Whether Sitaram Joshi was the legally adopted son of Jagannath Joshi and Moni Debi.? 3) Whether defendant No.1 Rajendra Prasad Shewda was the legally adopted son of Gomati Debi and whether the gift deed executed by Gomati Debi in favour of defendant No.1 was legal and valid? = The letter dated 20.7.1945 (Exb.2) does not lead to any clear/firm conclusion with regard to the adoption of Sitaram and had been rightly discarded by the High Court. In the above conspectus of facts the evidence of the plaintiff regarding the adoption of her husband stands isolated and cannot, on its own, sustain a positive conclusion that her husband Sitaram was adopted by Jagannath. If the suit property was owned by Moni Debi and not by Jagannath and Sitaram was not the adopted son of Moni Debi and Jagannath it must be held that the suit property devolved on Gomati on the death of Moni Debi. The claim of the defendant No.1 to be the adopted son of Gomati could have been challenged only by such legal heirs on whom the property would have devolved following the death of Gomati in the event the adoption of the defendant No. 1 is to be held to be invalid. In this context, the next legal heir who would have been entitled to succeed to the property of Gomati Debi if the adoption of defendant No.1 is to be treated as invalid would not be the original plaintiff inasmuch there was another heir who could have claimed a better title in such a situation, namely, one Chouthamal Sharma, the son of one of the brother’s of Sitaram. No such challenge was made by the aforesaid legal heir who had a better/preferential claim.In view of the above position demonstrated by the evidence on record the High Court was fully justified in not entering into the issue of validity of the adoption of defendant No.1 or the gift deed executed in his favour by Gomati as the said issues had become redundant/inconsequential for the reasons noted above. 22. For all the aforesaid reasons and in the light of what has been found and stated as above, we have to hold that these appeals are without any merit. Accordingly, the order of the High Court is affirmed and the present appeals are dismissed. However, there will be no order as to costs.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL  NOS. 8609-8610 OF 2009


Om Prakash Sharma @ O.P. Joshi                  ...      Appellant (s)

                                   Versus
Rajendra Prasad Shewda & Ors.                      ...    Respondent(s)


                               J U D G M E N T

RANJAN GOGOI, J.

   The suit property comprises of land and building covered by  holding  No.
L-395 on the Thana Lane within the Purulia Municipality,  District  Purulia,
West Bengal.

 The following genealogical table may be set out  for  ready  reference  and
clarity of the facts that will be required to be noticed.





                     Jagannath Joshi  =        Moni Debi
                     (Died October 1953)          (Died August 1963)
                        ____________________________
                            ¦                                              ¦

Brijlal Shewda = Gomati Debi           Sitaram Joshi=Kishori Debi Joshi
                            (Daughter)      (adopted  son-1942)    (Original
plaintiff)
                              (Died    1967)                  (Died    1946)
(Married to Sitaram in 1945)
                                                       (Since deceased)
                 ¦                                       ¦
      Rajendra Pd. Shewda                       Om Prakash Sharma @ Joshi
      (allegedly adopted son)                     (adopted son)
      (Respondent No.1)                            (Petitioner No.1)



According to the original plaintiff, Kishori Debi Joshi,  (since  deceased),
the suit property was purchased by Jagannath Joshi with  his  funds  in  the
name of his wife Moni Debi. Moni Debi, according to the plaintiff,  was  the
name lender though in the Municipal and Land Revenue records   the  name  of
Moni Debi was entered as the owner of the suit property.  The  said  entries
were a mere pretence. The plaintiff further pleaded that she is the wife  of
one Sitaram Joshi who was adopted by Jagannath Joshi and Moni  Debi  in  the
year 1942. After the marriage of Sitaram Joshi and  the  deceased  plaintiff
Kishori Debi Joshi in the year 1945, Sitaram Joshi died a few months  later.
According to the plaintiff, Jagannath Joshi the owner of the  suit  property
died in the year 1953 and on his  death,  one  half  of  the  suit  property
devolved on his wife Moni Debi  and  the  remaining  half  on  the  deceased
plaintiff as the  widow  of  the  predeceased  son.  The  plaintiff  further
pleaded that Moni Debi died in the year 1963  and  on  her  death  her  half
share in the suit property devolved on her  daughter  Gomati  Debi.  On  the
death of Gomati Debi in the  year  1967  her  half  share  in  the  property
devolved  on   the   original/deceased   plaintiff   Kishori   Debi   Joshi.
Accordingly, the plaintiff became the absolute  owner  of  the  entire  suit
property. In this regard, the  plaintiff  further  pleaded  that  respondent
No.1 Rajendra Prasad Shewda who claimed to be  the  adopted  son  of  Gomati
Debi had no basis to make any such claim as no such adoption took place.

4.    The defendant, in the written statement filed, disputed the  claim  of
the plaintiff and asserted that though the suit property was purchased  with
the funds of Jagannath Joshi the said purchase was made for the  benefit  of
Moni Debi in order to provide her with the necessary security in life as  at
that point of time a Hindu widow was  not  entitled  to  full  ownership  of
property owned by a Hindu male  following  his  death.  The  defendant  also
disputed the claim of the original plaintiff  that  Sitaram  Joshi  was  the
adopted son of Jagannath and Moni Debi and in this regard had asserted  that
there was no valid adoption, as claimed. According to the defendant  on  the
death of Moni Debi in August  1963  the  entire  property  devolved  on  her
daughter Gomati Debi  and  upon  the  death  of  Gomati  Debi  the  property
devolved on the defendant No.1 Rajendra Prasad Shewda who  was  the  adopted
son of Gomati Debi. In this regard the defendant had  also  pleaded  that  a
gift deed was executed by Gomati Debi during her life time in favour of  her
adopted son i.e. defendant No.1.

5.    The learned trial court, on the evidence adduced before it,  took  the
view that the property belonged to  Jagannath  and   that  the  adoption  of
Sitaram Joshi, predeceased husband of the original plaintiff, was legal  and
valid. The learned trial  court,  therefore,  held  that  on  the  death  of
Jagannath Joshi in 1953 the suit property devolved in equal  proportions  on
Moni Debi and the original plaintiff who was the widow  of  the  predeceased
son. Thereafter, according to the learned trial court, on the death of  Moni
Debi her half share in the property  devolved  on  Gomati  Debi.  The  trial
court further held that on the death of Gomati Debi in  the  year  1967  her
half share in the property devolved  on  her  adopted  son  defendant  No.1.
Accordingly, the plaintiff as well  as  respondent  No.1  were  held  to  be
entitled to equal shares in the suit property.

6.    The defendant No.1 appealed  against  the  said  order   to  the  High
Court. The original plaintiff filed cross objections  against  the  part  of
the decree which according  to  her  denied  her  full  share  in  the  suit
property. During the pendency of the appeal, the original plaintiff  Kishori
Debi Joshi died and she was  substituted  by  her  adopted  son  Om  Prakash
Sharma who is the appellant before us.

7.    The High Court, on an exhaustive consideration of the  issues  arising
for consideration and the facts and materials on  record,  by  the  impugned
judgment and  order  dated  4.11.2008,  came  to  the  conclusion  that  the
purchase of the property by Jagannath was not a  benami  purchase  and  that
Moni Debi for whose benefit the property was purchased was  the  real  owner
thereof. The High Court further held that the adoption of Sitaram Joshi  was
not proved and therefore on the death of Moni Debi in 1963 the  entire  suit
property had devolved on her daughter Gomati Debi. The High  Court  did  not
consider it necessary to go into the issue of validity of  the  adoption  of
the defendant No.1 Rajendra Prasad Shewda or the legality of the  gift  deed
executed in his favour by Gomati Debi inasmuch as on  the  death  of  Gomati
Debi in the year 1967 the original plaintiff had no subsisting right to  the
property. In this regard it must  be  noticed  that  the  said  finding  was
recorded by the High Court on the basis  that  though  the  husband  of  the
original plaintiff  Sitaram Joshi was  not  the  adopted  son  of  Jagannath
Joshi, the said Sitaram Joshi was the nephew of  Jagannath  (brother’s  son)
and as the wife of the nephew of Jagannath the original  plaintiff  did  not
come within the arena of consideration of being a heir legally  entitled  to
succeed to the property of Moni Debi.   This was  so  found  as  there  were
other legal heirs who had  a  better/preferential  right.   Accordingly  the
appeal filed by the defendant No. 1 was  allowed  and  the  cross-objections
filed by the plaintiff were dismissed.  Aggrieved the present  appeals  have
been filed by the plaintiff.
8.    Three questions, delineated below, arise  for   consideration  in  the
present appeals -
1)   Did the suit property belong to Jagannath Joshi or his wife Moni  Debi?

