THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A. No.115 OF 2005 Dated 16-8-2010 Between: Mohammed Ali. ..Petitioner. And: Sabera Begum and others. …Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A. No.115 OF 2005 JUDGMENT: This appeal is filed by the appellant aggrieved by the Judgment dated 30-6-2003 in O.S.No.243 of 1994 on the file of the learned III Senior Civil Judge, City Civil Court, at Secunderabad. 2nd defendant in the original suit is the appellant herein. The suit was filed by the 1st respondent-plaintiff for partition of the schedule properties and rendition of accounts. The parties hereinafter will be referred to as they are shown in the trial Court. The suit was decreed on 30-6-2003 declaring that the plaintiff is entitled for 1/6th share in respect of the land in S.Nos.177/B, 178/C and part of 177/B totaling Ac.3.30 guntas. Since D.1 died, D.6 to D.8 have been brought on record as L.Rs. of D.1. D.6 is the wife of D.1. The gist of the case of the plaintiff is that the schedule property was purchased in the name of the defendants 1 to 3 out of the income of the joint family business. There was a family settlement in the year 1989 and basing on that family settlement, parties partitioned their properties and had taken their respective shares and certain acts in pursuance of this family settlement had to be finalized and therefore the family settlement was reduced into writing on 12-2-1989 and the same was notarized on 21-2- 1989 for record. The said family settlement is marked as Ex.A.l. D.3 alone contested the suit. D.1 filed written statement supporting the case of the plaintiff and other defendants remained exparte. The 3rd defendant’s main case is that the suit schedule properties were purchased by D.1 to D.3 with their own income and not with the joint family income. Though the defendants seem to have not disputed the execution of the family settlement dated 21-2-1989, but they disputed its validity mainly on the ground that the document is not registered and therefore their specific case is that the said document is hit by Section 17 of the Indian Registration Act and hence not admissible. Their main contention is that since the rights have been accrued to the parties on execution of Ex.A.1 and possession had been delivered, the said document requires registration. It is also the contention of the defendants that the parties had no pre-existing rights in the properties prior to the execution of Ex.A.1 and that all the rights have been created through Ex.A.1 and therefore, such a document requires registration. The trial Court framed the following issues: 1. Whether the plaintiff is entitled for a preliminary decree for partition of the suit schedule properties into six shares and for allotment of one such share in the suit schedule properties as prayed for? 2. Whether the plaintiff is entitled for rendition of account as prayed for? 3. Whether there is no cause of action to file the suit? 4. To what relief? On behalf of the plaintiff, plaintiff herself was examined as P.W.1 and Exs.A.1 to A.12 were marked. On behalf of the defendants, the 3rd defendant was examined as D.W.1 and no documents were marked. The trial Court, on appreciation of oral and documentary evidence, partly decreed the suit and passed a preliminary decree. Challenging the same, the present appeal has been filed. Learned counsel for the appellant Sri H.Venugopal submits that the lower Court failed to appreciate the evidence in proper perspective and erred in holding that the plaintiff is entitled to 1/6th share in respect of item 1 of the schedule property solely basing on Exs.A.1 and A.2. According to him, Ex.A.1 Family settlement deed dated 21-2- 1989 and plan Ex.A.2 are inadmissible in law. Referring to Section 35 of the Stamp Act, it is his submission that a document which creates rights if unstamped cannot be acted upon and it is inadmissible in evidence. He has also submitted that the plaintiff admitted that defendants 1 to 3 had obtained loan for purchasing item No. 1. Referring to Ex.A.1, his submission is that this document categorically shows the delivery of possession and has created rights to the parties and therefore, require registration. It is also his submission that if a document is merely a record of past partition or earlier settlement between the parties then such a document do not require any registration. He has also relied on a decision reported in A.C.LAKSHMIPATHY AND ANOTHER v. A.M.CHAKRAPANI REDDIAR AND OTHERS ([1]). It is also his submission that even if a document is marked by the Court, such a document cannot be acted upon. Reliance is placed on a decision reported in YASODAMMAL AND ANOTHER v. TANALEI AMMAL ([2]). It is his submission that even if the execution of a document is admitted, that admission by a party will not make the document as a valid document since it is an unstamped and since it is not registered cannot be acted upon. He has also referred to sub- section (2) of Section 24 of the Stamp Act, Schedule 1 A and Section 17 (1) B of the Registration Act in support of his contentions. It is also his submission that three other daughters i.e., sisters of plaintiff have been excluded and some properties were also excluded and it shows that there was no family settlement. Reliance is placed on a decision reported in BANKEY BEHARI v. SURYA NARAIN ALIAS MUNNOO ([3]). Reliance is also placed on a