SHYAM NARAYAN PRASAD versus KRISHNA PRASAD AND ORS.
[2018] 5 S.C.R. 36, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Facts
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SHYAM NARAYAN PRASAD
v.
KRISHNA PRASAD AND ORS.
(Civil Appeal No. 5415 of 2011)
JULY 02, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Hindu Law – Mitakshara law – Property allotted to son in
partition – Whether retains character of coparcenery property –
Held: 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 – On facts,
properties acquired by son in the partition although are separate
property qua other relations but it is a coparcenary property in so
far as his sons and grandsons are concerned – Plaintiffs being his
sons and grandson have a right in the said property – It cannot be
said that the suit filed by the plaintiffs challenging the document
executed between their father and uncle was not maintainable.
Deeds and Documents – Exchange deed – Admissibility in
evidence – On facts, two brothers transferred the ownership of their
respective properties through deed of exchange – One building also
subject matter of the exchange deed, value of which exceeded Rs.
100/- and was not registered – Held: Since the exchange deed had
the effect of creating and taking away the rights in respect of an
immovable property-building, it required registration –
Being an
unregistered document, it could not be taken into account to the
extent of the transfer of an immovable property – It is inadmissible
in evidence and as such can neither be proved u/s. 91 nor any oral
evidence can be given to prove its contents – Thus, the High Court
rightly discarded the exchange deed – Transfer of Property, 1882 –
ss. 118, 54 – Registration Act, 1908 – ss. 17, 49 – Evidence Act,
1872 – s. 91.
Dismissing the appeal, the Court
HELD: 1.1 The property inherited by a male Hindu from
his father, father’s father or father’s father’s father is an ancestral
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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. On
facts, the properties acquired by defendant No.2 in the partition
although are separate property qua other relations but it is a
coparcenary property insofar as his sons and grandsons are
concerned. 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. The property which had fallen to the
share of defendant No.2 retained the character of a coparcenary
property and the plaintiffs being his sons and grandson have a
right in the said property. Hence, it cannot be said that the suit
filed by the plaintiffs was not maintainable. [Paras 12, 16][42-C-
D; 44-E-F]
C. Krishna Prasad v. C.I.T, Bangalore [1975] 2 SCR
709 : (1975) 1 SCC 160; M. Yogendra and Ors. v.
Leelamma N. and Ors. [2009] 12 SCR 38 : (2009) 15
SCC 184; Rohit Chauhan v. Surinder Singh and Ors.
[2013] 7 SCR 897 : (2013) 9 SCC 419 – referred
to.
1.2 The transfer of ownership of their respective properties
by defendant Nos. 1 and 2 was done through deed of exchange. It
was contended by defendant No.1 that the exchange was only of
the businesses. However, a careful perusal of the deed 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 s. 118 of the Transfer of Property
Act that where either of the properties in exchange are immovable
or one of them is immovable and the value of anyone is Rs.100/-
or 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
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above, it can be made only by a registered instrument. In the
instant case, the exchange deed has not been registered. [Paras
17, 18][44-B-C; 45-G-H]
1.3 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 s. 49 of the Registration Act imposes bar on the admissibility
of an unregistered document and deals with the documents that
are required to be registered u/s. 17. 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
registration under Section 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. The best evidence of
the contents of the document is the document itself and as
required under Section 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 proved under
Section 91. Since the deed is an unregistered document, it is
inadmissible in evidence and as such it can neither be proved
under Section 91 nor any oral evidence can be given to prove its
contents. Therefore, the High
Court rightly discarded the
exchange deed. [Paras 20, 22][45-G-H; 46-A, E-F]
1.4 The defendant who 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 first defendant shows 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 appellant to claim the benefit available under
Section 53A of the T.P. Act. [Para 23][46-G-H; 47-A]
Roshan Singh & Ors. v. Zile Singh & Ors. [1988] 2
SCR 1106 – referred to.
