IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.206/1995 Reserved on. 7.3.2008 Decided on.20.3.2008 Birbal. …Appellant. Versus Barfu Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. For the respondents Mr. Mohan Singh, Advocate. Rajiv Sharma, J. This regular second appeal has been filed against the judgment and decree passed by the learned District Judge, Solan in civil appeal No. 82-S/13 of 1992 decided on 22nd March, 1995. The brief facts necessary for the adjudication of this petition are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for declaration and possession mentioning therein that he was owner in possession of the disputed land comprised in khasra No. 28, 303/293 measuring 10 bighas situated in Mauja Radon Pandh, Pargana Bharoli Kalan, Tehsil Kasauli as per the jamabandi for the year 1980-81. The respondent 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 (hereinafter referred to as the defendant for convenience sake) induced him to execute a writing of exchange of the suit land with some land owned by the defendant in village Patorwa and Dalwi in Tehsil Ghumarwin, District Bilaspur. The trial court on the basis of the pleadings of the parties framed the following issues: 1. Whether the deed of exchange is vitiated by fraud as alleged? OPP 2. Whether mutation No.149 sanctioned on the basis of exchange deed is wrong, illegal, void? OPP 3. Whether the exchange is against provisions of law and not binding? OPP 4. Whether the plaintiff is entitled for possession of the suit land? OPP 5. Whether the defendant after exchange improved the suit land, if so, to what effect? OPD 6. Whether the plaintiff in lieu of exchange was compensated by transfer of entire land of villages Pater and Dehlvi as alleged? OPD. 7. Whether the suit is not maintainable? OPD 8. Whether the suit is time barred? OPD 9. Whether the suit for non and misjoinder is bad OPD 10. Whether the suit is properly valued for court fee and jurisdiction? OPD 11. Whether the defendant is tenant of the suit land? OPD 12. Relief. The findings recorded by the learned Sub Judge on the aforesaid issues are as under: Issue No.1. No. Issue No.2 Yes. 3 Issue No.3 Yes. Issue No.4. Yes. Issue No.5 No. Issue No.6 No. Issue No.7 Not pressed Issue No.8 Not pressed Issue No.9 Not pressed Issue No.10 Not pressed Issue No.11 No. Issue No.12 Relief Suit decreed as per the operative portion of the judgment. The trial court decreed the suit of the plaintiff on 16.10.1992. The defendant preferred an appeal against the judgment and decree dated 16.10.1992. The learned District Judge had framed the following points for determination: 1. Whether the impugned judgment and decree warrants interference? 2. Final order. The learned Addl. District Judge had recorded the following findings on the aforesaid points: 1 Yes. 2 Per operative part of the judgment, the appeal is accepted and the suit dismissed. The learned District Judge accepted the appeal on 22.3.1995. This regular second appeal has been filed assailing the judgment dated 22.3.1995. The second appeal was admitted on the following substantial questions of law: 4 1. Whether the deed of exchange Ex.DA which evidence the transfer of the interest in the immovable property worth more than Rs. 100/- was compulsorily registerable and inadmissible in evidence for want of stamp duty and registration. 2. Whether the suit for possession on the basis of title where declaration is merely incidental the suit could be held to be barred by limitation for having not challenged the mutation in the revenue courts? 3. Whether the learned lower appellate court has misconstrued the rules of pleadings and mis-applied the provision of order 6 rule 4 for reversing the judgment and decree of the learned trial court? Mr. Bhupender Gupta, Senior Advocate while arguing the appeal had confined his submission only to substantial question No.1. He contended that the document Ex. DA is the exchange deed and was compulsorily required to be registered under the provisions of the Registration Act, 1908 read with section 54 and 118 of the Transfer of Property Act, 1882 since according to him the value of the immovable property was more than Rs. 100/-. Mr. Mohan Singh, Advocate had supported the judgment dated 22.3.1995 passed by the learned District Judge, Solan. He had also contended that the suit was filed beyond the period of limitation. I have heard the learned counsel for the parties and perused the record carefully. The first question to be gone into is whether as per the submissions made by Mr. Mohan Singh, Advocate the suit was filed beyond the period of limitation prescribed or not. The issue No.8 5 was framed by the trial court to the effect “whether the suit is time barred”. The learned counsel appearing on behalf of the parties have not pressed issue No.8. Thus, the trial court had rightly come to a conclusion that the suit was filed within