Dismissed

(Deleted) Subhash Chandra Agrawal v. Rakesh Kumar Agrawal

Chhattisgarh HC9 Aug 2023FA/10/2019

Case brief

AI extract

What is this about?

In this family partition dispute, the High Court of Chhattisgarh dismissed an appeal challenging a trial court decree. The appellants argued the partition memorandum was invalid due to non-registration and non-stamping. The Court held the document was a mere memorandum recording a past arrangement, not admissible to create or extinguish rights, and thus registration was not mandatory. The appeal w

What did the court decide?

The appeal was dismissed with the parties to bear their own costs.

(Deleted) Subhash Chandra Agrawal Vs Rakesh… — Succession and Inheritance | Chhattisgarh HC (2023)

FA No.10 of 2019

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

Judgment reserved on 19-07-2023 Judgment delivered on 09-08-2023

¶6

FA No.10 of 2019

¶7

{Arising out of judgment and decree dated 24-11-2018 passed by the Second Additional District Judge, Korba, in civil suit No.1-A/2017}

¶8

Subhash Chandra Agrawal (Dead)

¶9

Smt. Bina Devi Agrawal W/o Subhash Chand Agrawal Aged About 63 Years R/o Agrasen Marg, Korba Tahsil And District Korba Chhattisgarh.

¶10

Nidhi Agrawal W/o Vikash Agrawal Aged About 35 Years R/o Agroha Marg, Korba Tahsil And District Korba Chhattisgarh.

¶11

---- Appellants (Def.No.1 to 3)

¶12

Versus

¶13

Rakesh Kumar Agrawal S/o Sabhash Chand Agrwal Aged About 41 Years R/o Dupra Road Korba District Korba CG. (Plaintiff No.1)

¶14

Smt. Bhumika Devi Agrawal W/o Shri Rakesh Kumar Agrawal Aged About 38 Years R/o Durpa Road Korba District Korba, CG.

¶15

(Plaintiff No.2)

¶16

Smt. Usha Agrawal W/o Shri Santosh Agrawal Aged About 43 Years R/o Korba District Korba Chhattisgarh. (Def.No.4)

¶17

Smt. Srishti Goyal W/o Shri Hemant Goyal Aged About 27 Years R/o Korba Tahsil And District Korba Chhattisgarh. (Def.No.5)

¶18

Nagar Palik Nigam Korba Through Commissioner, Saket Bhawan ITI Rampur, Korba District Korba Chhattisgarh (Def.No.6)

¶19

State Of Chhattisgarh Through Collector Korba District Korba Chhattisgarh (Def.No.7) ---- Respondents

¶20

For Appellants	Mr. Sanjay Patel, Advocate
For Respondents No.1&2	Mr. Manoj Paranjape, Advocate
For Respondents No.3&4	Mr. Vinod Deshmukh, Advocate
For Respondent No.5	Mr. Anroop Panda, Advocate on behalf of Mr. B.D. Guru, Advocate
For Respondent No.6/State	Mr. Trivikram Nayak, Panel Lawyer

¶21

¶22

FA No.10 of 2019

¶23

Hon'ble Mr. Justice Goutam Bhaduri & Hon'ble Mr. Justice Sanjay S. Agrawal

¶24

CAV Judgment

¶25

The following judgment of the Court is delivered by Goutam Bhaduri, J.

¶26

Challenge in this appeal is to the judgment and decree dated 24-112018 passed by the Second Additional District Judge, Korba, in civil suit No.1-A/2017 whereby the suit has been decreed in favour of the plaintiffs.

¶27

The suit was filed by Rakesh Kumar Agrawal & Smt. Bhumika Devi Agrawal, plaintiffs, with the pleading, inter alia , that :

¶28

they formed a joint Hindu family along with Subhash Chandra Agrawal (Defendant No.1); Smt. Beena Devi Agrawal (Defendant No.2); and Nidhi Agrawal (Defendant No.3) and they had divided the property and thereafter they were in possession of the respective suit property and memorandum of partition was executed on 20-9-2004 wherein the defendants No.1 to 3 signed the document in presence of Prabhuram Agrawal and Radheshyam Bansal;

¶29

plaintiffs further pleaded that pursuant to the memorandum of partition, defendants No.1 & 2 on 20-9-2004 executed an affidavit to fortify the facts of the earlier partition;

¶30

according to the plaintiffs, they were in possession of the property as per the earlier partition effected and the subject