2)    Whether Sitaram Joshi was the legally adopted son of  Jagannath  Joshi
and Moni Debi.?
3)    Whether defendant No.1 Rajendra Prasad Shewda was the legally  adopted
son of Gomati Debi and whether the gift deed  executed  by  Gomati  Debi  in
favour of defendant No.1 was legal and valid?

9.    We have heard Shri Pranab  Kumar  Mullick,  learned  counsel  for  the
appellant  and  Shri  M.N.  Krishnamani,  learned  senior  counsel  for  the
respondents.

10.   The purchase of property by a husband in the name of  his  wife  is  a
specie of Benami purchase that had been prevalent  in  India  since  ancient
times.  Such a practice appears to have been prevalent  on  account  of  the
position of Hindu women to succession  until  the  enactment  of  the  Hindu
Succession Act and the amendments made thereto from time  to  time.    In  a
situation where a Hindu widow had a limited  right  to  the  estate  of  the
deceased husband under the Hindu Women’s Right to Property  Act,  1937,  the
purchase of immovable property by a husband in  the  name  of  the  wife  in
order to provide the wife with a secured life in the event of the  death  of
the husband was an acknowledged and accepted feature of  Indian  life  which
even finds recognition in the explanation clause to Section 3 of the  Benami
Transactions (Prohibition) Act, 1988. This is  a  fundamental  feature  that
must be kept in  mind  while  determining  the  nature  of  a  sale/purchase
transaction of immoveable property by a husband in  the  name  of  his  wife
along with other facts and circumstances which has to be taken into  account
in determining what essentially is a question of fact, namely,  whether  the
property has been purchased Benami. The “other” relevant circumstances  that
should go into the process of determination of  the  nature  of  transaction
can be found in Jaydayal Poddar (Deceased) through L. Rs. &  Anr.  vs.  Mst.
Bibi Hazra & Ors.[1] which may be usefully extracted below :-
“6.   It is well settled that the burden of proving that a  particular  sale
is benami and the apparent purchaser is not the real owner, always rests  on
the person asserting it to be so. This burden has to be strictly  discharged
by adducing legal evidence  of  a  definite  character  which  would  either
directly prove the fact of benami or establish circumstances unerringly  and
reasonably raising an inference of that fact. The essence  of  a  benami  is
the intention of the party or  parties  concerned;  and  not  unoften,  such
intention is shrouded in  a  thick  veil  which  cannot  be  easily  pierced
through. But such difficulties do  not  relieve  the  person  asserting  the
transaction to be benami of any part of the serious onus that rests on  him;
nor justify the acceptance of mere conjectures or surmises, as a  substitute
for proof. The reason is that a deed  is  a  solemn  document  prepared  and
executed after considerable deliberation, and the person expressly shown  as
the  purchaser  or  transferee  in  the  deed,  starts  with   the   initial
presumption in his favour that the apparent state of  affairs  is  the  real
state of affairs. Though the question, whether a particular sale  is  benami
or not, is largely one of  fact,  and  for  determining  this  question,  no
absolute formulae or acid test, uniformly applicable in all situations,  can
be laid down; yet in  weighing  the  probabilities  and  for  gathering  the
relevant indicia, the Courts are usually guided by these circumstances:  (1)
the  source  from  which  the  purchase  money  came;  (2)  the  nature  and
possession of the property, after the purchase;  (3)  motive,  if  any,  for
giving the transaction a benami colour; (4) the position of the parties  and
the relationship, it any, between the claimant and  the  alleged  benamidar;
(5) the custody of the title-deeds after the sale and  (6)  the  conduct  of
the parties concerned in dealing with the property after the sale.

 The above indicia are not exhaustive and their  efficacy  varies  according
to the facts of each case. Nevertheless No. 1 viz. the  source,  whence  the
purchase money came, is by far  the  most  important  test  for  determining
whether the sale standing in the name of one person, is in reality  for  the
benefit of another” (Emphasis is ours)

11.   The reiteration of the aforesaid principles has been made in  Binapani
Paul vs. Pratima Ghosh & Ors.[2]. The relevant part of the  views  expressed
(Paras 26 and 27) may be profitably recollected at this stage.
“26. The learned counsel for both the parties have relied on a  decision  of
this Court in Thakur Bhim Singh v. Thakur Kan  Singh  wherein  it  has  been
held that the true character of a transaction is governed by  the  intention
of the person who contributed the purchase money  and  the  question  as  to
what his intention was, has to be decided by:

(a) surrounding circumstances,
(b) relationship of the parties,
(c) motives governing their action in bringing about the transaction, and
(d) their subsequent conduct.

27. All the four factors stated may have to be considered cumulatively.  The
relationship between the parties was husband and  wife.  Primary  motive  of
the transaction was security for the wife and seven minor daughters as  they
were not protected by  the  law  as  then  prevailing.  The  legal  position
obtaining at the relevant time may be considered to  be  a  relevant  factor
for proving peculiar circumstances existing and the  conduct  of  Dr.  Ghosh
which  is  demonstrated  by  his  having  signed  the  registered  power  of
attorney.”


12.   Applying the aforesaid principles to the facts of the present case  we
find  that  the  High  Court  was  perfectly  justified  in  coming  to  the
conclusion that the property though purchased from the  funds  of  Jagannath
was really for the benefit of his widow Moni Debi and  therefore  Moni  Debi
was the real owner of the property. In this regard the entries of  the  name
of Moni Debi in Municipal and  Land  Revenue  records;  the  fact  that  the
brothers of Jagannath were no longer alive (according to the  plaintiff  the
property was purchased by Jagannath in the name of his wife to  protect  the
same from his brothers) are relevant facts  that  have  been  rightly  taken
into account by the High Court. The fact that the property  was  managed  by
Jagannath which fact accords with the practice prevailing in a Hindu  family
where the husband normally looks after  and  manages  the  property  of  the
wife, is another relevant circumstance that was taken note of  by  the  High
Court to come to the conclusion that all  the  said  established  facts  are
wholly consistent with the ownership of the property by Moni Debi.  In  fact
the aforesaid view taken by the High Court finds adequate support  from  the
views expressed by this Court in Kanakarathanammal vs. S.Loganatha  Mudaliar
& Anr.[3] the relevant part of which is extracted below :
“It is true that the actual management of  the  property  was  done  by  the
appellant's father; but that would inevitably be so  having  regard  to  the
fact that in ordinary Hindu families, the property belonging exclusively  to
a female member would also  be  normally  managed  by  the  Manager  of  the
family; so that the fact that appellant's mother did not  take  actual  part
in  the  management  of  the  property  would  not  materially  affect   the
appellant's case that the property belonged to  her  mother.  The  rent  was
paid by the tenants and  accepted  by  the  appellant's  father;  but  that,
again, would be consistent with what ordinarily happens in such  matters  in
an undivided Hindu family. If the property  belongs  to  the  wife  and  the
husband manages the property on her behalf, it  would  be  idle  to  contend
that the management by the husband of the properties  is  inconsistent  with
the title of his wife to the said properties. What we have  said  about  the
management of  the  properties  would  be  equally  true  about  the  actual
possession of the properties, because even if the wife was the owner of  the
properties, possession  may  continue  with  the  husband  as  a  matter  of
convenience. We  are  satisfied  that  the  High  Court  did  not  correctly
appreciate the effect of the several  admissions  made  by  the  appellant's
father in respect of the title of his wife  to  the  property  in  question.
Therefore, we hold that the property had been purchased by  the  appellant's
mother in her own name though the consideration which was paid  by  her  for
the  said  transaction  had  been  received  by  her  from   her   husband.”
(Underlining is ours)


13.   On the basis of the above, we have no  reason  to  disagree  with  the
conclusion of the High Court that  the  property  was  owned  by  Moni  Debi
although consideration money for the same may have been  made  available  by
her husband, Jagannath.

