Dismissed

Sukhlal and Ors. v. Mahesiya and Ors.

Chhattisgarh HC2 Oct 2024SA/28/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal against the first appellate Court's judgment setting aside a trial Court's decree based on an unregistered relinquishment deed. Upholding Supreme Court precedents, the Court held the deed required mandatory registration under Section 17 of the Registration Act and was inadmissible.

What did the court decide?

Second appeal dismissed; first appellate Court's judgment and decree upheld; no cost(s).

Sukhlal and Ors. Vs Mahesiya and Ors. — Partition | Chhattisgarh HC (2024)

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2024:CGHC:39126

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 28 of 2012

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1. Sukhlal S/o late Inder Sai, Aged about 40 years, caste- Sahu

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2. Vishun @ Vishnu Prasad S/o Inder Sai, Aged about 33 years,

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3. Sushila @ Rengi D/o late Jagdish, Aged about 18 years

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4. From 1 to 3 are the R/o village Mandalpara, Tahsil- Baikunthpur, Distt.Korea (C.G.)

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5. Chengi @ Sumitra D/o Late Jagdish W/o Brijlala Caste- Teli, R.o village- Umapur, Tahsil- Ramanujganj, Distt.-Sarguja (C.G.)

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... Appellants

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versus

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1. Mahesiya Wd/ o late Rupsai, Caste- Teli, aged about 56 years

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2. Vilako S/o late Rup Sai, caste- Teli Aged about 27 years,

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3. Surendra S/o late Rup Sai, Caste- Teli, aged about 25 years, All are the R/o Village- Umapur, Thana & Tahsil- Ramanujganj, Distt.- Sarguja (C.G.)

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4. State of Chhattisgarh Through- Collector, Korea, Baikunthpur, Distt.Korea (C.G.)

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	... Respondents
For Appellants	: Mr. SanjayPatel, Advocate
For Respondents No. 1-3	: Mr. Pushkar Sinha, Advocate
For State/ Respondent No. 4	: Mr. Pranjal Shukla, P.L.

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Hon’ble Shri Justice Rakesh Mohan Pandey

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Judgment On Board

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03/10/2024

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1. This second appeal was admitted for hearing on 24.02.2021 on the

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following substantial question of law:-

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“Whether the first appellate Court was justified in reversing the decree of the trial Court that the documents of Adhikar Tyag Patra/ relinquishment deed is required to be registered under Section 17 of the Indian Registration Act by recording a finding

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which is perverse to the record?”

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2. Plaintiffs/appellants have assailed the judgment and decree dated 29.10.2011 passed by the learned First Additional District Judge, Manendragarh, Place-Baikunthpur, Distt-Korea, in Civil Appeal No. 30A/2010, whereby the appeal preferred by defendants No. 1 to 3 was allowed.

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3. Plaintiffs filed a civil suit for declaration of title, permanent injunction and partition, inter-alia on the ground that the plaintiffs and defendants No. 1 to 3 are members of one family and the property mentioned in Schedule (A) is an ancestral joint family property situated at Village Pandaripani, P. H. No. 61, Tehsil-Surajpur, District-Sarguja. Property mentioned in Schedule (B) is recorded in the names of defendants No. 1 to 3. Initially, the suit property was settled in the name of Budhram during the Korea Survey Settlement in the year 1947-48. Budhram expired in the year 1971 and after his death; the names of plaintiffs and defendants No. 1 to 3 were recorded in the revenue records. One of the coparceners, namely, Bhukhalsai expired issueless and his name was deleted and his share was divided among the coparceners. Rupsai, who has husband of Mahesiya (defendant No. 1) and father of Vilako and Surendra (defendants No. 2 and 3) executed an unregistered relinquishment deed on 05.02.1991 after receiving Rs. 2,000/- from the plaintiffs. The plaintiffs pleaded that defendants No. 1 to 3 have no right over the suit land mentioned in Schedules A and B and the plaintiffs are entitled to get 1/3rd share in the property. Defendants No. 1 to 3 filed written statements and denied plaint averments. Learned trial Court framed issues and held that:-

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(i) The property mentioned in Schedule (A) was partitioned 17 years ago whereas the property mentioned in Schedule (B) is self acquired property of Rupsai;

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(ii) Plaintiffs are not entitled to get 1/3rd share in property mentioned in Schedule (A) and (B);

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(iii) Plaintiffs can be declared owners of the property by virtue of partition and relinquishment deed.

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The learned trial Court partly decreed the suit relying upon the relinquishment deed (P/14). Defendants No. 1 to 3 preferred an appeal and the same was allowed vide judgment and decree dated 29.10.2011.

