Gopi Nath vs Shiv Prasad

V.K. Shukla, J.—Present second appeal has been filed against the judgment and decree dated 21.11.2006 passed by lower appellate court in Civil Appeal No. 34 of 1998, confirming the judgment and decree of trial court dated 31.08.1998 passed in civil suit No. 56 of 1993 Shiv Prasad v. Gopi Nath.

Brief background of the case is that the plaintiff- Shiv Prasad filed Original Suit No. 56 of 1993 against his brother, Gopi Nath, contending therein that the properties, which have been described in Schedule ''A'' and Schedule ''B'' of the plaint, situated in Mauza Kone, Pargana Aghori, Tehsil Robertsganj, District Sonbhadra, be partitioned to the extent of half share, as the said property had been purchased jointly by the plaintiff as well as defendant. It was contended that the defendant was illegally trying to usurp the same. Suit was contested by the defendant by contending that the property in question was his exclusive property and the plaintiff had got no share in the same; at the point of time when property was acquired, the plaintiff had no source of income nor had he spent any amount in the constructions etc. It was contended that the entire amount was given by him for purchase of the property and the plaintiff cunningly got his name also entered over the same. It was also mentioned that thereafter by way of mutual compromise respective share was relinquished after accepting Rs. 12,000/- and Rs. 8,000/- respectively. On the basis of the pleadings set up, in all, seven issues were framed. From the side of the plaintiff, plaintiff got himself examined as P.W. 1, Ram Nihor and Syed Irtza Hussain were examined as P.W. 2 and P.W. 3 respectively, and various documentary evidence were also filed. From the side of defendant, defendant got himself examined as D.W. 1. Ramesh Chand Gupta, Deo Nath Singh, Rajendra Prasad Tiwari, Harihar Prasad and Manoj Kumar Srivastava were examined as D.W.-2, D.W.-3, D.W.-4, D.W. -5 and D.W.-6, and various documentary evidence were also filed. Thereafter, trial court, after scrutinising the evidence, decreed the suit by directing that the plaintiff has got half share in the property in dispute and he is entitled to get the same partitioned. Aggrieved, the defendant preferred civil appeal, which has been dismissed. At this juncture, present second appeal has been filed. Record in question has also been summoned.

Sri Triveni Shankar, Advocate, appearing for the appellant, contended with vehemence that in the present case both the courts below have clearly misdirected themselves in decreeing the suit by ignoring this important aspect of the matter that by mutual agreement dated 03.04.1989, the plaintiff had relinquished his share in the property in question, and once it was relinquished by family members, then the said document in question was not required to be registered, as such the judgment and decree of the courts below are liable to be set aside.

Sri Surendra Tiwari, Advocate, appearing from the side of the defendant, on the other hand, contended that the document dated 03.04.1989 supplied by the defendant has been found to be forged and fabricated. It was a document of conveyance in lieu of consideration, as such in all eventuality, it required registration. Both the courts below have rightly proceeded to disbelieve the same.

After respective arguments have been advanced, factual position which emerges in the present case is that the sale deed in question through which the property was acquired was in favour of the plaintiff as well as defendant. This has also come on record and categorical finding of fact has been recorded by lower appellate court that over both the properties shown at Schedule ''A'' and Schedule ''B'' of the plaint, house has been constructed, which was duly fortified from the report of the Amin Commissioner and other documentary evidence and even from the statements of the plaintiff and the defendant made before the court. The suit has been for partition of the house and the land appurtenant thereto. Specific case of the defendant has been that interse parties on 03.04.1989 written agreement was there and by means of the same in respect of property shown at Schedule ''A'' plaintiff has sold his share for Rs. 8,000/- and by another document of the same date, after accepting a sum of Rs. 12,000/- as consideration, the plaintiff has relinquished his share. The plaintiff has seriously disputed the genuineness of this document dated 03.04.1989. The trial court in extenso has considered the reports of expert which were produced from both the sides, and has recorded finding that as far as report of expert produced from the side of the defendant is concerned, it has ignored various facets of the matter, and as such credibility should be attached to the expert report produced on behalf of the plaintiff. Taking into consideration various other circumstances, including original signature, finding of fact has been returned that document dated 03.04.1989 is forged and fabricated. Even lower appellate court has proceeded to mention that analysis done by the trial court is not defective. Concurrent finding of fact has been by both the courts below that document dated 03.04.1989 was forged and fabricated document. Such finding of fact neither being perverse nor unreasonable, is not at all to be interfered with.

It is true that the lower appellate court has proceeded to mention that even if signatures were there, even then such document being unregistered, it could not have been relied upon in view of the provisions of Sections 17 and 49 of the Registration Act.

From the side of the appellant, reliance has been placed on the judgment of Apex Court in the case of The Government of Andhra Pradesh and Others Vs. M. Krishnaveni and Others, as well as on the judgment of this Court in the case of State of U.P. v. Dharam Pal and Anr. 2009 (107) RD 128 , by contending that memorandum of family arrangement is not at all compulsorily registrable and can be used in evidence and the same is binding on the parties. In the case of The Government of Andhra Pradesh and Others Vs. M. Krishnaveni and Others, wherein document was in the nature of memorandum of family arrangement and which was filed before the court for its information, qua the same view has been taken that it is not compulsorily registrable and therefore can be used in evidence and is final and binding on the parties. The object of the family arrangement is to protect the family from long drawn litigation of perpetual strife. In the case of State of U.P. v. Dharam Pal and Anr. 2009 (107) RD 128 (supra), in view of the background, the memorandum of family arrangement has not been held to be transfer, as co-owners have transferred their shares to other co-sharers. In the said cases, nowhere respective share had been relinquished based on monetary consideration.

Once transfer is based on consideration, then in all eventuality, it has to be registered document, failing which it has to be ignored. Here, seeing the contents of the document dated 03.04.1989, wherein it has been described that the property which has been mentioned at Schedule ''A'', same is being sold for Rs. 8,000/- and the property which has been mentioned at Schedule ''B'' is being left after accepting Rs. 12,000/-. Said document in question even if it was between brothers, certainly required registration, as it was transfer/relinquishment based on consideration. However, in the present case said document has been found to be forged.

Not only this, the trial court on the basis of scrutiny of evidence has found the case set up by the defendant totally untruthful that he had paid the entire amount for purchase of property and without disclosing him, the plaintiff cunningly got his name entered in the sale deed. Finding of fact has been returned that the defendant very well knew the contents of the sale deed and even in mutation proceeding no objection was raised by him. At last it has been contended that the property which was shown at Schedule ''B'', was agricultural land and till date no declaration was made u/s 143 of the U.P.Z.A. & L.R. Act, as such it could not have been treated residential land. In the present case, lower appellate court has recorded categorical finding of fact that on both the properties mentioned at Schedule ''A'' and Schedule ''B'' houses have been constructed, and once in respect of part of property, civil court has jurisdiction to try the suit and the suit in pith and substance being suit for partition, and therein property mentioned at Schedule ''B'' was also included, then it cannot be said that civil court had no jurisdiction to try the suit.

Consequently, present second appeal is dismissed.