Sobhana v. Padma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934 SA.No. 626 of 1999 (G) ---------------------AS.99/1995 of ADDL.DISTRICT COURT, NORTH PARAVUR OS.498/1990 of MUNSIFF COURT, PERUMBAVOOR APPELLANT(S)/APPELLANT/2ND PLAINTIFF: ------------ SOBHANA, AGED 42, D/O.THANATHU VEETTIL AMMUKUTTY AMMA, PICHOLI VEETTIL, NORTH VAZHAKKULAM KARA, MARAMPILLY VILLAGE. BY ADVS.SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT RESPONDENT(S)/RESPONDENTS/DEFENDANTS 1 TO 3 AND 1ST PLAINTIFF: -------------- 1. PADMA, AGED ABOUT 39, D/O.THANATH VEETTIL AMMUKUTTY AMMA, RESIDING AT PICHOLI VEETTIL, NORTH VAZHAKKULAM KARA, MARAMPILLY VILLAGE. 2. MANI, AGED 44, S/O.THOTTAPPATTU VEETTIL BHANU AMMA ALIAS JANAKI AMMA, RESIDING AT PICHOLI VEETTIL, NORTH VAZHAKKULAM KARA, MARAMPILLY VILLAGE. 3. AMMUKUTTY AMMA, D/O. THANATHU VEETTIL KALYANI AMMA, RESIDING AT PICHOLI VEETTIL, NORTH VAZHAKKULAM KARA, MARAMPILLY VILLAGE. 4. PREMA, AGED 45, D/O.AMMUKUTTY AMMA, RESIDING AT PICHOLI VEETTIL, NORTH VAZHAKKULAM KARA, MARAMPILLY VILLAGE. ADV. SRI.P.VISWANATHAN- R1 & R2 ADV. SRI.DINESH R.SHENOY-R1 & R2 ADV. SRI.S.VIDYASAGAR-R1 & R2 ADV. SRI.T.N.MANOJ-R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------S.A. No.626 of 1999 -------------------------------------Dated this the 21[st] day of June, 2012.** ## **JUDGMENT** Following are the substantial questions of law I am called upon to decide in this Second Appeal arising from the concurrent verdict of the courts below: i. Does not Ext.B1 which acknowledge payment and receipt of consideration in lieu of share in the plaint schedule immovable properties, require registration? ii. Is the principle of estoppel applicable in case Ext.B1 requires registration? iii. Did the courts below act per incuriam in that Ext.B1 is relied upon to non suit the appellant? 2. Appellant/2[nd] plaintiff, respondents 1 and 4 and Rukmini Amma are the children of the 3[rd] respondent and the late Govindan Nair. Properties acquired by the 3[rd] respondent and the late Govindan Nair were subjected to partition as per Ext.A1, partition deed No.1385 of 1935 among the appellant, respondents 1 and 4 and Rukmini Amma. Rukmini Amma took the A schedule property in the said document while the appellant and respondents 1 and 4 took the B schedule property. While so, 27 cents in survey No.165/8 (forming part of 2 SA No.626 of 1999 B schedule property in Ext.A1) was assigned by the appellant and respondents 1 and 4 as per Ext.B2, assignment deed dated 25.10.1977. The same day, Ext.B1, karar was executed by the appellant in favour of respondents 1 and 4. Appellant along with the 4[th] respondent filed O.S.No.498 of 1990 in the court of learned Munsiff, Perumbavoor for partition of the suit property (property described as B schedule in Ext.A1, less the 27 cents in survey No.165/8 sold as per Ext.B2). Appellant and the 4[th] respondent claimed that they together have 2/3 shares while the 1[st] respondent has 1/3 share. They claimed to be in joint possession of the property with the 1[st] respondent and sought partition and separate possession of their share. The 3[rd] respondent was made a party to the suit being the mother of appellant and the 4[th] respondent. 3. 1[st] respondent contended that appellant and 4[th] respondent are not entitled to get 2/3 shares in the suit property. Appellant is not entitled to get any share in the property since on the day Ext.B2, assignment deed was executed in respect of the 27 cents in survey No.165/8, appellant executed Ext.B1, karar as per which she relinquished her right in the rest of the family property on receiving sufficient consideration. Utilizing the said amount, appellant purchased another item of property as per Ext.B3 near to her matrimonial home. Thus, appellant ceased to have any right or interest in the suit property. 1[st] respondent claimed that the property is to be divided among herself and the 4[th] respondent equally. 3 SA No.626 of 1999 4. Trial court held in paragraph 16 of its judgment, referring to Ext.B2 that it is a document acknowledging receipt of `6,075/- by the appellant in lieu of her share in the family property and hence, she is estopped from claiming any share in the suit property. Accordingly, claim of the appellant was rejected and a preliminary decree for partition was passed directing division of the property among respondents 1 and 4 equally. Certain other directions were also issued. 