REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 784 OF 2010
Thulasidhara & Another ..Appellants
Versus
Narayanappa & Others ..Respondents
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court of Karnataka at
Bengaluru dated 25.07.2007 passed in Regular Second Appeal
No.1033 of 2001, by which, in exercise of powers under Section
100 of the CPC, the High Court has allowed the said appeal
preferred by the respondent hereinoriginal plaintiff and has
quashed and set aside the Judgment and Decree passed by both
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the Courts below dismissing the suit, and consequently decreeing
the suit, original defendants have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are
as under :
That the respondent hereinoriginal plaintiff
(hereinafter referred to as the ‘original plaintiff’) instituted the
suit in the Court of Munsiff and JMFC at Gubbi (learned Civil
Judge, Junior Division, Gubbi) being Original Suit No.141 of
1984 praying for the Judgment and Decree in his favour to the
effect that he be declared as the owner of the suit schedule
property and also for permanent injunction restraining the
appellants hereinoriginal defendants (hereinafter referred to as
the ‘original defendants’) from interfering with his peaceful
possession and enjoyment of the suit schedule property. It was
the case on behalf of the original plaintiff that he has become an
owner of the suit property having purchased the same under a
registered Sale Deed and therefore the defendants have no right
whatsoever to interfere with his peaceful possession and
enjoyment of the suit schedule property. The suit was resisted by
the defendants by filing the written statement. It was the case on
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behalf of the defendants that husband of defendant no.1 and
father of defendant nos. 2 and 3 i.e. A. N. Krishnappa (deceased),
purchased the suit property on 12.12.1948 under a registered
Sale Deed for a consideration of Rs.400/. That the suit property
was blended into the joint family properties by him. That
thereafter the partition between the sons of deceased Nanjappa
was recorded on 23.04.1971 and the suit property fell into the
share of the deceased A. N. Krishnappa. It was also the case on
behalf of the defendants that they are enjoying the possession of
the suit property. It was also the case on behalf of the defendants
that no Sale Deed has been executed by the defendants in favour
of the plaintiff and the alleged Sale Deed is fabricated by the
plaintiff.
2.1 That the learned Trial Court framed the following
issues:
“(i) Does the plaintiff prove his title to the suit
schedule property?
(ii) Whether the plaintiff proves his lawful
possession of the suit schedule property on the
date of suit?
(iii) Does the plaintiff prove the interference by
the defendants to his possession of the suit
property?”
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2.2 That both the parties led evidence, both, oral as well as
documentary. That after considering the submissions made on
behalf of the rival parties and on appreciation of evidence,
learned Trial Court held that there was a partition between family
on 23.4.1971 and for that the learned Trial Court observed and
held that Exhibit D4(Partition Deed dated 23.04.1971) is
admissible in evidence. The learned Trial Court also observed and
held that the suit property was available at the time of partition.
The learned Trial Court also observed and held that Exhibit P1
(the Sale Deed relied upon by the original plaintiff) was only a
nominal Sale Deed and not an out and out sale deed since
Exhibit P1 was executed as security for loan and never intended
to sell the suit property. The learned Trial Court also observed
and held that the suit property was purchased by late
Krishnappa for a sum of Rs.400/ in 1948 and thereafter it is
stated to have been sold at Rs.200/ after 16 years i.e. in 1964,
which is highly improbable. The learned Trial Court also gave a
specific finding that there was a concealment of material facts in
the suit, which shows mala fide intention of the plaintiff. The
learned Trial Court also held that plaintiff, in collusion with PW2,
has got executed a sham document in his favour. By holding so
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and recording above findings, the learned Trial Court dismissed
the suit.
2.3 The First Appellate Court dismissed the appeal
preferred by the original plaintiff and confirmed the Judgment
and Decree passed by the learned Trial Court dismissing the suit.
While dismissing the appeal, the learned First Appellate Court
observed that Exhibit D4 cannot be said to be a Partition Deed
and can be said to be only a list of properties partitioned and
does not create or extinguish any right in the immovable property
and therefore not a compulsorily registrable document and
therefore Exhibit D4 is admissible in evidence.
3. Feeling aggrieved and dissatisfied with the Judgment
and Decree passed by the learned Trial Court confirmed by the
First Appellate Court, the original plaintiff filed a Regular Second
Appeal No.1033 of 2001 before the High Court. The High Court
framed only one substantial question of law which reads as
under :
“Whether the appellant is the owner and in
possession of the suit land as he purchased it in
the year 1973, that is, subsequent to the date
23.4.1971 when Ex.D1 – Partition deed –
Palupatti is alleged to have come into existence?”
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3.1 That by the impugned Judgment and Order, the High
Court has allowed the said appeal and has interfered with the
findings of facts recorded by both the Courts below and
consequently has decreed the suit by holding that Exhibit D4
required registration and therefore the same was inadmissible in
evidence. The High Court further observed and held that both
the Courts below are not justified in holding that document
Exhibit P1 was only a nominal sale deed and that the same was
not acted upon.
3.2 Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court, original
defendants have preferred the present appeal.
4. Ms. Kiran Suri, learned Senior Advocate has appeared
on behalf of the appellantsoriginal defendants and Ms. K. V.
Bharathi Upadhyaya, learned Advocate has appeared on behalf of
the respondentoriginal plaintiff and wife and son of the original
plaintiff (newly added respondents), who are permitted to be
impleaded as respondents by this Court.
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5. Ms. Kiran Suri, learned Senior Advocate appearing on
behalf of the original defendants has vehemently submitted that
the High Court has exceeded in its jurisdiction under Section 100
of the CPC by interfering with the concurrent findings of facts
recorded by both the Courts below.
5.1 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that in fact substantial question of law framed by the High Court
as such cannot be said to be a substantial question of law at all
and the same can be said to be a question of fact. It is submitted
that therefore the High Court has committed a grave error and/or
has exceeded in its jurisdiction by entering into the question of
fact and thereby by interfering with the concurrent findings of
facts recorded by the Courts below.
5.2 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that High Court has committed a serious error in holding that
Exhibit D4 requires registration, whereas, both the courts below
clearly recorded that Exhibit D4 does not require any
registration.
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5.3 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that High Court has committed a grave error in observing and
holding that as Exhibit D4 was an unregistered document and
therefore the same was not admissible in evidence.
5.4 It is vehemently submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that assuming that Exhibit D4 requires registration and the same
was unregistered, in that case also, the same document can be
used and considered for collateral purpose. It is submitted that
even otherwise and as held by this Court in the case of Kale and
Others v. Deputy Director of Consolidation and Others (1976) 3
SCC 119 even if the family settlement was not registered, it
would operate as a complete estoppel against the original plaintiff
who was party to such family settlement. It is submitted that
therefore, the High Court has committed a grave error of law in
not giving effect to the Doctrine of Estoppel.
5.5 Relying upon the decision of this Court in the case of
Subraya M.N. v. Vittala M.N. and Others (2016) 8 SCC 705, Ms.
Kiran Suri, learned Senior Advocate appearing on behalf of the
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original defendants has vehemently submitted that as held by
this Court in the aforesaid decision, when family
arrangement/settlement is orally made, no registration is
required and that would be admissible in evidence, however,
when reduced in writing, registration is essential, without which
it was not admissible in evidence. It is submitted that however it
is further observed and held by this Court in the aforesaid
decision that even without registration, written document of
family arrangement/settlement can be used as corroborative
evidence as explaining the arrangement made thereunder and
conduct of the parties. It is submitted that it is further observed
and held by this Court in the aforesaid decision that unregistered
document of family arrangement can be used as corroborative
piece of evidence for explaining the nature of
settlement/arrangement arrived at between the parties, conduct
of plaintiff members in receiving money from the defendant
members of the family in lieu of relinquishing their interest in
certain family properties. It is submitted that in the present case,
document D4 dated 23.04.1971 was in fact acted upon by all the
parties including the plaintiff and therefore assuming that
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document D4 required registration, in that case also, the same
can be used as corroborative evidence.
