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K. Mahammad Ghouse Sahib Vs. Jamila Bi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberAppeal No. 653 of 1947 and C.M.P. No. 2532 of 1948
Judge
Reported inAIR1950Mad433
ActsCode of Civil Procedure (CPC) , 1908 - Sections - 96 - Order 23, Rule 3 - Order 43, Rule 1; Registration Act, 1908 - Sections 17, 17(1), 17(2) and 49
AppellantK. Mahammad Ghouse Sahib
RespondentJamila Bi and ors.
Appellant AdvocateAdvocate-General and ;V. Seshadri, Adv.
Respondent AdvocateV.T. Rangaswami Iyengar, ;K. Kalyanasudaram, ;V. Ramaswami Iyer, ;S. Azizuddin and ;K. Vaithiswaran, Advs.
DispositionAppeal dismissed
Cases ReferredVarada Pillai v. Jeevaratnammal
Excerpt:
.....and sections 17, 17 (1), 17 (2) and 49 of registration act, 1908 - whether agreement embodied in partition deed collateral purpose within meaning of proviso to section 49 - agreement to divide not independent or divisible from transaction to effect which document executed - party seeks to rely upon partition deed to prove that parties agreed to divide properties between themselves - no independent transaction collateral to main purpose of document - held, appellant could not rely upon partition deed for proving agreement to compromise alleged to be implied in partition deed - question answered in negative. - central excise act, 1944.[c.a. no. 1/1944]. section 11: [p. santhasivam, a. kulasekaran & s. tamilvanan, jj] possession of property taken by bank under the securitisation &..........after stating in the counters that subsequent to the preliminary decree the subject-matter of the suit was compromised in the presence of mediators and that the particulars of the division of the properties were recorded in a document, it was prayed that in the interests of justice suitable orders should be passed by the court. the learned judge also treated their counters as asking for such a relief. he refused to give any relief to the counter petitioners as in his view the document embodying the arrangement was inadmissible in evidence and therefore the adjustment pleaded could not be considered. we hold that the order of the subordinate judge must be deemed to be one passed under order 23, rule 3, civil p. c. if so an appeal would certainly lie to this court against the said.....
Judgment:

Subba Rao J.

1. This is an appeal against the order of the Court of the Subordinate Judge of Vellore in I. A. No. 391 of 1946. The appeal was filed on the assumption that the said order was a final decree in O. S. No. 41 of 1943.

2. One Kaka Abdul Aziz Sahib died on or about 21st February 1943. The plaintiff is his widow. Defendant 1 is his uterine sister. Defendants 2 to 8 are his father's children by the second wife. Defendant 9 is his sister's son, i.e., the son of defendant 1. The suit was filed for partition and for possession of the plaintiff's one-fourth share in the properties left by her husband and also for rendition of accounts in regard to the business carried on by the deceased. On 25th September 1944, a preliminary decree for partition was passed in the suit. On 22nd April 1946 defendant 1 filed I. A. No. 391 of 1946 for the passing of the final decree. That application was opposed by the plaintiff and the other defendants mainly on the ground that subsequent to preliminary decree the parties to the suit divided all the properties in the presence of panchayatdars and took possession of the properties that fell to their shares. Though no separate petitions were filed, in the counter-affidavit filed by the plaintiff it was prayed that a receiver might be appointed by establishing the aforesaid arrangement and in the counter-affidavit fi ed by defendant 2 the Court was requested to pass suitable orders in the light of the allegations made in the counter. The learned Subordinate Judge held that the award sought to be filed in the Court not having been registered was not admissible in evidence and therefore the adjustment pleaded could not be considered. He appointed a Commissioner to divide the properties. It is represented to us that subsequently no final decree has yet been passed in the suit. Defendant 1 has preferred the above appeal.