14.   The next question to  be  decided  is  the  legality/validity  of  the
adoption of Sitaram, the husband of the original plaintiff,  as  claimed  by
the plaintiff in the suit. This Court,  almost  over  5  decades  back,  had
sounded a note of caution to be followed by courts while  deciding  a  claim
of adoption in the following terms :
“As an adoption results in changing  the  course  of  succession,  depriving
wives  and  daughters  of  their  rights  and  transferring  properties   to
comparative strangers or more remote relations  it  is  necessary  that  the
evidence to support it should be such that it is free from all suspicion  of
fraud and so consistent and probable as to leave no  occasion  for  doubting
its truth.”[4]

15.   Reiterating the above view in Rahasa Pandiani by L.  Rs.  &  Ors.  vs.
Gokulananda Panda & Ors.[5], this Court went on to  further  dilate  on  the
matter in the following terms :

“When the plaintiff relies on oral evidence in support of the claim that  he
was adopted by the adoptive father in accordance with the Hindu  rites,  and
it is not supported by any registered document to  establish  that  such  an
adoption had really and as a matter of fact taken place, the  court  has  to
act with a great deal of caution and circumspection.  Be  it  realized  that
setting up a spurious adoption  is  not  less  frequent  than  concocting  a
spurious will, and equally, if not more difficult to unmask. And  the  court
has to be extremely alert and vigilant to guard against  being  ensnared  by
schemers who indulge  in  unscrupulous  practices  out  of  their  lust  for
property. If there are any suspicious circumstances, just as the  propounder
of the will is obliged to dispel the cloud of suspicion, the  burden  is  on
one who claims to have been adopted to dispel  the  same  beyond  reasonable
doubt. In the case of an adoption which is not  supported  by  a  registered
document or any  other  evidence  of  a  clinching  nature  if  there  exist
suspicious circumstances, the same must be explained to the satisfaction  of
the conscience of the court by the party contending that there was  such  an
adoption. Such is the position as an adoption would divert  the  normal  and
natural course of succession. Experience of life shows that  just  as  there
have been spurious claims  about  execution  of  a  will,  there  have  been
spurious claims about  adoption  having  taken  place.  And  the  court  has
therefore to be aware of  the  risk  involved  in  upholding  the  claim  of
adoption if there are circumstances which arouse the suspicion of the  court
and the  conscience  of  the  court  is  not  satisfied  that  the  evidence
preferred to support such an adoption is beyond reproach.”

16.   It is keeping in mind the  above  principles  that  we  will  have  to
proceed in the present matter.

17.   The plaintiff herself alongwith one  Rukmini  Joshi  (PW  2)  are  the
witnesses who have testified in support of the claim of adoption of  Sitaram
by Jagannath. The testimony of the aforesaid two witnesses are sought to  be
corroborated by the statements of three other persons (since  deceased)  who
had deposed on the subject in another suit being R.S. No.206/1967  filed  by
defendant No.1 against one of the tenants in occupation of  a  part  of  the
suit property. The aforesaid three  witnesses  i.e.  Neth  Ram  Khedia,  Sib
Prasad Rajgoria and Sadayee Devi have deposed in  the  aforesaid  suit  that
Sitaram had been adopted by Jagannath.



18.   Besides the above evidence there is a letter dated  20.7.1945  written
on the letterhead of M/s.  Bisandayal  Ramjiwan  (Exb.2)  by  one  Jagannath
Sitaram. It is urged on behalf of the plaintiff that the  said  letter  sent
from Purulia shows that Sitaram was the adopted  son  of  Jagannath  as  the
sender of the letter has been described as Jagannath Sitaram.


19.   A consideration of the evidence of  PW-2  Rukmini  Joshi  as  a  whole
leaves us  satisfied  that  in  view  of  certain  inherent  inconsistencies
therein the testimony of the said  witness  is  not  worthy  of  acceptance.
Specifically, PW-2 though had stated  that  the  adoption  of  Sitaram  took
place 40 years back she  could  not  recollect  her  own  age;  she  had  no
recollection of number of years prior to the adoption when she  got  married
and was unable to recall when her sons got  married  and  most  surprisingly
the age of her elder son at the time of his marriage;  the  present  age  of
the elder son or even the present calendar year. The evidence of  the  three
witnesses examined in R.S. No. 206/1967 (Ext. 17,  17A  and  17C)  would  be
inadmissible under Section 32(5) & (6) of the Evidence Act  inasmuch  as  on
the date when the said evidence was recorded the controversy with regard  to
the adoption of Sitaram had already occurred. The  aforesaid  question  i.e.
admissibility of the evidence in question would  stand  concluded  by  views
expressed  by  this  Court  in  Kalindindi  Venkata  Subbaraju  &  Ors.  Vs.
Chintalapati Subbaraju & Ors.[6] wherein in Para 12 (quoted below),  it  has
been clearly laid down that,  “in  order  to  be  admissible  the  statement
relied on must be made ante litem motam by persons who are dead i.e.  before
the commencement of any controversy actual or legal upon  the  same  point.”
In the same backdrop  the  principle  of  ante  litem  motam  as  stated  in
Halsbury’s Laws of England, 3rd Edn. Vol.15 p.308 has also been noticed.

“12. As regards the written statement  of  Surayamma  the  position  of  her
declaration therein is somewhat different. Both  sub-sections  5  and  6  of
Section 32, as aforesaid,  declare  that  in  order  to  be  admissible  the
statement relied on must be made ante litem motam by persons  who  are  dead
i.e. before the commencement of any controversy actual  or  legal  upon  the
same point. The words “before the question  in  issue  was  raised”  do  not
necessarily mean before it was raised in the particular litigation in  which
such a statement is sought to be  adduced  in  evidence.  The  principle  on
which this restriction is based is succinctly stated in Halsbury's  Laws  of
England, 3rd Ed. Vol. 15, p. 308 in these words:
“To obviate bias the declarations are required to have been made ante  litem
motam which means not merely before the commencement  of  legal  proceedings
but before even the existence  of  any  actual  controversy  concerning  the
subject-matter of the declarations”.



20.   The letter dated 20.7.1945 (Exb.2) does not  lead  to  any  clear/firm
conclusion with regard to the adoption  of  Sitaram  and  had  been  rightly
discarded by the High Court. In the above conspectus of facts  the  evidence
of the plaintiff regarding the adoption of her husband stands  isolated  and
cannot, on its own, sustain a positive conclusion that her  husband  Sitaram
was adopted by Jagannath. If the suit property was owned by  Moni  Debi  and
not by Jagannath and Sitaram was not  the  adopted  son  of  Moni  Debi  and
Jagannath it must be held that the suit property devolved on Gomati  on  the
death of Moni Debi. The claim of the defendant No.1 to be  the  adopted  son
of Gomati could have been challenged only by such legal heirs  on  whom  the
property would have devolved following the death of Gomati in the event  the
adoption of the defendant No. 1 is  to  be  held  to  be  invalid.  In  this
context, the next legal heir who would have been entitled to succeed to  the
property of Gomati Debi if the adoption of defendant No.1 is to  be  treated
as invalid would not be the original plaintiff inasmuch  there  was  another
heir who could have claimed a better title in such a situation, namely,  one
Chouthamal Sharma, the son of one of the  brother’s  of  Sitaram.   No  such
challenge   was   made   by   the   aforesaid   legal   heir   who   had   a
better/preferential claim.


21.   In view of the above position demonstrated by the evidence  on  record
the High Court was fully  justified  in  not  entering  into  the  issue  of
validity of the adoption of defendant No.1 or the gift deed executed in  his
favour by Gomati as the said  issues  had  become  redundant/inconsequential
for the reasons noted above.


22.   For all the aforesaid reasons and in the light of what has been  found
and stated as above, we have to hold that  these  appeals  are  without  any
merit. Accordingly, the order of the High Court is affirmed and the  present
appeals are dismissed. However, there will be no order as to costs.

                                            ..……..……......................J.
                                                      (RANJAN GOGOI)


                                             ….……..…….....................J.
                                                    (N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.

-----------------------
[1]    AIR 1974 SC 171 para 6
[2]    2007 (6) SCC 100
[3]    AIR 1965 SC 271
[4]    AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai]
[5]    AIR 1987 SC 962
[6]    AIR 1968 SC 947

the High Court while maintaining the conviction and sentence awarded for the lesser offences altered the conviction under Section 308/149 IPC to Section 325/149 IPC. The sentence of four years RI was also reduced to a period of one year. It is against the aforesaid order of the High Court that the appellants have filed the present appeal.Shri Ratnakar Dash, learned Counsel for the appellant, has argued that the State would truncate the scope of the present appeal and not question the correctness of the alteration of the conviction from Section 302 IPC read with Section 149 to Section 304 Part II/149 of the IPC. It is urged that the only question, therefore, would be the correctness of the sentence imposed on the accused respondents (period already undergone) following the alteration of their conviction to Section 304 Part II of the IPC. Shri Dash has submitted that the accused respondent had undergone custody for a period of about 2 ½ years and as the maximum sentence imposable under Section 304 Part II is 10 years the sentence awarded in the present case is grossly inadequate.. All that would be required to be noticed is that, though not specifically mentioned in the order of the High Court, the incident had occurred in the year 1997 and that death had occurred in the course of a mutual fight. The party of the complainant had also been tried for injuries caused to some of the present accused and have been found guilty and convicted under Section 325 IPC which conviction and the sentence imposed (One year RI) has been challenged in the connected appeal (Criminal Appeal No.207 of 2011). Taking into account all the said facts and the long efflux of time that has occurred, we are of the view that no interference with the sentence imposed by the High Court would be justified. Accordingly, we dismiss this appeal and affirm the order of the High Court.

                                 REPORTABLE

                          IN THE SUPREME COURT OF INDIA
                          CRIMINAL APPELLATE JURISDICTION
                         CRIMINAL APPEAL  NO. 207 OF 2011


Maqsood & Ors.                                ...  Appellant (s)

                                   Versus
State of U.P.                                          ...    Respondent(s)

                                  WITH

    CRIMINAL APPEAL NO.208 OF 2011


                               J U D G M E N T

RANJAN GOGOI, J.