5.6 It is submitted by Ms. Kiran Suri, learned Senior
Advocate appearing on behalf of the original defendants that as
such document D4 cannot be said to be a Partition Deed and it
can be said to be a document containing list of properties allotted
to parties and therefore the same was not required to be
registered. It is submitted that, therefore, the High Court has
committed a grave error in holding that as Exhibit D4 was an
unregistered document, the same was inadmissible in evidence.
In support of her above submissions, she has heavily relied upon
the decisions of this Court in the case of Roshan Singh and
Others v. Zile Singh and Others (2018) 14 SCC 814.
5.7 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that the High Court has committed a serious error in holding that
the suit property was not available for partition in the year 1971
with the joint family in the year 1971. It is submitted that by
holding so, the High Court has not at all considered the fact that
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Exhibit P1, a Sale Deed relied upon by the plaintiff, was a
nominal Sale Deed and everybody understood.
5.8 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that the High Court has committed a grave error in interfering
with the findings of the Courts below that Exhibit P1 exhibits
only as a security and is not a document for sale.
5.9 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that High Court has committed a grave error in interfering with
the findings of facts recorded by both the courts below that
Exhibit P1 was not acted upon. It is further submitted that both
the Courts below clearly recorded in their respective findings that
the possession remained with the defendants and the
consideration for the sale Exhibit P1 was inadequate and
therefore no title passed on.
5.10 It is submitted by Ms. Kiran Suri, learned Senior
Advocate appearing on behalf of the appellantsoriginal
defendants that as observed and held by this Court in the case of
Kaliaperumal v. Rajagopal and Another (2009) 4 SCC 193 that
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though on registration of Sale Deed under the Registration Act,
1908, title will normally pass to the purchaser from the date of
the execution of the Sale Deed, true test is the intention of the
parties. It is submitted that it is held by this Court that the
registration is prima facie proof of intention of transfer of
property, but not a proof of operative transfer. It is submitted
that it is further observed and held by this Court that where
recitals are insufficient or ambiguous, circumstances and
conduct of parties can be looked into, subject to provisions of
Section 92 of the Evidence Act.
5.11 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that the High Court has committed a very serious error in setting
aside the findings of facts recorded by both the Courts below that
Exhibit P1 was a nominal Sale Deed. It is vehemently submitted
by Ms. Kiran Suri that in the facts and circumstances of the
case, the High Court has committed a grave error in giving much
emphasis on Exhibit P1 being registered Sale Deed, without
considering the surrounding circumstances and the intention of
12
the parties which are brought/borne out from the conduct of the
parties.
5.12 Now, so far as not praying to set aside the Sale Deed
(Exhibit P1) by the defendants by filing a suit is concerned,
relying upon the decision of this Court in the case of Vidhyadhar
v. Manikrao and Another (1999) 3 SCC 573, it is vehemently
submitted that in a suit filed by the plaintiff for a declaration to
declare him an owner on the basis of the Sale Deed, the
defendant who is a stranger to the Sale Deed can raise a plea
that the Sale Deed was void, fictitious, collusive or not intended
to be acted upon and/or not binding to him. It is submitted that
as held by this Court in the aforesaid decision, defendant can
raise any legitimate plea available to him under the law to defeat
the suit of the plaintiff. It is submitted that therefore nonfiling of
the suit by the defendant to set aside the Sale Deed (Exhibit P1)
and/or not specifically praying to quash and set aside the Sale
Deed (Exhibit P1), would not defeat the case of the defendant and
the same cannot go against the defendant.
5.13 Making above submissions and relying upon the
decisions of this Court, it is prayed to allow the present appeal
13
and quash and set aside the impugned Judgement and Order
passed by the High Court and restoring the Judgement and
Decree passed by the learned Trial Court dismissing the suit.
6. Present appeal is vehemently opposed by Ms. K. V.
Bharathi Upadhyaya, learned Advocate appearing on behalf of
the newly added respondents (wife and son of the original
plaintiff).
6.1 It is vehemently submitted by Ms. K. V. Bharathi,
learned Advocate appearing on behalf of the contesting
respondents that in the facts and circumstances of the case, the
High Court has rightly decreed the suit and has rightly held that
the original plaintiff is entitled to the declaration that he had
become the owner of the suit property under the registered Sale
Deed.
6.2 It is vehemently submitted by Ms. K. V. Bharathi,
learned Advocate appearing on behalf of the contesting
respondents that on appreciation of evidence and having found
that there was a registered Sale Deed in favour of the original
plaintiff, the High Court has rightly interfered with the findings
14
recorded by both the Courts below as the said findings were
perverse.
6.3 It is further submitted by learned Advocate appearing
on behalf of the contesting respondents that as such, the High
Court had framed the substantial question of law and thereafter
had answered the substantial question of law framed and
therefore the High Court has not exceeded in its jurisdiction
permissible under the law, and more particularly, has exercised
the Jurisdiction within the parameters of Section 100 of the CPC.
6.4 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
as such, there was a registered Sale Deed in favour of the original
plaintiff, on payment of the sale consideration and in fact the
same was acted upon and the possession was handed over
pursuant to and under the registered Sale Deed and, therefore,
the High Court has rightly held that the original plaintiff has
become the absolute owner pursuant to the registered Sale Deed
dated 22.06.1964 (Exhibit P1).
6.5 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
15
in fact by registered Sale Deed dated 22.06.1964 (Exhibit P1),
which was also signed by the plaintiff along with two brothers
and their father Nanjappa, the suit property in question, was sold
in favour of Siddalingappa. Therefore, Siddalingappa became the
absolute owner and thereafter the plaintiff purchased the suit
property from the above Siddalingappa under registered Sale
Deed dated 18.05.1973 (Exhibit P2). It is submitted therefore, the
plaintiff became the absolute owner of the suit property under
the registered Sale Deed dated 18.05.1973 (Exhibit P2).
6.6 It is further submitted by learned Advocate appearing
on behalf of the contesting respondents that the registered Sale
Deed dated 22.06.1964 (Exhibit P1) cannot be said to be a
nominal Sale Deed as held by the High Court.
6.7 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
in any case, nobody challenged either the registered Sale Deed
dated 22.06.1964 (Exhibit P1) or the subsequent registered Sale
Deed dated 18.05.1973 (Exhibit P2). It is submitted that none of
the defendants challenged the aforesaid two registered Sale
Deeds. It is submitted therefore, in absence of any challenge, in
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respect of the aforesaid Sale Deeds, more particularly, the Sale
Deed dated 18.05.1973 (Exhibit P2) and considering Section 54
of the Transfer of Property Act, the original plaintiff has become
the absolute owner pursuant to the registered Sale Deed(s).
6.8 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
the socalled Partition Deed dated 23.04.1971 (Exhibit D4) is
rightly held to be not admissible in evidence as the same was
unregistered. It is further submitted that Exhibit D4 cannot be
said to be a list of property partitioned. It is submitted that
Exhibit D4 is a Partition Deed and therefore the same was
required to be registered. It is submitted that as the same was
unregistered, as rightly held by the High Court, the same was not
admissible in evidence. It is submitted, therefore, the High Court
has rightly not considered the socalled Partition Deed dated
23.04.1971 (Exhibit D4).
6.9 It is further submitted by learned Advocate appearing
on behalf of the contesting respondents that even otherwise and
in view of the earlier Sale Deed dated 22.06.1964 (Exhibit P1), by
which the suit property was sold by the plaintiff along with his
17
two brothers and his father Nanjappa in favour of Siddalingappa,
at the time of alleged partition dated 23.04.1971, the suit
property was not available for partition. It is submitted that
therefore, even otherwise, at the time of socalled partition on
23.04.1971, as the property was already sold, the same could not
have been subjected to partition and therefore the Krishnappa
could not have acquired any interest in the suit property
pursuant to the alleged Partition Deed dated 23.04.1971.