5. Appellant challenged that judgment and decree before the learned Additional District Judge, North Paravur in A.S.No.99 of 1995. Learned Additional District Judge held that Ext.B1 came within the mischief of Sec.17(2) (v) of the Registration Act (for short, “the Act”) and hence the document is not compulsorily registrable. Appellant was found estopped from claiming any share in the suit property. Consequence was confirmation of the judgment and preliminary decree passed by the learned Munsiff. Hence the Second Appeal. 6. Learned Senior Advocate for the appellant has contended that if the finding of the first appellate court that Ext.B1 is an instrument coming within the mischief of Sec.17(2)(v) of the Act were to be upheld, that may save the document from the necessity for registration but, in the absence of a registered document whereby the appellant released her right in the family property, her right in the suit property remained in tact and hence she is entitled to get 1/3 share in the suit property. It is argued by the learned Senior Advocate that assuming that it is Sec.17(1)(c) of the Act which applies, to Ext.B1, then the document required registration and in the absence of registration, the said document cannot affect the right of appellant over the suit property; nor could the 4 SA No.626 of 1999 document be received in evidence to prove the transaction referred to therein. The rule of estoppal cannot apply to Ext.B1 which is required to be registered but not registered. 7. Learned counsel for the 1[st] respondent contends that though learned Munsiff did not enter a specific finding that Ext.B1 is a family settlement and though the first appellate court proceeded on the basis that Ext.B1 is an instrument coming under Sec.17(2)(v) of the Act, from the facts and circumstances of the case it is evident that Ext.B1 is a family settlement. It does not require registration since the document only evidences a transaction which has already taken place. It is contended by the learned counsel that even if Ext.B1 is a family settlement whereby the appellant has released her right in the suit property and hence it required registration but it is not registered, appellant who has taken advantage under that document is not entitled to turn round and repudiate Ext.B1 for the reason that it is not registered. The rule of estoppal would prevent the appellant from doing so. Learned counsel has placed reliance on the decision in **Kale and others v. Deputy Director of Consolidation and others ((1976) 3 SCC 119)** . In support of the contention that Ext.B1 is a family settlement, learned counsel has placed reliance on the decisions in **Ram Charan Das v. Girja Nandini Devi and others (AIR 1966 SC 323), Maturi Pullaiah and another v. Maturi Narasimham and others (AIR 1966 SC 1836), Gulam Abbas v. Haji Kayyam Ali and others (AIR 1973 SC 554), Roshan Singh and others v. Zile Singh and others (AIR 1988 SC 881), Thayyullathil** 5 SA No.626 of 1999 **Kunhikannan and others v. Thayyullathil Kalliani and others (AIR 1990 Kerala 226)** and **Damodaran Kavirajan and others v. T.D.Rajappan (1992 (2) ILR 105)** . 8. Ext.B1 is not disputed by the appellant. Though, there was an initial dispute as to what was the consideration appellant had received, that was settled by the decision of the trial court that in the light of the recital in Ext.B1 it must be taken that appellant has received the sum of `6,075/- mentioned therein. In view of Sec.92 of the Evidence Act, I am inclined to agree with that finding as parties to Ext.B1 cannot be allowed to plead and prove that the amount of consideration is something different. 9. The question for a decision is as to the nature and legal implications of Ext.B1. If Ext.B1 is a family settlement as contended by the learned counsel for 1[st] respondent, then as held in **Kale and others v. Deputy Director of Consolidation and others** (supra) even if it is assumed that by Ext.B1 appellant has relinquished her right in the family property but in spite of that Ext.B1 is not registered, appellant cannot turn round and contend that notwithstanding that Ext.B1 is executed by her, on account of non-registration she is not bound by it; the Supreme Court says that even in a case where the family settlement requiring registration was not registered, a party to it having gained an advantage cannot turn round and contend that it is not binding on him. 6 SA No.626 of 1999 10. If on the other hand, as the learned Senior Advocate for the appellant would contend Ext.B1 is not a family settlement but, comes either under Sec.17(1)(c) or Sec.17(2)(v) of the Act, then the question will arise whether in the absence of registration Ext.B1, or the transaction referred therein would affect the share of appellant in the suit property? To answer the above questions, it is necessary to refer to Ext.B1. 