¶31

¶32

FA No.10 of 2019

¶33

property of memorandum includes land bearing khasra No.890/32 & 890/34 situated at Korba; immovable property of 4500 sq.ft. situated at Indira Awasiya Evam Vyavasayik Parisar; office at Transport Nagar, Korba; and house situated over khasra No.493/206 area 1500 sq.ft.;

¶34

the plaintiffs stated that apart from the said property the other immovable and movable property have also been received by the plaintiffs for which no dispute exists;

¶35

plaintiffs further contended that defendants No.1 & 2 being abetted by their daughter Nidhi Agrawal (Defendant No.3), the house situated over khasra No.493/206, which was received by the plaintiffs, wanted to execute Daanpatra (दानपत) in favour of their daughter and obtained permission from the Collector wherein the plaintiffs objected, however, the said objection was dismissed on 20-3-2016;

¶36

it was contended by the plaintiffs that defendants No.1 & 2 were bent upon to transfer the said property in favour of the defendant No.3 and in respect of the another house of the plaintiffs, which is situated at Durpa Road, efforts were also made to transfer the same in favour of the daughter;

¶37

the plaintiffs stated that in respect of the property (office) at Natraj Hotel, which was received by the plaintiffs, defendant No.2 has put a lock and has agreed to sell the said

¶38

¶39

FA No.10 of 2019

¶40

property to Naresh Trading Company and defendants No.4 & 5 have put their board over such property;

¶41

the plaintiffs contended that the compromise has been effected between the plaintiffs and defendants No.1 & 2 that defendant No.1 will pay the bank loan and if he want to sell the office premises admeasuring 22 x 12 sq.ft., the plaintiffs will vacate the same whereas against the compromise effected, a lock was put on the same premises;

¶42

the plaintiffs next pleaded that during pendency of the suit, the office premises was sold to defendants No.4 & 5 in the year 2017 and the defendants No.4 & 5 do not get any right or title as they would be governed by the rules of lis penden s;

¶43

according to the plaintiffs they are in possession of the office property as per the partition effected, however, since the dispute occurred, they shifted to another house at Durpa Road; and

¶44

the plaintiffs stated that the names were not mutated in the revenue record, therefore, taking advantage of it, defendants No.1 & 2 wanted to eliminate the right of the plaintiffs.

¶45

The defendants No.1 to 3 on the contrary stated that :

¶46

¶47

FA No.10 of 2019

¶48

the relation of the plaintiffs and the defendants has been terminated which was published in the newspaper and the relation of father & mother (defendants No.1 & 2) with son and daughter-in-law (plaintiffs) has ceased to exist;

¶49

the defendants contended that in order to have peaceful atmosphere, on 20-9-2004 a partition deed was executed, but after some days it was not followed and earlier to that, no partition was effected and the said document was never acted upon;

¶50

according to the defendants, the partition deed was not registered and stamped and, as such, the same is not admissible in evidence;

¶51

the defendants No.1 & 2 though had accepted the plaintiff No.1 as their adopted son, but no procedure was followed and according to the family settlement the plaintiffs are residing at Durpa Para Road house and defendants No.1 & 2 are residing at Agrasen Marg Road house;

¶52

the defendants pleaded that after the execution of document on 20-9-2004 the plaintiff himself did not adhere to it and received the amount from the defendants in cash consequently, the partition deed dated 20-9-2004 is not in existence and no partition was effected;

¶53

¶54

FA No.10 of 2019

¶55

the defendants also pleaded that the property in question was self acquired property of the defendants No.1 & 2, therefore, the plaintiffs do not have any right to claim the property;

¶56

the defendants stated that the plaintiffs have never acquired the property and the office premises admeasuring 22 x 12 sq.ft. situated at Natraj Hotel and it was only given to the plaintiffs to run the business and after the said premises was sold, the plaintiff promised to vacate the same;

¶57

it was further stated that the plaintiff has failed to repay the loan amount to the Bank and having not paid the same, the defendants had sold certain property to liquidate the loan amount; and

¶58

according to the defendants, the property for which the claim has been made, the plaintiff is not in possession of the said land, therefore, without claiming the possession of the subject property, the suit simplicitor declaration would not lie.

¶59

The defendants No.4 & 5 had stated that they had purchased the property of plot No.64 and the lease has been assigned in their favour. The plaintiff has not claimed the same by proper valuation and the sale deed/lease deed is valid and enforceable, which cannot be declared illegal.

¶60

¶61

FA No.10 of 2019

¶62

The defendant No.6, Municipal Corporation, Korba, stated that in respect of Transport Nagar residential and business premises, the defendant No.2 sought permission, which was granted by the Corporation, as the defendants No.4 & 5 had purchased the same on 10-7-2017 and the claim was resisted.