6.10 Making above submissions it is prayed to dismiss the
present appeal.
7. Heard learned Advocates appearing on behalf of the
respective parties at length.
7.1 At the outset, it is required to be noted that by the
impugned Judgment and Order, in a Second Appeal and in
exercise of the powers under Section 100 of the CPC, the High
Court has set aside the findings of facts recorded by both the
Courts below. The learned Trial Court dismissed the suit and the
same came to be confirmed by the learned First Appellate Court.
While allowing the second appeal, the High Court framed only
one substantial question of law which reads as under :
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“Whether the appellant is the owner and in
possession of the suit land as he purchased it in
the year 1973, that is, subsequent to the date
23.4.1971 when Ex.D1 – Partition deed –
Palupatti is alleged to have come into existence?”
No other substantial question of law was framed. We
are afraid that the aforesaid can be said to be a substantial
question of law at all. It cannot be disputed and even as per the
law laid down by this Court in the catena of decisions, the
jurisdiction of the High Court to entertain Second Appeal under
Section 100 of the CPC after the 1976 amendment, is confined
only with the Second Appeal involving a substantial question of
law. The existence of ‘a substantial question of law’ is a sine qua
non for the exercise of the jurisdiction under Section 100 of the
CPC.
7.2 As observed and held by this Court in the case of
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC
722, in the Second Appeal under Section 100 of the CPC, the
High Court cannot substitute its own opinion for that of the First
Appellate Court, unless it finds that the conclusions drawn by
the lower Court were erroneous being :
19
(i) Contrary to the mandatory provisions of the applicable
law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision
that if First Appellate Court has exercised its discretion in a
judicial manner, its decision cannot be recorded as suffering from
an error either of law or of procedure requiring interference in
Second Appeal. It is further observed that the Trial Court could
have decided differently is not a question of law justifying
interference in Second Appeal.
7.3 When a substantial question of law can be said to have
arisen, has been dealt with and considered by this Court in the
case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the
aforesaid decision, this Court has specifically observed and held :
“Under Section 100 CPC, after the 1976 amendment,
it is essential for the High Court to formulate a
substantial question of law and it is not permissible
to reverse the judgment of the first appellate court
without doing so. There are two situations in which
interference with findings of fact is permissible. The
first one is when material or relevant evidence is not
considered which, if considered, would have led to
an opposite conclusion. The second situation in
20
which interference with findings of fact is
permissible is where a finding has been arrived at
by the appellate court by placing reliance on
inadmissible evidence which if it was omitted, an
opposite conclusion was possible. In either of the
above situations, a substantial question of law can
arise.”
7.4 Considering the law laid down by this Court in the
aforesaid decisions and even considering Section 100 of the CPC,
the substantial question of law framed by the High Court in the
present case, as such, cannot be said to be a substantial
question of law at all.
8. Having gone through the findings recorded by the Trial
Court as well as the First Appellate Court, it appears that both,
the Trial Court as well as the First Appellate Court, gave cogent
reasons on appreciation of evidence on record, more particularly,
the Sale Deed dated 22.06.1964 (Exhibit P1), document dated
23.04.1971 (Exhibit D4) and subsequent Sale Deed dated
18.05.1973 (Exhibit P2) and thereafter held that the plaintiff is
not entitled to the declaration that he has become the owner.
While interfering with the Judgment and Decree passed by both
the Courts below, it appears that the High Court has again
21
reappreciated the entire evidence on record, which in exercise of
powers under Section 100 of the CPC, is not permissible. Under
the circumstances, the High Court has committed a
grave/manifest error in quashing and setting aside the findings
recorded by both the Courts below, which were on appreciation of
evidence on record. The High Court has exceeded in its
jurisdiction while exercising the powers under Section 100 of the
CPC.
9. Even otherwise, on merits also, the impugned
Judgment and Order passed by the High Court allowing the
appeal and consequently decreeing the suit, is not sustainable. It
was the case on behalf of the original plaintiff that the suit
property was sold by registered Sale Deed dated 22.06.1964
(Exhibit P1) by the plaintiff, along with his two brothers and their
father Nanjappa in favour of one Siddalingappa from whom the
plaintiff subsequently purchased the suit property under the
registered Sale Deed dated 18.05.1973 (Exhibit P2). On the other
hand, it was specific case on behalf of the defendants that the
Sale Deed dated 22.06.1964 was a nominal Sale Deed and was
never acted upon and as such was not to be acted upon at all. It
22
was also the case on behalf of the defendants that thereafter in
the year 1971, the partition took place and the same was reduced
in writing by document dated 23.04.1971 (Exhibit D4) and under
the same document, it was recorded that the suit property had
gone in favour of Krishnappa. Plaintiff denied that any partition
was reduced in writing, more particularly, in the form of Exhibit
D4 dated 23.04.1971. The High Court has observed and held that
in view of the registered Sale Deed executed in favour of the
plaintiff, the plaintiff has become the actual owner. The High
Court has allowed the appeal and subsequently has decreed the
suits mainly on the ground that :
(i) That the registered Sale Deed dated 22.06.1964 (Exhibit P1)
was an out and out Sale Deed and the same was not a nominal
Sale Deed;
(ii) That the defendants have never challenged the registered Sale
Deed dated 22.06.1964 (Exhibit P1) and even the subsequent
registered Sale Deed dated 18.05.1973 (Exhibit P2).
(iii) Exhibit D4Partition Deed dated 23.04.1971 purports to
convey interest in the immovable property in favour of
Krishnappa and that therefore the same was required to be
23
registered and as such it was an unregistered document and
therefore having regard to the provisions of the Registration Act,
the same is not admissible in evidence and therefore the same
cannot be looked into.
9.1 Now so far as the registered Sale Deed (Exhibit P1) is
concerned, it is an admitted position that Krishnappa is not a
signatory to the said Sale Deed. Therefore, as such, the said Sale
Deed does not bind Krishnappa. Even in the crossexamination,
the original plaintiff has admitted that Exhibit P1 was not signed
by Krishnappa. He has also admitted that his other brothers
Rangappa and Govindaiah also did not sign. From the entire
evidence on record, it appears that the suit property was initially
purchased by Krishnappa in the year 1948 and thereafter, due to
some internal family problems with respect to said suit property,
it was the Krishnappa who thrown the same property into the
joint family property in the year 1952 and Krishnappa executed
the Sale Deed in favour of his father Nanjappa stating that it
belongs to joint family property. From the entire evidence on
record, it appears that even the Sale Deed (Exhibit P1) was not
acted upon. Between 1964 to 1971, even the name of
24
Siddalingappa was not mutated/recorded in the revenue record.
Both the Courts below considered in detail the aforesaid aspect
which has been upset by the High Court. It is required to be
noted that even in the crossexamination the original plaintiff
was not sure about the sale consideration received from
Siddalingappa as a remuneration in view of the registered Sale
Deed dated 22.06.1964 (Exhibit P1). Even otherwise, even
according to the plaintiff and even considering the material on
record, as the suit land was a joint family property and/or was in
the name of Nanjappa, all the brothers had an equal share and
therefore the same could not have been sold by Nanjappa,
plaintiff and other two brothers only and without consent of other
brothers including Krishnappa unless the property was
partitioned. In the crossexamination the original plaintiff has
specifically admitted that in the year 196566, when the father
sold away the said suit schedule property, there was no partition
between the brothers at that time. In the circumstances, the
registered Sale Deed dated 22.06.1964 (Exhibit P1), by which the
suit property was sold to Siddalingappa, cannot bind
Krishnappa. It was a registered Sale Deed which was not acted
upon. Even the plaintiff and Siddalingappa tried to mutate the
25
name of Siddalingappa in the year 1973, which was the subject
matter of the Revenue Authority.