Criminal Appeal No.207 of 2011

Out of the 8  appellants  who  have  filed  this  appeal  challenging  their
conviction, inter alia, under Section 325 IPC as made by the High  Court  by
the impugned judgment and order dated 21.05.2010, the appellant Nos.2 and  6
(Shakeel and Haneef) have died during the pendency of  the  present  appeal.
We will, therefore, be concerned with the case of the  remaining  appellants
before us.

The learned  trial  court  had  convicted  the  appellants  under  different
provisions of the Indian  Penal  Code  including  Section  308  thereof  and
sentenced the accused appellants to undergo RI  for  a  period  of  4  years
under the aforesaid section of the Code. In appeal,  the  High  Court  while
maintaining the conviction and sentence  awarded  for  the  lesser  offences
altered the conviction under Section 308/149 IPC  to  Section  325/149  IPC.
The sentence of four years RI was also reduced to a period of one  year.  It
is against the aforesaid order of the High Court that  the  appellants  have
filed the present appeal.


We have heard Shri Siddhartha Dave learned counsel for  the  appellants  and
Shri Ratnakar Dash, learned senior counsel for the respondent.

Learned counsel for the appellants  has  vehemently  argued  that  the  acts
committed by the accused appellants were in the exercise of their  right  of
self defence inasmuch as the complainant party which  had  comprised  of  as
many as 8 persons had come to assert their right over the  Gher  (open  area
of land), ownership  and  possession  of  which  was  disputed  between  the
parties. On  the  said  basis  it  is  contended  that  no  offence  can  be
attributed to the accused on account of the overt acts  committed  by  them,
the same being in exercise of their right of self  defence.   Alternatively,
it is argued that if this Court is to hold that the accused  appellants  are
guilty of commission of the offences in question the said  offences  may  be
compounded and the accused may  be  directed  to  pay  compensation  to  the
injured. Additionally, it is urged that the provisions  of  Section  360  of
the Cr. P.C. may  be  invoked  and  while  maintaining  the  conviction  the
accused may be released on probation of good conduct.


The arguments advanced on behalf of the appellants  have  been  resisted  by
the learned counsel appearing for the State who contends  that  the  benefit
of right of private defence would not be available to the  accused  inasmuch
as both parties had come to  the  disputed  Gher  and  there  was  a  mutual
altercation leading to a free fight between the two groups.  The above is  a
 finding of fact recorded by the learned trial court  and  affirmed  by  the
High Court. Learned counsel for the respondent has urged  that  the  offence
under Section 325 IPC being grave and the sentence imposed (one year RI)  by
the High Court being sufficiently lenient,  in  the  facts  of  the  present
case, the provisions of neither Section 320 or Section 360  Cr.  P.C.  ought
to be invoked.

We have considered the submissions advanced on behalf  of  the  parties.  We
have also looked into the evidence and materials on record. The trial  court
and the High Court have concurrently held that  the  injuries  sustained  by
P.W.2 Musharraf and P.W.1 Ameer Ahmed have been caused  by  the  accused  in
the course of a mutual fight. The said finding of fact is supported  by  the
evidence and materials on  record.  This  Court,  therefore,  will  have  no
occasion to arrive at any contrary  finding.  What  would  follow  from  the
above is that  the  accused  persons  must  be  held  liable  for  the  acts
committed and the consequential injuries suffered by  P.W.2.  Musharraf  and
P.W.1 Ameer Ahmed.

We have considered the medical evidence on record  which  shows  that  P.W.2
Musharraf, had suffered a fracture injury which would bring the same  within
the expression “grievous hurt” as appearing  in  Section  320  of  the  IPC.
Punishment for the said offence would therefore be covered  by  Section  325
IPC which contemplates a period  of  imprisonment  upto  7  years  alongwith
fine. Having regard to the above, the  punishment  of  imprisonment  of  one
year imposed by the  High  Court,  in  our  view,  is  lenient  enough  and,
therefore, will not justify our interference. The injured Musharraf  (P.W.2)
and Ameer  Ahmed  (P.W.1)  who  are  represented  in  the  connected  appeal
(Criminal Appeal No.208 of 2011) are not willing to compound the offence  in
question. It is also our considered view that the present case is devoid  of
any special circumstance which would justify invocation  of  the  provisions
of Section 320 of the Criminal Procedure Code  or  the  release  of  accused
appellants on probation by invoking the provisions of Section 360 Cr. P.C.

For the aforesaid reasons, we find no merit in  this  appeal.   Consequently
the same is dismissed and the order of the High Court is affirmed.

Criminal Appeal No.208 of 2011 –

9.    This appeal is filed by  the  State  against  the  alteration  of  the
conviction of the accused respondents under Section 302/149 IPC  to  Section
304 Part II read with Section 149 IPC  as  well  as  the  reduction  of  the
sentence of life imprisonment to the period  of  custody  undergone  by  the
accused which is about 2 ½ years. There are  certain  other  offences  under
the Code for which the accused respondents have been found guilty  and  have
been accordingly convicted and sentenced. However, the  same  would  not  be
very significant and it is the conviction under Section 304 Part II and  the
sentence imposed which may be treated as the principal offence.

10.   Shri Ratnakar Dash, learned Counsel  for  the  appellant,  has  argued
that the State would truncate the  scope  of  the  present  appeal  and  not
question the correctness of the alteration of the  conviction  from  Section
302 IPC read with  Section 149 to Section 304 Part II/149 of  the  IPC.   It
is urged that the only question, therefore, would be the correctness of  the
sentence imposed on  the  accused  respondents  (period  already  undergone)
following the alteration of their conviction to Section 304 Part II  of  the
IPC.  Shri Dash has submitted that  the  accused  respondent  had  undergone
custody for a period of  about  2  ½  years  and  as  the  maximum  sentence
imposable under Section 304 Part II is 10 years the sentence awarded in  the
present case is grossly inadequate.

11.   For the purpose of deciding the above contention  advanced  on  behalf
of the State it is not necessary for us to enter into a detailed  discussion
on the nature of the sentencing  power  and  the  principles  governing  its
exercise  as  also  the  parameters  for  interference  in   the   case   of
inappropriate sentencing. All that would be required to be noticed is  that,
though not specifically mentioned in  the  order  of  the  High  Court,  the
incident had occurred in the year 1997 and that death had  occurred  in  the
course of a mutual fight. The party of the complainant had also  been  tried
for injuries caused to some of the  present  accused  and  have  been  found
guilty and  convicted  under  Section  325  IPC  which  conviction  and  the
sentence imposed (One year RI) has been challenged in the  connected  appeal
(Criminal Appeal No.207 of 2011).  Taking into account all  the  said  facts
and the long efflux of time that has occurred, we are of the  view  that  no
interference  with  the  sentence  imposed  by  the  High  Court  would   be
justified.   Accordingly, we dismiss this appeal and  affirm  the  order  of
the High Court.


                                            ..……..……......................J.
                                                       (RANJAN GOGOI)



                                             ….……..…….....................J.
                                                      (N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.

Un Registered Relinquishment Deed - Effects = It is well settled that the nomenclature given to the 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 Exhibits 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 registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable 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 Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition. whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance. 19. Accordingly, Civil Appeal is partly allowed holding that Exhibits B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy.

REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION



                CIVIL APPEAL NO.   8441              OF 2015
                               ARISING OUT OF
             SPECIAL LEAVE PETITION (CIVIL) NO.  12788   OF 2014


      YELLAPU UMA MAHESWARI & ANR.             ...APPELLANTS
                                   VERSUS
      BUDDHA JAGADHEESWARARAO & ORS.  ...RESPONDENTS


                               J U D G M E N T
N.V. RAMANA, J.
      Leave granted.

2.    This Appeal has been preferred aggrieved by the orders passed  by  the
High Court of Judicature of Andhra Pradesh in CRP  No.  3419  of  2013,  dt.
27/12/2013 wherein and whereby the learned Judge has dismissed the  Revision
Petition preferred by the Appellants/Defendant Nos. 1 & 2 by confirming  the
orders passed in O. S No.  10  of  2004,  dt.  08/07/2013  on  the  file  of
Principal Senior Civil Judge, Anakapalle.

3.    The brief facts which  are  necessary  for  adjudicating  the  dispute
involved in the present appeal, in nutshell, are as follows.

4.    The 1st respondent/plaintiff filed O.S No. 10 of 2004 on the  file  of
Senior Civil Judge Court, Anakapalle against the appellants and  others  for
the relief of partition claiming ¼th  share in Item No. 1, ½ share  in  Item
No. 2 of the suit schedule properties.