limitation. Since the issue was not pressed by the learned counsel appearing on behalf of the defendant with regard to the limitation, the same could be adjudged in the appeal by the first appellate court. Consequently, the finding recorded by the first appellate court that the suit was time barred, is set aside. The Court now has to consider whether the document Ex. DA dated 5.2.1983 was compulsorily required to be registered under section 17 of the Registration Act, 1908. Mr. Bhupender Gupta, Sr. Advocate by drawing the attention of this Court to document Ex. DA dated 5.2.1983 had urged that the same is “exchange deed” and could not be termed as a family arrangement. He also contended that the contents of document Ex. DA are to be gone in their entirety. Mr. Mohan Singh had submitted that the Ex. DA is a family arrangement and cannot be termed as an exchange deed and it was not compulsorily required to be registered. It will be apt at this stage to refer to bare provisions of section 17 (1) (b) of the Registration Act, 1908 which reads thus: “17 (1) (b). other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.” 6 It will also be appropriate to take note of section 118 of the Transfer of Property Act, which defines the word exchange as under: “118. “Exchange” defined.- When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.” It is evident from the caption given on the top of Ex. DA that the document has been styled as “exchange deed” (Tabadala nama). In the entire body of Ex. DA the expression exchange has been used by the parties. The reasons for signing of the exchange are to avoid litigation and to run the affairs properly. It has also come in the exchange deed that the same will be given effect to after the mutations are attested in favour of the parties. It is not disputed by the parties that the valuation of the land to be exchanged by way of EX.DA was more than 100/-. If that is so, the same was required to be compulsorily registered under section 17 (1) (b) of the Registration Act, 1908. It is clear from the definition clause as contained in section 118 of the Transfer of Property Act, 1882 that the exchange means when two persons transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. The learned District Judge has not gone into this aspect at all whether the document Ex. DA dated 5.2.1983 was compulsorily required to be registered. The trial court had taken into 7 consideration the plea raised by the plaintiff that the document Ex. DA was required to be compulsorily registered and on that basis he had come to a just conclusion that mutation Ex.PW-1/D bearing No.149 was not binding upon the plaintiff. The trial court had come to a just conclusion that the fact of non-registration of EX.DA was that it would not confer any title or interest on the defendant. The learned District Judge has only gone into the question whether any fraud was played by the defendant at the time of execution of Ex. DA dated 5.2.1983 and Ex. DB dated 23.2.1982. In Ashutosh versus Mohammad Yusuf Ali, AIR 1987 Patna 102 (Full Bench) it has been held that unregistered document agreeing to exchange immovable property would not vest any title or affect the same in the said property. Their Lordships have held as under: “In view of the aforesaid enunciation and the earlier discussion, the answer to the question posed at the outset is rendered in the negative, and it is held that an unregistered document agreeing to exchange immovable property (which otherwise requires compulsory registration under S.17 of the Registration Act) would not vest any title or affect the same in the said property.” In Kale and others versus Deputy Director of Consolidation and others, AIR 1976 SC 807, their Lordships have held that the registration would be necessary only if the terms of the family arrangement are reduced into writing and the distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a 8 mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In this eventuality, the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, is not compulsorily registerable. Their Lordships have held as under: “In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangements may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 (2) 9 (sic) (Sec. 17 (1) (b) ?) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owners, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” In the present case the perusal of the document i.e. Ex. DA conclusively proves that the same was an exchange deed and not a memorandum drawn after the family arrangement had already been made. Consequently, the second appeal is allowed. The judgment and decree of the learned District Judge, Solan dated 22nd March, 1995 is quashed and set aside. The judgment and decree passed by the trial court dated 16.10.1992 is restored. There shall be no order as to costs. (Rajiv Sharma), Judge March 20, 2008 *Awasthi*