9.2 Now so far as the submission on behalf of the plaintiff
that as the registered Sale Deed dated 22.06.1964 (Exhibit P1)
was not challenged by the defendant by way of suit or even
counter claim and therefore thereafter it was not open for the
defendants to challenge the same is concerned, at the outset, it is
required to be noted and as observed hereinabove, Krishnappa
was not a signatory to the said document/Sale Deed and
therefore it cannot bind him or his heirs. Even otherwise and as
held by this Court in the case of Vidhyadhar (supra), in a suit
filed by the plaintiff for a declaration on the basis of the
registered Sale Deed, it is always open for the defendant, who is a
stranger to the Sale Deed, to raise a plea that the Sale Deed was
void, fictitious, collusive or not intended to be acted upon and or
not binding to him. In the aforesaid decision, it is observed and
held by this Court that a person, in his capacity as a defendant,
can raise any legitimate plea available to him under the law to
defeat the suit of the plaintiff. In paragraph 21 this Court has
observed and held as under :
26
“21. The above decisions appear to be based on
the principle that a person in his capacity as a
defendant can raise any legitimate plea available
to him under law to defeat the suit of the
plaintiff. This would also include the plea that
the sale deed by which the title to the property
was intended to be conveyed to the plaintiff was
void or fictitious or, for that matter, collusive and
not intended to be acted upon. Thus, the whole
question would depend upon the pleadings of the
parties, the nature of the suit, the nature of the
deed, the evidence led by the parties in the suit
and other attending circumstances. For example,
in a landlordtenant matter where the landlord is
possessed of many properties and cannot
possibly seek eviction of his tenant for bona fide
need from one of the properties, the landlord may
ostensibly transfer that property to a person who
is not possessed of any other property so that
that person, namely, the transferee, may
institute eviction proceedings on the ground of
his genuine need and thus evict the tenant who
could not have been otherwise evicted. In this
situation, the deed by which the property was
intended to be transferred, would be a collusive
deed representing a sham transaction which was
never intended to be acted upon. It would be
open to the tenant in his capacity as a defendant
to assert, plead and prove that the deed was
fictitious and collusive in nature. We, therefore,
cannot subscribe to the view expressed by the
Privy Council in the case of Lal Achal Ram
[(1905) 32 IA 113 : ILR 27 All 271] in the broad
terms in which it is expressed but do approve the
law laid down by the Calcutta, Patna and Orissa
High Courts as pointed out above.”
27
Therefore, in the facts and circumstances of the case, we are of
the opinion that without even challenging the Sale Deed (Exhibit
P1) by way of behalf of independent proceedings, in a suit filed by
the plaintiff seeking a declaration that he has become the owner
pursuant to the registered Sale Deed, it is always open for the
defendant, who is stranger to the Sale Deed, to raise a plea that
either the Sale Deed is not binding to him or the same was
without consideration or it was a nominal Sale Deed or void or
fictitious, for that matter, collusive and not intended to be acted
upon.
9.3 Now so far as the finding recorded by the High Court
that as the Partition Deed dated 23.04.1971 (Exhibit D4) was
unregistered though required registration under the Provisions of
the Registration Act and therefore the same is not admissible in
evidence is concerned, it is required to be noted that as such
Exhibit D4 can be said to be a Palupatti as has been described as
Palupatti. Palupatti means list of properties partitioned. At the
most, it can be said to be a family arrangement. Therefore, in the
facts and circumstances of the case, the same was not required
to be registered.
28
9.4 It is required to be noted that the deed dated
23.04.1971, under which the suit property had gone /devolved in
favour of the Krishnappa, was reduced in writing before the
Panchayat and Panchas, and the same was signed by the village
people/panchayat people and all the members of the family
including even the plaintiff. Though the plaintiff disputed that
the partition was not reduced in writing in the form of document
Exhibit D4, on considering the entire evidence on record and
even the deposition of plaintiff (crossexamination), he has
specifically admitted that the oral partition had taken place in the
year 1971. He has also admitted that he has got the share which
tellies with the document dated 23.04.1971 (Exhibit D4).
Execution of the document/ Partition Deed/ Palupatta dated
23.04.1971 has been established and proved by examining
different witnesses. The High Court has refused to look into the
said document and/or consider document dated 23.04.1971
(Exhibit D4) solely on the ground that it requires registration and
therefore as it is unregistered, the same cannot be looked into.
However, as observed by this Court in the case of Kale (Supra)
that such a family settlement, though not registered, would
operate as a complete estoppel against the parties to such a
29
family settlement. In the aforesaid decision, this Court
considered its earlier decision in the case of S. Shanmugam Pillai
and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312
in which it was observed as under:
“13. Equitable, principles such as estoppel,
election, family settlement, etc. are not mere
technical rules of evidence. They have an
important purpose to serve in the administration
of justice. The ultimate aim of the law is to
secure justice. In the recent times in order to
render justice between the parties, courts have
been liberally relying on those principles. We
would hesitate to narrow down their scope.
As observed by this Court in T.V.R. Subbu
Chetty’s Family Charities case, that if a person
having full knowledge of his right as a possible
reversioner enters into a transaction which
settles his claim as well as the claim of the
opponents at the relevant time, he cannot be
permitted to go back on that agreement when
reversion actually falls open.”
9.5 As held by this Court in the case of Subraya M.N.
(Supra) even without registration a written document of family
settlement/family arrangement can be used as corroborative
evidence as explaining the arrangement made thereunder and
conduct of the parties. In the present case, as observed
hereinabove, even the plaintiff has also categorically admitted
that the oral partition had taken place on 23.04.1971 and he also
30
admitted that 3 to 4 punchayat people were also present.
However, according to him, the same was not reduced in writing.
Therefore, even accepting the case of plaintiff that there was an
oral partition on 23.04.1971, the document Exhibit D4 dated
23.04.1971, to which he is also the signatory and all other family
members are signatory, can be said to be a list of properties
partitioned. Everybody got right/share as per the oral
partition/partition. Therefore, the same even can be used as
corroborative evidence as explaining the arrangement made
thereunder and conduct of the parties. Therefore, in the facts
and circumstances of the case, the High Court has committed a
grave/manifest error in not looking into and/or not considering
the document Exhibit D4 dated 23.04.1971.
9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2)
executed by Siddalingappa in favour of the plaintiff is concerned,
as there was a categorically finding by both the Courts below that
the same document was sham. It is required to be noted that in
the crossexamination, the plaintiff has stated that he paid
Rs. 3000 to 4000 to Siddalingappa and the said property was
purchased by him in the year 1973. However, in the document,
31
the sale consideration is stated to be Rs.200/. Even PW2
Siddalingappa has stated that he purchased the suit schedule
property for Rs.200/ and he sold the suit schedule property to
the plaintiff for Rs.600/ Therefore, it is a serious dispute with
respect to consideration paid by the plaintiff and received by the
Siddalingappa.
10. In the aforesaid facts and circumstances of the case,
the High Court was not justified in interfering with the findings
recorded by both the Courts below. For the reasons stated above,
the impugned Judgment and Order passed by the High Court
cannot be sustained and the same deserves to be quashed and
set aside and is accordingly quashed and set aside. The
Judgment and Order passed by both the Courts below dismissing
the suit, are hereby restored and consequently the suit filed by
the original plaintiff is dismissed. No costs.
……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI, ……………………………….J.
