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2018 (7) TMI 2364 - SC - Indian LawsCoparcenary property or not - admissible evidence of exchange deed - benefit of Section 53A of the Transfer of Property Act 1882 - Application of Section 53A of the T.P Act. Whether the property allotted to defendant No. 2 in the partition dated 31.07.1987 retained the character of a coparcenary property? - HELD THAT - Admittedly Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31.07.1987. It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of defendant No. 2 who is the father of plaintiff Nos. 1 to 3 and grandfather of plaintiff No. 4. Certain properties had fallen to the share of the first defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. There are no ground to disagree with this finding of the courts below. It is settled that the property inherited by a male Hindu from his father father s father or father s father s father is an ancestral property. The essential feature of ancestral property according to Mitakshara Law is that the sons grandsons and great grandsons of the person who inherits it acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Therefore the properties acquired by defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of defendant No. 2 retained the character of a coparcenary property and the plaintiffs being his sons and grandson have a right in the said property. Hence it cannot be said that the suit filed by the plaintiffs was not maintainable. Whether the exchange deed at Exhibit P2 is admissible in evidence or not? - HELD THAT - The transfer of ownership of their respective properties by defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by defendant No. 1 that the exchange was only of the businesses. However a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange - It is clear from Section 118 of the TP Act that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs. 100/- or more the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above it can be made only by a registered instrument. In the instant case the exchange deed at Exhibit P2 has not been registered. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property namely RCC building it requires registration under Section 17. Since the deed of exchange has not been registered it cannot be taken into account to the extent of the transfer of an immovable property. Since Exhibit P2 is an unregistered document it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore the High Court has rightly discarded the exchange deed at Exhibit P2. Application of Section 53A of the T.P Act - HELD THAT - It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act. Conclusion - i) The properties acquired in partition retain their ancestral character concerning male descendants. ii) The High Court s decision upheld confirming the ancestral nature of the property the inadmissibility of the unregistered exchange deed and the inapplicability of Section 53A to the appellant. Appeal dismissed.
ISSUES PRESENTED and CONSIDERED
The core legal questions considered in this judgment are:
ISSUE-WISE DETAILED ANALYSIS 1. Character of the Property as Coparcenary Property Relevant legal framework and precedents: The court examined the nature of ancestral property under Hindu law, particularly the Mitakshara law, which states that property inherited by a male Hindu from his ancestors is considered ancestral property. The court referenced several precedents, including C. Krishna Prasad v. C.I.T, Bangalore and Rohit Chauhan v. Surinder Singh, to establish that property obtained in partition retains its ancestral character in relation to male descendants. Court's interpretation and reasoning: The court affirmed that the properties in question were ancestral, as determined by the trial court and confirmed by the High Court. The court noted that the share obtained by a coparcener in partition remains ancestral concerning his male issue. Application of law to facts: The court concluded that the properties acquired by defendant No. 2 in the partition retained their character as coparcenary property concerning his sons and grandson, thereby granting them rights in the property. Conclusions: The court upheld the finding that the properties were ancestral and that the plaintiffs had a rightful claim to them. 2. Admissibility of the Exchange Deed at Exhibit P2 Relevant legal framework and precedents: The court analyzed the requirements for registration under the Transfer of Property Act, 1882, and the Registration Act, 1908. Section 118 of the T.P. Act defines 'exchange' and mandates registration for transfers involving immovable property valued at Rs. 100 or more. Section 49 of the Registration Act bars the admissibility of unregistered documents affecting immovable property. Court's interpretation and reasoning: The court found that the exchange deed involved immovable property (the RCC building), requiring registration. Since the deed was unregistered, it was inadmissible under Section 49 of the Registration Act. Key evidence and findings: The court emphasized that Exhibit P2 involved the transfer of an RCC building, which was not registered, rendering it inadmissible. Conclusions: The court concluded that the exchange deed was inadmissible in evidence due to its lack of registration. 3. Application of Section 53A of the T.P. Act Relevant legal framework and precedents: Section 53A of the T.P. Act provides protection to a transferee in possession of property in part performance of a contract. The court noted that the defendant must plead possession under this section to claim its benefit. Court's interpretation and reasoning: The court observed that the appellant had not pleaded possession in part performance in his written statement, which is a prerequisite for invoking Section 53A. Conclusions: The court held that the appellant could not claim the benefit of Section 53A due to the absence of a specific plea in the written statement. SIGNIFICANT HOLDINGS Core principles established: The court reaffirmed the principle that properties acquired in partition retain their ancestral character concerning male descendants. It also emphasized the necessity of registration for deeds involving immovable property transfers and the importance of specific pleadings to claim statutory benefits. Final determinations on each issue: The court upheld the High Court's decision, confirming the ancestral nature of the property, the inadmissibility of the unregistered exchange deed, and the inapplicability of Section 53A to the appellant. The appeal was dismissed with no order as to costs.
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