¶63

Learned trial Court framed nine issues. The issue Nos.1 & 2 were with respect to the fact that whether the plaintiffs were the members of the joint family. It was held in affirmative and further issue was that whether the document dated 20-9-2004 was executed by defendants No.1 & 2 to maintain peace in the family, it was held in affirmative. It was further held that in the suit property though the property was held to be of the defendants No.1 & 2 but the superstructure was raised by the joint family income. In respect of the issue whether the property was self acquired, it was held that after the partition, the property which devolved on the defendants No.1 & 2 they were only entitled to sell the same. The suit, therefore, was decreed partly in favour of the plaintiffs. Thus, this appeal by the defendants No.1 to 3. During pendency of this appeal, the defendant No.1 died. Thus, the defendants No.2 & 3 (appellants No.1 & 2 herein) are prosecuting this appeal.

¶64

Learned counsel appearing for the appellants/defendants No.1 to 3 would submit that :

¶65

the defendants No.1 to 3 do not raise any claim in respect of the property sold in favour of the defendants No.4 & 5 and

¶66

¶67

FA No.10 of 2019

¶68

their claim is confined to the property situated at khasra No.890/32 & 890/34;

¶69

learned counsel would further submit that the partition deed (Ex.P/1) is not registered, therefore, it would not be acceptable in the evidence by virtue of Section 17(1) of the Indian Registration Act, 1908 (for short ‘the Act, 1908’);

¶70

according to the learned counsel, considering the age of the plaintiff, it would show that at the time when the superstructure was made he was a minor, therefore, by all implication it goes to point out that it was a self acquired property and as per Section 302 (Chapter XVI – Partition and Reunion – Mitakshara Law), the only property that can be divided on a partition is coparcenary property and separate property cannot be the subject of partition;

¶71

he would submit that the property self acquired was indivisible in nature;

¶72

learned counsel would submit that the finding of the Court below that the property was self acquired, but the construction made on it from the income of the joint business is negated by the fact that the plaintiff was a minor when the property was acquired;

¶73

to buttress his contention, learned counsel would place reliance upon the decision rendered by this Court in the

¶74

¶75

FA No.10 of 2019

¶76

matter of Madan (Dead) through his LRs Ghanshyam Prasad & others v Brij Bhushan (Dead) through his LRs Sajan Kumar & Others¹ , to submit that when a deed reduced in writing evidencing partition, it would have the effect of declaring exclusive title to whom the property is allotted, therefore, the registration under Section 17(1)(b) of the Act, 1908 would be necessary;

¶77

learned counsel would submit that it is the trite law that registration would be necessary when the terms reduced into writing and it is not a memorandum and since parties have reduced the transaction to a family document which was intended it would have declaring the exclusive title and, as such, Ex.P/1 would require compulsory registration under the provisions of the Act, 1908 and in absence thereof it would not be admissible in evidence;

¶78

learned counsel would also place reliance upon the decision rendered by this Court in the matter of Lav Kumar Singh v Ashok Singh (died) through LRs Smt. Anjusha Singh & Others² , to submit that when the instrument is not duly stamped it would be inadmissible in evidence under Section 35 of the Stamp Act, 1899 (for short ‘the Act, 1899’) and Section 49 of the Act, 1908 shall affect transfer of an immovable property comprised therein, therefore, wrong

¶79

1 2014 (3) CGLJ 616 2 FA No.222 of 1997 (decided on 12-12-2018)

¶80

¶81

FA No.10 of 2019

¶82

finding of fact has been arrived; and hence, the appeal deserves to be allowed by setting aside the impugned judgment and decree passed by the learned trial Court.

¶83

Learned counsel appearing for the respondents, per contra , would submit that :

¶84

the document (Ex.P/1) whereby the partition was effected prior to the date only records the memorandum and the signature on the said document is admitted, which is followed by affidavit (Ex.P/2) which also affirms the fact that it was a past transaction;

¶85

learned counsel would further submit that the authenticity of Ex.P/1 & Ex.P/2 supported by Ex.D/2 wherein certain agreement would show that plaintiff was put in possession in terms of partition when family arrangement will took place prior to 2004;

¶86

learned counsel would submit that the construction was made after the joint business was carried out and there being no cross-examination on this issue and, in fact, there is no occasion why such document should not be admitted;

¶87

in support of his contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of K. Arumuga Velaiah v P.R. Ramasamy and

¶88

¶89

FA No.10 of 2019

¶90

Another³ , to submit that even if it is the individual property which was thrown in the common reunion and thereafter the partition was affected the individual right would be created to that of the respective parties; and

¶91

learned counsel would submit that the impugned judgment and decree is well merited, which do not call any interference.