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Case Law Reference
[1975] 2 SCR 709
 referred to
Para 13
[2009] 12 SCR 38
 referred to
Para 14
[2013] 7 SCR 897
 referred to
Para 15
[1988] 2 SCR 1106
 referred to
Para 21
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5415
of 2011.
From the Judgment and Order dated 15.05.2006 of the High Court
of Sikkim in Regular Second Appeal No. 1 of 2005.
K. V. Mohan, A. K. Yadav, Kedar Nath Tripathy, Advs. for the
Appellant.
Tanmaya Agarwal, Vineet Kumar, Chander Shekhar Ashri, Advs.
for the Respondents.
The Judgment of the Court was delivered by
S. ABDUL NAZEER, J. 1. Defendant No.1, Shyam Narayan
Prasad is the appellant before us.  In this appeal he has questioned the
legality and correctness of the judgment and decree dated 15.5.2006
passed by the High Court of Sikkim in RSA No.1 of 2005.
2. One Gopalji Prasad is the common male ancestor of the parties.
The appellant and Laxmi Prasad, 5th respondent herein, are the sons of
Gopalji Prasad.  Respondent Nos. 1 to 3 are the sons of Laxmi Prasad
and respondent No.4 is the son of the 1st respondent.  Respondent Nos.1
to 4 are the plaintiffs in the suit, being Civil Suit No.10 of 2001, and the
appellant and respondent Nos.5 and 6 are the defendants.   No relief has
been claimed against respondent No.6 (defendant No.3 in the suit).  For
the sake of convenience, parties are referred to by the ranking in the
trial court.
3. The plaintiffs filed the aforesaid suit against the defendants for
a declaration that the document
dated 30.1.1990 (Exhibit P2) executed
between defendant Nos. 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
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use till his death.  Laxmi Prasad got his share of property along with half
portion of existing two-storey RCC 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.
4. After the partition, the sons of Gopalji were put in possession of
their share of the properties.  However, Laxmi Prasad (defendant No.2)
in collusion with his brother Shyam Narayan Prasad (defendant No.1)
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 of defendant
No.2 and that he has no legal right to exchange the property with defendant
No.1. It was further contented that the deed of exchange dated 30.1.1990
entered into between defendant Nos.1 and 2 is in relation to an immovable
property.  Since the said document has not been registered, it has no
legal effect.
5. Defendant No.1 has filed the written statement stating that the
suit properties are not ancestral properties.  He has denied the contention
of the plaintiffs that 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.
6. Defendant No. 2 has filed the written statement contending
that for the alleged exchange deed, defendant No. 1 had approached
him for exchanging only the business of liquor shop at Sikkim with that
of shoe shop at Gangtok for convenience and that he had signed the
document in good faith believing that the exchange deed was only for
the two businesses, and further, admitted that exchange deed was made
and executed behind the back of the plaintiffs.
7. 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 the plaintiffs being the sons and grandson of
defendant No.2, they have also equal share in the property allotted to
him in the partition. The suit was accordingly decreed.
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8. The first defendant challenged the said judgment and decree
by filing an Appeal No.2 of 2003 before the District Judge, Sub-Division-
II, 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. The plaintiffs filed a Second Appeal
No.1 of 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.
9. The contention of the learned counsel for the appellant/
defendant No.1 is that the entire property of Gopalji was the self acquired
property and he has divided the property amongst his five sons by a
deed of partition dated 1.3.1988.  According to the deed of settlement
dated 30.1.1990 between defendant Nos. 1 and 2, only the businesses
were transferred and not the buildings. Therefore, the sons and the
grandson of defendant No.2 have no right to seek cancellation of the
said deed. There is no exchange of immovable property as contended
by the plaintiffs. Therefore, the settlement deed does not require
registration. The parties have acted upon the said agreement.  In the
circumstances, possession of the appellant is protected under Section
53A of the Transfer of Property Act, 1882 (for short ‘the T.P. Act’).