MAY 1, 2019. [M.R. SHAH]
32
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 784 OF 2010
Thulasidhara & Another ..Appellants
Versus
Narayanappa & Others ..Respondents
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court of Karnataka at
Bengaluru dated 25.07.2007 passed in Regular Second Appeal
No.1033 of 2001, by which, in exercise of powers under Section
100 of the CPC, the High Court has allowed the said appeal
preferred by the respondent hereinoriginal plaintiff and has
quashed and set aside the Judgment and Decree passed by both
1
the Courts below dismissing the suit, and consequently decreeing
the suit, original defendants have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are
as under :
That the respondent hereinoriginal plaintiff
(hereinafter referred to as the ‘original plaintiff’) instituted the
suit in the Court of Munsiff and JMFC at Gubbi (learned Civil
Judge, Junior Division, Gubbi) being Original Suit No.141 of
1984 praying for the Judgment and Decree in his favour to the
effect that he be declared as the owner of the suit schedule
property and also for permanent injunction restraining the
appellants hereinoriginal defendants (hereinafter referred to as
the ‘original defendants’) from interfering with his peaceful
possession and enjoyment of the suit schedule property. It was
the case on behalf of the original plaintiff that he has become an
owner of the suit property having purchased the same under a
registered Sale Deed and therefore the defendants have no right
whatsoever to interfere with his peaceful possession and
enjoyment of the suit schedule property. The suit was resisted by
the defendants by filing the written statement. It was the case on
2
behalf of the defendants that husband of defendant no.1 and
father of defendant nos. 2 and 3 i.e. A. N. Krishnappa (deceased),
purchased the suit property on 12.12.1948 under a registered
Sale Deed for a consideration of Rs.400/. That the suit property
was blended into the joint family properties by him. That
thereafter the partition between the sons of deceased Nanjappa
was recorded on 23.04.1971 and the suit property fell into the
share of the deceased A. N. Krishnappa. It was also the case on
behalf of the defendants that they are enjoying the possession of
the suit property. It was also the case on behalf of the defendants
that no Sale Deed has been executed by the defendants in favour
of the plaintiff and the alleged Sale Deed is fabricated by the
plaintiff.
2.1 That the learned Trial Court framed the following
issues:
“(i) Does the plaintiff prove his title to the suit
schedule property?
(ii) Whether the plaintiff proves his lawful
possession of the suit schedule property on the
date of suit?
(iii) Does the plaintiff prove the interference by
the defendants to his possession of the suit
property?”
3
2.2 That both the parties led evidence, both, oral as well as
documentary. That after considering the submissions made on
behalf of the rival parties and on appreciation of evidence,
learned Trial Court held that there was a partition between family
on 23.4.1971 and for that the learned Trial Court observed and
held that Exhibit D4(Partition Deed dated 23.04.1971) is
admissible in evidence. The learned Trial Court also observed and
held that the suit property was available at the time of partition.
The learned Trial Court also observed and held that Exhibit P1
(the Sale Deed relied upon by the original plaintiff) was only a
nominal Sale Deed and not an out and out sale deed since
Exhibit P1 was executed as security for loan and never intended
to sell the suit property. The learned Trial Court also observed
and held that the suit property was purchased by late
Krishnappa for a sum of Rs.400/ in 1948 and thereafter it is
stated to have been sold at Rs.200/ after 16 years i.e. in 1964,
which is highly improbable. The learned Trial Court also gave a
specific finding that there was a concealment of material facts in
the suit, which shows mala fide intention of the plaintiff. The
learned Trial Court also held that plaintiff, in collusion with PW2,
has got executed a sham document in his favour. By holding so
4
and recording above findings, the learned Trial Court dismissed
the suit.
2.3 The First Appellate Court dismissed the appeal
preferred by the original plaintiff and confirmed the Judgment
and Decree passed by the learned Trial Court dismissing the suit.
While dismissing the appeal, the learned First Appellate Court
observed that Exhibit D4 cannot be said to be a Partition Deed
and can be said to be only a list of properties partitioned and
does not create or extinguish any right in the immovable property
and therefore not a compulsorily registrable document and
therefore Exhibit D4 is admissible in evidence.
3. Feeling aggrieved and dissatisfied with the Judgment
and Decree passed by the learned Trial Court confirmed by the
First Appellate Court, the original plaintiff filed a Regular Second
Appeal No.1033 of 2001 before the High Court. The High Court
framed only one substantial question of law which reads as
under :
“Whether the appellant is the owner and in
possession of the suit land as he purchased it in
the year 1973, that is, subsequent to the date
23.4.1971 when Ex.D1 – Partition deed –
Palupatti is alleged to have come into existence?”
5
3.1 That by the impugned Judgment and Order, the High
Court has allowed the said appeal and has interfered with the
findings of facts recorded by both the Courts below and
consequently has decreed the suit by holding that Exhibit D4
required registration and therefore the same was inadmissible in
evidence. The High Court further observed and held that both
the Courts below are not justified in holding that document
Exhibit P1 was only a nominal sale deed and that the same was
not acted upon.
3.2 Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court, original
defendants have preferred the present appeal.
4. Ms. Kiran Suri, learned Senior Advocate has appeared
on behalf of the appellantsoriginal defendants and Ms. K. V.
Bharathi Upadhyaya, learned Advocate has appeared on behalf of
the respondentoriginal plaintiff and wife and son of the original
plaintiff (newly added respondents), who are permitted to be
impleaded as respondents by this Court.
6
5. Ms. Kiran Suri, learned Senior Advocate appearing on
behalf of the original defendants has vehemently submitted that
the High Court has exceeded in its jurisdiction under Section 100
of the CPC by interfering with the concurrent findings of facts
recorded by both the Courts below.
5.1 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that in fact substantial question of law framed by the High Court
as such cannot be said to be a substantial question of law at all
and the same can be said to be a question of fact. It is submitted
that therefore the High Court has committed a grave error and/or
has exceeded in its jurisdiction by entering into the question of
fact and thereby by interfering with the concurrent findings of
facts recorded by the Courts below.
5.2 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that High Court has committed a serious error in holding that
Exhibit D4 requires registration, whereas, both the courts below
clearly recorded that Exhibit D4 does not require any
registration.
7
5.3 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that High Court has committed a grave error in observing and
holding that as Exhibit D4 was an unregistered document and
therefore the same was not admissible in evidence.
5.4 It is vehemently submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that assuming that Exhibit D4 requires registration and the same
was unregistered, in that case also, the same document can be
used and considered for collateral purpose. It is submitted that
even otherwise and as held by this Court in the case of Kale and
Others v. Deputy Director of Consolidation and Others (1976) 3
SCC 119 even if the family settlement was not registered, it
would operate as a complete estoppel against the original plaintiff
who was party to such family settlement. It is submitted that
therefore, the High Court has committed a grave error of law in
not giving effect to the Doctrine of Estoppel.
5.5 Relying upon the decision of this Court in the case of
Subraya M.N. v. Vittala M.N. and Others (2016) 8 SCC 705, Ms.
Kiran Suri, learned Senior Advocate appearing on behalf of the
8
original defendants has vehemently submitted that as held by
this Court in the aforesaid decision, when family
arrangement/settlement is orally made, no registration is
required and that would be admissible in evidence, however,
when reduced in writing, registration is essential, without which
it was not admissible in evidence. It is submitted that however it
is further observed and held by this Court in the aforesaid
decision that even without registration, written document of
family arrangement/settlement can be used as corroborative
evidence as explaining the arrangement made thereunder and
conduct of the parties. It is submitted that it is further observed
and held by this Court in the aforesaid decision that unregistered
document of family arrangement can be used as corroborative
piece of evidence for explaining the nature of
settlement/arrangement arrived at between the parties, conduct
of plaintiff members in receiving money from the defendant
members of the family in lieu of relinquishing their interest in
certain family properties. It is submitted that in the present case,
document D4 dated 23.04.1971 was in fact acted upon by all the
parties including the plaintiff and therefore assuming that
9
document D4 required registration, in that case also, the same
can be used as corroborative evidence.