3. The learned counsel for the respondents raised a preliminary objection to the maintainability of the appeal. He contended that the learned Subordinate Judge had not yet passed a final decree and that no appeal lay against an order appointing a Commissioner to divide the properties. So stated, his position is unassailable. But in our view the appeal can be sustained on the basis that the order of the lower Court was one re using to record a compromise. Though there was no separate petition under Order 23, Rule 8, Civil P. C., in the circumstances of the case relief claimed by the plaintiff and defendant 2 in their counters may reasonably be treated as one made under Order 23, Rule 3, Civil P. C, After stating in the counters that subsequent to the preliminary decree the subject-matter of the suit was compromised in the presence of mediators and that the particulars of the division of the properties were recorded in a document, it was prayed that in the interests of justice suitable orders should be passed by the Court. The learned Judge also treated their counters as asking for such a relief. He refused to give any relief to the counter petitioners as in his view the document embodying the arrangement was inadmissible in evidence and therefore the adjustment pleaded could not be considered. We hold that the order of the Subordinate Judge must be deemed to be one passed under Order 23, Rule 3, Civil P. C. If so an appeal would certainly lie to this Court against the said order.

4. The learned Advocate General contended that the Court below bad erred in holding that the document embodying the arrangement between the parties was not admissible in evidence for want of registration. The document in question is styled as a partition koor chit and is dated 20th June 1945. This was executed by all the heirs of late Kaka Abdul Aziz Sahib. In the preamble it is stated that the parties intended to settle up the matter amicably and have agreed to the terms set out in the schedule thereunder in the presence of respectable men who have attested the document. In the body of the document, provision was made for discharging the debts by selling specified properties and for dividing the balance of the proceeds after discharging the debts. Three schedules were annexed to the document. Under Schedule A properties to be taken by defendant 1 were mentioned. In Schedule B the properties allotted to the plaintiff-were described. In Schedule C the properties to be enjoyed by defendants 2, 3, 6 and 7 were specified. After the schedules, it was recited that they had no other properties not mentioned therein, which were to be divided and the parties to the document had no right to make any alteration whatsoever in respect of the properties allotted to their respective shares. The document was signed by all the parties. It was attested by eight witnesses. Another recital in the document requires to be mentioned as the learned counsel relied on the said recital. It reads:

'In respect of the same we shall spend according to our respective shares in the aforesaid partition deed and get a proper partition deed written up on stamp paper and get the same registered.'

A perusal of the document shows that under the document the parties finally divided the properties and each of the sharers was put in possession of the properties pertaining to his share on the date of the document itself. The right to enjoy accrued to them on the date of the document itself. The document provides for payment of debts and divides the rest of the properties between the sharers. It is styled a partition deed and all the formalities that are generally observed in the case of a partition deed are followed. It was attested by witnesses and the arrangement was embodied in the from of a partition deed. Even the parties understood the document in the same sense. In the counter affidavit filed by the plaintiff it is stated :

'Subsequent to this both parties in this suit co-operated and agreed to settle the points of dispute sooner and easily, divided all the properties in the presence of some panchayatdars, set apart the properties that bad to be sold for the payment of debts due, and took possession of the properties that fell to their shares.

The terms of the aforesaid arrangement that were brought into operation in this manner were put in writing, and the parties signed therein.'

Defendant 2 in his counter also accepts the same position. He says that there had been a completed partition in respect of the plaint schedule properties excepting items 1 to 11 of Schedule B and, in pursuance thereof, the parties had taken possession or continued in possession. We have no doubt that this document created an interest in immoveable property and therefore should have been registered under Section 17, Registration Act. But the learned Advocate-General contended that in view of the recital extracted above this document in itself did not create any right or interest in immoveable property, but merely created a right to obtain another document and therefore it need not be registered under the Act, The relevant provisions of the Registration Act read as follows :

'17 (1) The following documents shall be registered....

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.17 (2) Nothing In Clause (b) and (c) of Sub-section (1) applies to ....

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right title or interest.'49. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-

(a) affect any immoveable property, comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power,

unless it has been registered:

Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chap. II, Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A, T. P. Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.'

