First Appellate Court, unless it
      finds that the conclusionsdrawn by the lower Court were erroneous
      being :
            (i) Contrary to the mandatory provisions of the applicable law;

D           OR
            (ii) Contrary to the law as pronounced by the Apex Court;
            OR
            (iii) Based on in-admissible evidence or no evidence.
E            It is further observed by this Court in the aforesaid decision that if
      First Appellate Court has exercised its discretion in a judicial manner, its
      decision cannot be recorded as suffering from an error either of law or
      of procedure requiring interference in Second Appeal. It is further
      observed that the Trial Court could have decided differently is not a
      question of law justifying interference in Second Appeal.
F
            7.3 When a substantial question of law can be said to have arisen,
      has been dealt with and considered by this Court in the case of Ishwar
      Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision,
      this Court has specifically observed and held :
G            “Under Section 100 CPC, after the 1976 amendment, it is essential
            for the High Court to formulate a substantial question of law and
            it is not permissible to reverse the judgment of the first appellate
            court without doing so. There are two situations in which
            interference with findings of fact is permissible. The first one is

H
      THULASIDHARA & ANOTHER v. NARAYANAPPA                                   227
               & OTHERS [M.R. SHAH, J.]

      when material or relevant evidence is not considered which, if          A
      considered, would have led to an opposite conclusion. The second
      situation in which interference with findings of fact is permissible
      is where a finding has been arrived at by the appellate court by
      placing reliance on inadmissible evidence which if it was omitted,
      an opposite conclusion was possible. In either of the above
                                                                              B
      situations, a substantial question of law can arise.”
      7.4 Considering the law laid down by this Court in the aforesaid
decisions and even considering Section 100 of the CPC, the substantial
question of law framed by the High Court in the present case, as such,
cannot be said to be a substantial question of law at all.
                                                                              C
       8. Having gone through the findings recorded by the Trial Court
as well as the First Appellate Court, it appears that both, the Trial Court
as well as the First Appellate Court, gave cogent reasons on appreciation
of evidence on record, more particularly, the Sale Deed dated 22.06.1964
(Exhibit P1), document dated 23.04.1971 (Exhibit D4) and subsequent
Sale Deed dated 18.05.1973 (Exhibit P2) and thereafter held that the          D
plaintiff is not entitled to the declaration that he has become the owner.
While interfering with the Judgment and Decree passed by both the
Courts below, it appears that the High Court has again reappreciated the
entire evidence on record, which in exercise of powers under Section
100 of the CPC, is not permissible. Under the circumstances, the High         E
Court has committed a grave/manifest error in quashing and setting aside
the findings recorded by both the Courts below, which were on
appreciation of evidence on record. The High Court has exceeded in its
jurisdiction while exercising the powers under Section 100 of the CPC.
       9. Even otherwise, on merits also, the impugned Judgment and           F
Order passed by the High Court allowing the appeal and consequently
decreeing the suit, is not sustainable. It was the case on behalf of the
original plaintiff that the suit property was sold by registered Sale Deed
dated 22.06.1964 (Exhibit P1) by the plaintiff, along with his two brothers
and their father Nanjappa in favour of one Siddalingappa from whom
the plaintiff subsequently purchased the suit property under the registered   G
Sale Deed dated 18.05.1973 (Exhibit P2). On the other hand, it was
specific case on behalf of the defendants that the Sale Deed dated
22.06.1964 was a nominal Sale Deed and was never acted upon and as
such was not to be acted upon at all. It was also the case on behalf of
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228            SUPREME COURT REPORTS                           [2019] 8 S.C.R.


A     the defendants that thereafter in the year 1971, the partition took place
      and the same was reduced in writing by document dated 23.04.1971
      (Exhibit D4) and under the same document, it was recorded that the suit
      property had gone in favour of Krishnappa. Plaintiff denied that any
      partition was reduced in writing, more particularly, in the form of Exhibit
      D4 dated 23.04.1971. The High Court has observed and held that in
B
      view of the registered Sale Deed executed in favour of the plaintiff, the
      plaintiff has become the actual owner. The High Court has allowed the
      appeal and subsequently has decreed the suits mainly on the ground that
      :
            (i) That the registered Sale Deed dated 22.06.1964 (Exhibit P1)
C     was an out and out Sale Deed and the same was not a nominal Sale
      Deed;
            (ii) That the defendants have never challenged the registered Sale
      Deed dated 22.06.1964 (Exhibit P1) and even the subsequent registered
      Sale Deed dated 18.05.1973 (Exhibit P2).
D
             (iii) Exhibit D4-Partition Deed dated 23.04.1971 purports to convey
      interest in the immovable property in favour of Krishnappa and that
      therefore the same was required to be registered and as such it was an
      unregistered document and therefore having regard to the provisions of
      the Registration Act, the same is not admissible in evidence and therefore
E     the same cannot be looked into.
             9.1 Now so far as the registered Sale Deed (Exhibit P1) is
      concerned,it is an admitted position that Krishnappa is not a signatory to
      the said Sale Deed. Therefore, as such, the said Sale Deed does not
      bind Krishnappa. Even in the cross-examination, the original plaintiff
F     has admitted that Exhibit P1 was not signed by Krishnappa. He has also
      admitted that his other brothers Rangappa and Govindaiah also did not
      sign. From the entire evidence on record, it appears that the suit property
      was initially purchased by Krishnappa in the year 1948 and thereafter,
      due to some internal family problems with respect to said suit property, it
G     was the Krishnappa who thrown the same property into the joint family
      property in the year 1952 and Krishnappa executed the Sale Deed in
      favour of his father Nanjappa stating that it belongs to joint family
      property. From the entire evidence on record, it appears that even the
      Sale Deed (Exhibit P1) was not acted upon. Between 1964 to 1971,
      even the name of Siddalingappa was not mutated/recorded in the revenue
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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                      229
               & OTHERS [M.R. SHAH, J.]