5.6 It is submitted by Ms. Kiran Suri, learned Senior
Advocate appearing on behalf of the original defendants that as
such document D4 cannot be said to be a Partition Deed and it
can be said to be a document containing list of properties allotted
to parties and therefore the same was not required to be
registered. It is submitted that, therefore, the High Court has
committed a grave error in holding that as Exhibit D4 was an
unregistered document, the same was inadmissible in evidence.
In support of her above submissions, she has heavily relied upon
the decisions of this Court in the case of Roshan Singh and
Others v. Zile Singh and Others (2018) 14 SCC 814.
5.7 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that the High Court has committed a serious error in holding that
the suit property was not available for partition in the year 1971
with the joint family in the year 1971. It is submitted that by
holding so, the High Court has not at all considered the fact that
10
Exhibit P1, a Sale Deed relied upon by the plaintiff, was a
nominal Sale Deed and everybody understood.
5.8 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that the High Court has committed a grave error in interfering
with the findings of the Courts below that Exhibit P1 exhibits
only as a security and is not a document for sale.
5.9 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that High Court has committed a grave error in interfering with
the findings of facts recorded by both the courts below that
Exhibit P1 was not acted upon. It is further submitted that both
the Courts below clearly recorded in their respective findings that
the possession remained with the defendants and the
consideration for the sale Exhibit P1 was inadequate and
therefore no title passed on.
5.10 It is submitted by Ms. Kiran Suri, learned Senior
Advocate appearing on behalf of the appellantsoriginal
defendants that as observed and held by this Court in the case of
Kaliaperumal v. Rajagopal and Another (2009) 4 SCC 193 that
11
though on registration of Sale Deed under the Registration Act,
1908, title will normally pass to the purchaser from the date of
the execution of the Sale Deed, true test is the intention of the
parties. It is submitted that it is held by this Court that the
registration is prima facie proof of intention of transfer of
property, but not a proof of operative transfer. It is submitted
that it is further observed and held by this Court that where
recitals are insufficient or ambiguous, circumstances and
conduct of parties can be looked into, subject to provisions of
Section 92 of the Evidence Act.
5.11 It is further submitted by Ms. Kiran Suri, learned
Senior Advocate appearing on behalf of the original defendants
that the High Court has committed a very serious error in setting
aside the findings of facts recorded by both the Courts below that
Exhibit P1 was a nominal Sale Deed. It is vehemently submitted
by Ms. Kiran Suri that in the facts and circumstances of the
case, the High Court has committed a grave error in giving much
emphasis on Exhibit P1 being registered Sale Deed, without
considering the surrounding circumstances and the intention of
12
the parties which are brought/borne out from the conduct of the
parties.
5.12 Now, so far as not praying to set aside the Sale Deed
(Exhibit P1) by the defendants by filing a suit is concerned,
relying upon the decision of this Court in the case of Vidhyadhar
v. Manikrao and Another (1999) 3 SCC 573, it is vehemently
submitted that in a suit filed by the plaintiff for a declaration to
declare him an owner on the basis of the Sale Deed, the
defendant who is a stranger to the Sale Deed can raise a plea
that the Sale Deed was void, fictitious, collusive or not intended
to be acted upon and/or not binding to him. It is submitted that
as held by this Court in the aforesaid decision, defendant can
raise any legitimate plea available to him under the law to defeat
the suit of the plaintiff. It is submitted that therefore nonfiling of
the suit by the defendant to set aside the Sale Deed (Exhibit P1)
and/or not specifically praying to quash and set aside the Sale
Deed (Exhibit P1), would not defeat the case of the defendant and
the same cannot go against the defendant.
5.13 Making above submissions and relying upon the
decisions of this Court, it is prayed to allow the present appeal
13
and quash and set aside the impugned Judgement and Order
passed by the High Court and restoring the Judgement and
Decree passed by the learned Trial Court dismissing the suit.
6. Present appeal is vehemently opposed by Ms. K. V.
Bharathi Upadhyaya, learned Advocate appearing on behalf of
the newly added respondents (wife and son of the original
plaintiff).
6.1 It is vehemently submitted by Ms. K. V. Bharathi,
learned Advocate appearing on behalf of the contesting
respondents that in the facts and circumstances of the case, the
High Court has rightly decreed the suit and has rightly held that
the original plaintiff is entitled to the declaration that he had
become the owner of the suit property under the registered Sale
Deed.
6.2 It is vehemently submitted by Ms. K. V. Bharathi,
learned Advocate appearing on behalf of the contesting
respondents that on appreciation of evidence and having found
that there was a registered Sale Deed in favour of the original
plaintiff, the High Court has rightly interfered with the findings
14
recorded by both the Courts below as the said findings were
perverse.
6.3 It is further submitted by learned Advocate appearing
on behalf of the contesting respondents that as such, the High
Court had framed the substantial question of law and thereafter
had answered the substantial question of law framed and
therefore the High Court has not exceeded in its jurisdiction
permissible under the law, and more particularly, has exercised
the Jurisdiction within the parameters of Section 100 of the CPC.
6.4 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
as such, there was a registered Sale Deed in favour of the original
plaintiff, on payment of the sale consideration and in fact the
same was acted upon and the possession was handed over
pursuant to and under the registered Sale Deed and, therefore,
the High Court has rightly held that the original plaintiff has
become the absolute owner pursuant to the registered Sale Deed
dated 22.06.1964 (Exhibit P1).
6.5 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
15
in fact by registered Sale Deed dated 22.06.1964 (Exhibit P1),
which was also signed by the plaintiff along with two brothers
and their father Nanjappa, the suit property in question, was sold
in favour of Siddalingappa. Therefore, Siddalingappa became the
absolute owner and thereafter the plaintiff purchased the suit
property from the above Siddalingappa under registered Sale
Deed dated 18.05.1973 (Exhibit P2). It is submitted therefore, the
plaintiff became the absolute owner of the suit property under
the registered Sale Deed dated 18.05.1973 (Exhibit P2).
6.6 It is further submitted by learned Advocate appearing
on behalf of the contesting respondents that the registered Sale
Deed dated 22.06.1964 (Exhibit P1) cannot be said to be a
nominal Sale Deed as held by the High Court.
6.7 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
in any case, nobody challenged either the registered Sale Deed
dated 22.06.1964 (Exhibit P1) or the subsequent registered Sale
Deed dated 18.05.1973 (Exhibit P2). It is submitted that none of
the defendants challenged the aforesaid two registered Sale
Deeds. It is submitted therefore, in absence of any challenge, in
16
respect of the aforesaid Sale Deeds, more particularly, the Sale
Deed dated 18.05.1973 (Exhibit P2) and considering Section 54
of the Transfer of Property Act, the original plaintiff has become
the absolute owner pursuant to the registered Sale Deed(s).
6.8 It is further submitted by Ms. K. V. Bharathi, learned
Advocate appearing on behalf of the contesting respondents that
the socalled Partition Deed dated 23.04.1971 (Exhibit D4) is
rightly held to be not admissible in evidence as the same was
unregistered. It is further submitted that Exhibit D4 cannot be
said to be a list of property partitioned. It is submitted that
Exhibit D4 is a Partition Deed and therefore the same was
required to be registered. It is submitted that as the same was
unregistered, as rightly held by the High Court, the same was not
admissible in evidence. It is submitted, therefore, the High Court
has rightly not considered the socalled Partition Deed dated
23.04.1971 (Exhibit D4).