5.    It is the  specific  case  of  the1st  respondent/plaintiff  that  one
Jaggayya, who is the foster father of the plaintiff,  had  acquired  certain
properties  during  his  life  time  and  executed  a  Registered  Will  dt.
22/05/1964 in a sound and disposing state of mind bequeathing his  immovable
properties   in    favour    of    the    plaintiff/respondent    and    1st
defendant/appellant No.1 by  giving  life  estate  in  favour  of  his  wife
Mahalakshmamma, and the said Mahalakshmamma  died  on  20/05/2001,  as  such
plaintiff/respondent No.1 and the  defendant  Nos.1  &  2/appellants  became
entitled to the plaint Schedule properties in equal shares. On  his  demand,
when the defendants failed to partition the properties  by  giving  him  his
legitimate right, he has approached the Court by filling the above suit.

6.    The appellants herein (Defendant Nos.1 & 2)   resisting  the  plea  of
the plaintiff/respondent No.1 filed the  written  statement  that  appellant
No.   1   being   the   sister’s   daughter   of   Mahalakshamma   and   the
plaintiff/respondent No. 1 who is the sister’s son  of  late  Jaggayya  were
treated as foster son and daughter as Jaggayya had no issues.  In  the  year
1969   properties   were    partitioned    between    the    parties.    The
plaintiff/respondent No. 1, in spite of having his share in the  properties,
taking advantage of appellant No.1’s innocence and helplessness,  has  taken
other properties which are not allotted to  him,  having  no  other  go  she
(appellant No.1) kept quiet. According to the  defendants/appellants,  after
the  partition  they  have  been  enjoying  the  properties  fell  to  their
respective  shares.  It  is   their   further   case   that   on   05-6-1975
plaintiff/respondent No.1  and  the  first  defendant/appellant  No.  1  got
executed  the  Deed  of  Memorandum   of   earlier   partition.   Both   the
plaintiff/respondent No.1 and the 1st defendant/appellant  No.1  were  given
pattadar passbooks and title deeds in respect of properties  fell  to  their
share and in fact, the plaintiff/respondent No.1 has alienated some  of  his
properties. Mahalakshsamma in a sound and disposing state of  mind  executed
a Registered Will dated 27/03/1999 bequeathing all the properties in  favour
of 1st defendant/appellant No.1.  Further, Mahalkshamma has given  away  her
life  estate  in  favour  of   appellant   No.1/defendant   No.1   and   the
plaintiff/respondent No.1.  Hence, it is pleaded  that  as  properties  were
already partitioned in the year 1969, the  question  of  again  partitioning
the properties does not arise and sought for dismissal of the Suit.
7.     The  appellant  No.1/defendant  No.1  filed  her  chief   examination
affidavit and sought to mark Exhibits B1 to  B  48.The  plaintiff/respondent
No.1 raised objection with regard to admissibility of Exhibits B-21  and  B-
22. Exhibit B-21, dated 05/06/1975 according to the  defendant/appellant  is
Deed  of  Memorandum  witnessing  earlier  partition  effected  between  the
plaintiff/respondent No.1 and the defendant  No.1/appellant  No.1.   Exhibit
B-22 is the Agreement dated 04/06/1975 entered between Late  Mahalakshammma,
plaintiff/respondent No.1  and the defendant  No.1/appellant No.1.
8.       The  plaintiff/respondent  No.1  took  objection  with  regard   to
admissibility of   Exhibits B-21 and B-22 on the ground that whole  contents
referred to in the Memorandum dated  05/6/1975  discloses  that  the  second
party  thereto  relinquished  her  right   through   the   said   documents.
Therefore, the Agreement dated 04/06/1975 and  Memorandum  dated  05/06/1975
have to be construed as relinquishment deeds.  A relinquishment  deed  which
is compulsorily registerable document under Sec 17 (b) of  the  Registration
Act, 1908  and  hence,  the  unregistered  document  is  not  admissible  in
evidence.  The plea of the defendants is  that  the  recitals  of  the  said
document discloses past transaction with reference to division  of  property
and further it discloses the intention  of  the  parties  to  enter  into  a
separate agreement for sharing the properties and  that  the  terms  therein
have to be implemented in future.
9.    Both the Trial Court and the High Court upheld  the  objection  raised
by the plaintiff/respondent No.1 and came to a conclusion that two  recitals
i.e. Exhibit B21 and Exhibit B22 are not evidencing  the  past  transaction,
but  they  prima  facie  disclose  the  partition  of   the   property   and
relinquishment of rights by one of the parties.   As  such,  both  documents
require stamp duty under the Indian Stamp Act, 1899 and  registration  under
the Registration Act, 1908. As Exhibits B21 and  B22  are  unregistered  and
unstamped documents, they are not admissible in evidence.  The  Trial  Court
gave a specific finding that even both the exhibits are not  admissible  for
collateral purpose also. Aggrieved by that, the present appeal is filed.

10.       We   have   heard   the   learned   senior   counsel    for    the
appellants/defendant  Nos.1&   2   and   the   learned   counsel   for   the
respondents/plaintiff.

11.     It is urged by the learned senior counsel Mr.  V.  V.  S.  Rao  that
Exhibits B21 and B22 are  admissible  in  evidence  as  both  the  documents
evidence the past transaction which does not require  any  registration  and
both the Courts below erred in coming to a conclusion that Exts B21 and  B22
require registration ignoring the true nature of the documents. It is  urged
that the amendment that is brought to the Registration Act in 1986,  whereby
even  the  past  transaction  becomes  registerable  and  the  same  is  not
applicable to Exhibits B21 and B22. It  is  further  urged  by  the  learned
senior counsel  that  even  assuming  that  Exhibits  B21  and  B22  require
registration, still the unregistered documents are  admissible  in  evidence
for collateral purpose.

12.    The  learned  counsel  Mr.  G.V.R.  Choudary,   appearing   for   the
respondents, on the other hand, has submitted that  the  Courts  below  were
perfectly right in coming to a conclusion that  Exhibits  B21  and  B22  are
compulsorily registerable documents and prayed for dismissal of the Suit.

13.   Now the issue that falls for consideration is:

Whether the Courts below were right in holding that  Exhibits  B21  and  B22
are not  admissible  in  evidence  as  they  are  compulsorily  registerable
documents?

Whether Exhibits B-21 and 22  are  admissible  in  evidence  for  collateral
purpose?

14.   Before we go in to the merits of the matter, we  deem  it  appropriate
to extract the relevant provisions of the Registration Act, 1908.

 Sec. 17 of the Registration Act, 1908

Documents of which  registration  is  compulsory.—       (l)  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 No. XVI of 1864, or the Registration  Act,  1866,  or
the Registration Act, 1871, or the Registration Act, 1877, or this Act  came
or comes into force, namely:—

(a)    Instruments of gift of immovable property;

(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;

(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

(d)   leases of immovable property;

(e)  non-testamentary instruments transferring or assigning  any  decree  or
order of a Court or any award when such 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:

(f)   any decree or order or award or a  copy  thereof  passed  by  a  Civil
Court on consent of the defendants or on circumstantial evidence but not  on
the basis of any instrument which is admissible in  evidence  under  section
35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title  deed
produced by the plaintiff, where such decree or order or award  purports  or
operate to create, declare, assign, limit, 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; and

(g)   agreement of sale of immovable property of the value  of  one  hundred
rupee and upwards”,

Provided that the State Government may, by order published  in  the Official
Gazette, exempt from the operation of this sub-section  any  lease  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.


Section 49 of the Registration Act,1908

Effect of non-registration of  documents  required  to  be  registered.—  No
document required by section 17 or by  any  provision  of  the  Transfer  of
Property Act, 1882 ( 4 of 1882), to be registered shall—

(a)   affect any immovable 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  immovable  property  and
required by this Act or the Transfer of Property Act, 1882 (4 of  1882),  to
be registered may be received as evidence  of  a  contract  in  a  suit  for
specific performance under Chapter-II of the Specific Relief  Act,  1877  (3
of 1877) or as evidence of any collateral transaction  not  required  to  be
effected by registered instrument.

15.    Section 17  (1)  (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
Act imposes bar on the admissibility of an unregistered document  and  deals
with the documents that are required to be registered u/s 17 of the Act.