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4. Learned counsel for the plaintiffs submits that the first appellate Court reversed well-reasoned findings recorded by the trial Court. He further submits that suit property is ancestral property, therefore, the plaintiffs are entitled to get 1/3rd share. He contends that the relinquishment deed (P/14) was executed by Rupsai in favour of the remaining coparceners, though it was not registered but it was admissible in evidence and the trial Court considered it and passed a judgment and decree on the basis of the said relinquishment deed. He further contends that there was no need for registration of relinquishment deed according to Section 17 of the Registration Act, 1908, therefore, the findings recorded by the first appellate Court with regard to registration of relinquishment deed is perverse.

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5. On the other hand, learned counsel appearing on behalf of defendants No. 1 to 3 opposes. He submits that according to Section 17 of the Act, 1908 relinquishment deed requires registration. He further submits that the first appellate Court has rightly set aside the judgment and decree passed by the trial Court. With regard to the right of the plaintiffs over

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the suit property mentioned in Schedule (A), he contends that as the property mentioned therein is ancestral property, therefore, the plaintiffs would get their right. He further contends that the property mentioned in Schedule (B) is the self-acquired property of Rupsai, therefore, the plaintiffs have no right over that property. He prays that the present second appeal deserves to be dismissed.

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6. Learned State counsel supports the judgment and decree passed by the first appellate Court.

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7. I have heard learned counsel for the parties and perused the record.

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8. Evidently, the trial Court decreed the suit placing reliance on the relinquishment deed which is admittedly an unregistered document. The first appellate Court while reversing the findings recorded by the trial Court held that relinquishment deed requires registration according to Section 17 of the Act, 1908.

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9. Section 17 of the Act, 1908 is reproduced herein below for ready reference:-

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17. Documents of which registration is compulsory .

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(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,

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(a) instruments of gift of immovable property;

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(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 immovable property;

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(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

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(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;(e) [ non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such

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decree or order or award purports or operates 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 immovable property:] [Inserted by Act 21 of 1929, Section 10.]

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Provided that the [State Government] [Substituted by A.O.1950, for "Provincial Government" .] may, by order published in the [Official Gazette] [Substituted by A.O.1937, for "Local Official Gazette" .], exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

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[(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53-A.] [Inserted by Act 48 of 2001, Section 3 (w.e.f. 24.9.2001).]

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(2) Nothing in clauses (b) and (c) of sub-section (1) applies to

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(i) any composition deed; or

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(ii) any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or

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(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

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(iv) any endorsement upon or transfer of any debenture issued by any such company; or

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(v) [any document other than the documents specified in sub-section (1-A)] [Substituted by Act 48 of 2001, Section 3, for "any document" (w.e.f. 24.9.2001).] 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 immovable 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; or

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(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding] [Substituted by A.O.1937, for "and any award" .]; or

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(vii) any grant of immovable property by the [Government] [Substituted by A.O.1950, for "Crown" .]; or

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(viii) any instrument of partition made by a Revenue Officer; or

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(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

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(x) any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act;

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or[(x-a) any order made under the Charitable Endowments Act, 1890, vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] [Inserted by Act 39 of 1948, Section 2 (w.e.f. 3.9.1948).]

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(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgagemoney, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

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(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.

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[Explanation [Inserted by Act 2 of 1927, Section 2.].a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.]

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(3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.

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10. The Hon’ble Supreme Court in the matter of Korukonda Chalapathi Rao & Anr. Versus Korukonda Annapurna Sampath Kumar reported in (2022) 15 SCC 475 has held that the relinquishment deed, if unregistered, is not admissible in the Court, even for collateral purposes. Relevant para of the aforementioned judgment is reproduced herein below:-

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20. This view has been reiterated in Krishna Beharilal v. Gulabchand. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, this Court found that the relinquishment of the right was made through the document. Hence, it was found that documents were compulsorily registrable. This Court, inter alia, held as follows: (Yellapu Uma Maheswari case, SCC p. 794, para 15)

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"15. It is well-settled that the nomenclature given to the

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document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition."

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11. Taking into consideration the facts of the present case and the law laid down by the Apex Court in the matter of Korukonda Chalapathi Rao (supra), the relinquishment deed (P/14) is not a registered instrument whereas it requires registration according to provisions of Section 17 of the Act, 1908.

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12. Therefore, in the opinion of this Court, the first appellate Court has not committed any error of law in allowing the appeal preferred by defendants No. 1 to 3. Thus, the substantial question of law is hereby answered in negative against the plaintiffs/appellants.

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13. Consequently, this second appeal fails and is hereby dismissed. No cost(s).

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14. A decree be drawn accordingly.

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Sd/Rakesh Mohan Pandey JUDGE

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Ajinkya

Sukhlal and Ors. v. Mahesiya and Ors.

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Sukhlal and Ors. v. Mahesiya and Ors.

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