6.9 It is further submitted by learned Advocate appearing
on behalf of the contesting respondents that even otherwise and
in view of the earlier Sale Deed dated 22.06.1964 (Exhibit P1), by
which the suit property was sold by the plaintiff along with his
17
two brothers and his father Nanjappa in favour of Siddalingappa,
at the time of alleged partition dated 23.04.1971, the suit
property was not available for partition. It is submitted that
therefore, even otherwise, at the time of socalled partition on
23.04.1971, as the property was already sold, the same could not
have been subjected to partition and therefore the Krishnappa
could not have acquired any interest in the suit property
pursuant to the alleged Partition Deed dated 23.04.1971.
6.10 Making above submissions it is prayed to dismiss the
present appeal.
7. Heard learned Advocates appearing on behalf of the
respective parties at length.
7.1 At the outset, it is required to be noted that by the
impugned Judgment and Order, in a Second Appeal and in
exercise of the powers under Section 100 of the CPC, the High
Court has set aside the findings of facts recorded by both the
Courts below. The learned Trial Court dismissed the suit and the
same came to be confirmed by the learned First Appellate Court.
While allowing the second appeal, the High Court framed only
one substantial question of law which reads as under :
18
“Whether the appellant is the owner and in
possession of the suit land as he purchased it in
the year 1973, that is, subsequent to the date
23.4.1971 when Ex.D1 – Partition deed –
Palupatti is alleged to have come into existence?”
No other substantial question of law was framed. We
are afraid that the aforesaid can be said to be a substantial
question of law at all. It cannot be disputed and even as per the
law laid down by this Court in the catena of decisions, the
jurisdiction of the High Court to entertain Second Appeal under
Section 100 of the CPC after the 1976 amendment, is confined
only with the Second Appeal involving a substantial question of
law. The existence of ‘a substantial question of law’ is a sine qua
non for the exercise of the jurisdiction under Section 100 of the
CPC.
7.2 As observed and held by this Court in the case of
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC
722, in the Second Appeal under Section 100 of the CPC, the
High Court cannot substitute its own opinion for that of the First
Appellate Court, unless it finds that the conclusions drawn by
the lower Court were erroneous being :
19
(i) Contrary to the mandatory provisions of the applicable
law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision
that if First Appellate Court has exercised its discretion in a
judicial manner, its decision cannot be recorded as suffering from
an error either of law or of procedure requiring interference in
Second Appeal. It is further observed that the Trial Court could
have decided differently is not a question of law justifying
interference in Second Appeal.
7.3 When a substantial question of law can be said to have
arisen, has been dealt with and considered by this Court in the
case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the
aforesaid decision, this Court has specifically observed and held :
“Under Section 100 CPC, after the 1976 amendment,
it is essential for the High Court to formulate a
substantial question of law and it is not permissible
to reverse the judgment of the first appellate court
without doing so. There are two situations in which
interference with findings of fact is permissible. The
first one is when material or relevant evidence is not
considered which, if considered, would have led to
an opposite conclusion. The second situation in
20
which interference with findings of fact is
permissible is where a finding has been arrived at
by the appellate court by placing reliance on
inadmissible evidence which if it was omitted, an
opposite conclusion was possible. In either of the
above situations, a substantial question of law can
arise.”
7.4 Considering the law laid down by this Court in the
aforesaid decisions and even considering Section 100 of the CPC,
the substantial question of law framed by the High Court in the
present case, as such, cannot be said to be a substantial
question of law at all.
8. Having gone through the findings recorded by the Trial
Court as well as the First Appellate Court, it appears that both,
the Trial Court as well as the First Appellate Court, gave cogent
reasons on appreciation of evidence on record, more particularly,
the Sale Deed dated 22.06.1964 (Exhibit P1), document dated
23.04.1971 (Exhibit D4) and subsequent Sale Deed dated
18.05.1973 (Exhibit P2) and thereafter held that the plaintiff is
not entitled to the declaration that he has become the owner.
While interfering with the Judgment and Decree passed by both
the Courts below, it appears that the High Court has again
21
reappreciated the entire evidence on record, which in exercise of
powers under Section 100 of the CPC, is not permissible. Under
the circumstances, the High Court has committed a
grave/manifest error in quashing and setting aside the findings
recorded by both the Courts below, which were on appreciation of
evidence on record. The High Court has exceeded in its
jurisdiction while exercising the powers under Section 100 of the
CPC.
9. Even otherwise, on merits also, the impugned
Judgment and Order passed by the High Court allowing the
appeal and consequently decreeing the suit, is not sustainable. It
was the case on behalf of the original plaintiff that the suit
property was sold by registered Sale Deed dated 22.06.1964
(Exhibit P1) by the plaintiff, along with his two brothers and their
father Nanjappa in favour of one Siddalingappa from whom the
plaintiff subsequently purchased the suit property under the
registered Sale Deed dated 18.05.1973 (Exhibit P2). On the other
hand, it was specific case on behalf of the defendants that the
Sale Deed dated 22.06.1964 was a nominal Sale Deed and was
never acted upon and as such was not to be acted upon at all. It
22
was also the case on behalf of the defendants that thereafter in
the year 1971, the partition took place and the same was reduced
in writing by document dated 23.04.1971 (Exhibit D4) and under
the same document, it was recorded that the suit property had
gone in favour of Krishnappa. Plaintiff denied that any partition
was reduced in writing, more particularly, in the form of Exhibit
D4 dated 23.04.1971. The High Court has observed and held that
in view of the registered Sale Deed executed in favour of the
plaintiff, the plaintiff has become the actual owner. The High
Court has allowed the appeal and subsequently has decreed the
suits mainly on the ground that :
(i) That the registered Sale Deed dated 22.06.1964 (Exhibit P1)
was an out and out Sale Deed and the same was not a nominal
Sale Deed;
(ii) That the defendants have never challenged the registered Sale
Deed dated 22.06.1964 (Exhibit P1) and even the subsequent
registered Sale Deed dated 18.05.1973 (Exhibit P2).
(iii) Exhibit D4Partition Deed dated 23.04.1971 purports to
convey interest in the immovable property in favour of
Krishnappa and that therefore the same was required to be
23
registered and as such it was an unregistered document and
therefore having regard to the provisions of the Registration Act,
the same is not admissible in evidence and therefore the same
cannot be looked into.
9.1 Now so far as the registered Sale Deed (Exhibit P1) is
concerned, it is an admitted position that Krishnappa is not a
signatory to the said Sale Deed. Therefore, as such, the said Sale
Deed does not bind Krishnappa. Even in the crossexamination,
the original plaintiff has admitted that Exhibit P1 was not signed
by Krishnappa. He has also admitted that his other brothers
Rangappa and Govindaiah also did not sign. From the entire
evidence on record, it appears that the suit property was initially
purchased by Krishnappa in the year 1948 and thereafter, due to
some internal family problems with respect to said suit property,
it was the Krishnappa who thrown the same property into the
joint family property in the year 1952 and Krishnappa executed
the Sale Deed in favour of his father Nanjappa stating that it
belongs to joint family property. From the entire evidence on
record, it appears that even the Sale Deed (Exhibit P1) was not
acted upon. Between 1964 to 1971, even the name of
24
Siddalingappa was not mutated/recorded in the revenue record.
Both the Courts below considered in detail the aforesaid aspect
which has been upset by the High Court. It is required to be
noted that even in the crossexamination the original plaintiff
was not sure about the sale consideration received from
Siddalingappa as a remuneration in view of the registered Sale
Deed dated 22.06.1964 (Exhibit P1). Even otherwise, even
according to the plaintiff and even considering the material on
record, as the suit land was a joint family property and/or was in
the name of Nanjappa, all the brothers had an equal share and
therefore the same could not have been sold by Nanjappa,
plaintiff and other two brothers only and without consent of other
brothers including Krishnappa unless the property was
partitioned. In the crossexamination the original plaintiff has
specifically admitted that in the year 196566, when the father
sold away the said suit schedule property, there was no partition
between the brothers at that time. In the circumstances, the
registered Sale Deed dated 22.06.1964 (Exhibit P1), by which the
suit property was sold to Siddalingappa, cannot bind
Krishnappa. It was a registered Sale Deed which was not acted
upon. Even the plaintiff and Siddalingappa tried to mutate the
25
name of Siddalingappa in the year 1973, which was the subject
matter of the Revenue Authority.