It is clear from the provisions of the above sections that a document in itself creating or declaring etc., any right in immoveable property over the value of the specified amount should be registered, and if not registered it cannot affect any immoveable property comprised therein nor can be received as evidence of any transaction affecting such property except in the three specified cases mentioned in the proviso to Section 49. In our view the document clearly created an interest in immoveable property and therefore it can neither affect immoveable property nor can be used in evidence. But the learned Advocate-General relied upon Section 17(2)(v) and contended that the document created only a right to obtain another document and therefore need not be registered. An authoritative interpretation of Section 17(2)(v) is found in the decision of the Judicial Committee in James Skinner v. R. H. Skinner, 51 ALL. 771: A.I.R. 1929 P. C. 269. Though the addition of the proviso to Section 49 changed the law in some of its aspects as enunciated in James Skinner v. R. H. Skinner, 51 ALL. 771: A.I.R. 1929 P. C. 269, the observations in regard to Section. 17(2)(v) are still good law. At p. 779 their Lordships say:

'The intention of the Act is shown by the provision of Section 17(2)(v), which exempts from registration and, therefore, frees from the restriction of Section 49, a document which does not itself create an interest in immoveable property, but merely creates a right to obtain another document which will do so.'

As, in the present case, the document itself created an interest in immoveable property, the mere fact that a provision is inserted enabling the parties to get a proper partition deed written up on stamp paper and get the same registered does not take away the document from the mischief of Sections 17 and 49, Registration Act. In Veeraraghava Rao v. Gopalarao : (1941)2MLJ707 , Patanjali Sastri J. considered the scope of Section 17, Registration Act, in its application to a partition deed. It was found in that case that it was intended that there should be another comprehensive deed to be executed subsequently. The learned Judge said that the mere fact that the parties contemplated the execution of a more comprehensive partition deed later on did not make the partition deed in that case any the less operative to create interest in the immoveable properties compromised therein. A Letters Patent Appeal was filed against the said judgment and it was confirmed by a Division Bench of this Court. This decision was also approved by the Full Bench in the decision in Ramayya v. Achama : AIR1944Mad550 . The learned Advocate. General relied upon the decision of the Privy Council in Rajangam Iyer v. Rajanagam Aiyar, 46 Mad. 373: A.I.R. 1922 P. C. 266. In that case the Judicial Committee construed a memorandum of agreement dated 7th January 1916. They held that the document was a memorandum regarding the cesser of jointness and that it provided for the execution of a further deed effectuating the partition. As the document in itself did not create or declare an interest in immoveable property but merely created a right to obtain another document, they held that the memorandum of agreement in that case was not affected by the provisions of Section 17, Registration Act. That decision is not of any help in this case. We, there-fore, hold that the koor chit should have been registered under Section 17, Registration Act, and not having been registered it cannot affect immoveable property nor can be used in evidence.