16.    Coming to the facts on  hand,  the  defendant  No.1  wanted  to  mark
Exhibits B21 and B22, according to her, these two  documents  are  Agreement
and a Memorandum which were unregistered and unstamped documents and do  not
require registration. We have seen Exhibits B21 and  B22  which  are  placed
before us. Exhibit B22, dated 04/06/1975 as per the recitals,  an  Agreement
between the plaintiff/respondent No.1,  defendant  No.1/appellant  No.1  and
late MahaLakshmamma. Clause 1 of the Agreement speaks  about  relinquishment
of rights of Mahalakshmamma in favour  of  plaintiff/respondent  No.  1  and
defendant No.1/appellant No. 1 and Clause 4 specifies that the  life  estate
of Mahalakshamama is devolved upon the  plaintiff/respondent  No.1  and  the
defendant No.1/appellant No.1 equally. It  is  further  specified  that  the
stock amount of Rs 50,000/- in the shop  was  given  to  Mahalakashamma  and
left over amount will  be  divided  between  plaintiff/respondent  No.1  and
defendant  No.1/appellant  No.1  and  further  it  was  agreed   upon   that
Mahalakahamma was entitled to reside in the house where  she  was  residing.
She was at liberty to reside in the house of the plaintiff/respondent No.  1
and the plaintiff/respondent No.1  and  the  defendant  No.1/appellant  No.1
shall not raise  any  dispute  over  this.   Coming  to  Exhibit  B21,  date
05/06/1975    which    is    an     agreement     between     Mahalakashmma,
plaintiff/respondent No.1  and  defendant  No.1/appellant  No.1  wherein  at
Clauses 4 to 6 the recitals pertain to relinquishment of shares between  the
parties to the agreement. It is stated in the Memorandum, Ext.  B  22,  that
each of them having partitioned the properties by good  and  bad  qualities,
have been enjoying the respective properties that fell to their  shares,  in
proof thereof,  the Deed of Memorandum is executed. Taking  us  through  the
recitals of these  two  documents,  the  learned  senior  counsel  tried  to
impress upon this  Court  particularly  through  the  last  few  lines  from
Exhibit B-21, that these documents are only evidencing the past  transaction
of partition that has taken place but through these documents no  rights  in
immovable property have accrued to the parties as envisaged  under  Sec.  17
of the Registration Act and which makes these documents out of  the  purview
of Section 49 of the Registration Act.

17.      It is well settled that the nomenclature given to the  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 Exhibits 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  registerable  document  and  if  the  same  is  not
registered, becomes an inadmissible document as envisaged under  Section  49
of the Registration Act.  Hence, Exhibits B-21 and B-22  are  the  documents
which squarely  fall  within  the  ambit  of  section  17  (i)  (b)  of  the
Registration Act and hence are compulsorily registerable 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
Exhibits B 21 and B22 are not admissible in  evidence  for  the  purpose  of
proving primary purpose of partition.
18.     Then the next question  that  falls  for  consideration  is  whether
these can be used for any collateral purpose. The  larger  Bench  of  Andhra
Pradesh High Court in Chinnappa Reddy Gari  Muthyala  Reddy   Vs.  Chinnappa
Reddy Gari Vankat Reddy , AIR 1969  A.P. (242)  has  held  that  the   whole
process of partition contemplates three phases  i.e.  severancy  of  status,
division of joint property by metes and bounds and nature of  possession  of
various shares.  In a suit for partition, an unregistered  document  can  be
relied upon for collateral  purpose  i.e.  severancy  of  title,  nature  of
possession of various shares but not for the primary purpose  i.e.  division
of joint properties by metes and bounds.  An  unstamped  instrument  is  not
admissible in evidence even  for  collateral  purpose,  until  the  same  is
impounded. Hence, if the appellants/defendants want to mark these  documents
for collateral purpose it is open for them to pay the  stamp  duty  together
with penalty and get the document  impounded  and  the  Trial  Court  is  at
liberty to mark Exhibits B-21 and B- 22 for collateral  purpose  subject  to
proof and relevance.
19.    Accordingly, Civil Appeal is partly  allowed  holding  that  Exhibits
 B-21 and B-22 are admissible in evidence for collateral purpose subject  to
payment of stamp duty, penalty, proof and relevancy.

..................................J.
                                                              (RANJAN GOGOI)





……………................J.
                                                 (N.V. RAMANA)
New Delhi,
October 08, 2015

Disputes about entries in revenue records = The dispute relates to Plot Nos. 795, 796 and 903 situated in village Bahauddinpur, District Azamgarh. The said plots were admittedly recorded in the name of the respondent Nos. 3 and 4 in the basic year record. The names of the appellants were shown to be recorded in the possession column. In the consolidation proceedings, both the appellants and the respondents filed their objections. The appellants claimed their right over the land in question by virtue of their possession and entry in their favour in the revenue records. However, respondent Nos. 3 and 4 prayed for expunction of the names of the appellants who have been wrongly recorded. Oral and documentary evidence were filed before the Consolidation Officer in respect of respective cases. The Consolidation Officer, vide order dated 29.03.1974, allowed the petition filed by the respondent Nos. 3 and 4 herein and directed for expunction of the names of the present appellants which were shown to be in possession. Being aggrieved, the appellantsFrom the entire aforestated evidence, it is clear that the name of revisionists came in existence against land from 1358, 1359 crop year. It is the case of defendant that they are Seerdar from occupier on the basis of this possession prior to abolition of zamindari and entries available prior to abolition of zamindari does not prove the case of defendant because these are doubtful and not reliable.; The Assistant Settlement Officer (Consolidation), in his order, has held the possession of defendant continuously since 1354 crop year which is totally wrong and incorrect because the name of the defendant for the first time has come against L.Nos. 795, 796 in 1357 crop year and that too is in remarks column whereas the Sikmi Column is blank. Hence, had these entries correct, the name of defendant would have come in the column of Sikmi and not in the possession column. ;There is no such evidence that the defendant paid compensation to original cultivator after abolition of zamindari. Against this, the name of revisionists was entered on the basis of Form No. 101 which proves that compensation was paid to original cultivator. After abolition of zamindari, the name of defendant is found against L.No. in 1368 crop year whereas it is also doubtful and case of defendant is not on the basis of adverse possession as well. Hence, these entries also have no importance.=From the findings recorded by the Deputy Director, Consolidation, it is clear that those Khasra/Khatauni have been excluded in which there were over writings or some unwarranted entries. If that be the position, then the order passed by the Deputy Director, Consolidation holding that the contesting respondents acquired the right of Adhiwasi/Seerdars cannot be said to be based on re-appreciation of evidence afresh. It is only a case of examining the correctness and validity of the entries in the Khasra/Khatauni filed by the parties. this Court in Leela Rajagopal & Ors. vs. Kamala Menon Cocharan &Ors. 2014 (10) Scale 307 in para 14 has held that appreciation or re- appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising, jurisdiction under Article 136. For ready reference, para 14 is reproduced below:- “Before parting we would like to observe that the very fact that an appeal to this Court can be lodged only upon grant of special leave to appeal would indicate the highly circumscribed nature of the jurisdiction of this Court. In contrast to a statutory appeal, an appeal lodged upon grant of special leave pursuant to a provision of the Constitution would call for highly economic exercise of the power which though wide to strike at injustice wherever it occurs must display highly judicious application thereof. Determination of facts made by the High Court sitting as a first appellate court or even while concurring as a second appellate court would not be reopened unless the same give rise to questions of law that require a serious debate or discloses wholly unacceptable conclusions of fact which plainly demonstrate a travesty of justice. Appreciation or re-appreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising jurisdiction under Article 136.” 15) In view of the foregoing discussion, we are of the considered opinion that the impugned order passed by the High Court does not call for any interference hence the appeal fails and is accordingly dismissed. However, the parties shall bear their own costs.

                                                                  REPORTABLE


                         IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       1 CIVIL APPEAL NO. 3594 OF 2011



Ram Bahal & Anr.                                        .... Appellant(s)

            Versus

Deputy Director of Consolidation
Azamgarh & Ors.                              .... Respondent(s)


                                      2

                               J U D G M E N T
R.K. Agrawal, J.