10. On the other hand, learned advocate appearing for the
respondent Nos. 1
to 4/plaintiffs submits that the subject matter of the
deed of settlement dated 30.1.1990 is a joint family property.  The recitals
of this document clearly show that there is a transfer of immovable
property. The plaintiffs, being the lineal descendants of defendant No.2,
are the members of the copercenary. They have a right and interest
over the property in question. The settlement deed dated 30.1.1990 has
not been registered. Hence, it is inadmissible in evidence.  Defendant
No.1 has not pleaded in his written statement that he has taken the
possession of the property in part performance of the contract.  Therefore,
it is not open for him to claim the benefit of Section 53A of the T.P. Act.
Learned counsel prays for dismissal of the appeal.
11. Having regard to the contentions urged, the first question for
consideration is whether the property allotted to defendant No.2 in the
partition dated 31.07.1987 retained the character of a coparcenary
property. Admittedly, Gopalji Prasad and his five sons partitioned the
property by a deed of partition dated 31.07.1987.  It is clear from the
SHYAM NARAYAN PRASAD v. KRISHNA PRASAD
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materials on record that Gopalji Prasad retained certain properties in the
partition.  Certain properties had fallen to the share of defendant No.2
who is the father of plaintiff Nos. 1 to 3 and grandfather of plaintiff No.
4.  Certain properties had fallen to the share of the first defendant.   The
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.
12. It is settled that the property inherited by a male Hindu from
his father, father’s father or father’s 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.
13. In C. Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC
160, this Court was considering a similar question.  In the said case, C.
Krishna Prasad, the appellant along with his father Krishnaswami Naidu
and
brother C. Krishna Kumar formed Hindu undivided family up to
October 30, 1958, when there was a partition between Krishnaswami
Naidu and his two sons. A question arose as to whether an unmarried
male Hindu on partition of a joint Hindu family can be assessed in the
status of undivided family even though no other person besides him is a
member of the family. It was held that the share which a coparcener
obtains on partition is ancestral property as regards male issue.  It was
held as under:
“The share which a coparcener obtains on partition of
ancestral property is ancestral property as regards his male
issue. They take an interest in it by birth, whether they are
in existence at the time of partition or are born
subsequently. Such share, however, is ancestral property
only as regards his male issue. As regards other relations, it
is separate property, and if the coparcener dies without leaving
male issue, it passes to his heirs by succession (see p. 272 of
Mulla’s Principles of Hindu Law, 14th Ed.). A person who for
the time being is the sole surviving coparcener is entitled to dispose
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of the coparcenary property as if it were his separate property.
He may sell or mortgage the property without legal necessity or
he may make a gift of it. If a son is subsequently born to him or
adopted by him, the alienation, whether it is by way of sale,
mortgage or gift, will nevertheless stand, for a son cannot object
to alienations made by his father before he was born or begotten”.
   (emphasis supplied)
 14. In M. Yogendra and Ors. v. Leelamma N. and Ors. 2009
(15) SCC 184, it was held as under:
“It is now well settled in view of several decisions of this
Court that the property in the hands of a sole coparcener
allotted to him in partition shall be his separate property
for the same shall revive only when a son is born to him. It
is one thing to say that the property remains a coparcenary
property but it is another thing to say that it revives. The distinction
between the two is absolutely clear and unambiguous. In the case
of former any sale or alienation which has been done by the sole
survivor coparcener shall be valid whereas in the case of a
coparcener any alienation made by the karta would be valid.”
   (emphasis supplied)
15. In Rohit Chauhan v. Surinder Singh and Ors. 2013 (9)
SCC 419, a contention was raised by the defendant No. 1 that after
partition of the joint Hindu family property, the land allotted to the share
of defendant No. 2 became his self acquired property and he was
competent to transfer the property in the manner he desired.