decision reported in KANAMATHAREDDI KANNA REDDY v. KANAMATHA REDDY. VENKATA REDDY ([4]) wherein it was held that non–registration of a document which is required to be registered under Sec.17 (b) of the Registration Act, 1908 will not avail to create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the document.” Reliance is also placed on a decision reported in HAMEED JOHARAN (DEAD) AND OTHERS v. ABDUL SALAM (DEAD) BY LRS. AND OTHERS ([5]) referring to Sections 35 and 2 (15) of the Indian Stamp Act. It was observed as follows: “It is a true fiscal statute in nature, as such strict construction is required to be effected and no liberal interpretation. Undoubtedly, Section 2 (15) includes a decree of partition and Section 35 of the Act of 1899 lays down a bar in the matter of unstamped or insufficient stamp being admitted in evidence or being acted upon.” So his main submission is that when the document is used as a proof, it requires registration. Sri P.V.Sanjeevarao learned Counsel for the respondents submitted that the plaintiff and the defendants are the joint owners of Ac.3.33 Guntas of land in S.No.177/B, 178/C and 177/part and that the family had a very good business and income derived from the business which was invested for purchasing the suit schedule properties and that the 1st defendant was senior citizen and that the parties entered into a family settlement on 12-2-1989 in the presence of elders and parties decided to share their properties as per their settlement and they had also taken possession of certain items and subsequently, the said settlement was reduced into writing under Ex.A.1 dated 21-2-1989 and that it is only the record of earlier family settlement and no new rights have been created between the parties in pursuance of this family settlement. It is also his submission that since defendants did not act upon the family settlement entered on 12-2- 1989 which was reduced into writing under Ex.A.1, the plaintiff filed the suit. It is further submitted that D.3 alone contested the suit disputing the validity of Ex.A.1. It is also his submission that Ex.A.1 also indicate certain future happenings and it is signed by all the parties and execution of Ex.A.1 is not in dispute. It is also his submission that D.W.1 also did not dispute execution of Ex.A.1. It is also his submission that in I.A.No.1394 of 1994, an objection was raised with regard to admissibility of Ex.A.1 and the lower Court gave a finding that the document is admissible in evidence and since the said order has not been challenged, the finding on admissibility of Ex.A.1 became final. It is also his submission that after execution of Ex.A.1, D.2 and 3 executed agreement of sale and conveyed their 1/3rd share and all these sale deeds came into existence after the execution of Ex.A.1 and also after filing of the suit. It is also his submission that D.W.1 did not whisper about the execution of sale deeds ad that those sales are hit by the principle lis pendency. It is also his submission that though the property was mortgaged to the bank, the possession remains with the parties and merely because the property has been mortgaged to the bank, that will not come in the way of plaintiff claiming her right over the property and initiating proceeding against the defendants. He has also referred to the preamble and recitals of Ex.A.1. His main submission is that preamble and the recitals of the document go to show that Ex.A.1 is nothing but a record of earlier settlement entered into between the parties on 12-2-1989 and that clause 15 and 20 cannot be read in isolation and they have to be read together with other clauses and intention of the parties and certain future acts which they agreed to do have to be taken into consideration. He also relied on a decision reported in JAVER CHAND AND OTHERS v. PUKHRAJ SURANA ([6]) wherein the apex Court observed as follows: “Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses. S.36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.” He has also relied on a decision reported in AMANGENTI PRAMEELA v. P. VENKAT REDDY (DIED) PER LRS. ([7]) and it was held as follows: “A partition gives rise to or brings about three phases or legal consequences viz., (a) severance of status, (b) stipulation of condition of partition, and (c) indicating the nature of possession. Through a catena of decisions, this Court held that existence of a registered document is necessary only for the second aspect indicated above and that the other two aspects can be established even through an unregistered document. It is in this context that an unregistered partition deed becomes admissible in evidence for collateral purposes viz., to establish the severance of status and nature of possession.” He also relied on a decision reported in ZAHEDA BEGUM v. LAL AHMED KHAN ([8]) wherein this Court held that a settlement, which does not create any right ‘in praesenti’ cannot be treated as inadmissible, on the ground that it is not registered . Thus, his submission is that Ex.A.1 does not create any new right to the partition and there is no transfer of right in pursuance of Ex.A.1 which requires registration. The only point that arises for consideration is: Whether Ex.A.1 requires registration or not and whether it is admissible in evidence or not i.e., whether Ex.A.1 creates right in the immovable property worth more than Rs.100/- or not? It appears that law has been well settled. Where rights have been transferred or new rights have been created or where there is a clear relinquishment of any right, such document requires registration. 