1)    The present appeal has been filed against the order dated  28.07.2003,
passed by the High Court of Judicature at  Allahabad  in  Civil  Misc.  Writ
Petition No. 247 of 1997 whereby  the  High  Court  dismissed  the  petition
preferred by the appellants herein while confirming the order of the  Deputy
Director of Consolidation, Azamgarh  and  the  Consolidation  Officer  dated
11.11.1976 and 29.03.1974 respectively.
Brief Facts:
2)    The dispute relates to Plot Nos. 795, 796 and 903 situated in  village
Bahauddinpur, District Azamgarh.  The said plots  were  admittedly  recorded
in the name of the respondent Nos. 3 and 4 in the basic  year  record.   The
names of the appellants were shown to be recorded in the possession  column.
 In the consolidation proceedings, both the appellants and  the  respondents
filed their objections.  The appellants claimed their right  over  the  land
in question by virtue of their possession and entry in their favour  in  the
revenue records.  However, respondent Nos. 3 and 4 prayed for expunction  of
the names of the appellants  who  have  been  wrongly  recorded.   Oral  and
documentary evidence were filed before the Consolidation Officer in  respect
of  respective  cases.   The  Consolidation  Officer,   vide   order   dated
29.03.1974, allowed the petition filed  by  the  respondent  Nos.  3  and  4
herein and directed for expunction of the names of  the  present  appellants
which were shown to be  in  possession.   Being  aggrieved,  the  appellants
preferred an appeal  before  the  Settlement  Officer,  Consolidation.   The
Settlement Officer, Consolidation, vide order dated 15.12.1975, allowed  the
appeal and the appellants were permitted to be recorded as Seerdar over  the
land in dispute.  Aggrieved by the order dated 15.12.1975,  the  respondents
filed a revision before the  Deputy  Director,  Consolidation.   The  Deputy
Director  of  Consolidation,  vide  order  dated  11.11.1976,  allowed   the
revision and restored the judgment and order of  the  Consolidation  Officer
dated  29.03.1974.   The  order  dated  11.11.1976,  passed  by  the  Deputy
Director, Consolidation, as also the  order  of  the  Consolidation  Officer
dated 29.03.1974 were challenged by the present appellants before  the  High
Court.
3)    In the High Court, the appellants claimed  the  acquisition  of  their
rights on the basis of adverse possession which according to them have  been
properly  examined  by  the  Settlement  Officer,  Consolidation  and  after
assessing the material on record a clear finding of fact had  been  recorded
regarding continuous possession of the appellants and therefore, it  is  not
a case for interference  by  the  Deputy  Director,  Consolidation,  in  the
revisional jurisdiction under  Section  48  of  the  U.P.  Consolidation  of
Holdings Act.  Further, it was the case set up by the appellants that  there
was no perversity in the order of the Settlement Officer,  Consolidation  or
that it was based on no evidence and therefore the finding of fact  recorded
by the Settlement Officer, Consolidation could not have been  set  aside  by
the Deputy Director of Consolidation.
4)    It was further claimed that the Deputy Director of  Consolidation  was
not justified in reassessing the evidence and to give his own  findings  and
at the most, he could have remanded the matter to the Consolidation  Officer
for giving fresh findings.
5)    On the other hand, the claim of the contesting  respondents  was  that
as the Settlement Officer,  Consolidation  has  allowed  the  claim  of  the
appellants therein by taking erroneous approach of  the  facts  and  by  not
properly interpreting the entry  which  has  been  brought  on  record,  the
Deputy Director of Consolidation, had every authority to go into the  matter
and, on proper analysis and after appreciation of  the  entry,  to  disagree
with the order of the Settlement Officer, Consolidation.  It is not  a  case
of reassessment of evidence rather it is a case  of  correct  interpretation
of the revenue entry.  It was further submitted before the High  Court  that
in the Khatauni extract 1359 Fasli, the  contesting  respondents  have  been
shown in possession and therefore they became Adhiwasi and  Seerdar  of  the
land in dispute and so far possession of  the  appellants,  even  if  it  is
recorded, having not been proved to be in accordance with law,  they  cannot
get any right on the basis of adverse possession.  Even the entry in  favour
of  the  appellants  has  not  been  found  by   the   Settlement   Officer,
Consolidation to be continuous and in accordance with  law,  and  therefore,
the plea of adverse possession cannot be accepted.
6)    The High Court, after going through the evidence  on  record  came  to
the finding that the Settlement Officer, Consolidation has referred  to  the
arguments of the parties at quite length but  so  far  as  finding  part  is
concerned, has given a clear finding,  on  the  basis  of  the  entries,  in
favour of Ram Adhar and thereafter his sons became Seerdar of  the  land  in
dispute but not the appellants as Seerdar.   The  High  Court  further  held
that there is no finding by the Settlement Officer, Consolidation  that  the
entry in favour of the predecessors of the respondents is valid and  correct
and there is  also  finding  about  the  rights  of  the  respondents.   The
Consolidation Officer and the Deputy Director,  Consolidation  had  given  a
finding that the predecessors of respondents were recorded  as  sub  tenants
and by virtue of the  entry  in  their  favour,  they  became  Adhiwasi  and
Seerdar  which  has  not  been  disturbed   by   the   Settlement   Officer,
Consolidation.  The High Court came to the conclusion that  the  finding  in
favour of the appellants appears  to  have  been  given  by  the  Settlement
Officer, Consolidation on the premise that inspite of decree  in  favour  of
the respondents under Section 229-B of the U.P. Zamindari Abolition  &  Land
Reforms Act  (in  short  ‘the  Act’)  possession  was  not  taken  from  the
appellants.  By referring  the  order  passed  by  the  Deputy  Director  of
Consolidation, the High  Court  came  to  the  conclusion  that  the  Deputy
Director, Consolidation has not reappraised the evidence but it looked  into
the correctness and validity of the entries recorded in the  Khatauni  filed
by the respective parties.  He has referred to  each  and  every  entry  and
because there was  over  writing  in  some  of  the  entries,  the  Khatauni
containing over writings  was  discarded.   The  High  Court,  consequently,
declined  to  interfere  in  the  order  passed  by  the  Deputy   Director,
Consolidation and dismissed the writ petition.
7)    Heard Mr. Ajay Kumar Misra, learned senior counsel for the  appellants
and Mr. R.K. Gupta and Mr. Shekhar, learned counsel for the respondents.
8)    Learned senior counsel appearing for  the  appellants  submitted  that
the original owner of the Plot No. 903 in dispute had migrated  to  Pakistan
and as per the  Order  of  the  Custodian  dated  17.10.1957,  the  year  of
migration was presumed to be 1355 Fasli and in that year, the father of  the
appellants was also found in  possession  by  the  Custodian  up  till  1364
Fasli.  The appellants had to pay 20 times of the  circle  rate  to  acquire
Bhumidari rights under Section  20B  of  the  Act  which  was  paid  by  the
appellants and thus they acquired lawful rights.  So far as  Plot  Nos.  795
and 796 are concerned, these plots were in the possession of the  appellants
prior to the enforcement of the Act and  therefore  they  were  recorded  as
occupants of the land in 1355 Fasli to 1359 Fasli.  They became Adhiwasi  in
possession and subsequently Seerdar.  Therefore, it conferred right  to  the
appellants over the property in dispute.
9)    The contesting respondents are claiming their right on  the  basis  of
entry of sub tenancy starting from 1358 Fasli which has  been  found  to  be
wrong entry by the  Settlement  Officer,  Consolidation  and  therefore  not
given due weightage.  Learned senior counsel for  the  appellants  submitted
that in view of the  above,  the  respondents  had  no  right  nor  were  in
possession as they themselves filed a suit being No. 920 under Section  229-
B of the Act whereby they claimed relief of possession from the  appellants.
 The decree passed in the said suit  stood  abated  in  second  appeal  vide
order dated 27.05.1974  as  consolidation  proceedings  had  started.   This
shows that the respondents were never in possession  of  the  land  and  the
entry coming for the first time in the 1358 Fasli was  wrong  entry  and  it
was never established from any record as to how sub tenancy was  created  in
favour of the  respondents.   The  Settlement  Officer,  Consolidation,  had
therefore, rightly held that the appellants became Adhiwasi  and  thereafter
became Seerdar.
10) According to the appellants, the order of the Consolidation Officer  and
the Deputy Director of Consolidation as also the High  Court  are  based  on
some proceedings under Section 33/39 of the Land  Reforms  Act  which  is  a
mutation proceeding and any admission made in a mutation proceeding  is  not
binding on  the  maker  in  a  title  matter.   Moreover,  in  the  mutation
proceedings, the appellants were not party and hence, cannot be relied  upon
against them.  Learned counsel for the appellants placed  reliance  on  Smt.
Sonawati and Ors. vs. Sri Ram and Anr. AIR 1968 SC  466,  Jhutan  Singh  vs.
Badri & Ors. 1962 Revenue Decisions 239, Bhurey vs. Pir Bux  1973  ALJ  313,
Laxmi Narain vs. D.D.C., Varanasi 1986 Revenue Decisions 410  and  Pir  Khan
vs. Deputy Director of Consolidation, District  Kanpur  1965  ALJ  591.   It
was, therefore, submitted  that  the  orders  passed  by  the  Consolidation
Officer, Deputy Director, Consolidation and the High Court be set aside  and
that of the Settlement Officer, Consolidation be restored.
11)   Learned counsel for  the  respondents,  however,  submitted  that  the