11. In Ext.B1, karar dated 25.10.1977 executed by the appellant in favour of respondents 1 and 4, shorn of frills and embroideries, the relevant recitals say: **==> picture [236 x 14] intentionally omitted <==** ജനനക�ട��ബത�ല ന�ന�� എ��റ അവക�ശ� വക എന�ക� വര ണ �പ� 6075 (ആറ�യ� ത� എഴ�പതഞ,) നമള ഇരന ദ�വസ� പ,ള�വട വ2ട�ല �3ല�� ന�യ ��ട ഭ� 6 ലക,9�ക�ട�യമ രപരക, എഴ�ത� �പ �ന�വ�ര സബ, ജ�സ,>ട�ഫ2സ�ല ജ�സര �3യ�ക�ന ത2റ�ധ� ത���റ >പത�ഫലവ�� 9റ�9�യ� ഇരന ദ�വസ� ന�ങരള�ട� ഞ�� � �ക� പറ� രബ�ദ6��ട� �ക�നത�� എ�E ജനനക�ട��ബ� വക സFത �കള�ല ന�ന �� ര9ല�ല യ��ത� �വക�ശവ�� എന�ക� വര ണത�രയ� ത �വ�ന�ളത�രയ� ഇ�ലന� ഞ�� സമതച� �ക�നത�� ന�ങള ആവശ6��ട�ന സ9യ� എ�E ഭ�ഗവ2ത� ഒഴ�വ �ക�റ� തന � ” �ക�ള�വ�നത�9�ക�ന�. ................. 7 SA No.626 of 1999 (I have today received from you the sum of `6,075/- being the amount due to me as my share in the family of my birth and as consideration, etc for the assignment deed we are this day executing in favour of Lakshmikutty Amma, W/o.Chellappan Nair, Plavida House and registering at the Sub Registrar Office, Perumbavoor. I agree that I shall not hereafter have any right in the property of my family of birth and that when you demand, I shall execute a release deed concerning my share.) 12. Learned counsel for 1[st] respondent has invited my attention to the circumstances under which according to the 1[st] respondent Ext.B1 was executed. It is thus: at the time Ext.B1 was executed, 1[st] respondent was a minor. Ext.B1 is executed by the appellant in favour of the 4[th] respondent for herself and as guardian of 1[st] respondent. On the same day appellant and respondents 1 and 4 executed Ext.B2, assignment deed in favour of Lakshmikutty Amma (referred to in Ext.B1 as well) concerning the 27 cents in R.S.No.165/8 (which formed part of B schedule in Ext.A1), the suit property being the remaining portion. It is pointed out by the learned counsel for 1[st] respondent that before Exts.B1 and B2 were executed, appellant was married and she had demanded her share in the family property. That was with the object of purchasing an item of property near to her matrimonial home. It is pointed out by the learned counsel that within 56 days of Exts.B1 and B2, appellant purchased an item of property near to her matrimonial home as evidenced by Ext.B3. It is the further contention of learned counsel that at the time of Ext.B3, assignment deed, appellant was aged only 19 years and was not 8 SA No.626 of 1999 having any job or independent source of income. Hence it is evident that consideration referred to and received by the appellant as per Ext.B1 was made use of for the acquisition of property as per Ext.B3. It is pointed out by the learned counsel that this is fortified by the further fact that husband of the appellant is a witness in Ext.B1. Hence, notwithstanding that in Ext.B1 there is no specific reference to a family settlement, this Court has to take the view that relinquishment of share as per Ext.B1 was as per the family settlement as per which appellant was to release her share in the family property, Lakshmikutty Amma was to be assigned the property referred to in Ext.B2 and with the consideration paid to the appellant, she was to purchase Ext.B3, property. That, according to the learned counsel would spell out a family settlement and whether or not it required registration, appellant cannot, having received benefit under Ext.B1 turn round and contend that for want of registration the said document is not binding on her. 13. Though, it was argued before the learned Munsiff that Ext.B1 is a family settlement and various decisions were also cited, I find from the judgment that apart from referring to the said decisions, learned Munsiff did not come to any conclusion that Ext.B1 is a family settlement. On the other hand, learned Munsiff has proceeded as if by Ext.B1, appellant has relinquished her share in the family property and hence she is estopped from claiming any share in the suit property. 