1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.832 OF 2007 Smt.Jijabai Nanaji Nirbhavane .. Applicant V/s. Jaywant Sonuji Gangurde .. Respondent Mr.S.S.Kulkarni for the Appellant. Mr.R.M.Haridas i/b. Mr.P.N.Joshi for the Respondent. CORAM : R.M.SAVANT, J. DATED : 11TH SEPTEMBER, 2008. P.C. This Second Appeal takes exception to the Judgment and Decree dated 8th December, 2006 passed by the learned District Judge, Niphad by which the Judgment and decree dated 1st March, 2004 passed by the Trial Court came to be confirmed. The Appellant is the original Plaintiff who filed 2 Regular Civil Suit No.104 of 1996 for declaration and permanent injunction that she is exclusive owner of the field Gat No.998/2 admeasuring 1H and 53R situated at Village Vadherbharrav, Taluka Chandwad. The suit as originally filed was for injunction but thereafter by way of amendment a declaration was sought by the Plaintiff that she has became the exclusive owner on account of the Usanvar Pavti dated 4th June, 1993. 2. The said suit was amended and it was the case of the plaintiff that she had purchased the said suit property from one Gopala Pachorkar by registered agreement dated 31st December, 1991 for consideration of Rs.3,50,000/- which consideration was totally paid by her. It was further her case that at the said time she was residing at Mumbai and the Defendant who is her brother was present at the time of the said transaction and fraudulently got his name recorded in the agreement as a joint 3 purchaser. It was the case of the Plaintiff that the Defendant had contributed only to the extent of Rs.25,000/-towards the consideration.It was further the the case of the Plaintiff that on 4th June, 1993 the parties executed an agreement i.e. Usanwar Pavti where under the Defendant admitted that he had paid Rs.25,000/-towards the consideration for the purchase of the suit property and he further agreed that during 5 years from 4th June, 1993, the Defendant would pay Rs.1,50,000/- to the Plaintiff. It was further agreed that till the payment of Rs.1,50,000/- the Defendant would not claim his right of joint ownership and joint possession. It was further the case of the Plaintiff that since the Defendant has not paid the amount of Rs.1,50,000/-to the Plaintiff within the period stipulated in the document dated 4th June, 1993, his right to claim joint title to the suit property was extinguished. It is further the case of the Plaintiff that she has constructed a house in the 4 suit property wherein her son resides. Since the Plaintiff apprehended obstruction from the Defendant that the said suit came to be filed by the Plaintiff for the reliefs payed therein 3. The Defendant filed his written statement, the Defendant contended in the said written statement that the consideration for the said suit property was paid jointly by the Plaintiff and the Defendant and the sale deed dated 30th December, 1991 was executed in the joint name of the Plaintiff and Defendant. It was the case of the Defendant that the total consideration was only Rs.2,84,000/- and on the day of agreement Rs.1,00,000/- was paid to the Vendor. The said sale deed was executed on 30th December, 1991 in the presence of witnesses and it was also executed in the joint name of Plaintiff and Defendant. After the sale deed the mutation was also recorded in the joint names and as the Plaintiff was residing in 5 Mumbai, the actual possession and cultivation was that the Defendant. It was also contended that the Defendant has also constructed a house in the suit property. In so far as the Usanvar Pavati dated 4th June, 1993 is concerned, it is the case of the Defendant that the Plaintiff has mis-utilized the signature of the Defendant on a blank stamp paper and created the said document. The Defendant specifically denied the agreement dated 4th June, 1993. 4. The parties went to trial, the Trial Court on the basis of the oral and documentary evidence dismissed the suit filed by the Plaintiff. The Trial Court inter-alia held that the Defendant had an equal share in the said suit property and that the Plaintiff's case that the Defendant had entered his name in the sale deed fraudulently, could not be accepted as the Plaintiff's son was present at the time when the said document was registered. 6 The Trial Court in so far as the Usanvar Pavati dated 4th June, 1993 is concerned, held that the said Usanvar Pavati had the effect of extinguishing the right of the Defendant in the suit property and was therefore required to be compulsory registered under section 17(1)(b) of the Registration Act and since it was not registered, it was inadmissible in evidence. The Trial Court in the teeth of the fact that the Defendant had denied the execution of the Usanvar Pavati, also held that the said Usanvar Pavati was not proved by the Plaintiff by the process known to law. 5. The Trial court however, also recorded a finding that the Plaintiff has constructed a house in the suit property at her own costs. 6. Aggrieved by the dismissal of the said suit by the Trial Court by its Judgment and order dated 1st March, 2004, the Plaintiff filed Regular 7 Civil Appeal being No.119 of 2004. The Lower Appellate Court by its judgment and decree dated 8th December, 2006 dismissed the Appeal and while dismissing the Appeal confirmed the findings recorded by the Trial Court as regards the right of the ownership in the suit property, as well as the finding recorded as regards the admissibility of the Usanvar Pavti dated 4th June, 1993. The Appellate Court reiterated that the said Usanvar Pavti had not been proved and also that the same was inadmissible in evidence on account of the fact that it required compulsory registration. 7. It is sought to be contended on behalf of the Applicant that the said Usanvar Pavati merely recorded the agreement between the parties that in the event, the Defendant does not pay the amount of Rs.1,50,000/- within the time stipulated in the said Usanvar Pavati, would have no right in the land in question. It is further submitted that 8 once the original of the said document was produced by the Plaintiff, the same should have been read in evidence and proof of the contents of the same were not required. It is lastly submitted, that at the highest the Defendant would have a right in the suit land to the extent of his contribution i.e. Rs.25,000/-. 8. In the light of the findings of the courts below as also considering the legal implications that the Usanvar Pavti would have for the Defendant, both the Courts below rightly held that the said Usanvar Pavti required registration under section 17 of the Registration Act. It is also a settled principle of law that where a release or relinquishment or surrender is in writing amounts to a transfer of immovable property, it will require registration. As indicated above, both the Courts below have held that in the context of the stand of the Defendant whereby he denied the 9 execution of the said Usanvar Pavati he was obliged to prove the said document and that the said document was inadmissible in evidence. The submission made on behalf of the Plaintiff that the Defendant's right can only be limited to the extent of his contribution i.e. of Rs.25,000/- cannot be accepted. Both the Courts below having concurrently held against the Plaintiff. The Second Appeal in my view, does not involve any substantial question of law. 9. However, it is clarified that in so far as the house constructed by the Plaintiff is concerned, she would be entitled to occupy it subject to the joint possession of the suit land. With the aforesaid observations, the Second Appeal is dismissed. [R.M.SAVANT, J.] 10