Consolidation Officer and the Deputy Director, Consolidation,  had  given  a
categorical finding that the predecessors of respondents  were  recorded  as
sub-tenants and by virtue of entry in their  favour,  they  became  Adhiwasi
and Seerdar  which  has  not  been  negatived  by  the  Settlement  Officer,
Consolidation.   The  appellants  are  not  laying  any  claim  against  the
respondents on the basis of the possession and the  authorities  have  found
that there is only  mention  of  few  Khasra/Khatauni  entries  without  any
reference to even any oral evidence.  Merely because the possession  on  the
basis of the decree in favour of the respondents  was  not  taken  from  the
appellants, it cannot be said that the appellants were in lawful  possession
of the plots in  question.   Some  of  the  khatauni/khasra  contained  over
writings, and  therefore,  they  were  rightly  left  aside  by  the  Deputy
Director of Consolidation.  Even the appellants could  not  give  the  exact
date or the year in which premium had been paid for  taking  the  rights  in
their favour.  Even no claim of  adverse  possession  was  established.   He
further prayed that the judgment and order passed by the High  Court  should
be maintained.
12) We have given our anxious consideration to the various pleas  raised  by
learned counsel  for  the  parties.   We  find  that  the  Deputy  Director,
Consolidation had examined the various copies of  Khasra/Khatauni  filed  by
the parties and had come to the conclusion that copy  of  Khasra  1357  crop
year has been filed in which Sumer, father of the  present  appellants,  has
been mentioned having possession of  Land Nos. 795 including  796.   Against
Land No. 779, there is a cross mark.   An of  khasra  is  blank.   Khasra  of
1358 crop year has been filed.   In  this,  pgainst  remaining  two  numbers,  no
cross mark has been put and Sikmi columossession  of  Sumer  has  been
entered in remarks column against Land Nos. 795, 796 and in  the  column  of
Sikmi,  the  name  of  Adhar,  s/o  Munesar  (father   of   the   contesting
respondents) is entered.  In the remarks column of Land No. 903,  the  names
and possession of Rohim Palton, Sumer, Phenku are entered.  This  Khasra  is
not reliable because when the name of Sumer was entered in 1357  crop  year,
then recording possession of Sumer again for Land  Nos.  795,  796  in  1358
Crop year and the name of Adhar  coming  in  the  Sikmi  column  make  these
Khasras doubtful.  The names of Rahim and Palton, having possession on  Land
No. 903, are  found  whereas  the  Sikmi  column  is  blank  which  is  also
doubtful.  Khasra 1359 crop year has been  filed.   In  this,  the  name  of
Adhar is mentioned in Sikmi column and possession of Sumer, son of  Munesar,
is mentioned  against  L.Nos.795,  796.   Possession  is  mentioned  against
L.No.903 and then it has been struck off or has been written above  Bhopare.
 In the Sikmi column also, there is cutting over the  entries  against  this
number.  Khasra for 1362 crop year has been filed.  In  this,  the  name  of
Adhar against L.No.795 is available as before in the Sikmi column.   In  the
L.No. 796 also, the name of Adhar is available as  before  in  Sikmi  column
and in the remarks column the name of Sumer s/o  Munesar  is  written.   The
name of Adhar is also available against L.No. 903 and after making entry  of
possession of Adhar and others, this has  been  struck  off  and  Rahim  and
others have been written in their place.  Khasra  for  1363  crop  year  has
been filed and it is also like 1362 crop  year  khasra.   In  L.No.903,  the
possession of Rahim, Pudan and Sumer and Phenku have been written and  there
is no entry in remaining two numbers.   These  same  entries  are  found  in
khasra  of  1354  crop  year.   Notice  of  office  of  Assistant  Custodian
(Judicial) has been filed and it has  too  much  overwriting  and  the  same
cannot be relied upon.  Copy of Khatoni of 1366 crop year has been filed  in
which the name of Asfaq has been entered in the main column and the name  of
Ram Adhar son of Munesar has been entered  in  category  9.   In  1368  crop
year, the name of Asfaq and others  were  deleted  and  the  name  of  Adhar
entered as Seerdar on the basis of  order  passed  in  Case  No.  341  under
Section 33/39.  In 1370 crop year, the name of Bahal, Kirpal are entered  as
category 9.  Khasra 1368 crop year has been filed  in  which  an  entry  has
been recorded that possession of Ram Kirpal, Bahal on L.Nos.  795,  796  has
been found.  Same  entry  is  also  available  in  L.No.903.   There  is  no
reference of any P.K.No.10 enquiry and diary number.  Hence, this khasra  is
not at all reliable.  Khasra of 1369 crop year has been filed  in  which  as
per order  of  Girdawar,  Kanungo  P.No.  10  dated  09.11.1961  entries  of
pendency of case are  recorded  against  L.Nos.  795,  796.   The  defendant
should not get any benefit of these entries.  Khasra of 1371 crop  year  has
been filed in which the name of Bhobhal and others are entered in  the  main
column.  From the entire aforestated evidence, it is clear that the name  of
revisionists came in existence against land from 1358, 1359 crop  year.   It
is the case of defendant that they are Seerdar from occupier  on  the  basis
of this possession prior to abolition of  zamindari  and  entries  available
prior to abolition of  zamindari  does  not  prove  the  case  of  defendant
because these are doubtful  and  not  reliable.   The  Assistant  Settlement
Officer (Consolidation), in his order, has held the possession of  defendant
continuously since 1354 crop year  which  is  totally  wrong  and  incorrect
because the name of the defendant  for  the  first  time  has  come  against
L.Nos. 795, 796 in 1357 crop year and that too is in remarks column  whereas
the Sikmi Column is blank.  Hence, had these entries correct,  the  name  of
defendant would have come in the column of Sikmi and not in  the  possession
column.  There is no such evidence that the defendant paid  compensation  to
original cultivator after abolition of zamindari.  Against  this,  the  name
of revisionists was entered on the basis of Form No. 101 which  proves  that
compensation  was  paid  to  original  cultivator.    After   abolition   of
zamindari, the name of defendant is found against L.No. in  1368  crop  year
whereas it is also doubtful and case of defendant is not  on  the  basis  of
adverse possession as well.  Hence, these entries also have no importance.
13)   From the findings recorded by the Deputy Director,  Consolidation,  it
is clear that those Khasra/Khatauni have been excluded in which  there  were
over writings or some unwarranted entries.  If that be  the  position,  then
the order passed by the Deputy  Director,  Consolidation  holding  that  the
contesting respondents acquired the right  of  Adhiwasi/Seerdars  cannot  be
said to be based on re-appreciation of evidence afresh.  It is only  a  case
of  examining  the  correctness  and  validity  of  the   entries   in   the
Khasra/Khatauni filed by the parties.
14)   The case laws relied upon by the counsel for the  appellants  have  no
bearing upon the issues involved in the  present  appeal.   We  may  mention
here that this Court in Leela Rajagopal & Ors. vs. Kamala Menon  Cocharan  &
Ors. 2014 (10)   Scale 307 in para 14 has  held  that  appreciation  or  re-
appreciation of evidence must come to a halt at some stage of  the  judicial
proceedings and cannot percolate to  the  constitutional  court  exercising,
jurisdiction under Article 136.  For ready reference, para 14 is  reproduced
below:-
“Before parting we would like to observe that the very fact that  an  appeal
to this Court can be lodged only upon  grant  of  special  leave  to  appeal
would indicate the highly circumscribed nature of the jurisdiction  of  this
Court.  In contrast to a statutory appeal, an appeal lodged  upon  grant  of
special leave pursuant to a provision of the  Constitution  would  call  for
highly economic exercise of  the  power  which  though  wide  to  strike  at
injustice wherever it  occurs  must  display  highly  judicious  application
thereof.  Determination of facts made by the High Court sitting as  a  first
appellate court or even while concurring as a second appellate  court  would
not be reopened unless the same give rise to questions of law  that  require
a serious debate or discloses wholly unacceptable conclusions of fact  which
plainly demonstrate a travesty of justice.  Appreciation or  re-appreciation
of evidence must come to a halt at some stage of  the  judicial  proceedings
and cannot percolate to the  constitutional  court  exercising  jurisdiction
under Article 136.”

15)   In view of the foregoing discussion, we are of the considered  opinion
that the impugned order passed by the High  Court  does  not  call  for  any
interference hence the appeal fails and is accordingly  dismissed.  However,
the parties shall bear their own costs.

 ..…………….………………………J.
          (RANJAN GOGOI)




 .…....…………………………………J.
  (R.K. AGRAWAL)


NEW DELHI;
OCTOBER 8, 2015.
ITEM NO.1D               COURT NO.12               SECTION XI
(For judgment)
              S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                       Civil Appeal  No(s).  3594/2011

RAM BAHAL & ANR.                                   Appellant(s)

                                VERSUS

DEPUTY DIRECTOR, CONSOLIDATION & ORS.              Respondent(s)




Date : 08/10/2015      This appeal was called on for pronouncement of
            judgment today.


For Appellant(s)       Mr. P. Narasimhan, AOR


For Respondent(s)      Mr. R.K. Gupta, Adv.
                       Mr. M.K. Singh, Adv.
                       Mr. A.K. Singh, Adv.
                       Mr. Shekhar Kumar, AOR


      Hon'ble Mr. Justice R.K. Agrawal pronounced  the  reportable  judgment
of the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi and His Lordship.
      The appeal is dismissed in terms of the signed reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)