9 SA No.626 of 1999 14. Learned Additional District Judge was specific that Ext.B1 is an instrument which comes within the purview of Sec.17(2)(v) of the Act. But, learned Additional District Judge has not referred to the latter part of the said provision which referred to the creation, extinction **,** etc. of the right as per a document. In otherwords, if Ext.B1 were to be treated as an instrument coming under Sec.17(2)(v) of the Act, assuming that Ext.B1 does not require registration, Ext.B1 cannot affect the share of appellant in the suit property since no registered deed of relinquishment is executed by the appellant. Hence if the instrument comes under Sec.17(2)(v) of the Act, in the absence of a separate registered deed relinquishing the right of appellant in the suit property, her share will remain in tact in which case she is entitled to ask for partition. In that situation, I am inclined to think that the rule of estoppal would not apply since there could be no estoppal against the provisions of the statute (Sec.17(2) (v) of the Act, in this case) and so far as Sec.17(1)(b) of the Act says that creation or relinquishment of right in the presenti or future can only by a registered document, consequence of non-registration under Sec.49 of the Act should follow; the unregistered document cannot affect the share of appellant in the suit property. 15. Though learned counsel for 1[st] respondent addressed arguments regarding the circumstances in which Ext.B1 was executed to contend that Ext.B1 is a family settlement, I do not find any plea to that effect in the written statement of the 1[st] respondent. Instead in paragraph 3 of the written statement what the 1[st] respondent has contended is only that appellant received 10 SA No.626 of 1999 consideration and released her share in the family property. That is the evidence 1[st] respondent as DW1 has also given. That cannot amount to a family settlement. On going through the evidence of DW1 also I do not find any element of family settlement in Ext.B1. 16. Otherwise also, I am not inclined to uphold the argument that Ext.B1 is a family settlement. No doubt, as the decisions cited by the learned counsel for the 1[st] respondent say, it is not necessary that for the execution of a family settlement there must be a dispute in presenti; there could be a family settlement for avoidance of future disputes and to keep peace and harmony in the family. But, going through Ext.B1, I do not find even a semblance of any dispute thereunder or reference to any possible dispute in future. I do not forget that according to the 1[st] respondent, appellant was enmical towards her and hence joining hands with the 4[th] respondent, appellant has caused the suit to be instituted after several years of Exts.B1 and B2. But, there is no evidence to show that there was any dispute in the family at the time Exts.B1 and B2 were executed or the members of the family anticipated the possibility of any dispute in future and to ensure harmony and peace in the family they thought of entering into a family settlement. Moreover, even after Ext.B1, appellant retained her coownership right in another item of property along with the 1[st] respondent and others which they jointly disposed of later, as per Ext.A2. 17. The recitals in Ext.B1 also do not persuade me to think that it is a family settlement. For, what is stated in Ext.B1 is clear that it concerned relinquishment of the share of the appellant in the family property for 11 SA No.626 of 1999 consideration. That cannot by itself amount to a family settlement. For these reasons, I reject the contention of the 1[st] respondent that Ext.B1 has to be treated as a family settlement. 18. Then the next question whether Ext.B1 would come within the mischief of Sec.17(1)(c) or Sec.17(2)(v) of the Act? Under Sec.17(1)(c), any non-testamentary instruments which acknowledges receipt or payment of any consideration on account of creation, declaration, assignment, limitation or extinction of any such right, title or interest requires registration. Sec.17(2)(v) states that nothing in Clauses (b) and (c) of Sub-sec. (1) shall apply to any document other than the documents specified in Sub-sec.(1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. 