5. It is then contended that the partition deed was not filed in Court qua partition deed but only for the purpose of bringing to the notice of the Court that the suit was compromised. In support of this contention, the decision in Sitaram v. Har Sahai, : AIR1923All438 was relied upon. The facts in that case are that pending an application for partition in a revenue Court the parties effected a compromise. The revenue Court had given effect to the compromise and the parties were put in possession of the divided properties in accordance with the terms of that agreement. But in spite of the compromise recorded in Court the defendants dishonestly demolished a part of the dwelling house. The plaintiff filed a suit for an injunction restraining the defendants from demolishing the house. It was contended inter alia that the compromise was neither stamped nor registered and was consequently inadmissible in evidence. The learned Judge held that the compromise did not by itself create any title in the parties, but it was only an information given to the revenue Court of the compromise which the parties arrived out of Court and, therefore, the compromise was admissible in evidence. It will be seen that in that case the compromise was filed in Court by consent of parties and, therefore, it was used only as an information given to the Court to the effect that the matter was settled between the parties. In this case defendant 1 says there was no compromise, whereas defendant 2 and the plaintiff say the matter was compromised. It is not a question of giving information to Court that the matter has been settled; but the Court will have to decide whether there was a partition or not and the document was sought to be filed for the purpose of proving that there was such a partition. It is not a part of judicial proceeding or a step of judicial procedure. The document is intended to be used to establish a right affecting an immoveable property. When a suit is pending, parties to the suit may settle their disputes outside the Court either through the intervention of mediators obtaining an award in respect of their rights or settling their rights inter se by executing a partition deed. The parties so entering into a compromise may apply to the Court under Order 23, Rule 3, Civil P. C., to obtain a decree in terms of the compromise. The petition regarding the compromise will in that case be a part of judicial proceeding or a step of judicial procedure. The compromise petition in no sense of the term could be a document affecting immoveable property. It is really informing the Court that the matter is compromised and put-ting before the Court the agreed terms so that a decree may follow. But in a case where the parties who effected a partition by executing an unregistered partition deed do not file a compromise petition or do not agree in regard to the factum or the terms of the compromise the Court necessarily cannot pass a compromise decree unless the factum of the compromise and the terms thereof are proved to the satisfaction of the Court. Where such terms could only be proved by producing a document affecting rights in immoveable property, the provisions of Sections 17 and 49, Registration Act, should be complied with. Unless the partition is proved in the manner known to law, the Court cannot pass a compromise decree. It cannot be proved by producing a document which is inadmissible in evidence. This aspect of the case was exhaustively considered by a Full Bench in Mohamed Azizullakhan v. Md. Noorullah Khan, A, I. R. 1939 Nag. 233 : I.L.R. (1939) Nag. 607. In that case a suit was filed to enforce an award passed by arbitrators on a reference made to them by the parties without reference to Court. All the parties except one accepted the award. The party who questioned it contended that the award not having been registered no suit would lie on it. The award was held not admissible in evidence. In dealing with this point, the learned Judges made the following observations :

'Now when both parties came before the Court and are agreed in stating that the suit has been adjusted, then the Court has no option (except perhaps an inherent power to prevent its proceedings from being used to work substantial injustice) but to record It: Sourendranath v. Tarubala Dasi . It does not then matter whether the compromise was embodied in an unregistered document or not because the authority to proceed is grounded on the statements made to the Court, the admissions of both sides on which the Court is warranted to, and in fact, must act, when both sides are agreed. That is the proof of which the rule speaks. See on this point Satyesh Chunder Sircar v. Dhunpal Singh, 24 Cal. 20, Lakhan Chandra v. Takin Dhali : AIR1924Cal558 , Burjorji Cursetji v. Muncherji Kuverji, 5 Bom. 143 and Chedambaram Chetti v. Karunalayavalangaputi Tavar, 3 M. H. C. R. 342. The reason is that that which is admitted in the pleadings or statements made to the Court need not be proved; see Section 58, Evidence Act. Under the law, the writing becomes (unless registration Is necessary to effect the transaction itself in certain sales and mortgages) the only evidence when the matter is in dispute, but that evidence becomes unnecessary when the agreement Is not In dispute.'

Later on the learned Judges say :

'The point, as we see it, is that it is not the document upon which the Court proceeds in such oases but the statements or rather the admissions made before it as provided for in Section 58, Evidence Act. Therefore the document, qua document, forms no part of the proceedings of the Court. It can only do so in so far as H constitutes the statement of one or other of the parties; and in so fat as it does that, no Court can decree a claim or act on such a statement, if it is contested, to the detriment of the person challenging it. If that stage is reached then proof is required in the ordinary way.'

We respectfully agree with these observations and we therefore hold that the partition deed not having been registered cannot be filed to prove that there was a partition between the parties.

6. The learned Advocate-General then argued that the partition deed could be relied upon for a collateral purpose, that is, the agreement to divide the property implied in the partition deed. In support of this contention he relied on the proviso to Section 49, Registration Act, which reads as follows :

'Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chap. II, Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A, T. P. Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.'