record. Both the Courts below considered in detail the aforesaid aspect          A
which has been upset by the High Court. It is required to be noted that
even in the cross-examination the original plaintiff was not sure about
the sale consideration received from Siddalingappa as a remuneration in
view of the registered Sale Deed dated 22.06.1964 (Exhibit P1). Even
otherwise, even according to the plaintiff and even considering the
                                                                                 B
material on record,as the suit land was a joint family property and/or
wasin the name of Nanjappa, all the brothers had an equal share and
therefore the same could not have been sold by Nanjappa, plaintiff and
other two brothers only and without consent of other brothers including
Krishnappa unless the property was partitioned. In the cross-examination
the original plaintiff has specifically admitted that in the year 1965-66,       C
when the father sold away the said suit schedule property, there was no
partition between the brothers at that time. In the circumstances, the
registered Sale Deed dated 22.06.1964 (Exhibit P1), by which the suit
property was sold to Siddalingappa, cannot bind Krishnappa. It was a
registered Sale Deed which was not acted upon. Even the plaintiff and
                                                                                 D
Siddalingappa tried to mutate the name of Siddalingappain the year
1973,which was the subject matter of the Revenue Authority.
       9.2 Now so far as the submission on behalf of the plaintiff that as
the registered Sale Deed dated 22.06.1964 (Exhibit P1)was not
challenged by the defendant by way of suit or even counter claim and
therefore thereafter it was not open for the defendants to challenge the         E
same is concerned, at the outset, it is required to be noted and as observed
hereinabove, Krishnappa was not a signatory to the said document/Sale
Deed and therefore it cannot bind him or his heirs.Even otherwise and
as held by this Court in the case of Vidhyadhar (supra), in a suit filed by
the plaintiff for a declaration on the basis of the registered Sale Deed, it     F
is always open for the defendant, who is a stranger to the Sale Deed, to
raise a plea that the Sale Deed was void, fictitious, collusive or not
intended to be acted upon and or not binding to him. In the aforesaid
decision, it is observed and held by this Court that a person, in his capacity
as a defendant, can raise any legitimate plea available to him under the
law to defeat the suit of the plaintiff. In paragraph 21 this Court has          G
observed and held as under :
       “21. The above decisions appear to be based on the principle that
       a person in his capacity as a defendant can raise any legitimate
       plea available to him under law to defeat the suit of the plaintiff.
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230             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A           This would also include the plea that the sale deed by which the
            title to the property was intended to be conveyed to the plaintiff
            was void or fictitious or, for that matter, collusive and not intended
            to be acted upon. Thus, the whole question would depend upon
            the pleadings of the parties, the nature of the suit, the nature of
            the deed, the evidence led by the parties in the suit and other
B
            attending circumstances. For example, in a landlord-tenant matter
            where the landlord is possessed of many properties and cannot
            possibly seek eviction of his tenant for bona fide need from one of
            the properties, the landlord may ostensibly transfer that property
            to a person who is not possessed of any other property so that
C           that person, namely, the transferee, may institute eviction
            proceedings on the ground of his genuine need and thus evict the
            tenant who could not have been otherwise evicted. In this situation,
            the deed by which the property was intended to be transferred,
            would be a collusive deed representing a sham transaction which
            was never intended to be acted upon. It would be open to the
D
            tenant in his capacity as a defendant to assert, plead and prove
            that the deed was fictitious and collusive in nature. We, therefore,
            cannot subscribe to the view expressed by the Privy Council in
            the case of Lal Achal Ram [(1905) 32 IA 113 : ILR 27 All 271] in
            the broad terms in which it is expressed but do approve the law
E           laid down by the Calcutta, Patna and Orissa High Courts as pointed
            out above.”
             Therefore, in the facts and circumstances of the case, we are of
      the opinion that without even challenging the Sale Deed (Exhibit P1) by
      way of behalf of independent proceedings, in a suit filed by the plaintiff
F     seeking a declaration that he has become the owner pursuant to the
      registered Sale Deed, it is always open for the defendant, who is stranger
      to the Sale Deed, to raise a plea that either the Sale Deed is not binding
      to him or the same was without consideration or it was a nominal Sale
      Deed or void or fictitious, for that matter, collusive and not intended to
      be acted upon.
G
             9.3 Now so far as the finding recorded by the High Court that as
      the Partition Deed dated 23.04.1971 (Exhibit D4) was unregistered though
      required registration under the Provisions of the Registration Act and
      therefore the same is not admissible in evidence is concerned, it is required