It was
held that the property which defendant No. 2 got by virtue of partition
decree amongst his father and brothers was although separate property
qua other relations but it attained the characteristics of coparcenary
property the moment a son was born to defendant No. 2.  It was held
thus:
“A person, who for the time being is the sole surviving coparcener
as in the present case Gulab Singh was, before the birth of the
plaintiff, was entitled to dispose of the coparcenary property as if
it were his separate property. Gulab Singh, till the birth of plaintiff
Rohit Chauhan, was competent to sell, mortgage and deal with
the property as his property in the manner he liked. Had he done
so before the birth of plaintiff, Rohit Chauhan, he was not
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competent to object to the alienation made by his father before he
was born or begotten. But, in the present case, it is an admitted
position that the property which Defendant 2 got on partition
was an ancestral property and till the birth of the plaintiff
he was the sole surviving coparcener but the moment
plaintiff was born, he got a share in the father’s property
and became a coparcener. As observed earlier, in view of the
settled legal position, the property in the hands of Defendant 2
allotted to him in partition was a separate property till the birth of
the plaintiff and, therefore, after his birth Defendant 2 could have
alienated the property only as karta for legal necessity. It is
nobody’s case that Defendant 2 executed the sale deeds and release
deed as karta for any legal necessity. Hence, the sale deeds and
the release deed executed by Gulab Singh to the extent of entire
coparcenary property are illegal, null and void. However, in respect
of the property which would have fallen in the share of Gulab
Singh at the time of execution of sale deeds and release deed, the
parties can work out their remedies in appropriate proceeding.”
               (emphasis supplied)
16. Therefore, the properties acquired by defendant No.2 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 of defendant No.2 retained the character of a
coparcenary property and the plaintiffs being his sons and grandson have
a right in the said property.  Hence, it cannot be said that the suit filed by
the plaintiffs was not maintainable.
17. This takes us to the next question as to whether the exchange
deed at Exhibit P2 is admissible in evidence or not.  The transfer of
ownership of their respective properties by defendant Nos. 1 and 2 was
done through Exhibit P2 deed of exchange.  It was contended by
defendant No.1 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.  Section 118 of the TP
Act defines ‘exchange’ as under:
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“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”.
18.  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 is Rs.100/- or 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.
19. Section 49 of the Registration Act, 1908 provides for the effect
of non-registration of the document which is as under:
“49. Effect of non-registration of documents required to be
registered.-No document required by section 17 {or by any
provision of the Transfer of Property Act, 1882 (4 of 1882)}, to
be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) Be received as evidence of any transaction affecting such
property or conferring such power,
Unless it has been registered:”
20. 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 registered
under Section 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 registration under
Section 17.  Since the deed of exchange has not been registered, it
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cannot be taken into account to the extent of the transfer of an immovable
property.
21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2)
SCR 1106, this Court was considering the admissibility of an
unregistered partition deed.  It was held thus:
“……Section 17(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 immovable
property……Two propositions must therefore flow:
(1) A 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, S.49 of the Act will prevent its being admitted
in evidence.  Secondary evidence of the factum of partition will
not be admissible by reason of S.91 of the Evidence Act, 1872.”
               (emphasis supplied)
22. It is clear from the above judgment that the best evidence of
the contents of the document is the document itself and as required
under Section 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 proved under Section 91 of the Evidence Act.  Since Exhibit P2
is
an unregistered document, it is inadmissible in evidence and as such it
can neither be proved under Section 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.
23. The last contention of the learned counsel for the appellant is
in relation to application of Section 53A of the T.P Act.  It is well settled
that the defendant who 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 first defendant
shows 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.

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No relief can be granted to a party without the pleadings. Therefore, it is
not open for the first defendant/appellant to claim the benefit available
under Section 53A of the T.P. Act.
24. In the result, this appeal fails and it is accordingly dismissed.
There will be no order as to costs.
Nidhi Jain
Appeal dismissed.
SHYAM NARAYAN PRASAD v. KRISHNA PRASAD
[S. ABDUL NAZEER, J.]