¶92

We have heard learned counsel appearing for the parties and perused the record.

¶93

The document (Ex.P/1) is the genesis where from the plaintiff claimed his right. The defendant No.2 Smt. Bina Devi Agrawal in her cross-examination at para 18 admitted the fact that they were carrying joint family business in the name of Natraj Finance in the premises of Natraj Hotel and after closure of Natraj Finance they started joint business in the name of Rakesh Transport and before execution of document (Ex.P/1) the family was joint family and all used to stay together.

¶94

In the background of fact, we went through the contents of partition deed (बटवारानामा). Perusal of it would show that they admitted the fact that the plaintiffs and the defendants No.1 to 3 belong to one family and they have movable and immovable property and the reunion was effected into the property to make it a common and the document further purports that they had voluntarily effected

¶95

3 (2022) 3 SCC 757

¶96

¶97

FA No.10 of 2019

¶98

partition. Signatures on this document were admitted by the parties. This was executed on 20-9-2004. Another document i.e. affidavit (शपथ पत) of Subhash Chandra Agrawal and Smt. Bina Devi Agrawal is placed as Ex.P/2. The contents of it would show that at past according to the family arrangement, the parties to the suit were doing their job and thereafter, after reunion the property had already been partitioned and they have received the respective property. The affidavit further states that partition has already been effected and no party will claim the adverse right on each other and they would be at liberty to get their name mutated. This affidavit is dated 29-9-2004.

¶99

The Supreme Court in the matter of K. Arumuga Velaiah (supra), has reiterated the law down in the matter of Kale and Others v Deputy Director of Consolidation and others⁴ , wherein at para 34 following principles were laid down :

¶100

In para 10 of the said judgment in Kale case, this Court has adumbrated on the essentials of a family settlement which could be usefully extracted as under (Kale case: pp126-27):

¶101

“10. In other words to put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions:

¶102

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or

4 (1976) 3 SCC 119

FA No.10 of 2019

allotment of properties between the various members of the family;

¶107

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

¶108

(3) The family arrangements may be even oral in which case no registration is necessary;

¶109

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) [sic Section 17(1)(b)?] of the Registration Act and is, therefore, not compulsorily registrable;

¶110

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to

¶111

¶112

FA No.10 of 2019

¶113

be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;

¶114

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

¶115

(emphasis in original)

¶116

From bare perusal of the aforesaid principles, it is manifest that the registration of such document would be necessary only if the terms of the family arrangement are reduced into writing and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation will not require registration. Therefore, the memorandum itself does not create or extinguish any rights in immoveable properties and would not fall within the mischief of Section 17(1)(b) of the Act, 1908.

¶117

The aforesaid proposition further lays down that the members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole

¶118

¶119

FA No.10 of 2019

¶120

owner, then the antecedent title must be assumed and the family arrangement will be upheld.

¶121

In the facts of this case, perusal of Ex.P/1 & Ex.P/2 the memorandum of partition and the affidavit would show that antecedent title was created in favour of the plaintiff by the defendant, which is further fortified by memorandum Ex.D/2, which affirms the fact that in pursuant to the partition already effected the parties were put to their respective possession of the property and mutation of the name was carried out.

¶122

In view of foregoing, we are of the considered view that the impugned judgment and decree passed by the Court below is just and proper, warranting no interference of this Court.

¶123

As an upshot, the instant appeal, sans substratum, is liable to be and is hereby dismissed, leaving the parties to bear their own cost(s).

¶124

A decree be drawn accordingly.

¶125

Sd/Sd/-

¶126

(Goutam Bhaduri) (Sanjay S. Agrawal) Judge Judge

¶127

Gowri

(Deleted) Subhash Chandra Agrawal v. Rakesh Kumar Agrawal

Case brief

What is this about?

What did the court decide?

(Deleted) Subhash Chandra Agrawal v. Rakesh Kumar Agrawal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Geeta Kewat Vs Pankaj Kewat

Mu. Dokeshwari @ Daleshwari Vs Dinesh Kumar Agrawal

Vinay Agrawal Vs Moolchand

Pradeep Agrawal Vs Ashish Mishra

Deepak Verma Vs Smt. Rashmi Verma

Ramdhan Korva Vs State of Chhattisgarh