17 (b) of Indian Registration Act and Section 35 of the Indian Stamp Act also comes into play. Where in a case the parties have entered into a family settlement and divided the properties among themselves or taken over the possession of their respective shares in pursuance of such family settlement at a subsequent date and record their earlier family settlement only for the purpose of record, not with a view to create any right in the parties, such document does not require any registration under Section 17 (b) of the Indian Registration Act. Therefore, the result of this appeal would decide upon the interpretation of clauses of Ex.A.1 document. The sum and substance of the claim of the plaintiff is that the suit schedule properties have been purchased with the income of the joint family business and though those properties have been purchased in the name of D.1 to D.3, the plaintiff has a share in those properties. Admittedly, the 1st defendant the father of the plaintiff and D.1 to D.3 did not dispute the claim of the plaintiff, rather he filed written statement admitting the claim of the plaintiff. It appears that other brothers have also not disputed the claim of the plaintiff. But as seen from the evidence let in by the parties, even D.3 who was examined as D.W.1 also did not dispute the execution of Ex.A.1. Therefore, execution of Ex.A.1 appears to be not in dispute. The lower Court relying on Ex.A.1 and other oral or documentary evidence decreed the suit and allotted 1/6th share to the plaintiff as prayed for in item No.1 of the plaint schedule properties. It is well settled law that any document has to be relied on its entirety. As per the recitals of Ex.A.1 Mohd. Shahbuddin is the husband of the party No.9 and parties 2 to 5 are their sons and parties 6 to 8 are their daughters respectively. The marriages of parties 2 to 8 are performed and they are leading happy family lives with their respective spouses and children. It also reveals that on account of misunderstanding between the parties with regard to the enjoyment of the benefit of the business and joint family properties, disputes arose among themselves and on the advise of friends, relatives and well wishers and in order to preserve the family honour, all the parties settled their disputes amicably by an oral family settlement on 12-2-1989 in the presence of S.Madhava Reddy and G.Eswar and others. It also shows that the parties felt the necessity of recording the said oral family settlement arrived on 12-2-1989 with a view to avoid possibility of future litigations and complications. It also reveals that the parties agreed to strictly abide by terms, conditions and understandings of the said oral family settlement deed dated 12-2- 1989. Clause 15 deals with Ac.3.36 gunats of land situated in R.S.No.177B and 178C and 37 Guntas of land in R.S.No.177B part which were situated in Kompally village. It is written as follows: “Each sharer shall be the absolute and exclusive owner and possessor of his or her share of the said properties. Each party shall arrange for installation of separate and independent meters to their respective shares of properties so divided as delineated in the plan for the purpose of individual electricity consumption and electricity charges shall be paid individually as per the respective meter readings. Certain future acts to be performed by the parties were narrated in this document. Para 17 reveals that for the purpose of business, loans were borrowed from State Bank of Hyderabad, Chikadpally Branch as well as from private party and particulars of amounts which stand payable to the creditors as on 7-2-89 were also shown in Ex.A.1. Para 20 of Ex.A.1 agreement reveals that the possession of respective shares was delivered to each party as per the plan annexed to Ex.A.1 i.e., on the date of said document. Thus it appears that even prior to the execution of the document, possession was delivered to the respective parties as per the family settlement. The record of delivery of possession to the parties in Ex.A.1 itself shows that the possession of lands as per their respective shares was delivered to the parties and such delivery was duly recorded in Ex.A.1. This itself proves the earlier settlement between the parties on 12.2.1989 was acted upon before recoding it in Ex.A.1. Thus, from the facts and circumstances and from the recitals of document itself, it is clear that there was a family settlement between the parties on 12.2.1989 and it was acted upon. Thus, it is clear that Ex.A.1 is only a record of earlier family settlement between the parties and it does not create any new right in any party and as such a document does not require registration. Since I do not see any force in the contention of the learned counsel for the appellant, the appeal has to be dismissed. In the circumstances, this C.C.C.A. is dismissed. No costs. ___________________ B. CHANDRA KUMAR, J. Dated 16-8-2010 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A. No.115 OF 2005 Dated 16-8-2010 [1] AIR 2001 MADRAS 135 [2] AIR 1968 MADRAS 294 [3] (2004) 11 SCC 393 [4] AIR 1965 A.P.274 (VOL.52.C.67) (1) [5] (2001) 7 SCC 573 [6] AIR 1961 SC 1655 (V.48 C 312) [7] 2004-ALT-3-218 [8] 2009-ALD-6-432