9.2 Now so far as the submission on behalf of the plaintiff
that as the registered Sale Deed dated 22.06.1964 (Exhibit P1)
was not challenged by the defendant by way of suit or even
counter claim and therefore thereafter it was not open for the
defendants to challenge the same is concerned, at the outset, it is
required to be noted and as observed hereinabove, Krishnappa
was not a signatory to the said document/Sale Deed and
therefore it cannot bind him or his heirs. Even otherwise and as
held by this Court in the case of Vidhyadhar (supra), in a suit
filed by the plaintiff for a declaration on the basis of the
registered Sale Deed, it is always open for the defendant, who is a
stranger to the Sale Deed, to raise a plea that the Sale Deed was
void, fictitious, collusive or not intended to be acted upon and or
not binding to him. In the aforesaid decision, it is observed and
held by this Court that a person, in his capacity as a defendant,
can raise any legitimate plea available to him under the law to
defeat the suit of the plaintiff. In paragraph 21 this Court has
observed and held as under :
26
“21. The above decisions appear to be based on
the principle that a person in his capacity as a
defendant can raise any legitimate plea available
to him under law to defeat the suit of the
plaintiff. This would also include the plea that
the sale deed by which the title to the property
was intended to be conveyed to the plaintiff was
void or fictitious or, for that matter, collusive and
not intended to be acted upon. Thus, the whole
question would depend upon the pleadings of the
parties, the nature of the suit, the nature of the
deed, the evidence led by the parties in the suit
and other attending circumstances. For example,
in a landlordtenant matter where the landlord is
possessed of many properties and cannot
possibly seek eviction of his tenant for bona fide
need from one of the properties, the landlord may
ostensibly transfer that property to a person who
is not possessed of any other property so that
that person, namely, the transferee, may
institute eviction proceedings on the ground of
his genuine need and thus evict the tenant who
could not have been otherwise evicted. In this
situation, the deed by which the property was
intended to be transferred, would be a collusive
deed representing a sham transaction which was
never intended to be acted upon. It would be
open to the tenant in his capacity as a defendant
to assert, plead and prove that the deed was
fictitious and collusive in nature. We, therefore,
cannot subscribe to the view expressed by the
Privy Council in the case of Lal Achal Ram
[(1905) 32 IA 113 : ILR 27 All 271] in the broad
terms in which it is expressed but do approve the
law laid down by the Calcutta, Patna and Orissa
High Courts as pointed out above.”
27
Therefore, in the facts and circumstances of the case, we are of
the opinion that without even challenging the Sale Deed (Exhibit
P1) by way of behalf of independent proceedings, in a suit filed by
the plaintiff seeking a declaration that he has become the owner
pursuant to the registered Sale Deed, it is always open for the
defendant, who is stranger to the Sale Deed, to raise a plea that
either the Sale Deed is not binding to him or the same was
without consideration or it was a nominal Sale Deed or void or
fictitious, for that matter, collusive and not intended to be acted
upon.
9.3 Now so far as the finding recorded by the High Court
that as the Partition Deed dated 23.04.1971 (Exhibit D4) was
unregistered though required registration under the Provisions of
the Registration Act and therefore the same is not admissible in
evidence is concerned, it is required to be noted that as such
Exhibit D4 can be said to be a Palupatti as has been described as
Palupatti. Palupatti means list of properties partitioned. At the
most, it can be said to be a family arrangement. Therefore, in the
facts and circumstances of the case, the same was not required
to be registered.
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9.4 It is required to be noted that the deed dated
23.04.1971, under which the suit property had gone /devolved in
favour of the Krishnappa, was reduced in writing before the
Panchayat and Panchas, and the same was signed by the village
people/panchayat people and all the members of the family
including even the plaintiff. Though the plaintiff disputed that
the partition was not reduced in writing in the form of document
Exhibit D4, on considering the entire evidence on record and
even the deposition of plaintiff (crossexamination), he has
specifically admitted that the oral partition had taken place in the
year 1971. He has also admitted that he has got the share which
tellies with the document dated 23.04.1971 (Exhibit D4).
Execution of the document/ Partition Deed/ Palupatta dated
23.04.1971 has been established and proved by examining
different witnesses. The High Court has refused to look into the
said document and/or consider document dated 23.04.1971
(Exhibit D4) solely on the ground that it requires registration and
therefore as it is unregistered, the same cannot be looked into.
However, as observed by this Court in the case of Kale (Supra)
that such a family settlement, though not registered, would
operate as a complete estoppel against the parties to such a
29
family settlement. In the aforesaid decision, this Court
considered its earlier decision in the case of S. Shanmugam Pillai
and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312
in which it was observed as under:
“13. Equitable, principles such as estoppel,
election, family settlement, etc. are not mere
technical rules of evidence. They have an
important purpose to serve in the administration
of justice. The ultimate aim of the law is to
secure justice. In the recent times in order to
render justice between the parties, courts have
been liberally relying on those principles. We
would hesitate to narrow down their scope.
As observed by this Court in T.V.R. Subbu
Chetty’s Family Charities case, that if a person
having full knowledge of his right as a possible
reversioner enters into a transaction which
settles his claim as well as the claim of the
opponents at the relevant time, he cannot be
permitted to go back on that agreement when
reversion actually falls open.”
9.5 As held by this Court in the case of Subraya M.N.
(Supra) even without registration a written document of family
settlement/family arrangement can be used as corroborative
evidence as explaining the arrangement made thereunder and
conduct of the parties. In the present case, as observed
hereinabove, even the plaintiff has also categorically admitted
that the oral partition had taken place on 23.04.1971 and he also
30
admitted that 3 to 4 punchayat people were also present.
However, according to him, the same was not reduced in writing.
Therefore, even accepting the case of plaintiff that there was an
oral partition on 23.04.1971, the document Exhibit D4 dated
23.04.1971, to which he is also the signatory and all other family
members are signatory, can be said to be a list of properties
partitioned. Everybody got right/share as per the oral
partition/partition. Therefore, the same even can be used as
corroborative evidence as explaining the arrangement made
thereunder and conduct of the parties. Therefore, in the facts
and circumstances of the case, the High Court has committed a
grave/manifest error in not looking into and/or not considering
the document Exhibit D4 dated 23.04.1971.
9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2)
executed by Siddalingappa in favour of the plaintiff is concerned,
as there was a categorically finding by both the Courts below that
the same document was sham. It is required to be noted that in
the crossexamination, the plaintiff has stated that he paid
Rs. 3000 to 4000 to Siddalingappa and the said property was
purchased by him in the year 1973. However, in the document,
31
the sale consideration is stated to be Rs.200/. Even PW2
Siddalingappa has stated that he purchased the suit schedule
property for Rs.200/ and he sold the suit schedule property to
the plaintiff for Rs.600/ Therefore, it is a serious dispute with
respect to consideration paid by the plaintiff and received by the
Siddalingappa.
10. In the aforesaid facts and circumstances of the case,
the High Court was not justified in interfering with the findings
recorded by both the Courts below. For the reasons stated above,
the impugned Judgment and Order passed by the High Court
cannot be sustained and the same deserves to be quashed and
set aside and is accordingly quashed and set aside. The
Judgment and Order passed by both the Courts below dismissing
the suit, are hereby restored and consequently the suit filed by
the original plaintiff is dismissed. No costs.
……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI, ……………………………….J.
MAY 1, 2019. [M.R. SHAH]
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