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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                        231
               & OTHERS [M.R. SHAH, J.]

to be noted that as such Exhibit D4 can be said to be a Palupatti as has           A
been described as Palupatti. Palupatti means list of properties partitioned.
At the most, it can be said to be a family arrangement. Therefore, in the
facts and circumstances of the case, the same was not required to be
registered.
       9.4 It is required to be noted that the deed dated 23.04.1971, under        B
which the suit property had gone /devolved in favour of the Krishnappa,
was reduced in writing before the Panchayat and Panchas, and the same
was signed by the village people/panchayat people and all the members
of the family including even the plaintiff. Though the plaintiff disputed
that the partition was not reduced in writing in the form of document
Exhibit D4, on considering the entire evidence on record and even the              C
deposition of plaintiff (cross-examination), he has specifically admitted
that the oral partition had taken place in the year 1971. He has also
admitted that he has got the share which tellies with the document dated
23.04.1971(ExhibitD4). Execution of the document/ Partition Deed/
Palupatta dated 23.04.1971 has been established and proved by examining            D
different witnesses. The High Court has refused to look into the said
document and/or consider document dated 23.04.1971 (Exhibit D4) solely
on the ground that it requires registration and therefore as it is unregistered,
the same cannot be looked into. However, as observed by this Court in
the case of Kale (Supra) that such a family settlement, though not
registered, would operate as a complete estoppel against the parties to            E
such a family settlement. In the aforesaid decision, this Court considered
its earlier decision in the case of S.Shanmugam Pillai and Others v. K.
Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was
observed as under:
       “13. Equitable, principles such as estoppel, election, family               F
       settlement, etc. are not mere technical rules of evidence.They
       have an important purpose to serve in the administration of justice.
       The ultimate aim of the law is to secure justice. In the recent
       times in order to render justice between the parties, courts have
       been liberally relying on those principles.We would hesitate to             G
       narrow down their scope.
      As observed by this Court in T.V.R. Subbu Chetty’s Family
Charities case, that if a person having full knowledge of his right as a
possible reversioner enters into a transaction which settles his claim as
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232            SUPREME COURT REPORTS                          [2019] 8 S.C.R.


A     well as the claim of the opponents at the relevant time, he cannot be
      permitted to go back on that agreement when reversion actually falls
      open.”
             9.5 As held by this Court in the case of Subraya M.N. (Supra)
      even without registration a written document of family settlement/family
B     arrangement can be used as corroborative evidence as explaining the
      arrangement made thereunder and conduct of the parties. In the present
      case, as observed hereinabove, even the plaintiff has also categorically
      admitted that the oral partition had taken place on 23.04.1971 and he
      also admitted that 3 to 4 punchayat people were also present. However,
      according to him, the same was not reduced in writing. Therefore, even
C     accepting the case of plaintiff that there was an oral partition on
      23.04.1971, the document Exhibit D4 dated 23.04.1971, to which he is
      also the signatory and all other family members are signatory, can be
      said to be a list of properties partitioned. Everybody got right/share as
      per the oral partition/partition. Therefore, the same even can be used as
D     corroborative evidence as explaining the arrangement made thereunder
      and conduct of the parties. Therefore, in the facts and circumstances of
      the case, the High Court has committed a grave/manifest error in not
      looking into and/or not considering the document Exhibit D4 dated
      23.04.1971.
E            9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2) executed
      by Siddalingappa in favour of the plaintiff is concerned, as there was a
      categorically finding by both the Courts below that the same document
      was sham. It is required to be noted that in the cross-examination, the
      plaintiff has stated that he paidRs. 3000 to 4000 to Siddalingappa and the
      said property was purchased by him in the year 1973. However, in the
F     document, the sale consideration is stated to be Rs.200/-. Even PW2
      Siddalingappa has stated that he purchased the suit schedule property
      for Rs.200/- and he sold the suit schedule property to the plaintiff for
      Rs.600/- Therefore, it is a serious dispute with respect to consideration
      paid by the plaintiff and received by the Siddalingappa.
G           10. In the aforesaid facts and circumstances of the case, the High
      Court was not justified in interfering with the findings recorded by both
      the Courts below. For the reasons stated above, the impugned Judgment
      and Order passed by the High Court cannot be sustained and the same

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      THULASIDHARA & ANOTHER v. NARAYANAPPA                                   233
               & OTHERS [M.R. SHAH, J.]

deserves to be quashed and set aside and is accordingly quashed and set       A
aside. The Judgment and Order passed by both the Courts below
dismissing the suit, are hereby restored and consequently the suit filed
by the original plaintiff is dismissed. No costs.


Devika Gujral                                           Appeal disposed of.   B




                                                                              C




                                                                              D




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                                                                              G




                                                                              H