Case: SHYAM NARAYAN PRASAD Vs. KRISHNA PRASAD

2. One Gopalji Prasad is the common male ancestor of the parties. Theand Laxmi Prasad, 5herein, are the sons of Gopalji Prasad. RespondentNos. 1 to3 are the sons of Laxmi Prasad and4 is the son of the 14 are thein the suit, being Civil Suitof 2001, and the5 and 6 are theNo relief has been claimed against3 in the suit). For the sake of convenience, parties are referred to by the ranking in the trial court.fs filed the aforesaid suit against thefor a declaration that the document dated 30.1.1990 (Exhibit P2) executed betweenNos. 1 and 2 is invalid and for certain other reliefs. According to them, the family property was partitioned on 31.7.1987 between Gopalji and his five sons, namely, Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh Kumar. In the partition Gopalji has retained some of the properties for his personal use till his death. Laxmi Prasad got his share of property along with half portion of existingRCC building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is being run. Shyam Narayan Prasad was allotted a shoe shop at Manihari which is run on a rented premises owned by Gouri Shankar Prasad. He was also allotted other properties in the partition.After the partition, the sons of Gopalji were put in possession of their share of the properties. However, Laxmi Prasad) in collusion with his brother Shyam Narayan Prasad) executed an agreement dated 30.1.1990 exchanging the liquor shop at Singtam Bazar, East Sikkim with the shoe shop at Manihari. It is their contention that since the property is an ancestral property, they also have a share in the property which had fallen to the share of2 and that he has no legal right to exchange the property with. It was further contented that the deed of exchange dated 30.1.1990 entered into between1 and 2 is in relation to an immovable property. Since the said document has not been registered, it has no legal effect.has filed the written statement stating that the suit properties are not ancestral properties. He has denied the contention of thethat the document dated 30.1.1990 is not a valid document. It was further contended that the said document has already been given effect from the date of its execution.Defendant No. 2 has filed the written statement contending that for the alleged exchange deed,On the basis of the pleadings of the parties, the trial court has framed relevant issues. Parties have led evidence in support of their respective contentions. On appreciation of the materials on record, the trial court had come to the conclusion that the property in question is an ancestral property and that thebeing the sons and grandson of, they have also equal share in the property allotted to him in the partition. The suit was accordingly decreed.ant challenged the said judgment and decree by filing an Appealof 2003 before the District Judge,Sikkim at Gangtok. The District Judge by judgment and decree dated 19.11.2004 allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. Thefiled a Second Appealof 2005 challenging the judgment and decree of the District Judge before the High Court. The High Court has set aside the judgment and decree of the District Judge and restored the judgment and decree of the trial court.

Reasoning:
It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of2 who is the father ofNos. 1 to3 and grandfather ofNo. 4. Certain properties had fallen to the share of the firstThe trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. We do not find any ground to disagree with this finding of the courts below.It is settled that the property inherited by a male Hindu from his father,s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.Therefore, the properties acquired by2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of2 retained the character of a coparcenary property and thebeing his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by thetransfer of ownership of their respective properties byNos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange. The value of RCC building exceeds Rs. 100/which is not in dispute.It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone isor more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registeredSection 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registrationSection 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.In Roshan SinghOrs. v. Zile SinghOrs. 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It was held17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovablepropositions must thereforeA partition may be affected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered,of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason ofof the Evidence Act,. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as requiredSection 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and provedSection 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be provedSection 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2.The last contention of the learnedant is in relation to application of Section 53A of the T.PAct. It is well settled that thewho intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the firstshows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the firstto claim the benefit availableSection 53A of the T.P. Act.