7. It may be noticed that the proviso was inserted in the section by the Transfer of property Act, (Amendment) Supplementary Act, 1929, as a result of the decision of the Privy Council in James Skinner v. R.H. Skinner, 51 ALL. 771 : A. I. R. 1929 P. C. 269. Under this proviso any document affecting immoveable property may be received in evidence for any of the purposes mentioned therein. It is argued that an application for recording a compromise under Order 23, Rule 3, Civil P. C., is in the nature of a suit for specific performance and therefore this petition deed, though not registered, could be received in evidence of a contract embodied therein. The proposition that an application to record a compromise is in the nature of a suit for specific performance is sought to be supported by a decision reported in Sabitri Thakurain v. Mrs. F.A. Savi, : AIR1933Pat306 . It is not necessary to state the facts in that case as various questions were mooted and elaborately considered. The question before us did not arise for consideration in that case. It is enough for the purpose of this case to extract the passage at page 558 which was relied upon by the learned counsel:

'Now it may at once be conceded that the provision in Order 23, Rule 8 for an enquiry Sabout the fact and lawfulness of a compromise of a suit in the suit itself is a speedier alternative to a separate suit for specific performance of the contract to compromise the suit on certain terms.'

But the learned Judge after pointing out the analogy between the two procedures gave the caution that the analogy between a suit for specific performance and a procedure under Order 23, Rule 3 should not be carried too far. They also narrated the obvious differences between a suit for specific performance and an application for recording a compromise. These observations are of no practical use in this case. We have to construe Section 49, Registration Act and we cannot enlarge the scope of its provisions by analogy. Unless the document in question comes under one or other of the categories of cases mentioned in the proviso the main section must apply. An application for recording a compromise, in our view, cannot conceivably be treated as a suit for specific performance under chap. II, Specific Relief Act, and therefore the document cannot be used as evidence of the contract.

8. It is then argued that the partition deed could be used as evidence of a collateral transaction not required to be effected by a registered instrument, and the learned counsel says that the collateral transaction he was relying upon is the agreement embodied in the partition deed. That a document required to be registered but not registered can be used for a collateral purpose is not a new proposition of law. This is merely a statement of what was held to be the law even before this proviso. It has been held that in order that a transaction may be considered to be a collateral transaction and so admissible in evidence it must firstly be independent or divisible from the transaction to effect which the law required registration, and it must be a transaction not by itself required to be effected by a registered document as one creating, etc., any title or interest in immovable property. Though an unregistered document may affect the property, it may be used as evidence of a transaction provided it is collateral to the main purpose of the document. In Bai Gulabbai v. Shri Datgarji, 9 Bom. L. R. 393, it was held that collateral purpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The decision of the Judicial Committee reported in Varada Pillai v. Jeevarathnammal, 43 Mad. 244: A. I. R. 1919 P. C. 44, affords a clear example of the application of this principle. In that case petitions in a mutation proceeding evidencing a gift were held to be admissible for explaining the nature and character of the possession. The documents were therefore used only for a purpose certainly collateral to any of the purposes mentioned in Section 17. The same principle is applied by a Full Bench in Ramayya v. Achamma : AIR1944Mad550 . In a suit for partition by one of the co-sharers, the defence was that there was a partition effected between the parties and an unregistered partition deed was relied upon to prove that there was a partition between the parties. It was also contended that though the document was not admissible, other evidence could be adduced to prove that there was a partition. The Full Bench held that the document was not admissible under Section 17, Registration Act and no other evidence could be adduced under Section 91, Evidence Act. The Privy Council ease in Varada Pillai v. Jeevaratnammal, 43 Mad. 244 : A. I. R. 1919 P. C. 44 was explained by stating that the document in that case was used only to see under what circumstances a person came into possession. Applying the aforesaid test, can it be said that the agreement embodied in the partition deed is a collateral purpose within the meaning of the proviso to Section 49, Registration Act? We think not. The transaction on which the learned Advocate-General seeks to rely, viz., the agreement to divide, is not independent or divisible from the transaction to effect which the document was executed. The party seeks to rely upon the partition deed to prove that the parties agreed to divide the properties between themselves. There is no independent transaction collateral to the main purpose of the document viz, dividing the property. A party can rely upon an agreement implied in a sale-deed in a suit for specific performance or as evidence of part performance of a contract not because the agreement is a transaction collateral to the partition deed but because of the express provisions of the proviso. We therefore hold that the appellant could not rely upon the partition deed for proving the agreement to compromise alleged to be implied in the partition deed. In the result the appeal is dismissed with coats.


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