19. I said that learned Additional District Judge has taken the view that Ext.B1 is an instrument falling under Sec.17(2)(v) of the Act. Having gone through Ext.B1 and Sec.17(2)(v) of the Act, I am unable to accept that view. For, it is clear from Clause (v) of Sec.17(2) of the Act that an instrument to fall under that provision must merely create a right to obtain another document which would create, declare, assign, limit or extinguish any such right or title or interest. On going through Ext.B1 (the relevant portion of which I have extracted and translated) I find that it is not as if Ext.B1 merely created a right to the 12 SA No.626 of 1999 respondents 1 and 4 to obtain a release deed as regards share of the appellant in the suit property; the instrument speaks something else as well. Hence the instrument cannot come within the purview of Sec.17(2)(v) of the Act. 20. On the other hand, Ext.B1 refers to, may be the same day, a transaction which has taken place and which is recognised and acknowledged in Ext.B1. This is clear from the words of Ext.B1 that “I have today received from you the sum of `6,075/- being the amount due to me as my share in the family of my birth and as consideration, etc. for the assignment deed that we are this day executing in favour of Lakshmikutty Amma, W/o.Chellappan Nair, Plavida House and registering at the Sub Registrar Office, Perumbavoor”. The words ” � �ക� പറ�“ used in Ext.B1 only means “consideration had and received” (see **Kottayam Bank Ltd. v. Ahammed Kannu Rawther - 1957 KLT 518)** . In otherwords, Ext.B1 shows that it acknowledges receipt of `6,075/- being the amount due to the appellant for relinquishment of her share in the family property and as consideration for the assignment deed (Ext.B2) executed and to be registered. Thus, it is clear to me that Ext.B1 is an instrument whereby the appellant has acknowledged receipt of payment of consideration on account of extinction of her right in the family property. If that be so, Ext.B1 must come within the purview of Sec.17 (1)(c) of the Act. 21. It follows that in view of Sec.17(1) of the Act, Ext.B1 required registration. The consequence of non-registration is provided under Sec.49 of the Act. In the absence of registration, the instrument shall not affect right of 13 SA No.626 of 1999 appellant in the suit property. Nor can it be used as evidence of the transaction referred to therein. Hence notwithstanding Ext.B1, I am to hold that appellant continued to have share in the family property and hence she is entitled to get share in the suit property. As Ext.B1 is found to be compulsorily registrable but not registered, the rule of estoppal cannot apply. 22. Then the next question is whether appellant is entitled to retain the sum of `6,075/-? On the representation that appellant has released her share in the family property, she has received `6,075/- on 25.10.1977. True, I found that Ext.B1 cannot affect the proprietary title of appellant in the suit property and hence she is entitled to seek division and separate possession of her share. But, that does not mean that appellant could retain the entire sum of `6,075/and at the same time take a share in the suit property. Applying the principles of quasi contract and equity, when appellant is getting a share in the family property as she claims notwithstanding Ext.B1, she is bound in law and in equity to return the share of respondents 1 and 4 in the sum of `6,075/- to them. The amount appellant is found liable to return to the respondents 1 and 4 should carry interest at the rate of 9% per annum from 25.10.1977 until payment. 23. The substantial questions of law framed are answered as above. Resultantly this Second Appeal succeeds. Judgment and decree of learned Additional District Judge, North Paravur in A.S.No.99 of 1995 and of learned Munsiff, Perumbavoor in O.S.No.498 of 1990 are modified as under: 14 SA No.626 of 1999 i. The suit property will be divided among the appellant and respondents 1 and 4 equally. ii. Appellant will get 1/3 share in the suit property. iii. Regarding the tarwad house, the direction issued by the trial court will remain in force. iv. Appellant and the first respondent will get 1/3 share each of the value of the tarwad house. v. In other respects, judgment and decree of the courts below will stand. vi. Appellant is directed to pay to respondents 1 and 4/deposit in the trial court for such payment 2/3[rd] of the sum of `6,075/- together with interest at the rate of 9% per annum from 25.10.1977 till payment/deposit. vii. On such deposit, respondents 1 and 4 shall share the said amount equally. 15 SA No.626 of 1999 viii. In case the amount is not paid/deposited as aforesaid, it will be open to the respondents 1 and/or 4 to realise their/her share of the amount from the appellant and her share of the property. ix. Parties shall suffer their cost in this appeal. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks** 16 SA No.626 of 1999 ## **THOMAS P.JOSEPH, J.** **S.A.No.626 of 1999** ## **JUDGMENT** **21[st] June, 2012.**