IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Regular First Appeal No. 828 of 2009
Decided On: 20.01.2015
M. Ramaswamy Reddy
Coram:Anand Byrareddy, J.
1. This is a defendant’s appeal.
2. The parties are referred to by their rank before the trial court for the sake of convenience.
3. The plaintiff claimed that he and the defendant were co-owners of the land bearing survey No. 16/1, Byatarayanapura, Yelahanka hobli, Bangalore North Taluk, measuring about 2 acres and 9 guntas. The said land, which was described in the schedule to the suit, was said to have been acquired under a sale deed dated 24.4.1972 from one Nanjappa and four others for a sum of Rs. 10,000/-.
It was the plaintiff’s claim that he had contributed Rs. 7,000/- and that the defendant had contributed a sum of Rs. 3000/-. This, according to the plaintiff, has been acknowledged by the defendant under a document styled as an acknowledgment, dated 10.1.1982. It was also claimed that the plaintiff had all long paid the land revenue in respect of the entire extent of land, without insisting on any contribution from the defendant.
It is stated that immediately prior to the suit, differences had arisen between the parties and hence, the plaintiff had demanded that the suit property be partitioned in accordance with the proportion of their respective ownership. Since it was claimed that the defendant did not respond, the suit came to be filed.
The defendant on entering appearance, had denied the plaint averments to the effect that the plaintiff and the defendant held an interest, in the ratio of 70:30 as contended by the plaintiff. On the other hand, it was claimed that they were owners of equal shares. The defendant denied that there was any acknowledgement of such percentage of sharing. The defendant sought for dismissal of the suit.
On the above pleadings, the trial court had framed the following issues:
“1. Does the plaintiff prove joint possession of the suit land with defendant from 24.4.1972?
2. Does the plaintiff prove acknowledgement dated 10.1.1982 by the defendant?
3. Whether the acknowledgement dated 10.1.1982 is hit by the provisions of Section 49 of the Indian Registration Act?
4. Does the defendant prove he is entitled for half share? (deleted as per order dated 5.2.2007)
5. Whether the plaintiff is entitled for the partition and separate possession of 7/10 share?”
The trial court has answered Issues – 1, 2, 5 in the affirmative and issue No. 3 in the negative and dismissed the suit. It is that which is under challenge.
4. Heard the learned Senior Advocate, Shri Ashok Harnahalli, appearing for the counsel for the appellant and the learned counsel appearing for the respondent. Shri Harnahalli, would point out that the sale deed under which the property was purchased only indicates that the property was purchased in the joint names of the plaintiff and the defendant. There is no indication of any extent of share. It is only by virtue of Exhibit P.2, a document which is ambiguously referred to as an acknowledgement and also a deed of partial partition, which is said to have been executed, ten years after the sale deed, that a particular extent of share is claimed, as opposed to the express tenor of the sale deed. It is pointed out that the terms of a registered sale deed cannot be varied or altered by an unregistered document, which is said to have been executed ten years after the sale deed, without any possible circumstance warranting such execution. Hence, the trial court having accepted the said document as having been proved and having decreed the suit on that basis is wholly impermissible and requires to be set aside.
It is also pointed out that even otherwise, the document at Exhibit P.2 was said to have been attested by two witnesses, and the said witnesses were available, according to the plaintiff, but neither of the witnesses were examined. But on the strength of the report of a hand writing expert, that the signatures found on Exhibit P.2 were indeed that of the defendant, the trial court having proceeded to hold that the said document had been proved, did not also make the same admissible and the same could not be held to have varied a significant term of the sale deed, pertaining to the proportion of ownership of the suit property. The learned Senior Advocate places reliance on a large number of authorities in support of the case.
5. The learned counsel for the respondent, on the other hand, seeks to justify the judgment of the trial court.
6. The trial court has rendered a rather long winded judgment, when the only point for consideration was whether the plaintiff who was shown to be a co-owner along with the defendant in respect of the suit property under a registered sale deed, could be permitted to rely on Exhibit P.2 to claim a particular extent of share, contrary to the sale deed.
If the registered sale deed was in the joint names of the plaintiff and the defendant, without indicating the quantum of contribution towards the sale price, even if one of the parties had contributed the entire sale consideration, the same is irrelevant, and each co-owner is entitled to one half of the property in the eye of law. This proposition finds support from the view expressed in the case of Narayana Murthy v. Venkateshalu, MANU/KA/0472/1995 : ILR 1995 Kar 2876.
It is well settled that a document which varies the essential terms of an existing registered deed, must be registered. (See: Sunil Kumar Roy v. Bhowra Kankanee Colleries Ltd., MANU/SC/0448/1970 : AIR 1971 SC 751 (A three judge bench decision).
It is laid down by the apex court in the case of K.B. Saha & Sons (P) Ltd. v. Development Consultant Ltd., MANU/SC/7679/2008 : (2008) 8 SCC 564, on a review of the case law on the point, thus:
“i. A document required to be registered if unregistered is not admissible in evidence under Section 49 of the Registration Act.
ii. Such unregistered document can however be used as evidence for a collateral purpose as provided in the proviso to Section 49 of the said Act.
iii. A collateral transaction must be independent of, or divisible from the transaction to effect which, the law required registration.
iv. A collateral transaction must be a transaction not itself required to be effected by a registered document, i.e., a transaction creating any right or interest in immovable property of the value of one hundred rupees or more.
v. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence. To use such a document to prove a significant term of the transaction would not be using it for a collateral purpose.”
These above established principles ought to have deterred the trial court from even permitting the document in question, Exhibit P.2 from being marked in evidence, even if the defendant had not raised an objection. It was the duty of the court to have prevented it. In any event, it cannot be acted upon, for it is not even duly stamped.
In the face of the above, the trial court has committed an error in placing reliance on Exhibit P.2 in decreeing the suit in favour of the plaintiff.
The appeal is allowed, the judgment and decree of the trial court is modified. A preliminary decree shall be drawn up for partition of the suit schedule property equally by metes and bounds between the plaintiff and the defendant and the parties shall be entitled to possession of their respective shares. No order as to costs.